User Terms of Service
1. Welcome to the LevelUp Platform
SCVNGR, Inc., doing business as LevelUp ("we" or "LevelUp" or "Company"), provides a mobile payment and customer rewards platform and related services ("Services" or "LevelUp Services"), and provides and/or enables related mobile applications, software applications, websites, and microsites ("Apps" or "LevelUp Apps"), for use by you ("User") to make payments for goods and/or services and participate in merchant incentive and rewards programs ("Campaigns") at physical and/or online points-of-sale ("POS"), among other available functions. LevelUp provides access to these Services and Apps, including this App, subject to your acceptance of all of the following Terms and Conditions ("User Terms" or "Agreement").
By accessing, downloading, copying, and/or using a LevelUp App, including this App, and/or the Services, you agree to these User Terms. THESE USER TERMS CREATE A BINDING LEGAL AGREEMENT BETWEEN YOU AND LEVELUP, AND INCLUDE AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THEM CAREFULLY.
2. LevelUp User Account
In order to use an App to make payments, and/or engage in any merchant reward Campaigns, you must first register with LevelUp, create a LevelUp User Account, and associate a valid debit and/or credit card. Your registration and use of a LevelUp User Account is subject to these User Terms.
By registering for a LevelUp User Account, you agree, represent, and warrant to LevelUp, that:
- All information provided to LevelUp is accurate, current and complete, and that you will maintain and update such information as it changes;
- You will maintain the security of your User Account, take responsibility for all activities that occur using your User Account, and accept all risks of unauthorized access resulting from your acts or omissions;
- You are of legal age to form a binding contract, or you are over the age of 13 and will use the User Account under the supervision of a parent or guardian who agrees to be bound by these User Terms. The LevelUp platform and Apps are not intended for or targeted to, anyone under the age of 13;
- You are either a citizen or a legal resident of the United States and that you will use LevelUp solely within the United States;
- You do not and have never used or maintained any other LevelUp User Account under a different email address (the creation of additional User Account(s) shall be considered a violation of this Agreement); and,
- Your registration and your use of LevelUp and any App is not prohibited by law, and will not be used to engage in, commit, or facilitate any illegal activity.
Your registration and your User Account, including any User Credit or Loyalty Credit associated with such User Account, and your rights under this Agreement, are personal to you and are not transferable by you to any party.
Payment Methods. LevelUp enables you to make card-based purchases at participating merchants by linking to your User Account debit, credit, and/or prepaid credit cards issued in the United States bearing the trademarks of MasterCard International Inc. and Visa Inc. (the "Networks"), as well as American Express and Discover ("payment instrument(s)"). You may not associate a Health Savings Account card with your LevelUp User Account. Your User Account is not a bank account. LevelUp is not a bank, and does not offer banking or money service business ("MSB") services as those terms are defined by the United States Department of Treasury.
Primary and Secondary Payment Instruments. By linking a payment instrument(s) to your User Account, you represent to LevelUp that you are an authorized user of the payment instrument(s). If multiple payment instruments are linked to your User Account, you must designate one linked payment instrument as a primary payment instrument. You may change the designated primary payment instrument associated with your User Account at any time. All payment instruments other than the designated primary payment instrument will be deemed "secondary" payment instruments. You are responsible for ensuring that all payment instruments are at all times current, non-expired, and valid for payments.
Test Authorizations. By associating a payment instrument(s) with your LevelUp User Account, you consent to LevelUp's temporarily authorizing a charge on that payment instrument, typically for $1.00 or less, as part of our verification process. You will not be required to pay this charge, and it will disappear from your payment instrument statement within a few days.
Termination of User Account. LevelUp reserves the right to reject, suspend, or terminate your registration and/or use of a LevelUp User Account, and/or your access to the LevelUp platform, in the event that you breach any of the LevelUp User Terms or any of the representations and warranties made herein.
Use of LevelUp User Accounts for Development Purposes. All uses of a LevelUp User Account for the purpose of developing software, applications, or programs that will interface to the LevelUp Platform, including without limitation to access any LevelUp SDK and/or associated APIs, and the use of the LevelUp Developer Sandbox, are additionally subject to LevelUp's Developer Terms (https://www.thelevelup.com/developer-terms), which are incorporated herein by reference. By using your LevelUp User Account to access LevelUp's development tools, you agree to all of the Developer Terms.
3. License to Use the LevelUp Apps and Websites
Limited License. LevelUp grants you a limited, non-exclusive, non-transferrable license, to access, view, download, install, and use this LevelUp App(s), and/or any LevelUp website content, for the purpose of using the LevelUp Services, including the initiation of payment for goods and/or services and for participating in merchant reward Campaigns.Except as expressly permitted by these User Terms, you may not modify, reproduce, distribute, publish, reverse-engineer, create derivative works out of, decompile, deep link, publicly display, or otherwise exploit for any purpose, the LevelUp Property, or any portion thereof. You may not remove or alter, or reuse in any manner or for any other purpose, any copyright, trademark or other proprietary notices that have been placed on the LevelUp Property. You may not collect and use the product listing, pictures, or descriptions within the LevelUp Property for any commercial purpose. All rights not expressly granted to you by this Agreement remain the property of LevelUp and its licensors.
No Rights to LevelUp Property. The LevelUp App(s) and website content downloaded or accessed by you pursuant to these User Terms, including without limitation all of the text, images, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content, other than User Content, as defined below, and all software embodied in the LevelUp website or Apps, or otherwise used by LevelUp to deliver the LevelUp Services (collectively, the "LevelUp Property"),is the sole property of LevelUp and/or of third parties provided under license to LevelUp. LevelUp reserves all rights in the LevelUp Property, including without limitation copyright, trademark, patent, and trade secret rights.
Trademarks. The marks "LEVELUP," "SCVNGR," and "INTERCHANGE ZERO," among other marks, the LevelUp logo, and the LevelUp scanner, are registered or unregistered trademarks of LevelUp and may not be used in connection with any service or products other than those provided by LevelUp, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits LevelUp. The LevelUp platform and Apps, also feature the trademarks, service marks, and logos of third parties, and each owner retains all rights in such marks. Any use of such marks, or any others displayed in any App, inures solely to the benefit of their respective owners.
Patents. The systems and methods used by LevelUp to provide the LevelUp Services are protected by patents including U.S. Pat. Nos. 8,620,790, 8,639,619, and other pending applications, and no rights are hereby granted to such patents or applications.
No Illegal Uses. The LevelUp Property licensed hereunder shall not be used for any purpose not contemplated by these User Terms, or for any illegal purpose, or to commit or facilitate any act by any person in violation of any law or regulation, and/or any fraud against any person. The LevelUp Platform and/or associated LevelUp Apps shall not be used for the purpose of accepting or transferring security or payment for loans, providing cash advances, check cashing, or otherwise distributing cash to any person or entity, or in connection with any lottery or gambling activity.
4. Authorization of Payments on the LevelUp Platform
Authorization for LevelUp to Charge Payment Instrument(s). By linking a payment instrument(s) to your LevelUp User Account, including by tapping the "Link Card" authorization button within a LevelUp App, and using an App to initiate a payment for a purchase at a participating merchant POS, you authorize LevelUp to charge your linked payment instrument(s), including the primary and/or any secondary instrument(s), as necessary to complete payment to LevelUp for the purchase. LevelUp will first submit authorized charges to your designated primary payment instrument. If such charge is rejected or fails, LevelUp may charge any secondary payment instrument(s) without advance notice to you.
In the event you are entitled to a reversal, refund, chargeback, or other adjustment associated with a purchase you made using your LevelUp User Account, you also authorize a credit to your payment instrument(s) to accomplish that transaction.
All purchases and charges authorized using an App and/or the LevelUp Services are also subject to the terms and conditions set forth by the entities that issue your payment instrument(s). You are responsible for complying with those terms and conditions, and you are responsible for payment of all charges and related fees imposed by such entities pursuant to those terms and conditions.
There is no limit on the frequency of transactions you may make using your LevelUp User Account. LevelUp does not charge any fees to its Users in connection with such transactions.
Transaction Grouping. LevelUp may in its discretion charge your authorized payment instrument(s) for your authorized transaction charges by grouping the amounts of such individual transactions in a single bundled charge. LevelUp typically charges your primary payment instrument in a recurring charge once per month, on the same day each month. You will be notified in advance of the date of your recurring charge. LevelUp may group transactions for up to thirty-one (31) days following a transaction before submission of an grouped charge to your payment instrument. If activity within a period exceeds a threshold amount determined by LevelUp, LevelUp may submit a grouped transaction to your primary payment instrument prior to the date of your regular recurring monthly charge. When we submit a grouped transaction, we will provide an email notification to you detailing the individual transactions making up the grouped total charge. The status and amount of any authorized but uncharged transactions will be displayed at all times in the transaction history of your User Account, accessible by logging into the LevelUp website at https://www.thelevelup.com/. By accepting these terms, you agree that LevelUp may submit your previously authorized charges totaling less than $750.00 as a grouped single transaction charge on a recurring monthly basis without further advance notice to you. You may request that LevelUp cease any authorized grouped transaction by mailing a written notice to LevelUp at the address below at least three (3) days prior to the submission of such charge by LevelUp, or by orally notifying LevelUp at 1-855-538-3542, if followed by a written notice within fourteen (14) days. You may also request that LevelUp cease grouping your future authorized transactions for submission, or that LevelUp provide advance notice of certain grouped transactions, by mailing a letter request to Support Team, LevelUp, 101 Arch Street, Suite 400, Boston, MA 02110.
Failed Transactions. In the event that LevelUp is unable to successfully charge any linked payment instrument, LevelUp will notify you via email and/or in-App notification, and you will be unable to initiate further payments with your User Account. Upon LevelUp's notification to you of such failure, you agree to link a new, valid payment instrument within three (3) business days. Your LevelUp User Account will be disabled until a valid payment instrument is provided and the outstanding uncharged balance is resolved by LevelUp. LevelUp is not responsible for any charges imposed by the issuer of your payment instrument(s) as a result of any failed charge by LevelUp. To the extent that LevelUp is unable to successfully charge any payment instrument linked to your User Account as payment for authorized transactions for more than thirty (30) days, you understand and agree that LevelUp may employ a collection agency or other business in an effort to collect any outstanding debts and fees associated with your User Account, and you will not contest the use of a third party to collect the debt and fees owed to LevelUp. You agree that you will be responsible for any legal, court, arbitration or collection agency fees associated with rectifying your account and all monies owed thereunder. You agree that LevelUp, or any agency or business employed by LevelUp, has the right to contact you and your heirs via telephone, email or in-person using the information you provided upon registration or during any contact with LevelUp, in an effort to collect any monies and fees owed under your account, whether specifically referenced in these User Terms or not, and such contact may be made in a manual or automated fashion.
Prohibited Transactions. The LevelUp Service may be used only for the bona fide purchase and exchange of goods and/or services offered in the ordinary course of a merchant's business, and may not be used to process a payment or otherwise transfer money between two parties that is unrelated to a purchase of a product or services. The LevelUp Service may not be used for transactions in which you request cash back from the merchant. LevelUp reserves the right to decline any attempted transaction if it appears that any of these User Terms have been violated.
Debit/Credit Card Statements. LevelUp charges to your authorized payment instrument(s) may appear on your statement from the card issuing institution as "LEVELUP*" followed by an identifier related to the LevelUp merchant partner at which the transaction occurred, and as explained above, may appear as a single charge for the aggregate amount of multiple individual transactions. You agree not to knowingly falsely report such charges as fraudulent or unauthorized claims to your payment instrument issuing institution. A knowingly false report of a fraudulent or unauthorized charge shall be grounds for LevelUp, in its discretion, to cancel your User Account, and seek any other remedies available to LevelUp.
5. Consent to Electronic Disclosures and Notices; Paper Copies
Your electronic signature on this Agreement, and any other agreements and documents, has the same effect as if you signed them in ink. You agree that electronic Disclosures and notices have the same meaning and effect as if LevelUp had provided you with paper copies, whether or not you choose to view the Disclosures. Such Disclosures and notices are considered received by you within 24 hours of the time posted to our website, or emailed or messaged to you.
In order to access and retain the electronic Disclosures you will need, and represent that you have, the following: (i) a computer or mobile device with an Internet connection; (ii) a current web browser that includes 128-bit encryption, and has cookies enabled; (iii) a valid email address associated with your User Account (if you use a spam filter that blocks or re- routes emails from senders not listed in your email address book, you agree to white-list all emails from the @thelevelup.com domain to your email address book); and (iv) sufficient storage space to save past Disclosures and/or an installed printer to print them.
You have a right to receive Disclosures in paper form. If you wish to receive a paper copy of any Disclosure, or any transaction receipt, you may request a copy of the Disclosure or receipt within 180 days of the date of the Disclosure or receipt. LevelUp will provide paper copies free of charge. Requests to receive any paper copy, or to withdraw your consent to future electronic Disclosures, may be made by mailing a written request to Support Team, 101 Arch Street, Suite 400, Boston, MA 02110. We will provide a replacement copy of your receipt within ten (10) business days. Requests to cancel your consent to future electronic Disclosures will be completed in a reasonable time. LevelUp reserves the right to terminate your LevelUp User Account if you withdraw consent to future electronic Disclosures. You may update the information required to contact you electronically by logging into a LevelUp App or to the LevelUp website.
6. Fraudulent or Unauthorized Transactions; Lost Devices
If any transaction Disclosure received by you appears incorrect, or was unauthorized or fraudulent, you shall notify LevelUp immediately, including by clicking on a link included in the email transaction receipt, thereby flagging the transaction, or by contacting LevelUp directly (24/7) at:
LevelUp Support Team
101 Arch Street, Suite 400, Boston, MA 02110
Toll Free Phone: 1-855-538-3542
Regular Business Hours: Monday through Friday, 9 a.m. to 5 p.m., Eastern Time
Please click here for additional information and requirements on how to report any suspected fraudulent or incorrect activity.
Lost Devices. In the event that you lose any mobile device on which a LevelUp App linked to your User Account is installed, or otherwise learn that your User Account password is compromised ("Lost Device"), you shall notify LevelUp immediately by contacting firstname.lastname@example.org OR LevelUp Support Team, 101 Arch Street, Suite 400, Boston, MA 02110, 1-855-538-3542.
LevelUp Security; Reporting Requirements. LevelUp implements a variety of methods, and proprietary protocols, to protect you from bad actors who may attempt to access and make fraudulent charges using your LevelUp User Account, including an optional PIN lock feature. Because we are confident in these measures, we generally will not seek to recover from you reimbursement for any fraudulent charges made using your User Account. There are, of course, limits to this policy, which depend upon how quickly you notify us of a fraudulent activity:
- If LevelUp confirms that a transaction(s) reported by you was an unauthorized or fraudulent use of your User Account, and if: (i) the first such unauthorized transaction was reported to LevelUp within two (2) business days of a transaction receipt; or (ii) in the case of a Lost Device, the Lost Device was reported within two (2) business days of the loss; LevelUp will reimburse you for the amount of any fraudulent or unauthorized transactions charged to your payment instrument.
- If you fail to notify LevelUp of a fraudulent or unauthorized transaction using your LevelUp User Account within two (2) business days of a transaction receipt, or in the case of a Lost Device, within two (2) business days of the Lost Device, you will be responsible for the fraudulent or unauthorized charges in an amount limited to the lesser of: (i) $500; OR (ii) the sum of either $50 or the amount of the fraudulent use during the initial two (2) days (whichever is less), AND the sum of all fraudulent or unauthorized activity after the initial two (2) days prior to your notification to LevelUp. You authorize LevelUp to submit to your payment instrument(s) such charges up to that limited amount.
- If you fail to notify LevelUp of a fraudulent or unauthorized transaction using your User Account within sixty (60) business days of a transaction receipt, or in the case of a Lost Device, within sixty (60) business days of the Lost Device, you will be responsible for all fraudulent or unauthorized charges after the sixty (60) day period, and authorize LevelUp to submit such charges to your payment instrument(s).
- In the event that the state in which you established your User Account provides for lower limitations on liability for fraudulent use, such limitation shall apply in place of these provisions.
Issuing Institutions. To the extent that the security of your payment instrument(s) is compromised in an event having no relation to the LevelUp platform (for example, your wallet is stolen), and your payment instrument is linked to another User Account, your liability for any fraudulent transactions will be determined by your agreement with the institution that issued your payment instrument.
User Fraud. If LevelUp determines that you have engaged in any fraudulent use of the LevelUp platform, or use in violation of these User Terms, in addition to its rights to recover of any monies required to remedy such fraudulent use, LevelUp shall impose a fee of one hundred ($100.00) dollars for each investigation by LevelUp that results in a confirmation of such violation of these User Terms. By registering for a LevelUp User Account, you agree to all additional fees and penalties that LevelUp may impose in the event LevelUp deems your use of the LevelUp platform to be in breach of these User Terms, including without limitation the immediate termination of your LevelUp User Account.
7. Merchant Incentive and Reward Campaigns; Campaign Credit
When you pay with your LevelUp User Account at a merchant POS, you participate automatically in any promotional campaigns offered by LevelUp's merchant partners, and/or third-party partners, such as loyalty reward programs, refer-a-friend programs, product incentive programs, etc. ("Campaigns"), and earn automatically any merchant-offered rewards, incentives, or discounts ("Merchant Credit") and/or third-party-offered incentives, rewards, or discounts ("3rd Party Credit") associated with your transaction. LevelUp will also automatically redeem any Merchant or 3rd Party Credit previously awarded at the time of purchase at the participating merchant's POS in accordance with the terms of such Campaign. Merchant or 3rd Party Credit applied to the purchase will be deducted from the transaction amount charged by LevelUp as part of the authorized charge to the payment instrument(s) associated with your User Account.
Promotional Campaigns, and Merchant or 3rd Party Credit associated with such Campaigns, are offered by the merchant or funding third party alone (and not by LevelUp) and the offering parties are responsible for setting applicable rules, including the expiration of any Merchant or 3rd Party Credit, and compliance with such rules. Any complaints concerning any merchant's or third party's failure to award or redeem Merchant or 3rd Party Credit according to any Campaign may be sent to LevelUp at: email@example.com, or by calling 1-855-538-3542. While LevelUp may, in its discretion, attempt to resolve any complaints concerning a person's failure to award or redeem Merchant or 3rd Party Credit, LevelUp is not responsible for such person's failure to award or redeem Credit for any reason.
The merchant shall be solely responsible for the goods and/or service provided by such merchant, including the quality of the goods and services, and, any claims, liabilities, injuries, losses or damages you may suffer in connection with the goods or services, your participation in any Campaign, and/or any unclaimed property liability arising from unredeemed Merchant Credit, or any portion thereof. Merchants may choose to discontinue a Campaign at any time. LevelUp also reserves the right to terminate a merchant's Campaign at any time.
Merchant or Third Party Credit associated with any merchant loyalty programs has no cash value. You have no property interest in any Merchant or Third Party Credit. If a Campaign is terminated for any reason, or if your User Account is suspended or terminated for any reason, any existing Merchant or 3rd Party Credit will expire immediately.
Redemption or application of Merchant or 3rd Party Credit for alcoholic beverages is at the sole discretion of the merchant, and is subject to (and may be limited by) merchant's compliance with applicable federal, state, and local laws and regulations. Merchants may refuse to apply Merchant or 3rd Party Credit to delivery, processing or handling fees, or taxes or gratuities.
8. Privacy, Security, and User Data
Payment Instrument Security. LevelUp is 100% compliant with the Payment Card Industry Data Security Standards ("PCI- DSS"). LevelUp will never share your payment instrument information with any person other than as necessary to process the payments you authorize. LevelUp does not store your payment instrument information on LevelUp's servers. Rather, we partner with Braintree Payment Services, LLC ("Braintree"), a globally respected payment gateway, to leverage its secure vault solutions for all payment instrument storage. All data sent to LevelUp's servers is encrypted and our servers are protected by industry standard measures. By leveraging Braintree for storage, we are able to add another powerful layer of security to LevelUp. If you have any further questions about LevelUp's security measures, we provide our Security Policy at https://www.thelevelup.com/security.
No Access to Financial Information. LevelUp Apps, and any software applications or websites that you may authorize to access your User Account, are not able, or authorized, to capture or store your financial account information provided to LevelUp, or details of your linked payment instruments, including on your mobile device, without your expressly granted permission. You should never be asked by any merchant to disclose your financial account information, or your payment instrument information, or to provide any other sensitive information such as your Social Security number, in connection with any LevelUp transaction. If you are asked for such information, you should report the incident to LevelUp immediately.
No Sharing of Email Address. Except as specifically authorized by you pursuant to these User Terms, LevelUp will never share your email address with any third party, other than the partners we use to contact you concerning the LevelUp Services.
Revocation or Permissions. You may revoke permissions granted to a LevelUp App or any software application or website at any time by logging in to the LevelUp website at https://www.thelevelup.com/.
9. Merchant Gift Cards
LevelUp enables you to give and receive digital merchant gift cards, online or through certain LevelUp Apps, and plastic merchant gift cards. Plastic merchant gift cards can be used to make a purchase at a merchant location by scanning the QR code on the card, or they can be linked to your LevelUp User Account by simply using your phone to scan the LevelUp QR code on the plastic card or entering the card information in a form online at https://www.thelevelup.com/login.
LevelUp merchant gift cards may only be used to purchase goods or services from the specific merchant identified on the digital or plastic gift card (the "Gift Card Merchant"). The Gift Card Merchant may limit the Merchant's participating locations, either physical or online, where the gift card may be used.
LevelUp merchant gift cards are issued by the Merchant identified on the gift card. Merchant gift cards are not issued by, or financial obligations of, LevelUp.
Neither LevelUp nor the Gift Card Merchant charges you any fee related to your merchant gift card, including for the purchase, issuance, activation or use of the card. Your gift card and the funds associated with your gift card have no expiration date.
Except where required by law, the balance of a merchant gift card is nonrefundable and may not be resold or redeemed for cash or other gift cards. Merchant gift cards are not reloadable.
Any refund related to a purchase made with the gift card will be credited back to the gift card used for the initial payment.
Once linked to a LevelUp User Account, a plastic Merchant gift card is not transferrable to another user, and the code on the plastic card may no longer be useable for purchases.
You may purchase a digital merchant gift card for a designated recipient by entering email address of the recipient via the LevelUp website at https://www.thelevelup.com/ or through certain merchant LevelUp Apps. The recipient will be notified of the gift card by email and/or through an in-app notification, and may claim the gift card: (i) in certain LevelUp Apps; (ii) by clicking a link in the email and entering their LevelUp User Account credentials to associate the gift card with their account; or (iii) by clicking a link in an email to activate the card and by printing the email displaying the email's QR code at a merchant point-of-sale scanner. Your LevelUp User Account will be charged when you purchase the digital merchant gift card.
LevelUp merchant gift cards may be purchased in any amount up to $500.00 dollars. No more than $1,000.00 of merchant gift card value may be associated with a LevelUp User Account at any time. If you are a new LevelUp User, LevelUp may in its discretion limit the amount of a purchased gift card to a lower amount.
Merchant or LevelUp credit may not be redeemed for the purchase of gift cards, and the purchase of a gift card will not count toward any Merchant campaign unless specified otherwise. Other limits may apply to card redemption and use.
LevelUp is not responsible for lost, stolen, damaged or destroyed cards or for unauthorized use. Risk of loss and title for the card pass to you, the purchaser, and you are solely responsible for loss or unauthorized use affecting your purchased gift card. To help secure your plastic gift card, please link it to your LevelUp User Account. Do not share your LevelUp login information with others.
LevelUp disclaims all express or implied warranties, including warranties of merchantability or fitness for a particular purpose, as to the merchant gift cards, to the extent permitted by law. In the event a gift card does not work, your sole remedy and the Gift Card Merchant's and our sole liability will be the replacement of such gift card, subject to applicable law. Gift card terms are subject to change in Gift Card Merchant's sole discretion, in accordance with applicable law.
LevelUp and Gift Card Merchant reserve the right to adjust the balance of your merchant gift card in the event of a clerical, billing or accounting error. Transactions or corrections concerning your merchant gift card may be disputed by contacting LevelUp Support within 60 days of the disputed transaction or correction.
A merchant gift card balance can be viewed within a LevelUp App, by logging into your LevelUp User Account at https://www.thelevelup.com/login, or by contacting LevelUp Support at 1-855-538-3542 or firstname.lastname@example.org.
10. LevelUp Gift Cards
In addition to gift cards issued by participating Gift Card Merchants, LevelUp also enables you to give and receive digital gift cards, online or through certain LevelUp Apps, that are customized for a specific recipient, or usable anywhere on the LevelUp platform ("LevelUp Digital Gift Cards"). LevelUp Digital Gift Cards are subject to the same terms and restrictions as physical Merchant Gift Cards. LevelUp Digital Gift Cards are issued by LevelUp and are usable only as prepayment to LevelUp for goods and services purchased using the LevelUp Service. LevelUp Digital Gift Cards may not be redeemed at locations within Texas or Kansas. LevelUp Digital Gift Cards may not be purchased by residents of New York. Residents of New York purchasing gift cards via the LevelUp Service must select from available individual Merchant Gift Cards.
11. LevelUp Gift Card Exchange
LevelUp partners with Cardpool to enable registered LevelUp users to sell third-party gift cards to Cardpool in exchange for a grant of LevelUp credit via the web application available at https://levelup.cardpool.com/ ("Cardpool Site"). The Cardpool site is provided exclusively by Cardpool and use of the site is subject to Cardpool's Terms of Service. LevelUp credit granted by Cardpool may be redeemed automatically by paying with LevelUp at any LevelUp merchant. Cardpool-granted credit does not expire, and is not subject to any fees, other than the fees charged by Cardpool. LevelUp may terminate any Cardpool-granted credit in the event that a third-party gift card tendered by you to Cardpool is redeemed, in whole or in part, prior to Cardpool's resale of the gift card ("Drained Card"). In the event of a Drained Card, you authorize LevelUp to charge your linked payment instrument for the difference between the amount of credit granted by Cardpool and the amount of credit remaining in your LevelUp account at the time of the Drained Card.
12. Third Party Websites and LevelUp Apps
The LevelUp Apps and/or LevelUp website may contain links to third party apps or websites. In some cases, LevelUp Apps (meaning applications, sites, or software that you may use or download that have the ability to access the LevelUp platform on your behalf, with your permission) are provided and maintained by third parties. You may also be offered services, products and promotions provided by third parties as part of your use of any LevelUp App.
A LevelUp App's access to the LevelUp platform, or link to a third party site or App within a LevelUp App, does not imply endorsement of, sponsorship of, or affiliation with the linked site or third party LevelUp App by LevelUp. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties or granting permissions for any LevelUp App to access any of your User Data, or otherwise act on your behalf, within the LevelUp platform. LevelUp is not responsible for any claims, liabilities, losses, or damages suffered by you in connection with your use of a third party LevelUp App, site, or service, in connection with the LevelUp platform.
13. Ideas Submitted to LevelUp; User Content
User Ideas. LevelUp is pleased to hear from you and welcomes your comments about the LevelUp platform. If you submit ideas or suggestions for the LevelUp platform ("Comments"), you agree that all Comments will be deemed, and will remain, non-confidential and the sole property of LevelUp, without compensation to you. None of the Comments will be subject to any fiduciary obligation or obligation of confidence on the part of LevelUp, and LevelUp will not be liable for any use or disclosure of any Comments. Without limiting the foregoing, LevelUp will be entitled to unrestricted use and other exploitation of the Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Comments.
User Content. LevelUp Apps and/or LevelUp's websites may include areas in which you or other registered Users can create, post, send or store messages, materials, data, information, text, music, sound, photos, video, graphics, applications, tags, code, links or other items or materials ("User Content"). By using LevelUp Apps and/or websites, you agree not to post, upload, transmit, distribute, store, create or otherwise publish any of the following:
- User Content that personally identifies sensitive information about yourself or another person (including, but not limited to, information that relates to health or medical conditions, Social Security numbers, credit cards, bank accounts or other financial information, LevelUp User Account credentials, other information concerning trade union membership, sex life, political opinions, criminal charges or convictions, religious beliefs, racial or ethnic origin, or other sensitive matters);
- User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, otherwise objectionable or that threatens our relationships with our employees, partners, customers or suppliers;
- User Content that infringes any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content;
- User Content that impersonates any person or entity or otherwise misrepresents your identity or affiliation with another person or entity;
- Spam, direct marketing communications or any unsolicited advertising, promotional materials or other forms of solicitation or commercial content;
- User Content that constitutes, encourages or provides instructions for a criminal offense, violates the rights of any party or that creates liability or violates any applicable local, state, national or international law;
- Viruses, spyware, Trojan horses, Easter eggs or any other harmful, disruptive or destructive files; and
- User Content that, in the sole judgment of LevelUp, is objectionable, restricts or inhibits any other person from using or enjoying the Services or that damages the image or rights of LevelUp, other users or third parties.
LevelUp does not control, take responsibility for or assume liability for any User Content, nor is LevelUp liable for any User conduct or any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity that you may encounter.
If you become aware of User Content that you believe violates these User Terms (with the exception of copyright infringement which is addressed in the Digital Millennium Copyright Act Notice section), you may report it by contacting LevelUp at email@example.com. Enforcement of these User Terms pertaining to User Content is in LevelUp's sole discretion and absence of enforcement in some instances does not constitute a waiver of our right to enforce the User Terms in other instances.These User Terms shall not create a third-party right of action or any reasonable expectation or promise that the Apps or websites will not contain any content that is prohibited by these User Terms. LevelUp reserves the right, and has absolute discretion, to remove, screen or edit any User Content at any time and for any reason without notice. You are solely responsible for creating backup copies and replacing any User Content you post or store at your sole cost and expense.
License to User Content. You represent and warrant to LevelUp that your User Content is not subject to any confidentiality obligations and that you own and control all of the rights to the User Content or otherwise have the right to grant the rights to LevelUp that you grant herein. LevelUp claims no ownership or control over any User Content, except as otherwise provided herein. By submitting or posting User Content, you grant LevelUp and its designees a worldwide, perpetual, irrevocable, non-exclusive, fully-paid up and royalty free license to use, sell, reproduce, prepare derivative works, combine with other works, alter, translate, distribute copies, display, perform, publish, license or sub-license the User Content and your name and likeness in connection with such use of your User Content. By posting User Content, you hereby release LevelUp and its agents and employees from any claims that such use, as authorized above, violates any of your rights and you understand that you will not be entitled to any compensation for any use of your User Content.
Recommendations. The LevelUp App enables you to submit recommendations to LevelUp for a business or businesses that you would like to see start accepting LevelUp. LevelUp appreciates your referrals and recommendations, and offers $10.00 in LevelUp credit for recommendations made through the App that lead to a new business launching on LevelUp ("Referral Bonus"). LevelUp limits the Referral Bonus to the first twenty-five (25) Users to recommend each new business. Each LevelUp User is limited to a total of ten (10) Referral Bonuses (or a total of $100 in LevelUp credit).
14. Copyright Infringement; Digital Millennium Copyright Act
LevelUp complies with the provisions of the Digital Millennium Copyright Act ("DMCA"). If you believe that any material contained in a LevelUp App or on a LevelUp website infringes a copyright that you control, you may contact our Designated Agent with a notification of such infringement at the following address:
101 Arch Street, Suite 400, Boston, MA 02110
LevelUp requests that any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights include the following information (17 U.S.C. § 512(c)(3)): (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right allegedly infringed; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a description of the material that you claim is infringing and where it is located on the Services; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Counter Notices. If material that you have posted to the Services has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C. § 512(g). To be effective, the counter notice must be a written communication sent to the designated agent address listed above that includes the following: (a) a physical or electronic signature of the subscriber; (b) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (d) your name, address, and telephone number; and (e) a statement that you consent to the jurisdiction of United States District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which LevelUp may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. §512 (c)(1)(C) or an agent of such person.
15. Suspension; Modifications and Termination
Termination by User. You may terminate this Agreement at any time by closing your LevelUp User Account and ceasing to use the LevelUp Services, and all LevelUp Apps.
Termination by LevelUp. LevelUp reserves the right to suspend or terminate your User Account and/or your access to the LevelUp Services at any time, without notice to you, if it believes you are in breach of this Agreement, or if it believes that you are using the LevelUp Services or any LevelUp App in a manner harmful to LevelUp, its merchants, users, or any other third party. Any such termination, suspension, or modification will terminate any Merchant or 3rd Party Credit that you rightfully earned prior to termination.
Modification of Services and Terms. LevelUp reserves the right to modify the Services and LevelUp Apps, any features or aspects of the Services or Apps at any time, without notice to you. LevelUp may also from time to time amend, update, or change these User Terms. If LevelUp does so, it will notify you by posting the amended terms on our website. You are under a continuing obligation to review the current version of these User Terms and other published LevelUp policies when using the LevelUp Apps and/or Services. You agree that your continued use of your LevelUp User Account, the LevelUp Services, or the LevelUp Apps shall constitute your agreement to the User Terms as so amended. If you do not agree to the amended Terms, you must terminate your User Account and cease using the LevelUp Services and LevelUp Apps.
Obligations in the Event of Termination. If your LevelUp User Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the LevelUp Services and all LevelUp Apps, (c) that the license provided by LevelUp under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of the User Data stored by LevelUp, and (e) that LevelUp shall not be liable to you, or any third party, for compensation, reimbursement, or damages in connection with your use of LevelUp or for termination of access to your LevelUp User Account.
Sections 4, 8, 9, and 13-17, any accrued rights and remedies hereunder, including specifically LevelUp's rights to retain and use User Data and complete any authorized transactions, and any other provisions that by their nature require survival in order to be effective, shall survive the termination or expiration of this Agreement.
16. No Warranties
The LevelUp Services and LevelUp Apps are provided on an "as-is" basis. LevelUp does not warrant that the Services or LevelUp Apps will operate error-free or without downtime. LevelUp may pause or interrupt the Services at any time, and users should expect periodic downtime for updates to the Service.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, LEVELUP DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE. LEVELUP DOES NOT WARRANT THAT THE LEVELUP SERVICES AND/OR ANY LEVEL UP APP: (i) WILL PROVIDE RESULTS OR INCLUDE CONTENT THAT IS ACCURATE, RELIABLE OR CORRECT; (ii) WILL MEET YOUR REQUIREMENTS; (iii) WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; OR (iv) WILL BE FREE OF DEFECTS, VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF LEVELUP IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. NO ADVICE OR INFORMATION, ORAL OR WRITTEN, OBTAINED BY YOU FROM LEVELUP OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
You are solely responsible for obtaining and maintaining the computer, smartphone and other equipment you use to access the LevelUp Services, and for paying for such equipment and any telecommunications charges. We are not liable for any third-party charges, or loss or damage you suffer arising from damage to equipment used in connection with use of the LevelUp Services.
LevelUp is not responsible for the goods and services that you purchase using the LevelUp Services or any LevelUp App. The providing merchant is responsible for all customer service related to those goods and services, including order fulfillment, order cancellation, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and issues concerning experiences with a merchant's personnel, policies, or processes. LevelUp is also not responsible for any customer service related to your payment instrument(s).
Because we do not control the security of the Internet, or other networks you use to access the LevelUp Services, LevelUp is not responsible for the security of information that you choose to communicate with LevelUp while it is being transmitted. LevelUp is not responsible for any data lost during transmission.
17. Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL LEVELUP, OR ANY OF LEVELUP'S MERCHANTS, PROCESSORS, SUPPLIERS, OR LICENSORS (OR ANY OF THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES) BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, PROFITS, USE, GOODWILL, DATA, OR OTHER INTANGIBLE LOSSES), ARISING FROM OR RELATING TO THE USE OF, OR INABILITY TO USE, THE LEVELUP SERVICES OR ANY LEVELUP APP, OR ANY LOYALTY CREDIT OFFERED OR AWARDED, OR ANY GOODS AND SERVICES PURCHASED WITH THE LEVELUP SERVICES OR ANY LEVELUP APP. LEVELUP SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE LEVELUP SERVICES, YOUR LEVELUP USER ACCOUNT, ANY LEVELUP APP, OR THE INFORMATION CONTAINED THEREIN. LEVELUP SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE LEVELUP SERVICES OR ANY GOODS OR SERVICES PURCHASED USING THE SERVICES.
THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND EVEN IF LEVELUP OR A MERCHANT HAD BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
With respect to any unauthorized, fraudulent transaction conducted using your User Account, absent any violation of these User Terms by you, your right to reimbursement for any direct losses (i.e., losses not refunded by your payment instrument issuing entity) as set forth herein shall be your sole and exclusive right and remedy for any loss or damages incurred by you arising out of, in connection with, or relating to any fraudulent or unauthorized use of your LevelUp User Account, and LevelUp may condition its payment of any fraud or unauthorized use reimbursement upon your releasing LevelUp from any further claims with respect thereto.
An action or proceeding relating to any claim arising out of the LevelUp Services or any LevelUp App must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued.
18. Release of Claims; Indemnity
You hereby release, and agree to defend, indemnify and hold harmless LevelUp against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys' fees arising in connection with or relating to: (i) your improper or illegal use of the LevelUp Service or any LevelUp App; (ii) your breach of any provision of this Agreement; (iii) your violation of any federal, state, or local law or regulation; (iv) any goods and services purchased with the LevelUp Service; (v) any act or omission of any merchant; and/or (vi) your participation in any merchant loyalty campaign or Loyalty Credit awarded or redeemed with the LevelUp Services or any LevelUp App ("Damages"). LevelUp reserves the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to provide indemnification hereunder. You agree to cooperate with LevelUp with respect to such defense and settlement.
19. Disputes; Arbitration
LevelUp seeks reasonably to attempt to resolve disputes with Users to their satisfaction. If, however, a matter arises that cannot be resolved promptly between you and LevelUp, you agree that any disputes arising out of or relating to the LevelUp Services, any LevelUp App, or this Agreement (including, without limitation, the validity, applicability, or enforceability and scope of the agreement to arbitrate and any disputes with LevelUp's third-party licensors or merchants) shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") under the Federal Arbitration Act and shall be conducted before a single arbiter pursuant to the applicable Rules and Procedures established by the AAA (for information on the AAA and its rules, see adr.org). You agree that the arbitration shall be held in Boston, Massachusetts, unless the AAA or the arbitrator shall determine that venue in Boston is unreasonably burdensome, in which case the AAA or the arbitrator shall select a venue that is not unreasonably burdensome to both you and us. You agree that, if the AAA shall be unavailable or decline to administer the arbitration, and the parties do not agree on a substitute, a substitute administrator or arbitrator shall be appointed by the court. This provision shall not apply to claims of patent, trademark, copyright infringement, or misappropriation of trade secrets. In addition, you or we may elect to bring an individual claim in a small claims court, but LevelUp does not hereby agree to any personal jurisdiction that is otherwise lacking.
You agree that any arbitration shall not permit claims on a class, mass, representative, or private attorney general basis. You further agree that no claims of other parties may be consolidated with your or our claims in the arbitration without both your and our consent. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION AGAINST LEVELUP.
If any part of this Arbitration clause is later deemed invalid as a matter of law, then it shall be severed and the remaining portions of this section shall remain in effect, with the exception that if the preceding paragraph is deemed invalid, then this entire section shall be deemed invalid and the arbitration clause shall be void.
20. Miscellaneous Provisions
This Agreement represents the entire agreement of the parties as to its subject matter, and supersedes all prior written and oral representations and discussions between the parties.
This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without reference to principles of conflicts of laws.
No delay or omission by LevelUp in exercising any of its rights occurring upon any noncompliance or default by you with respect to this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by LevelUp of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained.
Except as provided in §16 above, if any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law.
In no event shall LevelUp be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside LevelUp's reasonable control.
The provisions of this Agreement are entered into for the benefit of LevelUp, its third party licensors, and the merchants and each of them shall have the right to enforce such provisions of this Agreement, including the arbitration clause, directly against you to protect their interests. Except as stated in the preceding sentence, there shall be no third party beneficiaries to this Agreement.
LevelUp reserves the right to change or add to these User Terms at any time. When we do so, we shall provide notice on our website by posting the updated User Terms. You agree that if you do not agree to any such amendment, you shall immediately terminate this agreement. Your failure to do so, or continued use of any LevelUp App or Service, shall constitute agreement to User Terms as so amended.
In the event of a conflict between this Agreement and any other LevelUp agreement or policy provided to you, directly or indirectly, this Agreement shall prevail on the subject matter of this Agreement.
Effective Date of these Terms of Service: January 28, 2014