Effective Date: January 1, 2012
Last Updated Date: November 25, 2015
- Platform Connects Challenge Competitors and Sponsors. HeroX provides an online marketplace that allows Users to post and administer incentive challenges that allow other Users to participate in designated activities in order to compete for prizes (“Challenges”). As a marketplace, we do not operate the Challenges listed on the Platform or provide any prizes, so the actual Challenge relationship is directly between the Users posting and administering Challenges (“Sponsors”) and Users seeking to compete in such Challenges (“Competitors”).
- HeroX Only Provides a Venue for Challenges. While HeroX operates the Platform that provides useful tools for the administration of Challenges, all Challenges are ultimately designed and administered by Sponsors. We do not take part in the interaction between Users. We do not have control over the quality, timing, legality, failure to provide, or any other aspect of the Challenges, over any materials provided by Sponsors or by Competitors, or over the integrity, responsibility, or any actions of any Users. HeroX makes no representations about the suitability, reliability, timeliness or accuracy in public, private or offline interactions between Users. HEROX IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY SPONSOR OR COMPETITOR, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE PLATFORM.
- Third-Party Materials. As a part of the Platform, you may have access to materials that are hosted by another party. You agree that it is impossible for HeroX to monitor such materials and that you access these materials at your own risk.
- Fees and Payment Policy. The fees that HeroX charges Sponsors for posting Challenges are listed on our Sponsor fees page at http://www.herox.com/pricing. We may change our fees from time to time by posting the changes on the Platform fourteen (14) days in advance. For all purchases and payments for reimbursement costs, fees or expenses associated with a sale, HeroX will charge your credit card for the posting of Challenges, and you hereby authorize us to charge your credit card for such amounts. HeroX retains the right, in its sole discretion, to place a hold on any payment for a completed transaction.
- Refunds. HeroX has no obligation to provide refunds or credits, but may grant them in extenuating circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by HeroX, in each case in HeroX's sole discretion.
- Challenge Prizes. Competitors for each Challenge contract directly with the Sponsor for such Challenge, including with respect to the award of prizes. HeroX will not be a party to any contracts between Sponsors and Competitors, or otherwise between Users. If you have any dispute with any other User (whether a Sponsor or a Competitor), you agree to directly resolve such dispute with such other User without the involvement of HeroX.
- Taxes. You will be liable for all transaction taxes on the Challenges provided under this Agreement (other than taxes based on HeroX's income).
- Sponsor Conditions. When posting and administering a Challenge, you agree to comply with our rules for listing and that:
- You are solely responsible for the accuracy and content of the Challenge.
- You are solely responsible for ensuring that the Challenge (including its rules, administration, and prizes) complies with all applicable laws, rules, and regulations.
- You are solely responsible for preparing and posting clear rules of the Challenge, including how the Challenge will be judged and what prize will be offered.
- You are solely responsible for judging the outcome of the Challenge.
- You are solely responsible for securing all necessary intellectual property rights in any materials submitted by Competitors in the Challenge through your own Challenge-Specific Terms.
- You are solely responsible for procuring and delivering any prizes to be awarded in connection with the Challenge.
- Competitor Conditions. When participating in a Challenge, you agree to abide by the applicable Challenge-Specific Terms. You further agree that:
- You are responsible for reading the rules of the Challenge and all other Challenge-Specific Terms before deciding to participate, which may include the grant of intellectual property rights in any submission you may make for the Challenge.
- The Challenge is governed by the Challenge-Specific Terms entered into directly between you and the applicable Sponsor, and you will contact the Sponsor (and not HeroX) regarding any complaint, dispute, or other issue regarding the Challenge.
- Release. HeroX expressly disclaims any liability that may arise between Users. Because HeroX is not involved in the actual contract between Users or in the administration of the Challenge, in the event that you have a dispute with one or more Users, you release HeroX (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
- Responsibility for Content
- Types of Content. You acknowledge that all content displayed on the Platform (“Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not HeroX, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Post”) on the Platform (“Your Content”), and other Users of the Platform, and not HeroX, are similarly responsible for all Content they Post on the Platform (“Other User Content”).
- Storage. Unless expressly agreed to by HeroX in writing elsewhere, HeroX has no obligation to store any of Your Content that you Post on the Platform. HeroX has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Platform.
- The Platform. Except with respect to Your Content and Other User Content, you agree that HeroX and its suppliers own all rights, title and interest in the Platform (including, but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in The Platform.
- Trademarks. HeroX’s and other related graphics, logos, service marks and trade names used on or in connection with the Platform are the trademarks of HeroX and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Platform are the property of their respective owners.
- Your Content. HeroX does not claim ownership of Your Content. However, when you post or publish Your Content on or in the Platform, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. You hereby grant HeroX a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Platform to you and to our other Users, and related marketing and promotional activities. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.
- Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the Platform, you hereby expressly permit HeroX to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
- Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of HeroX.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to HeroX through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that HeroX has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to HeroX a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Platform.
- User Conduct. While using or accessing the Platform you agree that you will not, under any circumstances:
- Breach or circumvent any laws, third party rights or our systems, policies, or determinations of your Account status;
- Interfere with or damage the Platform, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
- Interfere with the activities of other Users, including Competitors;
- Post false, inaccurate, misleading, defamatory or libelous content;
- Take any action that may undermine or circumvent the rules of a Challenge;
- Transfer your Account and username to another party without our consent;
- Bypass our robot exclusion headers, interfere with the working of the Platform, or impose an unreasonable or disproportionately large load on our infrastructure;
- Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- Use the Platform to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers; or
- Post any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities.
- Interactions with Other Users. You are solely responsible for your interactions with other Users of the Platform; provided, however, that HeroX reserves the right, but has no obligation, to intercede in disputes between Users. The Platform may contain Other User Content, which is provided by other Users. HeroX is not responsible for and does not control Other User Content. HeroX has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to Other User Content. You use all Other User Content and interact with other Users at your own risk.
- Disclaimer of Warranties
- AS-IS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE PLATFORM AND/OR THE CHALLENGES IS AT YOUR SOLE RISK, AND THE PLATFORM AND CHALLENGES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE HEROX PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE HEROX PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE PLATFORM WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE PLATFORM WILL BE CORRECTED. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE PLATFORM IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE PLATFORM, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
HEROX MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO CHALLENGES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF CHALLENGES, OR WITH RESPECT TO ANY PRIZES TO BE PROVIDED IN CONNECTION WITH ANY CHALLENGES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HEROX OR THROUGH THE PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE HEROX PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE HEROX PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
- No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM. YOU UNDERSTAND THAT THE HEROX PARTIES DO NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE PLATFORM. THE HEROX PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM.
- Limitation of Liability Procedure for Making Claims of Copyright Infringement. It is HeroX’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to HeroX by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Platform in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Platform of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for HeroX’s Copyright Agent for notice of claims of copyright infringement is as follows: Liz Twardy, Project Manager, firstname.lastname@example.org, 616 Corporate Way, Suite 2-3445, Valley Cottage, NY 10989
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE HEROX PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY HEROX AS A RESULT OF YOUR USE OF THE PLATFORM. IF YOU HAVE NOT PAID HEROX ANY AMOUNTS HEROX’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).
- Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- User Content. THE HEROX PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HEROX AND YOU.
- Delete any of Your Content provided by you or your agent(s) to the Platform;
- Discontinue your registration(s) with any of the Platform, including any Challenges or any HeroX community;
- Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
- Pursue any other action which HeroX deems to be appropriate.
- General Provisions
- Force Majeure. HeroX shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Platform, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- Dispute Resolution
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to HeroX should be sent to: 616 Corporate Way, Suite 2-3445, Valley Cottage, NY, 10989. After the Notice is received, you and HeroX may attempt to resolve the claim or dispute informally. If you and HeroX do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Time Limits. If you or HeroX pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and HeroX in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND HEROX WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with HeroX.
- Small Claims Court. Notwithstanding the foregoing, either you or HeroX may bring an individual action in small claims court.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Santa Clara County for such purpose.
- Export Control. You may not use, export, import, or transfer any items or information obtained through the Platform except as authorized by U.S. law, the laws of the jurisdiction in which you obtained access to the Platform, and any other applicable laws. In particular, but without limitation, such items or information may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Platform, you represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Platform for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by HeroX are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer HeroX products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Challenges of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.