Effective date: June 1, 2021
Welcome to Reach, a loyalty application that connects individual consumers (“Members”) with participating brands (“Brands”).
About the Terms of Service
Please read these Terms carefully. They cover important information about Services provided to you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
When we use the word “you” in these Terms, it refers to any user, regardless of whether he or she is a Member or a Brand, while if we use one of those specific terms, it only applies to those who fall into such category.
Reach is the facilitator of relationships between Members and Brands and, as such, is only responsible for connecting Members with Brands and is not responsible for the actions of Members or Brands with respect to the Services. We do not control the actions or inactions of any Member or Brand, and neither Members nor Brands are our employees.
Reach rewards Members for their valuable time and data when they connect with their favorite Brands. Members choose which Brands to connect, engage, and share data with, and the info they want to share. Members receive ReachDollar$ (as defined below) for their brand loyalty, for sharing personal information and for engaging in various activities with Reach and/or participating Brands. The amount of ReachDollar$ a Member receives will depend on the type and amount of information he/she shares, and on how much he/she engages with the opportunities offered by Reach and Brands.
ReachDollar$ are issued in connection with a reward/loyalty program, have no cash value and may not be redeemed for cash. Reach reserves the right to decide, in its sole discretion, whether a Member is eligible to receive ReachDollar$ for any particular activity. As a Member, you may sign up for a Reach Reward Card and use it to redeem ReachDollar$ at any participating Brand. At the time of redemption, each ReachDollar may be redeemed toward one dollar of purchases at participating Brands either online or in-store. So, when shopping at participating Brands, the price you see in USD is the price you pay in ReachDollar$.
The Reach Reward Card is issued by Celtic Bank, a Utah-chartered Industrial Bank (Member FDIC). The Reach Reward Card is a Visa Commercial Credit card that is linked to the Program Account that Reach holds with Stripe, our payment gateway partner, and may only be used for purchases from participating Brands. Your use of the Reach Reward Card is subject to Stripes’s User Terms which you may find at https://stripe.com/issuing/spend-card-user-terms/legal. Reach Reward Cards can only be issued to cardholders who are residents of the United States and who have a verifiable physical U.S. street address (no P.O. Boxes).
Reach is open to individual US residents age 18 or older. In order to use Reach as a Member, you must create a Reach account that allows you to track the ReachDollar$ you have received (“Account”). You must provide a mobile phone number to be associated with the Account – that number must be unique to you, you must be authorized to use that number, and you may not use a virtual or call-forwarding phone number that you received from a third-party service such as Google Voice. A Reach Account is only for individual use, and a Member may only have one Reach Account. You may not share an Account or transfer, sell or barter the ReachDollar$ you have received.
Your Reach Account will remain active as long as you have received or used ReachDollar$ in the past 12 months. If your Account becomes inactive, we may close your Account and any ReachDollar$ will expire and be removed from the Account in accordance with applicable laws.
Reach is free to terminate (or suspend access to) your Member Account for any reason in our sole discretion, including your breach of these Terms of Service.
Please read on to learn the rules and restrictions that govern the use of our website(s), products, services and mobile applications (collectively, the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Address: 1250 Borregas Avenue, Sunnyvale CA 94089
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at www.reachmarketplace.com, send you an email, and/or notify you by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services, your Account will be closed, and any ReachDollar$ you have received will be removed from your Account. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 13 years of age; if you are a child under 13 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 13 years of age, we will delete that information as quickly as possible. If you believe that a child under 13 years of age may have provided us personal information, please contact us at email@example.com.
What are the basics of using Reach?
The Reach program allows you to establish an Account where you can receive ReachDollars$ when you shop at and share data with your favorite Brands, and when you engage with Reach and/or Brands in other ways. You must provide a mobile phone number to be associated with the Account – that number must be unique to you, you must be authorized to use that number, and you may not use a virtual or call-forwarding phone number that you received from a third-party service such as Google Voice. As a Member, you represent and warrant that you are an individual of legal age to form a binding contract and that you are a United States resident. You may only create one Member Account per person and you represent and warrant that you will not share your Account information with other individuals. You are responsible for protecting your Account information and preventing unauthorized access to your Account.
As a Member, you will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
What about messaging?
As part of the Services, you may receive communications through the Services, including messages that Reach sends you (for example, via email or in the Application (as defined below)).
Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not provide or contribute anything, including any Content (as that term is defined below), to the Services, or otherwise use or interact with the Services, in a manner that:
(a) infringes or violates the intellectual property rights or any other rights of anyone else (including Reach);
(b) violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Reach;
(c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) attempts, in any manner, to obtain the password, account, or other security information from any other user;
(e) violates the security of any computer network, or cracks any passwords or security encryption codes;
(f) runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(g) “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(h) copies or stores any significant portion of the Content; or
(i) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Reach’s) rights.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that Reach owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
Who is responsible for what I see and do on the Services?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Services may contain links or connections to third-party websites or services that are not owned or controlled by Reach. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Reach is not responsible for such risks.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Reach shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that Reach is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Reach, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Will Reach ever change the Services?
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
From time to time, different Brands may be added to or removed from the Reach marketplace. In the event a Brand is removed, we will make reasonable efforts to notify you of the Brand’s departure, and you will be able to use ReachDollar$ for purchases from such Brand for thirty (30) days after the Brand’s termination date. Brand removals will not reduce or otherwise impact ReachDollar$ you have already received. However, you will no longer receive any ReachDollar$ from such Brand after the Brand’s termination date, and any promotions or other opportunities to receive ReachDollar$ offered by the departing Brand will end as of the Brand’s termination date.
In the event that Reach permanently discontinues the Services, you may continue to spend any ReachDollar$ you have received but not used for six (6) months after we notify you of the Services being discontinued and all ReachDollar$ shall expire at the end of such 6-month period. If we permanently discontinue the Services, we may, in our sole discretion, choose to make available alternative ways to redeem ReachDollar$ and may limit the participating Brands in our sole discretion.
Do the Services cost anything?
The Services are currently free, but we reserve the right to charge for certain or all Services in the future. We will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services.
As part of the Services, Members will have opportunities to receive ReachDollar$ for engaging in various activities through the Services. Reach reserves the right to decide, in its sole discretion, whether a Member is eligible to receive ReachDollar$ for any particular activity. If Reach determines that a Member has attempted to receive or use ReachDollar$ inappropriately, Reach may close the Member’s Account and remove any ReachDollar$ in the Account.
Members may redeem ReachDollar$ using their Reach Reward Card at any participating Brand. At the time of redemption, each ReachDollar may be redeemed toward one dollar of purchases at participating Brands either online or in-store. So, when shopping at participating Brands, the price you see in USD is the price you pay in ReachDollar$. Opportunities to receive and use ReachDollar$ may be subject to additional terms and conditions as provided to Members from time to time.
After enrollment, you can sign up for a Reach Reward Card with a 16-digit account number which lets you use your ReachDollar$ for purchases with participating Brands. You must provide a valid address when you sign up for a Reach Reward Card, along with certain other information to confirm your identity. The Reach Reward Card is issued by Celtic Bank, a Utah-chartered Industrial Bank (Member FDIC). The Reach Reward Card is a Visa Commercial Credit card that is linked to the Program Account that Reach holds with Stripe, our payment gateway partner, and may only be used for purchases from participating Brands. Your use of the Reach Reward Card is subject to Stripes’s User Terms which you may find at https://stripe.com/issuing/spend-card-user-terms/legal. Reach Reward Cards can only be issued to cardholders who are residents of the United States and who have a verifiable physical U.S. street address (no P.O. Boxes).
The Reach Reward Card which will be connected to your Member Reach Account and you can use it to make purchases from participating Brands using ReachDollar$. ReachDollar$ do not expire as long as your Member Account remains active. To keep your Member Account active, you must have received or used ReachDollar$ in the past 12 months. If you do not receive or use ReachDollar$ through the Services in a twelve (12) month period, the ReachDollar$ in your Member Account will expire and be removed from the Account, and Reach may close the Account. If this happens, ReachDollar$ will not be reissued. As a Member, you should sign into your Account regularly to check when ReachDollar$ are due to expire. For additional information regarding opportunities to receive ReachDollar$, please see the Feeds section in our Application (as defined below).
“ReachDollar$” means rewards offered through the Services for Members’ participation in the Reach Services, showing loyalty to the Brands, and sharing data with the Brands, or for certain other activities, including but not limited to engaging with Brands via various promotional opportunities.
Restrictions on ReachDollar$
Opportunities to receive ReachDollar$ are not valid where prohibited by law. All purchases involving the receipt or use of ReachDollar$ must be made in the United States and be denominated in U.S. Dollars. ReachDollar$ are only valid for purchases with Brands that participate in Reach, and may not be exchanged for cash, credit, store credit or any other currency. Any attempt to exchange ReachDollar$ for other currencies shall constitute fraud and will result in immediate termination of your Account and removal of any ReachDollar$ in your Account. ReachDollar$ have no cash value and may not be sold, traded, pooled, shared or bartered, unless explicitly permitted by Reach in writing. ReachDollar$ may not be transferred, including to heirs or beneficiaries. Reach may establish a minimum number of ReachDollar$ that can be used in a transaction. ReachDollar$ are closed-loop reward products usable solely to pay for goods and services from the currently participating Brands.
All returns of products or services purchased must be made directly with the Brand from which you made the applicable purchase, in accordance with such Brand’s return policy. Returns cannot be processed through the Services and Reach will have no responsibility for facilitating any returns or providing any refunds. If you make a purchase that makes you eligible to receive ReachDollar$, Reach may put those ReachDollar$ in a Pending state to allow time for any return of that purchase. If you return an item for which you had already received ReachDollar$, Reach reserves the right to remove the ReachDollar$ you received from your Account. If you return a purchase made using ReachDollar$, the ReachDollar$ you used toward that purchase will be returned to your Account. A return does not count as receiving or using ReachDollar$ and therefore will not affect a Member’s active/ inactive status.
What if I want to stop using the Services?
Reach is also free to terminate (or suspend access to) your use of the Services for any reason in our discretion, including your breach of these Terms. In the event Reach terminates your use of the Services, your Account will be closed and any ReachDollar$ in your Account will be removed. Reach has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Once an Account is terminated, the Account cannot be re-opened and any ReachDollar$ you had received cannot be reinstated.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
What about Mobile Applications?
You acknowledge and agree that the availability of our Application (as defined below) is dependent on the third party stores from which you download the Application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms of Service, the more restrictive or conflicting terms and conditions in these Terms of Service apply.
I use the Reach App available via the Apple App Store – should I know anything about that?
These Terms apply to your use of all the Services, including our iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:
(a) Both you and Reach acknowledge that the Terms are concluded between you and Reach only, and not with Apple, and that Apple is not responsible for the Application or the Content;
(b) The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
(c) You will only use the Application in connection with an Apple device that you own or control;
(d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
(e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
(f) You acknowledge and agree that Reach, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
(g) You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Reach, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
(i) Both you and Reach acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
(j) Both you and Reach acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
Can I refer other users?
From time to time Reach may offer rewards or incentives for referring others to the Services. The referring user (“Referrer”) may refer individuals or entities who are neither current customers of Reach nor registered users of the Services (“Referee”). A registered user is a person or entity that already has an existing Account with Reach. There is no limit to the number of referrals that Referrer can make, nor the cumulative rewards or incentives that the Referrer may receive through such special offer, unless otherwise indicated. Referrer will receive the stated reward or incentive for each Referee sent by the Referrer that completes the required action described in that specific offer (such as signing up for an Account or making a purchase). All Referees must be first-time recipients of the offer, and multiple referrals to the same individual or entity will be disregarded. Reach reserves the right to modify or terminate any special offers at any time and to revoke from Referrer and Referee the special offer at Reach’s discretion for any reason or for no reason whatsoever. If Reach determines that Referrer or Referee is attempting to obtain unfair advantage or otherwise violate the terms or spirit of such special offer, Reach reserves the right to (a) revoke any rewards or incentives issued to either Referrer or Referee and/or (b) charge the Referrer or Referee for any rewards or incentives (1) used by Referrer or Referee prior to such revocation or (2) issued by Reach to any ineligible Referrer or Referee. All special offers are subject to any other terms, conditions and restrictions set forth on the Services or presented in connection with the special offer.
What else do I need to know?
Warranty Disclaimer. Reach and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Reach and all such parties together, the “Reach Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the Reach Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The Reach Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services.
THE SERVICES AND CONTENT ARE PROVIDED BY REACH (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE REACH PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF ONE-HUNDRED ($100) DOLLARS OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold the Reach Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services, and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your Account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services Account, in any way (by operation of law or otherwise) without Reach’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Reach and limits the manner in which you can seek relief from Reach. Both you and Reach acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Reach’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Santa Clara County, California. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Reach will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Reach will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or Reach may assert claims, if they qualify, in small claims court in Santa Clara County, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND REACH WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Reach are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Reach over whether to vacate or enforce an arbitration award, YOU AND REACH WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Reach is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 1250 Borregas Avenue, Sunnyvale CA 94089 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your Account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Reach to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Reach agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Santa Clara County, California, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Reach.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Reach may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Reach agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Reach, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Reach, and you do not have any authority of any kind to bind Reach in any respect whatsoever.
Except as expressly set forth in the sections above regarding the Apple Application and the arbitration agreement, you and Reach agree there are no third-party beneficiaries intended under these Terms.