Terms of Service
Revised January 17, 2022
1. ACCEPTANCE OF TERMS
Backyard Capital, Inc. (“Backyard”) provides technology-enabled services, including the Software as a Service offering branded as Backyard, the website at https://discoverbackyard.com/, any Mobile Apps (as defined below), the accrual or purchase of Backyard Cash (as defined in Section 2 below) and other related software, content, and services, including all versions and upgrades thereto (collectively, the “Services). Among other things, the Services allow you to redeem Backyard Cash (“Redemption Features”) for food, beverages, products, content and related products and services provided by certain participating merchants (“Merchants”), earn rewards for purchases made through Merchants, engage directly with us or with Merchants, and discover Merchants in your community. Your use of the Services is subject to and governed by the terms and conditions in this Terms of Service (“TOS”). Backyard may, at its discretion, update this TOS at any time. You can access and review the most current version of this TOS at the URL for this page or by clicking on the “Terms of Service” link within the Services, or as otherwise made available by Backyard.
PLEASE REVIEW THIS TOS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TOS, YOU MAY NOT ACCESS OR USE THE SERVICES.
THIS TOS REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS TOS, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS TOS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 13 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this TOS; and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction. THE SERVICES ARE NOT INTENDED FOR USERS UNDER THE AGE OF 18, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE SERVICES, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER. When you purchase Backyard Cash through a web browser, the Mobile Apps, or otherwise through the Services, you authorize Backyard and/or its third-party service provider (“Payment Provider”) to charge your credit or debit card, ACH Service (as defined herein) or other permitted payment method (“Payment Method”). For clarity, Payment Method does not include your redemption of Backyard Cash. When you redeem Backyard Cash through the Redemption Features to pay for a product and/or service provided by a Merchant, you authorize Backyard to deduct the value of the purchase from your Backyard Cash balance in connection with the qualifying purchase from a participating Merchant.
2. SERVICES; RIGHTS
(a) Opening an Account. In order to use Backyard and its Redemption Features, you must register and create a Backyard Account (“Account”). In order to use the Mobile App, you must either download the app to your mobile device and create an Account or access the Services through a web browser. When you create an Account, we will ask you for certain personal information such as your name and mobile number, which will be stored with Backyard to facilitate your transactions. Information on how we collect, use, disclose, store, share and process the personal information you provide to us can be found in our Privacy Policy, provided at: https://discoverbackyard.com/privacy. You agree to provide true, accurate, current and complete information for your account registration, and you agree not to misrepresent your identity or your Payment Method information. It is your responsibility to keep the information you provide us up-to-date and accurate. Backyard may, in its sole discretion, terminate or refuse to approve registrations for Account with or without cause or notice, other than any notice required by law. Only you have the right to access and use your Account. You are responsible for ensuring that your login information and Payment Method information remain confidential at all times. Backyard will assume that if your login or Payment Method information are used to access the Services, the user has the legal authority to use such login or Payment Method. If you become aware of unauthorized use of your login or Payment Method, you agree to notify Backyard immediately by email at backyard@discoverbackyard.com. You remain liable for any activity on your Account until such time as Backyard has been notified and has had an opportunity to take appropriate action.
(b) Using your Account. Once you have created your Account, you will be able to make purchases from Merchants by redeeming Backyard Cash through the Redemption Features and the Mobile App. You can make changes to your Account information by logging in to the Services through a web browser or within the Mobile App. You will also be able to view your recent purchases and payment transaction history by logging in to your Account. You acknowledge and agree that all aspects of purchases outside the Services that Backyard provides, including all engagement and interactions between you and any Merchant, are solely the responsibility of you and the Merchant. For the avoidance of doubt, Backyard is never a party to any transaction between you and a Merchant for the purchase of products or services from the Merchant.
(c) Backyard Cash. As you make purchases with Merchants, you will earn rewards which can be redeemed at any business in the Backyard network (“Backyard Cash”). The value of Backyard Cash shall be as stated by Backyard from time to time via the Services. Backyard Cash will be stored on your Account and you can track past transactions made which involve Backyard Cash on your Account. In addition to earning Backyard Cash, you may also have the option of purchasing Backyard Cash with your Payment Method and redeeming Backyard Cash for products and services provided by Merchants through the Redemption Features. Backyard Cash can also be used to tip Merchants. Backyard Cash has no cash value and cannot be transferred, redeemed or sold for cash unless specifically required by an applicable law. Subject to notice requirements under applicable laws and regulations, Backyard reserves the right, in its sole discretion and at any time, to modify, suspend, terminate, revalue or cancel Backyard Cash and/or the technology services that enable Backyard Cash to the extent permitted by applicable law. In the event Backyard terminates Backyard Cash, Backyard will, in accordance with applicable laws and regulations, maintain records of your Backyard Cash for one year following the termination of Backyard Cash in the event Backyard Cash is reinstated within one year of termination. Backyard reserves the right to adjudicate any discrepancies or disputes regarding Backyard Cash or these terms in its sole discretion and you agree to abide by any such adjudication.
(d) Merchant Responsibilities. You hereby acknowledge and understand that each Merchant is solely responsible for all aspects of its own day-to-day operations, including without limitation provision of food, beverages, products (by any method, including through delivery), service, environment, and overall quality and accuracy.
(e) Alcoholic Beverages. Certain Merchants may hold alcoholic beverage licenses and sell alcoholic beverage products. The Merchant holding the alcoholic beverage license must approve your purchase before the purchase will be finalized, and only upon acceptance of the order by the Merchant will your Account be charged. Backyard acts as a third-party technology provider to the Merchant and has no responsibility or liability to you or any other person for any alcoholic beverage products you may purchase from a Merchant or for any Merchant’s compliance with applicable laws and regulations, including without limitation, local regulations regarding sale of alcohol.
(f) Merchant Compliance with Applicable Laws and Regulations. You hereby acknowledge, agree and understand that each Merchant is solely responsible and liable for all marketing, selling, pricing, packaging, and provision of any products or services offered to you through the Services in compliance with all applicable laws and regulations. Backyard makes no representation or warranty regarding whether a Merchant holds any applicable permit, license, registration, or other credential for its business; whether representations by a Merchant are true and accurate; or whether a Merchant complies with applicable laws and regulations, and Backyard is not responsible for the quality of the products or services provided by Merchants.
(g) Closing your Account. You may close your Account at any time and without cost by contacting Backyard via email at backyard@discoverbackyard.com or as otherwise provided in the Services, but you will remain liable for any outstanding purchases as well as any fees or other charges incurred. Backyard will not issue refunds for amounts previously incurred through our Services once you close your account and your Backyard Cash will be cancelled. You can close your account via the Services. In certain cases, Backyard may not allow you to close your Account, including without limitation, (a) to evade an investigation; (b) you have open or pending purchases or transactions; or (c) if you owe money to Backyard or a Merchant due to your use of the Services.
(h) Grant. Subject to and conditioned on your compliance with this TOS, Backyard hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable license solely to use the Services only for your personal, non-commercial use. Your access to and use of the Services must further comply in all material respects with all usage guidelines posted by Backyard.
(i) Mobile Apps. Backyard may make available mobile software applications for access to and use of certain components of the Services (collectively, “Mobile Apps”). Your access to and use of Mobile Apps is subject to and governed by this TOS and any terms provided by Backyard in the Mobile Apps. If any Mobile App is downloaded by you from the iTunes App Store (each, an “iOS Mobile App”), Google Play Store (each, an “Android Mobile App”) or other app store provider, your use of such iOS Mobile App, Android Mobile App or other app, as applicable, is further subject to your compliance in all material respects with the terms and conditions of (i) the Usage Rules set forth in the iTunes App Store Terms of Service, (ii) Google Play Store Terms of Service or (iii) other app store provider’s terms of service, as applicable. This TOS, and any terms provided by Backyard in the Mobile App, is between you and Backyard only, and not with Apple Inc. (“Apple”), Google LLC (“Google”) or any other app store provider, and Apple, Google or such other app store provider is not responsible for iOS Mobile Apps , Android Mobile Apps or such other Mobile Apps, as applicable, and the contents thereof; however, Apple and Apple’s subsidiaries, Google and Google’s subsidiaries or such other app store provider and its subsidiaries are third-party beneficiaries of this TOS with respect to iOS Mobile Apps, Android Mobile Apps or other Mobile Apps, as applicable. To use a Mobile App, you must have a mobile device that is compatible with the Mobile App. Backyard does not warrant that any Mobile App will be compatible with your mobile device. You may use mobile data in connection with the Mobile Apps and incur additional charges from your wireless provider for these services. You agree that you are solely responsible for such charges.
(j) Trademarks. You may not use the Backyard names, brands, trademarks, service marks and logos that Backyard makes available on the Services (“Marks”). Backyard claims trademark protection over all such Marks and you will not use the Marks except as expressly authorized herein. You will not remove or alter the Marks or any proprietary notices on the Services. The Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name. You may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Backyard. You will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use, will inure to Backyard’s benefit.
3. PRIVACY POLICY
In addition to this TOS, the Backyard Privacy Policy at https://discoverbackyard.com/privacy (“Privacy Policy”) applies to how Backyard may process information provided as part of the Services. You acknowledge and agree that by accessing or using the Services, Backyard may receive certain information about you, including personal data, as set forth in the Privacy Policy, and Backyard may collect, use, disclose, store, share, and process such personal data in accordance with such Privacy Policy.
4. PROPRIETARY RIGHTS
(a) You grant Backyard and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made all content (in any form and any medium, whether now known or later developed) that you provide in connection with the Services. You acknowledge and agree that the technical processing and transmission of data associated with the Services, may require: (i) transmissions over various networks and across borders; and (ii) modifications to conform, connect, and adapt to technical requirements of networks or devices.
(b) The Services provided to you hereunder or available to you through the Services are licensed, not sold, and Backyard retains and reserves all rights not expressly granted in this TOS. You acknowledge and agree that, as between you and Backyard, Backyard and its licensors owns all rights, title and interest (including all intellectual property rights) in the Services and all data, content, and other materials within the Services. The Services are protected by U.S. and international copyright and other intellectual property laws and treaties. Backyard reserves all rights not expressly granted to you in this TOS.
(c) You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account. You agree to notify Backyard immediately of any unauthorized use of your account or password or any other similar breach of security. If your account remains inactive for three months or longer, Backyard reserves the right to suspend or terminate your account, with or without notice to you, and delete your content all without liability.
(d) Backyard does not review, pre-screen or filter all text, graphics, videos, images or other data that you or any Merchant uploads to the Services, or Third Party Services, but we do reserve the right to delete or refuse to accept any such data or Third Party Services in our sole discretion. In addition, Backyard has the right (but not the obligation) in our sole discretion to reject or delete any content that we reasonably consider to be in violation of this TOS or applicable laws and regulations.
5. USER CONDUCT AND RESTRICTIONS
(a) In your use of the Services, you will not:
(i) use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Services, except as expressly permitted under this TOS;
(ii) unless you are transferring Backyard Cash to another user as permitted by and in accordance with any instructions and usage guidelines provided on the Services or otherwise by Backyard, use the Services to transfer money or process a payment transaction that is unrelated to a purchase of a product or service from a Merchant (You may only use the Services to make purchases of a legitimate, bona fide product or service that is purchased from a Merchant);
(iii) reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Services;
(iv) interfere with or disrupt the integrity or performance of the Services, including by disrupting the ability of any other person to use or enjoy the Services;
(v) provide use of the Services on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet "links" to the Services or "frame" or "mirror" the Services on any other server, or wireless or Internet-based device;
(vi) access the Services for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services;
(vii) violate any applicable local, state, provincial, federal or international law or regulation, or use the Services for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;
(viii) remove or obscure any proprietary notice that appears within the Services;
(ix) impersonate any person or entity, including Backyard personnel, or falsely state or otherwise misrepresent your affiliation with Backyard, or any other entity or person;
(x) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;
(xi) take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure; or
(xii) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Services; or download, reproduce, or archive any substantial portion of the Services.
(b) You will not: upload, post, email, store, transmit, or otherwise make available any content that:
(i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or otherwise objectionable;
(ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement);
(iii) infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party;
(iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation;
(v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware;
(vi) contains infringing, libelous, or otherwise unlawful or tortious material; or
(vii) consists of information that you know or have reason to know is false or inaccurate.
(c) Backyard’s failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of this TOS by Backyard, and does not create a private right of action for any other party.
6. PURCHASES; PAYMENT TRANSACTIONS; REDEMPTIONS; ORDER TERMS AND PROMOTIONS
(a) Backyard reserves the right to charge fees in connection with any purchases from Merchants and any redemption of Backyard Cash.
(b) Backyard does not process payment transactions for purchases on behalf of Merchants.
(c) You must have an active Account in good standing to earn Backyard Cash on qualifying purchases and to use the Redemption Features. When you make a purchase from a Merchant or redeem Backyard Cash, you authorize Backyard, as agent for the Merchant, to record your name, phone number, and the amount of the transaction (including any gratuities, fees, and taxes). When you redeem Backyard Cash through the Redemption Features to pay for a product and/or service provided by a Merchant, you authorize Backyard to deduct the value of the purchase from your Backyard Cash balance in connection with the qualifying purchase from a participating Merchant. Backyard may request that you authorize your redemption of Backyard Cash via an SMS message, email, our Services, or another method. All redemptions of Backyard Cash are irreversible and are not eligible for refunds.
(d) You must provide a valid Payment Method to purchase Backyard Cash. Purchases of Backyard Cash are made through our third-party Payment Provider. You authorize Backyard and the Payment Provider to confirm your Payment Method is in good standing with the issuing financial institution. In order to do so, Backyard or the Payment Provider may obtain an authorization to charge your Payment Method for a payment transaction. This authorization may reduce your available funds balance by the authorization amount until the payment transaction is actually charged to your Payment Method and the proceeds are processed and settled. Please contact your Payment Method issuer if you have questions regarding the status of an authorization or of a charge to your Payment Method. You agree that Backyard, or the Payment Provider may resubmit a payment transaction for processing to a payment network in the event a prior payment transaction was declined or returned. All purchases of Backyard Cash are irreversible and are not eligible for refunds.
(e) If you choose to store Payment Method information with Backyard via any of the Services for your convenience and use in future transactions, you agree that Backyard may receive up-to-date information on your Payment Method information (such as card number or expiration date) through services available from the card networks and may update your Payment Method credentials stored with Backyard (if you choose to store your Payment Method credentials) from time to time. Notwithstanding the foregoing, Backyard is under no obligation to obtain up-to-date information about your Payment Method and you agree to provide current and updated information to Backyard in order to use the Services.
(f) We may establish limitations concerning use of the Services, including without limitation individual or aggregate transaction limits on the dollar amount or number of payment transactions you may make within certain time periods. We or the Payment Provider may decline to process any payment transaction without any notice to you. We or the Payment Provider may delay processing of or hold or cancel processing of any payment transaction if we or the Payment Provider believe, in our sole discretion, that the transaction is invalid, suspicious, involves misconduct or fraud, or otherwise violates applicable laws and regulations, this TOS, or any other policies.
(g) Each Merchant sets its own cancellation and refund policies. All redemptions of Backyard Cash are irreversible and are not eligible for refunds from Backyard. Once you redeem Backyard Cash through the Services to pay for a product and/or service provided by a Merchant, you will need to contact the Merchant directly to inquire if you can make a change to or cancel the purchase. For questions or customer service regarding a purchase or the product or service provided by a Merchant, please contact the Merchant directly. Backyard is not responsible for any Merchant service issues or content errors or inaccuracies related to a Merchant’s website, menu, or other materials.
(h) When you use the Mobile App, or other Services, you may be eligible to use codes (“Promotion Codes”) at checkout to receive discounts or other promotional offers on purchases (“Promotions”), subject to any terms and conditions of the specific Promotion Code or Promotion, as displayed on our websites, on the Mobile App, or related print, social media, or digital marketing materials. The promotional value may be issued by Backyard or by a Merchant. Promotion Codes may not be redeemed for cash and are non-refundable and non-transferrable. Backyard reserves the right to modify, suspend, terminate, or alter the terms of any Promotion Code or Promotion at any time. Promotion Codes may not be reused in the event of a cancellation and/or refund.
7. ACH SERVICES
Backyard may allow you to generate and authorize ACH transfers as a Payment Method (“ACH Services”). By using the ACH Services, you expressly authorize Backyard and the Payment Provider to access your designated bank or payment account and associated information (“ACH Account”), on your behalf and as your limited agents, in order to provide the ACH Services. You are exclusively and solely responsible for all payments generated, authorized, printed, and mailed as part of the ACH Services. Neither Backyard nor the Payment Provider shall be liable or responsible in any way for the accuracy or validity of your ACH Account or banking information, including your account and routing numbers and/or who is authorized to access this information. Neither Backyard nor the Payment Provider shall be liable to you or any third-party, banking institution, or Merchant or other vendor for any unauthorized or incorrect payments generated, authorized, printed or mailed as part of the ACH Services, nor any fees assessed to you, any Merchants or other vendors, or any bank due to unauthorized, incorrect or returned payments. You agree to maintain a balance or available credit limit in the specified payment account that is sufficient to fund all payments that you initiate through the ACH Services. You certify that your payment account is in your name and that you are authorized to use it. You represent and warrant that you have the right to authorize the Payment Provider to charge the payment account for payments that you initiate using the ACH Services. You will indemnify and hold Backyard harmless from any claims by any other owner of the account or any biller and its payment processor resulting from your lack of authority, funds or credit.
8. FEEDBACK
If you elect to provide or make available to Backyard any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Feedback”), Backyard shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you.
9. DEALINGS WITH ADVERTISERS AND OTHER THIRD PARTIES
The Services may include or provide access to third party products, services, content, or offerings, including advertising for such (“Third Party Services”). You acknowledge that different terms of use and privacy policies may apply to your use of such Third Party Services and that terms and policies are solely between you and the advertiser or other third party. You agree that does not endorse and is not responsible or liable for any issues related to Third Party Services. Furthermore, Backyard does not guarantee the accuracy, integrity or quality of any Third Party Services, regardless of whether such products or services are designated as “certified,” “validated” or the like. Any interaction or exchange of information or data between you and any third-party is solely between you and such third-party. You should take precautions when downloading files from any platform to protect your computer from viruses and other destructive programs. If you decide to access any Third Party Services, you fully assume the risk of doing so.
10. INDEMNIFICATION
You shall indemnify and hold Backyard and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Backyard Parties”) harmless from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys’ fees, to extent resulting from or arising out of any third party claim, demand, or action due to (a) content you provide to Backyard; (b) your violation of this TOS, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your use of the Services, except as expressly permitted in this TOS.
11. DISCLAIMER OF WARRANTIES
(a) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Backyard PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
(b) BACKYARD PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE; OR (iv) THE SERVICES, OR PRODUCTS OR SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
(c) BACKYARD RELIES UPON MERCHANTS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. FUNCTION FLO DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICES IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, INCLUDING, WITHOUT LIMITATION, MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION.
(d) YOU ACKNOWLEDGE THAT NEITHER BACKYARD NOR ITS THIRD-PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT NEITHER FUNCTION FLO NOR ITS THIRD-PARTY PROVIDERS ARE RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, OR OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WITHOUT LIMITING THE FOREGOING, NEITHER FUNCTION FLO NOR ITS THIRD-PARTY PROVIDERS WARRANTS OR GUARANTEES THAT ANY OR ALL SECURITY BREACHES OR ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES
(e) THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED.ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).
12. LIMITATION OF LIABILITY
(a) BACKYARD PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF Backyard PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL Backyard PARTIES’ TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES OR CONTENT EXCEED THE AMOUNT PAID BY YOU TO Backyard FOR ACCESS TO THE SERVICES WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM(S) AROSE.
(b) THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW.THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. TCPA/ELECTRONIC COMMUNICATIONS (E-SIGN DISCLOSURE AND CONSENT)
(a) Consent for Electronic Communications. You agree and consent to receive electronically all communications, agreements, disclosures, notices and documents (collectively “Communications”) that Backyard provides in connection with your Account and the Services. Backyard may at times be required to provide you with Communications in written form, which you agree to receive electronically instead of in paper form, including by sending via electronic mail to the email address you provide to us, or by posting notice or communicating with you via the Mobile App or our website. Communications include this TOS and any and all other agreements or policies to which you must agree to in order to use the Services, including updates to those agreements and policies; payment authorizations and transaction receipts or confirmations of customer service matters; and any other communication related to your use of the Services.
It is your responsibility to keep your email address accurate and up to date so that Backyard can communicate with you. You can update the email address associated with your Account by logging in and accessing the “Profile” section within the Mobile App.
All Communications sent in electronic format will be considered to be in “writing and are considered received by you upon posting through our website or Mobile App, or sending such Communications to you via electronic email or SMS, regardless of whether you have accessed that Communication.
(b) Consent to Contact Mobile Number. By voluntarily providing your mobile phone number to Backyard, you represent you are authorized to provide that number to Backyard and agree that Backyard may contact you at that number. If you provide a mobile number, you expressly agree that Backyard may contact you using automated telephone call, and SMS or MMS messages at that phone number, and you hereby consent to receiving such communications for transactional, informational, and operational purposes. You agree to promptly alert us whenever you stop using a particular telephone number. Your cellular or mobile telephone provider will charge you according to the type of plan you carry.
(c) Revocation of Consent. Your consent to receive electronic Communications is valid until and unless you revoke it. You may revoke your consent at any time, however, consent to electronic Communications is a condition of some of our Services, and if you revoke it you will no longer be permitted to use the Services. If you wish to revoke your consent for electronic Communications, please contact backyard@discoverbackyard.com.
14. SUSPENSION AND TERMINATION
(a) Either party may terminate this TOS at any time.
(b) If you violate this TOS, Backyard may, with or without notice to you, immediately suspend or terminate your access and use of the Services.
(c) Backyard reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and Backyard shall not be liable to you or any third party for any such modification or discontinuance;
(d) Upon termination of this TOS for any reason: (i) Backyard, in its sole discretion, may remove and discard your content and information; (ii) you will immediate cease your use of the Services; and (iii) any provision that, by its terms, is intended to survive the expiration or termination of this TOS shall survive such expiration or termination. Further, you agree that that Backyard shall not be liable to you or any third party for any termination of your account or access to the Services.
15. GOVERNING LAW
This TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Delaware, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this TOS, regardless of the states in which the parties do business or are incorporated.
16. BINDING ARBITRATION AND CLASS ACTION WAIVER
(a) ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
(b) The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(c) WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
(d) Notwithstanding anything to the contrary, you and Backyard may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 13.
(e) If Backyard implements any material change to this Section 13, such change shall not apply to any Claim for which you provided written notice to Backyard before the implementation of the change.
17. LEGAL COMPLIANCE
You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where Licensed Material is delivered or used and you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
18. U.S. GOVERNMENT ENTITIES
This section applies to access to or use of the Services by a branch or agency of the United States Government. The Services includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this TOS with respect to the such items, and any access to or use of the Services by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
19. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
If you believe that your work has been made available through the Services in a way that constitutes copyright infringement, please provide Backyard’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Services; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, please contact Backyard’s Agent for Notice of Copyright Claims. Backyard’s Agent for Notice of Copyright Claims can be reached as follows:
Backyard Capital, Inc.
C/o David Songer
Email: backyard@discoverbackyard.com
Phone Number: +1.512.524.3801
20. CALIFORNIA USERS AND RESIDENTS
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
21. GENERAL PROVISIONS
This TOS constitutes the entire agreement between you and Backyard concerning your access to and use of the Services. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Backyard with respect to such subject matter. In the event of any conflict between or among this TOS and any end user license agreement, privacy policy or usage guidelines to which this TOS refers, the terms and conditions of this TOS shall take precedence and govern. This TOS may not be amended by you except in a writing executed by you and an authorized representative of Backyard. Except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this TOS. For the purposes of this TOS, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under this TOS without the prior written consent of Backyard. The failure of Backyard to exercise or enforce any right or provision of this TOS shall not constitute a waiver of such right or provision. If any provision of this TOS is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this TOS. Any prevention of or delay in performance by Backyard hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.