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Terms Of Service

Overview

RedKangaroo (“we,” “us,” “our,” etc.) operates a decentralized marketing platform on our digital ledger of transactions that is duplicated and distributed on a network of computer systems (our “Blockchain”), which enables our users (“Users”) to support their favorite brands, earn rewards and have access to perks by downloading and using our mobile app (the “App”).  All uses of the App and our services (the “Services”) are subject to these RedKangaroo Terms of Use (these “Terms”) and our privacy policy (the “Privacy Policy”), which is incorporated into these Terms by this reference.  Accordingly, if you use the App or otherwise use any of our Services, you and we mutually agree that these Terms will constitute a binding, legally enforceable contract between you and us.

These Terms contain a mandatory arbitration provision that, as further set forth in the “Arbitration” section below, requires the use of arbitration on an individual basis to resolve disputes.  It does not allow jury trials or any other court proceedings or class actions of any kind.

SECTION 1
Brand Economies 

We enable businesses, artists and other brand holders (collectively, “Brands”) to create an economy or community just for their customers and supporters on our Blockchain (for each Brand, the “Brand Economy”).  Our Users may use our App to register with any Brand to become members of its Brand Economy (“Brand Members”).

Brand Members will be able to use our Services to purchase fungible cryptographic tokens that are unique to the applicable Brand Economy (the “Brand Coins”) and, at the sole discretion of the applicable Brand, to earn Brand Coins for supporting the applicable Brand by meeting challenges posed by the Brand, such as buying a certain volume, value or type of Brand products, promoting the Brand through social media posts or otherwise or visiting the Brand’s online storefront.  Brand Members who hold any Brand Coins will be eligible to receive perks, benefits or rewards (collectively, “Perks’) made available by the Brand.  Further, they will be permitted to sell their Brand Coins to other Brand Members, if any, who want to purchase them.  At the Brand’s sole option, they may also be eligible to redeem the Brand Coins for cash or merchandise.  Any issuance or transfer to or by you of any Brand Coin would be recorded on the Brand Economy portion of our Blockchain.  Subject to the restrictions in these Terms, Brand Coins may be sold or transferred only within the applicable Brand Economy, i.e., only to other Brand Members.

SECTION 2
Your Account

To join any Brand Economy or otherwise use our Services or the App, you must first open an account with us (your “RK Account”).  To open an RK Account, we may require you to provide us with personal information to the extent that we determine, in our sole discretion, that we require that information to comply with any laws or regulations or for our use in connection with the Services.  Information we request may include (i) your name, address, email address, date of birth, government-issued photo identification, taxpayer identification number, government identification number, bank or other payment account information or IP address, (ii) a photo or video of you, (iii) the MAC address of the device you use to access any of the Services or use the App, and (iv) payment account information (e.g., your credit card number, expiration date, billing address and security code).

When opening your RK Account, you will be required to select a username, password and potentially other identifying information to control access to your RK Account (your “Access Credentials”).  You must not disclose your Access Credentials to anyone.  You are responsible for keeping your Access Credentials secret.  To the maximum extent permitted by law, you are exclusively responsible for all activities that occur in or using your RK Account and accept all risks of any unauthorized access to your RK Account.  You must notify us immediately upon becoming aware of any breach of security or unauthorized access to or use of your Access Credentials or RK Account.

SECTION 3
Your Information

You acknowledge and agree that, subject to our Privacy Policy (i) we may disclose the foregoing information and any other information that we request from you (x) to any Brands of which you become a Brand Member, (y) our affiliates, vendors or service providers (provided that each such affiliate, vendor or service provider agrees or is required to protect, and to refrain from using or disclosing, such information except as expressly authorized hereunder) or (z) as may be required by applicable law or any order of any court or governmental agency or as may be requested by any law enforcement agency or regulator, and (ii) we, each Brand of which you become a Brand Member, and each of our affiliates, vendors or service providers may use such information (x) for any internal purposes (including to improve, enhance or update the Services or the App and, in the case of our affiliates, vendors and service providers, to provide services to us) or (y) as we determine in our sole discretion to be reasonably necessary or appropriate to authorize or consummate any transaction on any Brand Economy.  

Additionally, you acknowledge and agree that, in order to utilize the Services or the App, you may need to purchase products or services from third parties.  Any such purchases will be subject to such third party’s terms of use (or similar terms) and privacy policies.  We make no representations or warranties regarding any such third party services or products and shall have no liability or obligation to you whatsoever in connection with any of those products or services.

You represent and warrant that all information you provide to us is and will be true and accurate and that you will immediately update any such information that changes.

SECTION 4
Joining A Brand
Economy 

You may use the App to join any Brand Economy of your choosing (i.e., become a Brand Member of such Brand Economy).  In order to join any Brand Economy, the applicable Brand may require you to go through an on-boarding process, which may include providing additional information about you, paying a fee, and accepting and agreeing to be bound by any terms of use or terms of service and any privacy policy that such Brand presents in its sole discretion (collectively, the “Brand-Specific Terms”).  Further, any of your personal information that you or we provide to the Brand will be subject to the Brand’s privacy policy, which may be different in material respects from our Privacy Policy.  You should review such Brand’s Brand-Specific Terms closely before joining its Brand Economy.

If you join any Brand Economy, you will be legally bound by both these Terms and any Brand-Specific Terms of such Brand Economy, even if these Terms and such Brand-Specific Terms conflict in any way.  Accordingly, you are solely responsible for ensuring that you do not join any Brand Economy unless you are reasonably able to fully comply with both these Terms and the applicable Brand-Specific Terms.

SECTION 5
Eligibility 

You may not open any RK Account, join any Brand Economy, purchase or otherwise obtain any Brand Coins, or use, receive or participate in any Perks if (i) you have not accepted and agreed to be bound by these Terms, (ii) you appear on the United States Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN), United States Commerce Department’s Denied Persons list or other similar lists, (iii) you are a national or resident of Cuba, Iran, North Korea, Sudan, Syria or any other country, territory, or other jurisdiction that is the subject of comprehensive country-wide, territory-wide, or regional economic sanctions by the United States, (iv) you are younger than the age of majority in the jurisdiction in which you reside or are otherwise not legally permitted to enter into these Terms, or (v) your purchase, possession or use of any Brand Coins or Perks is not permitted in the jurisdiction in which you reside.  Further, to join any particular Brand Economy, the applicable Brand may impose eligibility requirements in addition to those imposed by us.

SECTION 6
Brand Coins

Definitions

  1. “Brand Value” means an amount, denominated in U.S. dollars, determined by the Consensus Parties, that is set taking into account various metrics, such as the number of songs listed on Spotify, the number of likes, posts or shares on social media, the number of check-ins at the Brand’s online retail store, and the number of receipts uploaded by Brand Members to prove product purchases, in each case to the extent applicable.  The Consensus Parties may select from these metrics or use other or additional metrics and will determine the weight to be given to each metric.  You acknowledge and understand that Brand Value is merely an amount used for reference purposes.  It is not intended, and should be relied upon, as a representation of the actual value of any asset or thing.  

  2. “Brand Coin Volume” means, as of any time, the number of Brand Coins that have been minted by the Brand, to be determined by the Consensus Parties.

  3. “Brand Coin Reference Price” means the Brand Value divided by the Brand Coin Volume. 

  4. Your “Coin Holdings” means the amount, expressed as a percentage, obtained by dividing the total number of Brand Coins that you hold by the Brand Coin Volume.  For example, if you hold 100 Brand Coins and the Brand Coin Volume is 100,000, your Coin Holdings would be 0.1%.

  5. “Consensus Parties” means the persons who must approve decisions relating to Brand Value or Brand Coin Volume.  The Consensus Parties for each Brand Economy will in any event include the applicable Brand and us, and may include others selected by the Brand in its sole discretion.  Holding Brand Coins will not in and of itself entitle a Brand Member to be a Consensus Party.  All decisions, elections or acts of the Consensus Parties will be subject to our approval.

  6. Your “Tier” will be determined using a scale based on your Coin Holdings.  That is, as your Coin Holdings reach thresholds determined by the applicable Brand, your Tier will increment.  (For example, you may be in Tier 1 until such time as your Coin Holdings reach 0.1%, at which point you may reach Tier 2.  Higher Tiers would be achieved by reaching higher Coin Holding thresholds.  Similarly, your Tier may decrease if you sell Brand Coins.)
     

Changes to Brand Value and Brand Volume:

  1. The Consensus Parties may elect at any time to increase or decrease the Brand Value or the Brand Coin Volume.  You acknowledge and agree that if the Brand Coin Volume increases without a commensurate increase in the Brand Value, or if the Brand Value decreases, the Brand Coin Reference Price will decrease.  

  2. If you hold any Brand Coins when the Brand Coin Reference Price decreases, the Brand will issue you a number (which, if it is not a whole number, will be rounded down to the nearest lower whole number) of additional Brand Coins equal to the amount by which (x) the product obtained by multiplying the number of Brand Coins that you then hold (i.e., before any additional Brand Coins are issued pursuant to this paragraph) by a fraction, the numerator of which is the Brand Coin Reference Price before such decrease and the denominator of which is the Brand Coin Reference Price after such decrease exceeds (y) the number of Brand Coins that you then hold.  For example, if you hold 100 Brand Coins and the Brand Coin Reference Price decreases from $1.00 to $0.80, you will be issued an additional 25 Brand Coins (which is (100 x $1.00 / $0.80) – 100) so as to ensure that the aggregate value of your Brand Coins, determined as the product obtained by multiplying the number of Brand Coins that you hold by the Brand Coin Reference Price, does not change as a result of such decrease in the Brand Coin Reference Price.  You acknowledge and agree that value as used in this paragraph may not relate to market value, and we provide no assurances that you will be able to sell your Brand Coins for any particular price (or at all).
     

Obtaining Brand Coins from the Brand:  

  1. The Brand may make Brand Coins available to you for purchase at any time at the then-current Brand Coin Reference Price, payable in U.S. dollars.

  2. The Brand may also elect to issue Brand Coins without charge, or at a reduced charge (i.e., a discount to the applicable Brand Coin Reference Price), to Brand Members who support the Brand as described above.  The Brand will decide in its sole discretion what actions (if any) would qualify you to receive Brand Coins without charge or at a discount, the number of Brand Coins or the amount of the discount to be issued for each action and any additional conditions to the issuance of Brand Coins without charge or at a discount.  
     

Perks: 

Each Brand will provide Perks to Brand Members that hold such Brand’s Brand Coins.  The Perks will be tiered, meaning that, the higher your Tier, the better the Perks you receive (as reasonably determined by the Brand).

Sales of Brand Coins by Brand Members and Us:  

  1. You may offer your Brand Coins for sale on the applicable Brand Economy at a price that you set, provided that such price may not exceed 95% of the Brand Coin Reference Price.  You understand that other Brand Members or we may offer Brand Coins for less than the price at which you offer them, and that no Brand Members will purchase any of your Brand Coins to the extent that lower-priced offerings are available.  You understand that you may not be able to sell your Brand Coins at the price you set or at all.

  2. You Acknowledge and understand that 10% of the Brand Coin Volume will be issued to us, we may offer to sell our Brand Coins at any price we set in our sole discretion (but not higher than the Brand Coin Reference Price), and that, if we do that, the price at which you may be able to sell your Brand Coins may decline.  Also, any Brand Coins that we offer for sale will take precedence over any other Brand Coins then offered for sale (meaning that all Brand Coins that we offer must sell before any Brand Coins offered by Brand or any Brand Member may sell).

  3. The Brand may set any conditions it chooses in its sole discretion on your right or ability to sell your Brand Coins.  For example, the Brand may (i) prohibit you from selling any Brand Coins until the Brand sells a certain number of its Brand Coins, (ii) require you to hold your Brand Coins for a fixed period before allowing any sale, or (iii) limit the price at which you may sell your Brand Coins to an amount that is less than 95% of the Brand Coin Reference Price if you fail to hold them for a prescribed period.  Your Brand Coins may only be transferred within the applicable Brand Economy (that is, on the applicable Brand’s part of our Blockchain), and only to other Brand Members.  You may not transfer Brand Coins via any third-party exchange or otherwise, except by using our Services.  

  4. If you sell any Brand Coins at a profit, you will pay the Brand a commission of 10% of that profit.  For example, if you purchase a Brand Coin for $10 and then sell it for $15, your profit would be $5.  The Brand would receive 10% of that profit ($0.50), and you would receive the balance of the purchase price ($14.50).  If you sell any Brand Coins that were issued to you at no charge for supporting the Brand as contemplated above, 100% if the purchase price will be deemed to be profit subject to the 10% commission.

  5. After any transfer of Brand Coins, the new holder of the Brand Coins will be entitled to receive any associated Perks, and the prior owner will no longer receive any associated Perks.
     

Transaction Service Fee:

When you purchase Brand Coins from the Brand, from us or from another Brand Member, you will pay us a transaction service fee of 3% of the purchase price.  Similarly, any Brand Member that purchases any Brand Coins from you will pay us that service fee based on the amount that such Brand Member pays you for those Brand Coins.

Redemption: 

The Brand may, in its sole discretion, allow you to redeem Brand Coins for U.S. dollars or merchandise based on the then-current Brand Coin Reference Price.  You acknowledge and understand that we will not provide any redemptions and that neither we nor the Brand will have any liability or obligation to you if the Brand elects not to provide any redemptions either or based in any way on the terms or conditions under which any redemptions are offered.

SECTION 7
Notices Regarding Certain Risks Associated with Brand Coins

Brand Coins are not insured or guaranteed by any agency of the United States, such as the Federal Deposit Insurance Corporation or the Securities Investor Protection Corporation, or by private insurance, against theft (including cybertheft or theft by other means) or loss. We will have no liability whatsoever in connection with any theft or loss of Brand Coins or other digital assets.

You should assume that Brand Coins have no market value, and that even if a market value or secondary markets exists, the market price may be highly volatile and could decrease to zero at any time.  Your Brand Coins will have no inherent monetary value whatsoever (except to the extent that the Brand, in its sole discretion, offers to redeem those Brand Coins).
 

You acknowledge and understand that, because your Brand Coins may not be traded or transferred on any third-party exchange or otherwise, other than transfers on our Blockchain that are expressly permitted under these Terms, Brand Coins are more restricted, and less useful as a medium of exchange, than other cryptocurrencies (such as Bitcoins or ETHs).  
 

You acknowledge and agree that there are inherent risks associated with digital assets recorded on any blockchain, such as your Brand Coins. These risks include, but are not limited to, the failure of hardware, software or internet connections, the risk of malicious software introduction and the risk of unauthorized access to your digital wallet via cyberattacks or otherwise. Further, transfers of such digital assets are, as a rule, irreversible. Consequently, losses due to fraudulent or accidental transfers are generally not recoverable. Thus, it is possible that, through computer or human error, or through theft or fraud, your Brand Coins may be lost, corrupted, damaged or stolen or become inaccessible. We will not have any liability of any type or nature arising out of or relating to the loss, corruption or theft of or damage to your Brand Coins.  
 

If any of your Brand Coins are lost, corrupted, damaged or stolen, or if you are for any reason unable to access any of your Brand Coins, you will lose access to any Perks. We will have no liability or obligation to you whatsoever in connection with any such loss.

You further acknowledge and agree that there is substantial uncertainty as to the regulatory classification of digital assets under applicable law, and that application of new or existing laws or regulations to digital assets by regulators or others present risks which could adversely affect any value or utility of Brand Coins or Perks, and the ability to offer Perks.
 

Finally, you acknowledge and agree that Brands may elect to cease using our Service or may go out of business, or that we may elect to terminate the use of our Service by any particular Brand, or that we may suspend or terminate the Services if we at any time determine that the Services may violate any law, if we decide to go out of business or for any other reason.  Further you acknowledge and agree that your RK Account or account with any Brand relating to the Services may terminate.  In those events, all of your applicable Brand Coins will lose all of their value and become entirely useless and non-transferrable.

SECTION 8
Void Where Prohibited

Neither we nor any Brand will have any obligation to issue any Brand Coin to you if you reside in any territory where doing so would violate any laws or regulations (“Prohibited Territories”).  You represent and warrant that you do not reside in a Prohibited Territory and that, if you relocate to a Prohibited Territory, (i) you will promptly notify us, (ii) if possible, you will transfer any Brand Coins that you then hold, or (iii) if you are not able to transfer your Brand Coins, you agree that we may (x) enable (and require you) to burn your Brand Coins or (y) block or disable your access to your Brand Coins.​

SECTION 9
Perks

We make no representations or warranties regarding, and will have no liability or obligation to you whatsoever relating in any way to, any Perks.  Further, except as may otherwise be provided in the applicable Brand-Specific Terms: 
 

  1. The Brands will have no obligation to offer any particular type or number of Perks.  At its sole discretion, any Brand may impose conditions on your ability to obtain certain Perks (provided that each Brand Member will be unconditionally entitled to receive some Perks).  Such conditions may include, for example, providing additional information about yourself, paying fees, opting in to receive messages or otherwise participating in marketing efforts or other activities or events.  

  2. Except as may otherwise be provided in the applicable Brand-Specific Terms (if any), (w) all Perks (if any) will be provided by or on behalf of the Brands on a strictly AS IS basis, without warranties of any type or nature; (x) any information that any Brand publishes or otherwise provides regarding any actual or potential Perks will not give rise to any warranties or any obligation that requires them to provide such Perk or to continue to provide such Perk; (y) Brands they may modify or terminate any Perk at any time, without notice, in their sole and absolute discretion; and (z) Brands will have no liability of any type or nature in connection with any Perk or any loss or unavailability of any Perk. 

  3. If your RK Account terminates for any reason, you may no longer be eligible to receive any Perks, and, if your account relating to the Services with any Brand terminates, you may no longer be eligible to receive Perks from such Brand, in each case regardless of whether you retain any Brand Coins. 

SECTION 10
Compliance

If you earn any Brand Coins by promoting the applicable Brand in any way, including, but not limited to, by posting about such Brand on your social media accounts (“Posts”), you will comply with applicable laws and regulations, including, without limitation, the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. § 255, and with any and all policies of such Brand of which such Brand notifies you.  Without limiting the foregoing, you represent and warrant that each and every Post shall (i) truthfully identify you, (ii) clearly and conspicuously disclose that you are paid to endorse such Brand or its products or services, (iii) state only your sincere and honest opinions and beliefs in all respects, (iv) make no claims whatsoever about such Brand or its products or services that have not been approved by the Brand in advance or that include any statements that are in any way false, misleading or deceptive, and (v) be new and original.  You further represent and warrant that (i) no Post shall be an imitation or copy of, or infringe upon, any other material, or shall violate or infringe upon any common law or statutory rights of any person or entity, including without limitation rights relating to defamation, contract, trademark, patent, copyright, trade secret, privacy or publicity; (ii) you have the right and power to enter and perform your obligations under these Terms; (iii) you will not include any third party material, brand, trademark or content (i.e., any material, brand, trademark or content not authored by you ) in any Post without such Brand’s prior written consent; and (iv) you will not purport to speak or make any statement or representation on behalf of such Brand.  You will not disparage such Brand in any way.

SECTION 11
No Warranties

Brands may act negligently, recklessly, willfully or unlawfully, make mistakes, or violate their obligations to you or others, your rights, or the rights of others.  If that happens, we will have no liability, obligation or responsibility whatsoever.  We are merely a platform for you to connect with Brands.  We provide no guarantees, and make no representations or warranties of any type or nature regarding any Brands or the acts or omissions of any Brands.

 

You understand that the processing and transmission of communications relating to the use of the Services or the App, including your personal information, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting to various networks or devices. Therefore, you agree that we will not be liable for errors in transmission or transcription or relating to the timeliness, deletion, mis-delivery or failure to store any data, information or content transmitted by you in connection with the Services or the App.

 

WE PROVIDE THE SERVICES AND THE APP ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY WHATSOEVER. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  THE DURATION OF ANY IMPLIED WARRANTY THAT IS NOT EFFECTIVELY DISCLAIMED WILL BE LIMITED TO THE LONGER OF (I) THIRTY (30) DAYS FROM THE DATE THAT YOU FIRST ACCEPT THESE TERMS OR FIRST USE THE SERVICES OR THE APP, AS THE CASE MAY BE, AND (II) THE SHORTEST PERIOD ALLOWED UNDER APPLICABLE LAW. 

 

Some jurisdictions do not permit the disclaimer of implied warranties or limitations on how long an implied warranty lasts; therefore, some or all of the provisions of this section may not apply to you.

SECTION 12
Limitation Of Liabilitie

IN NO EVENT SHALL WE, OUR AFFILIATES OR OUR LICENSORS, OR OUR OR THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS OR SHAREHOLDERS, BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE) FOR (I) ANY LOST OR CORRUPTED DATA, LOST PROFITS OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES, PRODUCTS OR TECHNOLOGY. 

 

TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, OUR AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE, THE BRAND COINS, OR ANY PERKS IS LIMITED TO $100.

 

Some jurisdictions may not allow the exclusion or limitation of incidental or consequential damages, so the above exclusions shall only apply to the extent permissible under applicable law.

SECTION 13
Service Changes, Suspension and Termination 

ou acknowledge and understand that we may regularly update, enhance, modify and otherwise change the Service, including by adding features or capabilities to or removing features or capabilities from the Service, or by changing our rules or policies or other aspects of our Service, in each case without notice and in our sole and absolute discretion.  Further, we may suspend or terminate your access to or use of the Service or the App at any time, in our sole and absolute discretion, without notice.

 

No such change, suspension or termination shall be a breach of these Terms by us or give rise to any obligation or liability whatsoever on our part.

SECTION 14
Indemnification

You will be responsible for and will pay us, our affiliates, and our and our affiliates’ respective employees, representatives, agents, vendors and licensors (collectively, the “Indemnified Persons”) the amount of any loss, damage, fine, penalty, liability, cost or expense (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) incurred by us or any of the Indemnified Persons arising in any way out of or in connection with your use of the Service or the App, excluding any Losses to the extent attributable to our breach of these Terms or violation of law or, in the case of Losses incurred by any Indemnified Person, that Indemnified Person’s violation of law. 

SECTION 15
Amendments to these Terms

We may change these Terms at any time by posting a new version of these Terms.  We will make reasonable efforts to make you aware of any changes to these Terms.  Any use of the Services or the App after any such change will be subject to the version of the Terms in effect at the time of such use.

SECTION 16
Links to Other Web Sites

The Service may contain links to third-party web sites or services that are not owned or controlled by us.  No such link should be construed as an endorsement of any type.

 

You acknowledge and understand that we have no control over, and assume no responsibility for, the services, goods or content provided by or made available at, or the privacy policies, terms of service or practices of, any third party web sites or services. Accordingly, you access, use or acquire any such services, goods, content or site at your sole risk.  We strongly advise you to read the terms of use, terms and conditions and privacy policies of any third-party web sites or services that you visit.

SECTION 17
Informal Dispute Resolution

We want to address any concerns that you may have without the need for a formal dispute resolution process. Before commencing arbitration against us, you agree to try to resolve the Dispute (as defined below) informally by contacting us in writing at 1435 Koll Circle, Suite 105, San Jose, CA 95112, or via e-mail at support@redkangaroo.me, to notify us of the actual or potential Dispute.  Similarly, we will undertake reasonable efforts to contact you to notify you of any actual or potential dispute to resolve any claim we may possess informally before taking any formal action. The party that provides the notice of the actual or potential Dispute (the “Notifying Party”) will include in that notice (a “Notice of Dispute”) your name (to the extent known), the Notifying Party’s contact information for any communications relating to such Dispute (including for the Notifying Party’s legal counsel if it is represented by counsel in connection with such Dispute), and sufficient details regarding such Dispute to enable the other party (the “Notified Party”) to understand the basis of and evaluate the concerns raised.  If the Notified Party responds within ten (10) business days after receiving the Notice of Dispute that it is ready and willing to engage in good faith discussions in an effort to resolve the Dispute informally, then each party shall promptly participate in such discussions in good faith.

SECTION 18
Arbitration

Please read this provision very carefully. 

 

This agreement to arbitrate applies to you only if your Country of Residence is the United States.  “Country of Residence” for purposes of this agreement to arbitrate means the country in which you hold citizenship or legal permanent residence; provided that if you have more than one country of citizenship or legal permanent residence, it shall be the country in which you hold citizenship or legal permanent residence with which you most closely are associated by permanent or most frequent residence.

 

You and we agree that any and all past, present and future disputes, controversies, claims, or causes of action arising out of or relating to the Services, the App, any Brand, any Brand Coins, any redemption of any Brand Coins, any Perks, or any products that you obtain from any Brand, or arising out of or relating to these Terms, our Privacy Policy, your RK Account, your account with any Brand or any Brand-Specific Terms, and any other controversies or disputes between you and us (including disputes regarding the effectiveness, scope, validity or enforceability of this agreement to arbitrate) (collectively, “Dispute(s)”), shall be determined by arbitration, unless (A) you opt out as provided below or (B) your Dispute is subject to an exception to this agreement to arbitrate set forth below.  You and we further agree that any arbitration pursuant to this section shall not proceed as a class, group or representative action.  The award of the arbitrator may be entered in any court having jurisdiction.

 

If notwithstanding the Notifying Party’s compliance with all of its obligations above relating to the informal resolution of Disputes, a Dispute is not resolved within 30 days after the Notice of Dispute is sent (or if the Notified Party fails to respond to the Notice of Dispute within ten (10) business days), the Notifying Party may initiate an arbitration proceeding as described below.  If either party purports to initiate arbitration without first providing a Notice of Dispute and otherwise complying with all of its obligations under the preceding paragraph, then, notwithstanding any other provision of these Terms, the arbitrator(s) will promptly dismiss the claim with prejudice and will award the other party all of its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such Dispute.

 

Unless you opt out of this agreement to arbitrate as provided below, you and we each agree to resolve any Disputes that are not resolved informally as described above through final and binding arbitration as discussed herein, subject to the exceptions set forth below.

 

If you do not wish to be subject to this agreement to arbitrate, you may opt out of this arbitration provision by sending a written notice to us at 1435 Koll Circle, Suite 105, San Jose, CA 95112 or via e-mail at support@redkangaroo.me, within thirty (30) days of the first time you accept these Terms (or any prior version of these Terms) or, if earlier, your first use the Service or the App. You must date the notice and include your first and last name, address, and a clear statement that you do not wish to resolve disputes with us through arbitration. If no notice is submitted in the manner described above by the 30-day deadline, you will have irrevocably waived your right to litigate any Dispute except to the extent of the exceptions set forth below. By opting out of the agreement to arbitrate, you will not be precluded from using the App or any Services, but you and we will not be permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.

 

You and we agree that the American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes in effect at the time arbitration is sought (“AAA Rules”). Those rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.) Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available in an individual lawsuit, other than remedies that you effectively waived pursuant to these Terms.  Notwithstanding any language to the contrary in this paragraph, if a party seeks injunctive relief that would significantly impact other of our Users, as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. In that event, each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this section shall make that determination.  If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as may be and to the extent otherwise required by law, the arbitration proceeding and any award shall be confidential.

 

You and we further agree that the arbitration will be held in the English language in Santa Clara county, California, or, if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. If we elect arbitration, we shall pay all of the AAA filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the AAA Rules, or in accordance with countervailing law if contrary to the AAA Rules. However, if the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator(s) finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the AAA Rules. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided herein or required by law.  This agreement to arbitrate shall be construed under and be subject to the Federal Arbitration Act (U.S. Code Article 9), notwithstanding any other choice of law set out in these Terms. 

 

You and we agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor we may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Dispute against us will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.

 

To the maximum extent permitted by applicable law, neither you nor we shall be entitled to consolidate, join or coordinate disputes by or against other individuals or entities with any Disputes, or to arbitrate or litigate any Dispute in a representative capacity, including as a representative member of a class or in a private attorney general capacity. In connection with any Dispute, any and all such rights are hereby expressly and unconditionally waived. Without limiting the foregoing, any challenge to the validity of this paragraph or otherwise relating to the prohibition of Collective Arbitration shall be determined exclusively by the arbitrator.  

 

Notwithstanding the agreement between you and us to arbitrate Disputes, you and we each may assert claims, if they qualify, through the small claims process in any courts having jurisdiction.  Further, except as otherwise required by applicable law, in the event that the agreement to arbitrate is found not to apply to you or your Dispute, you and we agree that any judicial proceeding may only be brought as provided in the paragraph below entitled Governing Law and Venue.

 

This agreement to arbitrate shall survive the termination or expiration of these Terms. With the exception of the provisions of this agreement to arbitrate that prohibit Collective Arbitration, if a court decides that any part of this agreement to arbitrate is invalid or unenforceable, then the remaining portions of this agreement to arbitrate shall nevertheless remain valid and in force. If a court finds the prohibition of Collective Arbitration to be invalid or unenforceable, then the entirety of this agreement to arbitrate shall be deemed void (but no provisions of these Terms not specifically related to arbitration shall be void), and any remaining Dispute must be litigated in court pursuant to the paragraph below entitled Governing Law and Venue. 

SECTION 19
Governing Law and Venue

These Terms will  be construed and enforced in accordance with the laws of the state of California applicable to contracts entered into and performed in California by California residents; provided that, as stated above, the provisions of these Terms related to arbitration shall be governed by and construed in accordance with the Federal Arbitration Act (U.S. Code Title 9).  Without limiting our mutual obligation to arbitrate Disputes, any Dispute between you and us relating to these Terms, the Service or your RK Account (including, but not limited to, any claims relating to the App or to any Brand, Brand Coin, the redemption of any Brand Coin, Perk, any product you obtain from any Brand, our Privacy Policy, or any Brand-Specific Terms), whether arising under contract, tort or any other theory of liability, will be brought in a state or federal court located in the county of Santa Clara, state of California, except that either party may bring any action to enforce its intellectual property rights or confirm an arbitral award in any court or administrative agency having jurisdiction.

SECTION 20
Flow Through Apple Terms

If you have downloaded our Services or the App from the Apple, Inc. (“Apple”), App Store or if you are using the Services or App on an iOS device, you acknowledge that you have read, understood and agree to the following notice regarding Apple. These Terms are between you and RedKangaroo only, not with Apple, and Apple is not responsible for the Services or App or any content thereof. Apple has no obligation whatever to furnish any maintenance and support services with respect to the Services or the App. In the event of any failure of the Services or the App to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation whatever with respect to the Services or the App. Apple is not responsible for addressing any claims by you or any third party relating to the Services or the App or your possession or use of the Services or the App, including: (1) product liability claims; (2) any claim that the Services or App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Services or the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms, when using the Services or the App. Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and 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 a third-party beneficiary of these Terms. You hereby represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

SECTION 21
Important Note to New Jersey Consumers

If you are a consumer residing in New Jersey, the following provisions of these Terms do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) the disclaimer of liability for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code and New Jersey Consumer Fraud Act); (b) the limitations of liability for lost profits or loss or misuse of any data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) the requirement that you indemnify us and the other indemnified parties (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) the governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).

SECTION 22
Notice to California Residents 

If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service. For clarity, you remain obligated to arbitrate your Dispute in accordance with these Terms if your complaint is not resolved.

SECTION 23
Miscellaneous

These Terms constitute the entire agreement between you and us with respect to the subject matter of these Terms.  Accordingly, these Terms supersede any prior terms relating to that subject matter.

 

Except as provided above with respect to the provisions of these Terms prohibiting Collective Arbitration, if any provision of these Terms is held to be invalid, ineffective or unenforceable by a court of competent jurisdiction or arbitrator, the remaining provisions of these Terms will remain valid, effective and enforceable.

 

If you breach these Terms and we choose not to immediately respond, or choose not to respond at all, we will still be entitled to all rights and remedies at any later date, or in any other situation, where you breach these Terms. No failure to act or delay in acting by us will be deemed to be a waiver of any type.

 

You may not assign any of your rights or delegate any of your duties or obligations under these Terms, and any purported assignment will be null and void and of no force or effect.

 

The Service is targeted at and intended for Users residing in the United States. Given the global nature of the Internet, however, the Service may be accessed by visitors residing outside of the United States. We make no representations or warranties that the Service is appropriate or lawful in countries outside of the United States. Visitors who choose to use the Services from outside of the United States do so at their own initiative and are solely responsible for compliance with any and all local laws and regulations that may apply to such use.

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