Terms of Service
Last updated on March 27, 2016
The following terms of service (the “TOS”) form a binding agreement between you and Observa, Inc. (together with our affiliates, collectively referred to herein as “Observa”, “us”, or “we”) that governs your use of our services facilitated through our website located at https://www.observanow.com/ (our “Website”), mobile apps, and other online areas owned or operated by us (“Services”). The term “you” refers to the person accessing or using the Services. You should print or otherwise save a copy of these TOS for your records.
PLEASE READ THESE TOS CAREFULLY BEFORE USING ANY OF OUR SERVICES
You acknowledge that these TOS are supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged. Without limiting the generality of the foregoing, you acknowledge that such consideration includes your use of the Services and receipt of data, materials and information available at or through the Services.
We may update or change these TOS from time to time and recommend that you review these TOS on a regular basis. The most current version of these TOS may be viewed at https://www.observanow.com/terms-of-service/. If we make a change to these TOS, the revised version of these TOS will be posted on our Website. You understand and agree that your continued use of our Services after these TOS have changed constitutes your acceptance of these TOS as revised. Without limiting the foregoing, if we make a change to these TOS that materially impacts your use of our Services, we may post notice of any such change on our Website, notify you as you login to use our Service, and/or email you notice of any such change to the email address submitted in connection with your account.
Observa provides a platform by which companies and other organizations (each, a “Brand”) can post opportunities (each, an “Opportunity”) for registered users of the Services (“Users”) to use the Observa smartphone application (the “Observa App”) to validate, among other things, whether and how the Brand’s products are being marketed and promoted correctly at specific retail locations.
Upon accepting these TOS, a User can use the Observa App to find, accept, perform, submit and be compensated for completed and validated Opportunities. The first User to accept an Opportunity has the ability to complete the tasks required to be paid the stated Observation Fee.
These tasks, collectively called an “Observation,” usually involve taking pictures of the Brand’s item(s) on a retailer’s shelves and answering certain questions about stocking levels, product placement, pricing, promotion and other items identified by the Brand. When a User submits an Observation (a “Submission”) for acceptance, Observa validates (i) that the User was in fact at the required location for the Submission and (ii) that the tasks required for the Observation were properly completed. If a User accepts an Opportunity, but fails to complete it within two hours or a different time limit determined by the Brand, or if the User submits an incomplete or otherwise insufficient or improper Observation based on the Brand’s requirements for the Observation, Observa will reject the Observation and the Opportunity will immediately become available for you or for another User to accept.
When an Observation is reviewed and accepted by Observa (an “Accepted Observation”), Observa will automatically begin processing payment of the Brand’s agreed upon Observation Fee to the User.
PAYMENT OF TAXES ON OBSERVATION FEES
You understand that it is solely your obligation to pay all state and Federal income taxes and any other taxes that are owed by you as a result of your receipt of Observation Fees. Such fees likely constitute taxable “ordinary income” under applicable state and Federal laws. If you are uncertain about your tax obligations, you should contact a tax advisor. You will not receive any tax documentation in the form of an IRS Form 1099, IRS Form 1099-K, or other type of form or notice unless you earn Observations Fees in excess of the annual minimum amount necessary to mandate that you receive such a form. Forms are issued by Observa’s payment processors, such as PayPal and Coinbase.
NO AGENCY, EMPLOYMENT OR CONTRACTOR RELATIONSHIP
Observa is engaged by each Brand pursuant to separate terms and conditions solely to post Opportunities through Observa and to provide the Brand’s actionable business information from the data and information submitted by Users. Observa is not a retailer of any products offered by the Brands and Observa is not an agent or contractor for any Brands.
You understand and agree that you are not an employee, agent or affiliate of Observa or of any of the Brands, but rather a user of the Observa Services, subject to these TOS. Observa’s responsibility to you is limited solely to processing Observation Fee payments earned by you as described in these TOS. Observa may discontinue or alter the Services at any time in its own discretion, and it may block your access to the Services if it believes you have repeatedly failed to follow the instructions for the Services are if it believes you have used the Services inappropriately in any way. If you submit Observations deemed by Observa to be incomplete, insufficient, fraudulent or otherwise inappropriate, Observa may prohibit you from using the Observa App or may limit the number and/or types of Opportunities you are presented by the Observa App.
You agree that any expenses incurred by you in submitting Observations, such as data or internet charges imposed by your data or internet providers or traveling to make Observations, shall be your sole responsibility.
Observa shall not be liable or responsible for any injuries you sustain in making or submitting Observations, including slips or falls while visiting retailers to make Observations, or while you are traveling to make Observations. You also accept the possibility that you may walk or drive to a retailer to make an Observation but then find that another User has accepted and/or submitted the same Observation prior to your arrival at the retailer, and Observa shall have no liability to you for such missed Opportunities or for any temporary interruption or permanent termination of the Services.
OWNERSHIP OF OBSERVATION SUBMISSIONS AND RELATED CONTENT
You agree that all pictures, answers, texts and other information and data submitted by you in the course of submitting Observations through the Services (“Observation Content”) immediately become the property of Observa and Observa alone shall own all right, title and interest in all Observation Content and shall be free to do with it as it pleases, including sharing it with Brands and/or sharing it or selling it in any form and in any manner whatsoever with or to any third party. You understand and agree that you will not have access to the content included in your Observations once they have been submitted.
This transfer of your rights in and to any Observation Content submitted by you includes all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual and industrial property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit such Observation Content, in whole or in part, in all media formats and channels now known or hereafter devised (including on the Site, on third party websites, on our broadband and wireless platforms, products and services, on physical media) for any and all purposes including, without limitation, entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity.
To use and/or register for our Services you must be: (a) of legal age to form a binding contract with us, and (b) cannot be a person barred from receiving our Services under the laws of the United States or other applicable jurisdiction, including the country in which you reside or from where you use our Services.
LIMITATIONS ON USE AND RULES OF CONDUCT
You agree to use the Services only for the purposes as permitted by these TOS and any applicable law, or generally accepted practice in the applicable jurisdiction. You may not use the Services for commercial purposes or in any way that is unlawful, or harms us or any other person or entity.
All information, materials, functions and other content (“Content”) contained on the Services are our copyrighted property or the copyrighted property of our licensors or licensees. All trademarks, slogans, service marks, trade names, and trade dress are proprietary to us and/or our licensors or licensees. We may change the Services or delete Content or features at any time, in any way, for any reason.
Except as we specifically agree in writing, no Content from the Services may be used, reproduced, transmitted, distributed or otherwise exploited in any way other than as part of the Services, not even as part of a derivative work, except that where the Services are configured to enable the download of particular Content. Using our Content for any other purpose is a violation of our copyright and other proprietary rights and is strictly prohibited.
YOU ACKNOWLEDGE AND AGREE THAT NOTHING IN THESE TOS SHALL HAVE THE EFFECT OF TRANSFERRING THE OWNERSHIP OF ANY COPYRIGHTS, TRADEMARKS, SLOGANS, SERVICE MARKS, TRADE NAMES, TRADE DRESS OR OTHER PROPRIETARY RIGHTS IN THE SERVICES OR CONTENT OR ANY PART THEREOF TO YOU OR ANY THIRD PARTY NOR TO AUTHORIZE YOU TO CREATE DERIVATIVE WORKS BASED ON THE CONTENT.
You agree that you will NOT use the Service to:
- attempt act inconsistently with these TOS;
- upload, download, post, email, transmit, store or otherwise make available any Content that is unlawful, harassing, threatening, harmful, tortious, defamatory, libelous, abusive, violent, obscene, vulgar, invasive of another’s privacy, hateful, racially or ethnically offensive, or otherwise objectionable;
- stalk, harass, threaten or harm another;
- pretend to be anyone, or any entity, you are not — you may not impersonate or misrepresent yourself as another person, entity or as an Observa employee;
- engage in any copyright infringement or other intellectual property infringement, or disclose any trade secret or confidential information in violation of a confidentiality, employment, or nondisclosure agreement;
- upload, post, email, transmit, store or otherwise make available any material that contains viruses or any other computer code, files or programs designed to harm, interfere or limit the normal operation of the Service (or any part thereof), or any other computer software or hardware;
- interfere with or disrupt the Service (including accessing the Service through any automated means, like scripts or web crawlers), or any servers or networks connected to the Service, or any policies, requirements or regulations of networks connected to the Service (including any unauthorized access to, use or monitoring of data or traffic thereon);
Violations of any of these TOS may result in termination of your account. We reserve the right to modify these limitations on use and rules of conduct at any time.
When you accept these TOS and complete our sign up process, you will have an Observa Account.
In order to create your Observa Account you will be required to select a password. Please choose a strong password and do not reveal your password to others. You agree that you are responsible for keeping your password confidential and secure, and further understand that you are solely responsible and liable for any activities that occur under your Observa Account. If you suspect or become aware of any unauthorized use of your Observa Account please contact us. You further acknowledge and agree that our Services are designed and intended for personal use on an individual basis and you should not share your Observa Account and/or password details with another person.
Upon creating your Observa Account you will be required to select a password. Please choose a strong password and do not reveal your password to others. You agree that you are responsible for keeping your password confidential and secure. If you suspect or become aware of any unauthorized use of your Observa Account please contact us. You further acknowledge and agree that our Services are designed and intended for personal use on an individual basis and you should not share your account and/or password details with another person.
SIGN UP OBLIGATIONS
You agree that all information you provide to Observa during the sign up process (“Sign Up Data”) will be true, accurate, complete and current information, and that you shall maintain and update the Sign Up Data as needed throughout your term to keep it accurate and current. Failure to provide accurate, current and complete Sign Up Data may result in the suspension and/or termination of your Observa Account.
DISPUTES OR OTHER ISSUES OR CONCERNS
If you have concerns regarding your Observa Account, our handling of any Observation submitted by you or any payment or non-payment of an Observation Fee, please contact us at this email address – firstname.lastname@example.org – and we will endeavor to respond to your email within two (2) business days.
From time to time, we may offer referral programs or incentives for inviting others to use the Service (a “Referral Program”). Any bonuses or incentives under such Referral Program shall be subject to the then current Referral Program terms and at our sole discretion.
USE OF LOCATION-BASED SERVICES
ACCESS TO YOUR ACCOUNT AND CONTENT
You acknowledge and agree that we may access, use, preserve and/or disclose your account information and Content if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce these TOS, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of Observa, its users or the public as required or permitted by law.
TERMINATION BY YOU
You may terminate your account and/or stop using the Service at any time. To terminate and close your Observa Account, go to Terminate My Account in Account Settings and follow the instructions there. Please note that, Observa will still be required to retain certain information regarding your use of the System and receipt of any Observation Fees for tax reporting and any other purposes required by applicable laws.
TERMINATION BY US
We may at any time, under any circumstances and without prior notice, immediately terminate or suspend all or a portion of your account and/or access to the Service. Cause for such termination shall include, but not be limited to: (a) violations of these TOS or any other policies or guidelines that are referenced herein and/or posted on the Services; (b) a request by you to cancel or terminate your account; (c) discontinuance or material modification to the Service or any part thereof; (d) a request and/or order from law enforcement, a judicial body, or other government agency; (e) provision of the Service to you becoming unlawful; (f) unexpected technical or security issues or problems; or (g) your participation in fraudulent or illegal activities. Any such termination or suspension shall be made by us in our sole discretion and we will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your account and/or access to the Service.
DISCLAIMER OF WARRANTIES
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. OBSERVA AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, OBSERVA AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OBSERVA OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOS.
LIMITATION OF LIABILITY
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH BELOW MAY NOT APPLY TO YOU. YOU EXPRESSLY UNDERSTAND AND AGREE THAT OBSERVA AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES , INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF OBSERVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICES; (II) ANY CHANGES MADE TO THE SERVICES OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICES OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICES; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICES.
You agree to defend, indemnify and hold Observa, its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) your Submissions; (b) your use of the Services; (c) any violation by you of these TOS; or (d) your violation of any rights of another. This obligation shall survive the termination or expiration of these TOS and/or your use of the Services. You acknowledge that you are responsible for all use of the Services using your account, and that these TOS apply to any and all usage of your Observa Account. You agree to comply with these TOS and to defend, indemnify and hold harmless Observa from and against any and all claims and demands arising from usage of your Observa Account, whether or not such usage is expressly authorized by you.
Observa may provide you with notices regarding the Service, including changes to these TOS, by email to your email address reflected on your account (and/or other alternate email address if provided), by regular mail, notify you as you login to use our Service, or by postings on our Website.
Except to the extent expressly provided in the following paragraph, these TOS and the relationship between you and Observa shall be governed by the laws of the State of Washington, excluding its conflicts of law provisions.
Except in cases where Observa believes you have engaged in fraud, other illegal behavior, or any other form of willful and serious misconduct, you agree that any and all disputes or claims that have arisen or may arise between you and Observa relating in any way to or arising out of this or previous versions of the TOS or your use of or access to Services shall be resolved exclusively through final and binding arbitration, rather than in court. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS
YOU AND OBSERVA AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND OBSERVA AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER OBSERVA USERS.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of the Terms, including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or Terms is void or voidable.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate.
The arbitration shall be held in King County, Washington or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Observa may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Observa, subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or Observa, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Washington, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Observa users, but is bound by rulings in prior arbitrations involving the same Observa user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
ARBITRATION COSTS AND EXPENSES
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate.
SEVERABILITY OF ARBITRATION PROVISIONS
With the exception of any of the provisions in the paragraph above captioned Prohibition of Class and Representative Actions, if an arbitrator or court decides that any part of these provisions requiring arbitration is invalid or unenforceable, the other provisions regarding agreement to Arbitrate shall still apply. If an arbitrator or court decides that any of the provisions in the paragraph above captioned Prohibition of Class and Representative Actions is invalid or unenforceable, then the entirety of the above provisions regarding arbitration shall be null and void. The remainder of these TOS will continue to apply.
VENUE AND JURISDICTION FOR LEGAL DISPUTES
Unless you and we agree otherwise, in the event that the above arbitration provisions are deemed or found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and Observa must be resolved exclusively by a state or federal court located in King County, Washington. You and Observa agree to submit to the personal jurisdiction of the courts located within King County, Washington for the purpose of litigating all such claims or disputes.
These TOS constitute the entire agreement between you and Observa, govern your use of the Services and completely replace any prior agreements between you and Observa in relation to the Services. You may also be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of these TOS is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of Observa to exercise or enforce any right or provision of these TOS shall not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in these TOS, there shall be no third-party beneficiaries to these TOS. You agree that any claim or cause of action arising out of or related to these TOS or the use of the Service must be filed within one (1) year after the cause of action arose or be forever barred.