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HeroX Terms of Use

HeroX Terms of Use

Effective Date: January 1, 2012

Last Updated Date: November 25, 2015

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. BY ACCESSING OR USING THE HEROX PLATFORM (THE “PLATFORM”) IN ANY WAY, INCLUDING BY SUBMITTING, DESIGNING, ENABLING, OR PARTICIPATING IN ANY OF THE CHALLENGES (AS DEFINED IN SECTION 1) AVAILABLE OR ENABLED VIA THE PLATFORM, BY CLICKING ON THE “I ACCEPT” BUTTON, OR BY COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH HEROX, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER IN THE REGISTRATION PROCESS, AND TO BIND THAT COMPANY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE PLATFORM. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE PLATFORM OR PARTICIPATE IN ANY OF THE CHALLENGES.

THE TERMS OF USE INCLUDE (1) YOUR AGREEMENT THAT HEROX HAS NO LIABILITY REGARDING THE CHALLENGES (SECTION 16.2); (2) YOUR AGREEMENT THAT THE CHALLENGES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY (SECTION 16.1); (3) YOUR CONSENT TO RELEASE HEROX FROM LIABILITY BASED ON CLAIMS BETWEEN USERS OF THE PLATFORM (SECTION 8) AND GENERALLY (SECTION 21.2); AND (4) YOUR AGREEMENT TO INDEMNIFY HEROX FOR YOUR ACTS AND OMISSIONS REGARDING THE CHALLENGES (SECTION 15).

THE TERMS OF USE INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.

THE TERMS OF USE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

Your use of, and participation in, certain Challenges may be subject to additional Terms of Use imposed by the Sponsor of such Challenge (“Challenge-Specific Terms of Use”) and such Challenge-Specific Terms of Use will be presented to you for your acceptance when you sign up to access the Challenge.

PLEASE NOTE THAT The Terms of Use are subject to change by HeroX in its sole discretion at any time. When changes are made, HeroX will make a new copy of the Terms of Use available at the Platform. We will also update the “Last Updated” date at the top of the Terms of Use. If we make any material changes, and you have registered with us to create an Account (as defined in Section 4.1 below), we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms of Use. Any changes to the Terms of Use will be effective immediately for new Users of the Platform and will be effective thirty (30) days after posting notice of such changes on the Platform for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Platform or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 4 below). HeroX may require you to provide consent to the updated Terms of Use in a specified manner before further use of the Platform is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Platform. Otherwise, your continued use of and access to the Platform constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE PLATFORM TO VIEW THE THEN-CURRENT TERMS OF USE.

  1. 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”).
  2. 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.
  3. Use of the Platform. The Platform and the information and content available on the Platform are protected by copyright laws throughout the world. Subject to the Terms of Use, HeroX grants you a limited license to reproduce portions of the content available on the Platform for the sole purpose of administering the Challenges (if you are a Sponsor of such Challenges) or participating in Challenges (if you are a Competitor).
    1. Certain Restrictions. The rights granted to you in the Terms of Use are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Platform or any portion of the Platform, (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Platform except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Platform (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (d) access the Platform in order to build a similar or competitive technology, application or service; (e) except as expressly stated herein, no part of the Platform may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (f) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Platform. HeroX, its suppliers and Challenge providers reserve all rights not granted in the Terms of Use. Any unauthorized use of the Platform terminates the licenses granted by HeroX pursuant to the Terms of Use.
    2. 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.
  4. Registration. In order to use the features of the Platform you are required to become a Registered User. For purposes of the Terms of Use, a “Registered User” is a User who has registered an account on the Platform (“Account”). In registering for the Platform, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the Platform’s registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Platform under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Platform by minors. You may not share your Account or password with anyone, and you agree to (y) notify HeroX immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or HeroX has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, HeroX has the right to suspend or terminate your Account and refuse any and all current or future use of the Platform (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. HeroX reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights.
  5. 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.
    1. 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.
    2. 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.
    3. Taxes. You will be liable for all transaction taxes on the Challenges provided under this Agreement (other than taxes based on HeroX's income).
  6. Sponsor Conditions. When posting and administering a Challenge, you agree to comply with our rules for listing and that:
    1. You are solely responsible for the accuracy and content of the Challenge.
    2. You are solely responsible for ensuring that the Challenge (including its rules, administration, and prizes) complies with all applicable laws, rules, and regulations.
    3. 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.
    4. You are solely responsible for judging the outcome of the Challenge.
    5. 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.
    6. You are solely responsible for procuring and delivering any prizes to be awarded in connection with the Challenge.
  7. Competitor Conditions. When participating in a Challenge, you agree to abide by the applicable Challenge-Specific Terms. You further agree that:
    1. 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.
    2. 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.
  8. 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.”
  9. Responsibility for Content
    1. 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”).
    2. No Obligation to Pre-Screen Content. You acknowledge that HeroX has no obligation to pre-screen Content (including, but not limited to, Your Content and Other User Content), although HeroX reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms of Use, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that HeroX pre-screens, refuses or removes any Content, you acknowledge that HeroX will do so for HeroX’s benefit, not yours. Without limiting the foregoing, HeroX shall have the right to remove any Content that violates the Terms of Use or is otherwise objectionable.
    3. 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.
  10. Ownership
    1. 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.
    2. 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.
    3. 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.
    4. 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.
    5. 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.
    6. 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.
  11. User Conduct. While using or accessing the Platform you agree that you will not, under any circumstances:
    1. Breach or circumvent any laws, third party rights or our systems, policies, or determinations of your Account status;
    2. 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;
    3. Interfere with the activities of other Users, including Competitors;
    4. Post false, inaccurate, misleading, defamatory or libelous content;
    5. Take any action that may undermine or circumvent the rules of a Challenge;
    6. Transfer your Account and username to another party without our consent;
    7. Bypass our robot exclusion headers, interfere with the working of the Platform, or impose an unreasonable or disproportionately large load on our infrastructure;
    8. 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;
    9. 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
    10. 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.
  12. Investigations. HeroX may, but is not obligated to, monitor or review the Platform and Content at any time. Without limiting the foregoing, HeroX shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms of Use or any applicable law. Although HeroX does not generally monitor User activity occurring in connection with the Platform or Content, if HeroX becomes aware of any possible violations by you of any provision of the Terms of Use, HeroX reserves the right to investigate such violations, and HeroX may, at its sole discretion, immediately terminate your license to use the Platform, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
  13. 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.
  14. Third-Party Links. The Platform may contain links to third-party services and/or advertisements for third parties (collectively, “Third-Party Link”). When you click on a Third-Party Link, we will not warn you that you have left the Platform and are subject to the terms and conditions (including privacy policies) of another service or destination. Such Third-Party Links are not under the control of HeroX. HeroX is not responsible for any Third-Party Links. HeroX provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links, or their products or services. You use all Third-Party Links at your own risk. When you leave the Platform, our Terms of Use and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third-Party Link, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
  15. Indemnification. You agree to indemnify and hold HeroX, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “HeroX Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your participation in any Challenge (if you are a Competitor) or your design, administration, or operation of any Challenge, including the award of any prizes (if you are a Sponsor); (c) any dispute between you and another User (whether Sponsor or Competitor); (d) your use of, or inability to use, the Platform; (e) your violation of the Terms of Use; (f) your violation of any rights of another party, including any Users; or (g) your violation of any applicable laws, rules or regulations. HeroX reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with HeroX in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms of Use or your access to the Platform.
  16. Disclaimer of Warranties
    1. 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.
    2. 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.
    3. 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.
  17. 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, gethelp@herox.com, 616 Corporate Way, Suite 2-3445, Valley Cottage, NY 10989
    1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE HEROX PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM OR WITH THE CHALLENGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS OF USE, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE PLATFORM, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE PLATFORM; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE PLATFORM; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; (5) ANY CHALLENGES; OR (6) ANY OTHER MATTER RELATED TO THE PLATFORM, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
    2. 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).
    3. 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.
    4. 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.
    5. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HEROX AND YOU.
  18. Termination and Suspension. HeroX may terminate or suspend your right to use the Platform at any time for any or no reason by providing you with written or email notice of such termination, and termination will be effective immediately upon delivery of such notice. We may cancel unconfirmed Accounts or Accounts that have been inactive for a long time, or modify or discontinue our Challenges. Without limitation, HeroX may terminate or suspend your right to use the Platform if you breach any provision of the Terms of Use or any policy of HeroX posted through the Platform from time to time; if HeroX otherwise finds that you have engaged in inappropriate and/or offensive behavior; if HeroX believes you are creating problems or possible legal liabilities; if HeroX believes such action will improve the security of our community or reduce another User’s exposure to financial liabilities; if HeroX believes you are infringing the rights of third parties; if HeroX believes you are acting inconsistently with the spirit of these Terms of Use; if despite our reasonable endeavors, HeroX is unable to verify or authenticate any information you provide; or if you fail to pay all fees due for our Challenges by the payment due date. In addition to terminating or suspending your Account, HeroX reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Even after your right to use the Challenges is terminated or suspended, these Terms of Use will remain enforceable against you.
  19. Remedies
    1. Violations. If HeroX becomes aware of any possible violations by you of the Terms of Use, HeroX reserves the right to investigate such violations. If, as a result of the investigation, HeroX believes that criminal activity has occurred, HeroX reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. HeroX is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Platform, including Your Content, in HeroX’s possession in connection with your use of the Platform, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms of Use, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer Challenge, or (5) protect the rights, property or personal safety of HeroX, its Users or the public, and all enforcement or other government officials, as HeroX in its sole discretion believes to be necessary or appropriate.
    2. Breach. In the event that HeroX determines, in its sole discretion, that you have breached any portion of the Terms of Use, or have otherwise demonstrated conduct inappropriate for the Platform, HeroX reserves the right to:
      1. Warn you via e-mail (to any e-mail address you have provided to HeroX) that you have violated the Terms of Use;
      2. Delete any of Your Content provided by you or your agent(s) to the Platform;
      3. Discontinue your registration(s) with any of the Platform, including any Challenges or any HeroX community;
      4. Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
      5. Pursue any other action which HeroX deems to be appropriate.
  20. General Provisions
    1. Electronic Communications. The communications between you and HeroX use electronic means, whether you visit the Platform or send HeroX e-mails, or whether HeroX posts notices on the Platform or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from HeroX in an electronic form; and (2) agree that all Terms of Use and conditions, agreements, notices, disclosures, and other communications that HeroX provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
    2. Release. You hereby release HeroX Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Platform, including but not limited to, any interactions with or conduct of other Users or third-party services of any kind arising in connection with or as a result of the Terms of Use or your use of the Platform. 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.”
    3. Assignment. The Terms of Use, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without HeroX’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
    4. 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.
    5. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Platform, please contact us at: gethelp@herox.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.
    6. Limitations Period. YOU AND HEROX AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS OF USE, THE PLATFORM OR ANY CHALLENGE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
    7. Dispute Resolution
      1. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms of Use or the use of any product or service provided by HeroX that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings will be held in English. This Arbitration Agreement applies to you and HeroX, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms of Use.
      2. 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.
      3. Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms of Use. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that HeroX made to you prior to the initiation of arbitration, HeroX will pay you the greater of the award or $50. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
      4. 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.
      5. 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.
      6. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and HeroX, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms of Use. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and HeroX.
      7. 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.
      8. 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.
      9. 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.
      10. 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.
      11. 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.
      12. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with HeroX.
      13. Small Claims Court. Notwithstanding the foregoing, either you or HeroX may bring an individual action in small claims court.
      14. 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.
      15. 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.
      16. 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.
    8. Governing Law. The Terms of Use and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
    9. Choice of Language. It is the express wish of the parties that the Terms of Use and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
    10. Notice. Where HeroX requires that you provide an e-mail address, you are responsible for providing HeroX with your most current e-mail address. In the event that the last e-mail address you provided to HeroX is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms of Use, HeroX’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to HeroX at the following address: 616 Corporate Way, Suite 2-3445, Valley Cottage, NY 10989. Such notice shall be deemed given when received by HeroX by letter delivered by nationally recognized overnight delivery Challenge or first class postage prepaid mail at the above address.
    11. Waiver. Any waiver or failure to enforce any provision of the Terms of Use on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    12. Severability. If any provision of the Terms of Use is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms of Use will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    13. 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.
    14. 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.
    15. Entire Agreement. The Terms of Use are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

 

End of Terms of Use