Check This Out Terms of Use

Revision Date: October 3, 2024

These Check This Out Terms of Use (this “Agreement”) apply to your access or use of the Check This Out websites, mobile sites, and applications (collectively, the “Check This Out Sites”) and the content, features, and services (the “Services”) made available by Check This Out.

In this Agreement, “Check This Out” and “we” mean Check This Out LLC, a Delaware limited liability company. The terms “User” and “you” mean any user of the Services. This Agreement incorporates Check This Out’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “Check This Out Policies”).

By accessing or using the Services or by clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services (including, if applicable, purchasing, giving, using, or redeeming any Merchant Gift Card (as defined below)). THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, A CLASS ACTION WAIVER.

Check This Out may update or revise this Agreement (including any Check This Out Policies) from time to time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. You may have to click “accept” or “agree” to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, you must terminate your use of the Services, in which case you will no longer have access to your Account (as defined below). Any use of the Services is subject to the version of this Agreement in effect at the time of use.

Part I – Users, Coupons, Credits and Other Services

1. User Invitations. Other Users of the Services may enter your telephone number in the Check This Out Sites, which will result in you receiving a text message inviting you to accept this Agreement and participate in the Services. Check This Out cannot prevent other Users from entering your telephone number in the Check This Out Sites; however, if you opt-out of receiving messages from the Check This Out Sites, future messages to your telephone number will be blocked. If you accept the invitation, and this Agreement, you will receive messages from the Check This Out Sites until you opt-out of the Services.

2. Merchant Coupons. You may receive electronic coupons from Merchants participating in the Services (“Merchant Coupons”) to the telephone number you enter into the Services. Merchant Coupons may be sent from Merchants with which you have previously interacted though the Services. You may also receive Merchant Coupons from other Merchants participating in the Services.

3. Merchant Credits. If you refer another person to the Check This Out Sites through the Services, and that person becomes a User, upon that User redeeming a Merchant Coupon, you will receive a credit that may be used to purchase products and/or services from that Merchant (“Merchant Credits”).

4. Merchant Responsibility. You acknowledge and agree that the applicable Merchant, not Check This Out, is the issuer of the Merchant Coupons and Merchant Credits, and is solely responsible for honoring the Merchant Coupons and Merchant Credits, and that Check This Out acts only as a platform provider. Check This Out provides the Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to any Merchants, Merchant Coupons, or Merchant Credits. Each applicable Merchant is solely responsible for the products and/or services provided in connection with the use or redemption of a Merchant Coupon or Merchant Credits. The terms and conditions for the use of the Merchant Coupons and Merchant Credits is determined by the applicable Merchant. Each Merchant is responsible for ensuring that it and the Merchant Coupons and Merchant Credits that it issues comply with all applicable laws and regulations. You further acknowledge and agree that Check This Out is not responsible for any act or omission of any Merchant in connection with the issuance or redemption of any Merchant Coupon or Merchant Credit, including, without limitation, any failure by any Merchant to honor any Merchant Coupon or Merchant Credit or the imposition of any terms and conditions on any Merchant Coupon or Merchant Credit that violate any applicable laws or regulations. For any and all issues or questions related to Merchant Coupons or Merchant Credit or any other products or services offered by Merchants, you must contact the applicable Merchant.

Part II – Merchant Registration and Participation

1. Registration. A Merchant must register an account ("Merchant Account") to issue Merchant Coupon and Merchant Credits through the Services.

2. Customer Lists. Upon registering a Merchant Account, Merchant must upload the telephone numbers of its initial list of potential Users (the “Merchant Users”). The Merchant Users list shall be used to determine the pricing of the Services, as set forth below. If a User redeems a Merchant Coupon, that User will become a Merchant User.

3. Content. Merchant is solely responsible for the content included in the Merchant Coupons and Merchant Credit, including, without limitation (the “Merchant Content”):

· The value and redemption period of each Merchant Coupon

· The terms and value of the Merchant Credit; provided that the Merchant Credit shall not expire, and shall be cumulative until used at the Merchant. The Merchant Credit may place conditions on the use of the Merchant Credit, as determined by the Merchant, such as: (i) providing that the entire Merchant Credit must be used at one time, (ii) providing whether the Merchant Credit may be used to purchase alcohol or (iii) providing whether the Merchant Credit may be used to pay gratuities pay gratuities.

· The Merchant Credit attributed to a user must be redeemed in it’s entirety at each instance of redemption by the User whether the balance is generated by Merchant Coupons, Merchant Credit, or a combination of both.

Check This Out may provide templates for use by the Merchant in preparing Merchant Coupons, but the Merchant is ultimately responsible for the Merchant Content.

4. Fees. Check This Out shall charge a registration fee of $299. Check This Out shall charge fees to Merchants ("Service Fees") in consideration for publishing Merchant Coupons though the Service. If a Customer activates a Merchant Coupon, Merchant shall pay Check This Out a Service Fee of $.30 per $1 of coupon activated. Check This Out uses Stripe to process Service Fees, which shall be paid on the first business day of each month, in the month following the month in which the Service Fees were earned, through automatic debit of the credit card Merchant input during the registration process.

5. Fee Disputes and Refunds. If you have any dispute with regards to fees associated with your account, please contact us through our Support Center at customerservice@checkthisout.io within 30 days of the date of the activity that generated such dispute, and we will attempt to resolve the matter. Any and all refunds issued to resolve such a dispute shall be issued as credits to your account, but in no event shall there be any cash refunds. Disputes older than 90 days shall not be entitled to any refunds or credits.

6. Minimum Committed Spend and Cancellation

Part III – Terms for All Services

1. Privacy Policy. Check This Out is committed to helping you safeguard your privacy online. Please review our privacy policy for details about how we collect, use, and disclose information in connection with the Services.

2. Your Account. You must create an account with Check This Out through the Check This Out Sites (“Account”) in order to use the Services, or receive and redeem Merchant Coupons or Merchant Credits. When registering for an Account, you must provide true, accurate, current, and complete data about yourself on the Check This Out registration form (“Registration Data”). You also agree to promptly update the Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify Check This Out of any unauthorized use of your Account or any other breach of security related to your use of the Services.

3. Communications from Check This Out and Merchants. If you use Check This Out Sites and Services, Check This Out and the Merchants may communicate with you via electronic messages, including email, text message/SMS, or mobile push notifications in accordance with our privacy policy.

4. Technical Requirements. Use of the Services requires Internet access through your computer or mobile device. You are responsible for all mobile carrier data or text message charges resulting from your use of the Services, including from any notifications provided by the Services. In order to use the text message based services, you must maintain an active account with a carrier of electronic communications through mobile devices and you may not use a prepaid cellular phone to access such text message services. Check This Out does not guarantee that the Services will be compatible with all devices or will be supported by all mobile carriers. You may be required to have JavaScript (or similar technologies) enabled to use the Check This Out Site, and some features and portions of the Check This Out Site may not be accessible with JavaScript disabled.

5. Modifications to Services. Check This Out reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the Check This Out Sites and/or Merchants. Check This Out shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services.

6. Intellectual Property Rights and Grant of Rights to User. The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “Check This Out Content”) are provided to User by Check This Out or its partners or licensors solely to support User’s permitted use of the Services. The Check This Out Content may be modified from time to time by Check This Out in its sole discretion. Except as expressly set forth herein, no license is granted to User for any other purpose, and any other use of the Services or the Check This Out Content by User shall constitute a material breach of this Agreement. Check This Out and its partners or licensors retain all rights in the Services and Check This Out Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of Check This Out or any third party is granted under this Agreement.

7. Application License. Subject to the terms and conditions of this Agreement, Check This Out grants User a non-exclusive, non-transferable, revocable license to use the Check This Out mobile applications, in object code form only, on User’s compatible mobile devices, solely to support User’s permitted use of the Services.

8. Use Restrictions. The Services and Check This Out Content are offered solely for User’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. Check This Out expressly reserves all its rights and remedies under applicable laws (including state, federal, and provincial/territorial laws). Check This Out reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, or deny access to the Services. You agree not to (and not to allow any third party to): (1) use any deep-link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Services or Check This Out Content, except as expressly authorized by Check This Out; (2) take any action that imposes or may impose (in Check This Out’s sole determination) an unreasonable or a disproportionately large load on the Services or Check This Out’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Services or Check This Out Content to a third party; (5) use any portion of the Services or Check This Out Content to provide, or incorporate any portion of the Services or Check This Out Content into, any product or service provided to a third party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Check This Out); (7) modify any Services or Check This Out Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Services or Check This Out Content; (9) use the Services or Check This Out Content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Services or Check This Out Content or access or use the Services or Check This Out Content for competitive analysis or benchmarking purposes. Although the Check This Out Sites may be accessible worldwide, not all features or services discussed, referenced, provided or offered through or on the Check This Out Sites are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. Check This Out reserves the right to limit, in its sole discretion, the provision and quantity of any feature or service to any person or geographic area.

9. Termination. Check This Out may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, Check This Out may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any Check This Out Policies). After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account, and, where applicable, you may lose access to and be unable to use any accumulated Merchant Credits. You agree that Check This Out shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which Check This Out will have no liability whatsoever.

10. Your Representations and Indemnity. You will indemnify, hold harmless, and (at Check This Out’s request) defend Check This Out, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “Check This Out Parties”) from and against all claims resulting from your use of the Services, your Merchant Content, or any breach or alleged breach by you of this Agreement.

11. Liability Limitations. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, IN NO EVENT SHALL THE CHECK THIS OUT PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT (INCLUDING ANY CHANGES THERETO), (2) ANY USE OF THE CHECK THIS OUT SITES, SERVICES, OR THE CHECK THIS OUT CONTENT, OR THE CONTENT MADE AVAILABLE BY ANY MERCHANT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF ANY OF THE SERVICES), OR (4) YOUR VISIT TO ANY MERCHANT OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY MERCHANT IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE CHECK THIS OUT SITE BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE CHECK THIS OUT CONTENT. CHECK THIS OUT IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY MERCHANT.

IF THE DISCLAIMER OF DIRECT DAMAGES ABOVE IS NOT ENFORCEABLE AT LAW, YOU EXPRESSLY AGREE THAT OUR LIABILITY TO YOU (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO FIVE US DOLLARS ($5).

You and Check This Out understand and agree that the disclaimers, exclusions, and limitations in this Section 11 and in Section 12 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that Check This Out would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

12. Disclaimer of Warranties. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND CHECK THIS OUT CANNOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SERVICES, ALL CHECK THIS OUT CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. CHECK THIS OUT EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE , TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. CHECK THIS OUT DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT CHECK THIS OUT WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. CHECK THIS OUT SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CHECK THIS OUT.

THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

13. Release. Merchants are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you (or, if applicable, any recipient of an Merchant Coupons or Merchant Credits) as a result of your (or such recipient’s) interaction with or visit to any Merchant or from any promotion, offer, product or service of any Merchant. Users must resolve all disputes directly with the Merchant. To the maximum extent permitted by applicable law, you hereby release the Check This Out Parties from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the Check This Out Parties pertaining to the subject matter of this Section 13.

14. Notify Us of Infringers. If you believe any of the Services violate your copyright, notify our copyright agent in writing at legal@CheckThisOut.io.

15. Severability. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.

16. Assignment. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by Check This Out.

17. Waiver. Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.

18. CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE.

Where permitted by law, you and Check This Out must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR CHECK THIS OUT MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE COURT MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; and (3) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.

Notwithstanding the foregoing, either you or Check This Out may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Gallatin County, Montana. Additionally, either party may seek emergency equitable relief before the state or federal courts located in Gallatin County, Montana in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Gallatin County, Montana for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.

19. Choice of Law. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of Montana.