Terms of Service
Effective date: July 30, 2023
PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
SECTION 44 BELOW HAS A MANDATORY ARBITRATION PROVISION AND WAIVER OF CLASS ACTION RIGHTS. BY AGREEING TO THESE TERMS, YOU AGREE TO THOSE PROVISIONS.
These Terms of Service (the “Terms”) are a legal document between you (“you”, “your”) and Cherry Smash Rewards, Inc. (“Cherry Smash”, “Cherry Smash Rewards,” “we” “our”, or “us”) a Delaware corporation.
Cherry Smash may provide services including, but not limited to, the Cherry Smash Rewards™ Program (the “Program”) via our websites and mobile applications (“App”), as well as access to web applications, including, but not limited to, Mission Control (collectively the “Services”) to you subject to these Terms. Cherry Smash is the owner and operator of the Services. Please ensure you read these Terms carefully before using the Services. By using the Services, you explicitly agree to comply with and be bound by the Terms and all terms, policies, and guidelines incorporated and referenced herein. If you do not agree to all provisions of these Terms, do not use the Services.
- Your Interaction with Our Participating Brands. The Cherry Smash Rewards Program allows you to engage with our participating brands to acquire points and/or bonus points. By using our App, website, and/or participating in our Program, you are directing Cherry Smash Rewards to share your personal information you provide us by registering and earning rewards with all our participating brands, regardless of your actual interaction with each. The value you receive in participating in our Program is calculated by and depends on the amount and nature of your interaction with our participating brands to obtain points. For a list of our participating brands, which we update from time to time, visit https://www.Cherry Smashrewards.com/brands. In addition, by uploading receipts, participating in a Challenge or taking a Survey offered by a Partner, you are using Cherry Smash Rewards to intentionally interact with all our participating brands who provide points in our Program. Our participating brands may engage with you, including by sending you emails, and use your personal information according to their respective privacy policies. You understand that Cherry Smash does not control and is not responsible for such engagement or policies. If you are a California consumer and want to learn more about how Cherry Smash Rewards shares your personal information when you intentionally interact with our participating brands, please review our Cherry Smash Rewards’ Privacy Notice for California Consumers. If you no longer want to share your personal information with all our participating brands, please stop using the Services and delete your account at any time.
- For Your Personal Use. The Services are for your own use only, and you may not resell, lease, or provide them in any other way to anyone else. You must be of the age of majority in your jurisdiction to use our Services. The Services are not directed at children under 13 years old, and Cherry Smash does not knowingly collect or maintain personal information from children under 13 years of age.
- Registration; Registration Data. Subject to your continued compliance with these Terms, you may register for one (1) account with Cherry Smash. If you have been previously suspended, removed, or otherwise deactivated from using the Services, you may not create or register another account to use the Services. You agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Services (“Registration Data”); and (b) maintain and promptly update the Registration Data, and any other information you provide to Cherry Smash Rewards, and to keep it accurate, current and complete. We are not responsible for any loss you suffer as a result of your not keeping your Registration Data current. You may also upload a profile photo for your account. You grant Cherry Smash a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, and sublicensable license to use, reproduce, display, modify, adapt, create derivative works from any photos or materials you provide or upload to us through the App. You agree that any photo you upload as your profile photo:(i) will be owned or licensed by you to be used as your profile photo or as otherwise provide to us and that you have all rights allowing you to use the photo accordingly; (ii) will not infringe the intellectual property rights of others; and/or (iii) will not be offensive, harassing, violent, pornographic, or otherwise inappropriate. Although we have no obligation to monitor or screen any photos or materials you provide or upload to the App, we reserve the right to remove any photos or materials we deem as inappropriate within our sole discretion and without notice to you.
- Your Account Security. When you create and register your account with us, you choose a user name and password and may choose another device authentication method. You are responsible for maintaining the security of your password and device and to supervise use of your account. You must notify us immediately via the contact information provided below if you suspect any unauthorized use of or access to your account. You will not share or transfer your account or password with or to anyone. We assume that anyone using the Services or transacting through your account is you.
- Inactivity of Your Account Your account will be deemed inactive and your then currently existing unused Points will expire if you at any time request to stop participating in the Program by interacting with our Participating Brands as set forth in Section 1 above or if you do not do either of the following in any ninety (90) day period: a) scan, submit, and fully process a receipt for Points using the Services; or b) redeem any Points for a Reward. After sixty (60) days of inactivity, Cherry Smash will provide you thirty (30) days notice by sending an email or text message to the email address or phone number provided in your Registration Data that your account will be considered inactive and your Points will expire. Prior to the effective account inactivation and Points expiration date, you may prevent your account from becoming inactive and your then currently existing unused Points from expiring by doing either of the following: i) logging in to your account and successfully scanning and fully processing a valid receipt for Points (with the Cherry Smash Rewards mobile application); or ii) redeeming your Points for a Reward. While expired Points cannot be recovered, you may reactivate your inactive Cherry Smash account by logging into your account and submitting a receipt (in the Cherry Smash Rewards mobile application). If you reactivate your account, you agree to all the Terms as then currently stated.
POINTS AND REWARDS
- How to Earn Points. Cherry Smash’s App allows you to participate in our Program to interact with our participating brands to earn points (“Points”) from them for purchasing qualifying brands, completing special offers (“Offers”), or by completing other activities including taking surveys, entering a referral code, or engaging in any other activity as described in our App or Program. Not all users will qualify to earn points from all participating brands; for experimentation, brand trial, audience targeting, or other reasons, users may not earn points for all brands. In order to earn points, any receipt you scan must contain a description of the product specific enough to confirm that the purchase was made. When you provide Cherry Smash a receipt, by uploading, linking an account with receipt information, or other means made available by Cherry Smash, you allow Cherry Smash to process the information and identify the details printed on that receipt. If you purchased a product qualifying for Points or a valid Offer according to the terms of that Offer, you are eligible for those Points or that Offer, and the receipt clearly describes a qualifying product, we will provide you Points on behalf of the participating brand in accordance with the Offer. We may not be able to accept or process receipts from some retailers, and so, Points will not be available for submitting those receipts. We do not accept receipts and will not award Points for purchases for transactions that are older than 14 calendar days. Cherry Smash may limit the number of receipts that can be processed by you in a period of time to a maximum quantity, as notified in the Services.
- Points May Be Redeemed for Rewards. When your Points balance reaches the Minimum Redemption Amount, (“Minimum Redemption Amount” shall mean the minimum value of Points required to redeem any Reward offered in the Services (“Reward”), which is subject to change at any time at the sole discretion of Cherry Smash), you may redeem your Points. Points can only be used in exchange for Rewards and have no other use or value. There is no automatic redemption of Points. No interest is accrued on Points. Points may be redeemed for Rewards at the rate specified in the Services at the time of redemption. Cherry Smash does not guarantee that any particular Reward or Offer will be available on any given product for any specific user at any moment in time. Furthermore, not all Rewards or Offers may be available to all users at all times, and different Rewards or Offers may be available only to certain users. Items for which Rewards are or will be available are subject to change without notice. Cherry Smash reserves the right to change, remove, discontinue or otherwise alter the available Rewards or Offers at any time.
- Redemption Process. When you make a request to redeem Points for a Reward, you must elect within the App the Reward, which could be a gift card or other product offered as a Reward, you want to receive in exchange for your Points. Once a redemption request is approved and the Redemption Item is authorized by us, your Points balance will be reduced by the number of Points designated to the Redemption Item selected by you. All Redemption Items are non-refundable, and may not be returned or cancelled unless specifically offered to cancel in-app. We are not responsible or liable for any loss or delay of any Redemption Item once you have redeemed your Points. If you have any questions or concerns with the redemption process, you may contact us at support@tryCherrySmash.com.com.
- No Cash Value; Points Cannot Be Transferred. Cherry Smash Rewards users have no property rights in Points, and Points can only be used as described here. Points have no cash, monetary, or other value, and cannot be redeemed in whole or in part for cash. Your Points balance or any part of it is not transferable, cannot be divided as part of a settlement, legal proceeding or death, and cannot be combined with Points of any other member in the Program. Points may not be brokered, bartered, attached, pledged, gifted, or sold. Expired Points cannot be redeemed, and you must be an active member of the Program in order to redeem Points.
- Receipt Scanning and Item Accuracy. Receipt scanning technology is not always accurate. If an item is improperly identified, either by product name, size, or price, please consult the appropriate in App process to resolve this inaccuracy. If this does not resolve the issue, please contact our support team. In the Services, the receipt correction processes may not be available for certain receipt types. In addition, you may have a limited period of time, as stated in the App, in which you are allowed to correct your receipt(s). You are responsible for reviewing your scanned receipt to confirm accuracy. Cherry Smash or any other affiliated business, participating brands, and/or retailers are not responsible for any inaccuracies in this process, and resolution through the in-App process and through our support team is your sole remedy.
OUR DIGITAL RECEIPT PROGRAM
- Referral Program Description and Terms. From time to time, and at Cherry Smash’s sole discretion, we may offer bonus Points, Points, or other rewards when a new user you choose to refer becomes a user of the Cherry Smash Program (a “Referral Program”). Any such Referral Program shall be subject to the additional terms and conditions set forth in the offer or App. When you participate in a Referral Program, we provide you a link, some pre-formatted text relating to Cherry Smash, and a referral code to send your friend. It is within your sole discretion whether, how, and to whom you send the link, the pre-formatted text, and referral code. You acknowledge that you do not share any of your friend’s information with Cherry Smash in connection with a Referral Program, and Cherry Smash itself does not directly send any referral codes to your friends. You agree that you will obtain all necessary permissions and consents from an individual before referring that individual to us in a Referral Program and inform the individual: (a) that we are not the sender or initiator of any messages or communications that you send to that individual relating to the Referral Program; (b) that you are not acting as our agent in sending any such messages or communications; and (c) that you may be receiving a referral bonus if the individual becomes a new user of Cherry Smash. Current or Inactive former users of the Services cannot qualify as new users for purposes of a Referral Program, and any attempt to create referrals to non-existent individuals or to multiple accounts for the same individual will be void and are in violation of these terms. We reserve the right to void or take any other action we deem appropriate with respect to referrals, including if a referral code is shared in a social media post or from a social media account that contains offensive, harassing, violent, pornographic, or otherwise inappropriate content. Cherry Smash may discontinue and/or revoke any Referral Program or incentive program in its sole discretion at any time without notice. Cherry Smash Rewards reserves the right to decline to award referral bonuses, rescind bonus Points credited, or take any other action related to a Referral Program.
- Refer a Friend. When you participate in our “refer a friend” program (“Refer a Friend”), we designate you as an “advocate” with respect to the friend that you refer If you refer a friend to sign up using the Refer a Friend referral code that you provided, we will provide you the Points associated with that particular Refer a Friend offer once your friend successfully scans their first receipt, and we will let your friend know that their advocate has received points for the referral. We will also let you know that your friends have signed up and notify you when they scan their first receipt.
Cherry Smash SOCIAL
- In our App, Social is a community of Cherry Smash members that you create through friend referrals and invites. If your friend enters your referral code during sign up or elsewhere in app, they will be automatically added to your Cherry Smash friends list and you will be added to that friend’s list of Cherry Smash friends in Social. You can also invite someone to be a friend on Social who is already a Cherry Smash member, in which case, that invitation would not constitute a referral of a new user. You can search for a friend on Cherry Smash via name, phone number or email address. If we find a match, you can invite that current Cherry Smash member to be a friend on Social by generating a push notification to that friend through our App. The current member can then choose whether to accept your invitation. If they accept, we will automatically add that friend to your list of Cherry Smash friends and you will be added to that friend’s list of Cherry Smash friends. If you do not want to participate in Social, simply remove all friend connections.
- By participating in Social, you consent and agree that:
- We will share your name, state, number of friends and mutual friends, profile photo, Points earned, merchants/stores from which receipts were scanned, top brands for which Points were earned, the chosen Rewards for which Points were redeemed, Point-earning activities engaged in, the date on which each activity occurred, information about Social Offers in which you and your friends are participating, and other information, as disclosed to you from time to time (collectively, your “Cherry Smash Social Activity Information”) with all those with whom you are directly connected as friends on Social.
- We will post on each of your friends’ Social feed and on the Social leaderboard consisting of all your friends, your Cherry Smash Social Activity Information, including the top brands you scanned, which may provide your friends details about specific products you may have purchased. If you do not want your Cherry Smash Social Activity displayed to your friends or on leaderboards, do not participate in Social.
- Your name, profile picture, state, number of friends and mutual friends, limited information about Point-earning activities you’ve engaged in, and Cherry Smash Points will be visible to all your friends’ friends with whom you are not directly connected (“Friends of Friends”), along with other users with whom you’re not connected, but the Friends of Friends and other users will not be able to view any other Cherry Smash Social Activity Information. Friends of Friends, however, may invite you to directly connect as their friend by sending you a push notification as set forth above.
- You may, at any time, disconnect a friend or all friends through the Cherry Smash App. Doing so will remove all your Cherry Smash Social Activity Information from your friend’s Social feed and leaderboard.
- Cherry Smash Rewards is not responsible for your interactions with your friends on or as a result of your participation in Social. You have the sole discretion to invite or disconnect friends and to participate in Social.
- You may choose to sync your contacts; this allows Cherry Smash Rewards to identify which of your contacts in your device’s address book are also Cherry Smash Rewards users. When you upload your contacts, Cherry Smash Rewards will access the names, phone numbers, and email addresses in your address book. We don’t store this information and process it only momentarily to enable us to connect you with your contacts who are also using Cherry Smash Rewards.
- You have the ability to react to and comment on your friend’s Cherry Smash Social Activity Information. We are not responsible for any comments posted by you, any of your friends, or Friends of Friends. We may, although we have no obligation to, remove any comments or reactions that we deem in our sole discretion to be inappropriate or offensive. We may remove any content or comments at any time and without notice in our sole discretion in accordance with these Terms of Service or if we believe in our sole discretion that they violate these Terms of Service or any applicable law, regulation, or rights of third parties.
- Social Offers. From time to time, Cherry Smash may offer you and your friends opportunities to earn Points when you and your friends redeem certain offers that you share or that are shared with the friends in your Social group (“Social Offers”). Friends with whom Social Offers are shared can view a specific friend’s completion or response to a Social Offer. You and your friends can also send each other text, email, and/or other messages about certain Social Offers by using pre-formatted text we provide. It is within your and your friends’ sole discretion whether, how, and to whom you send the pre-formatted text about the Social Offer. Cherry Smash itself does not directly send any such communications to your friends. You agree that you will obtain all necessary permissions and consents from an individual before sending any text or email messages and inform the individual: (a) that Cherry Smash is not the sender or initiator of any messages or communications that you send to that individual relating to the Social Offer; and (b) that you are not acting as our agent in sending any such messages or communications.
SMS TERMS OF SERVICE
Cherry Smash Rewards Alerts
- You agree that Cherry Smash Rewards may send transactional text and/or SMS messages, including important account notices, such as point expiration warnings and account security notices to the phone number you used to register your account or any phone number you provide to us in updating that information. You also agree that when verifying your account phone number, Cherry Smash Rewards may send you a one-time passcode via SMS from 33479 or other similar SMS number.
- You can cancel the SMS service at any time. Just text “STOP” to the short code. After you send the SMS message “STOP” to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again.
- If you are experiencing issues with the messaging program you can reply with the keyword HELP for more assistance, or you can get help directly at support@tryCherrySmash.com.com.
- Carriers are not liable for delayed or undelivered messages.
- As always, message and data rates may apply for any messages sent to you from us and to us from you. Message frequency varies. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
- We will obtain your consent for marketing text and/or SMS messages separately and will provide you any necessary or required information relating to marketing text and/or SMS messages at that time.
Prohibited Conduct and Content
- In using our App or Services, you agree that you will not:
- Violate any applicable law, contract, intellectual property right, third party right, or commit a tort;
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user’s account or information without authorization from that user and Cherry Smash;
- Attempt to access or acquire information relating to others on our App for which you do not have specific authorization or consent;
- Impersonate any person or entity or otherwise misrepresent your relationship with a person or entity;
- Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our App that you are not authorized to access;
- Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services; and
- Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes.
- Unauthorized Activity. Cherry Smash may take any action in its sole discretion against any activity it deems unauthorized or fraudulent, including deducting some or all of your Points, terminating your account, and taking any other legal or equitable action which may be available to us. Unauthorized activity includes any action that is deceptive or an attempt to gain Points not in accordance with these Terms and includes, but is not limited to, creating fake receipts or accounts, submitting altered receipts, submitting receipts for purchases not made by you for personal, non-commercial use, submitting receipts in any currency other than U.S. dollars and/or buying products and returning them. You may dispute an action that Cherry Smash deems unauthorized by contacting Cherry Smash at account-inquiry@tryCherrySmash.com.com within thirty days of Points deduction (or other action) as a result of fraud or unauthorized use. After 30 days, you waive any right to any future claim or to dispute any decision or action by Cherry Smash. Any form of fraudulent or unauthorized activity is a violation of these Terms.
- Our Communications with You. We send notices to the email address you maintain in your Registration Data. As part of the Services, you may receive push notifications, text messages, alerts, emails or other types of messages directly sent to you from Cherry Smash or our participating brands (which may include service providers) outside or inside the Services (“Messages”). You have control over the Messages settings, and can opt in or out of these Messages through the features available for each specific means of Messaging, such as through the Services or through your devices’ operating system. Some Messages are transactional in nature and you cannot unsubscribe from them. Please be aware that messaging fees may apply depending on the message plan you have with your wireless carrier. You are responsible for keeping your Registration Data current to avoid missing notices about your account or changes to our Terms or a notice regarding termination of the Program.
- Intellectual Property. Except as otherwise indicated, the Services, and all text, images, marks, logos and other content contained in or communicated using the Services, including, without limitation, the Cherry Smash Rewards name, logo and all designs, text, graphics, pictures, information, data, software, sound files, other files, and the selection and arrangement thereof (collectively, the “Content”) are the property of Cherry Smash Rewards or its licensors and are protected by United States and international copyright or trademark laws. All rights to the Content are expressly reserved by Cherry Smash. Nothing contained in the Services may be construed as granting, by implication, estoppel or otherwise, any license or right to use any patent, trademark, copyright or other proprietary right of Cherry Smash Rewards or any third party without the prior written permission of Cherry Smash Rewards or such other party that may own such patent, trademark, copyright or other proprietary right(s).
- Limited License. Cherry Smash Rewards grants you a personal, non-commercial, limited, non-exclusive, non-transferable and non-sublicensable license to access and use the Services and to view, copy and print portions of the Content. Such license is subject to these Terms, and specifically conditioned upon the following: (i) you may only view, copy and print portions of the Content for your own informational, personal and non-commercial use in accordance with the Terms; (ii) you may not modify or otherwise make derivative uses of the Services or the Content, or any portion thereof; (iii) you may not remove or modify any copyright, trademark, or other proprietary notices that have been placed in the Content; (iv) you may not use any data mining, robots or similar data gathering or extraction methods; (v) you may not use the Services or the Content other than for their intended purpose; and (vi) you may not reproduce, prepare derivative works from, distribute or display the Services or any Content (except for page cacheing), except as provided herein. Except as expressly permitted above, any use of any portion of the Services or Content without the prior written permission of Cherry Smash Rewards is strictly prohibited and will terminate the license granted herein. This license is revocable at any time, and for any reason, or for no reason. Any such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws. Unless explicitly stated herein, nothing in these Terms may be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. You may contact Cherry Smash Rewards at support@tryCherrySmash.com.com to request permission for uses of Content not included in the license.
- Your Warranties. You represent and warrant that you will be personally responsible for your use of the Services and that your use of the Services and the Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties or violate any applicable law.
- Copyright Policy and Complaints. Cherry Smash takes claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our App infringes any copyright that you own or control, you may notify Cherry Smash’s designated agent as follows:
Designated Agent: Copyright Agent
160 W. Camino Real #532 Boca Raton 33432
Telephone Number: (872) 212-4107
E-Mail Address: dmca@tryCherrySmash.com.com
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Cherry Smash for certain costs and damages.
- Advertisements, Promotions, and Third Party Content. Cherry Smash Rewards may, from time to time, run advertisements and promotions of behalf of third parties on the Services. Your business dealings or correspondence with, or participation in promotions of, parties other than Cherry Smash Rewards, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. All third party content, including without limitation, any descriptions and images of, and references to, third-party products or services available in connection with the Services, advice, recommendation or opinion, Offer, promotion or coupon, grocery or other product, service, retailer, recipe, drug, and health information is provided on or through the Services for informational purposes only, and should not be construed to indicate that any such third party content is endorsed by us, nor is there any representation or warranty by us that the third party content is reliable, accurate, timely, complete, effective, or safe for your use. All third party content, including without limitation, any descriptions, images, references, features, content, specifications, products and prices of products and services and values of any coupon, Offer or promotion featured through the Services are subject to change at any time without notice.
- Disclaimer of Warranties. We take reasonable steps to provide the Services in a secure, timely, accurate and complete manner. However, it is possible that information provided through the Services may be incorrect or not current. Further, the Internet has inherent risks, and we cannot guarantee that your access to and use of the Services will be uninterrupted or error free or that the Services, or sites to which they may link, will be free from loss, corruption, attack, interference, hacking or other security intrusion. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our sites for reconstruction of any of your lost data. You are responsible for making sure your Registration Data is correct and current. The products that you purchase for Points that may be awarded that are associated with Cherry Smash Rewards Offers are not sold or endorsed by us, and we have no responsibility for them or for any loss or damage you may suffer from purchasing or using them. Cherry Smash Rewards is not responsible for typographical errors or omissions relating to pricing, text or photography. Cherry Smash Rewards is not responsible or liable for any loss or damage of any sort incurred as the result of dealings third party promotions or as the result of the presence of third-party advertisers on the Services. YOUR USE OF THE SERVICES AND THE CONTENT PROVIDED ON THE WEBSITES, WEB APPLICATIONS, AND MOBILE APPLICATIONS IS AT YOUR OWN RISK. THE SERVICES AND THE CONTENT PROVIDED THROUGH THE WEBSITE, WEB APPLICATIONS AND MOBILE APPLICATIONS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NO WARRANTY OF ANY KIND, IMPLIED, EXPRESSED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND FREEDOM FROM COMPUTER VIRUS, IS GIVEN WITH RESPECT TO THE SERVICES, THE MOBILE APPLICATIONS OR ANY HYPERLINKS TO OTHER INTERNET RESOURCES.
- Limitation of Liability. Cherry Smash REWARDS, ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (THE “Cherry Smash REWARDS PARTIES”) SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY OR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER INCLUDING BUT NOT LIMITED TO: LOSS OF USE, DATA, REVENUE, OR PROFITS, WHETHER IN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS, USE OF, OR YOUR INABILITY TO ACCESS OR USE THE SERVICES, CONTENT, OR APP. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY FOR ANY CLAIM THAT YOU MAY HAVE RELATING TO THE SERVICES OR MATERIALS IS YOUR RIGHT TO CEASE USE OF THE SERVICES AND MATERIALS.
- Indemnification. You agree to defend, indemnify and hold harmless Cherry Smash, its affiliates, officers, gents, employees, and partners arising from or in any way related to any third party claims relating to from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Service or your use of the Services other than as expressly authorized in these Terms of Service, your violation of the rights of a third party, or any negligent acts, omissions or intentional wrongdoing by you. Any such indemnification shall be conditioned on the indemnified party: (a) notifying you in writing of any such claim, demand, action, cost, liability, loss or threat thereof; (b) cooperating with you in the defense or settlement thereof; and (c) allowing you to control such defense or settlement. The indemnified party shall be entitled to participate in such defense at its own cost and expense. The foregoing Disclaimer of Warranties, Limitation of Liability and Indemnification provisions shall apply to the fullest extent permitted by law.
- User Communications. You may be able to provide responses, comments, reviews, recommendations, information, or suggestions and submit questions through the Services or through third-party services (collectively, “User-Generated Content”). To the extent you publicly post User-Generated Content, you agree that it will not be harassing or otherwise inappropriate or unrelated to the Services. We are not responsible for the content of User-Generated Content, including its accuracy or quality, but we may monitor the submission of User-Generated Content in our sole discretion. We cannot control and have no duty to take any action regarding how you may interpret third party User-Generated Content, and you hereby release us from any and all liability relating thereto. You are responsible for all your own activity in connection with the Services and User-Generated Content. User-Generated Content will become Cherry Smash’s property and may, at Cherry Smash’s sole discretion, be licensed to, transferred to, or shared with any third-party. You hereby relinquish and assign to Cherry Smash the worldwide, royalty free, right, title, and sublicensable license to run, use, re-use, implement, copy, display, transfer, share, and create derivative works from User-Generated Content in whole or in part, in any form (including for commercial, promotional, or marketing purposes) including any opinions, ideas, concepts, know-how, or techniques contained therein for any purpose.
- Withdrawing from Cherry Smash Rewards; Cessation, Suspension, and Termination. You are free, at any time, to withdraw from our Program or to stop using the Services by contacting us at support@tryCherrySmash.com.com, or if you stop using the App for 90 days or more, your account will automatically become inactive, as set forth above. Cherry Smash may also terminate (or suspend access to) your use of the Services or your account, for any reason in our sole discretion, including if you violate any of these Terms. Cherry Smash has the sole discretion to determine whether you are in violation of these Terms. Account termination may result in destruction of any Content associated with your account. We will try to provide advance notice to you prior to our terminating your account, but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, otherwise harmful to the rights or property of Cherry Smash, or for any other reason deemed reasonable by us. Cherry Smash may also stop providing the Services at any time. If we cease providing the Services, we will notify you at the email address you provide in your Registration Data, and if practicable, we will provide you thirty (30) days notice to make a redemption request (subject to our Minimum Redemption Amount of existing gift card requirement described above). If you do not make a redemption request within such thirty (30) day period, your entire Points balance will expire. If you cancel or inactivate your account, any then currently existing Points will automatically expire upon cancellation or inactivation. It is your responsibility to make a redemption request (subject to our Minimum Redemption Amount of Points balance requirement described above) before cancellation or inactivation.
- Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Cherry Smash’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations in our sole discretion.
- Applicable Law and Venue. Subject to Section 44 below, these Terms are governed by and will be construed under the laws of the State of Wisconsin, without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in a court of competent jurisdiction in the State of Wisconsin, Dane County. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in Wisconsin.
- MANDATORY ARBITRATION; CLASS ACTION WAIVER. You agree that all claims or disputes arising out of the Terms will be decided by an arbitrator through arbitration and not by a judge or jury (“Arbitration Agreement”). This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) and evidences a transaction involving commerce. The arbitration will be conducted before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), which are available at www.adr.org. The arbitrator’s fees and the costs will be shared equally by the parties, unless prohibited by law. Parties are responsible for their own attorneys’ fees. The arbitration proceeding will take place in Madison, Wisconsin, unless otherwise agreed. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator’s decision and award. The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything herein and/or the applicable AAA Rules, the interpretation, applicability or enforceability of the Class Action Waiver and/or the arbitrability of a claim or dispute may only be determined by an arbitrator. The following claims are excluded from this Arbitration Agreement: (a) claims in small claims court; (b) claims to enforce or to prevent the actual or threatened violation of a party’s intellectual property rights; (c) claims for temporary relief in connection with an arbitrable controversy; and (d) claims that are non-arbitrable per the applicable federal statute.
- INFORMAL RESOLUTION. In an attempt to find the quickest and most efficient resolution of our issues, you and we agree to first discuss any issue informally for at least 30 days, except as provided below. To do that, please send your full name, your email and/or mailing address, your concern, and your proposed solution by certified mail to us at:
Cherry Smash Rewards, Inc., Legal Department
160 W. Camino Real #532 Boca Raton 33432
Attn: Legal Department
If we would like to discuss an issue with you, we will contact you using an email or mailing address we have on file for you. IF WE DO NOT REACH AN AGREED UPON SOLUTION AFTER OUR DISCUSSIONS FOR AT LEAST 30 DAYS, YOU AND WE AGREE THAT ANY CLAIM THAT EITHER OF US MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR SERVICE IS SUBJECT TO SECTION 44 ABOVE.
- LIMITED TIME TO BRING A CLAIM. YOU AND WE AGREE TO BEGIN ANY CLAIM AND/OR ARBITRATION WITHIN ONE YEAR AFTER A CLAIM ARISES; OTHERWISE, THE CLAIM IS WAIVED.
- WAIVER OF JURY TRIAL. YOU WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Cherry Smash are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 44 above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
- Taxes. You agree that you are solely responsible for all applicable federal, state, local or provincial withholding, taxes, and government fees or costs associated with Points or Rewards and any exchanges and distributions.
- Survival. Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms that relate to any disputes between you and Cherry Smash.
- Severability. If any provision of the Terms is for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of the Terms shall be unimpaired and shall remain in full force and effect.
- Miscellaneous. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Cherry Smash agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Cherry Smash, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms, and that all modifications to these Terms must be in a writing signed by both parties (except as otherwise provided herein). You agree that Cherry Smash has not made, and you have not relied on, any representation by Cherry Smash relating to the Rewards, the Services, or the Cherry Smashrewards.com website, web applications, or mobile application other than those expressly set forth in these Terms. No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind Cherry Smash in any respect whatsoever. You and Cherry Smash agree there are no third-party beneficiaries intended under these Terms.
- Questions. If you have any questions regarding these Terms or your use of the Services, please submit a support request to support@tryCherrySmash.com, or contact us at:
Cherry Smash Rewards, Inc.
160 W. Camino Real #532 Boca Raton 33432