Terms & Conditions
DATE LAST MODIFIED: February 10, 2018. These are the Terms of Service for the Trippzy Mobile App.
NEITHER APPLE INC., NOR GOOGLE, INC., NOR AMAZON.COM, INC. IS A SPONSOR OF THIS APPLICATION, NOR AFFILIATED IN ANY WAY WITH DESTINATION DIGITAL MEDIA, INC. (HEREINAFTER “DESTINATION”), NOR ANY OF OUR MARKETING PARTNERS.
DESTINATION DEVELOPS TRIVIA GAMES FOR MOBILE AND SOCIAL PLATFORMS.
ACCEPTANCE OF TERMS
THESE TERMS OF SERVICE (“TERMS”) ARE A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “YOUR”) AND DESTINATION. BY DOWNLOADING, INSTALLING THE TRIPZZY APPLICATION (THE “APPLICATION”) AND USING IT IN CONNECTION WITH OTHER SERVICES PROVIDED BY DESTINATION OR OTHERWISE ACCESSED THROUGH THE USE OF THE APPLICATION (SUCH SERVICES AND THE APPLICATION COLLECTIVELY, THE “SERVICE”) YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, ACCEPT AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SERVICE.
IMPORTANT NOTE: These Terms contain a Dispute Resolution And Arbitration Provision, including Class Action Waiver that affects your rights under these Terms and with respect to disputes you may have with DESTINATION. You may opt out of the binding individual arbitration and class action waiver as provided below. DESTINATION reserves the right, in its sole discretion, to modify or change these Terms at any time by posting the changes on or within the Application or other parts of the Service. Your continued use of the Service following the posting of such changes constitutes Your acceptance of the revised Terms. DESTINATION may use reasonable commercial efforts to provide notice of material changes to You. If the modified Terms are not acceptable to You, Your only recourse is to discontinue Your use of the Service. You agree that DESTINATION may change any part of the Service, including its content, at any time or discontinue the Service or any part thereof, for any reason, without notice to You and without liability.
You agree and acknowledge, as condition of participating in the Service, that Facebook® (“Facebook”) does not sponsor, endorse, administer, and is in no way associated with, the Service. All questions regarding the Service must be directed to DESTINATION, not Facebook. You also agree that as a condition of participating in the Service you shall release Facebook® from any and all liability arising out of your participation in said Service.
To use the Service, You must be a natural person, at least 18 years old, who is assigned to the e-mail address or Facebook Login (as defined below) associated with Your registration. At our sole discretion, we may require proof that You meet this condition in connection with Your use of the Service. Failure to comply with this condition will result in the closing of Your Account and the loss of all Virtual Items (including Reward Points) (each as defined below) accumulated through Your use of the Service. DESTINATION REWARDS PARTNERS (COLLECTIVELY REFERRED TO AS, “REWARDS PARTNERS”) MAY RESTRICT CERTAIN REWARDS TO PERSONS WHO ARE OLDER THAN A PARTICULAR AGE REQUIREMENT. IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOU MEET THE APPLICABLE ELIGIBILITY REQUIREMENTS FOR ANY REWARD YOU PURCHASE.
From time to time during Your use of the Service, You may have the opportunity to “earn”, “buy” or “purchase” (a) virtual in-game items; or (b) virtual in-game points, including but not limited to virtual tokens, coins, cash or points, all for use in the Service (together with virtual in-game items, “Virtual Items”). You do not in fact “own” the Virtual Items and the amounts of any Virtual Item do not refer to any credit balance of real points or its equivalent. Rather, by “earning”, “buying”, or “purchasing” Virtual Items (whether through the use of Facebook Credits or virtual points), You are granted a limited license to use the software programs that manifest themselves as the Virtual Items. The purchase and sale, with Facebook Credits, of such limited licenses to use Virtual Items, is a completed transaction upon redemption of the applicable Facebook Credits and shall under no circumstances be refundable, transferable or exchangeable including, without limitation, upon termination of Your Account, termination of these Terms, and/or the discontinuation of the Service. DESTINATION prohibits and does not recognize any purported transfers of Virtual Items effectuated outside of the Service, or the purported sale, gift or trade of anything that appears or originates in the Service, unless otherwise expressly authorized by DESTINATION in writing. Accordingly, You may not sublicense, trade, sell or attempt to sell in-game Virtual Items for real money, or exchange Virtual Items for value of any kind outside of a game, without DESTINATION’ written permission. Any such transfer or attempted transfer is prohibited and void, and will subject Your Account to termination. You acknowledge and agree: (a) that DESTINATION may change the price of Virtual Items at any time, without notice, for any reason or for no reason, (b) that the amount of virtual points necessary to obtain certain Virtual Items may fluctuate, and (c) that DESTINATION has no liability to You for any changes in the price of such Virtual Items and/or the amount of virtual points necessary to obtain Virtual Items. DESTINATION reserves the right, without prior notification, to limit the quantity of the Virtual Items You can purchase and/or to refuse to allow You to purchase such Virtual Items. You acknowledge and agree that DESTINATION shall have no liability for loss of Virtual Items due to any unauthorized third party activity, such as hacking, phishing, password mining, social engineering, and/or any other unauthorized third party activity. DESTINATION may replace such lost Virtual Items at its sole discretion on a case-by-case basis, without incurring any further obligation or liability.DESTINATION owns, has licensed, or otherwise has rights to use all of the content that appears on or in the Service, including all such content owned by our Rewards Partners and their affiliates. Notwithstanding any provision to the contrary herein, You agree that You have no right or title in or to any content that appears in the Service, including without limitation the Virtual Items therein, whether “earned” in a game or “purchased” from DESTINATION.
You will have the opportunity to accumulate “Reward Points” through Your use of the Service. Reward Points are virtual in-game points that You can use to “purchase” other Virtual Items within the Service. As with all Virtual Items, You do not in fact own the Reward Points You accumulate and the amounts of any Reward Points You accumulate do not refer to any credit balance of real currency or its equivalent. Rather, by “earning”, “buying”, or “purchasing” Reward Points, You are merely granted a limited license to use the software programs that manifest themselves as the Reward Points. In the event DESTINATION encounters issues with the game that impact the accumulation of Reward Points and/or the redemption of Rewards, DESTINATION reserves the right to correct any such errors. If You participate in any of our Rewards Partners’ rewards programs (including but not limited to M life), the Reward Points You accumulate through Your use of the Service may be exchanged for items, services or experiences (each a “Reward”) offered by such Rewards Partners through those programs.
ACCUMULATING REWARD POINTS
You may accumulate Reward Points by taking certain actions while using the Services. For example, You may earn Reward Points by posting Your in-game achievements to your Facebook account, “liking” certain aspects of the Service, playing the games for a specified duration, or participating in certain in-game offers. The foregoing list is solely for purposes of example and explanation and is not meant to be exclusive or exhaustive. Reward Points are NOT and WILL NOT be awarded or earned in any way related to or based upon the outcome of any game You play during Your use of the Services.
USING REWARD POINTS
You may exchange Your accumulated Reward Points for in-game Virtual Items in the Service. You may also exchange Your Reward Points for Rewards in the “Rewards” area of the Service. In order to redeem a Reward, you must have a valid Facebook account and have connected the Application to your Facebook account. The first time you exchange Your Reward Points for Rewards, You will be asked to provide Your name and email address. The name you provide must match the name that appears on a government-issued identification belonging to the person who has accumulated the Reward Points through his/her use of the Service. The identification will be used by our Rewards Partners to verify Your eligibility.
Once You have exchanged Reward Points for a Reward, You are said to have “purchased” that Reward. After purchasing Your Reward, You will have a limited period of time in which complete a “redemption process” by following a defined “redemption method.” Redeeming a reward that has been purchased in the Service secures that reward for your specific use at a particular time. When the redemption process is complete, You may then “use” the reward. A Reward is considered “used” at the moment when it is consumed, e.g., when You check into a hotel room, eat a meal, or attend a show.
Partners may, at their discretion, place restrictions on the usage of the rewards they offer in the Service, e.g., a minimum age requirement, reward usage black-out dates, a limit as to the number and frequency of rewards that may be used within a specified period of time, and the requirement to participate in the partner’s own loyalty program, which may exists independently of the Service. Redemption of Rewards are subject to the terms and provisions of the Rewards provider, including limitations on redeeming Rewards if you self-limit or self-exclude with the Reward provider or any regulatory agency, including any gaming regulatory agencies.
Because the Redemption Period, redemption method, and other terms of Rewards usage may vary, You must review the specific terms and conditions of each Reward You purchase with Your Reward Points. DESTINATION is not responsible for the terms and conditions of the Rewards and bears no responsibility to You for any such unread, misread or misunderstood terms. The selection and availability of Rewards is subject to change without notice and DESTINATION makes no guarantees as to the availability of any Reward. For complete details and the terms, conditions and restrictions for any individual reward, please refer to the rewards detail found within the Rewards catalog within the Service.
REWARD CANCELLATIONS AND REFUNDS
Occassionally, You may cancel, during the Redemption Period and for a full refund of the Reward Points used to purchase it, any Reward that You have purchased but not yet redeemed. Once You have redeemed a Reward, either through the online reservation system available through the Service or otherwise, You may no longer cancel that Reward and You will not receive a refund of Your Reward Points. On rare occasions, a Reward will “sell out” or otherwise become unavailable between the time You purchase it and the time You redeem it. If You are, within the Redemption Period, unable to redeem a purchased Reward because of such unavailability, You will be eligible to receive a full refund of the Reward Points used to purchase that Reward. If You do not redeem or cancel a Reward during that Reward’s Redemption Period, the Reward will expire. Your Reward Points will not be refunded to You if You allow a purchased Reward to expire. Some Rewards are of such limited availability that our Rewards Partners may, in their sole discretion, deem them to be non-refundable. Non-refundable Rewards do not have a Redemption Period and therefore may not be cancelled for a refund of Reward Points after they are purchased. You are solely responsible for reading and understanding the refund terms and conditions of each Reward You purchase.
CHANGES AND OTHER REWARDS TERMS
From time to time, other Rewards Partners may require You to enroll in separate rewards programs as a condition of redeeming certain Rewards. If you choose to participate in such programs, You hereby agree to comply with all applicable Reward Partner rules, policies, and terms and conditions. Once You have redeemed a Reward with any such Rewards Partner, Your ability to change that Reward may be at the sole discretion of that Rewards Partner. Any such changes will not result in a change to Your Reward Points balance.
Rewards have no cash value and are non-transferable. You may not sell, trade, barter, bequeath or in any way transfer any Reward to any other party. Any attempt to do so will invalidate the Reward and may result in the termination of Your Account.
If You do not use your Account by logging in using the Service at least once every 30 days, Your Account will be deemed inactive. You can, at any time, reactivate Your Account by logging in and using the Service. When an Account has been deemed inactive, DESTINATION may, at its own discretion, expire any Reward Points accumulated by You. Once Your account is deemed inactive, any Rewards which have been purchased but not yet redeemed may also be expired at the discretion of DESTINATION.
THIRD PARTY PROVIDERS OF GOODS AND SERVICES
Our Rewards Partners reserve the right, in their sole discretion, to change, amend, suspend, cancel, or terminate any reward program they offer or any aspects and/or terms and conditions thereof, in whole or in part, at any time, with or without notice and for any or no reason. Any such changes may affect Your ability to use the Reward Points that You have accumulated through Your use of the Service to purchase or redeem Rewards from such Rewards Partners. You hereby agree that DESTINATION shall have no liability to You as a result of such action any Rewards Partner.
Your purchase of Facebook Credits is governed by Facebook’s Payments Terms (http://www.facebook.com/payments_terms). Facebook reserves the right to change its Payment Terms, in whole or in part, even though the changes may affect Your accumulated Facebook Credits. Facebook may also suspend, remove or disable access to the Service at any time without notice and may limit the number of transactions or volume of Facebook Credits DESTINATION is able to accept during a given period of time. Such actions may affect Your ability to access and/or use the Service. You here by agree that DESTINATION shall have no liability to You as a result of any such actions by Facebook. Facebook is a registered trademark of Facebook, Inc.
Your correspondence or business dealings with, or participation in promotions sponsored by, any third party providers of goods or services made available on or through the Service, including Your purchase of Facebook Credits, Your participation the rewards programs offered by any of our Rewards Partners, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such third-party provider and solely at Your own risk. You hereby release DESTINATION (and its affiliates, officers, directors, agents, subsidiaries, and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dealings or as the result of the presence of such third-party providers on the Service.
DESTINATION may terminate or suspend Your Account (including, but not limited to, suspending your ability to purchase, redeem or consume Rewards) and/or Your access to Service (including, but not limited to, restricting your ability to use the Application) at any time, including for breach of these Terms or otherwise, without notice and without liability to You. Upon any such termination, Your access to the Service, including all User Content (as defined below) and Virtual Items, will be disabled and You will lose any Reward Points that you have accumulated. DESTINATION shall have the right, but not obligation, to store any User Content subsequent to any such termination. You may cancel Your Account at any time by discontinuing Your use of the Service and/or the Application and, if applicable, removing the Trippzy application from Your Facebook Account. Please note that removing the Trippzy application from Your Facebook Account will delete Your account with DESTINATION and all of the Virtual Items (including any Reward Points) that You have accumulated will be lost. DESTINATION is in no way liable to You for the effects of any termination or cancellation on Your use of the Service or the Virtual Items You have accumulated.
USER CONTENT AND FEEDBACK
The Service may include various forums, blogs, and chat rooms where You and other users can post Your observations and comments on designated topics (“User Content”). DESTINATION cannot guarantee that other users will not use the ideas and information that You share. Therefore, if You have an idea or information that You would like to keep confidential do not post it on the Service. DESTINATION IS NOT RESPONSIBLE FOR ANY USER’S USE, MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION POSTED IN ANY FORUMS, BLOGS AND CHAT ROOMS INCLUDING, WITHOUT LIMITATION, YOUR USE, MISUSE, OR MISAPPROPRIATION, OR ANY INFORMATION A USER MAY PROVIDE TO ANY SERVICE PROVIDER OR OTHER USERS. By making available any User Content through the Service, You hereby grant to DESTINATION a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content only on, through or by means of the Service. DESTINATION does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that You may have to use and exploit any such User Content. You acknowledge and agree that You are solely responsible for all User Content that You make available through the Service. Accordingly, You represent and warrant that: (i) You either are the sole and exclusive owner of all User Content that You make available through the Service or that You have all rights, licenses, consents and releases that are necessary to grant to DESTINATION the rights in such User Content as contemplated under these Terms; and (ii) neither the User Content nor Your posting, uploading, publication, submission or transmittal of the User Content or DESTINATION’ use of the User Content (or any portion thereof) on, through or by means of the Service will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. DESTINATION may or may not regulate User Content and provides no representations or guarantees regarding the accuracy, quality, or integrity of any User Content posted on the Service. You acknowledge that chats, postings, or materials posted by users are neither endorsed nor controlled by DESTINATION, and these communications should not be considered reviewed or approved by DESTINATION. By using the Service You acknowledge and accept that You may be exposed to material You find offensive or objectionable. You are solely responsible for Your activities in connection with User Content and You agree that DESTINATION will not under any circumstances be responsible or liable for any User Content, including, but not limited to, errors in any User Content or any loss or damage incurred by use of the User Content or for any failure to or delay in removing User Content. DESTINATION reserves the right (but shall at no time be obligated) to, in its sole discretion, remove, block, edit, move, disable or permanently delete User Content from the Service with or without notice for any reason whatsoever. You hereby agree that, to the maximum extent permitted by applicable law, DESTINATION shall at no time be responsible or held liable for the removal, modification or blocking of material or User Content that may be considered offensive and shall at no time be obligated to effect such removal other than under applicable law. DESTINATION welcomes and encourages Your feedback, comments and suggestions for improvements to the Service (“Feedback”). You may submit Feedback HERE. You acknowledge and agree that all Feedback will be the sole and exclusive property of DESTINATION and You hereby irrevocably assign to DESTINATION and agree to irrevocably assign to DESTINATION all of Your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, trademark, moral rights and other proprietary or intellectual property rights therein. At DESTINATION’ request and expense, You will execute documents and take such further acts as DESTINATION may reasonably request to assist DESTINATION to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
GENERAL RULES OF CONDUCT AND USAGE
You represent and warrant that You have full right and authority to use the Service and to be bound by these Terms. You agree that You will comply fully with all applicable laws, regulations, statutes, ordinances, and the Terms herein. You undertake that You shall not defraud, or attempt to defraud, DESTINATION or other users, and that You shall not act in bad faith in Your use of the Service. If DESTINATION determines that You do act in bad faith in violation of these Terms, or if DESTINATION determines that Your actions fall outside of reasonable community standards, DESTINATION may, at its sole discretion, make adjustments to the number of Reward Points associated with Your Account, terminate Your Account and/or prohibit You from using the Service. By way of example, You specifically agree that You shall not:
Download the Application, create an Account or access or use any part of the Service if You are under the age of 18;
Attempt to link your Account with the rewards program of any other Rewards Partner if you do not meet the age requires of such programs;
Use the Service if You are located in a country embargoed by Canada or the United States or if You are on the U.S. Treasury Department’s list of Specially Designated Nationals;
Use the Service for any commercial purpose or for the benefit of any third party or in a manner not permitted by these Terms;
Access, tamper with, or use non-public areas of the Service, DESTINATION computer systems, or the computer systems of our providers and partners;
Attempt to probe, scan, or test the vulnerability of any DESTINATION system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by DESTINATION or any of our providers or any other third party (including another user) to protect the Service or any part thereof;
Attempt to use the Service on or through any platform or service that is not authorized by DESTINATION;
Post, upload, publish, submit, provide access to or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
Upload or transmit (or attempt to upload or transmit) files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files or data, or any other similar software or programs that may damage the operation of the Service or the computers of other users of the Service;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Create false personas, multiple identities, multiple Accounts, set up an Account on behalf of someone other than Yourself or otherwise attempt to override or avoid any Reward Points or Rewards limits or restrictions established by Destination Digital Media, Inc. and/or any Rewards Partner;
Obtain or attempt to obtain passwords or other private information from other users of the Service, including but not limited to, personally identifiable information or financial information;
Upload or transmit (or attempt to upload or to transmit), without DESTINATION’ express permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats, 1×1 pixels, cookies or other similar devices;
Develop, distribute, use, or publicly inform other members of cheats, automation software, bots, hacks, mods or any other unauthorized third party software or applications;
Exploit, distribute or publicly inform other users of the Service of any game error or bug which gives users an unintended advantage;
Use Virtual Items in a manner that violates these Terms, including transferring or selling Virtual Items or fraudulently obtaining or acquiring Virtual Items or other products or services;
Sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer Your Account or any Virtual Items associated with Your Account to anyone without DESTINATION’ written permission;
Access or use an Account or Virtual Items that have been sublicensed, rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the original Account creator without DESTINATION’ permission;
Engage in any fraudulent activity with respect to payment methods or advertiser tracking mechanisms;
Violate any applicable law or regulation;
Attempt to interfere with, intercept or decipher any transmissions to or from the servers for the Service;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service; or
Encourage or enable any other individual or group to do any of the foregoing.
INTELLECTUAL PROPERTY OWNERSHIP
The Service and all content thereon or therein are protected by copyright, trademark, and other laws of Canada, the United States and foreign countries. Except as expressly provided in these Terms, DESTINATION and its licensors exclusively own all right, title and interest in and to Service and all content thereon or therein, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service. You agree that You shall not:
Modify, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service without DESTINATION’ explicit, prior written permission;
Use, display, mirror or frame the Service, or any individual element within the Service;
Use the intellectual property of DESTINATION, or any DESTINATION licensor, to adapt, modify or create derivative works based on such intellectual property;
Rent, lease, loan, trade, sell/re-sell access to the Service or any information therein, in whole or part; or
Use or reproduce any DESTINATION licensor, or third party trademark or logo without the prior express written consent of the owner of such trademark or logo.
LINKS TO THIRD PARTY SITES
The Service may contain links to third-party websites or resources that are not owned or controlled by DESTINATION. You acknowledge and agree that DESTINATION is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. DESTINATION does not control nor does it review, research, verify, validate or approve the third-party sites to which the Service may be linked. Such links, therefore, do not imply any endorsement by DESTINATION of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from Your use of any such websites or resources.
If You are a copyright owner or an agent thereof and believe Your work is the subject of copyright infringement on the Service, You may submit a notification of claimed infringement under the Digital Millennium Copyright Act (“DMCA”) by providing notice to DESTINATION’ Designated Agent the following information:
(a) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(b) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
(c) Information reasonably sufficient to permit us to contact You, such as an address, telephone number, and, if available, an electronic mail address;
(d) A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(e) A statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
(f) A physical or electronic signature of a person authorized to act on behalf of the owner of a copyright that is allegedly infringed.
DESTINATION’ Designated Agent for claims of copyright infringement can be reached as follows: by email at [email protected] or by mail at:
DESTINATION Legal Department
You acknowledge that if You fail to comply with substantially all of the above requirements of this section Your DMCA notice may not be valid and we may not be able to remove infringing content.
Please also note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
UPDATES TO THE SITE AND SERVICE; MAINTENANCE
You acknowledge and agree that DESTINATION may update the Service with or without notifying You. DESTINATION may require that You accept updates to the Service and You may also need to update third party software from time to time in order to receive the Service. DESTINATION conducts maintenance work on its system from time to time. A portion, or sometimes all, of the features of the Service will not be available during maintenance periods. All problems encountered during the use of the Service, including those with regard to Your Account, can be reported to DESTINATION when the problem is encountered HERE.
DISPUTE RESOLUTION AND ARBITRATION
This Dispute Resolution and Arbitration provision (this “Provision”) facilitates the prompt and efficient resolution of any disputes that may arise between you and DESTINATION. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury. Please read this Provision carefully. It provides that all Disputes between you and DESTINATION (as defined below, for this Provision) shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in court, before a judge or jury, and/or participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorneys’ fees). For the purpose of this Provision, “DESTINATION” means DESTINATION and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and DESTINATION regarding any aspect of your relationship with DESTINATION, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced. YOU AND DESTINATION EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
PRE-ARBITRATION CLAIM RESOLUTION
For all Disputes, whether pursued in court or arbitration, you must first give DESTINATION an opportunity to resolve the Dispute. You must commence this process by email at [email protected] or mailing written notification to DESTINATION Legal Department, [email protected] That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If DESTINATION does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
EXCLUSIONS FROM ARBITRATION/RIGHT TO OPT OUT
Notwithstanding the above, you or DESTINATION may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to DESTINATION Legal Department, [email protected] Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with DESTINATION through arbitration. Your decision to opt-out of this Provision will have no adverse effect on your relationship with DESTINATION. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”) either you or DESTINATION may initiate arbitration proceedings. The Canadian Arbitration Association will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision. For arbitration before Canadian Arbitration Association, for Disputes of less than $75,000, the Canadian Arbitration Association’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the Canadian Arbitration Association’s Commercial Arbitration Rules will apply. In either instance, theCanadian Arbitration Association’s Optional Rules For Emergency Measures Of Protection shall apply. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration. Because the Service and these Terms concern interstate commerce, Canadian Arbitration Association governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the Canadian Arbitration Association and the applicable statute of limitations or condition precedent to suit.
Arbitration Award—The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the Canadian Arbitration Association, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or DESTINATION may initiate arbitration in either Vancouver, BC or the federal judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution. In the event that you select the federal judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution, DESTINATION may transfer the arbitration to Vancouver, BC in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs – DESTINATION will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with DESTINATION as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
CLASS ACTION WAIVER
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and DESTINATION specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of this Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Service can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into this agreement you and DESTINATION are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and DESTINATION might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with DESTINATION.
DISCLAIMER OF WARRANTIES
THE SERVICES (INCLUDING THE APPLICATION) AND ALL CONTENT THEREON OR THEREIN ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, DESTINATION, OUR REWARDS PARTNERS, AND OUR AND THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS (COLLECTIVELY, THE “DESTINATION PARTIES”) EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE DESTINATION PARTIES MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. THE DESTINATION PARTIES MAKE NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT OBTAINED THROUGH THE SERVICE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH SERVICE.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE. YOU UNDERSTAND THAT DESTINATION DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SERVICE, NOR DOES DESTINATION MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE. THE DESTINATION PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE DISCLAIMERS OF THIS SECTION
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICE, INCLUDING THE APPLICATION, REMAINS WITH YOU. NEITHER THE DESTINATION PARTIES NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE, WHETHER BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE DESTINATION PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL THE DESTINATION PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, ANY PART THEREOF, OR ANY CONTENT EXCEED FIVE HUNDRED DOLLARS ($500). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DESTINATION AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU
You agree to indemnify, save, and hold the DESTINATION Parties harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Your use or misuse of the Service, any violation by You of these Terms, any of Your User Content, or any breach of the representations, warranties, and covenants made by You herein. DESTINATION reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify DESTINATION, and You agree to cooperate with DESTINATION’ defense of these claims. DESTINATION will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it. You agree that the provisions in this Indemnity section will survive any termination of Your Account (if applicable) or of Your access to or use of the Service.
ADDITIONAL MOBILE APPLICATION TERMS
The following additional terms and conditions apply with respect to any application that DESTINATION provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
You acknowledge that these Terms are between you and DESTINATION only, and not with Apple, Inc. (“Apple”).
Your use of the iOS App must comply with Usage Rules set forth in Apple’s then-current App Store Terms of Service.
DESTINATION, and not Apple, is solely responsible for our iOS App and the services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the iOS App to conform to any warranty.
You agree that DESTINATION, and not Apple, is responsible for addressing any claims by you or any third party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
You agree that DESTINATION, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
You agree to comply with all applicable third party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
You agree that Apple and Apple’s subsidiaries are third party beneficiaries to these Terms as they relate to your license to use the iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third party beneficiary thereof.
The following additional terms and conditions apply with respect to any application that DESTINATION provides to you designed for use on an Android-powered mobile device (an “Android App”):
You acknowledge that these Terms are between you and DESTINATION only, and not with Google, Inc. (“Google”).
Your use of the Android App must comply with Google’s then-current Google Play Terms of Service.
DESTINATION, and not Google, is solely responsible for the Android App, the services and content available thereon and the support and maintenance thereof. Google has no obligation or liability to you with respect to the Android App or these Terms.
CONTROLLING LAW AND JURISDICTION
These Terms and any action related thereto will be governed by the laws of the State of Nevada without regard to its conflict of laws provisions. Except as provided in the “Dispute Resolution and Arbitration” Provision (above), the exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms will be the state and federal courts located in the District of Nevada and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
These Terms constitute the entire and exclusive understanding and agreement between DESTINATION and You regarding the Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between DESTINATION and You regarding the Service.
You may not assign or transfer these Terms, by operation of law or otherwise, without DESTINATION’ prior written consent. Any attempt by You to assign or transfer these Terms, without such consent, will be of no effect. DESTINATION may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by DESTINATION (i) via email (in each case to the address that You provided by Your Facebook Login) or (ii) by posting to the Service. Any notices or other communications permitted or required hereunder by You, shall be in writing and addressed to DESTINATION Legal Department [email protected] Any notices that You provide without compliance with this section shall have no legal effect.
The failure of DESTINATION to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of DESTINATION. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
THE SECTION TITLES IN THESE TERMS OF SERVICE ARE FOR CONVENIENCE ONLY AND HAVE NO LEGAL OR CONTRACTUAL EFFECT.