Terms of Use

Terms of Service

Last Update: January, 2019

Welcome to the Pear Commerce Widget and/or Website! Everyone at Pear Commerce, Inc. (d/b/a “Pear Commerce” or “Pear”) hopes you enjoy your experience.

You agree to these Terms of Service and our Privacy Policy by doing any of the following: By interacting with our widget (the “Widget”) and/or taking action on our website (the “Website” or “Site”); By signing up for or redeeming an offer (“Offer”); By clicking an applicable “Continue and Agree”, “Agree”, or similar button. “You” or similar terms means you, in individual using the Widget or Website, as well as any person or entity on whose behalf you are using this Widget or Website, and any third parties who may have rights through you.

Please read these Terms of Service (or “Terms”) carefully. If you have any questions, contact us as described below.

IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MAY NOT USE THE WIDGET OR WEBSITE, OR ACCEPT OR ATTEMPT TO REDEEM ANY OFFER.

PLEASE REVIEW THE FOLLOWING SECTIONS OF THESE TERMS OF SERVICE CAREFULLY: (A) DISPUTE RESOLUTION/ARBITRATION AGREEMENT, INCLUDING THE CLASS ACTION WAIVER DESCRIBED THEREIN, (B) LIMITATION OF LIABILITY, AND (C) INDEMNIFICATION/RELEASE.

About the Pear Commerce Widget and Website

Pear Commerce has business relationships with a number of consumer packaged goods manufacturers/sellers/suppliers (“CPGs”) as well as the owners and operators of a number of retail stores and other retail sellers (“Retailers”). Using Pear’s proprietary platform (“Platform”) CPGs and Retailers collaborate with Pear, to make available certain offers (“Offers”) to you, such as a discount on a certain product. These Offers are developed by the CPGs, who are solely responsible for the Offer terms and for the underlying product itself. The CPGs will advertise Offers on various digital properties, for example Google, Youtube, Snapchat, Pandora, Twitter, etc.

The advertised Offer shall contain a hyperlink to an Offer-specific web page operated by CPG. If you click on the hyperlink / call to action in the advertisement promoting the Offer, you will be directed to a landing page operated by the CPG, which also includes an iframe powered by Pear Commerce.

Then:

(i) You are digitally reminded to redeem and receive the Offer from the specific Retailer that is fulfilling your specific Offer;

(ii) the Offer will be auto-populated in a Retailer-specific loyalty program, app or similar tool (a “Retailer Widget”; any Retailer Widget and other Retailer technology is referred to collectively as “Retailer Technology”) to facilitate your purchase / Offer Redemption – you will need to download/install the applicable Retailer Technology in order to redeem the Offer, and you are solely responsible for obtaining necessary hardware and software to do so;

(iii) Pear Commerce will share initial information provided by you in order to obtain the Offer (which may include city, zip code, Facebook account info, Google account info, email address, telephone /mobile number; collectively, “Initial Consumer Data”) with CPG and the specific Retailer, as well as with other vendors and suppliers as necessary for us to operate our business;

(iv) if you take appropriate action to obtain/purchase the item offered – the CPG Good - Retailer should honor and fulfill the Offer and provide the CPG Good according to its terms.

We may change or discontinue the Widget, Website, and/or process described above at any time, with or without notice.

Ownership

The Widget, Website, Platform, and all Pear Commerce generated content, including any and all copyright, patent, trademark and trade secret rights (collectively “Intellectual Property Rights”) therein belong to Pear Commerce. Other items, such as the Retailer Technology, technology of CPGs, or items belonging to other third parties, including all Intellectual Property Rights therein, belong to such third parties. Contingent upon your compliance with all the terms of this Agreement, (a) Pear Commerce grants you a limited, personal, nontransferable, nonexclusive, revocable license to use the Widget and Website, pursuant to these Terms of Service and to any additional terms and policies set forth by Pear Commerce as well as the terms of any applicable third parties; and (b) you agree not to reproduce, distribute, create derivative works from, publicly display, publicly perform, license, sell, or re-sell any content, software, products, or services obtained from or through the Widget or Website without the express permission of Pear Commerce.

Use of the Widget and Website

You agree, represent and warrant that:

  • You have reached the age of majority in the state or province in which you reside;
  • You are able to create a binding legal obligation;
  • You are not barred from receiving products or services under applicable law;
  • You will not attempt to use the Widget or Site with crawlers, robots, data mining, or extraction tools or any other functionality;
  • Your use of the Widget and Website will at all times comply with these Terms of Service;
  • You will only make legitimate purchases, and you will only legitimately act to accept Offers. You will comply with the letter and spirit of the terms of the respective Offers;
  • You will only accept and redeem Offers for your own use and enjoyment or as a gift for another person;
  • You have the right to provide any and all information you submit to the Widget and/or Website, and all such information is accurate, true, current, and complete;
  • You will update and correct information you have submitted to the Widget and Website and ensure that it is accurate at all times (false information may void an Offer and/or its redemption, at our discretion).

Widget / Website Access

Pear Commerce retains the right, at our sole discretion, to suspend or limit service or use of the Widget or Website to anyone at any time and for any reason or no reason. While we use reasonable efforts to keep the Widget and Website accessible, they may be unavailable from me to time.

Changes to the Terms of Service. We reserve the right at all times to discontinue or modify any part of these Terms of Service in our sole discretion. If we make changes that affect your use of the Widget/ Website or our services we will post notice of the change on the Terms of Service page. Any changes to these Terms of Service will be effective upon our posting of the notice. If you do not agree to the changes, your sole and exclusive remedy is to discontinue your use of the Widget / Website. We encourage you to visit our Terms of Service regularly to ensure that you stay informed of any changes. You agree that posting notice of any changes on the Terms of Service page is adequate notice to advise you of these changes, and that your continued use of the Site or our services will constitute acceptance of these changes and the Terms of Service as modified. We may also, at our option, provide notice to you of changes or any other matter through any contact information you have provided to us, including but not limited to email, mobile phone, or social media account.

Conduct

You agree that the items listed below are prohibited, and that you will not engage in any of the items listed below in relation to your use of the Widget or Website or the acceptance and/or redemption of Offers:

  • Engaging in any of the following:
    • Tampering or interfering with the proper functioning of any part, page, or area of the Widget or Website, or any functions or services provided by Pear Commerce;
    • Taking any action that places excessive demand on our services or imposes, or may impose, an unreasonable or disproportionately large load on our servers or other portion of our infrastructure (as determined in our sole discretion);
    • Exceeding or attempting to exceed quantity limits or any other limits or restrictions related to an Offer
    • Any conduct that is fraudulent or deceptive;
    • Accessing, monitoring, or copying any content from the Widget or Website using any “robot,” “spider,” “scraper,” or other automated means or any manual process for any purpose without our express written permission;
    • Violating the restrictions in any robot exclusion headers on the Widget or Website or bypassing or circumventing other measures employed to prevent or limit access to the Widget or Website, or attempting to access any portion or functionality of the Widget or Website to which you have not been explicitly granted access;
    • Aggregating any current or previous Offers with material from other sites or on a secondary site without our express written permission;
    • Deep-linking to any portion of the Widget / Website without our express written permission;
    • Hyperlinking to the Widget Website from any other website without our initial and ongoing consent; or
    • Acting illegally or maliciously against the business interests or reputation of Pear Commerce, other users, CPGs, Retailers, or our other vendors.
  • Submitting any input or content to the Widget or Website, or in conjunction with accepting or redeeming an Offer, that :
    • Violates applicable laws (including, without limitation, intellectual property laws, laws relating to rights of privacy and rights of publicity, and laws related to defamation);
    • Contains viruses or malware;
    • Offers unauthorized downloads of any copyrighted, confidential, or private information;
    • Has the effect of impersonating or misrepresenting others;
    • Is purposely inaccurate, commits fraud, or falsifies information in connection with your use of the Widget / Website or the acceptance or redemption of Offers; or
    • Is protected by copyright, trademark, or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right.
  • Attempting to do or actually doing any of the following:
    • Accessing data or portions of the Widget, Website or Platform not intended for you;
    • Scanning or monitoring the Widget or Website for data gathering purposes in an effort to track sales, usage, aggregate offering information, pricing information, or similar data;
    • Scanning or testing the security or configuration of the Widget/Website or breaching security or authentication measures; or
    • Interfering with service to any user in any manner, including, without limitation, by means of submitting a virus to the Site or attempting to overload, “flood,” “spam,” “mail bomb,” or “crash” the Site.
  • Using any of the following:
    • Frames, framing techniques, or framing technology to enclose any content included on the Widget/Website without our express written permission;
    • The Widget/Website, or any of its contents to advertise or solicit, for any commercial, political, or religious purpose or to compete, directly or indirectly, with Pear Commerce; or
    • The Widget/Website or any of its content or resources to solicit consumers or other third-parties to become users or partners of other online or offline services directly or indirectly competitive or potentially competitive with Pear Commerce, including, without limitation, aggregating current or previously offered Offers.
  • Collecting any of the following:
    • Collecting information or content from the Widget, Website or Offers, including, without limitation, in connection with current or previously provided Offers, and featuring such content to consumers or others in any manner that diverts traffic from the Widget/Website without our express written permission; or
    • Personal information or user information of any other user..

Privacy

Privacy issues are important to us at Pear Commerce. We collect, use and share information as described in our Privacy Policy.

Copyright and Trademarks

The Widget / Website contains copyrighted material, trademarks, and other proprietary information, including, without limitation, text, software, photos, video, graphics, music, and sound, and the entire contents of the Widget/Website are protected by copyright, trademark, and other intellectual property laws of the United States. Pear Commerce owns a copyright in the selection, coordination, arrangement, and enhancement of such content, as well as in the content original to it. You may not modify, distribute, publish, transmit, publicly display, publicly perform, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part. Except as otherwise expressly stated under copyright law, no downloading, copying, redistribution, retransmission, publication, or commercial exploitation of the content without the express permission of Pear Commerce or the copyright owner is permitted. If downloading, copying, redistribution, retransmission, or publication of copyrighted material is permitted, you will make independent attribution and/or make no changes in or deletion of any author attribution, trademark legend, or copyright notice. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material. Any violation of these restrictions may result in a copyright, trademark, or other intellectual property right infringement that may subject you to civil and/or criminal penalties.

Other marks on the site not owned by Pear Commerce may be under license from the trademark owner thereof, in which case such license is for the exclusive benefit and use of Pear Commerce unless otherwise stated, or may be the property of their respective owners. You may not use Pear Commerce's name, logos, trademarks or brands, or trademarks or brands of others on the Site without Pear Commerce's express permission.

Feedback

We welcome and encourage you to provide feedback, comments and suggestions for improvements to or otherwise relating to the Widget, Website or Offers (“Feedback”). You may submit Feedback by emailing us. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us and agree to grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose. Feedback is not considered confidential information and may be shared by us without limitation.

Infringing Material/DMCA

Notification Procedures

We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from this Widget or Website infringe your copyright, you may request removal of those materials (or access to them) from the Widget or Website by submitting written notification to the email address listed in “Contact Information” below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:

  • Your physical or electronic signature.
  • Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Widget/Site, a representative list of such works.
  • Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
  • Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address).
  • A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law.
  • A statement that the information in the written notice is accurate.
  • A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the Widget/Site is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.

Counter-Notification Procedures
If you believe that material you posted on the Widget/Site was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a "Counter-Notice") by submitting written notification to the email address listed in “Contact Information” below. Pursuant to the DMCA, the Counter-Notice must include substantially the following:

  • Your physical or electronic signature.
  • An 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 disabled.
  • Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address).
  • A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
  • A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Widget/Site may be found) and that you will accept service from the person (or an agent of that person) who provided the Widget/Site with the complaint at issue.

The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten (10) business days of receiving the copy of your Counter-Notice. Please be aware that if you knowingly materially misrepresent that material or activity on the Site was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.

DISCLAIMERS

AS PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT USE OF THE WIDGET, WEBSITE, AND PARTICIPATION WITH ALL OFFERS IS AT YOUR SOLE RISK. NEITHER PEAR COMMERCE, NOR ITS SUBSIDIARIES OR AFFILIATES OR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, CPGS, RETAILERS, OTHER VENDORS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WARRANT THAT USE OF THE WIDGET OR WEBSITE WILL BE UNINTERRUPTED, SECURE, VIRUS-FREE, OR ERROR FREE, NOR DO THEY MAKE ANY WARRANTY AS TO (A) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WIDGET OR SITE, OR (B) THE ACCURACY, COMPLETENESS, OR RELIABILITY OF THE CONTENT ON THE WIDGET OR SITE, INCLUDING, WITHOUT LIMITATION, THE CONTENTS OF OFFERS, DESCRIPTIONS OF GOODS AVAILABLE, RETAILER HOURS OR LOCATIONS, OR OTHER ITEMS.

THE WIDGET, SITE, AND ALL OFFERS AS WELL AS ALL RETAILER TECHNOLOGY ARE MADE ACCESSIBLE OR AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT ALLOWED BY APPLICABLE LAW, PEAR COMMERCE HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO THE OPERATION OF THE WIDGET AND/OR WEBSITE OR THE CONTENT, OFFERS, OR OTHER INFORMATION CONTAINED ON THE WIDGET OR SITE OR OTHER AVAILABLE PROGRAMS ACCESSIBLE OR AVAILABLE THROUGH THE WIDGET OR SITE, INCLUDING, WITHOUT LIMITATION, THOSE OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, MERCHANTABILITY, SUITABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING. THE WARRANTY LIMITATIONS IN THIS SECTION ARE NOT INTENDED TO LIMIT ANY WARRANTY PROVIDED DIRECTLY BY A CPG OR RETAILER OF PHYSICAL PRODUCTS OR ANY EXPRESS REPRESENTATIONS OR WARRANTIES BY PEAR COMMERCE THAT ARE INCLUDED IN OTHER APPLICABLE TERMS.

PEAR COMMERCE IS NOT RESPONSIBLE OR LIABLE FOR ANY CONDUCT OR MISCONDUCT, ACT OR OMISSION, OR INFORMATION OFFERING BY A CPG OR RETAILER. PEAR COMMERCE IS NOT RESPONSIBLE FOR ANY FALSE ADVERTISING RELATED TO AN OFFER OR CPG GOOD, OR FOR ANY PRODUCT OR DEFECT WITH A CPG GOOD. IF YOU ARE DISSATISFIED WITH YOUR EXPERIENCE WITH A RETAILER OR CPG, INCLUDING BUT NOT LIMITED TO A PRODUCT DEFECT, YOU AGREE TO PURSUE SUCH MATTER WITH THE RETAILER AND/OR CPG, AND NOT WITH OR AGAINST PEAR COMMERCE OR ANY OF ITS OWNERS, OFFICERS, AFFILIATES OR EMPLOYEES.

Limitation of Liability

AS PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PEAR COMMERCE, ITS SUBSIDIARIES OR AFFILIATES OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, MERCHANTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE FOR ANY DIRECT OR INDIRECT LOST PROFITS OR LOST BUSINESS DAMAGES, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH ANY OF THE FOLLOWING: (A) YOUR USE OF THE WIDGET, WEBSITE OR PLATFORM, OFFERS, THE CONTENT OF ANY OF THE FOREGOING, USER CONTENT, INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INFORMATION, AND ANY OTHER INFORMATION EITHER CONTAINED IN THE SITE OR SUBMITTED BY YOU TO THE SITE; (B) YOUR INABILITY TO USE THE WIDGET, WEBSITE OR INABILITIY TO ACCEPT OR REDEEM AN OFFER; (C) MODIFICATION OR REMOVAL OF CONTENT SUBMITTED ON THE SITE; (D) THE CPG GOODS AND OTHER AVAILABLE PROGRAMS ACCESSIBLE OR AVAILABLE THROUGH THE WIDGET/WEBSITE; (E) ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED DIRECTLY OR INDIRECTLY FROM A CPG OR RETAILER; (F) THESE TERMS OF SERVICE; OR (G) ANY IMPROPER USE OF INFORMATION YOU PROVIDE TO THE WIDGET/WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INFORMATION. IN NO EVENT WILL PEAR COMMERCE’S LIABILITY IN CONNECTION WITH THESE TERMS OF SERVICE, THE WIDGET, WEBSITE, OR ANY OFFER, EXCEED THE AMOUNTS PAID BY YOU FOR ACCESS TO THE WIDGET/WEBSITE. THE LIABILITY LIMITATIONS IN THIS SECTION ARE NOT INTENDED TO LIMIT ANY WARRANTY PROVIDED DIRECTLY BY A MERCHANT OR BY THE APPLICABLE MANUFACTURER OF PHYSICAL PRODUCTS OR ANY EXPRESS REPRESENTATIONS OR WARRANTIES BY PEAR COMMERCE THAT ARE INCLUDED IN OTHER APPLICABLE TERMS, NOR ARE THEY INTENDED TO LIMIT REMEDIES YOU MIGHT HAVE FOR CPG GOOD-RELATED INJURY.

Correction of Errors

Pear Commerce, CPGs and Retailers reserve the right to correct any typos, errors, or mistakes in any Offer, and revoke the contents of the prior Offer. Pear Commerce, CPGs and Retailers are under no obligation to honor any Offer containing any typo, error or mistake.

Communications

When you use the Widget or Website or send emails to Pear Commerce, you are communicating with us electronically and consent to receive electronic communications related to your use of the Widget/Site. We will communicate with you by any method for which you have submitted information to us, including email, text, telephone, social media account, or by posting notices on the Widget/Site. You agree that all agreements, notices, disclosures, and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. Notices from us will be considered delivered to you and effective when sent.

Third Party Resources; Links

The Widget/Site may contain links to other websites, apps and resources provided by third parties. Any such links are provided for your convenience only. This includes links contained in any advertisements or Offers. We are not responsible for such third party websites, apps or resources or for any loss or damage that may arise from your use of them. The availability of any third party sites or resources through the Widget/Site does not imply our endorsement of or our affiliation with any provider of such third party sites or resources. If you decide to access any of the third party sites or resources linked to this Widget/Site, you do so at your own risk and subject to the Terms of Use, Privacy Policy, and other legal terms applicable for such sites or resources.

Indemnification/Release

You agree to defend, indemnify, and hold harmless Pear Commerce, its subsidiaries and affiliates, and their respective directors, officers, employees and agents from and against all claims and expenses, including, without limitation, attorneys’ fees, arising out of, related to, or in connection with your violation of any applicable law, infringement of third party rights, or any breach of this Agreement.

You are solely responsible for your interactions with CPGs and Retailers. To the extent permitted under applicable laws, you hereby release Pear Commerce from any and all claims or liability related to any product or service of a CPG or Retailer, regardless of whether such product or service is an Offer available through the Widget / Website, any action or inaction by a CPG or Retailer, including, without limitation, but not limited to any harm caused to you by action or inaction of a CPG or Retailer, or a CPG’s or Retailer’s failure to comply with applicable law and/or failure to abide by the terms of an Offer or any other product or service purchased or obtained by you from the CPG or Retailer.

Force Majeure

Pear Commerce shall be excused from performance under these Terms of Service, to the extent it or a CPG or Retailer is prevented or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from: (a) weather conditions or other elements of nature or acts of god; (b) acts of war, acts of terrorism, insurrection, riots, civil disorders, or rebellion; (c) quarantines or embargoes; (d) labor strikes; (e) error or disruption to major computer hardware or networks or software failures; or (g) other causes beyond the reasonable control of Pear Commerce or a CPG or Retailer, as applicable.

Assignment

You may not assign these Terms of Service, or any rights, benefits, or obligations hereunder, by operation of law or otherwise, without the express written permission of Pear Commerce. Any attempted assignment that does not comply with these Terms of Service shall be null and void. Pear Commerce may assign these Terms of Service, in whole or in part, to any third-party in its sole discretion.

Entire Agreement

The Terms of Service, including, without limitation the Privacy Policy, plus any special or additional terms contained within the Widget/Website, constitute the entire agreement and understanding between you and Pear Commerce with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals, whether oral or written, between you and Pear Commerce with respect to such subject matter.

Choice of Law

The construction, validity and performance of these Terms of Service shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without regard to principles thereof relating to conflict of laws. Any dispute arising under or related to the Widget / Website and/or these Terms of Service shall be venued in and subject to the jurisdiction of the state and federal courts located in Minnesota and each party hereby submits to the jurisdiction and proper venue of such courts.

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Dispute Resolution/Arbitration Agreement

Binding Arbitration. Except as specifically stated herein, any dispute or claim between you and Pear Commerce and/or its subsidiaries, affiliates, and/or any of their respective members, officers, directors, and employees (all such entities collectively referred to herein as the “Pear Commerce Entities”) arising out of, relating in any way to, or in connection with the Terms of Service, the Widget/Site or your use of the Widget/Site, your personal information, or any Offers (“Dispute(s)”) shall be resolved exclusively by final, binding arbitration; except that you may bring a qualifying claim over a Dispute in a small claims court. By virtue of this Dispute Agreement (defined below), you and Pear Commerce are each giving up the right to go to court and have a Dispute heard by a judge or jury (except as otherwise set forth in this Section).

The provisions of this Section (Dispute Resolution / Arbitration Agreement) shall constitute your and Pear Commerce’s written agreement to arbitrate Disputes under the Federal Arbitration Act (“Dispute Agreement”). The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to its rules, including, without limitation, the AAA’s Consumer-Arbitration Rules, available at https://www.adr.org/consumer. The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award, if appropriate. The arbitration will take place in Minneapolis, Minnesota.

You hereby unconditionally agree that (1) the arbitrator’s decision shall be controlled by these Terms of Service and any of the other agreements referenced herein that you may have entered into in connection with the Widget/Site; (2) the arbitrator shall apply Minnesota law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law; and (3) in the event the AAA is unavailable or unwilling to hear the Dispute, you and the applicable Pear Commerce Entity(ies) shall agree to, or a court shall select, another arbitration provider.

No Class Action Matters. We each agree that we shall bring any Dispute against the other in our respective individual capacities and not as a plaintiff or class member in any purported class, representative proceeding or as an association. In addition, we each agree that Disputes shall be arbitrated only on an individual basis and not in a class, consolidated, or representative action and that the arbitrator may award relief (including injunctive relief) only on an individual basis. The arbitrator does not have the power to vary these provisions.

Injunctive Relief. Notwithstanding anything to the contrary, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to the infringement of a party’s intellectual property, or any illegal or intentional act affecting the accessibility, functionality, or the security of the Widget/Site, and/or any illegal or intentional act against your interests or the general business interests of Pear Commerce.

Severability. If any part of this Section is ruled to be unenforceable, then the balance of this Section shall remain in full effect and construed and enforced as if the portion ruled unenforceable were not contained herein.

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Based in U.S.

PEAR COMMERCE IS AN ENTITY BASED IN THE U.S. AND INTENDS TO PROMOTE OFFERS TO CONSUMERS AND RETAILERS IN THE U.S. ONLY. ALTHOUGH THE PLATFORM AND/OR OFFERS MAY BE VIEWED OUTSIDE OF THE U.S., SUCH OUTSIDE U.S. INDIVIDUALS MAY BE BLOCKED. PEAR COMMERCE DOES NOT AGREE TO BE SUBJECT TO ANY LAWS OUTSIDE OF THE U.S.

Additional Disclosures

No waiver by either you or Pear Commerce of any breach or default or failure to exercise any right allowed under these Terms of Service is a waiver of any preceding or subsequent breach or default or a waiver or forfeiture of any similar or future rights under our Terms of Service. The section headings used herein are for convenience only and shall be of no legal force or effect. If a court of competent jurisdiction holds any provision of our Terms of Service invalid, such invalidity shall not affect the enforceability of any other provisions contained in these Terms of Service, and the remaining portions of our Terms of Service shall continue in full force and effect.

Contact

You may contact Pear Commerce at: 3349 Girard Ave. South, Minneapolis, Minnesota 55408, legal@pearcommerce.com.

If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at (800) 952-5210.

The provisions of these Terms of Service apply equally to, and are for the benefit of, Pear Commerce, its subsidiaries, affiliates, CPGs, Retailers, and our third party licensors, and each shall have the right to assert and enforce such provisions directly.