Effective as of: July, 2019
Welcome to the Fun in the City Merchant website, a destination site specifically for businesses and participating merchants. In order to use this and other Fun in the City websites, the mobile and touch versions, and other electronic services made available to businesses and participating merchants, or portions or services provided through them (collectively, the “Site”), you must agree to these Terms of Use (“Terms of Use”). These Terms of Use are our “rules of the road” for accessing and using the Site and other Fun in the City websites–they are important, apply to all businesses and merchants, and contain many legal disclosures that you should read carefully. InnoVision LLC and/or its affiliates and subsidiaries (“Fun in the City,” “we,” “us,” “our”) and merchants (“End User” or “you”) may be referred to throughout these Terms of Use individually as a “Party” and collectively as the “Parties”.
1. APPLICABILITY
IMPORTANT. THESE TERMS OF USE ARE IN ADDITION TO ANY OTHER AGREEMENT(S) BETWEEN YOU AND FUN IN THE CITY. IN THE EVENT OF CONFLICT BETWEEN THESE TERMS OF USE AND SUCH AGREEMENT(S), THE OTHER AGREEMENT(S) WILL CONTROL.
2. ACCEPTANCE OF TERMS OF USE
Fun in the City operates the Site. By using the Site, any service provided through the Site, or installing mobile or touch versions that allow access to content or services provided through the Site, you agree to be bound by these Terms of Use, and any additional terms applicable to certain programs in which you may elect to participate, as any of the same may exist from time to time.IF YOU DO NOT AGREE TO THESE TERMS OF USE, IMMEDIATELY STOP ACCESSING THE SITE AND DO NOT USE ANY FUN IN THE CITY SERVICE OFFERED THROUGH THE SITE.
3. PERMITTED USES
The Site provides information for prospective and current merchant partners about how Fun in the City’s promotion and marketing services can help your business effectively advertise its goods and services to new and existing customers through Fun in the City’s platform. As a condition of your use of the Site, you agree that:
• You are an individual person at least 18 years of age.
• You possess the authority to create a binding legal obligation.
• Your use of the Site will at all times comply with these Terms of Use.
• You must safeguard your password and supervise the use of your account, and understand and agree that you are responsible for the use of your account by anyone you allow to access it.
• You have the right to provide any and all information you submit to the Site, and all such information is accurate, true, current and complete.
4. AVAILABILITY OF THE SITE
You acknowledge that there may be interruptions in service or events that are beyond our control. While we use reasonable efforts to keep the Site accessible, the Site may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of our control, Site access may be interrupted, suspended or terminated. Fun in the City retains the right at our sole discretion to deny service, or access to the Site to anyone or an account, at any time and for any reason.
5. OWNERSHIP OF THE SITE
The content and information on the Site (“Content”) as well as the infrastructure used to provide the Content, is proprietary to us and other partners. You agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, products or services obtained from or through the Site.
6. TRANSMISSION OF INFORMATION
Because we do not control the security of the Internet or other networks you use to access the Site or communicate with us, we can’t be, and are not responsible for, the security of information that you choose to communicate with Fun in the City and the Site while it is being transmitted. In addition, Fun in the City is not responsible for any data lost during transmission. Fun in the City is not responsible for any dialogue between communicants, nor is Fun in the City liable for any personal interactions between parties via the Site, or any chat messaging services available.
7. YOUR CONDUCT ON OUR SITES
The Site and other websites operated by Fun in the City that is available to End Users is private property (collectively, the “Fun in the City Sites”). All interactions on the Fun in the City Sites must be lawful and must comply with these Terms of Use. To the extent your conduct (as judged by us in our sole discretion), restricts or inhibits any other users from using or enjoying any part of the Fun in the City Sites, we may limit your privileges on the Site and seek other remedies.
PLEASE DO NOT ENGAGE IN ANY OF THE FOLLOWING ACTIVITIES–they are prohibited on the Fun in the City Sites and constitute express violations of these Terms of Use:
• Submitting any purposely inaccurate information, committing fraud or falsifying information;
• Attempting to, or actually accessing data not intended for you, such as logging into a server or an account which you are not authorized to access;
• Attempting to scan, or test the security or configuration of the Fun in the City Sites or to breach security or authentication measures without proper authorization;
• Tampering or interfering with the proper functioning of any part, page or area of the Fun in the City Sites and any and all functions and services provided by Fun in the City;
• Attempting to interfere with service to any user in any manner, including, without limitation, by means of submitting a virus to our Site, or attempts at overloading, “flooding”, “spamming”, “mail bombing” or “crashing” the Fun in the City Sites;
• Using the Fun in the City Sites or any of its contents to advertise or solicit, for any other commercial, political or religious purpose, or to compete, directly or indirectly with Fun in the City, without Fun in the City prior written consent;
• Reselling or repurposing your access to the Fun in the City Sites;
• Using the Fun in the City Sites or any of its resources to solicit Fun in the City customers, merchants or other business partners of Fun in the City to become users or partners of other online or offline services directly or indirectly competitive or potentially competitive with Fun in the City, including without limitation, aggregating current or previously offered deals;
• Using any Fun in the City customer or merchant information that is not your information from the Fun in the City Sites for any commercial purpose, including, but not limited to, marketing;
• Offering vouchers or otherwise using any Fun in the City account to offer vouchers for resale, or for speculative, false, fraudulent or any other purpose not expressly permitted by agreement between you and Fun in the City;
• Accessing, monitoring or copying any content or information from any Fun in the City Sites using any robot, spider, scraper or other automated means or any manual process for any purpose without our express written permission;
• Violating the restrictions in any robot exclusion headers on any Fun in the City Sites or bypassing or circumventing other measures employed to prevent or limit access to the Fun in the City Sites;
• Taking any action that places excessive demand on our services, or imposes, or may impose an unreasonable or disproportionately large load on our servers or other portion of our infrastructure (as determined in our sole discretion) supporting the Fun in the City Sites;
• Aggregating any live or post-feature content or other information from the Fun in the City Sites (whether using links or other technical means or physical records associated with purchases made through the Fun in the City Sites) with material from other sites or on a secondary site without our express written permission.
• Deep-linking to any portion of the Fun in the City Sites (including, without limitation, the purchase path for any voucher) without our express written permission;
• Acting illegally or maliciously against the business interests or reputation of Fun in the City, our other merchants or our services; or
• Hyperlinking to the Fun in the City Sites from any other website without our initial and ongoing consent.
8. MODIFICATION OF THESE TERMS OF USE
We reserve the right at all times to discontinue or modify any part of these Terms of Use as we deem necessary or desirable. If we make changes that materially affect your use of the Site or our services we will notify you by posting notice of the change on the Site. Any changes to these Terms of Use will be effective upon our posting of notice of the changes on our Site, provided that. We suggest that you revisit our Terms of Use from time to time to ensure that you stay informed of any such notifications of such changes. Your use of the Site after we update these Terms of Use will constitute acceptance of the modified Terms of Use. We also reserve the right to change or discontinue any aspect or feature of our services or the Site including, but not limited to, requirements for access or use.
9. COPYRIGHT AND TRADEMARKS
Everything located on or in the Fun in the City Sites is the exclusive property of Fun in the City or is being used with permission. ANY COPYING, DISTRIBUTING, TRANSMITTING, POSTING, LINKING, DEEP LINKING, OR OTHERWISE MODIFYING OF THE SITE OR ANY PORTIONS OR AREAS OF THE FUN IN THE CITY SITE WITHOUT THE EXPRESS WRITTEN PERMISSION OF FUN IN THE CITY IS PROHIBITED. Any violation of this requirement may result in a copyright, trademark or other intellectual property right infringement that may subject you to civil and/or criminal penalties.
The Fun in the City Sites contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Fun in the City Sites are protected by copyright as a collective work under the United States copyright laws. Fun in the City owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part. Except as otherwise expressly stated under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material without the express permission of Fun in the City or the copyright owner is permitted. If copying, redistribution or publication of copyrighted material is permitted, you will make independent attribution and/or agree to make no changes in or deletion of any author attribution, trademark legend or copyright notice. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.
Fun in the City is a trademark of InnoVision LLC, a California Limited Liability Company. It, together with other trademarks that are located within or on the Fun in the City Sites otherwise owned or operated in conjunction with Fun in the City shall not be deemed to be in the public domain but rather the exclusive property of Fun in the City, unless such mark or site is under license from the trademark owner thereof, in which case such license is for the exclusive benefit and use of Fun in the City unless otherwise stated.
You will not upload, post or otherwise make available on the Fun in the City Sites any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. Fun in the City does not have any express burden or responsibility to provide you with indications, markings or anything else that may aid you in determining whether the material in question is copyrighted or trademarked. You will be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such a submission. By submitting material to any public area of the Fun in the City Sites, you warrant that the owner of such material has expressly granted Fun in the City the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. You also permit any other End User to access, view, store or reproduce the material for such End User’s personal use. You also grant Fun in the City the right to edit, copy, publish and distribute any material that you make available on the Fun in the City Sites.
10. COPYRIGHT POLICY AND DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) PROCEDURES
Fun in the City reserves the right to terminate its agreement with you or any other End User who infringes third-party copyrights.
If you believe that any material has been posted via the Fun in the City Sites by an End User in a way that constitutes copyright infringement, you shall provide Fun in the City with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification of the copyrighted work and the location on the Fun in the City Sites of the allegedly infringing work; (c) a written statement that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) your name and contact information, including telephone number and e-mail address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Contact information for Fun in the City’s DMCA Agent for notice of claims of copyright infringement is: InnoVision LLC, Attn: Ric Militi, 5961 Kearny Villa Rd., San Diego, California 92123; info@funinthecityclub.com.
11. UNSOLICITED IDEAS
We do not accept or consider, directly or through any Fun in the City employee or agent, unsolicited ideas of any kind, including without limitation, ideas or suggestions relating to new or improved products, enhancements, names or technologies, advertising and marketing campaigns, plans or other promotions. Do not send us (or any of our employees) any unsolicited ideas, suggestions, material, images or other work in any form (“unsolicited materials”). If you send us unsolicited materials, you understand and agree that the following terms will apply, notwithstanding any cover letter or other terms that accompany them:
• Fun in the City has no obligation to review any unsolicited materials, nor to keep any unsolicited materials confidential; and
• Fun in the City will own, and may use and redistribute unsolicited materials for any purpose, without restriction and free of any obligation to acknowledge or compensate you.
12. DISCLAIMER OF WARRANTY
YOU EXPRESSLY AGREE THAT USE OF THE SITE IS AT YOUR SOLE RISK. NEITHER FUN IN THE CITY, ITS SUBSIDIARIES AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, MERCHANTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WARRANT THAT USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO (I) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, OR (II) THE ACCURACY, COMPLETENESS, RELIABILITY OR CONTENT OF ANY INFORMATION (INCLUDING, BUT NOT LIMITED TO, PRODUCT DESCRIPTIONS), SERVICE, PRODUCTS OR VOUCHERS PROVIDED THROUGH THE SITE. THE SITE AND ALL CONTENT, STATEMENTS (AS DEFINED BELOW) AND OTHER INFORMATION CONTAINED ON THE SITE, AND PRODUCTS AND SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE SITE ARE MADE ACCESSIBLE OR AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. FUN IN THE CITY HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE CONTENT, STATEMENTS OR OTHER INFORMATION CONTAINED ON THE SITE, OR THE PRODUCTS OR SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, THOSE OF TITLE NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
13. LIMITATION OF LIABILITY
IN NO EVENT SHALL FUN IN THE CITY, ITS SUBSIDIARIES, AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, MERCHANTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO YOUR USE OF THE SITE, THE CONTENT, STATEMENTS AND OTHER INFORMATION CONTAINED THEREIN, THE PRODUCTS OR SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE FUN IN THE CITY SITE OR THESE TERMS OF USE.
14. COMMUNICATIONS AND MARKETING
Fun in the City may allow you to use the Site to express opinions and communicate through forums, bulletin boards, discussion groups, chat rooms or other communication facilities that may be offered on or through the Fun in the City Sites from time to time (collectively “Communities”). Fun in the City shall have the right, but not the obligation, to monitor the content within the Communities at any time, for any reason, including to determine compliance with these Terms of Use and any operating rules established by Fun in the City, as well as to satisfy any applicable law, regulation or authorized government request. Without limiting the foregoing, Fun in the City shall have the right, but not the obligation, to remove any material from the Communities that Fun in the City, in its sole discretion, finds to be in violation of these Terms of Use or otherwise objectionable. Any opinions, advice, ratings, discussions, comments, and/or other messages or postings of any kind made by you or any other End User to the Communities (collectively, “Statements”), are those of the respective author(s) or distributor(s) and not of Fun in the City.
You may have the opportunity to request additional information about Fun in the City’s services, register for merchant newsletters, or otherwise make inquiries by submitting your business contact information through the Site. You agree that we may use your contact information to provide you with the information you requested. You also consent to us using and sharing your contract information to make, and allow others on our behalf to make, unsolicited marketing calls and send you postal and electronic communications (e.g., emails) with information about Fun in the City’s and our business partner’s products, promotions and/or services that we think may be of interest to you. We may also use your contact information to solicit your views on our services, develop new offers and promotions, and for market research.
15. COOKIES AND OTHER TRACKING DEVICES
When you use the Fun in the City Sites, we collect certain information by automated or electronic means, using technologies such as cookies, pixel tags and web beacons, browser analysis tools and web server logs. As you use the Fun in the City Sites and applications, your browser and devices communicate with servers operated by us, our business partners and services providers to coordinate and record the interactivity and fill your requests for services and information.
The information from cookies and related technology is stored in web server logs and also in web cookies kept on your computers or mobile devices, which are then transmitted back to our Fun in the City Sites by your computers or mobile devices. These servers are operated and the cookies managed by us, our business partners or our service providers.
For example, when you visit our Fun in the City Sites, Fun in the City and our service providers may place cookies on your computers or mobile devices. Cookies allow us to recognize you when you return, track and target your interests in order to provide a customized experience. They also help us provide a customized experience and help us to detect certain kinds of fraud. A “cookie” is a small amount of information that a web server sends to your browser that stores information about your account, your preferences, and your use of the Fun in the City Sites. Some cookies contain serial numbers that allow us to connect your Fun in the City Sites activity with other information we store about you in your profile or as related to your interactions with the Fun in the City Sites.
Some cookies are temporary, whereas others may be configured to last longer. “Session” cookies are temporary cookies used for various reasons, such as to manage page views. Your browser usually erases session cookies once you exit your browser. “Persistent” cookies are more permanent cookies that are stored on your computers or mobile devices even beyond when you exit your browser. We use persistent cookies for a number of purposes, such as retrieving certain information you have previously provided (such as your user id if you asked to be remembered), and storing your preferences.
Pixel tags and web beacons are tiny graphic images placed on website pages or in our emails that allow us to determine whether you have performed specific actions. When you access these pages or open email messages, the pixel tags and web beacons generate a notice of that action to us, or our service providers. These tools allow us to measure response to our communications and improve our web pages and promotions.
We collect many different types of information from cookies and other technologies. For example, we may collect information from the devices you use to access the Fun in the City Sites, your operating system type, mobile device model, unique device identification number, browser type, domain, and other system settings, as well as the language your system uses and the country and time zone of your device. Browsers routinely send these types of information to web servers. Our server logs also record the Internet Protocol (“IP”) addresses of the devices you use to interact with the Fun in the City Sites. An IP address is a unique identifier that devices use to identify and communicate with each other on the Internet. We may also collect information about the website you were visiting before you came to the Fun in the City Sites and the website you visit after you leave the Fun in the City Sites, if this information is supplied to us by your browser.
In many cases, the information we collect using cookies and other tools is used in non-identifiable ways. For example, we use information we collect about Fun in the City Sites users to optimize our Fun in the City Sites and understand its traffic and usage patterns. Additionally, if the settings on your location-aware device allow us to receive geo-location information, we will collect that automatically.
Fun in the City has relationships with third party advertising companies to place advertisements on our behalf onto other websites, and to perform tracking and reporting functions for the Fun in the City Sites and our advertisements. These third parties may automatically collect information about your visit to the Fun in the City Sites and other websites, your IP address, your ISP and the browser you use to visit the Fun in the City Sites. They do this by using cookies, clear gifs and other technologies. Information collected may be used, among other things, to deliver advertising targeted to your interests and to better understand the usage and visitation of the Fun in the City Sites and the other websites tracked by these third parties. Fun in the City is not responsible for cookies or clear gifs in third party ads. We encourage you to review the privacy policies or statements of these third party advertising companies to learn more about their use of cookies and other technologies.
16. WEBSITES OF OTHERS
The Site may contain links to websites maintained by other parties not affiliated with Fun in the City. These links are provided solely as a convenience to you and not because we endorse or have an opinion about the contents on such websites. We expressly disclaim any representations regarding the content or accuracy of materials on such websites or the privacy practices of those websites. If you decide to access websites maintained by other parties, you do so at your own risk.
17. PUBLIC NATURE OF YOUR STATEMENTS
You understand and agree that all Statements are public and not private. Any other person (whether or not a user of Fun in the City’s services) may read your Statements without your knowledge. Please do not include any Personal Information (as defined in our Privacy Statement) in your Statements. Fun in the City does not control or endorse any Statement found in any part of the Communities, and we specifically disclaim any liability concerning the Statements and the Communities and any actions resulting from your participation in any part of the Communities, including any objectionable content. Any and all Statements you post to our Fun in the City Sites are not confidential.
18. LICENSE GRANT
By posting Statements or other information on or through the Communities, you grant Fun in the City a royalty-free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, publish, edit, translate, distribute, perform, and display the Statements alone or as part of other works in any form, media, or technology whether now known or hereafter developed without territorial or time limitations, and to sublicense such rights through multiple tiers of sublicensees. Your license of any Statements or information submitted above extends to use for promotions, advertising, market research or any other lawful purpose, without limitation.
19. INDEMNIFICATION/RELEASE
You agree to defend, indemnify and hold harmless Fun in the City, its subsidiaries, affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of or related to any products or services provided by you in connection with the Fun in the City Sites, your Statements, or any use of the Site in violation of these Terms of Use. You are solely responsible for your interactions with your customers and other users of the Fun in the City Sites. To the extent permitted under applicable laws, you hereby release Fun in the City from any and all claims or liability related to any product or service you make or offer to End Users, your Statements, any action or inaction by you, including your failure to comply with applicable law and/or failure to abide by the terms of a Fun in the City, and any conduct or speech, whether online or offline, of any other user or merchant.
20. CHOICE OF LAW; FORUM
Any disputes arising out of or related to these Terms of Use and/or any use by you of the Fun in the City Sites or Fun in the City’s services shall be governed by the internal laws of the State of Illinois, without regard to its choice of law rules and without regard to conflicts of laws principles. You and Fun in the City irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in San Diego, California, USA, for all proceedings in court under these Terms of Use.
21. ADDITIONAL DISCLOSURES
No waiver by either you or Fun in the City of any breach or default or failure to exercise any right allowed under these Terms of Use is a waiver of any preceding or subsequent breach or default or a waiver or forfeiture of any similar or future rights under our Agreement. The section headings used herein are for convenience only and shall be of no legal force or effect. If a court of competent jurisdiction holds any provision of these Terms of Use invalid, such invalidity shall not affect the enforceability of any other provisions contained in these Terms of Use, and the remaining portions of these Terms of Use shall continue in full force and effect.
If you reside in the United States, you are contracting with InnoVision LLC Correspondence should be directed to: Fun in the City, 5961 Kearny Villa Road, San Diego, CA 92123.
The provisions of these Terms of Use apply equally to and are for the benefit of Fun in the City, its subsidiaries, affiliates and its third-party content providers and licensors, and each shall have the right to assert and enforce such provisions directly or on its own behalf.
Fun in the City will not be liable for any default or delay in the performance of its obligations under these Terms of Use due to acts of God, terrorism, natural disasters, earthquakes, fire, riots, floods, and other similar events, to the extent such event is beyond Fun in the City’s reasonable control.