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Embark Offer terms

EFFECTIVE DATE: Feb 09, 2018

By participating in Embark Offer Referral Program (the “Program), you (“You”) agree to enter into these Offer Terms with Embark. Your participation in the Program is also subject to your consent to be bound by the Talkable Referral Program Terms of Service (below), which are entered into by and between You and Curebit Inc. d/b/a Talkable (“Talkable”).

The Program allows You to share an offer (“Offer”) by using a personalized link that You share with your friends (“Friends”). The link will allow your Friends to obtain an online coupon code (“Reward Code”) that they can redeem on their first merchandise order from the Embark online store.

Subject to these Terms and Conditions (“Terms”), when your Friend uses your active personalized link to make his or her first merchandise purchase from Embark online store (a “Qualifying Purchase”), You will earn a reward code that You can use in a future order from Embark (the “Reward Code”). To qualify for a Reward Code, the Friend must be a new customer to Embark, but there is no requirement that You be a new customer. Reward Codes ordinarily are distributed via email after the completion of a Qualifying Purchase. Reward and Reward Codes are promotional in nature and can only be used for purchases made on Embark website. You may not earn more than 20 Reward Codes in 30 days or more than 100 Reward Codes in total. You may earn only one (1) Reward Code per Friend, regardless of the number of purchases that your Friend makes. Reward Codes cannot be combined with other discount codes in a single order. To receive multiple Reward Codes, You must introduce multiple Friends who make a Qualifying Purchase using your active personalized referral link. You cannot refer yourself to earn a Reward Code and purchases by Friends who share your email address, billing address or shipping information will not qualify for a Reward Code. When sharing Reward Codes, You agree that You will always tell your Friends that You will receive a reward from Embark if they make their first Qualifying Purchase using your link.

Embark reserves the right to refuse to issue or redeem a Reward Code to You or your Friends at any time. Further, Embark reserves the right, in its sole discretion, to (i) vary any and all elements of an Offer at any time without notice to you and (ii) to prevent any individual from participating in this or future promotions. An Offer cannot be applied to previous purchases and is not redeemable for cash. If Embark participates in a Loyalty Program and you create a Loyalty Program account after referring a Friend, you may receive a different reward instead of a Reward Code.

You understand and agree that these Offer Terms are solely between You and Embark. You further understand that Talkable solely provides services that facilitate your ability to participate in the Program and share our offers with your Friends (as that term is defined below). Talkable is not involved in any decision pertaining to any particular Offer, including but not limited to the terms of such Offer, and who may or may not redeem Reward Codes (as that term is defined below). AS SUCH, YOU UNDERSTAND AND AGREE THAT TALKABLE IS NOT LIABLE FOR ANY DAMAGES YOU MAY SUFFER AS A RESULT OF PARTICIPATING IN THE PROGRAM, INCLUDING BUT NOT LIMITED TO YOUR INABILITY TO OBTAIN OR REDEEM ANY REWARD CODES.

TALKABLE REFERRAL PROGRAM

TERMS OF SERVICE

EFFECTIVE DATE: Feb 09, 2018

1. INTRODUCTION

Thank you for using Talkable! These Terms of Service (“Terms”) cover your rights and obligations relating to your access and use of the Talkable website, your participation in the Talkable Referral Program (as defined below), and any other related services provided by us (collectively, the “Service”). All references to “we”, “us”, “our”, or “Talkable” refer to Curebit Inc., d/b/a Talkable, a Delaware corporation. All references to “Advocate” refer to the person referring a particular merchant offer, discount, or perk (the “Offer”) All references to “Friend” refer to the party receiving the Advocate’s referral of the Offer. All references to “you”, “your”, or “user” refers to all users of the Talkable Referral Program, whether they are Advocates or Friends. In addition to these Terms, please review the Talkable Privacy Policy which describes our practices related to collection and use of your information to provide the Service. These Terms apply to our Privacy Policy as well and both these Terms and our Privacy Policy comply with the requirements of the EU General Data Protection Regulation (“GDPR”). By using the Service, you represent and agree that you have read, understand, and agree to be bound by both these Terms and our Privacy Policy as binding agreements.

PLEASE CAREFULLY READ THESE TERMS, AS THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND RESPONSIBILITIES, INCLUDING LIMITATION OF OUR LIABILITY AND BINDING ARBITRATION. IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICE.

Do not hesitate to contact us at platform@talkable.com if you have any questions or want to discuss these Terms.

2. AGE POLICY; PERMITTED USERS

The Service is not intended to be used by children under 16 years of age. By using the Service, you represent to Talkable that you are over 16 years old and that you are legally able to enter into this Agreement. We do not knowingly collect or solicit personally identifiable information from anyone under 16; if you are under 16, please do not use or attempt to use the Services or send any personal information about yourself to us. If we learn we have collected personal information from anyone under 16, we will delete that information as quickly as possible. If you believe that a child under 16 may have provided us personal information, please contact us at platform@talkable.com.

3. PERMITTED USE OF THE SERVICE

You may only use the Service for its intended purpose. You may not use the Service for any other purpose. Any non-permitted use of the Service, as determined in our sole discretion, shall be grounds for immediate termination of these Terms and immediate termination of your use of, and access to, the Service.

4. OVERVIEW OF THE SERVICE

Talkable allows Advocates the opportunity to refer Friends (the “Talkable Referral Program”) Offer to try the goods and/or services of Embark (the “Merchant”). In order to participate in the Talkable Referral Program, an Advocate may be required to provide us with certain Personal Data, which may include his or her name and email address. The Advocate will have the ability to share the Offer with a Friend, and this can be done in various ways, including sharing the Offer through Facebook or emailing the Offer to your Friend. Once the Offer is received by your Friend(s), your Friend(s) will have the ability to accept the Offer to purchase the Merchant’s goods and/or services. The Offer is subject to the Embark Offer Terms. You understand and agree that the Embark Offer Terms are entered into by and between you and the Merchant and that Talkable is not a party to the Embark Offer Terms.

You understand that the terms of a particular Offer are governed by the Embark Offer Terms, which may contain restrictions imposed by the Merchant, including without limitation, a minimum spend, limits on how many times or to how many Friends an Advocate may refer an Offer, and expirations on when the Offer may be claimed. You further understand that Talkable is in no way involved in any decision pertaining to any particular Offer, including but not limited to the terms of such Offer and who may or may not redeem Referral Codes (as that term is defined below). As such, you understand and agree that Talkable is not liable for any damages you may suffer as a result of participating in the Program, including but not limited to your inability to obtain or redeem any Reward Codes. The Talkable Referral Program is subject to modification or termination at any time without notice in our sole discretion.

5. INFORMATION TALKABLE SHARES WITH THE MERCHANT

A core aspect of the Service is to provide Advocates and Friends the best discounts and perks our merchants’ offers. To that end, Talkable will allow the Merchant to access the Personal Data of Advocates and Friends to facilitate the provision of the Offer and related services surrounding the Talkable Referral Program. While the Merchant’s use of your Personal Data is beyond our control, by agreeing to these Terms and our Privacy Policy, you do consent to Talkable sharing your Personal Data with the Merchant to provide you with the services of the Talkable Referral Program. Further, you understand that the Merchant may not have appropriate technical and organizational safeguards in place for your Personal Data, including (1) being in a country that has adequate data privacy protections (as determined by the European Commission); (2) having in place Binding Corporate Rules; (3) being certified under the EU-US and Swiss-US Privacy Shield programs; and/or (4) having Data Processing Agreements that incorporate Standard Contractual Clauses approved by the European Commission. The Merchant may be in countries that the European Commission has determined do not provide for an adequate level of data protection to meet the requirements under the GDPR. If the Merchant does not have appropriate technical and organizational safeguards, you understand that there might be certain risks affecting your Personal Data, including but not limited to the fact there might not be a supervisory authority, data processing principles, and/or data subject rights in such countries that protect your Personal Data in the same way and to the same extent the principles and standards of the GDPR might. You agree that your consent to the above is our lawful basis under the GDPR for transferring your Personal Data to the Merchant.

6. LIMITATIONS ON USE OF THE SERVICE

You are prohibited from violating or attempting to violate any security features of the Service, including, without limitation, accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; attempting to probe, scan, or test the vulnerability of the Service, or any associated system or network, or to breach security or authentication measures without proper authorization; interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Service, overloading, “flooding,” “spamming,” “mail bombing,” “crashing,” or undertaking similar activities; and forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Service. Further, you may not copy, sell, distribute, publish, download, or reproduce any aspect of the Service. You also may not modify, make derivative works of, decompile, reverse-engineer, disassemble, or otherwise convert any aspect of the Service. Further, you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service; you agree not to access the Service in order to build a similar or competitive service; you agree not to access (or attempt to access) any of the Service by means other than through the interface that is provided by Talkable; and you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Service.

7. OWNERSHIP OF THE SERVICE

The Service contains important and proprietary property owned by us, including software that constitutes our intellectual property and trade secrets. Nothing in these Terms shall be construed as a conveyance of any ownership right or title in or to our property. We only grant you a nonexclusive, nontransferable, non-sublicensable, and revocable license to use the Service for the purposes permitted by these Terms, and only for as long as you are permitted to access the Service.

8. THIRD PARTY SITES AND SERVICES

Our Service may be integrated with services provided by third parties, including those of the Merchant, as part of the functionality of the Service. You understand that, except as required by GDPR, we do not have control over third parties and that such third parties are not agents of Talkable. As such, we make no guarantees about, and assume no responsibility for, the information or services provided by third parties, except to the extent required by GDPR. You acknowledge and agree that we make no representation or warranty about, and do not endorse, third party’s products or services or the information provided by third parties, whether through the Service or otherwise. Accordingly, we are not responsible for your use of any third-party product or service or any harm or losses arising from or relating to your use of any third-party products or services, except to the extent required by GDPR. You should contact the third party with any questions about their products and services. Talkable hereby disclaims and you hereby discharge, waive and release Talkable and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. For California residents, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, 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.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.

9. UPDATES TO THE SERVICE

Talkable may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Service (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent, except to the extent required by GDPR. If you do not want such Updates, your remedy is to stop using the Service. Your continued use of the Service is your agreement to these Terms with respect to the Service.

10. INFORMATION YOU PROVIDE TO TALKABLE

As part of the functionality of the Service we provide, you have the ability to provide us with information about yourself through the Service. The information collected by us is detailed in our Privacy Policy . By providing this information, you grant us the right to use the information for the purposes described in these Terms and in our Privacy Policy . While we do not claim ownership over any such information and content that you provide, you agree that we have the right to use such information and content in furtherance of the Service. Further, by providing us with information and content through the Service, you represent and warrant that you own, or have the full legal authority to distribute, all information that you provide through the Service, including, without limitation, the authority to provide Talkable with your Friends’ personal information.

11. INTELLECTUAL PROPERTY RIGHTS OF OTHERS

You may not upload, download, display, perform, transmit, or otherwise distribute any information or content in violation of intellectual property or proprietary rights of any third parties. You represent and warrant to Talkable that you own, or have the right to use, all information that you provide on or through the Service. If you do not respect a third party’s intellectual property or proprietary rights, you are solely responsible for any violations of law.

12. DISCLAIMER OF WARRANTIES

THE SERVICE IS PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE” AND EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.

TALKABLE MAKES NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICE: WILL MEET YOUR REQUIREMENTS; WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TALKABLE OR THOUGH THE SERVICE SHALL CREATE ANY WARRANTY.

TALKABLE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT, SERVICE, BUSINESS, OR INFORMATION ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE SERVICE, AND TALKABLE IS NOT A PARTY TO ANY TRANSACTION BETWEEN YOU AND THIRD-PARTIES.

TALKABLE MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICE, AND TALKABLE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICE.

13. LIMITATION OF LIABILITY

Nothing in these Terms and in particular within this "Limitation of Liability" clause shall attempt to exclude liability that cannot be excluded under applicable law.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) TALKABLE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE SERVICE, EVEN IF TALKABLE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) TALKABLE’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SERVICE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED $100.

14. INDEMNIFICATION

You agree to defend, indemnify and hold harmless Talkable, its directors, officers, and agents, as well as its licensors, and suppliers from any damages, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of (i) your use of the Service, (ii) your violation of these Terms, or (iii) your violation of any law or the rights of any third party. Talkable reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Talkable and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Talkable’s prior written consent. Talkable will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

15. USER GENERATED CONTENT

The Service may, now or in the future, allow you to transmit text, graphics, images, music, software, audio, video, information or other materials (collectively, the “UGC”). You represent and warrant that (1) you are the owner of all the copyright rights to the UGC and you have the right, power, and authority to post the UGC and grant the licenses specified herein without any liability or obligation for any payment and (2) by posting or providing the UGC, you will not violate third-party rights of any kind, including, without limitation, any intellectual property rights, rights of publicity, and privacy rights. Further, you agree not to transmit any inappropriate UGC on the Service (including, without limitation, any video UGC the Service allows you to share), including, but not limited to, libelous, defamatory, obscene, pornographic, abusive, or threatening UGC; UGC that advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; or UGC that is misleading or not true. We may remove such UGC from our servers for any reason at our sole discretion, and we may suspend or revoke your access to the Service, and we reserve the right to investigate, and seek applicable remedies for, violations of applicable law to the fullest extent of the law. You understand and agree that Talkable assumes no responsibility for compliance with any agreements between you and the Merchant regarding the UGC, including, without limitation, any duties owed by the Merchant to you or a third party pursuant to such agreement(s), or Merchant’s compliance with applicable laws, rules and regulations in respect of such agreement(s). By upload, displaying, transmitting, or otherwise distributing any UGC on or through the Service, you hereby authorize Talkable and/or the Merchant to review the UGC for compliance with these Terms and to share the UGC with the Merchant and the Friend(s) with whom you intend to share the UGC with in connection with the Talkable Referral Program.

16. GOVERNING LAW

These Terms shall be governed by the laws of the State of California, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the state and federal courts in or for San Francisco County, California for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in these Terms.

17. DISPUTE RESOLUTION:

You agree to resolve any dispute, claim, or controversy arising out of or relating to your use of the Service in the following manner. First, you and Talkable each agree to attempt in good faith to resolve the dispute informally by contacting each other by email (you can email us at support@talkable.com ). Second, if the dispute is not resolved through informal resolution, we both agree to attempt in good faith to resolve the dispute through mediation administered by JAMS, which shall take place in San Francisco County, California, and the costs of which shall be divided equally between you and Talkable. Third, if the dispute is not resolved through informal resolution and mediation, we both agree to participate in binding arbitration administered by JAMS, which shall take place in San Francisco County, California.

Either you or we may bring a lawsuit solely for injunctive relief without first engaging in the dispute resolution process described above.

We both agree that, in the event of arbitration, or in the event of a lawsuit as permitted by this Section or otherwise, the prevailing party shall be entitled to costs and fees (including reasonable attorneys’ fees). Arbitration pursuant to this Section shall be confidential, and neither you, nor Talkable, nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. There shall be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general). If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.

YOU AND TALKABLE EACH HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Nothing contained in this Section shall limit our ability to terminate, or otherwise take action related to, your account as provided in these Terms.

18. TERM AND TERMINATION

These Terms will remain in full force and effect as long as you continue to access or use the Service, or until terminated in accordance with the provisions of these Terms. However, the provisions of these Terms that by their sense and context are intended to survive the termination of these Terms shall survive the termination.

19. SEVERABILITY AND WAIVER

If, for whatever reason, any term or condition in these Terms is deemed unenforceable, all other terms and conditions will remain unaffected and in full force and effect. The failure to enforce any provision of these Terms is not a waiver of our right to do so later, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

20. ASSIGNMENT

These Terms shall be binding on the parties and their respective successors and assigns. These Terms may be assigned by Talkable without restriction. These Terms may not be assigned or otherwise transferred by you without our prior written consent.

21. MODIFICATIONS TO THESE TERMS

Talkable reserves the right to change these Terms from time to time, with or without notice to you. If you continue to use the Service, you consent to the new Terms. We will always have the latest Terms posted on the Service.

22. HEADINGS USED IN THESE TERMS

The section headings contained in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms.