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Terms and Conditions

HEROX TERMS AND CONDITIONS OF USE

Effective Date: January 1, 2012

Last Updated Date: June 1, 2022

 

Welcome to www.herox.com (and related sub-domains (the “Platform”)). By using our Platform, you are indicating your agreement to these HeroX Terms and Conditions of Use (referred to as this “Agreement” or the “User Terms”), including, without limitation, our Privacy Policy and our Code of Conduct . This web page represents a legal document between you and HeroX, PBC, a Delaware corporation (“HeroX”, “we”, “us” or “our”) and is applicable to all individuals who use or access the Platform. If you do not agree to these User Terms, please do not use the Platform and exit now. “You” means either yourself personally, or the entity on the behalf of which you are utilizing the Platform, and upon registering an account on the Platform (an “Account”), you are also referred to herein as a “User”. 

If you are a HeroX customer (referred to herein as a “Customer” or “Sponsor”), the Customer Terms of Service  govern your access to the Platform (and not these Terms of Service).

By accessing or using the Platform, including, becoming a User and participating in Challenges (as defined in Section 1 below), by clicking “I Accept” while utilizing our Platform, or by completing the registration process, you represent that: (1) you have read, understand, and agree to be bound by this Agreement, (2) you are of legal age to form a binding contract with HeroX, and (3) you have the authority to enter into this Agreement personally or on behalf of the company you have named as the user in the registration process, and to bind that company to this Agreement. Your use of the Platform is conditioned on your acceptance without modification of all of the terms and conditions, rules, conditions, and notices on the HeroX website, including without limitation this Agreement, as may be modified by HeroX.  If at any time you do not agree to be bound by this Agreement, you may not access or use the Platform or participate in any of the Challenges.

The User Terms are subject to change by HeroX in its sole discretion at any time. Any changes to these User Terms will be effective immediately for new Users of the Platform and new Challenges and will be effective thirty (30) days after posting notice of such changes on the Platform for existing Users who are in the midst of participating in Challenges in-progress.  In the event updates to this Agreement are made, HeroX may require you to provide consent to the updated User Terms 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).

 

  1. Services. HeroX provides an online marketplace that allows Sponsors to post and administer incentive challenges that allow other  Users to participate (“Competitors”)  in designated activities in order to compete for prizes (“Challenges”). As a marketplace, HeroX does not operate the Challenges listed on the Platform or provide any prizes, so the actual Challenge relationship is directly between the Sponsors and Competitors.  Sponsors and Competitors form the direct contractual relationship by entering into an agreement provided by Sponsor to the Competitors, which such agreement provides for the scope, rules and other information about and terms applicable to the applicable Challenge (the “Challenge-Specific Terms”).  Applicable Challenge-Specific Terms will be presented to you for your acceptance when you sign up to participate in a Challenge. 
  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 these User Terms, HeroX grants you a limited license to utilize the Platform for the sole purpose of participating in Challenges in accordance with this Agreement.
    1. Certain Restrictions. The rights granted to you in these User Terms 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 these User Terms. Any unauthorized use of the Platform terminates the licenses granted by HeroX pursuant to these User Terms.
    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 create an Account and become a User. 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 thirteen (13) years old or have submitted the written consent of a legal guardian who takes responsibility for your registration; (ii) of legal age to form a binding contract or submitted written consent of a legal guardian who takes responsibility for your participation; 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 may only set up one Account.  You are responsible for all activities that occur under your Account. This means you need to be careful with your password. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of your Account by anyone but you.  If you find out that someone is using your Account without your permission, you must let us know immediately. 
  5. Challenge Prizes. Competitors for each Challenge contract directly with the Sponsor for such Challenge through the Challenge-Specific Terms, 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.  You will be liable for all transaction taxes on the Challenges provided under this Agreement (other than taxes based on HeroX's income).
  6. Competitor Conditions. When participating in a Challenge, you agree that:
    1. You will comply with all Customer-Specific Terms.
    2. 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.
    3. 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.
    4. You will not make any changes to who the prize recipient is with respect to a Challenge after the submission deadline indicated for the applicable Challenge.  For Challenge submissions submitted by an individual, the individual Competitor is automatically designated as the recipient of any prizes.  For Challenge submissions submitted by a group, a group captain (“Captain”) must be selected and the Captain is automatically designated as the recipient of any prizes.  The individual Competitor’s name or, in a team setting, the Captain’s name, must also match the authorized person’s name on the receiving bank account.
    5. For any Challenge sponsored by, on behalf of, or for the benefit of the U.S. Federal Government, Competitors may be subject to the Federal Acquisition Regulations and you agree to comply with applicable provisions of the Federal Acquisition Regulations (“FAR”) and all other laws and regulations applicable to providing goods and services to the U.S. Federal Government. In particular, winning submissions be considered “Commercial Items” and although HeroX does not direct or control the Competitors, Competitors may nonetheless be classified as “Subcontractors” according to the U.S. Federal Government, and by entering a submission in connection with a Challenge, you hereby agree to be bound by all laws and regulations applicable to the sale of commercial items by subcontractors to the U.S. Federal Government including FAR 52.212-5(e) and FAR 52.244-6(c)(1).
  7. HeroX’s Release of Liability Regarding User Disputes. HeroX expressly disclaims any liability that may arise between Users. Because HeroX is not a party to the Challenge-Specific Terms nor is HeroX involved 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.”
  8. 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 these User Terms, 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 these User Terms 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. If you delete your account, Your Content and personal information is entirely and permanently deleted.
  9. Intellectual Property Rights
    1. HeroX Owns the Platform. HeroX retains all right, title and interest in and to the Platform, tools and associated documentation or materials. Any use of the Platform, tools or associated documentation or materials beyond the scope of the rights expressly granted in this Agreement is prohibited and shall constitute a breach of this Agreement, pursuant to which HeroX may immediately terminate this Agreement and any works-in-progress. 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. If you delete your account, Your Content and personal information is entirely and permanently deleted.
    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. For all of Your Content and personal information on the HeroX Site, you have the rights to access, rectify, erase, restrict use, and object to the use.  If you delete Your Account, all of Your Content and personal information is erased entirely and permanently. If you have any questions, please contact privacy@herox.com.
    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, reformat, 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.
    7. Challenge Submissions.  You understand and agree that this Agreement does not transfer or assign any intellectual property rights in or to the submissions, outcomes or deliverables from any Challenges; however, any Competitor’s participation in a Challenge may require that you assign your intellectual property rights in such submissions, outcomes or deliverables per the Challenge-Specific Terms applicable to such Challenge.
    8. Claims of Copyright Infringement. It is HeroX's policy to terminate the Account of anyone 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 Treadwell, Product Manager, gethelp@herox.com, 3 Germay Dr, Unit 4-4402, Wilmington, DE 19804.
  10. Confidentiality.  “Confidential Information” means any information that is marked or otherwise designated as confidential at the time of disclosure or that a reasonable person would consider confidential based on the circumstances and content of the disclosure, and which is disclosed pursuant to this Agreement. Confidential Information does not include information that: (i) is or becomes known to the receiving party from a source other than one having an obligation of confidentiality to the disclosing party; (ii) is or becomes publicly known or otherwise ceases to be confidential, except through a breach of this Agreement; or (iii) is independently developed by the receiving party. Except as required to achieve the purpose of this Agreement, each receiving party agrees not to use the other party’s Confidential Information and to prevent disclosure of the other party’s Confidential Information to any third party for three (3) years after the date of disclosure. The receiving party may disclose Confidential Information if required by a governmental agency or applicable law; provided that it gives the disclosing party reasonable advance written notice sufficient to permit it to contest such disclosure. Except as specifically set forth above, this Agreement does not transfer from either party any rights in any Confidential Information and all right, title and interest in and to Confidential Information will remain solely with the disclosing party.
  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 Customers and other 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 these User Terms 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 these User Terms, 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 User Terms 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); (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 these User Terms; (f) your violation of any rights of another party, including any users; or (g) your violation of any applicable laws, rules or regulations. You agree that the provisions in this section will survive any termination of your Account, this Agreement or your access to the Platform.
  16. Disclaimer of Warranties
    1. Platform Disclaimer.  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. 
    2. Challenges Disclaimer. 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.
    3. 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.
    4. 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.
    5. 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 THESE USER TERMS, 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.
    6. 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).
    7. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HEROX AND YOU.
  17. 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: (a) if you breach any provision of these User Terms or any policy of HeroX posted through the Platform from time to time; (b) if HeroX otherwise finds that you have engaged in inappropriate and/or offensive behavior; (c) if HeroX believes you are creating problems or possible legal liabilities; (d) if HeroX believes such action will improve the security of our community or reduce another user’s exposure to financial liabilities; (e) if HeroX believes you are infringing the rights of third parties; (f) if HeroX believes you are acting inconsistently with the spirit of these User Terms; (g) if despite our reasonable endeavors, HeroX is unable to verify or authenticate any information you provide; or (h) 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 User Terms will remain enforceable against you.
  18. Remedies
    1. Violations. If HeroX becomes aware of any possible violations by you of the User Terms, 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 User Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to requests by a Customer in relation to a 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 this Agreement, or have otherwise demonstrated conduct inappropriate for the Platform, HeroX reserves the right to:
      1. Notify you via e-mail (to any e-mail address you have provided to HeroX) that you have violated this Agreement;
      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.
  19. 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 email. You hereby: (1) consent to receive communications from HeroX in an electronic form; and (2) agree that the User Terms and all 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. Assignment. You may not assign this Agreement in whole or in part without the prior written consent of HeroX. Subject to the foregoing, this Agreement shall be binding on the parties and their permitted assigns.
    3. 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, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
    4. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Platform, please contact us at: . 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.
    5. Limitations Period. EXCEPT WHEN PROHIBITED BY LAW (IF APPLICABLE), YOU AND HEROX AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, 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.
    6. Arbitration  Option.  For any claim arising out of the services under this Agreement (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties (such agreement not to be unreasonably withheld). The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. All claims brought against HeroX must be resolved in accordance with this section. All claims filed or brought contrary to this section shall be considered improperly filed and may be dismissed for failure to abide by the procedures set forth herein.
    7. Governing Law and Jurisdiction. The User Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any principles that provide for the application of the law of another jurisdiction. Each party agrees to the exclusive personal jurisdiction and venue of the state and federal courts located in New York, New York.
    8. Notice. Where HeroX requires that you provide an email address, you are responsible for providing HeroX with your most current email 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 User Terms, 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: 3 Germay Dr, Unit 4-4402, Wilmington, DE 19804. 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.
    9. Waiver. Any waiver or failure to enforce any provision of the User Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    10. Severability. If any provision of the User Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the User Terms 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.
    11. 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.
    12. Independent Contractor.  Each party is an independent contractor of the other and neither is an employee, agent, partner or joint venturer of the other.  For the avoidance of doubt, Competitors are not employees, contractors or subcontractors of HeroX and instead contract directly with Sponsors in accordance with any Challenge-Specific Terms between Sponsors and the Competitors.
    13. 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.
    14. Entire Agreement. The User Terms 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 User Terms