GENERAL WEBSITE TERMS OF SERVICE AGREEMENT

Last updated on June 15, 2021
 
1. General Terms

This General Website Terms Of Service (the “General Terms” or “Agreement”) serves as a legal agreement between OBSERVATI LLC, a Delaware limited liability company (“OBSERVATI,” “we”, “us”, or “our”) and you (“you”, “your” or “user”) and governs your basic use of OBSERVATI.com and/or any of our social media page (collectively or individually, the “Site”). There are separate terms of services for Shoppers who would like to participate in our OBSERVATI Shopper Program, as well as businesses who would like to hire us to collect reviews; however, these General Terms will still apply unless they directly conflict with any applicable specific terms for Shoppers or business.  The Shopper Program Terms are located here.
By accessing or using the Site, you are agreeing to be bound by these General Terms, which includes our Privacy Policy. If you do not agree with any of these General Terms, you are prohibited from using or accessing the Site. We may amend General Terms at any time without specific notice to you. The latest version of these General Terms will be posted on the Site. You acknowledge and agree that you will review these General Terms for any updates each time before using the Site, and that you will be bound by these General Terms by continuing to use the Site.  

2. Ownership and Use of Intellectual Property

All text, information, graphics, pictures, images, logos, designs, code, layouts, audio, video, and data included on the Site are collectively known as our “Content,” which is owned by us or licensed to us by third-parties. You agree that you have no rights in or to such Content and you agree, as a matter of contract, and regardless of any potentially permitted “fair use” or other legal doctrines, you will not copy, sell, license, retransmit, reproduce, publish, create derivative works based upon, or otherwise transmit, any Content, except as specifically permitted under a signed, written agreement between OBSERVATI and you. Unless specifically stated otherwise on the Site, or we give you written permission, you shall not use and access, download and copy any Content.

Our name, logos, or trademarks appearing on the Site may not be used in any advertising or publicity or otherwise to indicate our sponsorship of or affiliation with anyone without our prior express written permission or as granted by specific terms and conditions of other documents defining a relationship between OBSERVATI and you. As a matter of contract, you agree, represent and warrant that you are prohibited from using any names, marks or other materials in a manner that is likely to cause confusion or dilute or damage the reputation or image of OBSERVATI. You agree you will not alter any Content in any manner to make it appear that we are endorsing, sponsoring, authorizing or affiliated with you or any third-party, except as expressly permitted in writing by OBSERVATI.

3. User Restrictions

You acknowledge, agree, warrant and represent as follows:

You will use the Site in a manner consistent with any and all applicable laws and regulations.

You will not insert or cause to be inserted any HTML, JavaScript, PERL, or any other form of computer code into any user account data field on the Site or into any webpage on the Site.

You will not upload, or cause to be uploaded, on the Site viruses or other similar malicious code.

You will not engage in any conduct, or assist a third party who engages in conduct, that could disable, overburden, or impair the proper working of the Site, such as a denial of service attack.

You will not use the Site or engage in any conduct or action related to the Site, unless the use, conduct or action is clearly permitted, either expressly by these General Terms or the intended use and purpose of the Site.

You will not access, monitor or copy any Content or information using any manual or automated process including by robot, spider, scraper for any purpose without express written permission from OBSERVATI.

4. Social Media Groups and Communities

 We may establish social media groups or communities (collectively, “Groups” or individually, a “Group”) to be utilized in conjunction with a particular service and/or to exist completely independent of any service.  You acknowledge and agree that we retain the sole and absolute discretion to (1) adopt or utilize any such social media groups in the provision of any service or independently therefrom; (2) ban, restrict or block access to any Group for any reason; and (3) establish and/or enforce a code of conduct for any Group.  

5. Links

As a courtesy to users, we may provide links to other websites or resources owned and operated by third parties. We have no control over such websites and resources; therefore, you acknowledge and agree we are not responsible for the availability of such external websites or resources and are not responsible or liable for any content, advertising, products, services or other materials on or otherwise made available via such websites or resources. You further acknowledge and agree we shall not be liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with the use of or reliance on, any such content, goods or services.

6. Minimum Age Required

You must be at least 16 years of age to use this; however, you may not participate in the OBSERVATI Shopper Program unless you are at least 18 years of age.

7. Right to Terminate and/or to Block Access

We reserve the right to terminate, block or restrict your access to, or use of, the Site for any breach or suspected violation of any provision of these General Terms. In such an event, we restrict, suspend or terminate your access to and use of the Site immediately and without notice or liability, with or without cause, and it will not limit any other rights or remedies which are available to us. You may terminate this agreement by providing us with written notice of your termination and ceasing to use and access the Site. Unless specifically and expressly stated otherwise, termination is your sole right and exclusive remedy under these General Terms. Upon the effective date of any such termination, your right to access and use the Site shall immediately cease.

8. Disclaimer of Warranties

WE DO NOT WARRANT OR GUARANTEE UNINTERRUPTED ACCESS TO THE SITE, OR ANY WEBSITE LINKED TO THE SITE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THIS SITE, ANY INFORMATION ON THIS SITE AND/OR ANY SERVICES PROVIDED THROUGH THIS SITE.

Unless specifically and expressly stated otherwise, WE PROVIDE ANY AND ALL SERVICES ON AN “AS IS” BASIS AND GRANT NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

We do not guarantee, in any manner whatsoever, the accuracy, completeness, or usefulness of any information or Content on the Site. You agree, warrant and represent that OBSERVATI is not responsible for the accuracy or reliability of any opinion, advice or statement made on the Site, and under no circumstances will OBSERVATI be responsible for any loss or damage resulting from your use of or reliance on the information or Content made available through the Site. The Content appearing on the Site could include technical, typographical, or photographic errors. We do not warrant that any of the Content on the Site is accurate, complete, or current. We may make changes to the Content on our Site at any time without notice; however, we are not obligated, and do not make any commitment, to update any Content.


9. Limitation of Liability and Release

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE, NOR OUR OWNERS, SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER FORM OF DAMAGES IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, YOUR USE OF THE SITE OR ANY SERVICES, REGARDLESS IF CAUSED BY OUR NEGLIGENCE OR GROSS NEGLIGENCE AND REGARDLESS OF THE FORM OF ACTION, THE BASIS OF THE CLAIM, OR WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN THE EVENT YOU HAVE ANY DISPUTE WITH ONE OR MORE THIRD PARTIES AS A RESULT OF YOUR USE OF THE SITE OR THE SERVICES, OR ARE IN ANY WAY DAMAGED AS A RESULT OF ANY THIRD PARTY IN CONNECTION THEREWITH, YOU HEREBY RELEASE AND COVENANT NOT TO SUE OR OTHERWISE MAKE A CLAIM, DEMAND OR FILE ANY LEGAL ACTION OR INSTITUTE ANY LEGAL OR REGULATORY PROCEEDINGS AGAINST US, OUR OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, OR ATTORNEYS FOR ANY CLAIMS, ACTIONS, DEMANDS OR DAMAGES (WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL), OF WHATEVER KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, WHETHER FORESEEABLE OR NOT, DISCLOSED OR UNDISCLOSED.

THE TOTAL AGGREGATE LIABILITY OF STCKR UNDER THIS AGREEMENT, WHETHER ARISING OUT OF BREACH OF CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY) OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT YOU ACTUALLY PAID TO OBSERVATI UNDER THIS AGREEMENT. IN JURISDICTIONS WHERE LIMITATIONS ARE PROHIBITED, THE MAXIMUM DAMAGES SHALL NOT EXCEED THE STATUTORY LIMIT.

IF YOU ARE A CALIFORNIA RESIDENT THEN BY ACCEPTING THIS AGREEMENT YOU ARE WAIVING CALIFORNIA CIVIL CODE SECTION 1542 WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR”.

10. Indemnity

You agree to defend, indemnify and hold us harmless against any losses, expenses, costs or damages (including our attorneys’ fees, expert fees’ and other costs of litigation) arising from, incurred as a result of, or in any manner related to any claim or action based upon your breach of any of these General Terms or your use of the Site. We may, if necessary, participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement that may adversely affect our rights or obligations shall be made without our prior written approval. We reserve the right, at our own expense and upon notice to you, to assume exclusive defense and control of any such claim or action and then your corresponding obligation to defend will end; however, your duty to indemnify shall continue.

11. Governing Law

This Agreement shall be governed in accordance with the laws of the State of Utah, USA, notwithstanding any conflict-of-law provisions to the contrary.

12. Waiver of Jury Trial

You hereby irrevocably waive your right to trial by jury in any action or proceeding arising out of this Agreement or the transactions relating to its subject matter.

13. Jurisdiction; Disputes; Arbitration

 With the exception of OBSERVATI claims against you relating to intellectual property or injunctive relief, all disputes and claims relating to these General Terms or any other agreement entered into between the parties, the rights and obligations of the parties, or any other claims or causes of action relating to the making, interpretation, or performance of either party under this Agreement, shall be settled by arbitration in Salt Lake City, Utah, in accordance with the Federal Arbitration Act and the Arbitration Rules of the American Arbitration Association (“AAA”). Once a written demand for arbitration is made by a party, the other party shall respond to the demand within ten (10) business days; failure to respond will permit the demanding party to seek resolution through the applicable courts located Salt Lake City, Utah. However, in the event the non-responding party attempts to subsequently participate in the court litigation, the demanding party, at its election, may compel the matter to be arbitrated in accordance with these General Terms. To the extend a party attempts to contest the enforceability of this arbitration provision, arbitrability will be decided by the arbitrator, and the parties hereby waive any statutes that appear to state that a party may contest arbitrability based upon grounds available in law or in equity for the revocation of any contract. Neither party shall pursue class claims and/or consolidate the arbitration with any other proceeding to which OBSERVATI is a party. Each party must bear its own costs of arbitration; provided, however, that all arbitration fees shall be initially shared equally by the parties. Any failure to equally share arbitration fees prior to the issuance of an arbitration award shall be considered a default and shall permit the non-defaulting party to move for judgment by default, which shall be awarded unless the default is cured within five (5) business days. The arbitrator’s award shall include all arbitration fees, costs and attorneys’ fees for the prevailing party. The arbitrators shall have no authority to amend or modify these General Terms. Judgment upon the award of the arbitrator shall be submitted for confirmation to the United States District Court for the District of Utah and, if confirmed, may be subsequently entered in any court having competent jurisdiction. This agreement to arbitrate shall survive any termination or expiration of these General Terms.

 Notwithstanding the foregoing, OBSERVATI's claims against you relating to intellectual property or injunctive relief may be litigated in the applicable courts located in Salt Lake City, Utah, and the parties expressly waive any objections to such jurisdiction and venue and irrevocably consent and submit to the personal and subject matter jurisdiction of such court in any action or proceeding. In the event you participate in the court litigation by asserting any defense and/or claim, OBSERVATI, at its election and while continuing to seek injunctive relief from the Court, may compel all other matters, not pertaining to OBSERVATI's pursuit of injunctive relief against you, to be arbitrated in accordance with these General Terms. These General Terms and/or any court order or judgment arising out of or related hereto shall be enforceable in every state and worldwide.  Furthermore, you specifically agree, warrant and represent that neither these General Terms nor any performance hereunder in any way constitutes the conducting of business by OBSERVATI in any location other than Salt Lake City, Utah, and indeed agree that OBSERVATI's is not carrying on business in any jurisdiction other than the state of Utah.

14. Class Action Waiver

 You hereby agree to waive any class action proceeding or counterclaim against OBSERVATI, its affiliates, successors or assigns, whether at law or equity, regardless of which party brings suit. This waiver shall apply to any matter whatsoever between the parties hereto which arises out of or is related in any way to these General Terms or your use of the Site.

15. Our Non-exclusive Remedies

In the event of a breach or threatened breach by you of any of these General Terms pertaining to intellectual property or unauthorized use of the Site, you hereby consent and agree that OBSERVATI shall be entitled to obtain, as a matter of right hereby granted, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that monetary damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages or other available forms of relief. Upon the issuance of any injunctive relief, OBSERVATI shall be entitled to recover from you, as part of the its costs, reasonable attorneys’ fees, the amount of which shall be fixed by the court and shall be made a part of any award or judgment rendered (regardless of whether or not the matter is contested).

16. Attorneys’ Fees and Costs

If any arbitration, proceeding or action shall be brought to recover any amount under this Agreement, or for or on account of any breach hereof, or to enforce or interpret any of these General Terms, the prevailing party shall be entitled to recover from the other party, as part of the prevailing party’s costs, reasonable attorneys’ fees, the amount of which shall be fixed by the court and/or arbitrator, and shall be made a part of any award or judgment rendered (regardless of whether or not the matter is contested).

17. Assignability

This Agreement is personal to you and you may not assign this Agreement or the rights and obligations hereunder to any third party.

18. Waiver

No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.

19. Severability; Construction

If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement. The language in all parts of this Agreement will be construed as a whole according to its fair meaning and not strictly for or against any party.  Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement or any amendments hereto.  

20. Survival of Terms

Any provision of this Agreement which by its nature may survive the termination of this Agreement shall survive such termination, including, but not limited to, the intellectual property rights provisions set forth herein.

21. Limitation on Actions

 You agree that any claim or defense arising out of or related to the use of the Site, or otherwise relating to these General Terms, must be brought or asserted by you within one (1) year after the action or inaction occurred that gave rise to such claim or defense or will be forever barred, regardless of any statute of limitations, time of discovery statute or rule, savings statute, tolling statute or doctrine, equitable doctrine, or other theory that may be used to extend the time in which a claim or defense can be asserted.  This limitation provision shall not apply to OBSERVATI claims or defenses asserted against you and/or any related third-party.

22. Force Majeure

SecretShoppr shall not be responsible for, or be considered in breach or default of this Agreement, on account of any failure to perform or delay in the performance of any obligation hereunder caused by the death or disability of a member of OBSERVATI, an act of God, fire, war, act of terrorism, insurrection, riot, labor disturbance (including strike and lockout), equipment malfunction, computer hacker, cut  wire  or  fiber, governmental regulation or interference or other events  not within the reasonable control of  OBSERVATI, regardless of whether such events or interference could or should have been foreseeable.

23. Contact

Any inquires or concerns should be sent to hello@observati.com.