Welcome to ScratchTHIS

Effective Date: January 10th, 2011

 

WEB SITE & PRODUCTS TERMS & CONDITIONS OF USE

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS SITE AND USE OF THE SERVICES. BY USING THIS SITE OR THE SERVICES, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN DO NOT USE THIS SITE OR THE SERVICES.

 

1. Agreement

   Visual X, LLC ("Company") agrees to provide you ("User" or "you") with access to technology to be used in connection the www.ScratchThis.com ("Site") and its product and services (the "Service") subject to the terms of this agreement ("Agreement"), and the Privacy Policy if you have any questions regarding this Agreement, please contact us at support@scratchthis.com

2. Modification

   The Agreement may be supplemented, modified or amended (each a "Revision") by Company at any time at its sole discretion, and each such revision will be effective upon posting of such change(s) on the Site. If any Revision is not acceptable to User, User may terminate this Agreement as provided herein. User's continued use of the Services under this Agreement after the effective date of such Revision shall be deemed acceptance of such Revision.

3. Activation and Use of Service

   1. After the Effective Date, Company shall provide you with a User ID and a password/PIN (collectively "Account") which will enable access to the Services. Each User may only maintain one account and shall be liable and responsible for any and all activities conducted through its account whether or not such activities have been authorized by User.

   2. When a User plays games (“Games”) on the Site, we may grant Scratch This Tokens (“ST Tokens and/or ST Dollars”) (collectively “Rewards”), which will be used to determine the winners of corresponding prizes. In addition, we may award (“Members Rewards”), from time to time, for taking specific actions such as referring a friend. Please check the Website for special promotions and the “Frequently Asked Questions” for other circumstances where we may award Rewards. The award of Rewards, the process of redeeming Rewards for specific Rewards and the delivery of those Rewards to Users, comprises the "Rewards System." Rewards are not redeemable for cash and have no cash value. We may terminate the Rewards System at any time in our sole discretion. However, unless User is in breach of this Agreement, in which case User will forfeit all Rewards, Rewards currently expire 550 days (approximately 18 months) after the last date on which you receive a Reward. After expiration, expired Reward Point balances will be deducted from your Account and will not be available for redemption for Rewards. Reward balances are calculated by Company and its determination is final and binding. Rewards are subject to availability and we may change or remove a Reward at any time without notice and may also change the Prize of a particular contest.

      We reserve the right to substitute out-of-stock, discontinued or otherwise unavailable Rewards with articles of equal or greater value. The Rewards: (a) are provided by the applicable Reward manufacturer, distributor or retailer ("Reward Manufacturer"); and (b) contain descriptions that are provided directly by such Reward Manufacturer. As a result, we have no control over: (i) the quality, safety or legality of the Rewards; and/or (ii) the truth or accuracy of the Reward listings. We do not represent or warrant that the descriptions of the Rewards are accurate or complete. Warranty claims, requests for technical or customer support, and returns for malfunction or damage to Rewards should be communicated to the applicable Reward Manufacturer and not to us. Trademarks associated with any of the Rewards are the intellectual property of their respective owners, and mention or display of the trademarks does not indicate endorsement, sponsorship or affiliation by the trademark owners of or with us or any of our promotions.

   3. We may offer sweepstakes ("Sweepstakes") from time to time. All Sweepstakes are offered in our exclusive discretion and are governed by the applicable Sweepstakes Rules published on the Site.

4. Fees

   1. If applicable, User will be charged for the use of the Service in accordance with the rates as identified herein and/or as described on the Site. You are responsible for paying any sales, use or other taxes related to the Services.

   2. User is responsible for all charges arising out of its use of the Service whether or not User authorizes such use.

   3. We will regularly send you email messages to communicate any promotional offers we have.

5. Content

   1. You are accountable for use of the Services and any opinions, information, communications, other material, products, text, pictures, videos, graphics and services provided by you (collectively referred to as the "Content") through the Service.

   2. User acknowledges that Company is not responsible for, endorse and does not provide any assurance to any person with respect to the validity, value, usefulness or accuracy of Content or opinions expressed via the Services. User shall bear any risk associated with the Content. Company has the right to monitor, but not the obligation, the use of the Service, including the Content. However, Company does not prescreen or attempt to censor or review any Content prior to its appearance on the Service.

   3. The Service may be used solely to support User's own internal operations. The Service shall not be (i) sold or licensed to or used by any third party or (ii) used as a service bureau or for commercial time-sharing.

6. Intellectual Property

   1. Company Proprietary Rights: Company shall retain and own all proprietary rights in and to all of Company's intellectual property, including but not limited to any Services provided hereunder (including all software, source codes, modifications, updates and enhancements thereof or any other aspect of the Services).

   2. User Proprietary Rights:Subject to the rights granted herein, User shall retain and own all proprietary rights in and to all of User’s intellectual property, including the Content.

7. Confidentiality

   1. Definition: "Confidential Information" includes the Service, administrative access to the Service, the terms and conditions of this agreement, the Site, software and other related materials furnished by Company, any information, business plan, concept, idea, know-how, process, technique, program, design, formula, algorithm or work-in-process, any engineering, manufacturing, marketing, technical, financial, data, or sales information, or any information regarding suppliers, Users, employees, investors, or business operations, and any other information or materials, whether in written, or graphic, or any other form or that is and whether disclosed orally, or electronically, whether tangible or intangible and in whatever form or medium provided, or otherwise which is learned or disclosed in the course of discussions, studies, or other work undertaken between the parties, before or after the Effective Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information ("Company Confidential Information").

   2. Ownership of Company Confidential Information: Nothing in this Agreement shall be construed to convey any title or ownership rights to the Service or other Company Confidential Information to User or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the Company Confidential Information. User shall not, in whole or in part, sell, lease, license, assign, transfer, or disclose the Company Confidential Information to any third party and shall not copy, reproduce or distribute the Company Confidential Information except as expressly permitted in this Agreement. User shall take every precaution to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Company Confidential Information.

   3. Non-Disclosure: User agrees at all times to keep strictly confidential all Company Confidential Information. User agrees to restrict access to Company's Confidential Information only to those employees or subcontractors who (i) require access in the course of their assigned duties and responsibilities and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth herein.

   4. Injunctive Relief: User acknowledges that any unauthorized disclosure or use of the Company Confidential Information may cause Company imminent irreparable injury and that Company shall be entitled to seek, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the User does not fulfill its obligations under this Section or this Agreement.

   5. Suggestions/Improvements to Service: Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by User regarding the Service or other Company materials provided to User shall be owned by Company, and User hereby agrees to assign any such rights to Company. Nothing in this Agreement shall preclude Company from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Company in the performance of any services hereunder.

8. International Usage

   User agrees that its access to and use of the Services may be governed (in addition to this Agreement) by separate terms and operating policies, which conform to appropriate and applicable national laws and customs. User shall comply with all then-current export and import laws and regulations of the United States and such other governments as are applicable when using the Service. User hereby certifies that it will not directly or indirectly export, re-export, transship, or transmit the Service, or any portion thereof, or related information, media, or products in violation of United States laws and regulations.

9. Warranty

   1. User warrants that it will not use the Service (i) in violation of any law, rule, statute or regulation or (ii) to distribute any Content that infringes the proprietary rights of a third party.

   2. User agrees that by transmitting or allowing the transmission of any Content on the Service, User automatically warrants that it possesses all of the necessary rights and ownership to such Content, including the right to share it with Company, and User grants Company the royalty free, perpetual, irrevocable, nonexclusive worldwide right to transmit and display such Content in whole or in part on the Service.

   3. USER EXPRESSLY AGREES THAT USE OF THE SERVICES HEREUNDER IS AT THE USER'S SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND. COMPANY MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

10. Limitation of Liability

    1. IN NO EVENT SHALL COMPANY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY USER FOR THE SERVICES WHICH GAVE RISE TO THE DAMAGES. THIS SHALL BE USER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SERVICE.

    2. IN NO EVENT SHALL COMPANY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL ARISING HEREUNDER EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE.

11. Indemnification

    User agrees to defend, indemnify and hold harmless Company, its affiliated companies, licensees, employees from all liabilities, claims, causes of action and expenses, including reasonable attorneys' fees and internal expenses, arising out of User's use of the Service, transmission of any Content on the Service whether or not such use was authorized by User. Company reserves the right to approve User's counsel to defend any such claims, which approval shall not be unreasonably withheld, and to approve any settlement agreement. Company shall cooperate with User in the defense of any claims at User's expense.

12. Termination

    1. Company may immediately suspend User's use of the Service, without notice, if deemed necessary by Company, in its sole discretion, to prevent any harm to Company's network, its business or its other Users, based on User's misuse or alleged misuse of the Service and/or for any other reason or for no reason at all. However, we will refund any unearned fees in our possession should be do so.

    2. User may terminate this Agreement at any time by providing written notice to Company pursuant to the procedures identified on the Site. There are no refunds for any fees paid. USER IS RESPONSIBLE FOR TERMINATING ITS ACCOUNT AND THIS AGREEMENT AND COMPANY IS NOT RESPONSIBLE FOR USER'S FAILURE TO PROPERLY TERMINATE ITS ACCOUNT AND THIS AGREEMENT AND ANY CREDIT CARD CHARGES AND/OR OTHER FEES USER INCURS AS A RESULT OF ITS FAILURE TO PROPERLY TERMINATE ITS ACCOUNT AND THIS AGREEMENT.

13. Notices

    Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery. Unless otherwise specified, all notices to Company shall be sent to the attention of the General Counsel with copies to the CEO.

14. Force Majeure

    Company shall not be liable for any delay or failure to perform hereunder due to the inability of User, Company or any other person to connect to the Internet, or any other failure or unavailability of the Internet for any cause whatsoever, acts of God or of the public enemy, or of any government or agency thereof, restrictions imposed by governmental agencies, fires, floods, epidemics, quarantine restrictions, strikes, work stoppages, freight embargoes, severe weather, Internet congestion, virus attacks, Denial Of Service (DOS) attacks, differences with workmen, war, hostilities, terrorist acts, riot, rebellion, delay in or lack of transportation facilities, inability to secure materials, power failure or fluctuation or any other cause beyond the control of Company or Company's exercise of its rights under this Agreement. In the event of delay by Company due to any such cause, the date of performance of any act by Company will be postponed by such length of time as may be reasonably necessary to compensate for such delay.

15. Publicity and Publication

    User agrees that Company may include User's tradename and logo on publicly displayed User lists (including the Site).

16. Data

    Company shall have the right to retain records of all data pertaining to use of the Service by User including, but not limited to, usage and activity logs.

17. Miscellaneous

    1. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.

    2. This Agreement shall constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto. Notwithstanding the foregoing, to the extent there is a conflict between the applicable Sweepstakes Rules and other provisions of this Agreement, the applicable Sweepstakes Rules shall govern as to the terms associated with the Sweepstakes.

    3. User shall not assign or transfer this Agreement whether by operation of law, change of control, or in any other manner, without the prior written consent of Company. Any attempt to assign or transfer this Agreement shall be null and void.

    4. Except as otherwise provided herein, the parties agree that this Agreement cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.

    5. The provisions set of this Agreement that by their nature would survive termination or expiration of this Agreement shall survive.

    6. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.

    7. Headings are for reference purposes only, have no substantive effect, and shall not enter into the interpretation hereof.

    8. Company is an independent contractor and nothing in this Agreement shall be deemed to make Company an agent, employee, partner or joint venturer of User. Neither party shall have no authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.

    9. This Agreement shall be governed by the laws of the State of New Jersey, excluding the conflicts of law provisions of any state or jurisdiction. User and Company each submit to the exclusive jurisdiction of the courts of the State of New Jersey for the enforcement of this Agreement or any action arising out of or relating to this Agreement. Should a dispute arise concerning the terms and conditions of this Agreement or the breach of same by any party hereto, the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association in New Jersey, in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing herein shall be construed to preclude any party from seeking injunctive relief in order to protect its rights pending an outcome in arbitration. To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against Company and its employees, officers, directors, members, representatives and assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney's fees and court costs that Company incurs in seeking such relief. This Agreement does not constitute a waiver of any of your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above. This provision preventing you from bringing, joining or participating in class action lawsuits is an independent agreement.

    10. By clicking the submit button, User represents that he/she is over the age of 18 and is authorized to bind User to this Agreement. We obtain authorization to provide and bill for the Premium Membership by your electronic signature. Once you confirm your application for a Premium Membership by entering the PIN number or by replying to the confirmation text message, this electronic order constitutes an electronic letter of agency authorized by your electronic signature in accordance with this Agreement. We are relying on your electronic signature on the registration page pursuant to the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act. Both of these laws specifically preempt state laws that recognize only paper records or handwritten signatures. Further, you represent that you have read, understood and agree to this Agreement, the Privacy Policy and Mobile Sweepstakes Rules in their entirety.