Floorwatch Terms of Service
Last updated: June 19, 2017
These Floorwatch Terms of Service (this “Agreement”) apply to your use of (1) the Floorwatch website at http://www.floorwatch.com and all related websites owned and operated solely by Floorwatch (collectively, the “Floorwatch Site”), (2) the help request services made available by Floorwatch through the Floorwatch Site, any Floorwatch-branded application for your mobile or other device (collectively, the “Floorwatch Application”), and any other online properties of Floorwatch or third parties, as described in Part I below (the “Help Request Services”), (3) any Floorwatch Application, and (4) any other services or features made available by Floorwatch through the Floorwatch Site or any Floorwatch Application. Together, the items in (1) through (4) are the “Services”.
In this Agreement, “Floorwatch” and “we” mean Floorwatch, Inc., and “User” and “you” mean any user of the Services. This Agreement incorporates Floorwatch’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “Floorwatch Policies”).
By accessing or using the Services or clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Service. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.
Floorwatch may update or revise this Agreement (including any Floorwatch Polices) from time to time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. You may have to click “accept” or “agree” to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, your sole recourse is to terminate your use of the Services, in which case you will no longer have access to your Account (as defined below). Except as otherwise expressly stated by Floorwatch, any use of the Services (e.g., the use of the Help Request Services) is subject to the version of this Agreement in effect at the time of use.
Part I – Help Request Services
- Help Requests.
Floorwatch provides the Help Request Services to User for the purpose of assisting User in securing face-to-face assistance at participating third-party Retail Merchant locations (each, a “Retail Location”). In response to a User’s online request for help through the Floorwatch Site or Floorwatch Application, Floorwatch directly contacts the Retail Location’s associates who are present at that location and signed into Floorwatch Application (each, a ”Team Member”). The availability of help is determined at the time of User’s query. Once a help request is made by User through the Floorwatch Site or Floorwatch Application, Floorwatch will provide confirmation of the request to the Team Member(s). By using the Help Request Services, User agrees to receive notifications confirmations to their mobile device through the Help Request Services.
- Ratings and Reviews.
Upon termination of any Help Request, the User will be prompted to indicate if they received the help they requested; and invited to rate the experience along with comments. Floorwatch will share this rating and feedback with administrators of the Retail Location, along with the User’s name, User’s profile photo, the time of Help Request, the content of the Help Request, the User’s rating of this Request and any related comments provided by the User via the Floorwatch Site or Floorwatch Application.
- Usage Guidelines.
User agrees to use the Help Request Services to use these Services only for the purpose of soliciting the help of Team Members while visiting a participating Retail Location; and to honor Help Requests made in the Retail Location. User further agrees not to create mischief, such as using the Floorwatch Application to upload pornographic images, harass, threaten, verbally abuse, use profanity, or mislead Team Members with repetitive or fraudulent requests. Abuse of the Services shall be determined at the sole discretion of Floorwatch; and is strictly prohibited; and may result in the User’s account cancellation and termination of access to the Services.
- Help Requests.
Part II – Terms for All Services
- Your Account.
You may (but are not required to) create an account with Floorwatch through the Floorwatch Application or Floorwatch Site (“Account”) in order to use the Help Request Services. When registering for an Account, you must be of legal age, and provide true, accurate, current, and complete data about yourself on the Floorwatch registration form (“Registration Data”). You also agree to promptly update the Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify Floorwatch of any unauthorized use of your Account or any other breach of security related to your use of the Services.
- Communications from Floorwatch.
- Technical Requirements.
- Modifications to Services.
Floorwatch reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the Floorwatch Site, Floorwatch Application, Retail Merchants. Floorwatch shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services.
- Intellectual Property Rights and Grant of Rights to User.
The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “Floorwatch Content”) are provided to User by Floorwatch or its partners or licensors solely to support User’s permitted use of the Services. The Floorwatch Content may be modified from time to time by Floorwatch in its sole discretion. Except as expressly set forth herein, no license is granted to User for any other purpose, and any other use of the Services or the Floorwatch Content by User shall constitute a material breach of this Agreement. Floorwatch and its partners or licensors retain all rights in the Services and Floorwatch Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of Floorwatch or any third party is granted under this Agreement.
- Application License.
Subject to the terms and conditions of this Agreement, Floorwatch grants User a non-exclusive, non-transferable, revocable license to use the Floorwatch Application, in object code form only, on User’s compatible mobile devices, solely to support User’s permitted use of the Services.
- Use Restrictions.
The Services and Floorwatch Content are offered solely for User’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. Floorwatch expressly reserves all its rights and remedies under applicable state and federal laws. Floorwatch reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, cancel help requests, or deny access to the Services. You agree not to (and not to allow any third party to): (1) use any deep-link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Services or Floorwatch Content, except as expressly authorized by Floorwatch; (2) take any action that imposes or may impose (in Floorwatch’s sole determination) an unreasonable or a disproportionately large load on the Services or Floorwatch’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Services or Floorwatch Content to a third party; (5) use any portion of the Services or Floorwatch Content to provide, or incorporate any portion of the Services or Floorwatch Content into, any product or service provided to a third party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Floorwatch); (7) modify any Services or Floorwatch Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Services or Floorwatch Content; (9) use the Services or Floorwatch Content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Services or Floorwatch Content or access or use the Services or Floorwatch Content for competitive analysis or benchmarking purposes.
- Government End Users.
The Services constitute a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire any Floorwatch Application with only those rights set forth therein.
- Export Control.
You may not use, export, or re-export any Floorwatch Application or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that 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 that you are not listed on any U.S. Government list of prohibited or restricted parties.
Floorwatch may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, Floorwatch may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any Floorwatch Policies). After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account. You agree that Floorwatch shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which Floorwatch will have no liability whatsoever.
- Reviews, Comments, Communications, and Other Content.
The Services may permit you to submit reviews, comments, and ratings; send emails and other communications; and submit suggestions, ideas, comments, questions, or other information for publication and distribution to Retail Locations and other third parties (“User Content”). Any such User Content must not be illegal, threatening, obscene, racist, defamatory, libelous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of privacy, purposely false or otherwise injurious to third parties, or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, any form of “spam” or references to illegal activity, malpractice, purposeful overcharging, false advertising, or health code violations (e.g., foreign objects in food, food poisoning, etc.). Your User Content should be unbiased and objective. You may not submit reviews, comments or ratings of your own Retail Location, or any Retail Location of your employer, friend, relative or a competitor. You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of User Content. Floorwatch reserves the right (but has no obligation) to monitor, remove, or edit User Content in Floorwatch’s sole discretion, including if User Content violates this Agreement (including any Floorwatch Policies), but you acknowledge that Floorwatch may not regularly review submitted User Content. If you do submit User Content, and unless we indicate otherwise, you grant Floorwatch a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable (through multiple tiers) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display, and otherwise exploit such User Content throughout the world in any media. Floorwatch takes no responsibility and assumes no liability for any User Content submitted by you or any other User or third party.
- Your Representations and Indemnity.
You represent and warrant that you own or otherwise control all of the rights to any User Content submitted by you; that all User Content submitted by you is accurate; and that exploitation of such User Content by Floorwatch and its other Users, partners, and licensees will not violate this Agreement, cause injury to any person or entity, or infringe any third-party rights (including, without limitation, intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless, and (at Floorwatch’s request) defend Floorwatch, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “Floorwatch Parties”) from and against all claims resulting from (1) any User Content submitted by you, (2) your use of the Services, or (3) any breach or alleged breach by you of this Agreement.
- Liability Limitations.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE FLOORWATCH PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT, (2) ANY USE OF THE SERVICES, THE FLOORWATCH CONTENT, OR THE USER CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE HELP REQUEST SERVICES), OR (4) YOUR VISIT TO ANY BRICK-AND-MORTAR LOCATION OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY RETAIL MERCHANT IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE FLOORWATCH SITE BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE FLOORWATCH CONTENT. FLOORWATCH IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY BRICK-AND-MORTAR LOCATION FOR WHICH A USER HAS MADE A HELP REQUEST.
IF THE DISCLAIMER OF DIRECT DAMAGES ABOVE IS NOT PERMITTED BY LAW, YOU EXPRESSLY AGREE THAT OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50).
You and Floorwatch understand and agree that the disclaimers, exclusions, and limitations in this Section 17 and in Section 18 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that Floorwatch would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
- Disclaimer of Warranties.
THE SERVICES, ALL FLOORWATCH CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. FLOORWATCH EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. FLOORWATCH DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT FLOORWATCH WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. FLOORWATCH SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF FLOORWATCH.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Links to Third-Party Websites.
The Services may contain hypertext links to websites operated by parties other than Floorwatch. Such hypertext links are provided for User’s reference only, and Floorwatch does not control such websites and is not responsible for their content. Floorwatch’s inclusion of any hypertext links to such websites does not imply any endorsement of the material on such websites or any association with their operators. Floorwatch assumes no liability whatsoever for any such third-party websites or any content, features, products, or services made available through such third-party websites.
Retail Merchants are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you as a result of your (or such recipient’s) interaction with or visit to any Retail Merchant or from any product or service of any Retail Merchant. You hereby release the Floorwatch Parties from any and all such Claims. You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the Floorwatch Parties pertaining to the subject matter of this Section.
- Notify Us of Infringers.
If you believe any of the Services violate your copyright, notify our copyright agent in writing. The contact information for our copyright agent is at the bottom of this Section.
In order for us to take action, you must do the following in your notice:
(a) provide your physical or electronic signature;
(b) identify the copyrighted work that you believe is being infringed;
(c) identify the item that you think is infringing your work and include sufficient information about where the material is located so that we can find it;
(d) provide us with a way to contact you, such as your address, telephone number, or email;
(e) provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, its agent, or the law to be used in connection with the Services; and
(f) provide a statement that the information you provide in your notice is accurate, and that (under penalty of perjury) you are authorized to act on behalf of the copyright owner whose work is being infringed.
Here is the contact information for our copyright agent:
4 Court Street, Ste 308
Plymouth, MA 02360
Again, we cannot take action unless you give us all the required information.
If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by Floorwatch.”
Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
- ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE.
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the Floorwatch Parties or their successors or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and Floorwatch must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR FLOORWATCH MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Floorwatch will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) Floorwatch also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or Floorwatch may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Suffolk County, Massachusetts. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Suffolk County, Massachusetts in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Suffolk County, Massachusetts for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Floorwatch shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in Suffolk County, Massachusetts.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
- Choice of Law.
This Agreement is made under and shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.