ARBITRATION PROVISION WHICH REQUIRES THAT DISPUTES ARE RESOLVED BY FINAL AND BINDING
ARBITRATION ON AN INDIVIDUAL AND NOT A CLASS-WIDE OR CONSOLIDATED BASIS.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE OUR WEBSITE
(hereinafter referred to as "Outerwall," "we," or "us"). These Terms do not alter in any way the terms or conditions of any other agreement
you may have with us or our subsidiaries or affiliates for products, services or otherwise. If you are using the Site on behalf of any entity,
you represent and warrant that you are authorized to accept these Terms on such entity's behalf, and that such entity agrees to be responsible
to us if you or such entity violates these Terms.
Outerwall reserves the right to change or modify these Terms at any time and in our sole discretion. If Outerwall makes changes to these Terms,
we will provide notice of such changes, such as by sending an email, posting a notice on the homepage of our Site or updating the "Last Updated"
date above. Your continued use of the Site will confirm your acceptance of the revised Terms. We encourage you to frequently review the Terms to
ensure you understand the terms and conditions that apply to your use of the Site. If you do not agree to the amended Terms, you must stop using the Site.
about how Outerwall collects, uses and discloses information about our users.
Copyright and Limited License
Unless otherwise indicated, all content and other materials on the Site, including, without limitation, our logos, and all designs, text, graphics,
images, information, data, software and links, audio and video clips, and any intellectual property contained therein, and the selection and arrangement
thereof (collectively, the "Materials") are the proprietary property of Outerwall or our licensors or suppliers or users and are protected by U.S. and
international copyright, trademark and other laws. You acknowledge that these rights are valid and enforceable and that you do not acquire any ownership
rights by accessing or using the Services or the Materials. The term "Materials" as used in these Terms does not include third party trademarks, intellectual
property, or other content or material owned by third parties and not covered under a license with Outerwall.
Unless or otherwise agreed to in a writing by Outerwall, you are granted a limited, non-sublicensable license to access and use the Site for your personal use only.
Such license is subject to these Terms and does not include: (a) any resale or commercial use of the Site or the Materials therein without our express written consent;
(b) the distribution, public performance or public display of any Materials; (c) modifying or otherwise making any derivative uses of the Site or the Materials, or any portion thereof;
(d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the Site,
the Materials or any information contained therein, except as expressly permitted on the Site; or (f) any use of the Site or the Materials other than for their intended purposes.
Any use of the Site or the Materials other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license
granted herein. Such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and
statutes. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication
or otherwise. This license is revocable at any time.
The Site is not targeted towards, nor intended for use by, anyone under the age of 13. In addition, if you are between the ages of 13 and 18 (or between 13 and the age of legal
majority under applicable law), you may only use the Site under the supervision of a parent or legal guardian who agrees to be bound by these Terms. By using the Site, you
represent and warrant that you (a) have not been previously suspended or removed from the Site and (b) have full power and authority to enter into these Terms and that, in
doing so, you will not violate any other agreement to which you are a party.
If you believe that anything on the Site infringes upon any copyright which you
own or control you may file a notification of such infringement with our Designated
Agent as set forth below.
Name of Designated Agent: Don Rench, General Counsel
Address of Designated Agent: 1800 114th Avenue SE. Bellevue, WA 98004
Telephone Number of Designated Agent: 425-943-8000
Facsimile Number of Designated Agent: 425-943-8090
E-Mail Address of Designated Agent: email@example.com
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification.
You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages,
including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or
disabling access to the material or activity claimed to be infringing.
The trademarks, logos and service marks displayed on the Site (collectively, the "Trademarks") are the trademarks of Outerwall and our suppliers and licensors.
The Trademarks may not be copied, imitated or used, in whole or in part, without the prior written permission of Outerwall or the applicable trademark holder.
For more information about Outerwall's trademarks, please refer to the posted trademark information at www.outerwall.com/Trademarks.
Any authorized use of the Outerwall Trademarks must be in accordance with guidelines that we may provide you from time to time. The terms "Trademarks" as used in these Terms do not
include the trademarks, intellectual property, or other content or material owned by third parties and not covered under a license with Outerwall.
You may not use any metatags or any other hidden text utilizing "Outerwall" or any of our other names, Trademarks or product or service names without our prior written permission.
In addition, the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Outerwall
and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names
or logos mentioned on the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark,
manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us or any other affiliation.
You are granted a limited, non-exclusive right to create a text hyperlink to the Site for noncommercial purposes, provided such link does not portray Outerwall or any of our products
and services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any
material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use an Outerwall logo or other proprietary graphic of
Outerwall to link to the Site without the express written permission of Outerwall. Further, you may not use, frame or utilize framing techniques to enclose any Outerwall trademark,
logo or other proprietary information, including the images found on the Site, the content of any text or the layout/design of any page or form contained on a page on the Site without
Outerwall's express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright
or proprietary right of Outerwall or any third party.
Outerwall makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party websites accessible by hyperlink from the
Site, websites linking to the Site, or the accuracy of any information provided by such third parties. Such sites are not under the control of Outerwall and Outerwall is not responsible for
the contents of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. Outerwall provides these links to you only as a convenience, and the
inclusion of any link does not imply affiliation, endorsement or adoption by us of any site or any information contained therein. When you leave the Site, you should be aware that our terms
and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site. We are
not liable to you for any decisions you make or any actions you take based on the information you receive from third parties' web sites or information contained therein.
Third Party Content
We may provide third party content on the Site and may provide links to web pages and content of third parties (collectively, "Third-Party Content") as a service to those interested in this information. We do not control, endorse or adopt any Third-Party Content and make no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that we are not responsible or liable in any manner for any Third-Party Content and we do not undertake any responsibility to update or review any Third-Party Content. Users use such Third-Party Content contained therein at their own risk.
Advertisements and Promotional Offers; Third-Party Products and Services
We may run advertisements and promotional offers from or involving third parties on the Site or may otherwise provide information about or links to third-party products, services or programs on the Site. In addition, we may advertise or make available through the Site certain programs that enable you to obtain gift cards, coupons, discounts or other items from third party businesses. We do not endorse or recommend any such third parties and your business dealings or correspondence with, or participation in the promotional offers of, any such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotional offers, are solely between you and such third party. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotional offers or as the result of the presence of such third parties or third-party information on the Site.
Contests, Sweepstakes and Other Promotions
We may from time to time administer, operate or run contests, sweepstakes, and other promotions (collectively "Promotions") on the Site and may also advertise and allow participation in Promotions via other methods (including, without limitation, in-person or direct mail). Each Promotion has its own official rules, which will be made available to you. Your participation in a Promotion is subject to and governed by the official rules for the Promotion. You must read and agree to the official rules for any Promotion before you participate in the Promotion. In the event of any conflict or inconsistency between these Terms and the official rules for a Promotion, the official rules will control.
You can submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information, about Outerwall or our Site or other products or services (collectively, "Feedback"). Feedback, whether submitted through the Site or otherwise, is non-confidential and shall become the sole property of Outerwall. Outerwall shall own, and you hereby assign to Outerwall, all right, title and interest, including all intellectual property rights, in and to such Feedback and Outerwall shall be entitled to the unrestricted use and dissemination of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You agree to execute any documentation required by Outerwall (in our sole discretion) to confirm such assignment to, and unrestricted use and dissemination by, Outerwall of such Feedback.
By accessing or using our Site, you agree that you will not violate any law, contract, intellectual property or other third-party right or commit a tort, and that you are solely
responsible for your conduct. You agree that you will abide by these Terms and will not:
- Use the Site in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Site, or that could damage, disable, overburden or impair the functioning of the Site in any manner;
- Use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Site or to extract data;
- Reverse engineer any aspect of the Site or do anything that might discover source
code or bypass or circumvent measures employed to prevent or limit access to any
area, content or code of the Site (except as otherwise expressly permitted by law);
- Attempt to circumvent any content filtering techniques we employ, or attempt to
access any service or area of the Site that you are not authorized to access;
- Attempt to indicate in any manner that you have a relationship with us or that we
have endorsed you or any products or services for any purpose;
- Engage in any harassing, intimidating, predatory or stalking conduct;
- Develop any third-party applications that interact with the Site without our prior written consent; or
- Use the Site for any illegal or unauthorized purpose or engage in, encourage,
or promote any activity that violates these Terms.
Your access to and/or use of the Site is at your own risk. Enforcement of the acceptable use rules set forth in these Terms is solely at Outerwall's discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances.
Financial Material Disclosure.
12.1 Forward-Looking Statements.
This Site, and any documents issued by Outerwall and available through this Site, may contain statements which constitute forward-looking statements within the meaning of the U.S.
Private Securities Litigation Reform Act of 1995. Forward-looking statements can be identified by the fact that they do not relate strictly to historical or current facts.
Those statements can be identified by the use of words such as "believe," "expect," "plan," "may," "will," "should," "anticipate" or similar statements or the negative of these words.
Forward-looking statements include statements made as to future operations, costs, capital expenditures, cash flow, improvements in infrastructure, distribution and replenishment
systems and operating efficiencies, sales and earnings estimates or trends and expansion plans and projections. These forward-looking statements are based on our expectations as of
the date such forward-looking statements are made. Known and unknown internal and external risks and uncertainties may cause the actual results to be materially different from those
expressed in or implied by the forward-looking statements. The information contained in our most recent Annual Report on Form 10-K and any subsequent Quarterly Report on Form 10-Q
filed with the Securities and Exchange Commission, including information contained under the section captioned ""Risk Factors", identifies important factors that could cause actual
results to differ from those contemplated by forward-looking statements. Outerwall undertakes no obligation to update forward-looking statements to reflect events or circumstances
that occur after the date the statements were made.
12.2 Press Releases.The information contained within press releases issued by Outerwall
should not be deemed accurate or current except as of the date the release was posted.
Outerwall has no intention of updating, and specifically disclaims any duty to update,
the information in the press releases. To the extent any information therein is
forward-looking, it is intended to fit within the safe harbor for forward-looking
statements, and is subject to material risk.
12.3 Third-Party Financial Information.Outerwall may provide links to third-party
websites or services that contain financial or investment information about Outerwall.
Access to such websites and the information contained therein is provided as service
to those interested in the information. Outerwall neither regularly monitors nor
has control over the content of third parties' statements or websites. Accordingly,
Outerwall does not endorse or adopt these websites or any information contained
therein, including, without limitation, analysts' reports and stock quotes. Outerwall
makes no representations or warranties whatsoever regarding the accuracy or completeness
of the content, information, or opinions of third-party websites or other third-party
information that is identified on the Site. Users visit these websites and use
the information contained therein at their own risk.
You agree to defend, indemnify and hold harmless Outerwall and our subsidiaries, affiliates, independent contractors, service providers and consultants, and our and their respective directors, officers, employees and agents (collectively, "the Outerwall Parties") from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to (a) your use of the Site, (b) any Feedback you provide, (c) your violation of these Terms, or (d) your violation of the rights of any third party.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE SITE AND THE MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY US; (B) WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITE, INCLUDING THE INFORMATION, CONTENT, MATERIALS, OR FUNCTIONS CONTAINED THEREIN; (C) WE DO NOT REPRESENT OR WARRANT THAT CONTENT, MATERIALS, OR FUNCTIONS ON THE SITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE; (D) WE ARE NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO TEXT OR PHOTOGRAPHY; AND (E) WHILE WE ATTEMPT TO MAKE YOUR ACCESS AND USE OF THE SITE SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SITE OR OUR SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION 14 MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT SHALL OUTERWALL OR THE OUTERWALL PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR CONNECTED TO THE USE OF OR INABILITY TO USE OUR SITE, THE CONTENT OR THE MATERIALS THEREIN, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM OUTERWALL, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO OUTERWALL'S RECORDS, PROGRAMS OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF OUTERWALL AND THE OUTERWALL PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE INCLUDING THE INFORMATION, CONTENT, MATERIALS, AND FUNCTIONS CONTAINED THEREIN EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO US FOR ACCESS TO OR USE OF THE SITE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THESE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
No Third-Party Beneficiaries
These Terms are for the benefit of, and will be enforceable by, the parties only.
These Terms are not intended to confer any right or benefit on any third party or
to create any obligations to any such third party.
Modifications to the Site
We reserve the right to change the Services and the Materials and to modify, suspend or discontinue the Services or any features or functionality of the Services at any time without notice, obligation or liability to you.
Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION 18 CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES WITH OUTERWALL AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM OUTERWALL.
18.1. Binding Arbitration.
Except for disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents, you and Outerwall agree: (a) to waive your and Outerwall's right to have any and all disputes arising from or connected to these Terms and/or the Site (including but not limited to purchases made through our Site (collectively, "Disputes") resolved in a court; and (b) to waive your and Outerwall's right to a jury trial. Instead, you and Outerwall agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
18.2. No Class Arbitrations, Class Actions or Representative Actions.
YOU AND OUTERWALL AGREE THAT DISPUTES ARE PERSONAL TO YOU AND OUTERWALL, AND THAT DISPUTES WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ARBITRATION AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING. YOU AND OUTERWALL AGREE THAT A DISPUTE CANNOT BE BROUGHT AS A CLASS OR OTHER TYPE OF REPRESENTATIVE ACTION, WHETHER WITHIN OR OUTSIDE OF ARBITRATION, OR ON BEHALF OF ANY OTHER INDIVIDUAL OR GROUP OF INDIVIDUALS.
18.3. Federal Arbitration Act.
You and Outerwall agree that these Terms affect interstate commerce and that the enforceability of this Section 18 shall be governed by, construed and enforced, both substantively and procedurally, by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the "FAA") to the maximum extent permitted by applicable law.
You and Outerwall agree that we will notify each other in writing of any Dispute within thirty (30) days of when it arises so that we can attempt in good faith to resolve the Dispute informally. Notice to Outerwall shall be sent by certified mail or courier to Outerwall Inc., Attn: General Counsel, 1800 114th Avenue SE. Bellevue, WA 98004. Your notice must include: (a) your name and contact information; (b) a description of the nature or basis of the Dispute; and (c) the specific relief that you are seeking. If you and Outerwall cannot agree to resolve the Dispute within thirty (30) days of Outerwall receiving your notice, then either you or we may, as appropriate pursuant to this Section 18, commence an arbitration proceeding or file a claim in court. You and Outerwall agree that any arbitration or claim must be commenced or filed within one (1) year after the Dispute arise; otherwise, you and Outerwall agree that the claim is permanently barred (which means that you will no longer have the right to assert a claim regarding the Dispute). You and Outerwall agree that (1) any arbitration will occur in King County, Washington, which you may attend either in person or via videoconference or telephone; (2) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and (3) the state or federal courts in King County, Washington will have exclusive jurisdiction over any appeals and the enforcement of an arbitration award and over any Dispute between the parties that is not subject to arbitration; provided, however, that small claims courts in the jurisdiction in which you reside will have jurisdiction over small claims disputes.
18.5. Authority of Arbitrator.
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute and (b) the authority to grant any remedy that would otherwise be available in court. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual's claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
18.6. Rules of JAMS.
The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
If any provision of this Section 18 is held invalid or unenforceable, it will be so held to the minimum extent required by law and all other provisions will remain valid and enforceable. Further, the waivers set forth in Section 18.2 are severable from the other provisions of these Terms and will remain valid and enforceable except as prohibited by applicable law.
Notwithstanding the modification-related provisions in these Terms, if we revise the dispute resolution provisions of the Terms, you may reject any such change within thirty (30) days of the date such change becomes effective by providing Outerwall with written notice of such rejection by writing to: Outerwall Inc., Attn: Legal, 1800 114th Avenue SE. Bellevue, WA 98004. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Section 18. By rejecting changes, you are agreeing to resolve disputes in accordance with the last version of the Terms you accepted.
Governing Law and Venue
These Terms are governed by and construed in accordance with the laws of the State of Washington and applicable United States law, without giving effect to any conflict of laws principles. You agree that any action at law or in equity arising out of or relating to these Terms shall be filed only in the state and federal courts located in King County, Washington (except for small claims disputes, which may be filed in the jurisdiction in which you reside), and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms.
Notwithstanding any of these Terms, Outerwall reserves the right, without notice
and in our sole discretion, to terminate your license to use the Site, and to
block or prevent future your access to and use of the Site.
If any provision of these Terms shall be deemed unlawful, void or for any reason
unenforceable, then that provision shall be deemed severable from these Terms and
shall not affect the validity and enforceability of any remaining provisions.