These General User Terms (“General User Terms” or “User Terms”) are entered into and agreed to by InstaMart, a California based company, and its Affiliates (“InstaMart” “We” or “Us”), and all Users (as further described below) of the InstaMart Sites and Services (“Sites and Services”) as a condition of accessing and using those Sites and Services. Among other things, these General User Terms govern use of the Sites and participation in the Reviews Program.
Users to whom these General User Terms apply may include, without limitation: potential software buyers, software vendors, software reviewers, industry insiders and media relations professionals (each a “User” or “You”).
BY ACCESSING AND USING THE SITES AND SERVICES, YOU ATTEST THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE LEGALLY BOUND BY THESE GENERAL USER TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU SHOULD NOT ACCESS OR USE THE SITES OR SERVICES.
In consideration of the premises set forth above, You the User hereby agree as follows:
For a glossary of definitions used in these General User Terms, please click here.
The Sites and Services are intended solely for Users who are 18 years of age or older. Any access to or use of the Sites or Services by anyone under 18 is expressly prohibited. By accessing or using the Sites or Services You represent and warrant that You are 18 years of age or older.
[To the extent our Sites and Services require a User Account]
For guidance on Vendor Accounts, please see our General Vendor Terms.
USE OF WEBSITE:
By accessing and using our Sites, You acknowledge that You are responsible for your actions and for all User Content you post. You represent and warrant, to the best of your knowledge:
- That You have all necessary right, power and authority to enter into these General User Terms and to fulfill your contractual obligations hereunder;
- That any and all information You post or provide, including, without limitation, as part of any registration or application or to gain access to the Sites or Services, is true, accurate and not misleading and that You will not allow any other person or entity to use your Account
- That the information and User Content you upload, post, e-mail, transmit, or otherwise make available to Us or on our Sites, including without limitation reviews, trademarks, logos, screenshots and videos is accurate and free of third party encumbrances;
- That You will, when posting User Content on our Sites, adhere to our Community Guidelines and bear all liability related to your submission of such User Content through our Sites and/or Services;
- That You will not post or otherwise provide User Content that is unlawful, tortious, malicious, defamatory, infringing, libelous, abusive, disparaging, pedophilic, pornographic, obscene, invasive of another’s privacy, promotes illegal activities/conduct or violates local, state, national or other applicable laws or regulations;
- That You will not post or otherwise provide User Content that You do not have the right to make available under any law or contractual or fiduciary relationship (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or information protected under nondisclosure agreements);
- That You will not post or otherwise provide User Content that contains a software virus or any other code files or programs with the ability to interrupt, destroy, compromise, or otherwise limit the functionality of any computer software or hardware or telecommunications equipment;
- That You will not forge headers or otherwise manipulate identifiers for the purpose of disguising the origin of any User Content posted on the Sites;
- That You will not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information of the Website or our Vendors without our express written consent;
- That You will not avoid, bypass, reverse engineer, interfere with, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by us to administer and protect our Sites and Services;
- That You will not use any automated means or form of data scraping or data extraction to access, query, download or otherwise collect our Content or related information from our Site (except as expressly permitted by Us) or otherwise without authorization use or upload our Content; or create new links, reposts, or referrals through the use of any engine, software, tool, agent, device or mechanism (including automated scripts, spiders, robots, crawlers and data mining tools);
- That You will not use or partner with any third party reviews-generating provider to submit reviews on our Site but rather will submit only those reviews that are written or uploaded by You in your individual capacity;
- That You will not duplicate, download, publish, modify or otherwise distribute our Content for any purpose other than for your own individual use;
- That You will not collect or “harvest” from our Sites the personal information (“Information”) of other Users without their consent for the purpose of transmitting unsolicited commercial mass mailings, “spamming” or any other unlawful purpose; and
- That You will not access our Sites and Services by any means other than through interfaces expressly authorized by us and these General User Terms.
At our discretion, We may, but are not obligated to, monitor and terminate User activity on our Sites, and/or edit or remove User Content, which violates or otherwise fails to comply with these General User Terms.
OUR REVIEWS PROGRAM:
How the Program Works:
Our Sites and Services are powered by online reviews submitted by verified users of software products, in either written or video format (“User Reviews”) We encourage those who desire to share their experience regarding a software product, service or vendor to submit User Reviews on our Site. You acknowledge and agree that We as the website operator are merely providing a platform for these User Reviews; and that all such User Reviews represent the opinions of the reviewers of those products, services or vendors and not our own opinions. From time to time, We may provide nominal incentives (such as gift cards) to encourage submission of honest reviews, regardless of whether the content of the review is positive or negative. We provide clear notice on our Sites when a reviewer has been offered a nominal incentive for submitting an honest review. We also provide a service to assist vendors in soliciting reviews from their customers for posting on our Site. We provide clear notice on our Sites when a review has been sourced in this manner. Users may opt to post their review anonymously, but must submit sufficient information for our Quality Assurance team to verify their identity. While a reviewer may choose not to share personal information with the public, their identity is always verified by our Quality Assurance team before We allow their review to be published.
Our Community Guidelines:
When participating in our Reviews Program, You (whether a software buyer, vendor or reviewer), acknowledge and agree to adhere to our Community Guidelines. Our Community Guidelines or CGs set forth the rules of play for users, reviewers and vendors. The CGs cover, without limitation, the QA process, the guidelines each review must meet as well as the processes for flagging reviews for investigation and applying penalties. The CGs also outline the protections We put in place to maintain high-quality, trusted reviews, as well as the respective rights of reviewers and vendors. As a neutral content platform, We will only remove reviews that we in our discretion determine do not comply with our Community Guidelines.
INTELLECTUAL PROPERTY RIGHTS:
Our Sites are comprised of Content created by Us, our Partners and our Users. This section sets out the ownership and usage rights for each type of Content.
Listed company names are the service marks and trademarks of their respective companies.
Our Sites and all intellectual property rights therein, including without limitation the vendor listings we create from publicly available or licensed Content, along with our Services and/or our domain names (collectively, “InstaMart IP”), constitute the property of InstaMart, its Affiliates and/or its authorized licensors, and are protected by U.S. and international copyright, trademark and other intellectual property laws.
We grant to User a worldwide, revocable, royalty-free, non-exclusive license to use, view and download the InstaMart IP for User’s personal use in accordance with these General User Terms, the Community Guidelines and applicable U.S. and international copyright laws.
Except to the extent otherwise expressly permitted under copyright law, User will not copy, reproduce, modify, use, distribute, display, create derivative works of or otherwise exploit the InstaMart IP without the express written consent of InstaMart or the applicable copyright owner.
User certifies that User owns or has secured all necessary intellectual property rights in the Content that User uploads, posts, includes in a video, e-mails, transmits or otherwise makes available to us or on our Sites, including without limitation User Reviews (collectively, “User IP”), and User further agrees to be liable for all such User IP.
By posting User IP (including without limitation, User Reviews) on our Sites or otherwise submitting User IP to Us, User grants to Us, our Affiliates and Partners a perpetual, worldwide, irrevocable, nonexclusive, royalty-free and fully sub-licensable right to use, reproduce, translate, modify, create derivative works of, publicly display, communicate and distribute (either electronically or via other media now known or hereafter devised) the User IP in the ordinary course of our business, with the exclusive right to enforce copyrights against anyone copying, republishing, distributing, editing, scraping or preparing derivative works without the consent of Us, our Affiliates, Partners and any sub-licensees.
All intellectual property rights not expressly granted hereunder are expressly reserved to us.
COPYRIGHT INFRINGEMENT CLAIMS:
We respect the intellectual property rights of others and will not tolerate infringing activity on our Sites.
If You are a copyright owner or agent, and You believe your rights under applicable Copyright laws are being infringed by Us or another person or entity using our Sites or Services, You may submit to our Designated Copyright Agent ([email protected]) a written notification pursuant to the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. § 512), which includes the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- Identification of the work or material being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
- Your contact information, including phone number and e-mail address at which You may be contacted;
- Your good faith statement that the use of the work or material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in your notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of the allegedly infringed copyright.
We reserve the right to seek damages from any person who knowingly, materially submits a DMCA notification claim under this section in violation of the law.
REPRESENTATIONS & WARRANTIES:
User represents and warrants to the best of its knowledge: (i) that it has all necessary right, power and authority to enter into these General User Terms and to fulfill its contractual obligations hereunder; (ii) that the information that it uploads, posts, e-mails, transmits, or otherwise makes available to us or on our Sites, including without limitation content, reviews, screenshots, is accurate and free of third party encumbrances; (iii) that it has not breached any third party rights, including without limitation: intellectual property, publicity or privacy, consumer protection, tort and product liability rights; (iv) that it complies with all applicable security standards and is free from any viruses, including without limitation malware or Trojan horses; and (v) that it complies with all applicable laws, statutes, ordinances and regulations.
We represent and warrants to the best of our knowledge: (i) that we have all necessary right, power and authority to enter into these General User Terms and to fulfill our contractual obligations hereunder; (ii) that the provision of the Services will not breach any third party rights, including without limitation, intellectual property, publicity or privacy, consumer protection, tort and product liability rights; and (iii) that the provision of the Services complies with all applicable laws, statutes, ordinances and regulations.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN (I) YOUR USE OF OUR SITES AND SERVICES IS AT YOUR OWN RISK, AND (II) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR SITES AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT OR SYSTEM INTEGRATION. WHILE OUR SITES SERVE AS A PLATFORM TO HOST SOFTWARE PRODUCT LISTINGS, WE ARE NOT RESPONSIBLE FOR ENSURING THE LEGAL AND/OR REGULATORY COMPLIANCE OF THESE SOFTWARE PRODUCTS. FOR INFORMATION ON A SOFTWARE PRODUCT’S LEGAL AND/OR REGULATORY STANDING, PLEASE CONSULT THE SOFTWARE VENDOR DIRECTLY THROUGH THEIR WEBSITE. WE DO NOT WARRANT THAT OUR SITES WILL BE SECURE, AVAILABLE OR OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER; THAT ERRORS OR DEFECTS WILL BE CORRECTED; OR THAT THE CONTENT ON OUR SITES IS ACCURATE OR APPROPRIATE FOR YOU AND YOUR BUSINESS NEEDS.
LIMITATION OF LIABILITY:
Neither We nor User will be liable for any consequential, special, indirect, exemplary or punitive damages arising out of or in any way related to these General User Terms or the other party’s use of the Sites and Services, including without limitation loss of profits, revenue, interest, goodwill, loss or corruption of data or other interruption of business (whether in contract, tort or under other legal theory), even if advised of the possibility of such damages. Except for (i) breach of the indemnification and confidentiality sections hereunder, or (ii) fraud, willful misconduct or gross negligence, each party’s aggregate liability to the other for direct damages under these General User Terms is limited to the greater of (i) an amount equal to twelve (12) times the monthly fees paid or payable in the one (1) month period preceding a claim, or (ii) an amount equal to the fees paid or payable by you in the twelve (12) month period preceding a claim.
Each of Us and User (in its capacity as “Indemnitor”) agrees to indemnify, defend and hold harmless the other party, its agents, affiliates and employees (in its capacity as “Indemnitee”) from and against any and all third party claims, liabilities, losses and expenses (including damage awards, settlement amounts and reasonable attorneys’ fees) arising out of or relating to our or your respective violation of these General User Terms, except to the extent such losses and expenses arise from the negligence or willful misconduct of Indemnitee.
Termination by Us:
We reserve the right in our sole discretion, without penalty and at any time without notice, to modify or discontinue (temporarily or permanently) User’s access to our Sites and Services, or any part thereof if We believe that User is violating these General User Terms. If User uses or attempts to use our Sites and/or Services for any purpose that contravenes these General User Terms (including without limitation tampering, hacking, data scraping, modifying or otherwise corrupting the security or functionality of our Sites and Services), User may also be subject to civil and criminal liability.
Termination for Convenience By User:
User may terminate its User Account at any time by sending an email request to [email protected]. We will endeavor to remove your User Account within 5 (five) business days. While You still may be able to access certain portions our Sites and Services following termination of your Account, You will no longer have access to the full functionality. By Us: We may in our sole discretion terminate your User Account, or impose limits on or restrict your access to parts or all of our Sites and/or Services at any time, without notice or liability. In the event of any termination, we shall promptly refund any prepaid fees with respect to any unused services.
For guidance on termination of vendor accounts, please see our General Vendor Terms.
These General User Terms are governed by the laws of the State of New York, except for its conflicts of interest principles. All claims arising out of or relating to these General User Terms will be litigated exclusively in the federal or state courts of New York, and each of InstaMart and User consents to personal jurisdiction in those courts.
WAIVER & SEVERABILITY:
Our failure to act with respect to a breach of these General User Terms will not constitute a waiver and does not waive our right to act with respect to subsequent or similar breaches. If any of these General User Terms shall be deemed invalid, void, or for any reason unenforceable under applicable law, then that term shall be deemed severable and shall not affect the validity and enforceability of any remaining term or provision of these General User Terms.
Terms Last Updated: January 2021