TERMS OF USE
PLEASE READ THIS
AGREEMENT CAREFULLY. IT SETS FORTH THE
LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE AND PRODUCTS
AND SERVICES AVAILABLE THROUGH THE SERVICE.
Introduction
Welcome!
The Terms of Use ( Terms )
governs the website www.myreserv.com
(including both mobile and online versions) (the Site ) and the Reserv digital layaway and/or envelope saving system
(the Platform ), including your use
of interactive features, widgets, plug-ins, applications, content, downloads
and/or other online services that we own and control and that post a link to
these Terms (the Site and the Platform are collectively referred to herein as
the Service ), which are made
available by Agatsu, LLC, d/b/a Forward Funded d/b/a Reserv ( Reserv , we our or us ).
By using the Service, you acknowledge and accept the Service s Privacy Policy and consent to the
collection and use of your data in accordance with the Privacy Policy.
These Terms govern the Services provided
by RESERV to individuals, including those that want to save money in their saving
RESERV digital layaway saving plan or saving envelope ( Layaway Plan ) to purchase
products and services from RESERV in the future. Although the Service can help you save for a
future purchase, you acknowledge and agree that RESERV is not a bank and does
not offer banking services. RESERV, as the
merchant of record and provider of the Services, including the Layaway Plan, is
an independent contractor for all purposes, and is not your agent or
trustee. RESERV does not have control
of, or liability for, the products or services that are purchased by you through
the Service.
If You Want to Use This Service,
then
carefully read these entire Terms (including all links to details), as they
constitute a written agreement between you and us and they affect your legal
rights and obligations. Each time you
access and/or use the Service (other than to simply read these Terms), you
agree to be bound by and comply with these Terms and any Additional Terms
(defined below) then posted. Therefore,
do
not use the Service if you do not agree.
The business realities associated with
operating the Service are such that, without the conditions that are set forth
in these Terms -- such as your grants and waivers of rights, the limitations on
our liability, your indemnity of us, and arbitration of certain disputes RESERV
would not make the Service available to you.
In some instances, both these Terms and
separate guidelines, rules, or terms of use or sale setting forth additional or
different terms and/or conditions will apply to your use of the Service or to a
service or product offered via the Service (in each such instance, and
collectively Additional Terms ). To the extent there is a conflict between
these Terms and any Additional Terms, the Additional Terms will control unless
the Additional Terms expressly state otherwise.
Full Details of Terms of Use
1. Service
Content, Ownership, Limited License and Rights of Others
A. Content. The Service contains a variety of: (i)
materials and other items relating to RESERV, RESERV s products and services,
third party products and services, and similar items from our licensors and
other third parties, including all layout, information, articles, reviews, posts,
text, data, files, images, scripts, designs, graphics, button icons,
instructions, illustrations, photographs, audio clips, music, sounds, pictures,
videos, advertising copy, URLs, technology, software, interactive features, the
look and feel of the Service, and the compilation, assembly, and arrangement
of the materials of the Service and any and all copyrightable material
(including source and object code); (ii) trademarks, trade dress, logos, trade
names, service marks, and/or trade identities of various parties, including
those of RESERV (collectively, Trademarks ); and (iii) other forms of
intellectual property (all of the foregoing, collectively Content ).
B. Ownership. The Service (including past, present and
future versions) and the Content are owned or controlled by RESERV and our
licensors and certain other third parties.
All right, title, and interest in and to the Content available via the Service
is the property of RESERV or our licensors or certain other third parties, and
is protected by U.S. and international copyright, trademark, trade dress, patent,
or other intellectual property and unfair competition rights and laws to the
fullest extent possible. RESERV owns the
copyright in the selection, compilation, assembly, arrangement, and enhancement
of the Content on the Service.
C. Limited License. Subject to your strict compliance with these
Terms and the Additional Terms, RESERV grants you a limited, non-exclusive,
revocable, non-assignable, personal, and non-transferable license to download
(temporary storage only), display, view, use, play, and/or print one copy of
the Content (excluding source and object code in raw form or otherwise, other
than as made available to access and use to enable display and functionality)
on a personal computer, mobile phone or other wireless device, or other Internet
enabled device (each, a Device )
for your personal, non-commercial use only.
The foregoing limited license: (i) does not give you any ownership of,
or any other intellectual property interest in, any Content; and (ii) may be
immediately suspended or terminated for any reason, in RESERV s sole
discretion, and without advance notice or liability. In some instances, we may permit you to have
greater access to and use of Content, subject to certain Additional Terms.
D. Rights of Others. When using the Service, you must respect the
intellectual property and other rights of RESERV and others. Your unauthorized use of Content may violate
copyright, trademark, privacy, publicity, communications, and other laws, and
any such use may result in your personal liability, including potential
criminal liability.
2. Service
and Content Use Restrictions
A. Service Use Restrictions. You agree that you will not: (i) use the Service
for any political or commercial purpose (including, without limitation, for
purposes of advertising, soliciting funds, collecting product prices, and
selling products); (ii) use any meta tags or any other hidden text utilizing
any Trademarks; (iii) engage in any activities through or in connection with
the Service that seek to attempt to or do harm any individuals or entities or
are unlawful, offensive, obscene, lewd, lascivious, filthy, violent,
threatening, harassing, or abusive, or that violate any right of any third
party, or are otherwise objectionable to RESERV; (iv) reverse engineer,
decompile, disassemble, reverse assemble, or modify any Service source or
object code or any software or other products, services, or processes
accessible through any portion of the Service; (v) engage in any activity that
interferes with a user s access to the Service or the proper operation of the Service,
or otherwise causes harm to the Service, RESERV, or other users of the Service;
(vi) interfere with or circumvent any security feature of the Service or any
feature that restricts or enforces limitations on use of or access to the Service
or the Content; (vii) harvest or otherwise collect or store any information
(including personally identifiable information about other users of the Service,
including email addresses, without the express consent of such users); (viii)
attempt to gain unauthorized access to the Service, other computer systems or
networks connected to the Service, through password mining or any other means;
or (ix) otherwise violate these Terms or any Additional Terms.
B. Content Use Restrictions. You also agree that, in using the Service:
(i) you will not monitor, gather, copy, or distribute the Content (except as
may be a result of standard search engine activity or use of a standard
browser) on the Service by using any robot, rover, bot , spider, scraper,
crawler, spyware, engine, device, software, extraction tool, or any other
automatic device, utility, or manual process of any kind; (ii) you will not
frame or utilize framing techniques to enclose any such Content (including any
images, text, or page layout); (iii) you will keep intact all Trademark,
copyright, and other intellectual property notices contained in such Content;
(iv) you will not use such Content in a manner that suggests an unauthorized
association with any of our or our licensors products, services, or brands;
(v) you will not make any modifications to such Content; (vi) you will not
copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative
works from, publish by hard copy or electronic means, publicly perform,
display, disseminate, distribute, broadcast, retransmit, circulate or transfer
to any third party or on any third-party application or website, or otherwise
use or exploit such Content in any way for any purpose except as specifically
permitted by these Terms or any Additional Terms or with the prior written
consent of an officer of RESERV or, in the case of Content from a licensor, the
owner of the Content; and (vii) you will not insert any code or product to
manipulate such Content in any way that adversely affects any user experience.
C. Availability of Service and Content. RESERV may immediately suspend or terminate
the availability of the Service and Content (and any elements and features of
them), in whole or in part, for any reason, in RESERV s sole discretion, and
without advance notice or liability.
D. Reservation of All Rights Not Granted
as to Content and Service. These Terms
and any Additional Terms include only narrow, limited grants of rights to
Content and to use and access the Service.
No right or license may be construed, under any legal theory, by
implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are
reserved by RESERV and its licensors and other third parties. Any unauthorized use of any Content or the Service
for any purpose is prohibited.
3. Opening and Terminating Accounts and
Identity Authentication
A. Accounts. In order to access or use some (or
potentially all) of the features on the Service, you may be required to first
register for an account through our online registration process. The
Service s practices governing any resulting collection and use of your personal
information are disclosed in the Privacy
Policy. If you register for any
feature that requires a password and/or username, then you will select your own
password at the time of registration (or we may send you an e-mail notification
with a randomly generated initial password) and you agree that: (i) You will
not use a username (or e-mail address) that is already being used by someone
else, may impersonate another person, belongs to another person, violates the
intellectual property or other right of any person or entity, or is
offensive. We may reject the use of any
password, username, or e-mail address for any other reason in our sole
discretion; (ii) You will provide true, accurate, current, and complete
registration information about yourself in connection with the registration
process and, as permitted, to maintain and update it continuously and promptly
to keep it accurate, current, and complete; (iii) You are solely responsible for
all activities that occur under your account, password, and username whether
or not you authorized the activity; (iv) You are solely responsible for
maintaining the confidentiality of your password and for restricting access to
your Device so that others may not access any password protected portion of the
Service using your name, username, or password; (v) You will immediately notify
us of any unauthorized use of your account, password, or username, or any other
breach of security; and (vi) You will not sell, transfer, or assign your
account or any account rights. We will
not be liable for any loss or damage (of any kind and under any legal theory)
to you or any third party arising from your inability or failure for any reason
to comply with any of the foregoing obligations. If any information that you provide, or if we
have reasonable grounds to suspect that any information that you provide, is
false, inaccurate, outdated, incomplete, or violates these Terms, any
Additional Terms, or any applicable law, then we may suspend or terminate your
account. We also reserve the more
general and broad right to terminate your account or suspend or otherwise deny
you access to it or its benefits all in our sole discretion, for any reason,
and without advance notice or liability.
B. Identity Authentication. You authorize us, directly or through third
parties, to make any inquiries we consider necessary to validate your
identity. This may include asking you
for further information, requiring you to provide your date of birth, a
taxpayer identification number and other information that will allow us to
reasonably identify you, requiring you to take steps to confirm ownership of
your email address or financial instruments, or verifying your information
against third party databases or through other sources. We may also ask to see your driver s license
or other identifying documents at any time.
If you use certain services, federal law may require that we verify some
of your information. RESERV reserves the
right to close, suspend, or limit access to your account and/or the Service in
the event we are unable to obtain or verify this information.
4. Conditions
Applicable to Service Usage
A. What are the requirements to use the
Service? In
order to use the Service, you must: (a) accept and agree to these Terms and our
Privacy Policy; (b) register with us
on the Site; (c) be a U.S. citizen (or a legal U.S. resident) of at least
eighteen (18) years of age (or older if you reside in a state where the
majority age is older); (d) provide all information requested by us, such as
your name, email address, mobile device number and such other information as we
may request from time to time (collectively, User Information ). You
represent and warrant that all User Information you provide us from time to
time is truthful, accurate, current, and complete, and you agree not to
misrepresent your identity or your User Information. You agree to promptly notify us of changes to
your User Information by updating your account on the Service. If we approve your registration, you will be
authorized to use the Service, subject to these Terms.
B. What
is the purpose of the Layaway Plan? The
Service includes the Layaway Plan. The
purpose of the Layaway Plan is to try to help you save money to be able to
purchase goods or services from the RESERV Store. We allow you to make a downpayment (if
applicable; a downpayment may not be required on or in the Reserv store) on a
designated good in the Reserv Store, and then make specific payments to your Layaway
Plan based upon your recurring payment authorization provided below, until you
save enough to complete the purchase or instruct us to return your funds (less
your downpayment). A down payment may
not be required in our store, in some or all cases. The funds in your Layaway
Plan are not FDIC-insured and not held at a bank for your benefit. Your funds will remain in your Layaway Plan until
(1) you instruct us to return your funds (less the downpayment) or (2) you have
saved enough money to purchase your designated good in the Reserv store, at
which point we will process your purchase.
If
you want to transfer funds out of your Layaway Plan before completing your purchase,
we will transfer your funds from your Layaway Plan (less any downpayment, if
applicable) back to your bank account or credit card or debit card, whichever
was used to fund your Layaway Plan, within two (2) Business Days of when we
receive your request. We may also
transfer your funds from your Layaway Plan (less any downpayment, if applicable)
back to your bank account or credit card without notice to you upon the closure
of your Layaway Plan, if required by applicable law or if we, in our sole
discretion, suspect the Service is being used for illicit purposes or otherwise
in violation of these Terms. You may
only use the funds in your Layaway Plan to make purchases from the Reserv Store
and not for any other purpose. We are
not responsible for any third-party fees that may be incurred as a result of
using the Service, including, but not limited to, third-party fees incurred as
a result of maintaining insufficient funds in your bank account.
C. Will I receive interest on the funds
held in my Layaway Plan? The Layaway Plan is not a checking or savings
account. You will not receive interest
or other earnings on the funds in your Layaway Plan.
D. Your Authorization for Recurring
Payments. By agreeing to use the RESERV digital layaway
saving plan or saving envelope, you authorize Reserv (or its payment processor
as described below) to electronically debit your bank account, or credit or
debit card, at your designated depository financial institution (your Bank Account ) via ACH and, if ever
applicable, to correct erroneous debits and credits via ACH, or charge your
credit card or debit, in the amount and frequency as you designated when you
enrolled in your Layaway Plan. We may
use debit or credit cards, and/or ACH, as determined by the commercial
requirements and payment preference of our customers at any given time.
You
acknowledge that this authorization represents your written authorization to
debit your bank account or charge your credit card on a recurring basis, and
will remain in full force and effect until you notify RESERV that you wish to
revoke this authorization by calling 877-677-2607
or emailing info@myreserv.com,
or you reach your funding goal to complete your purchase, whichever occurs
first. You must notify RESERV at least
three (3) Business Days before the next scheduled payment date in order to avoid
further payments. If we do not receive
notice at least three (3) Business Days before the scheduled payment date, we
may attempt, in our sole discretion, to cancel the transaction. However, we assume no responsibility for our
failure to do so. In addition to any of
your other representations and warranties in these Terms, you represent that:
(a) you are capable of printing, storing, or otherwise saving a copy of this
electronic authorization for your records; and (b) the ACH transactions you
hereby authorize comply with applicable law.
For purposes of these Terms, Business
Day means Monday through Friday, excluding federal banking holidays.
E. Funding your Layaway Plan by Bank
Account. If
you choose to fund your Layaway Plan by ACH from your bank account, you must
open a White Label account provided by Dwolla, Inc. ( Dwolla ) to link your bank account to your Dwolla account, and you
must accept the Dwolla Terms of Service
(See https://www.dwolla.com/legal/tos?whitelabel) and Privacy Policy (See to https://www.dwolla.com/legal/privacy?whitelabel). Any funds held in the Dwolla account are held
by Dwolla s financial institution partners as set out in the Dwolla Terms of
Service. You authorize us to share your
identity and account data with Dwolla for the purposes of opening and
supporting your Dwolla account, and you are responsible for the accuracy and
completeness of that data. You
understand that your Layaway Funds will be managed through your Dwolla account via
the Service, and Dwolla account notifications will be sent by us, not
Dwolla. We will provide customer support
for your Dwolla account activity, and can be reached using the contact
information set forth in the paragraph below.
For our compliance purposes, you hereby authorize us to, directly or
through a third-party, obtain, verify, and record information and documentation
that helps us verify your identity and yor bank account information. When you register for a Dwolla account and
from time to time thereafter, we may require you to provide and/or confirm
information and documentation that will allow us to identify you, such as:
A copy of your government-issued photo ID, such as a passport or driver s
license;
A copy of a utility bill, bank statement, affidavit, or other bill, dated
within three months of our request, with your name and U.S. street address on
it; and
Such other information and
documentation that we may require from time to time.
By
creating a Dwolla account, you automatically authorize us to obtain, directly
or indirectly through our third-party service providers and without any time
limit or the requirement to pay any fees, information about you and your bank account
from the financial institution holding your bank account and other third-party
websites and databases as necessary to provide the Service to you. For purposes of such authorization, you
hereby grant RESERV and our third-party service providers a limited power of
attorney, and you hereby appoint RESERV and our third-party service providers
as your true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for you and in your name, place, and stead, in
any and all capacities, to access third-party websites, servers, and documents;
retrieve information; and use your User Information, all as described above,
with the full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with such activities, as
fully to all intents and purposes as you might or could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN RESERV OR
OUR THIRD-PARTY SERVICE PROVIDERS ACCESS AND RETRIEVE INFORMATION FROM SUCH
THIRD-PARTY WEBSITES, RESERV AND OUR THIRD-PARTY SERVICE PROVIDERS ARE ACTING
AS YOUR AGENT, AND NOT THE AGENT OR ON BEHALF OF THE THIRD PARTY. You agree
that other third parties shall be entitled to rely on the foregoing
authorization, agency, and power of attorney granted by you. You understand and agree that the Service is
not endorsed or sponsored by any third-party account providers accessible
through the Service. We make no effort
to review information obtained from the financial institution holding your Bank
Account and other third-party websites and databases for any purpose,
including, but not limited to, accuracy, legality, or non-infringement. As
between RESERV and our third-party service providers, RESERV retains ownership
of your User Information.
F. Funding your Layaway Plan by Credit
Card or Debit Card. If
you choose to fund your Layaway Plan by credit card or debit card, you
represent that you are the primary or authorized user of the credit card or
debit card you present to us, and are authorized to present such credit card
for recurring charges as provided above.
You agree to maintain and update your credit card or debit card
information, including your expiration date, as necessary to ensure that we can
continue to charge your credit card or debit card in accordance with your
authorization. You further agree that we
may use any updated credit card information that we receive from your issuer or
the credit card or debit card network to continue recurring charges to fund
your Layaway Plan in accordance with your authorization. If we are unable to continue charging your
credit card to fund your Layaway Plan in accordance with your authorization, we
may in our sole discretion cancel your Layaway Plan and return your funds (less
any downpayment, if applicable) to your credit card or require you to claim
your funds through other reasonable means.
5. Feedback You Submit
A. General. RESERV may now or in the future offer users
of the Service the opportunity to post, upload, display, publish, distribute,
transmit or otherwise make available on or submit through the Service,
messages, text, files, comments, responses, information, content, results,
reviews, suggestions, personally identifiable information, or other information
or materials and the ideas contained therein (collectively, User-Generated Content ). RESERV may allow you to do this through
contact us, email, and other communications functionality. Subject to the rights and license you grant
in these Terms, you retain whatever legally cognizable right, title, and
interest that you have in your User-Generated Content and you remain ultimately
responsible for it.
B. Non-Confidentiality
of Your User-Generated Content.
Except as otherwise described in the Service s posted Privacy Policy or any Additional Terms,
you agree that: (a) your User-Generated Content will be treated as
non-confidential regardless of whether you mark them confidential,
proprietary, or the like and will not be returned; and (b) RESERV does not
assume any obligation of any kind to you or any third party with respect to
your User-Generated Content. Upon RESERV s
request, you will furnish us with any documentation necessary to substantiate
the rights to such content and to verify your compliance with these Terms or
any Additional Terms. You acknowledge
that the Internet and mobile communications may be subject to breaches of
security and that you are aware that submissions of User-Generated Content may
not be secure, and you will consider this before submitting any User-Generated
Content and do so at your own risk. In
your communications with RESERV, please keep in mind that we do not seek any
unsolicited ideas or materials for products or services, or even suggested improvements to products or
services, including, without limitation, ideas, concepts, inventions, or
designs for websites, services, products or otherwise (collectively, Unsolicited Ideas and Materials ). Any Unsolicited Ideas and Materials you post
on or send to us via the Service are deemed User-Generated Content and licensed
to us as set forth below. In addition, RESERV
retains all of the rights held by members of the general public with regard to
your Unsolicited Ideas and Materials. RESERV s
receipt of your Unsolicited Ideas and Materials is not an admission by RESERV
of their novelty, priority, or originality, and it does not impair RESERV s
right to contest existing or future intellectual property rights relating to
your Unsolicited Ideas and Materials.
C. License to RESERV of Your User-Generated
Content. Except as otherwise described in any
applicable Additional Terms, which specifically govern the submission of your
User-Generated Content), you hereby grant to RESERV, and you agree to grant to RESERV,
the non-exclusive, unrestricted, unconditional, unlimited, worldwide,
irrevocable, perpetual, and cost-free right and license to use, copy, record,
distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple
levels), display, publicly perform, transmit, publish, broadcast, translate,
make derivative works of, and otherwise use and exploit in any manner
whatsoever, all or any portion of your User-Generated Content (and derivative
works thereof), for any purpose whatsoever in all formats, on or through any
means or medium now known or hereafter developed, and with any technology or
devices now known or hereafter developed, and to advertise, market, and promote
the same. Without limitation, the
granted rights include the right to: (a) configure, host, index, cache,
archive, store, digitize, compress, optimize, modify, reformat, edit, adapt,
publish in searchable format, and remove such User-Generated Content and
combine same with other materials, and (b) use any ideas, concepts, know-how,
or techniques contained in any User-Generated Content for any purposes
whatsoever, including developing, producing, and marketing products and/or
services. In order to further effect the
rights and license that you grant to RESERV to your User-Generated Content, you
also hereby grant to RESERV, and agree to grant to RESERV, the unconditional,
perpetual, irrevocable right to use and exploit your name, persona, and
likeness in connection with any User-Generated Content, without any obligation
or remuneration to you. Except as
prohibited by law, you hereby waive, and you agree to waive, any moral rights
(including attribution and integrity) that you may have in any User-Generated
Content, even if it is altered or changed in a manner not agreeable to
you. To the extent not waivable, you
irrevocably agree not to exercise such rights (if any) in a manner that
interferes with any exercise of the granted rights. You understand that you will not receive any
fees, sums, consideration, or remuneration for any of the rights granted in
this Section 5(C).
6. Notices, Questions and Customer Service
You agree that: (i) we may give you
notices of new, revised or changed terms and other important matters by
prominently posting notice on the home page of the Service, or in another
reasonable manner; and (ii) we may contact you by mail or email sent to the
address provided by you. You agree to
promptly notify us if you change your email or mailing address.
If you have a question regarding using the
Service, you may contact at info@myreserv.com.
You acknowledge that the provision of customer support is at RESERV s
sole discretion and that we have no obligation to provide you with customer
support of any kind.
7. Links by You to the Service
We
grant you a limited, non-exclusive, revocable, non-assignable, personal, and
non-transferable license to create hyperlinks to the Service, so long as: (a)
the links only incorporate text, and do not use any Trademarks; (b) the links
and the content on your website do not suggest any affiliation with RESERV or
cause any other confusion; and (c) the links and the content on your website do
not portray RESERV or its products or services in a false, misleading,
derogatory, or otherwise offensive matter, and do not contain content that is
unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening,
harassing, or abusive, or that violate any right of any third party or are
otherwise objectionable to RESERV. RESERV
reserves the right to suspend or prohibit linking to the Service for any
reason, in its sole discretion, without advance notice or any liability of any
kind to you or any third party.
8. Linked-To
Websites; Advertisements; Dealings with Third Parties
A. Linked Services; Advertisements. The Service may contain links, as part of
third-party ads on the Service or otherwise, to or from third-party websites ( Linked Services ), including websites
operated by advertisers, licensors, licensees, and certain other third parties
who may have business relationships with RESERV. RESERV may have no control over the content,
operations, policies, terms, or other elements of Linked Services, and RESERV
does not assume any obligation to review any Linked Services. RESERV
does not endorse, approve, or
sponsor any Linked Services, or any third-party content, advertising,
information, materials, products, services, or other items. Furthermore, RESERV is not responsible for
the quality or delivery of the products or services offered, accessed, obtained
by or advertised at such Linked Services.
Finally, RESERV will under no circumstances be liable for any direct,
indirect, incidental or special loss or other damage, whether arising from
negligence, breach of contract, defamation, infringement of copyright or other
intellectual property rights, caused by the exhibition, distribution or
exploitation of any information or content contained within these third-party
Linked Services. Any activities you
engage in connection with any of the same are subject to the privacy and other
policies, terms and conditions of use and/or sale, and rules issued by the
operator of the Linked Services. RESERV
disclaims all liability in connection therewith.
B. Dealings with Third Parties. Any interactions, correspondence, transactions,
and other dealings that you have with any third parties found on or through the
Service (including on or via Linked Services or advertisements) are solely
between you and the third party (including issues related to the content of
third-party advertisements, payments, delivery of goods, warranties (including
product warranties), privacy and data security, and the like). RESERV disclaims all liability in connection
therewith.
9. Wireless
A. Wireless Features. The Service may offer certain features and
services that are available to you via your wireless Device. These features and services may include the
ability to access the Service s features and upload content to the Service,
receive messages from the Service, and download applications to your wireless
Device (collectively, Wireless Features ). Standard messaging, data, and other fees may
be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless
bill or be deducted from your pre-paid balance.
Your carrier may prohibit or restrict certain Wireless Features and
certain Wireless Features may be incompatible with your carrier or wireless
Device. You should check with your
carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding
these issues.
B. Terms of Wireless Features. You agree that as to the Wireless Features
for which you are registered for, we may send communications to your wireless
Device regarding us or other parties.
Further, we may collect information related to your use of the Wireless
Features. If you have registered via the
Service for Wireless Features, then you agree to notify RESERV of any changes
to your wireless contact information (including phone number).
10. Dispute
Resolution
Certain portions of this Section 10 are
deemed to be a written agreement to arbitrate pursuant to the Federal
Arbitration Act. You and RESERV agree that
we intend that this Section 10 satisfies the writing requirement of the
Federal Arbitration Act. This Section 10
can only be amended by mutual agreement.
A. First Try to Resolve Disputes and
Excluded Disputes. If any controversy, allegation, or claim
arises out of or relates to the Service, the Content, your User-Generated
Content, these Terms, or any Additional Terms, whether heretofore or hereafter
arising (collectively, Dispute ),
or to any of RESERV s actual or alleged intellectual property rights (an Excluded Dispute , which includes those
actions set forth in Section 10(D), then you and we agree to send a written
notice to the other providing a reasonable description of the Dispute or
Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based
on the most recent contact information that you provide us. But if no such contact information exists or
if such information is not current, then we have no obligation under this
Section 10(A). Your notice to us must be
sent to: Reserv, 128 Monroe St., Rockville, MD 20850 (Attn: Legal Department). For a period of sixty (60) days from the date
of receipt of notice from the other party, RESERV and you will engage in a
dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though
nothing will require either you or RESERV to resolve the Dispute or Excluded
Dispute on terms with respect to which you and RESERV, in each of our sole
discretion, are not comfortable.
B. Binding Arbitration. If we cannot resolve a Dispute as set
forth in Section 10(A) (or agree to arbitration in writing with respect to an
Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND
ALL DISPUTES ARISING BETWEEN YOU AND RESERV MUST BE RESOLVED BY FINAL AND
BINDING ARBITRATION. THIS INCLUDES ANY
AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING CONNECTED TO THE
PROVISION OR USE OF THE SERVICE (WHETHER BASED IN CONTRACT, STATUTE,
REGULATION, ORDINANCE, TORT - INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, FRAUD,
ANY OTHER INTENTIONAL TORT OR COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT
SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY - AND WHETHER ARISING
BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS. The Federal Arbitration Act ( FAA ) shall govern the arbitrability of
all disputes between RESERV and you regarding these Terms (and any Additional
Terms) and the Service, including the No Class Action Matters section
below. BY AGREEING TO ARBITRATE, EACH
PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A
JUDGE OR JURY.
A Dispute will be resolved solely by
binding arbitration administered by the Judicial Arbitration and Mediation
Services Inc. ( JAMS ), in
accordance with the then-current streamlined Arbitration Rules and Procedures
( Rules ) of, or by any other
arbitration administration service that you and an officer or legal
representative of RESERV consent to in writing.
If an in-person arbitration hearing is required, then it will be
conducted in the metropolitan statistical area (as defined by the U.S. Census
Bureau) where you are a resident at the time the Dispute is submitted to
arbitration. You and we will pay the administrative
and arbitrator s fees and other costs in accordance with the applicable Rules;
but if applicable Rules or laws require RESERV to pay a greater portion or all
of such fees and costs in order for this Section 10 to be enforceable, then RESERV
will have the right to elect to pay the fees and costs and proceed to
arbitration. The arbitrator will apply
and be bound by these Terms and any Additional Terms, and will determine any
Dispute according to applicable law and facts based upon the record and no
other basis, and will issue a reasoned award only in favor of the individual
party seeking relief and only to the extent to provide relief warranted by that
party s individual claim. Issues
relating to the enforceability of the arbitration and class action waiver
provisions contained herein are for the court to decide.
C. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST
THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS
SET FORTH IN SECTION 10(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR
IT WILL BE FOREVER BARRED. Commencing
means, as applicable: (a) by delivery of written notice as set forth above in
Section 10(A); (b) filing for arbitration with JAMS as set forth in Section 10(B);
or (c) filing an action in state or Federal court. The parties expressly waive any contrary
statute of limitations or time bars, both legal and equitable, to the Disputes.
D. Injunctive Relief. The foregoing provisions of this Section 10
will not apply to any legal action taken by RESERV to seek an injunction or
other equitable relief in connection with, any loss, cost, or damage (or any
potential loss, cost, or damage) relating to the Service, any Content, and/or RESERV s
intellectual property rights (including such RESERV may claim that may be in
dispute), RESERV s operations, and/or RESERV s products or services.
E. No Class Action Matters. YOU AND RESERV AGREE THAT EACH MAY BRING
CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A
PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING
OR AS AN ASSOCIATION. Disputes will be
arbitrated only on an individual basis and will not be joined or consolidated
with any other arbitrations or other proceedings that involve any claim or controversy
of any other party. There shall be no
right or authority for any Dispute to be arbitrated on a class action basis or
on any basis involving Disputes brought in a purported representative capacity
on behalf of the general public, or other persons or entities similarly
situated. But if, for any reason, any
court with competent jurisdiction holds that this restriction is unconscionable
or unenforceable, then our agreement in Section 10(B) to arbitrate will not
apply and the Dispute must be brought exclusively in court pursuant to Section 10(F). Notwithstanding any other provision of this
Section 10, any and all issues relating to the scope,
interpretation and enforceability of the class action waiver provisions
contained herein (described in this No Class Action Matters section), are to
be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to
vary these class action waiver provisions.
F. Federal and State Courts in Montgomery
County, Maryland. Except where arbitration is required above,
small claims actions, or with respect to the enforcement of any arbitration
decision or award, any action or proceeding relating to any Dispute or Excluded
Dispute arising hereunder may only be instituted in state or Federal court in Montgomery
County, MD. Accordingly, you and RESERV
consent to the exclusive personal jurisdiction and venue of such courts for
such matters.
G. Small Claims Matters Are Excluded from
Arbitration Requirement.
Notwithstanding the foregoing, either of us may bring qualifying claim
of Disputes (but not Excluded Disputes) in small claims court of competent
jurisdiction.
11. DISCLAIMER OF REPRESENTATIONS AND
WARRANTIES
YOUR ACCESS TO AND USE OF THE SERVICE IS
AT YOUR SOLE RISK. THE SERVICE IS
PROVIDED ON AN AS IS , AS AVAILABLE , AND WITH ALL FAULTS BASIS. Therefore, to the fullest extent permissible
by law, RESERV and its subsidiaries and each of their respective employees,
directors, members, managers, shareholders, agents, vendors, licensors,
licensees, contractors, customers, successors, and assigns (collectively, the RESERV Parties ) hereby disclaim and
make no representations, warranties, endorsements, or promises, express or
implied, as to:
(a) the Service (including the Content);
(b) the functions, features, or any other
elements on, or made accessible through, the Service;
(c) any products, services, or instructions
offered or referenced at or linked through the Service, including, those
products and services you purchase through the Service;
(d) security associated with the transmission
of your User Information transmitted to RESERV via the Service;
(e) whether the Service or the servers that
make the Service available are free from any harmful components (including
viruses, Trojan horses, and other technologies that could adversely impact your
Device);
(f) whether the information (including any
instructions) on the Service is accurate, complete, correct, adequate, useful,
timely, or reliable;
(g) whether any defects to or errors on the Service
will be repaired or corrected;
(h) whether your access to the Service will be
uninterrupted;
(i) whether the Service will be available at
any particular time or location; and
(j) whether your use of the Service is lawful
in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES
PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A RESERV PARTY, RESERV
PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE,
CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER
VIRUS.
Some jurisdictions limit or do not allow
the disclaimer of implied or other warranties so the above disclaimers may not
apply to the extent such jurisdictions laws are applicable.
12. LIMITATIONS OF OUR LIABILITY
UNDER NO CIRCUMSTANCES WILL ANY RESERV
PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including
personal injury or death or for any direct, indirect, economic, exemplary,
special, punitive, incidental, or consequential losses or damages that are
directly or indirectly related to:
(a) the Service (including the Content);
(b) your use of or inability to use the Service,
or the performance of the Service;
(c) any action taken in connection with an
investigation by RESERV Parties or law enforcement authorities regarding your
access to or use of the Service;
(d) any action taken in connection with copyright
or other intellectual property owners or other rights owners;
(e) any errors or omissions in the Service s
technical operation; or
(f) any damage to any user s computer,
hardware, software, modem, or other equipment or technology, including damage
from any security breach or from any virus, bugs, tampering, fraud, error,
omission, interruption, defect, delay in operation or transmission, computer
line, or network failure or any other technical or other malfunction, including
losses or damages in the form of lost profits, loss of goodwill, loss of data,
work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability
will apply even if any of the foregoing events or circumstances were
foreseeable and even if the RESERV Parties were advised of or should have known
of the possibility of such losses or damages, regardless of whether you bring
an action based in contract, negligence, strict liability, or tort (including
whether caused, in whole or in part, by negligence, acts of god,
telecommunications failure, or destruction of the Service).
Some jurisdictions do not allow the
exclusion or limitation of incidental or consequential damages of the sort that
are described above, so the above limitation or exclusion may not apply to
you.
EXCEPT AS MAY BE
PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT WILL RESERV PARTIES TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE
DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE
OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE
AMOUNT YOU HAVE PAID RESERV IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE
THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL
WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.
13. Waiver
of Injunctive or Other Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY
LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE
LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE
YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR
CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO
OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE
DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT,
USER-GENERATED CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED,
LICENSED, USED OR CONTROLLED BY RESERV (INCLUDING YOUR LICENSED USER-GENERATED
CONTENT) OR A LICENSOR OF RESERV.
14. Updates
to Terms
These Terms (or if applicable Additional
Terms), in the form posted at the time of your use of the applicable services
to which it applies, shall govern such use (including transactions entered
during such use). AS OUR SERVICE
EVOLVES, THE TERMS OF USE UNDER WHICH WE OFFER THE SERVICE MAY PROSPECTIVELY BE
MODIFIED AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR ADDITIONAL
TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED.
ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE YOU
ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS OF USE AND
YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SERVICE
(OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE
OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO
THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted terms
of service and any applicable Additional Terms each time you use the Service
(at least prior to each transaction or submission). The new terms will be effective as to new use
and transactions as of the time that we post them, or such later date as may be
specified in them or in other notice to you.
However, the terms of service (and any applicable Additional Terms) that
applied when you previously used the Service will continue to apply to such
prior use (i.e., changes and
additions are prospective only) unless mutually agreed. In the event any notice to you of new,
revised or additional terms is determined by a tribunal to be insufficient, the
prior agreement shall continue until sufficient notice to establish a new
agreement occurs. You should frequently
check the home page, and the email you associated with your purchases for
notices, all of which you agree are reasonable manners of providing you
notice. You can reject any new, revised
or Additional Terms by discontinuing use of the Service and related services.
15. General Provisions
A. RESERV s Consent or Approval. As to any provision in these Terms or any
Additional Terms that grants RESERV a right of consent or approval, or permits RESERV
to exercise a right in its sole discretion, RESERV may exercise that right in
its sole and absolute discretion. No RESERV
consent or approval may be deemed to have been granted by RESERV without being
in writing and signed by an officer of RESERV.
B. Applicable Law. These Terms and any Additional Terms will be
governed by and construed in accordance with, and any Dispute and Excluded
Dispute will be resolved in accordance with, the laws of the State of Maryland,
without regard to its conflicts of law provisions.
C. Indemnity. You agree to, and you hereby, defend,
indemnify, and hold RESERV Parties harmless from and against any and all
claims, damages, losses, costs, investigations, liabilities, judgments, fines,
penalties, settlements, interest, and expenses (including attorneys fees) that
directly or indirectly arise from or are related to any claim, suit, action,
demand, or proceeding made or brought against any RESERV Party, or on account
of the investigation, defense, or settlement thereof, arising out of or in
connection with, whether occurring heretofore or hereafter: (i) your
User-Generated Content; (ii) your use of the Service and your activities in
connection with the Service, including, without limitation, any transaction
entered into by you through your use of the Service; (iii) your breach or
alleged breach of these Terms or any Additional Terms; (iv) your violation or
alleged violation of any laws, rules, regulations, codes, statutes, ordinances,
or orders of any governmental or quasi-governmental authorities in connection
with your use of the Service or your activities in connection with the Service;
(v) information or material transmitted through your Device, even if not
submitted by you, that infringes, violates, or misappropriates any copyright,
trademark, trade secret, trade dress, patent, publicity, privacy, or other
right of any person or entity; (vi) any misrepresentation made by you; (vii)
any other party s access and/or use of the Service with your account; and (viii)
RESERV Parties use of the information that you submit to us (including your
User-Generated Content) (all of the foregoing, Claims and Losses ). You
will cooperate as fully required by RESERV Parties in the defense of any Claim
and Losses. Notwithstanding the
foregoing, RESERV Parties retain the
exclusive right to settle, compromise, and pay any and all Claims and
Losses. RESERV Parties reserve the right to assume the exclusive defense and
control of any Claims and Losses. You
will not settle any Claims and Losses without, in each instance, the prior
written consent of an officer of a RESERV Party.
D. Operation of Service; Availability of
Products and Services; International Issues.
RESERV controls and operates
the Service from its U.S.-based offices in the U.S.A., and RESERV makes no
representation that the Service is appropriate or available for use beyond the
U.S.A. If you use the Service from other
locations, you are doing so on your own initiative and are responsible for
compliance with applicable local laws regarding your online conduct and
acceptable content, if and to the extent local laws apply. The Service may describe products and
services that are available only in the U.S.A. (or only parts of it) and are
not available worldwide. We reserve the
right to limit the availability of the Service and/or the provision of any
content, program, product, service, or other feature described or available on
the Service to any person, entity, geographic area, or jurisdiction, at any
time and in our sole discretion, and to limit the quantities of any content,
program, product, service, or other feature that we provide. You and we disclaim any application to these
Terms of the Convention on Contracts for the International Sale of Goods.
E. Export Controls. Software related to or made available by the Service
may be subject to export controls of the U.S.A.
No software from the Service may be downloaded, exported, or re-exported:
(i) into (or to a national or resident of) any country or other jurisdiction to
which the U.S.A. has embargoed goods, software, technology or services (which,
as of the effective date of these Terms, includes Cuba, North Korea, Iran,
Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department s list of
Specially Designated Nationals or the U.S. Commerce Department s Table of Deny
Orders, or (iii) to anyone on the U.S. Department of Commerce s Bureau of
Industry and Security Entities List as published in the Export Administration
Regulations (including entities engaged in weapons of mass destruction
proliferation in various countries and persons and entities that are suspected
of diverting U.S. origin items to embargoed countries or terrorist
end-uses). You are responsible for
complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and
warrant not to export or re-export the software to any county, or to any
person, entity, or end-user subject to U.S. export controls, including as set
forth in subsections (i) (iii) above.
F. Severability; Interpretation. If any provision of these Terms, or any
Additional Terms, is for any reason deemed invalid, unlawful, void, or
unenforceable by a court or arbitrator of competent jurisdiction, then that
provision will be deemed severable from these Terms or the Additional Terms,
and the invalidity of the provision will not affect the validity or
enforceability of the remainder of these Terms or the Additional Terms (which
will remain in full force and effect).
To the extent permitted by applicable law, you agree to waive, and you
hereby waive, any applicable statutory and common law that may permit a
contract to be construed against its drafter.
Wherever the word including is used in these Terms or any Additional
Terms, the word will be deemed to mean including, without limitation, .
G. Communications. When you communicate with us electronically,
such as via email and text message, you consent to receive communications from
us electronically. Please note that we
are not obligated to respond to inquiries that we receive. You agree that all agreements, notices,
disclosures, and other communications that we provide to you electronically
satisfy any legal requirement that such communications be in writing.
H. Investigations; Cooperation with Law
Enforcement; Termination; Survival. RESERV
reserves the right, without any limitation, to: (i) investigate any suspected
breaches of its Service security or its information technology or other systems
or networks, (ii) investigate any suspected breaches of these Terms and any
Additional Terms, (iii) investigate any information obtained by RESERV in
connection with reviewing law enforcement databases or complying with criminal
laws, (iv) involve and cooperate with law enforcement authorities in
investigating any of the foregoing matters, (v) prosecute violators of these
Terms and any Additional Terms, and (vi) discontinue the Service, in whole or
in part, or, except as may be expressly set forth in any Additional Terms,
suspend or terminate your access to it, in whole or in part, including any user
accounts or registrations, at any time, without notice, for any reason and
without any obligation to you or any third party. Any suspension or termination will not
affect your obligations to RESERV under these Terms or any Additional
Terms. Upon suspension or termination of
your access to the Service, or upon notice from RESERV, all rights granted to
you under these Terms or any Additional Terms will cease immediately, and you
agree that you will immediately discontinue use of the Service. The provisions of these Terms and any
Additional Terms, which by their nature should survive your suspension or
termination will survive, including the rights and licenses you grant to RESERV
in these Terms, as well as the indemnities, releases, disclaimers, and
limitations on liability and the provisions regarding jurisdiction, choice of
law, no class action, and mandatory arbitration.
I. Assignment. RESERV may assign its rights and obligations
under these Terms and any Additional Terms, in whole or in part, to any party at
any time without any notice. These Terms
and any Additional Terms may not be assigned by you, and you may not delegate
your duties under them, without the prior written consent of an officer of RESERV.
J. No Waiver. Except as expressly set forth in these Terms
or any Additional Terms, (i) no failure or delay by you or RESERV in exercising
any of rights, powers, or remedies under will operate as a waiver of that or
any other right, power, or remedy, and (ii) no waiver or modification of any
term of these Terms or any Additional Terms will be effective unless in writing
and signed by the party against whom the waiver or modification is sought to be
enforced.
K. Connectivity. You are responsible for obtaining and
maintaining all Devices and other equipment and software, and all internet
service provider, mobile service, and other services needed for your access to
and use of the Service and you will be responsible for all charges related to
them.
L. California
Consumer Rights and Notices. Residents of
California are entitled to the following specific consumer rights information:
you may contact the Complaint Assistance Unit of the Division of Consumer
Services of the Department of Consumer Affairs by mail at: 400 R St., Suite
1080, Sacramento, California 95814, or
by telephone at (916) 445-1254. Their
website is located at: http://www.dca.ca.gov.