Welcome to shopkick, one of the most popular mobile shopping companions in the world. Each day, shopkick helps millions of users discover the best deals on the best products.
Below are our detailed Terms of Service (“Terms” or “Agreement”) that you must read and accept before using the shopkick website (“Website”), the shopkick mobile application (“Application”) or any of shopkick’s services (the “Services”) (together, the Website, Application and Services are the “shopkick Program”). If you decide to download the Application or continue using the shopkick Program, you are bound by these Terms.
These Terms apply to users visiting or registering on or after November 16, 2015. For existing shopkick users these Terms will become effective on November 16, 2015.
By accessing the Website or by using the shopkick Program, you agree to the following Terms. The Agreement defines your rights and responsibilities as a user (“User”) of the shopkick Program, which is operated by shopkick, Inc. or its affiliates (together, and with their parent corporations, other subsidiaries and affiliates, “shopkick,” “we,” or “us”). The shopkick Program is operated in the United States of America and access to the Websites is governed by this Agreement under the laws of the State of California and the United States. Registration as a User on the Website or Application results in your information being stored and processed in the United States, and you specifically consent to shopkick’s storage and processing of the personal data you submit. You may access your information at any time to confirm its correctness and to keep it current in connection with your registration or subscription.
In order to access certain features of the shopkick Program, you have to create an account with us (“Account”). Even if you do not register with your name, email address, telephone number, etc. (or Facebook credentials), you must still create an Account in order to customize your Application experience and show you more relevant information. In addition, in order to redeem your Kicks you must provide and verify your telephone number. To create an Account, you must be a legal resident of the 50 United States (or the District of Columbia) who is at least 13 years of age and older at the time of registration, to participate in the shopkick Program. If you are younger than 18 years of age, then you need to ensure your parents’ consent because whenever a minor uses the shopkick Program, the parent or guardian of that minor will be held responsible for the minor’s actions. If you register, you will be asked to choose a password. You agree not to disclose your password to anyone else and that you will be solely responsible for any activities or actions taken under your Account, whether or not authorized by you. Please notify us immediately of any unauthorized use of your password or your Account. We are not liable for any loss or damage from your failure to comply with these requirements. You agree that the information you provide us will be true, accurate, current and complete.
2. Your Use of the shopkick Program
The shopkick Program contains text, software, scripts, graphics, information, data, pictures, sounds, music, videos, interactive features, user generated information, editorial and other content accessible by Users (“Content”). The trademarks, service marks and logos contained in the Application and/or Website are owned by or licensed to shopkick. All Content is owned, licensed to and/or copyrighted by shopkick and may be used only in accordance with this Agreement. In addition, the shopkick Application includes descriptions and potential availability of products for purchase from third parties. Shopkick cannot control these third parties and therefore quantity, selection, and price may vary by store location and online. All Content, whether protected by copyright, contract rights, or both, is provided to you AS IS for your information and use only as permitted through the functionality of the shopkick Program. We attempt to ensure that all Content is complete and accurate but despite our efforts, the Content may occasionally be inaccurate or incomplete and we make no representation that the Content is complete, accurate, reliable or error-free.
Subject to your compliance with these Terms, we grant you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download and install one (1) copy of the Application to your supported device, and access and use the Website and/or Services, solely for your own personal and non-commercial use. You may not: (i) copy, modify or distribute the Application for any purpose; (ii) transfer, sublicense, lease, lend, rent or otherwise distribute the Application or the Services to anyone else; (iii) reverse-engineer, decompile or create derivative works of the Application or the Services; (iv) make the functionality of the Website, Application or the Services available to multiple Users through any means; (v) use multiple accounts per individual User per device; or (v) use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Terms. You may not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the shopkick Program, except as expressly permitted in the Terms. No other licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by shopkick or its licensors.
If you accessed or downloaded the Application from any app store or distribution platform (like the Apple Store, Google Play or the Amazon Appstore) (each, an “App Provider”), then you acknowledge and agree that:
By using the Services, you agree to comply with the following:
(i) You will not use the shopkick Program to collect or store personal data about other users without their express permission;
(ii) You will not upload, post, email or otherwise transmit any viruses or other computer code that may interrupt, destroy, limit the functionality of the shopkick Program, or interfere with the access of any user to the shopkick Program;
(iii) You will not circumvent, disable or otherwise interfere with security related features of the shopkick Program or features that prevent or restrict use or copying of any Content;
(iv) You will not use any meta tags or other hidden text or metadata utilizing a shopkick name, trademark, URL or product name;
(v) You will not use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages contained in the shopkick Program;
(vi) You will not attempt to or actually access the Services by any means other than through the Application or other shopkick-provided platforms;
(vii) You will not attempt to probe, scan or test the vulnerability of any shopkick system or network or breach or impair or circumvent any security or authentication measures protecting the shopkick Program or the Application;
(viii) You will not attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to discover or determine the source code of any Application used to provide the shopkick Program;
(ix) You will not use the Services or Application in any way that competes with shopkick; or attempt to or acquire Kicks, bonuses, other awards or any other type of awards other than in a manner consistent with the intended use of the shopkick Program;
(x) You will not post any product review on a digital distribution platform for mobile devices (for example, iTunes App Store, Android Play Store), which includes a referral or promo code for collecting or receiving awards through the shopkick Program;
In addition, you agree to comply with the Rules contained on the shopkick Rules as well as all U.S. and foreign export laws and regulations to ensure that neither the Application nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the Application 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.
3. Earning and Redeeming Kicks and other Awards
shopkick ‘Kicks’ are similar to reward points. You may earn Kicks rewards in a variety of ways such as walking into stores, scanning certain items, scanning receipts, making purchases and as otherwise indicated the Application. Kicks or other awards may be earned in a variety of ways as specified by shopkick, including making certain purchases, scanning purchase receipts, walking into a retailer near your actual physical location, and/or scanning product codes from a participating brand when you are physically present at a retailer (collectively, Kicks and other awards are “Kicks”). Shopkick reserves the right to change, add or remove any award types, and the methods by which members can earn and redeem Kicksor other awards, for any reason and without notice to you, in its sole discretion and at any time. Below is more information on the various ways to earn and redeem Kicks:
Kicks for Walk-ins
Kicks for walking-in can only be earned by physical presence at eligible walk-in locations that are open for business and active at the time you have the application open, have cell phone network reception, are accessing the relevant pages in the application, and have Kicks available for distribution at the time. Remember that there are sometimes limits to how often you can walk into a store to earn Kicks so be sure to check the Application for the most up-to-date information. We cannot be liable for a failure to award Kicks during a walking-in experience due to a limited Kicks allocation having previously been fully distributed to other Account holders. By participating in the Kicks for walking-in program, you agree that shopkick is under no obligation to notify you when an allocation of Kicks for distribution under this program has reached a zero balance for any participating merchant, and Kicks under this program will be distributed on a “first come, first served” basis.
Kicks for Purchases
Our Kicks for Purchases program (sometimes called ‘Kicks when you buy’ or ‘Buy & Collect’ or ‘K4P’) lets you associate one or more of your credit or debit cards issued from certain card networks, stores or card issuers (each, a “Card”) with your Account using the Application, so you can be eligible to receive Kicks when you use that Card at included merchants for certain qualifying purchases (“Card Awards”). If you choose to associate a Card with your Account, we will direct you to a secure site operated or approved by the Card network or issuer on shopkick’s behalf where you will be required to provide your Card information and agree: (i) that certain transaction information from your associated Card can be shared with shopkick and (ii) to the specific terms and conditions of the other Card network or issuer, as applicable. We will use the information provided by a Card network or issuer solely to enable your participation in Kicks for Purchases by enabling redemption of offers from included merchants, sharing return information received from included merchants to enable shopkick to validate offer eligibility, award Kicks, show you your Kicks history in the app, and provide aggregated and anonymized reporting to the included merchants, and for no other purpose. The Card network or issuer will register your Card on shopkick’s behalf and will provide a non-Card number identifier with shopkick that relates to your associated Card. Card networks and issuers’ only role in Kicks for Purchases is to provide data from your associated Card to enable your participation in Kicks for Purchases. You may only associate a Card with your Account if you are a registered User of the Application who also has a verified phone number associated with your Account. You will only be awarded Kicks for qualifying purchases that are not returned. Qualifying purchases are those made with Cards linked within the Application from stores included in the Kicks for Purchases program, that do not use a Personal Identification Number (PIN) and that meet or exceed the purchase amount listed within the Application for that particular store, that are not held in default or fraudulent, and that fully comply with the shopkick Rules. Please see the stores listed in the shopkick Application for more information. Card Awards may not be used until a certain time period (for example, for returns associated with that merchant) has expired. Typically this is between 30 and 45 days, but it could be longer, as indicated in the Pending Purchase section of the Application. If you make a return, the transaction is invalidated, disputed, or does not settle for any reason, then some or all pending Kicks will be decremented from your Account, as determined and at the sole discretion of shopkick. If you make a return for cash, store credit or credit to a different credit card, we will still need to take away some or all of your pending Kicks accordingly. You may remove the Card from the Kicks for Purchases program at any time through the Application, however the Card Network or issuer may still continue to deliver shopkick information about your returns at included merchants for a limited period of time after the association has been removed to use solely for the above purposes.
Only the Card network or issuer that is operating or approving the secure site is responsible for any errors or mistakes associated with that secure site. Shopkick does not store your Card number and hence, is not responsible for any liability relating to the secure site. In addition, we, the Card networks and issuers, are not in any way liable for your use of the Card at an included merchant, any issues you might have with the included merchant or the Card issuer, or any returns or attempted returns at the included merchant. Unfortunately we, the Card networks and issuers cannot be liable for any errors or omissions in awarding the Kicks for a number of reasons, including because we cannot control the accuracy of the information we may receive from an included merchant.
Kicks When You Scan
Our Kicks When You Scan program lets you earn Kicks by using the Application’s scanning function and your phone’s or other mobile device’s camera to scan participating products’ bar codes while at the eligible store. From time to time, shopkick will announce to you the identity of participating products, as well as locations where those products might be available, via messages distributed through the Application. Each product has a limit as to how quickly and how many times you can scan it in various time periods (a day, a week, a month, etc.). You should scan items one at a time and wait some time between scans. There is also a limited number of scans per product available in total across all users of the shopkick App, and if that limit is reached, you will no longer be able to earn Kicks for scanning that product.
By participating in the Kicks When You Scan program, you agree that the shopkick Application may access your phone’s or device’s camera and that shopkick may review the scans made by your device. In addition, you agree to use the Application and the Kicks When You Scan program only for submitting scans to shopkick. You also agrees to fully follow the shopkick Rules. In specific, you agree to only scan products at the stores listed along with a respective product scan, unless you are otherwise directed to by the App. Non-compliance with the shopkick Rules can lead to your permanent exclusion from the shopkick Service or from the ability to earn Kicks. Shopkick does not guarantee that advertised products will always be available for scanning at published locations (e.g. a vendor may pull products from its shelves, a product may be out of stock, etc.), or that bar codes will always be accurate, and thus shopkick disclaims all responsibility for any failed scanning experiences or errors or mistakes occurring during a scanning attempt. Additionally, we cannot be liable for a failure to award Kicks, including due to the inaccuracy of the information we may receive from participating product manufacturers or because of a limited Kicks allocation having previously been fully distributed to other Account holders. By participating in the Our Kicks When You Scan program, you agree that shopkick is under no obligation to notify you when an allocation of Kicks for distribution under this program has reached a zero balance for any given product, and Kicks will be distributed on a “first come, first served” basis.
Kicks for …
Shopkick also provides various other ways for you to earn Kicks. For example, our Kicks for Receipts program lets you earn Kicks by using the Application’s submission function and your phone’s or other mobile device’s camera to submit receipts from purchases of select products and/or select retailers. From time to time, Shopkick will announce the actions you need to take, identity of the participating products and/or retailers, as well as locations where Kicks can be earned, via messages distributed through the Application. Each action you wish to take to earn Kicks has directions you must follow as well as limits as to when purchases or submissions must be made, and how many times you can be eligible for Kicks in various time periods (a day, a week, a month, etc.) for each action. Please note that eligibility requirements may change without prior warning.
By participating in the these programs, you agree that the shopkick Application may access information about the action you take, such as the video you watch or the survey to which you respond, or which items you have bought, and other relevant information. Shopkick may use this information to provide a more personalized experience. In addition, as applicable, you agree that the shopkick Application may access your phone’s or device’s camera and that shopkick and its vendors, partners, and clients may review the submissions made by your device. You agree to use the Application and these programs only for the actions required. shopkick cannot be liable for a failure to award Kicks, including due to errors in your mobile device or mobile network, failing to complete the actions, failure to follow the stated directions or due to the inaccuracy or illegibility of the receipt submitted. shopkick also cannot guarantee that participating products will always be available for purchase at the published locations (e.g. a vendor may pull products from its shelves, a product may be out of stock, etc.), or that the eligibility dates will not change without prior warning, and thus shopkick disclaims all responsibility for any failure to award Kicks.
Our mCommerce capability within the Application lets you earn Kicks from online purchases at included merchant websites. By using shopkick’s mCommerce capability from within the Application, in addition to our Terms you will be agreeing to terms and conditions of each applicable participating merchant, Card processor, Card network and/or Card issuer (collectively, “mCommerce Processors”). If you do not agree to all of the applicable mCommerce Processor terms and conditions, then you may not use our mCommerce capability.
You hereby agree that mCommerce transaction-related information may be shared among and between shopkick and mCommerce Processors. However, shopkick will only use such information to award Kicks, deduct Kicks, validate offer eligibility, enable offer redemption, personalize the service, and/or provide aggregated and anonymized reporting.
From time to time, there will be circumstances where shopkick does not receive valid, complete and/or otherwise sufficient data relating to mCommerce transactions. mCommerce transactions will be handled by mCommerce Processors rather than shopkick. Under no circumstances will shopkick be responsible for mCommerce Processor errors, omissions, negligence, reckless or intentional acts, privacy or publicity rights violations, and/or security breaches, including with respect to any notification obligations related thereto. Certain mCommerce transactions, or portions thereof, may not be eligible to receive Kicks, including, but not limited to, clearance items, gift cards, tax, and/or shipping & handling fees. At shopkick’s sole discretion, entire mCommerce transactions may be determined to be ineligible for Kicks, or only eligible for award of partial Kicks credit.
mCommerce awards may not be used until a certain time period (for example, for returns associated with that participating merchant) has expired. Typically this is between 30 and 45 days, but it could be longer, as indicated in the Pending Purchase section of the Application. If you make a return, the transaction is invalidated, disputed, or does not settle for any reason, then some or all pending Kicks will be decremented from your Account, as determined and at the sole discretion of shopkick. If you make a return for cash, store credit or credit to a different credit card, we will still need to take away some or all of your pending Kicks accordingly. shopkick shall not be responsible for any online shopping transactions that you make, or attempt to make, using the mCommerce capability of our Application. For any questions regarding, or issues with, any such transaction, please contact the participating merchant and/or your Card issuer directly.
Redeeming Kicks for Rewards
You may redeem Kicks and other awards for various rewards (“Rewards”) listed in the Rewards section of the shopkick Application while supplies last and/or during the time periods specified. You can select any item still available for which you have accumulated sufficient Kicks that are ready for redemption. To redeem, click the selected item and follow instructions provided, to claim the Reward. Kicks and other awards have no cash value, are not your property, cannot be sold, transferred, or assigned and may only be redeemed for Rewards offered within the shopkick Program. Kicks and other awards may be revoked at any time by shopkick. All redemptions of Kicks for Rewards are final.
Some Rewards, for example a “virtual store card,“ you may see on your mobile or other device, or for other Rewards, you may receive an email containing a unique code that you will need to present to a store sales associate to redeem your Reward. Once the code of the virtual store card is sent to you, the redemption process and the store card itself is handled by the store the card is to be used at, and shopkick is not responsible or liable for its value or the process. Emails will be sent to the email address you provide. Other Rewards may require a mailing address to ship the Rewards. You are responsible for maintaining the accuracy of your contact information in your Account. shopkick may modify the list of Rewards periodically, and reserves the right to modify the Kicks values of the Rewards at any time for any reason. shopkick is not the supplier of any Reward, and is not liable or responsible for its fulfillment or proper condition or value. Please contact the supplier of the Reward directly with any claims you may have.
Kicks can be used as soon as they are reflected in your Account balance or may be accrued over time for later use prior to expiration or forfeiture, or termination of the shopkick Program. Some Rewards may require additional time before they can be fulfilled. Refunds, exchanges and other issues regarding the redeemed item are governed by the Reward supplier’s terms and conditions applicable to the item, including any warranty, and are not the responsibility of shopkick. Restrictions may apply to certain Rewards and the terms specific to the Rewards are disclosed through the Application. Merchants participating in shopkick are subject to change at any time. You are responsible for the payment of any applicable taxes that may result from Rewards received as part of the shopkick Program. Rewards pictured on the shopkick Application may not necessarily reflect exact colors or models of actual Rewards due to model variations and/or manufacturer’s updates.
Merchandise rewards that are not available to be claimed in-store or within the Application will be shipped via U.S. mail (or other carrier at the discretion of shopkick) within six to eight weeks from date of Reward redemption. Merchandise can only be shipped to approved U.S. shipping locations. Some merchandise Rewards require a street address for shipment. shopkick reserves the right to substitute merchandise of equal or greater value in place of unavailable merchandise, or to refund Kicks that were redeemed for unavailable merchandise. All shopkick Program Rewards are provided “as is” without warranty of any kind, either express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose or non-infringement.
To redeem Kicks for Rewards, you agree to comply with all applicable laws and to abide by the shopkick Rules. shopkick expressly reserves the right to retroactively reverse any rewards or benefits granted to you for any prohibited conduct or violation of the Terms; you agree to provide your full cooperation and prompt repayment under such circumstances.
If you believe that Kicks or other awards were not properly accrued to your account, please notify shopkick by using the “Contact Us” form on the website within 30 days of when you think the error occurred. Allow 30 days for any claims to be researched and corrected as needed. shopkick’s determination will be final. Unfortunately we cannot guarantee that Kicks or other awards you believe should have been accrued can be credited to you later, if shopkick cannot determine the precise location you were in, or the action you took on the shopkick Application or at a store, at the time when you believe the Kicks or other awards should have been credited. Among other reasons, technical problems with a walk-in or scanning system or verification of transaction information may result in your action not being detected or verified accurately by the shopkick Application. While we try to prevent that from happening, neither we nor our affiliates or business partners can be held liable for your inability to accrue Kicks or other awards in such event.
4. User Generated Content
Certain portions of the shopkick Program may allow you to post or upload text, graphics, images (such as scans or receipts), and other content for display or publication (“User Content”). By submitting User Content to shopkick, you hereby grant shopkick a worldwide, royalty-free, sublicenseable and transferable license to use, reproduce, distribute copies of, prepare derivative works of, display, and perform publicly the User Content in connection with the shopkick Program and shopkick’s business, including, without limitation, for promoting and redistributing part or all of the shopkick Program in any media formats and through any media channels. Any User Content that you submit via the shopkick Program may be viewed by, and shared with, other people, for example, on third party social networks like Facebook, based on the settings you select for your Account. In addition, any feedback, comments and suggestions you may provide for improvements to the Website, Application or Services (“Feedback”) will be the sole and exclusive property of shopkick and you hereby irrevocably assign to shopkick all of your right, title, and interest in and to all Feedback.
When submitting User Content, you agree not to: (i) submit material that violates anyone else’s proprietary rights, including intellectual property rights and privacy, confidentiality and publicity rights, or can be considered spam or junk mail; (ii) knowingly publish false or inaccurate information; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements, “pyramid schemes,” chain letters or other solicitations; or (v) impersonate another person. In addition, you agree to abide by the shopkick Rules located at anytime you access the Website or Application.
shopkick does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with any User Content. We reserve the right to decide whether User Content is appropriate and complies with these Terms, and may remove such User Content and/or terminate your access for uploading material in violation of the Terms at any time without prior notice. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting publishing or otherwise making available User Content or other materials that are believed to violate the Terms.
Our Copyright Policy.
Shopkick respects copyright law and expects its Users to do the same. While we cannot preview or monitor the User Content, we may apply, at our discretion, automated filtering tools monitor and/or delete any content that we believe to be in violation of this Agreement (for example, we could use automated tools to suppress obscene content). We reserve the right, but do not have the obligation, to act expeditiously to remove or disable access to any User Content that we believe violates this Agreement. We are also sensitive to the copyright and other intellectual property rights of others. For complaints regarding copyright infringement or illegal content, click here.
You may terminate your Account at any time and for any reason by deleting your account via the Application or by sending shopkick an email notice with the subject line “please cancel my shopkick membership” to email@example.com and requesting to be removed from the shopkick Program. By canceling your shopkick membership, your Account will be terminated and may no longer be accessible, and all Kicks and other awards immediately forfeited. Any termination request will be handled within 30 days of receipt of such a request by shopkick.
We may immediately terminate your Account or suspend your access to the shopkick Program and remove any material (including any User Content provided by you) from the Website, Application or our servers, in the event that you breach the Terms or for other improper conduct, at our sole discretion and without prior notice to you. As a result of any such termination, we may disqualify you from future participation in any of our programs, Services or the shopkick Program. Any suspension, termination or cancellation will not affect your obligations to shopkick under the Terms (including but not limited to ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.
Upon termination, all licenses and other rights granted to you under the Terms will immediately cease, and you will forfeit all Kicks and other awards accrued. We will not be liable to you or any other person for termination of your Account or suspension of your access to the Services. Upon any termination or suspension, any information (including User Content) that you have submitted to the Services may no longer be accessed by you. Furthermore, we will have no obligation to maintain any information stored in our database related to your Account or to forward any information to you or any other person.
NOTE: WE MAY DEEM YOUR ACCOUNT INACTIVE IF YOU HAVE NOT ACTIVELY USED THE APPLICATION FOR 180 DAYS OR MORE. ONCE YOUR ACCOUNT IS DEEMED INACTIVE, YOUR ACCOUNT MAY BE TERMINATED AND ANY OR ALL KICKS AND OTHER AWARDS WITHIN YOUR ACCOUNT MAY BE FORFEITED, WITHOUT NOTICE AND AT SHOPKICK’S SOLE DISCRETION. SIMILARLY, IF KICKS ARE NOT USED OR REDEEMED WITHIN 180 DAYS AFTER THEY ARE AWARDED, ALL SUCH UNUSED KICKS MAY BE SUBJECT TO A FORFEITURE, AT SHOPKICK’S SOLE DISCRETION.
6. Communications between shopkick and You
Some Messages you may receive are via your telephone. For example, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you outside or inside the Application. For calls or text messages to the cellular phone number you provide, by agreeing to these Terms and by providing consent when asked, you authorize shopkick to send texts or calls to your phone using an autodialer or a prerecorded voice. We may also offer you the opportunity to invite your friends or contacts to download the shopkick Application and enjoy the Services. You may invite one or more of your friends or contacts using text messaging (SMS), email, Facebook and other forms of communications. Depending on your phone’s functionality, we may suggest content for the message and you can edit that suggested content. If you choose to send invitations you represent to shopkick that the recipients of such invitations have consented to receive such messages from you, and that those recipients do not consider such messages unwanted or unsolicited, and that you made the active choice to send these invitations. In general, you have control over the settings for types of Messages and can opt in or out of these via the shopkick Program or through the phone’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Shopkick is not responsible or liable for sending any invitation messages; these are expressly sent by you should you choose to make invitations. Please be aware that messaging fees may apply depending on the message plan you have with your wireless carrier.
7. Modifications to this Agreement
We reserve the right, in our sole discretion, to modify, discontinue or terminate any or all of the shopkick Program, or modify the Terms at any time. For example, we reserve the right to charge a fee for using the Services. Changes will be posted on the Website, Application, via a Message, and by changing the date of last revision on this Agreement. All modified terms and conditions will be immediately effective as of the date the modified Terms are posted, or as quickly as permitted, and will apply to all Users regardless if you created an Account or not. If any portion of this Agreement or any change to the Terms, Website, Application or shopkick Program is unacceptable to you or will cause you to no longer be in compliance with the Agreement, you must cease using the Services and, if applicable terminate your account. As indicated herein, if you choose to opt out of the Services, shopkick may forfeit any or all Kicks and/or other awards in your Account after the prior notice period. By continuing to access or use the shopkick Program after the changes are effective, you agree to be bound by such changes.
8. Liability Disclaimer, Limitation of Liability and Indemnity
WE MAKE NO EXPRESS WARRANTIES OR REPRESENTATIONS AS TO THE QUALITY AND/OR ACCURACY OF THE CONTENT, APPLICATION, WEBSITE OR SERVICES, AND WE EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES, CONDITIONS AND/OR REPRESENTATIONS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW. WE OFFER THE CONTENT, APPLICATION, WEBSITE, SERVICES AND SHOPKICK PROGRAM ON AN “AS IS” BASIS AND DO NOT ACCEPT RESPONSIBILITY FOR ANY USE OF OR RELIANCE THEREON, OR FOR ANY DISRUPTIONS TO OR DELAY IN YOUR USE OF EACH. IN ADDITION, WE DO NOT MAKE ANY REPRESENTATIONS AS TO THE ACCURACY, COMPREHENSIVENESS, COMPLETENESS, QUALITY, TIMELINESS, ERROR-FREE NATURE, COMPATIBILITY, SECURITY OR FITNESS FOR PURPOSE OF THE CONTENT, APPLICATION, WEBSITE, SERVICES OR SHOPKICK PROGRAM. SHOPKICK DOES NOT GUARANTEE THE ADEQUACY OF THE CONTENT, APPLICATION, WEBSITE, SERVICES AND SHOPKICK PROGRAM OR COMPATIBILITY THEREOF TO YOUR COMPUTER EQUIPMENT, MOBILE DEVICES, OR ENVIRONMENT AND DOES NOT WARRANT THAT THE CONTENT, APPLICATION, WEBSITE, SERVICES AND SHOPKICK PROGRAM, THEIR SERVERS, OR ANY MESSAGES WHICH MAY BE SENT FROM SHOPKICK ARE FREE OF VIRUSES OR ANY OTHER HARMFUL COMPONENTS.
Limitation of Liability.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE LIMIT OUR LIABILITY. IN PARTICULAR, WE SHALL NOT BE LIABLE FOR ANY DAMAGES THAT WE CAUSE UNINTENTIONALLY AND WE SHALL NOT BE LIABLE TO YOU FOR ANY ACTUAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED, PROVIDED THAT NOTHING IN THIS AGREEMENT WILL BE INTERPRETED SO AS TO LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW. FOR EXAMPLE, WE SHALL NOT BE LIABLE TO YOU FOR ANY OF THE FOLLOWING TYPES OF DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE (WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE, KNOWN OR OTHERWISE): (I) LOSS OF REVENUE; (II) LOSS OF ACTUAL OR ANTICIPATED PROFITS; (III) LOSS OF THE USE OF MONEY; (IV) LOSS OF ANTICIPATED SAVINGS; OR (V) LOSS OR CORRUPTION OF, OR DAMAGE TO, DATA, SYSTEMS OR PROGRAMS. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW EXCLUSIONS AS BROAD AS THOSE STATED ABOVE OR LIMITATIONS OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY, IN WHOLE OR IN PART, NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE CONTENT, APPLICATION, WEBSITE, SERVICES AND ANY SHOPKICK PROGRAM, OR WITH ANY CLAUSE OF THESE TERMS, AS YOUR SOLE AND EXCLUSIVE REMEDY YOU MAY DISCONTINUE USING THE SHOPKICK PROGRAM. ALTHOUGH WE WILL NOT BE LIABLE FOR YOUR LOSSES CAUSED BY ANY UNAUTHORIZED USE OF YOUR ACCOUNT, YOU MAY BE LIABLE TO OTHERS AS WELL AS TO US IF YOUR ACCOUNT IS USED IN VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IN NO EVENT WILL SHOPKICK’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SHOPKICK PROGRAM OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO SHOPKICK FOR USE OF THE SERVICES OR CONTENT OR TWENTY DOLLARS ($20 USD), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO SHOPKICK, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SHOPKICK AND YOU.
You agree to defend, indemnify and hold harmless shopkick, its affiliates, officers, directors, employees and agents from and against any and all claims, damages, obligations, losses, liabilities, costs or expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Content, Application, Website, Services and shopkick Program; (ii) your violation of any term of this Agreement; (iii) your violation of any third-party right, including without limitation any copyright, property, privacy or confidentiality right; or (iv) any claim that your User Content caused damage to a third party. This defense and indemnification obligation will survive this Agreement and your use of the Content, Application, Website and Services.
The shopkick Application includes descriptions and potential availability of products available for purchase from third parties. Shopkick cannot control these third parties and therefore quantity, selection, and price may vary by store location and online. shopkick may, from time to time, provide opportunities to Users to use or purchase services from third parties. Websites of those third parties are subject to terms and conditions different from those applicable to the shopkick Program and it is your responsibility to ensure that you have read and understood them. SHOPKICK MAKES NO WARRANTY CONCERNING, IS NOT RESPONSIBLE FOR AND DOES NOT ENDORSE ANY THIRD PARTY PROVIDED GOODS OR SERVICES (INCLUDING GOODS OR SERVICES PURCHASED OR EARNED AS A KICK OR OTHER AWARD THROUGH THE SHOPKICK PROGRAM), and you agree that any recourse for dissatisfaction or problems with those goods or services will be sought from the third party provider and not from shopkick.
9. Governing Law; Disputes
By using the Content, Application, Website or Services, you agree that the Federal Arbitration Act, applicable federal law, and the law of the State of California, without regard to its principles on conflicts of laws, will govern these Terms, your use of the Content, Application, Website and Services, and any dispute of any sort that might arise between you and shopkick.
If a dispute arises between you and shopkick, our goal is to provide you a neutral and cost effective means of resolving the dispute quickly. To that end, you agree to first contact shopkick Customer Support by via the contact information below to describe the problem and seek a resolution. If that does not resolve the issue, then you and shopkick agree that any dispute or claim relating to your use of the Content, Application, Website and Services will be resolved through binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. In addition, you and shopkick both agree that either party may bring suit in court to enjoin infringement or other misuse of intellectual property rights. If for any reason a claim proceeds in court rather than in arbitration, you and shopkick each waive any right to a jury trial.
You and shopkick agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class, consolidated, or representative action. Further, unless both you and shopkick agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding the foregoing, this arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. This entire arbitration provision shall survive termination of this Agreement and the termination of your shopkick membership(s).
To begin an arbitration proceeding, you must send a certified letter requesting arbitration and describing your claim to shopkick Legal Department, shopkick, Inc., 900 Middlefield Road, Redwood City, CA 94063. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the AAA, as modified by this Agreement (collectively, “AAA Rules”). The AAA Rules and costs are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The parties will select an arbitrator, a retired judge or an attorney licensed to practice law from the AAA’s roster of arbitrators; and if unable to agree, will appoint an arbitrator in accordance with AAA Rules
Arbitration Location and Procedure
Unless you and shopkick otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and we submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We will not seek, and hereby waive all rights we may have under applicable law to recover, attorneys’ fees and expenses if we prevail in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, We will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Modification to this Agreement” section above, if we change this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org). within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any dispute between you and us in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms)
Assignment. We reserve the right to assign or transfer our rights and obligations under this Agreement. These terms are personal to you and, as a result, you may not, without the written consent of shopkick, assign or transfer any of your rights and obligations under this Agreement. There shall be no third-party beneficiaries to this Agreement.
Severability. In the event that any term of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the remainder of these terms shall remain valid and enforceable. We can replace any term which is not valid and enforceable with a term of similar meaning which is valid and enforceable.
Waiver. Any failure by us to enforce any of the terms of this Agreement shall not affect our right to require performance at any subsequent time, nor shall the waiver by us of any breach by you of any provisions of these terms be taken to be a waiver of the provision or provisions itself.
Complete Agreement. This Agreement, including any terms, conditions and policies expressly referenced herein, together with any legal notices published on the Websites, shall constitute the complete understanding and agreement between you and us, and shall supersede and cancel any prior or contemporaneous understandings and agreements, except as expressly provided otherwise by shopkick.
11. Contact Us
If you have any questions or comments, or would like to discuss your subscription with our Customer Support staff, please contact us via the following information:
If you have any questions about the Terms, please contact us at email@example.com.
We hope you will enjoy using shopkick.
Last updated as of: November 16, 2015