BOTY™ Mobile App End-User License Agreement
Last Updated: March 21, 2022
Thank you for requesting access to the BOTY™ mobile application (the “App”) made available to certain mobile device (collectively, “Mobile Device”) users by and through various mobile application venues (“Establishments”). The App is an Internet property of Appocalypse, Inc. (“BOTY™,” “we,” “our” or “us”). The App creates channels of communication and engagement at bars and restaurants and provides end-users (“Users”) with the ability to: (a) explore and find the best places to go; (b) search, based on the User’s search criteria, for other users based on first and last name, email address, and geographic location; (c) search, based on bartender, server, and establishment rankings in a geographic location; (d) search for drink recipes uploaded by a user based on drink names, ingredients and directions to create the drink; (e) check-In and announce your arrival to people at places; (f) flirt and network with other users checked into the same establishment; (g) play game trivia with other users checked into the same establishment within a certain amount of time; (h) earn rewards called BOTY Points and share with other users; and (i) share certain App recommendations, and/or other App features and/or usage, where applicable (“Social Media Interaction”), via that User’s accounts on various third-party hosted and operated social media websites (collectively, “Social Media Sites”).
For purposes of the Agreement, the App, Explore, User Search, Game Trivia, Flirt, Network, Rewards, Rankings, Chat, Drink Recipes, Account Settings, Content, and Social Media Interaction shall be referred to, collectively, as the “BOTY™ Offerings.”
By using and/or accessing the BOTY™ Offerings, Users agree to comply with and be bound by the Agreement in its entirety. PLEASE REVIEW THE TERMS OF THE AGREEMENT CAREFULLY. IF A USER DOES NOT AGREE TO THE AGREEMENT IN ITS ENTIRETY, THAT USER IS NOT AUTHORIZED TO USE THE BOTY™ OFFERINGS IN ANY MANNER OR FORM.
- Scope; Modification of Agreement. The Agreement constitutes the entire and only agreement between Users and BOTY™ with respect to Users’ use of the BOTY™ Offerings and supersedes all prior or contemporaneous agreements, representations, warranties, and/or understandings with respect to same. We may amend the Agreement from time to time in our sole discretion, without specific notice to our Users; provided, however, that any amendment or modification to the arbitration provisions, prohibition on class action provisions, or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification. The latest Agreement will be posted by and through the App, and Users should review the Agreement prior to using any BOTY™ Offerings. By a User’s continued use of the BOTY™ Offerings, that User hereby agrees to comply with all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, which shall be governed by the Dispute Resolution Provisions then in effect at the time of the subject dispute).
- Requirements; Necessary Equipment. The BOTY™ Offerings are available only to individuals who can enter into legally binding contracts under applicable law. The BOTY™ Offerings are not intended for use by non-valid legal entities and/or individuals under twenty one (21) years of age (or the applicable age of majority, if greater than twenty one (21) years of age). If a User is under twenty one (21) years of age (or the applicable age of majority, if greater than twenty (21) years of age) and/or if that User is unable to enter into legally binding contracts under applicable law, that User does not have permission to use and/or access the BOTY™ Offerings. Users shall be responsible, at all times, for ensuring that they have a Mobile Device, wireless service plan and/or other equipment necessary to access and use the App and other BOTY™ Offerings. BOTY™ does not guarantee that the App and associated BOTY™ Offerings can be accessed: (a) on all Mobile Devices; (b) through all wireless service plans; and/or (c) in all geographical areas. BOTY™ does not guarantee the quality, speed or availability of your Mobile Device’s Internet connection. Standard messaging, data and wireless access fees may apply to your use of the App and associated BOTY™ Offerings. You are fully responsible for all such charges, and BOTY™ has no liability or responsibility to you, whatsoever, for any such charges billed by your wireless carrier.
- Installation; Uninstall. Installation. BOTY™ believes in providing Users with clear, concise and complete disclosure before Users download and install the App, including a description of the primary functions of the App. The App requires User consent prior to installation. BOTY™ does not believe that Users should be deceived into downloading or installing the App. In order to download the App, you must utilize the options made available via the Download Venue applicable to the operating system used by your mobile device, if any.
Uninstall. The App can be completely uninstalled in a straightforward manner and without requiring undue effort or skill, in most cases by using the traditional “uninstall” app function contained within your Mobile Device. Please be advised that in some instances, you may be required to restart your Mobile Device before all remnants of the App are completely uninstalled and removed from your Mobile Device. If you experience any problems installing and/or uninstalling the App, please contact us via e-mail at: help@localhost; or call us at: 512-920-2689.
THE APP IS NOT SPYWARE OR ADWARE. THE APP WILL NOT DELIVER ADVERTISEMENTS TO YOUR MOBILE DEVICE OTHER THAN BY AND THROUGH THE APP INTERFACE.
- Registration; Account Rejection and/or Termination. In order to utilize certain of the BOTY™ Offerings (including the App), Users may be required to submit a registration form (each, a “Form”). The information that Users must supply on the applicable Form may include, without limitation: (a) user name and password; (b) full name; (c) e-mail address; (d) mailing address or just city & state; (e) photo; (f) website; (g) hours of operation; (h) description of place of business; and/or (i) any other information requested by BOTY™ on the Form (collectively, “Form Registration Data”). Where a User accesses certain of the BOTY™ Offerings using an available Social Media Site account, BOTY™ may collect some or all of the following (depending on the User’s account settings associated with that Social Media Site and the discretion of the applicable Social Media Site): (i) the User’s e-mail address; (ii) the information listed in the “About Me” section of the User’s Social Media Site account; (iii) the “interests” associated with the User’s Social Media Site account; (iv) the User’s Social Media Site account ID and the “likes” and other actions associated with the User’s Social Media Site account; and (v) any other information collected via the applicable Social Media Site account interface, depending on the User’s account settings for that Social Media Site (collectively, “Social Media Site Registration Data,” and together with the Form Registration Data, the “Registration Data”). Each User agrees to provide true, accurate, current and complete Registration Data, as necessary, in order to maintain it in up to date and accurate fashion.
BOTY™ may reject a User’s Form, reject a User’s attempted Social Media Site registration and/or terminate a User’s Account at any time and for any reason, in its sole discretion. Such reasons may include, without limitation, where: (A) BOTY™ believes that such User is in any way in breach of the Agreement; (B) BOTY™ believes that such User is engaged in any improper conduct in connection with the BOTY™ Offerings; and/or (C) BOTY™ believes that such User is, at any time, conducting any unauthorized commercial activity by and through the BOTY™ Offerings.
As part of the registration process, Users will be provided with, or must select, their name, establishment name and/or password. If BOTY™ provides a User with a password, that User can change that password, or the one that the User selected during registration, at any time through its Account settings. Each User agrees to notify BOTY™ of any known or suspected unauthorized use(s) of its Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of its name/password. Each User shall be responsible for maintaining the confidentiality of its name/password and Account. Each User agrees to accept responsibility for all activities that occur through use of its name/password and Account, including any charges incurred therethrough. Any fraudulent, abusive or otherwise illegal activity engaged in by any User, or any entity or person with access to that User’s name/password and/or Account may be grounds for termination of that User’s Account, in BOTY’s™ sole discretion, and that User may be reported to appropriate law enforcement agencies.
- The BOTY™ Offerings
(a) The App, User Search, Game Trivia, Flirt, Rewards, Rankings, Chat, Drink Recipes. Subject to BOTY’s™ approval of a User’s attempted registration, that User shall have access to public information of other users. Such information can be searched based on geographical search criteria provided by the User, or via geolocation options selected by the User, as made available in connection with the User Search.
Each User acknowledges and agrees that the access to, and the functionality of, the App, User Search, Game Trivia, Flirt, Rewards, Rankings, Chat, and/or Drink Recipes may be interrupted and limited, and may not be error free. Without limiting the foregoing, BOTY™ makes no warranties, representations or guarantees with respect to the availability and functionality of the App, User Search, Game Trivia, Flirt, Rewards, Rankings, Chat, and/or Drink Recipes.
(b) Content. Subject to the terms and conditions of the Agreement, Users that possess the requisite technology shall have the opportunity to view, download and/or interact with all or some of the Content made available by and through the App and/or other BOTY™ Offerings. The App Content is compiled, distributed and displayed by BOTY™, as well as third-party content providers, such as Merchants and/or advertisers (collectively, “Third-Party Providers”). BOTY™ does not control the Content provided by Third-Party Providers that is made available by and through the BOTY™ Offerings. Such Third-Party Providers are solely responsible for the accuracy, completeness, appropriateness and/or usefulness of such Content. The Content should not necessarily be relied upon. BOTY™ does not represent or warrant that the Content and other information posted by and through the BOTY™ Offerings is accurate, complete, up-to-date or appropriate. Users understand and agree that BOTY™ will not be responsible for, and BOTY™ undertakes no responsibility to monitor or otherwise police, Content provided by Third-Party Providers. Users agree that BOTY™ shall have no obligation and incur no liability to such Users in connection with any Content. Users may find certain Content to be outdated, harmful, inaccurate and/or deceptive. Please use caution, common sense and safety when using the Content.
(c) Social Media Sites. Where a User has an account on one or more of the designated Social Media Sites, that User may engage in certain Social Media Interactions that discuss App usage and associated milestones. Each User acknowledges and agrees that some or all of such Social Media Interactions may be made available by BOTY™ by and through the App.
Each User’s use of the Social Media Sites shall be governed by those Social Media Sites’ applicable privacy policies, agreements, terms and conditions. Each User understands and agrees that BOTY™ shall not be liable to such User, or any third-party, for any claim in connection with that User’s use of, or inability to use, the Social Media Sites. If a User promotes any aspect of her/his use of the App and/or associated BOTY™ Offerings by and through any Social Media Sites, that User should be aware that the personal information and other material that such User submits by and through such Social Media Sites can be read, collected or used by other users of these forums (depending on such User’s privacy settings associated with such Social Media Sites), and could be used to send such User unsolicited messages or otherwise to contact such User without that User’s consent or desire. We are not responsible for the personal information that any User chooses to submit by and through these forums.
(d) Social Media Interactions/User Content Restrictions. In connection with the Social Media Interactions, and any other content posted or made available by and through the BOTY™ Offerings (collectively, “User Content”), User agrees not to: (i) display any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third-party; (ii) display any audio files, text, photographs, videos or other images containing confidential information; (iii) display any audio files, text, photographs, videos or other images that may be deemed indecent or obscene, as defined under applicable law; (iv) impersonate any person or entity; (v) “stalk” or otherwise harass any person; (vi) engage in advertising to, or commercial solicitation of, Users or other third-parties; (vii) transmit any chain letters, spam or junk e-mail to any Users or other third-parties; (viii) express or imply that any statements it makes are endorsed by BOTY™ and/or any Merchant; (ix) harvest or collect personal information of Users or other third-parties whether or not for commercial purposes, without their express consent; (x) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the BOTY™ Offerings or related content; (xi) post, distribute or reproduce in any way any copyrighted material, trademarks or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; (xii) remove any copyright, trademark or other proprietary rights notices contained within the BOTY™ Offerings; (xiii) interfere with or disrupt any of the BOTY™ Offerings and/or the servers or networks connected to same; (xiv) post, offer for download, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (xv) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third-party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (xvi) “frame” or “mirror” any part of the App; (xvii) use metatags or code or other devices containing any reference to the BOTY™ Offerings in order to direct any person to any other website for any purpose; and/or (xviii) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the BOTY™ Offerings or any software used on or in connection with same. Engaging in any of the aforementioned prohibited practices shall be deemed a breach of the Agreement and may result in the immediate termination of such User’s Account and/or access to some or all of the BOTY™ Offerings without notice, in the sole discretion of BOTY™. BOTY™ reserves the right to pursue any and all legal remedies against Users that engage in the aforementioned prohibited conduct.
(e) Compliance with Applicable Law. By accessing and using the BOTY™ Offerings, each User agrees to use the BOTY™ Offerings in accordance with all applicable BOTY™ guidelines, as well as all applicable local, state, national, federal and international laws.
(f) App. Functionality. For purposes of this EULA, the term “App” includes all BOTY™ and third-party software applications, files, associated media, printed materials and/or electronic documentation that may be used in connection with the App’s functionality. Users must be of sufficient legal age under applicable law to download the App. The Establishments are third-party owned and operated venues. Use of those Establishments shall be governed by the applicable Download Venue’s agreements, terms and conditions. BOTY™ does not control the Establishments or any of the actions, policies or decisions made by the operators of those Establishments. Each User acknowledges and agrees that the access to, and the functionality of, the App may be interrupted and limited, and may not be error free. Each User understands and agrees that BOTY™ shall not be liable to any User or third-party for any claim in connection with such User’s use of, or inability to use, the App.
Updates/Bug Fixes. BOTY™ reserves the right (but is not obligated) to add additional features or functions to the existing App, and to provide bug fixes, error corrections, patches, new releases or any other component not specified within this EULA, from time to time. When installed on a User’s Mobile Device, the App periodically communicates with BOTY™ servers. BOTY™ may require the updating of the App residing on a User’s Mobile Device when BOTY™ releases a new version of the App, or when BOTY™ makes new features available. This update may occur automatically or upon prior notice to the User and may occur all at once or over multiple sessions, in BOTY’s™ sole and absolute discretion. Each User understands that we may require that User’s review and acceptance of our then-current Agreement before that User will be permitted to use any subsequent versions of the App. Each User acknowledges and agrees that BOTY™ has no obligation to make any subsequent versions of the App available to that User, or to provide bug fixes, error corrections, patches, new releases or any other component not specified within this EULA.
Third-Party Software. ANY THIRD-PARTY SOFTWARE, AS WELL AS ANY THIRD-PARTY PROVIDED PLUG-INS, THAT MAY BE PROVIDED WITH THE APP ARE MADE AVAILABLE FOR USE AT EACH USER’S SOLE OPTION AND RISK. IF A USER CHOOSES TO USE SUCH THIRD-PARTY SOFTWARE, THEN SUCH USE SHALL BE GOVERNED BY SUCH THIRD-PARTY’S LICENSING AGREEMENT(S), TERMS AND CONDITIONS AND PRIVACY PRACTICES. BOTYY™ IS NOT RESPONSIBLE FOR ANY THIRD-PARTY SOFTWARE AND SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY USER’S USE OF, OR INABILITY TO USE, THIRD-PARTY SOFTWARE.
License Grant/Termination. Subject to the terms and conditions of the Agreement, BOTY™ hereby grants to each User a personal, non-exclusive, non-transferable, revocable and limited license to access and use the App. BOTY™ may terminate the licenses set forth in this Section 5(f) and/or disable, remove or change the App and/or any portion thereof in its sole discretion at any time, with or without notice, by remote updates or otherwise. The licenses set forth in this Section 5(f) shall be in effect unless and until this license is terminated by BOTY™. In addition, this license will terminate immediately with respect to a User if that User fails to comply with any term or condition of the Agreement. Each User agrees upon expiration or termination of this license to immediately un-install the App.
License/Usage Restrictions. THE APP IS LICENSED TO USERS, NOT SOLD. USERS MAY NOT SUBLICENSE, ASSIGN, RESELL, SHARE, PLEDGE, RENT OR TRANSFER ANY OF THEIR RIGHTS UNDER THE AGREEMENT IN RELATION TO THE APP OR ANY PORTION THEREOF. EXCEPT AS EXPRESSLY PERMITTED BY COPYRIGHT LAWS, NO COPYING, REDISTRIBUTION, DISPLAYING, PERFORMING, REPRODUCING, LICENSING, TRANSFERRING OR PUBLICATION OF THE APP IS PERMITTED WITHOUT THE EXPRESS PERMISSION OF BOTY™, WHICH CONSENT SHALL BE AT BOTY’S™ SOLE AND ABSOLUTE DISCRETION. ANY SUCH COPY THAT IS MADE IS SUBJECT TO THE PROVISIONS OF THE AGREEMENT, AND ALL TITLES, TRADEMARKS, COPYRIGHT NOTICES AND OTHER LEGENDS SHALL BE REPRODUCED ON SUCH COPY. USERS MAY NOT MODIFY, TRANSLATE, REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR CREATE DERIVATIVE WORKS OF THE APP OR OTHERWISE ATTEMPT TO: (a) DEFEAT, AVOID, BY-PASS, REMOVE, DEACTIVATE OR OTHERWISE CIRCUMVENT ANY PROTECTION MECHANISMS ASSOCIATED WITH THE APP INCLUDING, WITHOUT LIMITATION, ANY SUCH MECHANISM USED TO RESTRICT OR CONTROL THE FUNCTIONALITY OF THE APP; OR (b) DERIVE THE SOURCE CODE OR THE UNDERLYING IDEAS, ALGORITHMS, STRUCTURE OR ORGANIZATION FORM OF THE APP. USERS SHALL NOT USE THE APP TO DEVELOP ANY PRODUCT AND/OR SERVICE THAT HAS THE SAME OR ANY SIMILAR FUNCTION AS THE APP OR OTHER BOTY™ OFFERINGS.
Export Restrictions. Each User agrees that the App may not be transferred or exported into any other country, or used in any manner prohibited by U.S. or other applicable export laws and regulations.
- Representations and Warranties. Each User hereby represents and warrants to BOTY™ as follows: (a) the Agreement constitutes such User’s legal, valid and binding obligation which is fully enforceable against such User in accordance with its terms; (b) such User understands and agrees that such User has independently evaluated the desirability of utilizing the BOTY™ Offerings and that such User has not relied on any representation and/or warranty other than those set forth in the Agreement; (c) such User’s performance under the Agreement, such User’s use of the BOTY™ Offerings, the User Content, any and all other material, content, products and/or services made available on, or linked to from, the Spindy™ Offerings, will not: (i) invade the right of privacy or publicity of any third person; (ii) involve any libelous, obscene, indecent or otherwise unlawful material; (iii) violate any Applicable Law; and/or (iv) otherwise infringe upon the rights of any third-parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity; and (d) User will be solely responsible for the User Content and any and all other material, content, products and/or services made available on, or linked to from, same.
- Indemnification. Each User agrees to indemnify, defend and hold BOTY™, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, contractors, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from or related to: (a) the User Content and any and all other information, products and/or services posted, made available and/or linked to in connection with User’s use of the BOTY™ Offerings or otherwise; (b) any dispute between User and any Merchant or other third-party; (c) User’s breach of the Agreement and/or any representation or warranty contained herein; (d) any allegation that User (or any User Content) has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third-party; (e) any claim that BOTY™ is obligated to pay any taxes in connection with User’s use of the BOTY™ Offerings; (f) any claim that User’s use of the BOTY™ Offerings has violated any Applicable Law; (g) any duplicate, invalid or fraudulent information submitted by such User; and/or (h) User’s use of the BOTY™ Offerings in any manner whatsoever.
- License Grant. Subject to, and without limiting, the restrictions set forth in Section 5(f) above, each User is granted a non-exclusive, non-transferable, revocable and limited license to access and use the BOTY™ Offerings. BOTY™ may terminate this license at any time for any reason. Unless otherwise expressly authorized by BOTY™, Users may only use the BOTY™ Offerings for their own personal, non-commercial use. No part of the BOTY™ Offerings may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. No User or other third-party may use any automated means or form of scraping or data extraction to access, query or otherwise collect material from the BOTY™ Offerings except as expressly permitted by BOTY™. No User or other third-party may use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the BOTY™ Offerings, or any portion thereof. No User or other third-party may create any “derivative works” by altering any aspect of the BOTY™ Offerings. No User or other third-party may use the BOTY™ Offerings in conjunction with any other third-party content. No User or other third-party may exploit any aspect of the BOTY™ Offerings for any commercial purposes not expressly permitted by BOTY™. Each User further agrees to indemnify and hold BOTY™ harmless for that User’s failure to comply with this Section 8. BOTY™ reserves any rights not explicitly granted in the Agreement.
- Proprietary Rights. Subject to, and without limiting, the restrictions set forth in Section 5(g) above, the BOTY™ Offerings, as well as the organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to same, are protected under applicable copyrights, trademarks and other proprietary (including, but not limited to, intellectual property) rights. The copying, redistribution or publication by any User or other third-party of any part of the BOTY™ Offerings is strictly prohibited. No User or other third-party acquires ownership rights in or to any content, document, software, services or other materials viewed by or through the BOTY™ Offerings. The posting of information or material by and through the BOTY™ Offerings does not constitute a waiver of any right in or to such information and/or materials.
- Copyright Policy/DMCA Compliance. BOTY™ reserves the right to terminate the Account of any User who infringes upon third-party copyrights. If any User or other third-party believes that a copyrighted work has been copied and/or posted via the BOTY™ Offerings in a way that constitutes copyright infringement, that party should provide BOTY™ with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location of the copyrighted work that such party claims has been infringed upon; (c) a written statement by such party that it has a good faith belief that the disputed use is not authorized by the owner, its agent or the law; (d) such party’s name and contact information, such as telephone number or e-mail address; and (e) a statement by such party that the above information in such party’s notice is accurate and, under penalty of perjury, that such party is the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for BOTY’s™ Copyright Agent for notice of claims of copyright infringement is as follows:
Attn: DMCA/Copyright Agent
8300 NE 2nd Ave
Miami, Florida 33138
- Legal Warning. Any attempt by any individual to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the BOTY™ Offerings is a violation of criminal and civil law and BOTY™ will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity.
- Disclaimer of Warranties. THE BOTY™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME ARE PROVIDED TO USERS ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, SPINDY™ MAKES NO WARRANTY THAT THE BOTY™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME: (A) WILL MEET ANY USER’S REQUIREMENTS; (B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (C) WILL BE FREE OF HARMFUL COMPONENTS; (D) WILL RESULT IN ANY REWARD, DISCOUNT, REBATE OR OTHER FINANCIAL BENEFIT OF ANY KIND; AND/OR (E) WILL BE ACCURATE OR RELIABLE. THE BOTY™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. BOTY™ WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET AND/OR MOBILE CONNECTION ASSOCIATED WITH THE BOTY™ OFFERINGS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY USER FROM BOTY™ OR OTHERWISE THROUGH OR FROM THE BOTY™ OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
- Limitation of Liability. EACH USER EXPRESSLY UNDERSTANDS AND AGREES THAT BOTY™ SHALL NOT BE LIABLE TO THAT USER OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BOTY™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR INABILITY TO USE THE APP, THE BOTY™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER PRODUCTS PURCHASED OR OBTAINED FROM OR THROUGH THE BOTY™ OFFERINGS; (C) ANY DISPUTE BETWEEN ANY USERS AND/OR THIRD-PARTIES; (D) THE FAILURE TO RECEIVE ANY REWARD, DISCOUNT, REBATE OR OTHER FINANCIAL BENEFIT OF ANY KIND; (E) ANY MATTER RELATING TO ANY MERCHANT PRODUCTS, REWARDS AND/OR CONTENT PROVIDED BY THIRD-PARTY PROVIDERS; (F) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY USER’S REGISTRATION DATA; AND (G) ANY OTHER MATTER RELATING TO THE BOTY™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER TORTS. EACH USER HEREBY RELEASES SPINDY™ FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS, THE MAXIMUM LIABILITY OF BOTY™ TO ANY USER UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE BOTY™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME, MAY BE BROUGHT BY ANY USER OR BOTY™ MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN EACH USER AND BOTY™. ACCESS TO THE BOTY™ OFFERINGS WOULD NOT BE PROVIDED TO ANY USERS WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF SPINDY™ SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Third-Party Websites. The BOTY™ Offerings contain links to other websites on the Internet that are owned and operated by third-parties including, without limitation, the Establishments, Social Media Sites and Merchant websites. BOTY™ does not control the information, products or services available on or through these third-party websites. The inclusion of any link does not imply endorsement by BOTY™ of the applicable website or any association with the website’s operators. Because BOTY™ has no control over such websites and resources, each User agrees that BOTY™ is not responsible or liable for the availability or the operation of such external websites, for any material located on or available from or through any such websites or for the protection of any User’s data privacy by third-parties. Any dealings with Merchants and their retail venues, including the payment for Merchant Products and receipt of Rewards, and any other terms, conditions, warranties or representations associated with such dealings, are solely between the User and the applicable Merchant. Each User further agrees that BOTY™ shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on or through any such site or any such dealings.
- Editing, Deleting and Modification. We reserve the right in our sole discretion to edit and/or delete any documents, information or other content appearing by and through the App and/or other BOTY™ Offerings.
- Dispute Resolution Provisions. The Agreement shall be treated as though it were executed and performed in Washington, DC and shall be governed by and construed in accordance with the laws of the State of Washington, DC (without regard to conflict of law principles). Should a dispute arise concerning the BOTY™ Offerings, any Rewards, any User Content, any Merchant Products, the terms and conditions of the Agreement or the breach of same by any party hereto: (a) the parties agree to submit their dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties; and (b) each User agrees to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found Here. We may choose to provide petitioning Users with a final written settlement offer after receiving such User’s Initial Dispute Notice (“Final Settlement Offer”). If we provide a petitioning User with a Final Settlement Offer and that User does not accept it, or we cannot otherwise satisfactorily resolve that User’s dispute and that User wishes to proceed, that User must submit its dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties, in that User’s county of residence, by filing a separate Demand for Arbitration, which is available Here. For claims of Ten Thousand Dollars ($10,000.00) or less, a User can choose whether the arbitration proceeds in person, by telephone or based only on submissions. If the arbitrator awards a User relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if that User retained an attorney to represent it in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that such User’s attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration. Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from any User unless the arbitrator determines that such User’s claim was frivolous.
To the extent permitted by law, each User agrees that it will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that it may have against BOTY™ and/or its employees, officers, directors, members, representatives and/or assigns. Each User agrees to the entry of injunctive relief to stop such a lawsuit or to remove it as a participant in the suit. Each User agrees to pay the attorney’s fees and court costs that BOTY™ incurs in seeking such relief. This provision preventing Users from bringing, joining or participating in class action lawsuits: (A) does not constitute a waiver of any User’s rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (B) is an independent agreement. Any User may opt-out of these dispute resolution provisions by providing written notice of its decision within thirty (30) days of the date that she/he first accesses the App.
- Miscellaneous. To the extent that anything in or associated with the BOTY™ Offerings is in conflict or inconsistent with the Agreement, the Agreement shall take precedence. Our failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement. Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. BOTY™ may, with or without notice to any User and in its sole discretion, assign the Agreement and/or any of its rights or delegate its duties under the Agreement to any third-party for any purpose. The Agreement, may not however, be assigned by any User, and Users may not delegate their duties hereunder. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
- Electronic Signatures. Each User acknowledges and agrees that by clicking on the submit button, or taking such other action as may be designated by BOTY™ as a means of accepting the Agreement, such User is submitting a legally binding electronic signature and entering into a legally binding contract. Each User acknowledges and agrees that such User’s electronic submission constitutes that User’s agreement and intent to be bound by the Agreement. Pursuant to any and all applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, EACH USER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE BOTY™ OFFERINGS. Further, each User hereby waives any right or requirement under any statutes, regulations, rules, ordinances or other law in any jurisdiction which requires: (a) an original signature; and/or (b) delivery or retention of non-electronic records.
- Contact Us. If any User has any questions about the Agreement, BOTY™ Offerings or the practices of BOTY™, that User can email us as at: hi@localhost; or call us at: (786) 310-5851.