Terms and Conditions for using Ominto Online Services
Effective Date: April 29, 2016.
IMPORTANT! PLEASE READ THESE TERMS AND CONDITIONS OF USE (“TERMS”) CAREFULLY BEFORE USING THE SITE, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS, INCLUDING, BUT NOT LIMITED TO, WAIVERS OF RIGHTS, LIMITATION OF LIABILITY, ARBITRATION OF DISPUTES AND YOUR INDEMNITY TO US. BY ACCESSING OR USING THIS SITE, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THIS SITE.
These “Terms” govern your use of the Ominto website and all related services and features such as widgets, applications, browser extensions, content and downloads that are available through this website or that post these Terms (the “Shopping Site” or “Site”) regardless of how you access or use it. Ominto Limited, 22 Northumberland Road, Ballsbridge, Dublin D04ED73, Ireland with registered number 229339 at the Companies Registration Office of Ireland or its subsidiaries and/or affiliates (collectively, “Ominto”, “us” or “we”) operate this Site. The Site may be located at www.ominto.com or may be hosted under any other domain Ominto or its partner(s) elect to operate the Site at.
You are obligated to gain a complete understanding of the Terms and the functions and operation of the Site. The Ominto FAQ's, as well as the ‘How Does Cash Back Work’ section, can be an aid in this purpose. In the event any FAQ comments, Site content, or any statements by our Customer Service Team conflict with these Terms, these Terms will govern.
§ 1 Validity, Compliancy and Changes to Terms
(1) These Terms serve to regulate the contractual and operational relationship between you and Ominto. They apply to every user, whether they are natural persons or legal entities. By using the Site, you declare your consent with these Terms. In addition, you will be requested to expressly accept the currently valid Terms at various points of the Site. Regardless of whether or not you are so requested or do not explicitly agree, if you access and use the Site other than to read these Terms, you are bound by them.
(2) Ominto reserves the right to change these Terms prospectively, at any time and without any reason, (“Updated Terms”). You may be notified of Updated Terms by email or otherwise; however, you agree that we may notify you of the Updated Terms by simply posting them on the Site, and that your use of the Site after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms each time before using the Site. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Site from that point forward.
§ 2 Eligibility, Account Registration
(1) Those eligible to use the Site, earn Cash Back (defined in Section 5 below) and purchase paid memberships offered by us are natural persons the age of majority (i.e., old enough to enter a binding contract) in the jurisdiction in which they are located, and in no event younger than 18 years of age and legal entities duly incorporated and in good standing in the jurisdiction in which they are located.
(2) In order to use this Site, you are required to register a user account. Basic membership is free. You are only permitted to register once and must provide your accurate name, residential address and other requested information. All submitted information must be true. You are obliged to keep passwords confidential and not share your account with others. Ominto will neither request your passwords by email nor by telephone. You are liable for any third-party use of your user account and your password, so keep them secure.
§ 3 Expulsion of Users, Change of Offers
(1) Ominto has the discretion to expel a user, or suspend or terminate a user’s account or licenses in its business judgment, including, without limitation, if the user has violated legal regulations, third-party rights, these Terms; or has violated, endangered, or infringed upon a legitimate interest of Ominto, particularly in case of outstanding payments or other matters for the protection of other users.
(2) Ominto is entitled to change (in particular to reduce or suspend) its services or offerings, including, but not limited to, changing its fee schedule, product and service pricing and Cash Back percentages, in its sole discretion at any time and without prior notice. Ominto may also at its absolute discretion discontinue the Site or any aspect of it at any time.
§ 4 Use of Site Generally
If you comply with these Terms, we grant you a limited, personal, non-exclusive, revocable, non-assignable and non-transferable license to download, copy, display, view and use the Materials (defined in Section 17 below) available on the Site for the purpose of viewing the Site and using our services so long as you do not do any of the following:
- remove, alter, or obfuscate any trademark, copyright and other proprietary notices contained in the Materials;
- without the prior written consent of Ominto, make derivative works of, or commercially distribute or otherwise exploit the Site or any of its Materials, or use the Site or any of its Materials in a manner that inaccurately suggests an association between you and us or our licensors;
- reverse engineer, decompile, disassemble, reverse assemble, or modify any Site source or object code or any software or other products, services, or processes accessible through any portion of the Site, or attempt to discover any source code that the Site uses to generate its content or any software or other products or processes accessible through the Site;
- insert or attach any code, device, technology or product to the Site or Materials including, without limitation, those that monitor the Site or its users, or negatively affect any user’s experience of the Site or otherwise negatively affect the Site, its users or us;
- use any meta tags or any other “hidden text” utilizing any Ominto trademarks or trade names;
- engage in any activities through or in connection with the Site that seek to attempt to, or do, harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to us;
- engage in any activity that interferes with a user’s access to the Site or the proper operation of the Site, or otherwise causes harm to the Site, Ominto, or other users of the Site;
- interfere with or circumvent any security feature of the Site or any feature that restricts or enforces limitations on use of or access to the Site or the Materials;
- monitor, gather, copy, or distribute such Materials (except as may be a result of standard search engine or activity or use of a standard Internet browser) on the Site by using any robot, rover, “bot,” spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind;
- frame or utilize framing techniques to enclose any such Materials (including any images, text, or page layout);
- upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment; or
- otherwise use or exploit the Site or any Materials in any way for any purpose except as specifically permitted by these Terms without the prior written consent of an officer of Ominto.
§ 5 Cash Back Shopping
(1) Ominto has partnered with various third party online stores (“Stores”; each a “Store”) and provides this Cash Back Shopping Site which allows you to earn back a portion of your online shopping spending at these Stores if conducted through the Site. Ominto is not the supplier of the goods and services listed in the different Stores on the Shopping Site. Ominto provides a link to the Store but you will conclude a purchase contract directly with the Store (see discussion of third-party links below). The identity of the Store as well as its terms and conditions are available on the website of the selected Store. A product purchased using the Site is covered by the applicable Store's return, exchange and shipping policies.
(2) Ominto does not guarantee the accuracy of details listed by third-party suppliers on the Shopping Site, in particular for product descriptions, availability and prices, as these are listed completely by the third-party suppliers. Should you identify an error, please notify our Customer Service Team. After investigating the complaint, Ominto will ask the respective Store to correct the error and – as the case may be – we will consider suspending the Store. In the event you find a Cash Back percentage that is unreasonably high or difficult to justify (for example 50%, 100% or 150%) Ominto shall not be obligated to honor that Cash Back percentage. The unreasonably high Cash Back amount will replaced with the correct Cash Back amount and applied to your Ominto account. If you notice an unreasonably high Cash Back on our site, please contact customer service immediately.
(3) All registered users of the Ominto Shopping Site earn Cash Back on their Qualified Purchases (defined hereafter) at participating Stores. If you shop through the Ominto Shopping Site, whether you are a free or paid member (see Section 6) we will credit a certain percentage of the purchase amount (“Cash Back”) to your Ominto account. Please note that Cash Back amounts are calculated based on the net purchase amount. The net purchase amount excludes (amongst others) taxes, fees, shipping, gift-wrapping, discounts or credits, returns or cancellations and extended warranties. Ominto does not guarantee the Cash Back feature; Cash Back is only earned on Qualified Purchases. A “Qualified Purchase” is a purchase that a user has made at a Store after: (a) connecting to the Store via a designated link from the Site; or (b) opening the Mobile App and connecting to the Store via a designated from the App; or (c) clicking on Ominto’s browser extension indicator that appears when visiting a participating Store; or (d) clicking on a link in an e-mail from Ominto or its partners that goes directly to a Store; or (e) any time the Ominto browser extension redirects a user back to a Store and that is in all cases (a) to (e) above subsequently properly reported to Ominto by the Store and in all cases completing the purchase in that window without clicking out or opening any additional window(s). If a user is not properly logged in to the Shopping Site, Cash Back may be forfeited.
(4) With regard to Cash Back, please note the following restrictions:
- Cash Back on travel services will possibly not be granted until the travel is completed.
- Cash Back on subscription-based products or purchases that are bundled to subscription-based products may only be granted in the first month of the subscription and only on the core component of the bundle. Setup fees, costs for included equipment and other additional costs may not be subject to a Cash Back. The purchase of stamps is not subject to Cash Back.
- Cash Back will not be calculated on proportionately included postage and/ or shipping costs and other fees respectively (e.g. handling fees)
- The assessment base for the Cash Back is net, without VAT, sales tax, GST etc.
- Cash Back may not be granted for the purchase and/or redemption of gift cards
- Ominto reserves the right to deny Cash Back if it was received in an improper or fraudulent way or in circumvention of our Terms. Please note that you must be logged in for the technical implementation of the Cash Back to work properly. Despite the use of developed technology, it is not always possible to guarantee a loss-free allocation of all purchases to your account. Should you miss any purchases, please report them by using the tab “Missing Purchase” for further investigation from the Store
- Certain Stores exclude a limited number of products and purchases from Cash Back or have other conditions or restrictions – e.g. bulk orders
- Additional restrictions not mentioned here may apply
(5) The user must check if all purchases are listed in his/her account and report all inquiries two weeks following the date of purchase at the soonest. The user is obligated to produce documentation or information in order to verify (i) the purchase, (ii) eligibility and/or (iii) compliance including but not limited the actual date of purchase, proof of purchase via Store-generated receipts, invoice, ID copy etc. and present them upon request. All claims must be made within ninety (90) days from the date of purchase.
(6) Ominto pays your available Cash Back and other rewards upon request. Depending on your location, Ominto may offer various payment methods and currencies. You do not have the right to use a particular payment method or currency and available methods may change without notice. The minimum amount of Cash Back eligible to be withdrawn is equivalent to $25. You will be charged the transaction fee. The amount of time it takes to process a payment as well as the transaction fee varies by payment option. Please allow for a week or more after requesting a Cash Back withdrawal.
§ 6 Paid Memberships
(2) The VIP Lounge offers the full range of Ominto online services, including an additional 2% monthly Cash Back (“Extra Cash Back”) on all purchases on the Ominto Shopping Site (calculation base: net purchase amount of merchant approved purchases, but excluding all purchases made in or through the VIP Lounge as well as flights, vouchers, gift cards or other cash equivalents. Additional Cash Back will be granted (i) on percentage-based Cash Back offers outside the VIP Lounge only, (ii) retrospectively on all Qualified Purchases that have been made with participating Stores through the Ominto Shopping Site and (iii) are subject to the user’s consistent VIP Lounge membership within this period of time. In addition, the user has access to a variety of exclusive VIP Lounge only offers.
(3) The VIP Lounge is for personal use only. Commercial use is prohibited and Ominto may restrict access or cancel your VIP Lounge membership at any time at its own discretion in case of any misuse.
§ 7 Monthly Loyalty Reward
(1) To qualify for the monthly loyalty reward (“bonus”), each registered user must earn a minimum of $15 in Cash Back during one (1) calendar month in order to receive the $10 monthly bonus.
The bonus is not applicable on (i) Additional Cash Back as per § 6 (2) above, and (ii) Cash Back from missing purchases.
(2) The bonus will be calculated based on accrued Basic and Premier Cash Back only and after the 15th day of the month following the calendar monthin which a registered user has made transactions over our site. The bonus will then be marked as “Pending Cash Back” in your account.
(3) The bonus will be credited to your account sixty (60) days after your pending Cash Back has been confirmed. Once the bonus is marked as “Available Cash Back”, the bonus payout will be issued at your request.
(4) The bonus is not paid out on chargebacks, reversals, returns, and/or other issues that decrease the minimum qualifying amount of $15 Cash Back. We reserve the right to reclaim or make balance adjustments accordingly.
(5) The bonus is personal and non-transferable, and cannot be exchanged, sold, returned or combined with other rewards.
(6) This monthly loyalty reward program may be changed, altered or discontinued by us without prior notice at any time at our own discretion with or without any substitute or replacement.
§ 8 Order Acceptance, Payments
(1) If you purchase a VIP Lounge membership an agreement occurs only through your offer and an order acceptance by Ominto. You submit your offer online and Ominto declares its acceptance in an order acceptance via email to you or by delivering the service or product. An order confirmation is not an order acceptance declaration; it solely confirms that your order has been received.
(2) Depending on your location, Ominto may offer various payment methods. You do not have the right to use a particular payment method and available methods may change without notice. Depending on several business factors, we may decide to process your transactions/payments with one of our banking partners located outside of your country which may result in international transaction fees or other fees which the user shall be subject to and responsible to pay.
(3) We reserve the right not to provide VIP Lounge access until we have received the purchase price (including associated costs, i.e. taxes). Furthermore, your account shall be in good standing, meaning you have no outstanding balance with us. All incoming funds will first be credited towards the outstanding balance from prior purchases and, only thereafter, towards the purchase of new products/ services.
§ 9 Cancellation, Termination, Inactive Accounts
(1) If you are a consumer, you may cancel your paid membership, without reasons, within seven (7) days after purchase in writing. The time limit commences when receiving the product or with purchase of the license or service, respectively. Cancellation requests must be sent to:
Attention: Customer Service Team
1515 S. Federal Hwy, Suite 307,
Boca Raton, FL 33432
or may be submitted online by using our contact form at https://support.ominto.com
(2) In the case of an effective cancellation, we will reimburse payments for products, services and licenses, provided that they have not yet been used. Your right of withdrawal against the purchase of services or licenses is voided once they have been used proportionately or completely.
(3) You may terminate your free membership at any time. If you have not completed a Qualifying Purchase for more than twelve (12) consecutive months, your account becomes inactive (“Inactive Account”). Ominto reserves the right to debit your Cash Back balance of your Inactive Account two dollars ($2) per month to recover the cost of account maintenance until (i) you reactivate your account by completing a Qualifying Purchase, or (ii) your account balance is zero. If the balance in your Inactive Account is or becomes zero, Ominto may close the account permanently and cease to maintain your account records and Site access. The inactive account maintenance charge will not cause your account balance to become negative and will not cause you to owe money to Ominto.
§ 10 User Generated Content
(1) We allow Site users to post comments, reviews or other content in certain areas of the Site as well as on our social media sites. Any content posted on our Site or on our social media sites (i.e. Facebook), including any files attached to posts, expresses only the views of the author of the message and does not necessarily reflect the views of Ominto or any person or entity associated with it. You agree that you will not use our Site to post any material, links to any material or files that are or contain material that is knowingly false and/or defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person's privacy or otherwise violate any applicable law, rules, regulations or Ominto policies. Ominto, nor any person or entity associated with it, will assume any responsibility for the contents, accuracy, completeness or validity of any information posted on or about our Site
(2) You further agree that: (a) you will not post or otherwise transmit any material that is copyrighted or subject to a third party's intellectual property rights without the express permission of the holder of such rights, unless such rights are owned by you; (b) you will not collect or store personal data about other users; (c) you will not use the Site for any commercial purpose not expressly approved by the Ominto in writing; and (d) you will not upload, post, email, or otherwise transmit any advertising or promotional materials or any other form of solicitation or unauthorized communication.
(3) You agree to indemnify and hold Ominto, its parents, subsidiaries, officers, employees, and website contractors and each of their officers, employees and agents harmless from any claims, damages and expenses, including reasonable attorneys' fees and costs, related to your violation of this section 9, or any violations thereof by your dependents or which arises from the use of content you submitted, posted, or otherwise provided to Ominto or this Site. Ominto reserves the right in its absolute discretion to terminate or suspend the accounts of users who infringe this section 9.
(4) You hereby grant Ominto a perpetual, world-wide, royalty-free license to distribute, copy, adapt, reproduce, transmit, create derivate works and otherwise use content and information you post on the Site for any purpose and in any media now known or hereinafter developed. You expressly agree that the Ominto is free to use any ideas, concepts, know-how, or techniques contained in any posting or communication you send to us without compensation and for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products and services using such information. You represent and warrant that you own the content submitted, displayed, published or posted by you on the Site and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any content you submit, and our use thereof does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity. You further agree that we may, but are not required to, moderate or review any content posted by you to the Site, and may edit or remove such content if we believe it violates these terms and conditions, or is otherwise inappropriate or objectionable. You also acknowledge that any information that you post to our Site may be viewable by other users, as well as visitors to our Site. Ominto is not responsible for the privacy of any information that you choose to post to our Site, any information that you disclose becomes public information.
§ 11 Links
(1) The Site may contain links to or from third-party websites (“Linked Websites”), including websites operated by third parties who may have business relationships with us. We may have no control over the content, operations, policies, terms, or other elements of Linked Websites, and we do not assume any obligation to review any Linked Websites. We do not endorse, approve, or sponsor any Linked Websites, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, we are not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Linked Websites. Finally, we will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these Linked Websites. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use, and rules issued by the operator of the Linked Websites. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Site (including on or via Linked Websites) are solely between you and the third party and we disclaim all liability in connection therewith.
(2) We grant you the revocable permission to link to the Site; provided, however, that your web site, or any third-party websites that link to the Site: (a) must not imply that we or the Site are endorsing or sponsoring it or its products or services, unless an officer of Ominto has given prior written consent; (b) must not present false information about, or disparage, tarnish, or otherwise, in our sole opinion, harm Ominto or its products or services; (c) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in our sole opinion); and (d) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to the Site, you agree that you do and will continue to comply with the above linking requirements and all applicable laws. Notwithstanding anything to the contrary contained in these Terms, we reserve the right to prohibit linking to the Site for any reason, in our sole and absolute discretion, even if the linking complies with the requirements described above.
§ 12 System Failures
(1) In case of a system failure or interference, or if we suspect any manipulation of our systems, our services may be (temporarily) interrupted and may continue after the removal of the error. We will exercise our discretion with respect to these matters.
(2) In all cases of system failure or interference, a claim to reimbursement does not apply. Ominto does not guarantee the continuous operation of the Site nor is Ominto responsible for damage resulting from the use (or lack thereof) of Ominto services by a user or third party. Likewise, Ominto is not responsible for damage resulting from technical defects or other issues.
(3) Ominto may, at its own discretion, cancel a transaction that has been affected by a system failure, or is otherwise, in its sole judgment, suspicious or compromised, and may finally reject such a transaction. Our determinations and judgments in connection with the operation of Site activities will be final and binding.
(4) You are solely responsible for your device and the services that connect your device to the Site and understand that not all devices and services may be compatible with our Site at some or all times.
§ 13 Legal Succession
Ominto may assign its rights and obligations under these Terms, in whole or in part, to any party at any time without any notice. These Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Ominto.
§ 14 Liability Limitation and Limitation of Warranties
THE SITE, INCLUDING, WITHOUT LIMITATION, THE MATERIALS ON THE SITE, ARE PROVIDED ON AN “AS-IS”, “AS-AVAILABLE” AND “WITH-ALL-FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, OMINTO AND EACH OF ITS EMPLOYEES, PARTNERS, OFFICERS, MEMBERS, AGENTS, VENDORS, AND CONTRACTORS (COLLECTIVELY, THE “OMINTO PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITE; (B) THE MATERIALS ON OR PROVIDED THROUGH THE SITE; (C) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SITE; (D) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT THE SITE; AND/OR (E) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO OR FROM THE OMINTO PARTIES OR VIA THE SITE. IN ADDITION, THE OMINTO PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF STOREABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE OMINTO PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITE OR THE FUNCTIONS CONTAINED THEREIN WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES OR OTHER MALWARE. THE OMINTO PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITE IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. THE OMINTO PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE OMINTO PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THESE TERMS.
UNDER NO CIRCUMSTANCES WILL OMINTO PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (A) THE SITES; (B) THE MATERIALS; (C) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF, THE SITES; (D) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE OMINTO PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITES; (E) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (F) ANY ERRORS OR OMISSIONS IN THE SITES’ TECHNICAL OPERATION; OR (G) ANY DAMAGE TO ANY USER’S COMPUTER, HARDWARE, COMPUTER SOFTWARE, WIRELESS DEVICES, CELLULAR PHONE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE OMINTO PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITES). IN NO EVENT WILL THE OMINTO PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE OMINTO PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED TEN EUROS.
YOUR ACCESS TO AND USE OF THE SITES IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE SITES OR ANY OF THE SITES’ MATERIALS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SITES OR THE SITES’ MATERIALS.
BY ACCESSING THE SITES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HEREBY EXPRESSLY WAIVE, THE BENEFITS OF ANY LAW LIMITING THE WAIVER OF UNKNOWN CLAIMS.
§ 15 Legal Use of Site
BY ACCESSING OR USING THE SITE, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITE.
§ 16 Interference in Data Processing Activities
(1) You, either yourself, indirectly through third parties, or with the assistance of programs are prohibited from interfering in, influencing, disrupting, copying without permission, disseminating or otherwise manipulating data processing activities underlying the Site. This is also applicable with regard to the Site layout. You are not permitted to use automated generation of user accounts or otherwise try to game or manipulate our Site or services – such use may, in our discretion, result in expulsion.
(2) You are also prohibited from conducting or supporting any criminal and illegal activity in connection with the use of the Site including, but not limited to (i) violating intellectual property rights (e.g. brands, patents, trademarks) of a third party, (ii) sending out unsolicited communication (SPAM), (iii) developing and distributing computer viruses or (iv) violating third party privacy.
§ 17 Written Form, Applicable Law and Legal Jurisdiction
Notices and complaints related to these Terms and the Site must be in writing and sent to the address indicated in Section 8 of these Terms. Any modification or amendments to these Terms must be in writing signed by an officer of Ominto. Unless prohibited by applicable law, the law of Ireland, to the exclusion of the UN Convention on Contracts for the International Sale of Goods, shall be applicable to these Terms and all disputes related to these Terms or the Site (without regard to its choice of law provisions) and, subject to Section 18 of these Terms, the place of jurisdiction and venue is agreed to be Dublin, Ireland.
§ 18 Intellectual Property
(1) The brand OMINTO and all other brands, trademarks, logos and otherwise protected content of every online Store that can be reached via our Shopping Site, and of our licensors and advertisers, are the intellectual property of the respective owner and are protected by the United States and international law. They may not be used in any other way except for the named purpose, i.e., in particular viewing the page and using the offered services. Without our prior written permission, you agree not to display or use, in any manner, any such marks and all goodwill associated with any use by you thereof will inure exclusively to Ominto or their respective owners.
(2) The Site (including past, present and future versions) and all materials that are included in or are otherwise a part of the Site, including, without limitation: graphics, layout, text, content, instructions, images, audio, videos, designs, advertising copy, trademarks, logos, domain names, trade names, service marks and trade identities; any and all copyrightable material (including source and object code); the “look and feel” of the Site; the compilation, assembly and arrangement of the materials of the Site; and all other materials related to the Site (collectively, the “Materials”) are owned, controlled or licensed by Ominto and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations and international treaties. Except as expressly set forth in these Terms or otherwise expressly granted to you in writing by an officer of Ominto, no rights (either by implication, estoppel or otherwise) are granted to you. Any and all rights to use any Materials not expressly granted to you under this Terms are hereby reserved for Ominto.
(3) The entire contents of the Site (including the Materials) are copyrighted under the copyright laws and/or similar laws of various jurisdictions. Without limitation, Ominto owns a copyright in the selection, coordination, arrangement and enhancement of the Materials on the Site. Third-party content providers own the copyright in content that is original to them. The Materials may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without the express prior written permission of an officer of Ominto, unless and except as is expressly provided in these Terms. Any unauthorized use of the Materials is prohibited. You agree to abide by any and all additional trademark and copyright notices, information or restrictions contained in any part of the Site
§ 19 Binding Arbitration, Class Action Waiver
THIS SECTION 18 IS A WRITTEN AGREEMENT TO ARBITRATE. YOU AND OMINTO AGREE THAT WE INTEND THAT THIS SECTION 18 SATISFIES THE “WRITING” REQUIREMENT OF THE U.S. FEDERAL ARBITRATION ACT AND ANY OTHER LAWS REGARDING ARBITRATION AGREEMENTS.
(1) Agreement to Arbitrate. Unless prohibited by applicable law, any controversy, allegation, or claim arising out of or related to the Site or these Terms, including, without limitation, products and services offered on the Site and merchandise orders made through the Site (“Dispute”), will be resolved solely by binding arbitration in accordance with the then-current Rules of Arbitration of the International Chamber of Commerce (“ICC”), subject to these Terms. Ominto, in its sole discretion, will elect the site of arbitration, which will either be (i) located within one hundred miles of your residence or (ii) hosted online, with the arbitration conducted over the Internet. The arbitrator will apply law selected in Section 16 of these Terms and the other provisions of these Terms, will determine any Dispute according to the governing law and facts based upon the record and no other basis, and will issue a reasoned award. You accept the arbitrator’s (or arbitration panel’s) decision as binding. You may obtain information about the International Chamber of Commerce and its current Rules of Arbitration at http://www.iccwbo.org/ICCDRSRules/
(2) No Class-Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party.
(3) Commencing Arbitration. To commence arbitration you are required to send your complaint to the address provided at Section 8 of these Terms. The complaint must clearly state that you are requesting arbitration. The arbitration will be conducted by the ICC under its rules and regulations and pursuant to these Terms.
(4) Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT WITHIN 1 YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
(5) Injunctive Relief. The foregoing provisions of this Section 18 will not apply to any legal action taken by Ominto to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site and/or Ominto’s intellectual-property rights, Ominto’s operations, and/or Ominto’s products or services.
§ 20 Indemnification
You agree to defend (if requested by us), indemnify and hold harmless the Ominto Parties from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, settlements and expenses, including attorneys’ fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) your use of the Site or activities in connection with the Site; (b) your breach or anticipatory breach of these Terms; (c) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (c) information or material transmitted through your computer or other device used to access the Site, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or defames any person; (d) any misrepresentation made by you; or (e) the Ominto Parties’ use of your information. You will cooperate as fully required by the Ominto Parties in the defense of any claim. Notwithstanding the foregoing, the Ominto Parties retain the exclusive right to settle compromise and pay any and all claims, demands, proceedings, suits, actions or causes of action which are brought against them herein under the terms and provisions of this Section. The Ominto Parties reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of an officer of the Ominto Parties.
§ 21 Miscellaneous
These Terms cannot be changed or terminated orally and except as modified prospectively by Updated Terms. All provisions of these Terms, other than licenses to you and the continued ability to use this Site, shall survive the expiration or termination of your account or use of the Site. Any failure of Ominto to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. No waiver by Ominto of any provision of these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of Ominto. If any provision of these Terms is held to be illegal, invalid, or unenforceable, then the provision will be deemed severable and will not affect the validity and enforceability of any remaining provisions. The section titles are inserted only as a matter of convenience and have no legal or contractual effect. You agree that these Terms will not be construed against us by virtue of having drafted them. Any violation of these Terms may be referred to law enforcement authorities. These Terms constitute the entire understanding and agreement between you and us and supersede any and all prior or inconsistent understandings relating to the Site and your use of the Site and services provided by the Site.