Effective as of August 8, 2013.
Please read the following important terms and conditions carefully. By accessing and/or using the Enliken Services you agree to be bound by these Terms of Service ("Terms"). These Terms govern your access to and use of the Services ("Services," as described below), and constitute a binding legal agreement between you, as a user ("you" or "User") of the Services, and Enliken, Inc. ("Enliken" or "we"), the provider of the Services (collectively, the "Parties").
Enliken is a service that allows consumers to control what information is available about them on the web and profit from the use of that information. Using the Enliken Browser Plug-In (“Plug-In”), Enliken currently offers three services; Enliken Discover (“Discover”), Enliken Retargeting (“Retargeting”) and SheepChit (“SheepChit”), of which Users can choose to use only one or multiple services.
Enliken Discover. Consumers can use Enliken Discover (“Discover”) to examine the data profile currently being sold about them by certain advertisers. Enliken works by accessing the cookies on the User’s browser and checking what profile information advertisers, data aggregators and third-party web sites have connected with these cookies. By using Enliken Services, you consent to Enliken accessing your cookies and seeking information associated with them by any third-party. Enliken will not share your cookies with anyone, it will only check to see if advertisers already have information on you. Enliken will not share any information they gather from advertisers with third parties, such information will only be reported to you.
Enliken Retargeting. Enliken Retargeting gives Users the option to collect their own browsing data using the Plug-In, repackage it, and designate a Partner Retailer (“Partner”) from which to receive special offers in return for this data.
SheepChit. SheepChit is a service from Enliken that allows consumers to create a profile of their shopping interests and use it to discover products and services that match their interests. SheepChit gives Users the option to collect their own product browsing data using the Enliken Plug-In, and allows SheepChit to show them offers for similar products.
The Enliken website, Browser Plug-In, Discover, Retargeting, and SheepChit constitute the Services as covered in this Agreement (collectively, the “Services”). Enliken shall have the right at any time to change or discontinue any aspect or feature of the Services, including, but not limited to, content, hours of availability and equipment needed for access or use. Further, Enliken may discontinue disseminating any portion of information or category of information, may change or eliminate any transmission method and may change transmission speeds or other signal characteristics.
In order to access the Services, you must install the Enliken Browser Plug-In. Installation automatically creates a unique account identified by a cookie ("Account").
Your Account can be used across all Enliken Services. You agree to be held responsible for any actions taken under your Account, whether or not you authorize those actions. You must notify us immediately of any unauthorized use of your Account. We are not liable for any loss or damage from your failure to comply with these requirements.
You acknowledge and agree that the content, software, materials and other components (including but not limited to the logos, text, graphics, images, marks, videos, music, button icons, and page headers) available through the Services, are the property of Enliken, and/or its affiliated Partners, or licensors and are protected by copyrights, trademarks, service marks, or other proprietary rights and laws. You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from content or materials through the Services.
Reference to any products, services or other information by trade name, trademark, manufacturer, or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof or any affiliation therewith by Enliken or any of its Officers or Directors. All trademarks not owned by Enliken that appear on Enliken are the property of their respective owners. Use of the content and materials for any purpose not expressly permitted in these Terms of Service is prohibited. We are not liable for any infringement of copyrights, trademarks, trade dress or other proprietary or intellectual property rights arising out of content posted on or transmitted through the Services, or items advertised on the Site, through the Application or through the Services, by our vendors.
Enliken may reference or link to Third Party Businesses, such as Retargeting sponsors and retailer offers ("Third Party"). You agree that we do not endorse any Third Party Business and that we are not responsible for any Content or User Content posted by or in reference to any Third Party Business. In no event shall any reference to any Third Party, Third Party website, or Third Party product or service be construed as an approval or endorsement by us of that Third Party, Third Party website, or of any product or service provided by a Third Party. You acknowledge that we have no control over such websites and that we are not responsible for the accuracy, content, legality, or any other aspect of any linked website.
Third Party Businesses are not subject to these Terms, and we strongly recommend that you review and understand the terms and conditions, privacy policies, settings and information of each third party website. You acknowledge that you access Third Party Content at your own risk. In no event will we be liable, directly, or indirectly, to anyone for any damage or loss arising from or relating to any use, continued use or reliance on any Third Party Content, any products or other materials relating to any such Third Party Content, or any link contained in any Third Party Content. You agree that you are solely responsible for adhering to any business guidelines or policies of Third Party Businesses.
You expressly understand and agree that:
Enliken, its respective officers, directors, employees, and successors, are not and shall not be at any time responsible or liable for any loss or damage of any kind, (including personal injury or death), whether in tort, contract, or strict liability, arising out of or related to any act or omission by Users of Enliken, by Enliken or by any Third Party or by any of the equipment or programming associated with or utilized by Enliken. Any content submitted by our Users does not necessarily reflect the opinions or policies of Enliken.
Enliken assumes no responsibility for any error, omission, interruption, delay, communications line failure, deletion, defect, delay in operation or transmission, theft or destruction or unauthorized access to, or alteration of, any User Content or other User communications. Enliken is not responsible for any problems or technical malfunction of any telephone or cable network or lines, computer systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on Enliken, including any injury or damage to User's or other person's computer related to or resulting from participation on or through Enliken.
ENLIKEN, ITS CONTENT AND ALL TEXT, IMAGES, MERCHANDISE, AND OTHER INFORMATION ON, ACCESSIBLE FROM OR AVAILABLE THROUGH THIS SITE ARE PROVIDED ON AN "AS AVAILABLE" AND "AS IS" BASIS. ENLIKEN EXPRESSLY DISCLAIMS WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, ENLIKEN DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE ON THIS SITE IS FREE OF ERRORS; (ii) THE FUNCTIONS CONTAINED ON THIS SITE WILL BE UNINTERRUPTED OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THIS SITE OR THE SERVER(S) THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO FURTHER INFORMATION OBTAINED BY YOU FROM ENLIKEN OR THROUGH ITS SERVICES, WHETHER WRITTEN OR ORAL, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE ENLIKEN SERVICES OR SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
In no event will Enliken, its agents, suppliers or PARTNERS, be directly liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for any indirect, special, incidental, consequential or special damages (including damages for loss of business or loss of profits or loss of use) arising out of the use or inability to use Enliken or any information contained therein or stored or maintained by Enliken, whether based upon warranty, contract, tort, or otherwise. The above limitation on liability applies even if the damages are foreseeable, and whether or not Enliken may have been informed of the possibility of such damages. The foregoing shall not apply to the extent prohibited by applicable law.
You hereby acknowledge that the preceding paragraph shall apply to all content, merchandise, products, services and experiences available through Enliken.
Because some states do not allow limitations on implied warranties or the exclusion or limitation of certain damages, in such states some or all of the above disclaimers or exclusions may not apply and liability will be limited to the fullest extent permitted by applicable law.
You additionally agree to indemnify any Affiliated PARTNERS from any breach of privacy claims. All claims against actions taken by Partners should be directed at Enliken.
Enliken reserves the right to modify these Terms of Service from time to time as deemed necessary. In the event of a modification to the Terms of Service, Enliken will post a notice on its website. Users should delete their Account if they do not wish to agree to the newly modified Terms of Service. Your continued use of the Services following notification of these changes to the Agreement constitutes acceptance of those changes. We recommend you periodically check the Enliken home page for changes to these Terms. Enliken may also, in the future, offer new services and/or features. Such new services and/or features shall be subject to the terms and conditions of this Agreement.
If you would like to delete your Account, please uninstall the Enliken Plug-In. No further data will be collected from you and we will retain your browsing data for 30 days. We reserve the right to maintain any records of previous browsing history we deem necessary to protect our rights or the rights of others, to prevent harm to persons or property, fight fraud, or improve general User experience.
Enliken may terminate this Agreement at any time. Without limiting the foregoing, Enliken shall have the right to immediately terminate or suspend any Accounts of a User, in the event of any conduct by a User which Enliken, in its sole discretion, considers to be unacceptable, or in the event of any breach by a User of this Agreement. Provisions 2, 3, 5, 6, 7, 8, 9, 10, 13, 14 and 15 of this Agreement will survive termination of this Agreement.
We make no representation that information on this Site is appropriate or available for use outside the United States. Those who choose to access this Site from outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
For all purposes of this Agreement, the Parties consent to exclusive jurisdiction and venue in the United States Federal Courts or State Courts located in the Southern District of New York.
By using Enliken Services, you agree that: (i) any claim, dispute, or controversy User may have against Enliken arising out of, relating to, or connected in any way with this Agreement or use of the Services, shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA ("Rules and Procedures"); (ii) the arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for User), or at such other location as may be mutually agreed upon by the User and Enliken; (iii) the arbitrator shall apply New York law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (iv) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only the User's and/or Enliken's individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (v) in the event that the User is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Enliken will pay as much of the User's filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (vi) with the exception of subpart (iv) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (iv) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither User nor Enliken shall be entitled to arbitrate their dispute.
This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof. No waiver by Enliken of any breach or default hereunder is a waiver of any preceding or subsequent breach or default. The section headings used herein, or in the future, are for convenience only and shall be of no legal force or effect. If a court of competent jurisdiction holds any provision of this Agreement invalid, such invalidity shall not affect the enforceability of any other provisions contained in this Agreement, and the remaining portions of this Agreement shall continue in full force and effect. The failure by Enliken to exercise any of its rights under this Agreement shall not be deemed a waiver or forfeiture of such rights or any other rights provided hereunder.