S’more Terms and Conditions

Effective Date: December 1st, 2016

These are the Terms and Conditions for the S’more™ mobile application (the Application) between you, the user, and Lab465, LLC (Lab465, we or us).  These Terms and Conditions consist of (1) a License Agreement and (2) the Terms of Use applicable to the use of the Application and the services provided by the Application (together, this Agreement).

This Agreement also includes the terms and conditions of the S’more Privacy Policy,  as amended from time to time, which are incorporated herein by reference.

IMPORTANT – PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING “I HAVE READ AND UNDERSTAND” THIS AGREEMENT AND DOWNLOADING, INSTALLING OR USING THE APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE APPLICATION.

PLEASE NOTE THAT THIS AGREEMENT CONTAINS MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS, WHICH MAY LIMIT YOUR RIGHTS IN THE EVENT OF A DISPUTE.  SEE BELOW UNDER “TERMS OF USE – ARBITRATION AND CLASS ACTION WAIVER.”

the Application will ALLOW LAB465 AND THIRD PARTIES TO COLLECT, TRANSFER AND USE INFORMATION ABOUT YOUR DEVICE’S PRECISE LOCATION. PLEASE SEE “TERMS OF USE – PRIVACY; location data” BELOW FOR MORE INFORMATION.

1. Eligibility

The Application is intended for use by persons who are at least 13 years of age and reside in the United States and its territories (the Permitted Territory).  If you are under 13 years of age, you may not download and use the Application.  If we learn that a user is under 13 years of age, we will terminate that user’s account within the Application.  If you download and use the Application outside of the Permitted Territory, you will not be able to open an account for the Application, be awarded any points or redeem any points.  If you are a user that is between the ages of 13 and 18, you must have a parent or guardian’s consent to use the Application.

2. Overview of the Application

The Application provides you with the opportunity to be awarded points which can be redeemed for various rewards.  Normal data usage rates will apply when you use the Application.

3. LICENSE AGREEMENT

A.    The License.

Subject to the terms of this Agreement, Lab465 grants to you a limited, nontransferable, nonexclusive license (without the right to sublicense) to install and use one copy of the Application, in executable object code format only and solely for your personal use, strictly in accordance with the terms and conditions of this Agreement, and all applicable local, state, and national laws and regulations (the License).  By using the Application, you represent, warrant and agree that you are using the Application solely for your own personal use and not for redistribution or transfer of any kind.  You agree to abide by the rules and policies established from time to time by Lab465 relating to your use of the Application. Such rules and policies may include, for example, required or automated updates, modifications, and/or reinstallations of the Application and obtaining available patches to address security, interoperability or performance issues. If at any time after reviewing the Application you wish to terminate the License, you must un-install and remove the Application from your mobile device(s), and delete any copy in your possession.

Your use of the Application also may be governed by terms and conditions required by (i) the manufacturer and other providers of your mobile device(s) and its hardware and software components, including its operating system; and (ii) the online store or other applicable distributor through which you obtain the Application ((i) and (ii) collectively being referred to as the Related Agreements). No Related Agreement, however, shall have the effect of limiting, encumbering or otherwise restricting Lab465’s rights and remedies or your obligations under the License, or waiving any restrictions on your rights to use the Application under the License.  The License shall not have the effect of limiting, encumbering or otherwise restricting Lab465’s rights and remedies or your obligations under any other agreement between you and Lab465, or waiving any restrictions on your rights under any such agreement.

B.    Restrictions.

The rights granted to you in the License are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit the Application or make the Application available to any third party or to any mobile device not owned or controlled by you; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Application; (c) you shall not access the Application in order to build a similar or competitive product or service; (d) except as expressly stated herein, no part of the Application may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording or other means; (e) you shall not make any modification, adaptation, improvement, enhancement, translation or derivative work from the Application; (f) you shall not violate any applicable laws, rules or regulations in connection with your access or use of the Application; (g) you shall not remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) or legal notices of Lab465 or our licensors; (h) you shall not use the Application for any purpose for which it is not designed or intended; (i) you shall not make the Application available over a network or other environment permitting access or use by multiple devices or users at the same time; (j) you shall not use the Application to send automated queries to any website or to send any unsolicited commercial e-mail; (k) you shall not use any proprietary information or interfaces of Lab465 or other intellectual property of Lab465 in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application; and (l) you shall not circumvent, disable or tamper with any security-related components or other protective measures applicable to the Application.  Any use of the Application other than as specifically authorized herein, without the prior written permission of Lab465, is strictly prohibited and will terminate the License. These obligations survive termination of this Agreement.

C.    Ownership.

You acknowledge and agree that the Application, any copies thereof (including without limitation any copy that you download, install, or use on your personal computer or mobile device(s)), and all copyrights, patents, trademarks, branding or logos used in the Application, trade secrets, source and object code, format, directories, queries, algorithms, structure and organization of the Application and other intellectual property rights and proprietary and confidential information rights associated therewith are, and shall remain, the property of Lab465 or our licensors. Lab465 and our licensors reserve the right to change, suspend, terminate, remove, impose limits on the use of or access to, disable access to, or require the return of the Application (or any copy thereof) at any time without notice and will have no liability for doing so.  Except as expressly authorized by Lab465 herein, you are not granted any intellectual property rights in or to the Application by implication, estoppel or other legal theory, and all rights in and to the Application not expressly granted in this Agreement are hereby reserved and retained by Lab465 and our licensors.  These obligations survive termination of this Agreement.

D.    Versions.

Lab465 may release updated versions of the Application from time to time.  Certain features of the Application may only be available by using the most up-to-date version of the Application.  In addition, information contained in versions of the Application other than the most up-to-date version may not be accurate. You are encouraged to promptly update your Application when new versions are released.

4. TERMS OF USE

A. Registration; Your Account.

The Application requires that you register and create an account (Account).  There is no registration fee required to use the Application.  When you register, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form; and (b) provide us with updates and maintain the accuracy and completeness of such information.  Please also see “Eligibility” above for a description of those who are permitted to use the Application.

You are allowed to have only one (1) Account. Your Account must have a working email and an associated mobile phone number located in the Permitted Territory. A VOIP phone number and a landline phone number do not count as a mobile phone number for this purpose.  If you open more than one Account, we may cancel all of your Accounts in our discretion.

You may also be able to sign in and create your Account through an account you already have with another service, such as Facebook.

We may suspend, deactivate and/or cancel your Account if you have not met any of the requirements of this Agreement. We also may immediately suspend your Account (and ultimately cancel your Account) if we believe or suspect that you are not an Active Daily User (as defined below Under “Terms of Use – Awarding and Redeeming Points – Being and Active Daily User”). Please see also “Terms of Use – Appropriate Conduct” below as it relates to our ability to suspend, deactivate and/or cancel your Account.

If your Account is cancelled, you will not be able to redeem your accumulated points. We may also freeze or cancel any pending Redemption Transactions (as defined below) at the time that your Account is cancelled.

You have the right to cancel your Account at any time. 

B. Password and Security.

You are responsible for maintaining the confidentiality of your password, and you are fully responsible for all activities that occur under your Account. You agree to immediately notify Lab465 of any unauthorized use of your Account.  Lab465 will not be liable (to you or any third party) for any loss or damage arising from or related to the unauthorized use of your Account or the Application on your mobile device.

C. Awarding and Redeeming Points

1.  Awarding Points.

a. In General.  The Application indicates those activities for which you may be awarded points, and the applicable number of points you may be awarded for those activities.  Activities may be added or deleted from the Application by Lab465 in our sole discretion.  You must properly and completely engage in the applicable activity in order to be awarded the associated points. Lab465 will award points in its discretion.  You must be in compliance with this Agreement in order to be awarded points. Points will not be added to your Account if you un-install the Application or you or we de-activate or cancel your Account. 

b. Being an Active Daily User. You must be an Active Daily User of the Application to be eligible to be awarded points. An “Active Daily User” means that you keep the Application running on your device at all times, you use your device as you normally would, you view Lock Screen Content (as defined below) as part of your normal interactions with your device, and you have only one Account.

c. Points for Content On Your Lock Screen. Once you download the Application and accept this Agreement, the Application allows third party businesses and advertisers (collectively, Third Party Advertisers), as well as Lab465, to deliver advertisements and other content on the lock screen of your mobile device (collectively, Lock Screen Content).  You will have the option to ignore any Lock Screen Content or to click on it to receive more information about the Lock Screen Content you see on your lock screen. The Lock Screen Content will appear anytime you wake up your device. By allowing the display of this Lock Screen Content, you will be eligible to be awarded the points as described in this Agreement.

d. Points for Surveys.  The Application may allow you to answer short market research surveys in order to be eligible to be awarded points.  You will be notified in the Application when surveys are available. If for any reason a survey is not fully completed (including, without limitation, as a result of a network or device error), you will not be eligible to receive points for taking the survey.  The surveys are provided by third parties, and not Lab465.  You will need to review the terms and conditions and privacy policy of the survey provider (or providers) before completing any surveys.  Lab465 does not guarantee that surveys will always be available or that they will be available at any specific times.

e. Bonus Points.  Lab465 reserves the right to grant bonus points in our discretion for special activities or events. You will be notified of any bonus point opportunities or awards in the Application or another notification manner contemplated by this Agreement.

2.  Redeeming Points.  Subject to paragraphs 3, 4 and 5 of this section, once awarded, you may redeem points through purchases at any time, so long as (i) you have enough points available to purchase a reward (a Redemption Purchase) and (ii) your Account is open, active and in good standing. However, your first Redemption Purchase may be prohibited during a one-time waiting period which is based on the number of days that you must use the Application after you first create your Account. This waiting period will be set by Lab465 in our discretion and identified in the Application if you attempt to make a Redemption Purchase prior to the end of the waiting period.

The number of points required to redeem an item shall be set by Lab465 from time to time in our sole discretion, and may change without notice. The available rewards (and required points for the same) can be seen in the Application. Based on your point total, you may choose to redeem your points for available rewards or you may continue building points to redeem later. 

Some reward products and services may have restrictions, such as limited availability, may be available only while supplies last and/or may be subject to other restrictions.  We will explain those restrictions to you within the Application.

When you make a Redemption Purchase, you may be purchasing a product or service (collectively, Redemption Products) from a third party affiliated with the Application (a Reward Third Party and, collectively, the Reward Third Parties). The Reward Third Parties may have additional terms and conditions that are applicable to your Redemption Purchase. If so, those additional terms and conditions will be presented to you for review and acceptance in the Application (and will apply in addition to this Agreement).  If you do not accept the additional terms and conditions of a Reward Third Party that are presented to you, you will not be able to redeem your points for Redemption Products of that Reward Third Party.

3. Expiration of Points. Points expire 12 months after they are awarded, on a rolling basis.  However, points may expire earlier if (and when) your Account is closed, if that occurs prior to the 12-month expiration date.  Information about expiring points is available in the Application.

4. Inactivity; Account Closure; Other Loss of Points. If we close or deactivate your Account as described in “Terms of Use – Registration; Your Account” above, or you voluntarily close your Account, your accumulated points will immediately expire. Lab465, in our sole discretion, can freeze or remove points from your Account and/or suspend and cancel your Account activity (including any pending Redemption Purchases) if Lab465 has reason to believe that points were awarded through means that are in violation of this Agreement or fraudulent or illegal activity. You will be notified of any freezing or removal of points.

5. Points Have No Cash Value.  Points awarded may only be redeemed within the Application. Points are not your personal property and are not descendible or transferable, and may not be inherited, bartered, sold or given.  Points are not actual currency and have no cash value. Reward points may be valued by Lab465 for tax and accounting purposes in our sole discretion.

D. Return or Cancellation of Redemption Products

The handling of returns or cancellations of Redemption Products, including if they are lost or stolen, is subject to the terms and conditions of the applicable Reward Third Party. You should contact the applicable Reward Third Party directly with any questions about returns, cancellations or lost or stolen items. Their contact information will accompany the details of your Redemption Purchase.  

E.    Delivery of Your Redemption Purchase

 

Products and services purchased in a Redemption Purchase will be delivered virtually to you through the Application, unless otherwise noted in the Application.

 

F.    Tax Matters

Your use of the Application may result in the receipt of taxable income by you from Lab465 in the tax year(s) in which you redeem your points. In accordance with U.S. tax law, Lab465 may be required to send to you, and file with the IRS, a Form 1099-MISC (Miscellaneous Income) for the year(s) in which you redeem points.  The valuation of the points that you redeem for Form 1099-MISC tax reporting purposes will be at Lab465’s sole discretion. You are solely responsible for any personal tax liability arising out of the points redeemed through your use of the Application. Please consult with your tax advisor if you have any questions regarding your personal tax situation.

G.   Changes in Points.

Lab465 may change the points that may be awarded through the Application at any time. In the event of a change in points, Lab465 will include updated information about the points that you are eligible to be awarded within the Application. If you do not agree to these changes, your sole remedy is to stop using the Application before the changes take place. If you continue to use the Application after a change in the points has taken effect, you will be deemed to have agreed to the change. Any such change will only apply prospectively and will not affect previously awarded points. 

H.    Access.

You are responsible for obtaining access to the Application and the services provided by the Application (Services), and you are responsible for paying any third party fees associated with such access. You are also responsible for paying your wireless services bill and for all standard data charges and standard messaging charges that may apply. In addition, if traveling outside of your domestic coverage area, your wireless carrier may charge international roaming rates when downloading/streaming content from the Application.

In addition, you must provide and are responsible for all equipment necessary to access the Application.

I.      Compliance with Law.

You may use the Application and Services only as permitted by law. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction(s) in which the Application was obtained.

J.     Appropriate Conduct.

Your ability to use the Application and be awarded Application points is expressly conditioned upon your compliance with this Agreement and with all policies and guidelines applicable to the Application that Lab465 may make available from time to time (including any third party terms and conditions expressly noted herein).  In the event of your non-compliance, fraud or other inappropriate activity (as determined by Lab465 in our sole discretion), Lab465 may cancel your Account and/or restrict, limit, block and prevent your access to the Application, accumulated points, future Application points and pending Redemption Purchases.

You agree to use the Application in good faith.  You will not provide false or misleading data or information, including without limitation in response to surveys.

K.    User Content.

You may provide information to Lab465 or third parties in connection with your use of the Application, including providing survey responses, feedback or other content (User Content).  By providing User Content, you represent and warrant that you have the lawful right to provide it and that is accurate and complete. 

You understand and agree that you have no ownership rights in materials you submit through the Application.   You hereby grant Lab465 a limited, non-exclusive, sub-licensable, world-wide, fully-paid, royalty free license to use, modify, perform, publicly display, reproduce and distribute User Content in any media without he requirement to make any payment to you or to any third party or to seek any consent. 

You must not provide any User Content or otherwise make use of the Application that:

1. is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

2. impersonates any person or entity, or falsely states or otherwise misrepresents your affiliation with a person or entity;

3. forges headers or otherwise manipulates identifiers in order to disguise the origin of any User Content;

4. makes available any User Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information or information learned or disclosed as part of employment relationships or under nondisclosure agreements);

5. transmits any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

6. interferes with or disrupts the Application servers or networks connected to the Application, or disobey any requirements, procedures, policies or regulations of networks connected to the Application;

7. attempts to accrue Application points in a fraudulent manner or using electronic or mechanical means; or

8. in the sole judgment of Lab465 is objectionable, does not reflect your good faith efforts to be responsive to a survey or which may expose Lab465 or our licensors to liability of any type.

You acknowledge and agree that Lab465 may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property or personal safety of Lab465, our users or the public.

L.    Term, Modifications to the Services and Termination.

This Agreement is effective on the date you accept it and shall continue in effect while you use the Services. Lab465 reserves the right at any time and from time to time, in our sole discretion, to modify or discontinue, temporarily or permanently, the Application. Accordingly, Lab465 may terminate this Agreement and the License at any time. You agree that Lab465 shall not be liable to you or to any third party for any modification, suspension or termination of the Application or this Agreement. Any such modifications, suspension or termination may have the effect of reducing or cancelling your points.  You may not rely on the continued availability of the Application, the points or any reward. 

Upon termination of this Agreement, your Account and right to access and use the Services will terminate immediately.  As noted above, in the event of the termination of your Account, any accumulated points will immediately expire.

If at any time you wish to terminate the License, you must un-install and remove the Application from your mobile device(s), and delete any copy in your possession.

Even after this Agreement is terminated, any provisions of this Agreement, which by their express language or by their context are intended to survive the termination of this Agreement (including without limitation, provisions governing indemnification, limitations on liability, disclaimers of warranty and ownership of intellectual property), shall survive such termination.

Any new services provided by Lab465 or features that augment or enhance the current Application shall be subject to this Agreement, unless explicitly stated otherwise.

Lab465’s decision is final and binding in all matters relating to this Agreement, including, but not limited to, the award or removal of points.

M.   Proprietary Rights.

The Application and all content and other materials contained on or within the Application, including without limitation, all information, content, designs, text, graphics, information, data, software, surveys, offers, music trademarks, product or service names, logos, slogans other files, and the selection and arrangement thereof (collectively, the Lab465 Content), are the proprietary property of Lab465 (and our suppliers and licensors) and are protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws.  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 thereof by Lab465.

You agree not to download, display or use any Lab465 Content located on the Application for any commercial purpose, in connection with products or services that are not those of Lab465, in any manner that is likely to cause confusion among consumers, that disparages or discredits Lab465 and/or our licensors, that dilutes the strength of Lab465’s or our licensor’s property, or that otherwise infringes Lab465’s or our licensor’s intellectual property rights.  You further agree to in no other way misuse any Lab465 Content or Third Party Content (as defined below in “Terms of Use-Third Party Content and Products”) that appears on the Application.

Except where otherwise specified, S’more™ and its associated artwork and design are trademarks and copyrights of Lab465.

N.    Privacy; Location Data.

The S’more Privacy Policy  contains information about the Application’s and applicable third party’s information collection, use and disclosure policies.  As described in the S’more Privacy Policy, the Application will allow third parties to collect, use and transfer information from your device, including your device’s advertising ID, for the purposes of providing you with content that may most of interest to you.  If you do not agree to this collection, transfer and use, you should not use and should un-install the Application from your device.

The Application will allow Lab465 and third parties to collect, transfer and use information about your device’s precise location. This information is necessary to provide content that is relevant to you based on where you use the Application.  Please see the S’more Privacy Policy  for more information.  If you do not agree to this collection, transfer and use, you should not use and should un-install the Application from your device.

O.   Disclaimer of Warranties.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

(A) YOUR USE OF THE APPLICATION AND THE SERVICES ARE AT YOUR SOLE RISK.THE APPLICATION AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  LAB465 AND OUR LICENSORS EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, ACCURACY, AND QUIET ENJOYMENT.  LAB465 DOES NOT WARRANT UNINTERRUPTED USE, OPERATION OR AVAILABILITY OF THE APPLICATION OR SERVICES OR ANY LAB465 CONTENT OR THIRD PARTY CONTENT, OR THAT ANY TRANSACTION REQUEST WILL BE SUCCESSFUL OR COMPLETED WITHIN A REASONABLE AMOUNT OF TIME. 

(B) LAB465 AND OUR LICENSORS MAKE NO WARRANTY (AND ASSUME NO OBLIGATION) (i) that THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (ii) that the Lock Screen Content will always be available or that it will be available at any specific times; (iii) that THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (iv) that ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED; OR (v) that ANY SOFTWARE DOWNLOADED TO A MOBILE DEVICE, OR ANY INFORMATION READ FROM OR WRITTEN TO A MOBILE DEVICE, WILL NOT ADVERSELY AFFECT THE PERFORMANCE, OPERATION, WARRANTY OR ANY OTHER ASPECT OF THE MOBILE DEVICE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE APPLICATION, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DOWNLOAD.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LAB465 OR THROUGH OR FROM THE APPLICATION SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

P.    Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, LAB465 AND OUR AFFILIATES AND LICENSORS SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, LOSS OF DATA OR OTHER INTANGIBLE LOSSES (EVEN IF LAB465, OUR AFFILIATES OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM OR RELATED TO THIS AGREEMENT, THE APPLICATION OR THE SERVICES, INCLUDING WITHOUT LIMITATION: (i) THE USE OR THE INABILITY TO USE THE APPLICATION OR SERVICES; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF USER CONTENT; (iii) LOSS OR DELETION OF ANY OF USER CONTENT; (iv) STATEMENTS, CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE APPLICATION; (v) MISTAKES, INTERRUPTIONS, ERRORS, DEFECTS, DELAYS OR ANY OTHER FAILURE OF PERFORMANCE; OR (vi) ANY OTHER MATTER RELATING TO THE APPLICATION OR THE SERVICES.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF LAB465, OUR AFFILIATES AND LICENSORS FOR ANY CLAIM UNDER THIS AGREEMENT OR RELATING TO THE APPLICATION OR THE SERVICES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, INCLUDING FOR ANY IMPLIED WARRANTIES, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES OR APPLICATION, IS LIMITED TO THE AMOUNT, IF ANY, PAID TO LAB465 TO USE THE SERVICES AND APPLICATION. IN ALL CASES, LAB465, OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.

The warranty disclaimer and limitation of liability set forth above are fundamental elements of the basis of this Agreement between Lab465 and you.  Lab465 would not be able to provide the Application on an economic basis without such limitations.  The warranty disclaimer and limitation of liability inure to the benefit of Lab465’s affiliates and licensors.

Q.   Indemnity.

You agree to indemnify and hold Lab465 and our subsidiaries and affiliates, and their respective officers, employees, agents and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party arising out of or related to any User Content you transmit through the Application, your use of the Application, your violation of this Agreement or your violation of any rights of a third party.

R.    Third Party Content and Products.

The Application contains links, content and services provided by third parties, which may include advertisements, video, surveys and offers (collectively, Third Party Content). Information that you submit to a third party application or website that you link to from or within the Application (collectively, Third Party Sites) is subject to the terms of that application’s or website’s privacy policy.  Lab465 does not have control over the privacy policies or practices of such third parties.  Lab465 is not responsible for the loss of any data or information (including, without limitation, payment card information) that you provide to any Third Party Sites.

Lab465 does not monitor or have control over Third Party Content or Third Party Sites. Lab465 does not endorse or adopt any Third Party Content or Third Party Sites and can make no guarantee or warranty as to their accuracy or completeness.  Lab465 undertakes no responsibility to review any Third Party Content or Third Party Sites.  Your use of any Third Party Content or Third Party Sites is at your own risk. 

You further acknowledge and agree that Lab465 shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Content or Third Party Sites.

The Third Party Content and the Third Party Sites are intended for general audiences.  If you do not like the Third Party Content and/or Third Party Sites for any reason, we suggest you not view the specific content that is not to your liking, or that you un-install and do not use the Application.

Lab465 is not responsible for, and makes no warranties of any kind regarding the Redemption Products or any other products or services that you may purchase pursuant to Third Party Content made available through the Application.  Any claims or concerns you may have concerning any Redemption Products or any other products or services that you may purchase pursuant to Third Party Content available through the Application should be brought by you directly to the applicable seller.  Lab465 expressly disclaims any warranties that such products or services will be merchantable or fit for a particular purpose or non-infringing or error-free.

S.    Modification of this Agreement.

This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by (i) prominently posting notice of the changes on the Application’s website, (ii) contacting you using Account information and/or (iii) providing notice of the changes through the Application.  Any changes to this Agreement will be effective immediately upon our posting them on the Application’s website or making the updated version of this Agreement available to you through the Application, unless we notify you otherwise.  Continued use of the Application and the Services following the posting or notice of such changes will indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. You should frequently review this Agreement and the aforementioned other applicable agreements and policies on the Lab465 website and/or the Application’s website.  If you do not agree to the amended terms, you must stop using and un-install the Application.

T.    General.

This Agreement and the relationship between you and Lab465 shall be governed by the laws of the State of Illinois, excluding any conflicts of law provisions.  Lab465 does not consent to the jurisdiction of all states or state courts merely by virtue of maintaining and operating the Services and providing other content and information on the World Wide Web.

The failure of Lab465 to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of Lab465 thereafter to enforce each and every such provision.  No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.

If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

The section titles in this Agreement are for convenience only and have no legal or contractual effect.

Any notices intended to have legal effect: (a) to you may be made via email, SMS, regular mail or through the Services or the Application and (b) to Lab465 must be made by delivery receipt-requested mail at Lab465 headquarters at 8410 W. Bryn Mawr Ave., Chicago, IL 60631, ATTN: Legal Department.

The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.  In the event that any provision of this Agreement is found to be contrary to law, then such provision shall be construed as nearly as possible to reflect the intention of the parties, with the other provisions remaining in full force and effect.

This Agreement (together with all Related Agreements) constitutes the entire agreement between the parties pertaining to the subject matter hereof.

The failure of Lab465 to comply with this Agreement because of any reason beyond the reasonable control of Lab465 shall not be deemed a breach of this Agreement.

U.    Export.

The Application is subject to the export control laws and regulations of the United States and other jurisdictions.  You agree to comply with all such laws and regulations.

V.    Arbitration.

 

ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE RESOLVED BY BINDING ARBITRATION AT THE REQUEST OF EITHER PARTY, TO BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”).

 

WE SHALL BE FULLY RESPONSIBLE FOR FILING, ADMINISTRATION AND ARBITRATOR FEES AND WE WILL ADVANCE, OR REIMBURSE YOU FOR, ANY REASONABLE FILING, ADMINISTRATION AND ARBITRATOR FEES FOR ANY ARBITRATION INITIATED IN ACCORDANCE WITH THIS PARAGRAPH. WE WILL REIMBURSE YOU FOR YOUR REASONABLE ATTORNEYS’ FEES AND COSTS IF THE ARBITRATOR AWARDS YOU AN AMOUNT EQUAL TO OR GREATER THAN THE AMOUNT YOU HAVE DEMANDED IN SUCH ARBITRATION.

 

THE AMERICAN ARBITRATION ASSOCIATION SHALL ADMINISTER THE ARBITRATION AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. BOTH PARTIES ACKNOWLEDGE THAT THIS AGREEMENT IS A TRANSACTION INVOLVING INTERSTATE COMMERCE, AND IS THEREFORE GOVERNED BY THE FEDERAL ARBITRATION ACT. BY AGREEING TO ARBITRATION, BOTH PARTIES ARE WAIVING THEIR RIGHT TO LITIGATE IN COURT INCLUDING ANY RIGHT TO A JURY TRIAL.

 

UNLESS YOU AND WE OTHERWISE MUTUALLY AGREE, ALL HEARINGS UNDER SUCH ARBITRATION SHALL TAKE PLACE IN THE COUNTY OF YOUR BILLING ADDRESS. AT YOUR OPTION, YOU MAY BRING AN ACTION AGAINST US IN SMALL CLAIMS COURT, NOTWITHSTANDING THIS AGREEMENT. THE PARTIES AGREE THAT ALL CLAIMS, WHETHER IN ARBITRATION OR IN SMALL CLAIMS COURT, SHALL BE TREATED INDIVIDUALLY AND THERE SHALL BE NO CONSOLIDATION OF CLAIMS, CLASS ACTIONS, REPRESENTATIVE ACTIONS OR PRIVATE ATTORNEY GENERAL ACTIONS. LAB465 EXPRESSLY REJECTS AND DOES NOT CONSENT TO ANY CONSOLIDATION OF CLAIMS OR CLASS ACTION IN THE ARBITRATION.

 

THIS ARBITRATION AGREEMENT SURVIVES THE TERMINATION OF THIS SERVICE AGREEMENT.

 

FOR ADDITIONAL INFORMATION ON COMMENCING ARBITRATION AND HOW THE ARBITRATION PROCESS WORKS, YOU MAY CALL THE AMERICAN ARBITRATION ASSOCIATION AT 800-778-7879 OR VISIT THEIR WEBSITE AT WWW.ADR.ORG.

 

W.   Technical Support.

Technical support for the Application is available daily from Lab465 through the Application.  

X.    Information or Complaints.

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Services, please send an e-mail to the e-mail address listed below.  California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

Contact Information:

 

Lab465, LLC

8410 W. Bryn Mawr Ave.

Chicago, IL 60631

      Email: admin@lab465.com

 

Privacy Policy

S’more™ Privacy Policy

Effective Date: December 1st, 2016

The S’more mobile application (the Application) is brought to you by Lab465, LLC (Lab465, we or us).  The Application provides you with the opportunity to earn points which can be redeemed for various rewards. We have prepared this Privacy Policy to describe our practices regarding the information we collect, share and use through the Application and our website located at http://www.smoreapp.co/ (collectively, the Services).

Your use of the Application is also governed by the S’more Terms and Conditions (Terms and Conditions).  Please consult the Terms and Conditions for detailed information about the Services.  Capitalized terms not defined in this Privacy Policy shall have the meaning ascribed to them in the Terms and Conditions.

This Privacy Policy does not apply to information that we (or our affiliates) may collect on any other websites or applications, including websites you may access through the Application, or any information that you provide to or that is collected by any third party. 

THE APPLICATION WILL ALLOW LAB465 AND THIRD PARTIES TO COLLECT, TRANSFER AND USE YOUR DEVICE’S PRECISE LOCATION INFORMATION. This includes GPS-based, Wifi-based and cell tower-based location information.

Please read this Privacy Policy carefully to understand our policies and practices regarding your information and how we treat it in connection with the Application and the Services.  If you do not agree with this Privacy Policy, you should not use or register with the Application, and instead you should un-install it. 

1. Information Collected Through the Application

“Personal Information” means information that allows someone to identify or contact you, including, for example, your name, address, telephone number, e-mail address, as well as any other information about you that is associated with or linked to any of the foregoing data. “Anonymous Information” means data that is not reasonably linked to your Personal Information. Anonymous Information is created by manipulating or removing the reasonable link to personal identifiers. We collect Personal Information and Anonymous Information through the Application, as described below. As used herein, the term “Information” means both Personal Information and Anonymous Information.

a. Information You Provide to Us

(i)     Account Information: We may collect information from you, such as your first and last name, gender, age, date of birth (or birth month and year), ethnicity, marital status, employment status, educational level, income, content interests, e-mail address, state of residence, zip code of residence, phone number and Application passwords when you create an account for the Application’s Services (Account).

(ii)    Redemption Information: When you make a Redemption Purchase through the Application, we may collect additional Personal Information required to complete the transaction, such as your name, e-mail and shipping information.

(iii)   Feedback Information: If you provide us feedback or contact us via e-mail through the Services, we will collect your name and email address, as well as any other content included in the e-mail, in order to send you a reply.

(iv)   Survey responses:  If you engage in surveys on the Application, your survey responses will be collected by the Application.  Survey questions may ask you for your Personal Information, and you should only provide your Personal Information if you are comfortable doing so.  The privacy policies of the survey providers will be available through the Application for you to review.

(v)    Tax Information: If the value of the points you redeem through the Application exceeds the amount which we are required to report to any taxing authority, we will collect your social security number or other tax identification number.

(vi)   We may also collect other Personal Information at other points in the Services that state that Personal Information is being collected, such as requests for your e-mail made through the Services.

b. Information Collected via Technology.

(i)     To make the Services more useful to you, the Services use technology to automatically collect certain Information, including but not limited to:

·      Location:  The Application will collect, transfer and use information about your device’s precise location.  This includes GPS-based, Wifi-based and cell tower-based location information. You can opt out of the future collection, transfer and use of precise location information. See Opting Out below.

·      Usage details: The Services may automatically collect certain details of your access to and use of the Services, including traffic data, engagement with advertisements, the points you have accumulated, surveys answered, your Redemption Purchases, clickstream information (which is the recording of the parts of the screen or Application that you click on), and date and time of usage/visit.

·      Computer or device information: The Services may collect information about your computer or mobile device and internet connection, including the unique advertising identifier (Ad ID) of a device, IP address, operating system, mobile network information, a device’s telephone number, other device identifiers, and device model, manufacturer and type.

 (ii)   Third party collection: When you use the Application, certain third parties may use automatic information collection technologies to collect information about you or your device.  These third parties may include: advertisers, ad networks, survey providers, ad servers and analytics companies.  Through the Application, these third parties may collect Information, such as your device type, operating system, device’s Ad ID, IP address, browser type or other device identifiers. We may also share other Information with these third parties, such as demographic information about your stored in your Account.  All of this Information is shared in order to provide you with interest-based (behavioral) advertising and other relevant content on the Application. These third parties are not bound by this Privacy Policy and may use the Information for any lawful purposes. These third parties may also collect other information about you (including Personal Information) outside of the Application, such as your online activities over time and across different websites and applications.  See About Our Ads below.

(iii)   You may connect to other services you use through the Application, such as social networking sites.  If you connect your Account with a third party service (including logging in to the Application through Facebook), we collect information through that service.  This information varies depending on the service and your privacy settings there, but may include your profile information on that service, your e-mail address, your contacts on that service and your content on that other service. 

2. How Information Collected Through the Application Is Used

a. General Use

In general, Information you submit to us or that is collected by us in connection with the Application or the Services is used either to respond to requests that you make, or to aid us in serving you better. We may use your Information in the following ways:

(i)             To provide you with the Application and the Services, including in order to fulfill Redemption Purchases.

(ii)           Fulfill any other purpose for which you provide it.

(iii)          To direct certain advertisements and content to you so that you are more likely to see advertisements and content that are relevant to you (see About Our Ads below).

(iv)          To facilitate the creation of and secure your Account on the Application, and recognize you when you use the Application.

(v)           To notify you when Application updates are available, and of changes to the Application or Services.

(vi)          To send offers and promotional materials related to the Services and for other marketing purposes.

(vii)        To share it with our affiliates, including to allow our affiliates to market their products and services to you.

(viii)       To analyze use of the Application.

(ix)          To monitor the Application and the Services for fraud, abuse or violations of the S’more Terms and Conditions.

(x)           To improve the Application and deliver a better and more personalized experience through the Application.

b. Creation of Anonymous Information

We reserve the right to use Anonymous Information for any purpose and disclose Anonymous Information to third parties in our sole discretion. We may create Anonymous Information records from Personal Information by removing or manipulating information that makes the data personally identifiable to you.  We use Anonymous Information to analyze usage patterns of the Application and to enhance the content of Services and improve the Application.

3. How Information Collected Through the Application is Shared

We may disclose your Information as described below and as described elsewhere in this Privacy Policy.

a. Third Party Service Providers

We may share your Information with third party service providers who help support the Application, the Services or our business.

b. Interest-Based Advertising.

We may share your Information with third parties in order to direct certain advertisements and content to you so that you are more likely to see advertisements and content that are relevant to you.  See also About Our Ads below.

c. With Consent

We share your Information for any other purpose disclosed by us at the time you provide the Information.

d.  Affiliates and Acquisitions

We may share your Information with our affiliates, in which case we will require our affiliates to honor this Privacy Policy. We may also share your Information if we undergo a merger or sale transaction.

e. Anonymous Information

We may disclose Anonymous Information without restriction.

f. Other Disclosures

Regardless of any choices you make regarding your Personal Information, we may disclose Personal Information if we believe in good faith that such disclosure is necessary (a) in connection with any legal investigation; (b) to comply with relevant laws or to respond to subpoenas, court orders, warrants served on us or legal process, including responding to any government or regulatory request; (c) to protect or defend our rights or our property or the users of the Services; and/or (d) to investigate or assist in preventing any violation or potential violation of the law, this Privacy Policy, or the Terms and Conditions.

4. Third Party Websites and Applications

When you click on a link or otherwise leave the Services and go to another site, another entity may collect Personal Information or Anonymous Information from you. We have no control over, do not review, and cannot be responsible for, these outside websites or their content. Please be aware that the terms of this Privacy Policy do not apply to these outside websites or content, or to any collection of data after you click on links or swipe left to connect to such outside websites.

5. About Our Ads

The Application uses common tracking tools, like cookies and beacons. See Use of Cookies and Other Technology below.  These technologies allow the Application to feature advertisements and content that are relevant to you and usually are presented by our partner advertisers or advertising networks.  These ads and content are presented based on your actions on the Application as well as your other online activities.  This is called interest-based or behavioral advertising – advertising that uses information collected on an individual’s web browsing or mobile application behavior in order to target advertising or content to the user based on this behavior.  This information is then used to select which advertisements or content are displayed to you on the Application. 

Lab465 adheres to the Digital Advertising Alliance’s Self-Regulatory Principles for Online Behavioral Advertising (DAA Self-Regulatory Principles).

You have a choice about receiving interest-based ads and content.  See Opting Outbelow.

 

6. Opting Out

We understand that, at a future date, you may no longer want to have your Information collected and used to receive interest-based ads or content on the Application or to have your device’s precise location data collected.  Without this information, we won’t be able to provide you with enough interesting or relevant content on the Application, which means you will not have a meaningful opportunity to earn points.

Therefore, in order to “opt out” of allowing the future collection, use and transfer of your behavioral information or the device’s precise location information, you must stop using and un-install the Application from your mobile device.

You may find this same information on the “Opting Out” tab in About S’more section of the Application.

7. Accessing and Updating Your Information

You can view and change the information in your Account by editing it, or by sending as an e-mail to admin@lab465.com.   

8. Security of Personal Information

We take reasonable security safeguards to protect against such risks as loss or unauthorized access, destruction, use, modification, or disclosure of Personal Information.

You should not provide your Account information to unauthorized parties. You are encouraged to protect your mobile device, computer, and passwords against unauthorized access. When accessing information online, you should sign off when finished using a shared computer and always log out of any website after viewing Personal Information.

9. Communication Preferences

We may send you e-mails to promote the use of the Services. When you receive those e-mails,  you may indicate a preference to stop receiving further communications from us and you will have the opportunity to “opt-out” by following the unsubscribe instructions provided in the e-mail you receive, by terminating your Account or by contacting us directly at admin@lab465.com

These choices do not apply to the display of online advertising or the receipt of mandatory service communications that are considered part of the Services, which you may receive periodically unless you close your Account.

 

10. Location Best Practices

Lab465 abides by the International Association for the Wireless Telecommunications Industry (CTIA) Best Practices and Guidelines for Location Based Services which can be found on the CTIA’s website at http://www.ctia.org

Lab465 uses a variety of commercially reasonable and appropriate safeguards to protect location information residing on its systems from unauthorized access or disclosure including, without limitation, server firewalls and physical facility security. We retain location information only so long as needed to provide and support location-based services or our mobile applications, or as required by law. Should we retain location information for a longer period, we shall do so only for business purposes and may convert such location information into aggregated or de-identifiable data. No security is perfect, however, and Lab465 cannot guarantee the security of your location information.

Lab465 does not guaranty the accuracy or completeness of location information delivered through the Application, and any location-based service or may be disrupted or fail due to environmental factors and factors affecting satellite usage.  

11. Children Under the Age of 13

The Application is not intended for children under 13 years of age, and we do not knowingly collect Personal Information from children under 13.  If we learn that we have collected or received Personal Information from a child under 13 without verification of parental consent, we will delete that information.  If you believe that we might have any Personal Information from or about a child under 13, please contact us at admin@lab465.com.

12. Use of Cookies and Other Technologies

We may use technologies, such as cookies, advertising identifiers (such as the Android Advertising ID) and web beacons, to collect, store and read Information as described in Section 1(b) of this Privacy Policy on your computer or device when using the Services.  Cookies are small chunks of data created by a web server, delivered through a web browser, and stored on your computer or device.  They provide a means for mobile applications or websites that you use or visit to keep track of your usage patterns and preferences, as well as to identify you as a return visitor.  Cookies make the personalization of your mobile application and web experiences possible, so that you do not need to re-enter information from scratch upon each visit.  Web beacons consist of a small string of software code on your browser that works with cookies to monitor usage and can be used to personalize advertising.

Many web browsers allow you to manage your preferences.  You can set your browser to refuse cookies or delete certain cookies.  You may be able to manage other technologies in the same way that you manage cookies using your browser’s preferences.

Please note that if you choose to block cookies, doing so may impact the Services or prevent certain elements of the Services from functioning.

13. Do Not Track

You should be aware that your browser may have settings for Do Not Track.  Lab465 does not honor Do No Track signals from browsers.  As a company that follows the DAA Self-Regulatory Principles, we support the position taken by the DAA that many browsers’ default settings are set by their manufacturers and, therefore, do not represent the preferences of consumers.  The Federal Trade Commission provides information about giving consumers choice about Do Not Track

14. Changes to This Privacy Policy

We may occasionally update this Privacy Policy.  When we post changes to this Privacy Policy, we will revise the effective date at the top of this Privacy Policy.  If there are material changes to this Privacy Policy, we will notify you by prominently posting a notice of such changes 30 days prior to implementing the change and we may make reasonable attempts to notify you directly.  We encourage you to review this Privacy Policy to be kept informed about our privacy practices for the Services. Continued use of the Services, following notice of such changes, shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

15. California Privacy Rights

California Civil Code Section 1798.83 permits the users of the Application who are California residents to request and obtain from us a list of what Personal Information (if any) we disclosed to third parties for their direct marketing purposes in the preceding calendar year and the names and addresses of those third parties. Requests may be made only once a year and are free of charge.

If you are a California resident and would like to make such a request, please submit your request in writing to Lab465 at the following address:


Lab465, LLC

Attn: Director, Privacy and Legal Counsel

8410 W. Bryn Mawr Ave.

Chicago, IL 60631-3486

 

 16.  Contacting Us

We welcome your comments regarding this Privacy Policy.  If you have questions about this Privacy Policy, please contact us at the following address:

Lab465, LLC

Attn: Director, Privacy and Legal Counsel

8410 W. Bryn Mawr Ave.

Chicago, IL 60631-3486

 

About Ad Targeting

S’more and its third parties collect and use the information identified in the Privacy Policy to serve you interest-based ads and other content, based on your inferred interests, preferences and location.  This is described in detail in the S’more Privacy Policy.

We understand that, at a future date, you may no longer want to have this information collected and used to receive interest-based ads or content on S’more or to have your device’s precise location data collected.  Without this information, we won’t be able to provide you with enough interesting or relevant content on S’more, which means you will not have a meaningful opportunity to earn points. 

Therefore, you must un-install and stop using S’more from your mobile device in order to opt out of allowing the future collection, use and transfer of your behavioral information or the device’s precise location information,.