Terms of Use
By accessing or using Eatlink through Instagram, eatl.ink, any subdomain thereof, or the inKind mobile app (collectively, "Eatlink"), the authorized representative of a Merchant (as defined below) acting in the interest of, with the permission of, and on behalf of the Merchant (the authorized representative and the Merchant collectively are "You") acknowledge that You have read, understand and agree to be bound by these terms of use ("Terms of Use"). A "Merchant" is any business entity legally allowed to conduct business in its jurisdiction, state, and/or country. The authorized representative represents and warrants that he or she has attained the legal age of majority in his or her state or country and that he or she is legally capable of entering into binding contracts. In addition to these Terms of Use, You may enter into other agreements with Us or others that will govern your use of Eatlink or related services offered by Us or others. As used herein, "Users" means anyone who accesses or uses Eatlink.
These Terms of Use incorporate the inKind privacy policy, which is available to view here: privacy policy.
1) Amendments to Terms of Use
inKind Cards, Inc. ("We" or "Us") reserve the right to modify these Terms of Use at any time for any reason in our sole discretion. Any changes to these Terms of Use will become effective immediately upon the posting thereof. Please regularly review these Terms of Use to keep yourself apprised of any changes. Your continued use of eatl.ink following the posting of changes will constitute your acceptance of the revised Terms of Use.
If at any time You disagree with the Terms of Use or any changes thereto, You must stop using the Eatlink service and delete your account.
2) Term
You will be legally bound to these Terms of Use from the time You click the "Accept" button, until such time You delete your account, We delete your account, or We substantively change or discontinue the Eatlink service.
3) Description of Service
Eatlink is a service that provides restaurants and similar establishments with the ability to display results from multiple website links through their account on Instagram.
Eatlink will allow Merchants to connect Users to Merchants' third party order delivery and reservation platforms. However, Eatlink will not process any such transactions and is not responsible for any such transaction, fee splitting, or related taxes. Eatlink is not responsible for the content or functionality of any third party website. Merchants are responsible for their contractual relationships, payment transactions, and tax payments with their preferred third party vendors. Eatlink is not and will not be responsible for any failed transactions or for malfunctioning links to third party websites and services.
You acknowledge and agree that your use of any third-party sites is governed by the terms of use for those websites, and not by these Terms of Use. We do not endorse any third-party sites that have links on Eatlink or any products or services offered by such sites. We provide the links for your convenience and You access them at your own risk. Any third-party sites may have substantially different privacy policies and be less secure than our own, We are not responsible for the content of any third-party sites, nor do We make any representation or warranty, express or implied, regarding the content on any third- party site, and We shall have no liability of any nature whatsoever for any failure of products or services offered or advertised on such sites or otherwise.
4) Creation & Maintenance of an Eatlink Account
a) Registration and Account Security
In consideration of your use of Eatlink, You agree, when and if required, (a) to provide accurate, current, and complete information about your business, (b) to keep your password secure, (c) to update any information provided by You to Us in order to keep it accurate, current and complete, and (d) to be fully responsible for all use of your account and for any actions that take place using your account.
In order to use Eatlink, You must create an account through our system and set a username and password. You are responsible for alerting Us to any actual or potential breaches of your account as soon as discovered. Failure to protect one's account may result in suspension or dismissal from the Eatlink service or, if You are an inKind Partner Merchant (as defined below), Eatlink may take over maintenance of your account. An "inKind Partner Merchant" is any Merchant who is separately signed to an inKind Credit Purchase Agreement with inKind Cards, Inc., and its affiliates, making it a member partner of the inKind network, with a presence on the inKind mobile application.
b) Content
You are solely responsible for the content that You post or transmit to or share with actual and potential consumers on Instagram through Eatlink ("User Content"). Such User Content should:
- directly relate to your business;
- in all cases be truthful and accurate about the current goods and/or services You provide; and
- be appropriate for consumption by the general public.
You represent that all your User Content is directly owned by You, or that You have a license to use it and post it and can provide such licenses upon our reasonable request. Further, You represent that your User Content does not violate any law or legal obligation.
You represent, warrant and agree that no materials of any kind submitted through your account or otherwise posted or shared by You on eatl.ink will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights, or contain libelous, defamatory or otherwise unlawful material. You agree to comply with Instagram's Terms of Use. .
You understand and agree that We may, but are not obligated to, review and delete or remove (without notice) any User Content at any time in our sole discretion. This includes without limitation, User Content that in our judgment violates these Terms of Use, might be offensive, deceptive, illegal, or might violate the rights of, harm, or threaten the safety of, Users or others, in your or any other jurisdiction, state, and/or country (collectively, "Prohibited Content").
You represent that your User Content does not contain any malware, including, but not limited to disabling codes or instructions, software viruses, worms, Trojan Horses, or other harmful codes, designed to damage or destroy the Eatlink service or harm the reputation of Us.
Eatlink has a process for evaluating Users but does not fully investigate or vet such Users. Eatlink is not responsible for any claims associated with any issues regarding User Content. You should make whatever investigation You deem necessary or appropriate before making any claim or advertising any good. You are solely responsible for the care and quality of the goods and services being provided. We are not responsible for the accuracy or quality of any User Content generated by You or any other Merchant.
c) Site URLS
At registration, Eatlink Users may select and will be granted a unique domain and site URL through which they can manipulate User Content. Such site URL should directly relate to and appropriately identify Your business. Eatlink reserves the right to change the site URL at any time for any reason without notice to Users. If multiple parties desire to use the same site URL, the site URL will be granted to the first party to request it, unless there is a compelling reason, as determined by Us in our sole opinion, for Us to grant it to the latter party, even if such request is made at a later date.
5) License
By posting User Content to any part of Eatlink, You are deemed to grant to Us, and You represent and warrant that You have the right to grant, an irrevocable, perpetual, non-exclusive, transferable, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with Eatlink or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.
You may remove your User Content from eatl.ink at any time. However, if You choose to remove your User Content, the license granted above will not expire.
6) inKind Advertisements
(a) Cost; Mandatory Advertisements
Eatlink is provided to Users at no cost and is designed as a benefit to inKind Partner Merchants. Eatlink is currently further extended to Merchants outside the inKind network at no cost. As Our incentive to provide the Eatlink service and as a way to allay the costs of development and maintenance of Eatlink, We require space on each Merchant's customer user interface to advertise inKind gift cards and house accounts. If You do not want such advertisements to appear, You must terminate your Eatlink account.
(b) Gift Cards and House Accounts
Gift cards and house accounts are electronic credit certificates for specified dollar amounts that may be used to purchase items or services sold by an inKind Partner Merchant, and are treated the same by the inKind Partner Merchant as any physical gift cards or other electronic gift cards that the inKind Partner Merchant may from time to time sell.
The inKind Partner Merchant is solely responsible for all goods and services it provides to consumers and for any and all injuries, illnesses, damages, claims, liabilities and costs it may cause consumers to suffer, directly or indirectly, in full or in part, whether related to the use or redemption of a gift card or house account or not, as well as for any unclaimed property liability arising from unredeemed or partially redeemed Gift Cards or House Accounts.
inKind is solely the marketer of the inKind Partner Merchant's goods or services, and may from time to time engage third parties or affiliates to administer gift card and house account management on behalf of the inKind Partner Merchants.
The inKind Terms of Use govern the use of the inKind mobile app and use of inKind gift cards and house accounts. Pricing relating to certain gift cards and house accounts on inkind.com may change at any time in Our discretion, without notice.
7) Intellectual Property Rights
All software, registered and unregistered trademarks, service marks, trade names, brand names, patents, design, text, information, data, databases, images, photographs, illustrations, audio clips, video clips, artwork, graphic material, or other copyrightable elements (collectively, "Content"), other than User Content, are the property of Eatlink and/or its subsidiaries, affiliates, assigns, licensors, vendors, partners or other respective owners, and are protected, without limitation, pursuant to U.S. and foreign copyright laws. No Content (other than your own User Content) may be reproduced, modified, used to create derivative works, displayed, performed, published, distributed, disseminated, broadcast or circulated to any third party without our express prior written consent.
All data created by Eatlink, including that created based on your use patterns, habits, and User Content, belongs solely to Us. If there is any dispute as to the ownership, You agree to immediately transfer all right and title to the data to Us in perpetuity.
Any suggestions You make to Us regarding corrections, improvements, or new services, etc., will become our property and whether or not We incorporate such ideas, no payment will be due to You.
8) Trademarks
"Eatlink" and its logo (collectively, "Eatlink Trademarks") constitute our trademarks or service marks. Other company, product, and service names and logos used and displayed on eatl.ink may be trademarks or service marks owned by us or others. You may not use, copy, display, distribute, modify or reproduce any of the trademarks or service marks found on eatl.ink unless in accordance with written authorization by Us. The use of any of the Eatlink Trademarks as part of a link to or from any site is prohibited unless We provide advance written approval. Any questions concerning any Eatlink Trademarks, or whether any mark or logo is an Eatlink Trademark, should be referred to Us.
9) Use License
You are hereby granted a limited license to access and use the Eatlink website for commercial purposes as described under these Terms of Use only. You are completely responsible for the way You interact with Users visiting your Instagram profile and Eatlink profile contained therein. You are responsible for complying with all laws in your jurisdiction, state, and or country, including those related to advertising and permitted goods and services to be sold.
Under this license, whether successful or not, You may not directly or by proxy:
- modify or copy the Content except as expressly permitted hereby;
- post or otherwise make available Prohibited Content;
- post or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
- intimidate or harass another User;
- use the Content for any personal purpose or for any purpose not directly related to your primary commercial business;
- attempt to decompile or reverse engineer any software, source code, or algorithms contained within Eatlink;
- attempt to disrupt the Eatlink or inKind services, websites, and/or applications;
- create any automated user-generated content, use automated scripts to collect information from Eatlink or for any other purpose;
- improperly collect personally identifiable information from any User;
- improperly solicit or contact any User;
- infringe on any third party's copyrights, trademark rights, or other intellectual property rights;
- use Eatlink in any unlawful manner or in any other manner that could damage, disable, overburden or impair Eatlink
- remove any copyright or other proprietary notations from the Content;
- transfer the Content to another person or "mirror" the Content on any other server;
- register for more than one User account or register for a User account on behalf of another Merchant without being the authorized representative of such other Merchant;
- impersonate any person or entity, or falsely state or otherwise misrepresent your identity, your age or your affiliation with any person or entity;
- except as may be permitted under separate terms and conditions of use, upload, post, transmit, share, store or otherwise make publicly available on Eatlink any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers or bank account details; or
- use or attempt to use another's account, service, or system without our authorization.
This license shall automatically terminate if You violate any of the above restrictions. If We determine You have violated any of the above restrictions, We may terminate this license at our sole discretion at any time without notice.
10) Copyright Complaints
If You are the owner or controller of any copyright that You believe is being infringed by material on inkind.com, You may send a written notification under the Digital Millennium Copyright Act (via mail or email) of such infringement to inKind's Designated Agent to the following address:
Attn: Compliance Officer
inKind
610 W Live Oak St, Austin TX 78704
Or email: compliance@inkind.com
The notice must meet the notice requirements under the Digital Millennium Copyright Act. In accordance with the Digital Millennium Copyright Act and other applicable law, Eatlink has a policy of terminating, at its sole discretion, the registrations of Users who are deemed to be repeat infringers. We may also, at our sole discretion, limit the access to Eatlink afforded to any Users who infringe intellectual property rights of others.
11) Service Use Technical Requirements
In order to use Eatlink, you will need a web browser that supports cookies.
12) Use of Personally Identifiable Information
Please see our Privacy Policy.
13) Disclaimer of Warranties
WE DO NOT GUARANTEE THE ACCURACY, ADEQUACY, TIMELINESS, RELIABILITY, COMPLETENESS, OR USEFULNESS OF ANY OF THE CONTENT, AND WE DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE CONTENT.
EATLINK AND ALL OF THE CONTENT IS PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT ANY WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OR TITLE. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE OUTCOME OF YOUR USE OF THE CONTENT. WE DO NOT WARRANT THAT EATLINK IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS THAT MAY AFFECT YOUR BUSINESS OR YOUR USE OF INSTAGRAM. THIS DOES NOT AFFECT THOSE WARRANTIES THAT ARE INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
WE MAY DISCONTINUE OR MAKE CHANGES IN THE CONTENT AND EATLINK AT ANY TIME WITHOUT PRIOR NOTICE TO YOU AND WITHOUT ANY LIABILITY TO YOU. ANY DATED INFORMATION IS PUBLISHED AS OF ITS DATE ONLY, AND WE DO NOT UNDERTAKE ANY OBLIGATION OR RESPONSIBILITY TO UPDATE OR AMEND ANY SUCH INFORMATION. WE RESERVE THE RIGHT TO TERMINATE ANY OR ALL EATLINK OFFERINGS OR RELATED TRANSACTIONS WITHOUT PRIOR NOTICE TO YOU. EATLINK COULD CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. USE OF EATLINK IS AT YOUR OWN RISK.
14) Limitations of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR OUR AFFILIATES NOR OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, REPRESENTATIVES, NOR ANY THIRD-PARTY PROVIDERS TO THE SITES OR SERVICES, ARE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH USE OF EATLINK, OR WITH A USER'S DELAY OR INABILITY TO USE THE SITE, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES OBTAINED THROUGH EATLINK, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, FEDERAL OR STATE SECURITIES LAWS, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15) Indemnification
You agree to indemnify and hold inKind Cards, Inc., its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney's fees, arising out of or in connection with any User Content You post or share on or through inkind.com, your use of inkind.com or eatl.ink, your conduct in connection with eatl.ink or with other Users of eatl.ink, or any violation of these Terms of Use or of any law or the rights of any third party.
16) Consent to Electronic Disclosures
Eatlink can only give You the benefits of our service by conducting most of our business through the Internet. By agreeing to these Terms of Use You hereby consent to do business and receive all disclosures, notices, documents and information (collectively, "Communications") from Us in relation to all of your interactions on eatl.ink electronically by e-mail.
To access and retain the Communications electronically, You will need to use a computer with Internet Explorer 7.0 or above, Firefox 3.0 or above, Google Chrome or similar software, Adobe Acrobat and hardware capable of running this software. By agreeing to these Terms of Use You hereby acknowledge that You can access the electronic Communications in these formats.
You may withdraw your consent to receive Communications electronically by contacting Us via email at support@inkind.com with the subject heading "Electronic Disclosures". The withdrawal of your consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between Us prior to the time You withdraw your consent.
You may also elect to receive paper copies of any Communications by contacting Us at the email address stated above.
Please keep Us informed of any changes in your email or mailing address so that You continue to receive all Communications without interruption.
17) Governing Law; Venue
These Terms of Use and all matters or issues collateral thereto will be governed by, construed and enforced in accordance with the laws of the State of Delaware without regard to conflict-of-laws principles.
Any dispute or claim relating in any way to your use of Eatlink, or to products or services sold or distributed by Us or through Us, will be resolved by binding arbitration rather than in court, with the following exceptions:
- You may assert claims in small claims court if your claims apply; and
- In the event that the arbitration agreement in these Terms of Use is for any reason held to be unenforceable, any litigation against Us (except for small-claims court actions) may be commenced only in a federal or state court located within the state of Texas, and We both consent to the jurisdiction of those courts for such purposes.
The arbitration agreement in these Terms of Use is governed by the Federal Arbitration Act (FAA), including its procedural provisions, in all respects. This means that the FAA governs, among other things, the interpretation and enforcement of this arbitration agreement and all of its provisions, including, without limitation, the class action waiver discussed below. State arbitration laws do not govern in any respect.
This arbitration agreement is intended to be broadly interpreted, and will survive termination of these Terms of Use. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to the extent permitted by law to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this agreement, including, but not limited to any claim that all or any part of this agreement is void or voidable. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow these Terms of Use as a court would.
To begin an arbitration proceeding, You must send a letter requesting arbitration and describing your claim to: inKind, 610 West Live Oak Street, Austin, Texas 78704, Attn: Legal. You may download the forms located at http://www.jamsadr.com. The arbitration will be conducted by JAMS under its Streamlined Arbitration Rules and Procedures or, if applicable, its Comprehensive Arbitration Rules and Procedures, and any applicable supplemental rules including its Consumer Arbitration Standards of Minimum Fairness. The JAMS Rules are available online at http://www.jamsadr.com or by calling (800)-352-5267. Payment of all filing, administration and arbitrator fees will be governed by JAMS's rules. In no event will We pay for attorneys' fees. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where You live or at another mutually agreed location.
We each agree that the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding, and that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. You agree to waive any right to a jury trial or to participate in a class action. If this specific provision is found to be unenforceable, then the entirety of this arbitration section will be null and void and neither of Us will be entitled to arbitrate our dispute.
18) Availability
eatl.ink is not intended for use by, or distribution to, any person or entity in any jurisdiction or country where such use or distribution would be contrary to applicable law or regulation. By offering eatl.ink and Content, We make no distribution or solicitation to any person to use eatl.ink or Content in jurisdictions where the provision of eatl.ink and/or Content is prohibited by law.
19) Other Agreements
These Terms of Use shall be subject to any other agreements You have entered into with Us.
20) Additional Terms
Certain sections or pages on eatl.ink may contain separate terms and conditions of use, which are in addition to the terms and conditions of these Terms of Use. In the event of a conflict, those additional terms and conditions will govern for those sections or pages of eatl.ink.
21) General Provisions
If any provision of these Terms of Use is found to be invalid or unenforceable, the provisions shall be enforced to the fullest extent possible, and the remaining provisions of these Terms of Use shall remain in full force and effect. These Terms of Use supersede any previous Terms of Use to which You and We may have been bound. These Terms of Use will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Neither the course of conduct between parties nor trade practice shall be deemed to modify any provision of these Terms of Use. Our failure to enforce any provision of these Terms of Use will not constitute a waiver of that or any other term, nor prohibit our right to enforce such term upon a subsequent violation. All rights not expressly granted herein are hereby reserved. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
These Terms of Use incorporate the inKind privacy policy, which is available to view here: privacy policy.
1) Amendments to Terms of Use
inKind Cards, Inc. ("We" or "Us") reserve the right to modify these Terms of Use at any time for any reason in our sole discretion. Any changes to these Terms of Use will become effective immediately upon the posting thereof. Please regularly review these Terms of Use to keep yourself apprised of any changes. Your continued use of eatl.ink following the posting of changes will constitute your acceptance of the revised Terms of Use.
If at any time You disagree with the Terms of Use or any changes thereto, You must stop using the Eatlink service and delete your account.
2) Term
You will be legally bound to these Terms of Use from the time You click the "Accept" button, until such time You delete your account, We delete your account, or We substantively change or discontinue the Eatlink service.
3) Description of Service
Eatlink is a service that provides restaurants and similar establishments with the ability to display results from multiple website links through their account on Instagram.
Eatlink will allow Merchants to connect Users to Merchants' third party order delivery and reservation platforms. However, Eatlink will not process any such transactions and is not responsible for any such transaction, fee splitting, or related taxes. Eatlink is not responsible for the content or functionality of any third party website. Merchants are responsible for their contractual relationships, payment transactions, and tax payments with their preferred third party vendors. Eatlink is not and will not be responsible for any failed transactions or for malfunctioning links to third party websites and services.
You acknowledge and agree that your use of any third-party sites is governed by the terms of use for those websites, and not by these Terms of Use. We do not endorse any third-party sites that have links on Eatlink or any products or services offered by such sites. We provide the links for your convenience and You access them at your own risk. Any third-party sites may have substantially different privacy policies and be less secure than our own, We are not responsible for the content of any third-party sites, nor do We make any representation or warranty, express or implied, regarding the content on any third- party site, and We shall have no liability of any nature whatsoever for any failure of products or services offered or advertised on such sites or otherwise.
4) Creation & Maintenance of an Eatlink Account
a) Registration and Account Security
In consideration of your use of Eatlink, You agree, when and if required, (a) to provide accurate, current, and complete information about your business, (b) to keep your password secure, (c) to update any information provided by You to Us in order to keep it accurate, current and complete, and (d) to be fully responsible for all use of your account and for any actions that take place using your account.
In order to use Eatlink, You must create an account through our system and set a username and password. You are responsible for alerting Us to any actual or potential breaches of your account as soon as discovered. Failure to protect one's account may result in suspension or dismissal from the Eatlink service or, if You are an inKind Partner Merchant (as defined below), Eatlink may take over maintenance of your account. An "inKind Partner Merchant" is any Merchant who is separately signed to an inKind Credit Purchase Agreement with inKind Cards, Inc., and its affiliates, making it a member partner of the inKind network, with a presence on the inKind mobile application.
b) Content
You are solely responsible for the content that You post or transmit to or share with actual and potential consumers on Instagram through Eatlink ("User Content"). Such User Content should:
- directly relate to your business;
- in all cases be truthful and accurate about the current goods and/or services You provide; and
- be appropriate for consumption by the general public.
You represent that all your User Content is directly owned by You, or that You have a license to use it and post it and can provide such licenses upon our reasonable request. Further, You represent that your User Content does not violate any law or legal obligation.
You represent, warrant and agree that no materials of any kind submitted through your account or otherwise posted or shared by You on eatl.ink will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights, or contain libelous, defamatory or otherwise unlawful material. You agree to comply with Instagram's Terms of Use. .
You understand and agree that We may, but are not obligated to, review and delete or remove (without notice) any User Content at any time in our sole discretion. This includes without limitation, User Content that in our judgment violates these Terms of Use, might be offensive, deceptive, illegal, or might violate the rights of, harm, or threaten the safety of, Users or others, in your or any other jurisdiction, state, and/or country (collectively, "Prohibited Content").
You represent that your User Content does not contain any malware, including, but not limited to disabling codes or instructions, software viruses, worms, Trojan Horses, or other harmful codes, designed to damage or destroy the Eatlink service or harm the reputation of Us.
Eatlink has a process for evaluating Users but does not fully investigate or vet such Users. Eatlink is not responsible for any claims associated with any issues regarding User Content. You should make whatever investigation You deem necessary or appropriate before making any claim or advertising any good. You are solely responsible for the care and quality of the goods and services being provided. We are not responsible for the accuracy or quality of any User Content generated by You or any other Merchant.
c) Site URLS
At registration, Eatlink Users may select and will be granted a unique domain and site URL through which they can manipulate User Content. Such site URL should directly relate to and appropriately identify Your business. Eatlink reserves the right to change the site URL at any time for any reason without notice to Users. If multiple parties desire to use the same site URL, the site URL will be granted to the first party to request it, unless there is a compelling reason, as determined by Us in our sole opinion, for Us to grant it to the latter party, even if such request is made at a later date.
5) License
By posting User Content to any part of Eatlink, You are deemed to grant to Us, and You represent and warrant that You have the right to grant, an irrevocable, perpetual, non-exclusive, transferable, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with Eatlink or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.
You may remove your User Content from eatl.ink at any time. However, if You choose to remove your User Content, the license granted above will not expire.
6) inKind Advertisements
(a) Cost; Mandatory Advertisements
Eatlink is provided to Users at no cost and is designed as a benefit to inKind Partner Merchants. Eatlink is currently further extended to Merchants outside the inKind network at no cost. As Our incentive to provide the Eatlink service and as a way to allay the costs of development and maintenance of Eatlink, We require space on each Merchant's customer user interface to advertise inKind gift cards and house accounts. If You do not want such advertisements to appear, You must terminate your Eatlink account.
(b) Gift Cards and House Accounts
Gift cards and house accounts are electronic credit certificates for specified dollar amounts that may be used to purchase items or services sold by an inKind Partner Merchant, and are treated the same by the inKind Partner Merchant as any physical gift cards or other electronic gift cards that the inKind Partner Merchant may from time to time sell.
The inKind Partner Merchant is solely responsible for all goods and services it provides to consumers and for any and all injuries, illnesses, damages, claims, liabilities and costs it may cause consumers to suffer, directly or indirectly, in full or in part, whether related to the use or redemption of a gift card or house account or not, as well as for any unclaimed property liability arising from unredeemed or partially redeemed Gift Cards or House Accounts.
inKind is solely the marketer of the inKind Partner Merchant's goods or services, and may from time to time engage third parties or affiliates to administer gift card and house account management on behalf of the inKind Partner Merchants.
The inKind Terms of Use govern the use of the inKind mobile app and use of inKind gift cards and house accounts. Pricing relating to certain gift cards and house accounts on inkind.com may change at any time in Our discretion, without notice.
7) Intellectual Property Rights
All software, registered and unregistered trademarks, service marks, trade names, brand names, patents, design, text, information, data, databases, images, photographs, illustrations, audio clips, video clips, artwork, graphic material, or other copyrightable elements (collectively, "Content"), other than User Content, are the property of Eatlink and/or its subsidiaries, affiliates, assigns, licensors, vendors, partners or other respective owners, and are protected, without limitation, pursuant to U.S. and foreign copyright laws. No Content (other than your own User Content) may be reproduced, modified, used to create derivative works, displayed, performed, published, distributed, disseminated, broadcast or circulated to any third party without our express prior written consent.
All data created by Eatlink, including that created based on your use patterns, habits, and User Content, belongs solely to Us. If there is any dispute as to the ownership, You agree to immediately transfer all right and title to the data to Us in perpetuity.
Any suggestions You make to Us regarding corrections, improvements, or new services, etc., will become our property and whether or not We incorporate such ideas, no payment will be due to You.
8) Trademarks
"Eatlink" and its logo (collectively, "Eatlink Trademarks") constitute our trademarks or service marks. Other company, product, and service names and logos used and displayed on eatl.ink may be trademarks or service marks owned by us or others. You may not use, copy, display, distribute, modify or reproduce any of the trademarks or service marks found on eatl.ink unless in accordance with written authorization by Us. The use of any of the Eatlink Trademarks as part of a link to or from any site is prohibited unless We provide advance written approval. Any questions concerning any Eatlink Trademarks, or whether any mark or logo is an Eatlink Trademark, should be referred to Us.
9) Use License
You are hereby granted a limited license to access and use the Eatlink website for commercial purposes as described under these Terms of Use only. You are completely responsible for the way You interact with Users visiting your Instagram profile and Eatlink profile contained therein. You are responsible for complying with all laws in your jurisdiction, state, and or country, including those related to advertising and permitted goods and services to be sold.
Under this license, whether successful or not, You may not directly or by proxy:
- modify or copy the Content except as expressly permitted hereby;
- post or otherwise make available Prohibited Content;
- post or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
- intimidate or harass another User;
- use the Content for any personal purpose or for any purpose not directly related to your primary commercial business;
- attempt to decompile or reverse engineer any software, source code, or algorithms contained within Eatlink;
- attempt to disrupt the Eatlink or inKind services, websites, and/or applications;
- create any automated user-generated content, use automated scripts to collect information from Eatlink or for any other purpose;
- improperly collect personally identifiable information from any User;
- improperly solicit or contact any User;
- infringe on any third party's copyrights, trademark rights, or other intellectual property rights;
- use Eatlink in any unlawful manner or in any other manner that could damage, disable, overburden or impair Eatlink
- remove any copyright or other proprietary notations from the Content;
- transfer the Content to another person or "mirror" the Content on any other server;
- register for more than one User account or register for a User account on behalf of another Merchant without being the authorized representative of such other Merchant;
- impersonate any person or entity, or falsely state or otherwise misrepresent your identity, your age or your affiliation with any person or entity;
- except as may be permitted under separate terms and conditions of use, upload, post, transmit, share, store or otherwise make publicly available on Eatlink any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers or bank account details; or
- use or attempt to use another's account, service, or system without our authorization.
This license shall automatically terminate if You violate any of the above restrictions. If We determine You have violated any of the above restrictions, We may terminate this license at our sole discretion at any time without notice.
10) Copyright Complaints
If You are the owner or controller of any copyright that You believe is being infringed by material on inkind.com, You may send a written notification under the Digital Millennium Copyright Act (via mail or email) of such infringement to inKind's Designated Agent to the following address:
Attn: Compliance Officer
inKind
610 W Live Oak St, Austin TX 78704
Or email: compliance@inkind.com
The notice must meet the notice requirements under the Digital Millennium Copyright Act. In accordance with the Digital Millennium Copyright Act and other applicable law, Eatlink has a policy of terminating, at its sole discretion, the registrations of Users who are deemed to be repeat infringers. We may also, at our sole discretion, limit the access to Eatlink afforded to any Users who infringe intellectual property rights of others.
11) Service Use Technical Requirements
In order to use Eatlink, you will need a web browser that supports cookies.
12) Use of Personally Identifiable Information
Please see our Privacy Policy.
13) Disclaimer of Warranties
WE DO NOT GUARANTEE THE ACCURACY, ADEQUACY, TIMELINESS, RELIABILITY, COMPLETENESS, OR USEFULNESS OF ANY OF THE CONTENT, AND WE DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE CONTENT.
EATLINK AND ALL OF THE CONTENT IS PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT ANY WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OR TITLE. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE OUTCOME OF YOUR USE OF THE CONTENT. WE DO NOT WARRANT THAT EATLINK IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS THAT MAY AFFECT YOUR BUSINESS OR YOUR USE OF INSTAGRAM. THIS DOES NOT AFFECT THOSE WARRANTIES THAT ARE INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
WE MAY DISCONTINUE OR MAKE CHANGES IN THE CONTENT AND EATLINK AT ANY TIME WITHOUT PRIOR NOTICE TO YOU AND WITHOUT ANY LIABILITY TO YOU. ANY DATED INFORMATION IS PUBLISHED AS OF ITS DATE ONLY, AND WE DO NOT UNDERTAKE ANY OBLIGATION OR RESPONSIBILITY TO UPDATE OR AMEND ANY SUCH INFORMATION. WE RESERVE THE RIGHT TO TERMINATE ANY OR ALL EATLINK OFFERINGS OR RELATED TRANSACTIONS WITHOUT PRIOR NOTICE TO YOU. EATLINK COULD CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. USE OF EATLINK IS AT YOUR OWN RISK.
14) Limitations of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR OUR AFFILIATES NOR OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, REPRESENTATIVES, NOR ANY THIRD-PARTY PROVIDERS TO THE SITES OR SERVICES, ARE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH USE OF EATLINK, OR WITH A USER'S DELAY OR INABILITY TO USE THE SITE, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES OBTAINED THROUGH EATLINK, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, FEDERAL OR STATE SECURITIES LAWS, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15) Indemnification
You agree to indemnify and hold inKind Cards, Inc., its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney's fees, arising out of or in connection with any User Content You post or share on or through inkind.com, your use of inkind.com or eatl.ink, your conduct in connection with eatl.ink or with other Users of eatl.ink, or any violation of these Terms of Use or of any law or the rights of any third party.
16) Consent to Electronic Disclosures
Eatlink can only give You the benefits of our service by conducting most of our business through the Internet. By agreeing to these Terms of Use You hereby consent to do business and receive all disclosures, notices, documents and information (collectively, "Communications") from Us in relation to all of your interactions on eatl.ink electronically by e-mail.
To access and retain the Communications electronically, You will need to use a computer with Internet Explorer 7.0 or above, Firefox 3.0 or above, Google Chrome or similar software, Adobe Acrobat and hardware capable of running this software. By agreeing to these Terms of Use You hereby acknowledge that You can access the electronic Communications in these formats.
You may withdraw your consent to receive Communications electronically by contacting Us via email at support@inkind.com with the subject heading "Electronic Disclosures". The withdrawal of your consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between Us prior to the time You withdraw your consent.
You may also elect to receive paper copies of any Communications by contacting Us at the email address stated above.
Please keep Us informed of any changes in your email or mailing address so that You continue to receive all Communications without interruption.
17) Governing Law; Venue
These Terms of Use and all matters or issues collateral thereto will be governed by, construed and enforced in accordance with the laws of the State of Delaware without regard to conflict-of-laws principles.
Any dispute or claim relating in any way to your use of Eatlink, or to products or services sold or distributed by Us or through Us, will be resolved by binding arbitration rather than in court, with the following exceptions:
- You may assert claims in small claims court if your claims apply; and
- In the event that the arbitration agreement in these Terms of Use is for any reason held to be unenforceable, any litigation against Us (except for small-claims court actions) may be commenced only in a federal or state court located within the state of Texas, and We both consent to the jurisdiction of those courts for such purposes.
The arbitration agreement in these Terms of Use is governed by the Federal Arbitration Act (FAA), including its procedural provisions, in all respects. This means that the FAA governs, among other things, the interpretation and enforcement of this arbitration agreement and all of its provisions, including, without limitation, the class action waiver discussed below. State arbitration laws do not govern in any respect.
This arbitration agreement is intended to be broadly interpreted, and will survive termination of these Terms of Use. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to the extent permitted by law to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this agreement, including, but not limited to any claim that all or any part of this agreement is void or voidable. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow these Terms of Use as a court would.
To begin an arbitration proceeding, You must send a letter requesting arbitration and describing your claim to: inKind, 610 West Live Oak Street, Austin, Texas 78704, Attn: Legal. You may download the forms located at http://www.jamsadr.com. The arbitration will be conducted by JAMS under its Streamlined Arbitration Rules and Procedures or, if applicable, its Comprehensive Arbitration Rules and Procedures, and any applicable supplemental rules including its Consumer Arbitration Standards of Minimum Fairness. The JAMS Rules are available online at http://www.jamsadr.com or by calling (800)-352-5267. Payment of all filing, administration and arbitrator fees will be governed by JAMS's rules. In no event will We pay for attorneys' fees. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where You live or at another mutually agreed location.
We each agree that the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding, and that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. You agree to waive any right to a jury trial or to participate in a class action. If this specific provision is found to be unenforceable, then the entirety of this arbitration section will be null and void and neither of Us will be entitled to arbitrate our dispute.
18) Availability
eatl.ink is not intended for use by, or distribution to, any person or entity in any jurisdiction or country where such use or distribution would be contrary to applicable law or regulation. By offering eatl.ink and Content, We make no distribution or solicitation to any person to use eatl.ink or Content in jurisdictions where the provision of eatl.ink and/or Content is prohibited by law.
19) Other Agreements
These Terms of Use shall be subject to any other agreements You have entered into with Us.
20) Additional Terms
Certain sections or pages on eatl.ink may contain separate terms and conditions of use, which are in addition to the terms and conditions of these Terms of Use. In the event of a conflict, those additional terms and conditions will govern for those sections or pages of eatl.ink.
21) General Provisions
If any provision of these Terms of Use is found to be invalid or unenforceable, the provisions shall be enforced to the fullest extent possible, and the remaining provisions of these Terms of Use shall remain in full force and effect. These Terms of Use supersede any previous Terms of Use to which You and We may have been bound. These Terms of Use will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Neither the course of conduct between parties nor trade practice shall be deemed to modify any provision of these Terms of Use. Our failure to enforce any provision of these Terms of Use will not constitute a waiver of that or any other term, nor prohibit our right to enforce such term upon a subsequent violation. All rights not expressly granted herein are hereby reserved. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.