SHAMROCK REWARDS LOYALTY PROGRAM TERMS AND CONDITIONS
Effective Date: September 1, 2018
A. OVERVIEW OF PROGRAM
The Shamrock Rewards Loyalty Program (“Program”) is a trade awards program in which eligible, registered business accounts (“Participants” “you,” or “your”) may participate to earn and accumulate points (“Points”) by purchasing qualifying products and completing various offered Activities (defined below) on the Shamrock Rewards portal, subject to the terms and conditions set forth in these Program Terms and Conditions (“Terms”). Shamrock Foods Company (“Sponsor”) is the administrator of this Program. Participants will have an opportunity to participate in Promotions, limited time and/or quantity offers, NOI (Net off Invoice) EXPO Allowance programs, EXPO Customer Promotions, Signature Savings Rebate Programs, Limited Time Offers (LTO) Promotions and Customer Trip Promotions, or participate in other activities on the portal (“Promotions”). If an underlying “parent” business has more than one location, each location may participate individually or accumulate Points into the business account for the benefit of that underlying business (parent), depending on the program. Should a parent business wish to have the individual location accumulate Points on its own behalf, rather than for the parent, the parent must provide Shamrock with this information prior to the time Points begin accumulating.
The Program is offered only in the states of Arizona, California, Colorado, Idaho, Kansas, Nebraska, New Mexico, Montana, Oregon, Texas, Utah, and Wyoming to active, eligible Participants. An eligible Participant is a new or current independent restaurant business account customer of Sponsor who is in good credit-standing as of the date of enrollment and at time of Award. Sponsor will assign eligible Participants a Region by participating state (“Region”) and then to an appropriate like-sized business group as solely determined by Sponsor (“Group”). This Program is not open to specific channel customers, such as national accounts, schools/universities, military accounts, or contracted healthcare accounts. This Program is void where taxed, restricted or otherwise prohibited.
Each time you access and/or use the Program, you agree to be bound by and comply with these Terms and any Additional Terms that may be included in a specific Promotion. If you do not agree to these Terms, you may not participate in the Program. Additionally, if you register into the Program and later wish to, you may opt out of the Shamrock Rewards Program at any time by submitting a request in writing to Shamrock Foods Company – Customer Engagement Dept., 3900 E Camelback Road, Phoenix AZ 85018.
Shamrock, in its sole discretion, will determine which Promotions will be offered under this Program. Upon implementation of the Program, Shamrock will include all Participants who register and agree to the terms and conditions to be entered into the Program for the Customer Trip Promotion. As more Promotions are added to the Program, the Portal will be updated.
In some instances, both these Terms and separate guidelines, rules, or terms of service, setting forth additional or different terms and/or conditions will apply to your use of the Program (“Additional Terms”). For example, in addition to these Terms, any contest, sweepstakes or other promotion we may offer as part of the Program or to Program members, is and will also be subject to separate official rules (“Official Rules”), which will be posted in the Program during the applicable promotion period and will govern Participants’ participation, and our execution, of each Promotion. 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.
Any information Participants provide to us in connection with this Program or any other Promotion or offer operated in connection with this Program is subject to Shamrock’s Privacy Policy (available at https://www.shamrockfoodservice.com/pages/privacy.aspx).
B. SPONSOR AND ADMINISTRATOR
The “Sponsor” and “Administrator” is Shamrock Foods Company, 3900 E Camelback Road, Suite 300, Phoenix AZ 85018. As used in these Terms, the terms “we,” “us,” and “our” shall be deemed to collectively refer to Sponsor and Administrator. As stated above, the terms “Participant,” “you,” and “your” mean eligible, registered participants of the Program.
C. PROGRAM PERIOD AND ELIGIBILITY
The Program starts on or about 12:00 am Mountain Time on or about September 1, 2018.
The sponsor reserves the right to shorten, extend, suspend, modify, terminate or cancel the Program, in its sole discretion, at any time. Participants are solely responsible for determining the corresponding time zone in their respective jurisdictions.
In connection with your business Account, you are agreeing, on behalf of your business, that: (i) at all times the Account will provide true, accurate, current, and complete information of whatever kind (whether of a commercial, business or personal nature) and, as permitted, the Account will be maintained and updated promptly to keep it accurate, current, and complete; (ii) you are solely responsible for all information reporting and any other use of, or activities that occur under your Account – whether or not you authorized the activity; (iii) you are solely responsible for maintaining the confidentiality of your Account and for restricting access to your Account, computer, mobile phone or other wireless device, or other Internet enabled device (“Device”) so that only those with your permission may access the Program or your Account; (iv) you will immediately notify us of any unauthorized use of your Account, or any other breach of security; and (v) you will not sell, transfer, or assign your Account, or any element thereof. 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 to comply with any of the obligations in these Terms. If any information that you provide is false, inaccurate, outdated, incomplete, or violates these Terms, or any applicable law, we may suspend or terminate your participation in the Program and you will forfeit any accumulated Points. We also reserve the right to terminate your Account or suspend or otherwise deny you access to your Account or the Points in our sole discretion, for any reason, and without advance notice or liability.
Employees, officers, directors of Shamrock, its parent company, and each of its respective subsidiaries and affiliated companies, any advertising/promotion agencies, entities or individuals engaged in the development, administration, production, or distribution of materials for, or implementation of the Program (collectively referred to herein as the “Program Entities”), and the immediate family members (or those living in their same household as any person in any of the preceding categories are not eligible to participate in the Program. Should any employee of a Program Entity also manage an account that is part of a larger organization (Parent), the employee may participate in the Program, but solely to earn Points to be used by the Parent.
IMPORTANT NOTICE: Participants have the responsibility to review and understand applicable government policies and/or their employer’s policies and all applicable laws, rules and regulations (“laws”) regarding eligibility to participate in trade promotions, including this Program. If an individual is participating in violation of their employer’s policies or laws, that individual will be disqualified from this Promotion, or from receiving a prize, in Sponsor’s sole discretion. Sponsor disclaims any and all liability and responsibility related to this matter.
By accessing the Portal and participating in the Program, such action constitutes Participant’s full and unconditional agreement to these Terms. Sponsor reserves the right to revise or change these Terms at any time. If the Terms are updated, any changes will apply to all Participants enrolled in the Program on the date the revised Terms are posted on the Portal. AS OUR PROGRAM EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE PROGRAM MAY BE MODIFIED. FURTHER, WE MAY CEASE OFFERING THE PROGRAM UNDER THE TERMS OR ADD ADDITIONAL TERMS FROM THOSE PREVIOUSLY OFFERED. Therefore, you should review the posted Terms each time you use the Program (at least prior to each transaction or submission).
D. PARTICIPATION IN ACTIVITIES & POINTS
When Participants register with Shamrock Rewards to participate in this Program, they will become eligible to participate in selected Promotions, Signature Savings Rebate Programs, EXPO Promotions & Allowances, and to earn Points that may be used to purchase select Shamrock Foods products during the dates of the Promotion. Each Promotion in this Program will have its own eligibility, criteria and promotional period.
In addition to the above mentioned incentives, Participants will be eligible to participate in the Shamrock Rewards Customer Trip Promotion. Eligible Participants will earn points by buying select Shamrock products that will be used to determine eligibility to attend the Customer Trip.
Please refer to the official rules of the Customer Trip Promotion. Some restrictions may apply.
E. POINTS EXPIRATION AND FORFEITURE FOR ACCOUNT CANCELLATION OR INACTIVITY
As specified in each Promotion’s Rules, unused Points will expire at the end of a specific Promotion. Once Points expire, they are no longer available for use by the Participant and Sponsor will have no liability for the Points. Points do not have any monetary value and may not be exchanged for actual compensation.
Sponsor may terminate any Participant’s Account, in its sole discretion, if a Participant is in violation of any of these Terms, including, without limitation, failure to follow Program policies and procedures, the sale or barter of merchandise/Awards/prizes or Points and any misrepresentation of fact provided by the Participant, or other improper conduct as determined by Sponsor. Upon termination of a Participant’s Account by Sponsor, the Points within the Participant’s Account will be immediately forfeited. If a Participant is disqualified or if Points/Awards are forfeited for any reason, as stated in these Terms, the Points/Awards will be void, will not be reinstated, and Participant will not be compensated therefor in any manner. In Sponsor’s sole discretion, Participant may be disqualified from future participation in the Program or similar Sponsor loyalty programs.
F. AWARDS AND REDEMPTION
Awards Generally.
Once earned, Shamrock Rewards Points will be deposited into your Account.
Awards Contests/Sweepstakes.
From time to time, as part of the Program activities, Sponsor may elect to conduct sweepstakes or contests. A Promotion may be open for entry only for a particular time, or only to Participants with a certain level of accumulated Points. Each Promotion will have a set of Rules, eligibility requirements, time period and parameters under which Points will be awarded. A Participant’s agreement to be included in each Promotion will require acceptance of each set of Rules and an affirmative designation by the Participant that they wish to be included in that Promotion. Participants earning Points as part of the Promotion may, depending upon the Rules of the Promotion, receive an Award that is commensurate with the total of their Points. (Award)
Promotion 1 – Customer Trip
A select number of Trips will be awarded at the end of the Customer Trip Promotion. The trips will be awarded based on the total amount of Shamrock Rewards Loyalty Points the Participant has earned in their specific group. Points are awarded based upon the total number of cases of Promotional products purchased during the Promotion Period.
Other Terms Applicable to Awards.
Certain Awards, such as higher value merchandise, trips, participation in offers, promotions or events, and/or items with additional terms imposed by the issuer, supplier, vendor, manufacturer, provider of merchandise, items or prizes, may have added restrictions and limitations, which may vary from these Terms (such as age eligibility requirements, imposition of expiry dates, redemption limits, etc.).
Certain Promotions will require the Participant to properly execute, have notarized and timely return an Affidavit of Eligibility, Liability and Publicity Release (or other release documents required by the Award vendor) as part of the redemption process. The failure to comply with these Rules will prevent the Participant from qualifying for that Promotion.
Any required documentation for each Promotion, as determined by Sponsor, must be properly completed and returned within fourteen (14) days of notification. Non-compliance or failure to timely complete and return required documentation will result in ineligibility to redeem or the forfeiture of the Award(s) and any Points used in association with such item(s). Participant acknowledges that Sponsor may be required to provide or supply certain information to applicable government agencies or departments regarding any payments or items earned in connection with the Program. Participant agrees to provide Sponsor with all required information to assist Sponsor in complying with its reporting or withholding obligations.
G. DELIVERY/TAXES/WARRANTY
Participants may be required to pay all applicable federal, state and local taxes, including income tax liability, associated with any item or Award acquired under a specific Promotion. Sponsor will pay any applicable sales tax associated with a Promotion.
Participants obtaining any item(s) by redeeming their Rewards Points that have a combined total value equal to $600 or more in any single calendar year will be required to provide his/her Social Security Number. This number will be used for tax reporting purposes. In addition, the Participant may be issued a 1099-MISC from the Administrator for the value of the Award(s) received.
SPONSOR DOES NOT ENDORSE, OR ASSUME LIABILITY OR RESPONSIBILITY FOR: (A) ANY OF THE SUPPLIERS, MANUFACTURERS, OR PROVIDERS OF MERCHANDISE, AWARDS, ITEMS OR PRIZES (COLLECTIVELY, “ITEM SUPPLIERS”); (B) ANY OF ITEM SUPPLIERS’ PRODUCTS, SERVICES, ITEMS OR GIFT CARDS; AND (C) FOR ANY OF ITEM SUPPLIERS’ PRACTICES, REFUNDS/RETURNS OR ANY OTHER POLICIES OR TERMS AND CONDITIONS.
THE PROGRAM MERCHANDISE, AWARDS, ITEMS AND/OR PRIZES ARE PROVIDED TO PARTICIPANTS “AS IS” AND SPONSOR DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
H. MODIFICATIONS AND TERMINATION OF THE PROGRAM
Without limitation, if any suspected attempt, directly or indirectly, by any individual or Participant to use or benefit from the use of cheating, artifice, mechanical, robotic, repetitive, automatic, bots/scripts, programmed or similar participation or other methods or agents (or Points accrual or entry services) occurs, then Sponsor may, in its sole discretion, immediately invalidate the Account, Points and/or Awards of such individual(s) suspected of engaging in or benefiting from such methods, and the subject business account will be disqualified from the Program permanently. Sponsor reserves the right to review any Participant’s participation, logs, and activities of any individual and/or Account.
Sponsor reserves the right to suspend or terminate any Participant who, in its sole discretion, is suspected of participating or using the Program in a manner in violation of or inconsistent with these Terms, or any federal, state or local, laws, statutes or ordinances. Suspension or termination may result in the loss of all accumulated Points, and/or Awards without compensation therefor.
I. GENERAL CONDITIONS
Sponsor has the sole discretion to interpret and apply the Terms for the Program. All interpretation, issues, concerns, questions or disputes regarding the Program, or any element thereof, including, but not limited to, participation and/or a Participant’s compliance with these Terms, will be resolved by Sponsor in its sole discretion, which decisions shall be final and binding in all respects. Sponsor is not responsible for any incorrect or inaccurate information supplied by Participants while participating in the Program.
Sponsor is not responsible for lost, late, misdirected, incomplete, unintelligible, illegible, stolen, returned, or undelivered communications, or for connectivity issues associated with the use of the Portal. ANY ATTEMPT BY ANY PERSON TO DAMAGE THE PORTAL, OR UNDERMINE THE LEGITIMATE OPERATION OF THE PROGRAM, IS IN VIOLATION OF CRIMINAL AND CIVIL LAWS AND WILL BE DISQUALIFIED FROM THE SPECIFIC PROMOTION AND ALL FUTURE PROMOTIONS OFFERED BY SPONSOR. IN ADDITION, THE SPONSOR MAY SEEK CRIMINAL PROSECUTION FOR SUCH ACTIVITY. Sponsor is not responsible for injury or damage to Participants’ or to any other person’s computer or mobile device related to or resulting from participating in this Program or downloading materials from or use of the Portal.
Sponsor and any company involved in paying Awards shall not be liable to Participants or any other person or entity for failure to execute the Program or any element thereof or supply an Award, or any other item or prize, or any part thereof, by reason of any act of God, any action(s), regulation(s), order(s) or request(s) by any governmental or quasi-governmental entity (whether or not the action(s), regulation(s), order(s) or request(s) prove(s) to be invalid), equipment failure, terrorist act, cyber-attack, earthquake, war, fire, flood, explosion, unusually severe weather, hurricane, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, civil disturbance, insurrection, riot, or any similar or dissimilar event beyond their reasonable control.
These Terms, together with the Privacy Policy, and any other Additional Terms and Rules for each Promotion posted on the Portal or otherwise provided to Participants, constitute the entire agreement between Participant and Sponsor pertaining to the subject matter hereof and supersedes all prior or other arrangements, understandings, negotiations and discussions, whether oral or written.
If any provision of these Terms is found to be invalid or unenforceable, such provision shall be severed from the remainder of these Terms, which will otherwise remain in full force and effect. To the extent permitted by applicable law, Participants waive any applicable statutory and common law that may permit a contract to be construed against its drafter.
When Participants communicate electronically, such as via e-mail and text message, Participants consent to receive communications from the Sponsor electronically. Please note that the Sponsor is not obligated to respond to inquiries it receives. Participants agree that all agreements, notices, disclosures, and other communications that are provided to Participants electronically satisfy any legal requirement that such communications be in writing.
Sponsor reserves the right, without any limitation, to: (i) investigate any suspected breaches of the Portal’s 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 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 Program, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate Participant’s access to it, in whole or in part, including any Accounts or registrations, at any time, without notice, for any reason and without any obligation to Participants or any third party. Any suspension or termination will not affect a Participant’s obligations to the Sponsor under these Terms or any Additional Terms. Upon suspension or termination of Participant’s access to the Program, or upon notice from the Sponsor, all rights granted to Participants under these Terms will cease immediately, and Participants agree that they will immediately discontinue use of the Program. The provisions of these Terms and any Additional Terms, which by their nature should survive suspension or termination will survive, including the rights and licenses Participants grant to us 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.
Sponsor may assign its rights and obligations under these Terms and any Additional Terms, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by Participants, and Participants may not delegate Participant’s duties under them, without the prior written consent of an officer of Sponsor.
Except as expressly set forth in these Terms or any Additional Terms, (i) no failure or delay by Participants or the Sponsor in exercising any rights, powers, or remedies 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.
J. LIMITATION OF LIABILITY
BY PARTICIPATING IN THE PROGRAM, PARTICIPANTS AGREE, TO THE FULLEST EXTENT PERMITTED BY LAW, TO RELEASE, DISCHARGE AND HOLD HARMLESS THE SPONSOR, ADMINISTRATOR, OTHER PROGRAM ENTITIES, AND THEIR PARENT, AFFILIATED AND SUBSIDIARY COMPANIES, ADVERTISING AND PROMOTION AGENCIES, AND THEIR RESPECTIVE DISTRIBUTORS, OFFICERS, DIRECTORS, EMPLOYEES, INDEPENDENT CONTRACTORS, REPRESENTATIVES, ASSIGNS AND AGENTS (“RELEASED PARTIES”) FROM AND AGAINST ANY AND ALL ALLEGED AND/OR ACTUAL CLAIMS, CAUSES OF ACTION, DEMANDS, LOSSES, SETTLEMENTS (WHETHER OR NOT LITIGATION OR OTHER LEGAL PROCEEDINGS ARE COMMENCED), LIABILITIES AND DAMAGES OF ANY KIND WHATSOEVER EXISTING NOW OR ARISING IN THE FUTURE (INCLUDING, WITHOUT LIMITATION, BODILY INJURY, PERSONAL INJURY, DEATH, DISABILITY AND PROPERTY DAMAGE, VIOLATION OF INTELLECTUAL PROPERTY, PROPRIETARY, PUBLICITY, PRIVACY OR ANY OTHER RIGHT), COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES, COURT COSTS, SETTLEMENT AND DISBURSEMENTS) DIRECTLY OR INDIRECTLY ARISING OUT OF USE OF: (A) THE PROGRAM AND PORTAL PARTICIPANT’S USE OF OR INABILITY TO USE THE PROGRAM OR PORTAL OR THE PERFORMANCE OF THE PROGRAM OR PORTAL; (B) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY RELEASED PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING PARTICIPANT’S ACCESS TO OR USE OF THE PROGRAM; (C) ANY ERRORS OR OMISSIONS IN THE PROGRAM’S OR PORTAL’S TECHNICAL OPERATION; (D) ANY DAMAGE TO ANY USER’S DEVICE, 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; (E) THE ACCEPTANCE, POSSESSION, USE, MISDIRECTION, OR MISUSE OF ANY ITEM, AWARD OR PRIZE OR ANY ELEMENT THEREOF, AND (F) PARTICIPATION IN THE PROGRAM AND/OR PROGRAM-RELATED ACTIVITY.
IN NO EVENT WILL THE RELEASED PARTIES BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS PROGRAM, PARTICIPATION IN PROGRAM AND/OR RELATED ACTIVITIES, THE USE OR MISUSE OF AN ITEM OR AWARD OR ANY ELEMENT THEREOF, OR ACCESS TO OR THE DOWNLOADING FROM AND/OR PRINTING MATERIAL DOWNLOADED FROM PORTAL SITE(S). WITHOUT LIMITING THE FOREGOING, EVERYTHING ON THE PORTAL, INCLUDING THE PROGRAM, IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
BY PARTICIPATING IN THE PROGRAM, A PARTICIPANT WAIVES ANY AND ALL RIGHTS TO BRING ANY CLAIM OR ACTION RELATED TO PROGRAM MATTERS IN ANY FORUM BEYOND ONE (1) YEAR AFTER THE FIRST OCCURRENCE OF THE KIND OF ACT, EVENT, CONDITION OR OMISSION UPON WHICH THE CLAIM OR ACTION IS BASED. The foregoing limitations of liability will apply even if any events or circumstances were foreseeable and even if Released Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether Participants 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 Program). 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. Participants covenant not to sue any Released Party or cause them to be sued regarding any matter released above; and further covenant not to disaffirm, limit or rescind this release to the fullest extent permitted by law.
K. PARTICIPANT’S RIGHT OF PUBLICITY LICENSE
By participating in the Program, Participants hereby irrevocably grant, where lawful, the non-exclusive, royalty-free, irrevocable right to the use by Sponsor (and their affiliated companies and their respective authorized representatives) of their name, business name, address and publically available information, image, photographs, videotape, electronic record, likeness, hometown name, biographical information, voice as well as any statements made by Participants regarding the Program or Sponsor (provided they are true) for publicity, trade, advertising and promotional purposes in all media now known or hereafter developed worldwide, including, but not limited to, the Internet, mobile devices, World Wide Web, and any other method of electronic or paper publication, now or existing in the future, without additional compensation, and without the right of review, notification or approval.
L. INDEMNITY
IN EXCHANGE FOR ALLOWING PARTICIPANT TO REGISTER AND PARTICIPATE IN THE PROGRAM, PARTICIPANTS AGREE TO INDEMNIFY, DEFEND (AT SPONSOR’S OPTION) AND HOLD SPONSOR HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES, LOSSES, LIABILITIES, CLAIMS, COSTS, INVESTIGATIONS, JUDGMENTS, FINES, PENALTIES, SETTLEMENTS, INTEREST, EXPENSES OR DEMANDS, INCLUDING, PERSONAL INJURY, DEATH, OR DAMAGE TO OR LOSS OF PROPERTY, THAT DIRECTLY OR INDIRECTLY ARISE FROM OR ARE RELATED TO: (I) PARTICIPANT’S USE OF THE PROGRAM AND ACTIVITIES IN CONNECTION WITH THE PROGRAM; (II) PARTICIPANT’S BREACH OR ANTICIPATORY BREACH OF THESE TERMS OR ANY ADDITIONAL TERMS; (III) PARTICIPANT’S VIOLATION OR ANTICIPATORY VIOLATION OF ANY LAWS, RULES, REGULATIONS, CODES, STATUTES, ORDINANCES, OR ORDERS OF ANY GOVERNMENTAL OR QUASI-GOVERNMENTAL AUTHORITIES IN CONNECTION WITH PARTICIPANT’S USE OF THE PROGRAM OR PARTICIPANT’S ACTIVITIES IN CONNECTION WITH THE PORTAL; (IV) INFORMATION OR MATERIAL TRANSMITTED THROUGH PARTICIPANT’S DEVICE, EVEN IF NOT SUBMITTED BY PARTICIPANT, THAT INFRINGES, VIOLATES, OR MISAPPROPRIATES ANY COPYRIGHT, TRADEMARK, TRADE SECRET, TRADE DRESS, PATENT, PUBLICITY, PRIVACY, OR OTHER RIGHT OF ANY PERSON OR ENTITY; (V) ANY MISREPRESENTATION MADE BY PARTICIPANTS; AND (VI) SPONSOR’S USE OF THE INFORMATION THAT PARTICIPANT SUBMITS (ALL OF THE FOREGOING, “CLAIMS AND LOSSES”).
PARTICIPANTS WILL COOPERATE AS FULLY REQUIRED BY SPONSOR IN THE DEFENSE OF ANY CLAIMS AND LOSSES. NOTWITHSTANDING THE FOREGOING, SPONSOR RETAINS THE EXCLUSIVE RIGHT TO SETTLE, COMPROMISE, AND PAY ANY AND ALL CLAIMS AND LOSSES. SPONSOR RESERVES THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY CLAIMS AND LOSSES. PARTICIPANTS WILL NOT SETTLE ANY CLAIMS AND LOSSES WITHOUT THE PRIOR WRITTEN CONSENT OF AN OFFICER OF SPONSOR. WE ARE NOT RESPONSIBLE FOR TECHNICAL, HARDWARE, NETWORK CONNECTIONS OR INCOMPLETE OR DELAYED COMPUTER TRANSMISSIONS, REGARDLESS OF CAUSE.
M. WAIVER OF INJUNCTIVE OR OTHER EQUITABLE RELIEF
IF A PARTICIPANT CLAIMS THAT HE/SHE HAS INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH HIS/HER PARTICIPATION IN THE PROGRAM, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE SUBJECT TO INJUNCTIVE RELIEF AND PARTICIPANTS WILL NOT SEEK TO OBTAIN ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF THE PROGRAM, ANY AWARD ACTIVITY, ANY PORTALS, APPLICATION, CONTENT, USER CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY US (INCLUDING YOUR LICENSED USER CONTENT) OR A LICENSOR OF SPONSOR.
N. DISPUTE RESOLUTION
Sponsor shall appoint an executive officer and the Participant shall appoint a qualified representative for the purpose of resolving any claim, dispute and/or controversy arising out of or relating to the interpretation, application and performance of the Program and/or these Terms. In the event that the Parties are unsuccessful in resolving any dispute within thirty (30) days, the Parties agree to resolve all claims, disputes, and/or controversies arising out of or in any way relating to this Agreement through a court of competent jurisdiction in Maricopa County, Arizona. Each of the Parties hereby submits to the jurisdiction of the federal or state court located in Maricopa County, Arizona. The prevailing party in any such litigation shall be entitled to recover their court costs and reasonable attorneys’ fees and any other similar fees from the non-prevailing party.