In this Agreement, “Spotluck” and “we” mean Spotluck Inc., and “User” and “you” mean any user of the Services. This Agreement incorporates Spotluck’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “Spotluck Policies”).
By accessing or using the Services or clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.
Spotluck may update or revise this Agreement (including any Spotluck Polices) from time to time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. You may have to click “accept” or “agree” to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, your sole recourse is to terminate your use of the Services, in which case you will no longer have access to your Account (as defined below). Except as otherwise expressly stated by Spotluck, any use of the Services is subject to the version of this Agreement in effect at the time of use.
I – Discounts and Rewards
1. Spotluck Discounts. Spotluck may from time to time provide discounts (the “Discounts”) to be used at participating third-party restaurants (each, a “Restaurant”). The Discounts change every day, as well as throughout the day, and expire as indicated by the Spotluck App.
2. Spotluck Rewards. Spotluck may offer one or more rewards or loyalty programs and, as a result, User may receive points, additional discounts, Spotluck App bonus features or other rewards (collectively, the “Rewards”). Spotluck reserves the right to terminate Rewards, or to change the conditions governing the Rewards, regulations, or benefits of participation, in whole or in part, at any time with or without notice, even though changes may affect the amount of Rewards already accumulated. Spotluck may also withdraw, limit, modify or cancel the amount of Rewards required for redemption of other benefits, or change the number or type of Rewards offered. Spotluck will have final decision should any disputes over Rewards arise. Spotluck reserves the right to terminate a User’s Account and cancel accrued Rewards if Spotluck believes, in its sole discretion, that the User is abusing the Rewards program, or is misrepresenting any information furnished to Spotluck. Should Spotluck offer Rewards from any partners, such as third-party Restaurants, Spotluck will not be responsible for any partner's participation in or withdrawal from the Rewards program. Rewards from two separate Accounts may not be combined. Users are solely responsible for any tax liability related to participation in any Rewards program. Inquiries regarding any assigned Rewards must be submitted via email within 10 days after the date the Rewards were, or were intended to be, rewarded in order to be considered for review by Spotluck.
3. Validation. To use any Discount or Reward, User must present the mobile phone on which such Discount or Reward was awarded to representatives of the relevant Restaurant, and if requested, User must allow such Restaurant representatives to type a validation code into User’s mobile phone.
4. Must Be Present. User, along with User’s mobile phone, must be present at a Restaurant to use a Discount or Reward for that Restaurant. Physical presence is verified by location services GPS verification and USER MUST ENABLE LOCATION SERVICES TO USE ANY DISCOUNT OR REWARD. User shall not use the Spotluck App to lock-in a Discount, or validate a Discount for a Restaurant, until the user is physically present in such Restaurant. We may notify User by email, as well as terminate User’s Account, after a “false use” report that the User was not present to lock-in or validate a Discount, whether or not that was in fact the case. If you receive a false use report email in error, please email firstname.lastname@example.org to dispute it.
5. Time-Sensitive Discounts. Spotluck Discounts are valid only during certain times, as indicated in the Spotluck App. TO USE A DISCOUNT, USER MUST USE THE SPOTLUCK APP TO LOCK-IN SUCH DISCOUNT AT THE RELEVANT RESTAURANT DURING THE RELEVANT TIME PERIOD. If User arrives during the relevant time period but fails to lock-in a Discount during the relevant time period, the Restaurant and Spotluck will be unable to verify User’s arrival time and may not grant the relevant Discount. User must abide by all traffic laws and other safety regulations and Spotluck takes no responsibility for incidents related to User failing to take such precautions in traveling or arriving to a Restaurant.
6. Hotspots and Discount Amounts. Spotluck groups its Restaurants by neighborhoods (“Hubs”) and employs a spinning mechanism to randomly award specified Discounts to Users (“Hotspot” Discounts). Subject to availability, each User may receive only one Hotspot Discount per day in each Hub. This limitation is imposed on each mobile phone, regardless of whether another User Account is accessed on the mobile phone. Hotspot Discounts are limited and User will be unable to spin in any Hub which does not contain any available Hotspot Discounts. NO PURCHASE IS NECESSARY FOR A USER TO SPIN. Spotluck does not guarantee that a User will be awarded a Hotspot at any Hub. Spotluck, in its sole discretion, may use any method of randomly awarding Hotspot Discounts to Users. Discounts change constantly and Spotluck provides no guarantee regarding the amount of a Hotspot or other Discount that User may receive. Spotluck reserves the right to grant different Discounts to different Users at any time (i.e. user-specific Discounts).
7. Gratuity. Restaurants may require User to pay an automatic gratuity, as specified in the Discount Terms section of the Spotluck App (the “Discount Terms”).
8. Maximum Savings. Spotluck endeavors to protect Restaurant profitability and therefore may limit the savings of any one Discount or Reward to a pre-specified amount. Only one Discount or Reward may be used per table, unless otherwise noted in the Discount Terms.
9. Other Offers. Discounts and Rewards shall not be combined with any other offer or deal of the Restaurant, including internal promotions, such as happy hour, lunch specials or weekday specials, and external promotions, such as coupons, discounts or deals provided by other companies.
10. Additional Terms. Additional terms may apply to each specific Discount, Reward and/or Restaurant. Please read the Discount Terms prior to use. For example, certain Discounts or Rewards may be valid for dine-in only, or may not be used for the purchase of certain menu items, such as alcoholic beverages.
11. No Guarantee. The Restaurants are third party non-affiliates of Spotluck and Spotluck cannot guarantee that a participating Restaurant will honor a Discount or Reward. Restaurants may become fully booked after a User is awarded a Hotspot Discount and User may be unable to dine at such Restaurant. User may utilize Spotluck’s Reservation Services (see Part II below) to improve the likelihood that User will get a seat at any given Restaurant. Spotluck may not have current information regarding a Restaurant’s excess capacity. Spotluck offers certain discounts regardless of whether Restaurants are open or have excess capacity and such offers shall in no way be an indication that any Restaurant is in fact open or has excess capacity. Spotluck is not responsible or liable for any Restaurant’s refusal to honor a Discount or Reward. The Sites rely on a network connection and computer software, and Spotluck shall not be liable for User’s inability to use a Discount or Reward resulting from a malfunction of such. Spotluck endeavors to keep all Users satisfied and any complaint or problem should be directed to email@example.com.
12. Resale. Resale or attempted resale of Discounts or Rewards is prohibited and is grounds for, among other things, cancellation of your access to the Services. Discounts and Rewards have no cash value.
13. Mobile Only. Except in limited cases, Spotluck intends to offer its Services exclusively through its mobile application on mobile phones. Users are prohibited from accessing Spotluck Discounts or Rewards through any device other than an activated mobile phone, such as but not limited to tablet, iPad, mp3 player, iPod, deactivated mobile phone or personal computer.
II - Reservation Services
1. Restaurant Reservations. Spotluck provides Reservation Services to User for the purpose of assisting User in securing dining reservations at Restaurants. In response to a User’s online request for a Restaurant reservation through the Spotluck App, Spotluck directly contacts the Restaurant’s computerized database of reservations. The availability of reservations is determined at the time of User’s query. Once a reservation is made by User, Spotluck may provide confirmation of the reservation to User by push notification or email. By using the Reservation Services, User agrees to receive reservation confirmations by push notification or email after booking a reservation through the Reservation Services.
2. No-Show Policy. Spotluck is committed to providing superior quality services to Users and Restaurants. To assist us in maintaining a consistently high level of service for the Restaurants and their patrons, Users must cancel any reservations that they will be unable to honor at least 30 minutes in advance of the reservation. You may cancel your reservation via the Spotluck App or by calling the Restaurant directly. If you are unable to keep your reservation, fail to properly notify the Restaurant and do not arrive within 15 minutes after your reservation time, the Restaurant may cancel your reservation and grant your table to another party. In addition, Spotluck may send you a push notification or an email letting you know that our records indicate that you were a no-show. By using the Reservation Services, User agrees to receive no-show notifications by push notification or email after a report that your reservation was not honored, whether or not that was in fact the case. We may terminate your Account if you are a no-show on multiple occasions. If you receive a no-show notification email in error, please email firstname.lastname@example.org to dispute it. User agrees that all final no-show determinations will be made by Spotluck in its sole discretion.
3. Usage Guidelines. User agrees to use the Reservation Services only to book reservations at Restaurants and then honor those reservations by arriving at the Restaurants on time and ordering and paying for meals. User further agrees not to book more than one reservation for User’s personal use during any one meal time (e.g., lunch, dinner, etc.). Resale or attempted resale of reservations is prohibited and is grounds for, among other things, cancellation of your reservations or termination of your access to the Services.
Part III – General Terms
2. Your Account. You must create a User Account with Spotluck in order to use the Services (an “Account”). When registering for an Account, you must provide true, accurate, current, and complete data about yourself. You also agree to promptly update your Account in the Spotluck App to keep it true, accurate, current, and complete. Each User may create only one Account and we may terminate all of your accounts if you are found to have created multiple accounts for the purpose of obtaining multiple daily spins for Hotspot Discounts. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify Spotluck of any unauthorized use of your Account or any other breach of security related to your use of the Services.
4. Technical Requirements. Use of the Services requires Internet access through your mobile device. You are responsible for all mobile carrier charges resulting from your use of the Services, including from any notifications provided by the Services. Spotluck does not guarantee that the Services will be compatible with all devices or will be supported by all mobile carriers. You may be required to have certain technologies enabled, such as location services or bluetooth on your mobile device, to use the Sites.
5. Modifications to Services. Spotluck reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the Sites, Discounts, Rewards, Restaurants and/or other aspects of the Services. Spotluck shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services.
6. Intellectual Property Rights and Grant of Rights to User. The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “Spotluck Content”) are provided to User by Spotluck or its partners or licensors solely to support User’s permitted use of the Services. The Spotluck Content may be modified from time to time by Spotluck in its sole discretion. Except as expressly set forth herein, no license is granted to User for any other purpose, and any other use of the Services or the Spotluck Content by User shall constitute a material breach of this Agreement. Spotluck and its partners or licensors retain all rights in the Services and Spotluck Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of Spotluck or any third party is granted under this Agreement.
7. Application License. Subject to the terms and conditions of this Agreement, Spotluck grants User a non-exclusive, non-transferable, revocable license to use the Sites, in object code form only, on User’s compatible mobile devices, solely to support User’s permitted use of the Services.
8. Use Restrictions. The Services and Spotluck Content are offered solely for User’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. Spotluck expressly reserves all its rights and remedies under applicable state and federal laws. Spotluck reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, cancel reservations, or deny access to the Services. You agree not to (and not to allow any third party to): (1) use any robot, spider, scraper, or other automatic or manual device, process, or means to access the Services or copy any Spotluck Content, except as expressly authorized by Spotluck; (2) take any action that imposes or may impose (in Spotluck’s sole determination) an unreasonable or a disproportionately large load on the Services or Spotluck’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Services or Spotluck Content to a third party; (5) use any portion of the Services or Spotluck Content to provide, or incorporate any portion of the Services or Spotluck Content into, any product or service provided to a third party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Spotluck); (7) modify any Services or Spotluck Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Services or Spotluck Content; (9) use the Services or Spotluck Content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Services or Spotluck Content or access or use the Services or Spotluck Content for competitive analysis or benchmarking purposes.
9. Government End Users. The Spotluck App constitutes a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
10. Export Control. You may not use, export, or re-export any SpotluckApp or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
11. Termination. Spotluck may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, Spotluck may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any Spotluck Policies). After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account, and you may lose access to and be unable to use any accumulated Rewards. You agree that Spotluck shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which Spotluck will have no liability whatsoever.
12. Reviews, Comments, Communications, and Other Content. The Services may permit you to submit reviews, comments, and ratings; send emails and other communications; and submit suggestions, ideas, comments, questions, or other information for publication and distribution to restaurants and other third parties (“User Content”). Any such User Content must not be illegal, threatening, obscene, racist, defamatory, libelous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of privacy, purposely false or otherwise injurious to third parties, or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, any form of “spam” or references to illegal activity, malpractice, purposeful overcharging, false advertising, or health code violations (e.g., foreign objects in food, food poisoning, etc.). You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of User Content. Spotluck reserves the right (but has no obligation) to monitor, remove, or edit User Content in Spotluck’s sole discretion, including if User Content violates this Agreement (including any Spotluck Policies), but you acknowledge that Spotluck may not regularly review submitted User Content. If you do submit User Content, and unless we indicate otherwise, you grant Spotluck a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable (through multiple tiers) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display, and otherwise exploit such User Content throughout the world in any media. Spotluck takes no responsibility and assumes no liability for any User Content submitted by you or any other User or third party.
13. Your Representations and Indemnity. You represent and warrant that you own or otherwise control all of the rights to any User Content submitted by you; that all User Content submitted by you is accurate; and that exploitation of such User Content by Spotluck and its other Users, partners, and licensees will not violate this Agreement, cause injury to any person or entity, or infringe any third-party rights (including, without limitation, intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless, and (at Spotluck’s request) defend Spotluck, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “Spotluck Parties”) from and against all claims resulting from (1) any User Content submitted by you, (2) your use of the Services, or (3) any breach or alleged breach by you of this Agreement.
14. Liability Limitations. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE SPOTLUCK PARTIES BE LIABLE FOR ANY INJURIES, LOSSES OR CLAIMS, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT, (2) ANY USE OF THE SERVICES, THE SPOTLUCK CONTENT, OR THE USER CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE SERVICES), OR (4) YOUR VISIT TO ANY RESTAURANT OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY RESTAURANT OR MERCHANT IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE SITES BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE SPOTLUCK CONTENT. SPOTLUCK IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY RESTAURANT FOR WHICH A USER HAS MADE A RESERVATION, USED A DISCOUNT OR REWARD OR OTHERWISE UTILIZED THE SERVICES.
You and Spotluck understand and agree that the disclaimers, exclusions, and limitations in this section and the following section are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that Spotluck would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
15. Disclaimer of Warranties. THE SERVICES, ALL SPOTLUCK CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. SPOTLUCK EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. SPOTLUCK DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT SPOTLUCK WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. SPOTLUCK SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SPOTLUCK.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16. Links to Third-Party Websites. The Services may contain hypertext links to websites operated by parties other than Spotluck. Such hypertext links are provided for User’s reference only, and Spotluck does not control such websites and is not responsible for their content. Spotluck’s inclusion of any hypertext links to such websites does not imply any endorsement of the material on such websites or any association with their operators. Spotluck assumes no liability whatsoever for any such third-party websites or any content, features, products, or services made available through such third-party websites.
17. Release. Restaurants are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you, or any member of your dining party, as a result of your interaction with or visit to any Restaurant or from any product or service of any Restaurant. You hereby release the Spotluck Parties from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the Spotluck Parties pertaining to the subject matter of this Section.
18. Notify Us of Infringers. If you believe any of the Services violate your copyright, notify us in writing at the contact address at the bottom of this Section.
In order for us to take action, you must do the following in your notice:
(a) provide your physical or electronic signature;
(b) identify the copyrighted work that you believe is being infringed;
(c) identify the item that you think is infringing your work and include sufficient information about where the material is located so that we can find it;
(d) provide us with a way to contact you, such as your address, telephone number, or email;
(e) provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, its agent, or the law to be used in connection with the Services; and
(f) provide a statement that the information you provide in your notice is accurate, and that (under penalty of perjury) you are authorized to act on behalf of the copyright owner whose work is being infringed.
Here is the contact information for copyright notifications:
PO Box 41010
Bethesda, MD 20824
Again, we cannot take action unless you give us all the required information.
19. Severability. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
20. Assignment. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by Spotluck.
21. Waiver. Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
22. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the Spotluck Parties or their successors or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and Spotluck must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR SPOTLUCK MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Spotluck will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) Spotluck also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or Spotluck may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in or near Montgomery County, Maryland. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in or near Montgomery County, Maryland in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Montgomery County, Maryland for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, 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 part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Spotluck shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in or near Montgomery County, Maryland.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
23. Choice of Law. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of Maryland, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
As of July 11, 2014