IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 23.
The Terms apply regardless of the device used to access the Services, including without limitation a personal computer, mobile device, consumer electronics device, video game device or console, or any other technology or software known today or developed in the future.
1. Acceptance of Terms
2. Modification to Terms
Except for Section 23 providing for binding arbitration and a waiver of class action rights, Challenger reserves the right, at its sole discretion, to modify or replace the Terms at any time. You shall be responsible for reviewing and becoming familiar with any such modifications. Any changes will be incorporated into the Terms and you should check the Terms periodically for updates. Changes will be effective immediately unless otherwise provided. Use of the Services by you following such modification constitutes your acceptance of the Terms as modified.
You hereby represent and warrant that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms. Access to and use of the Services is available only to individuals who are at least and can form legally binding contracts under applicable law. By accessing or using the Services, you represent and warrant that you are eligible.
By depositing money or entering a contest, you are representing and warranting that:
- you are a natural person of at least 18 years of age or the age of majority in your jurisdiction, whichever is higher, who is personally assigned to the email address and/or other information submitted in relation to your account;
- you are a citizen or resident of (and have an address in) the or another jurisdiction in which participation in the contest is not prohibited by applicable law;
- you are not, by employment or affiliation with a video game developer or professional e-sports team, or other entity, or for any other reason, restricted from entering into an amateur video game competition with a prize;
- at the time of deposit and participation in a contest, you are physically located in the United States of America, Canada, or another jurisdiction in which participation in the contest is not prohibited by applicable law;
- you will abide at all times by these Terms and any Other Governing Agreement between you and Challenger regarding your use of the Services or participation in contests;
- when depositing funds or entering a paid contest, you are not physically located in of any of the following states: Arkansas, Arizona, Iowa, Louisiana, Maryland, Michigan or South Carolina;
- the name on your bank account, credit card, and other payment and withdrawal information provided matches the name on your account;
- you are not subject to backup withholding tax because: (a) you are exempt from backup withholding, or (b) you have not been notified by the Internal Revenue Service (IRS) that you are subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified you that you are no longer subject to backup withholding.
- when entering any contest that awards prizes, you are not an employee of a video game developer or service provider associated with the video game associated with that contest.
- you do not, by virtue of affiliation with a video game developer or service provider, have access to source code underlying a video game associated with the entered contest.
If you do not meet the eligibility requirements of this section, then you are not permitted to use the Services and you agree that you will not use the Services. In addition to any other rights that Challenger may have in law or equity, Challenger reserves the right to suspend or terminate the account of any purported user of the Services that, in our sole discretion, does not meet the foregoing requirements.
Challenger may require you to provide proof that you are eligible to participate according to this Section 4 prior to receiving a prize. This includes by requesting that you fill out an affidavit of eligibility or other verification information (as discussed in Sections 5 and 6 below). If Challenger otherwise determines, in our sole discretion, that you do not meet the eligibility requirements of this section, in addition to any rights that Challenger may have in law or equity, Challenger reserves the right to terminate your account, withhold or revoke the awarding of any prizes associated with your account or limit your ability to withdraw funds. In such a situation, Challenger may pay out any withheld or revoked prizes to the other entrant(s) in the relevant contest in a manner consistent with the prize structure of the contest, to be precisely determined by Challenger in its sole discretion. Challenger also reserves the right to withhold revoked prizes to use in furtherance of its fraud prevention or anti-money laundering efforts.
Challenger consultants or promoters of the Services may play in contests without such limitation, but only if (i) their arrangement with Challenger does not permit them to have any access to the source code underlying the Challenger Services and (ii) they do not receive any other advantages in their play on the Services.
5. Conditions of Participation
In order to use the Services, including participation in a contest on the Services, you are required to register for an account. By registering for an account, you agree to: (i) provide accurate, current and complete information about yourself (including usernames and other identifiers associated with your third-party video game accounts) as prompted (such information being the “Registration Data”); (ii) maintain the security and confidentiality of the Registration Data; (iii) promptly update the Registration Data to keep it accurate, current and complete; (iv) ensure that others do not use your account; and (v) notify Challenger immediately in the event of unauthorized use of, or any other breach of your Registration Data.
If you provide any Registration Data that is inaccurate, not current or incomplete, or Challenger has reasonable grounds to suspect that such Registration Data is inaccurate, not current or incomplete, Challenger may deny you access to areas requiring registration or terminate your account, at its sole discretion. You agree that Challenger is not liable for any loss or damage resulting from your failure to maintain the confidentiality of your account as provided herein. Challenger may assume that any communications Challenger receives under your password have been made by you. You are fully responsible for all uses of your account, whether by you or others. You acknowledge and agree that Challenger is authorized to act on instructions received through use of your Registration Data, and that Challenger may, but is not obligated to, deny access or block any transaction made through use of your Registration Data without prior notice if we believe in our sole discretion such information is being used by someone other than you, or for any other reason.
You may establish, maintain, use and control only one account on the Services. Each account on the Services may only be owned, maintained, used and controlled by only one individual. For avoidance of doubt, users may not “co-own” accounts on the Services. In the event Challenger determines that you have opened, maintained, used or controlled more than one account, in addition to any other rights that Challenger may have, Challenger reserves the right to suspend or terminate any or all of your accounts and terminate, withhold or revoke the awarding of any prizes.
You agree that the sole and specific purpose of registering an account on Challenger is to participate in contests on the Services. Challenger shall be entitled to suspend, limit or terminate your account if we determine, in our sole discretion, that you are depositing funds without the intention of using them in contests on the Services. In such circumstances, we may also report such activity to relevant authorities.
You may not use a username that promotes a commercial venture or a username that Challenger in its sole discretion deems offensive. Many portions of the Services require registration for access (the “Restricted Areas”). Challenger may require you to change your username or may unilaterally change your username.
Challenger cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
6. Disqualification and Cancellation.
Challenger, in its sole discretion, may disqualify you from a contest or the Services, refuse to award consideration or prizes and require the return of any consideration or prizes, or suspend, limit, or terminate your account if you engage in conduct Challenger deems, in its sole discretion, to be improper, unfair, fraudulent or otherwise adverse to the operation of the Services or in any way detrimental to other users. Improper conduct includes, but is not limited to:
- falsifying personal information, including payment information, required to use the Services or claim consideration or prizes;
- violating eligible payment method terms, including the terms of any cash rewards payment card, violating any of these rules;
- accumulating consideration or prizes through unauthorized methods such as unauthorized scripts or other automated means;
- tampering with the administration of the Services or trying to in any way tamper with the computer programs associated with the Service;
- obtaining other users’ information and spamming other users;
- abusing the Services in any way;
- or otherwise violating these Terms or any other agreement between you and another user or you and Challenger regarding your use of the Services or entry into a contest.
You acknowledge that the forfeiture and/or return of any consideration or prizes shall in no way prevent Challenger from informing the relevant authorities, and/or pursuing criminal or civil proceedings in connection with such conduct.
If for any reason the Services are not running as originally planned (e.g., if the Services become corrupted or do not allow the proper usage and processing of contests in accordance with the rules, or if infection by a computer virus, bugs, tampering, unauthorized intervention, actions by entrants, fraud, technical failures, or any other causes of any kind, in the sole opinion of Challenger corrupts or affects the administration, security, fairness, integrity or proper conduct of the Services), Challenger reserves the right, in its sole discretion, to cancel, terminate, extend, modify, or suspend the contest or Services, and/or select the winner(s) of a contest based on its then-current status. In addition, Challenger may, in its sole discretion, disqualify any individual implicated in or relating to the cause.
Challenger reserves the right to cancel, terminate, modify, or suspend contests, in our sole discretion, without any restrictions, in which case notification may be posted through the Services.
The failure of Challenger to comply with any provision of these Terms due to an act of God, hurricane, war, fire, riot, earthquake, terrorism, act of public enemies, actions of governmental authorities outside of the control of Challenger (excepting compliance with applicable codes and regulations) or other force majeure event will not be considered a breach of these Terms.
7. Deposits, Withdrawals, and Taxes
By depositing funds, entering paid contests, or withdrawing funds, you agree to provide us with information we request, which may include a valid mailing address, date of birth, government identifiers, and social security number, and any other information we may require in order to run appropriate identity checks and comply with applicable rules and regulations. If necessary, you may be required to provide appropriate documentation that allows us to verify you. While your account is pending verification, you may be able to deposit funds into your account and participate in contests, but you will not be able to withdraw any funds from your account until verification is complete. If we are unable to verify you, we reserve the right to suspend your account and withhold any funds until such time as we have been able to successfully verify you.
We also may conduct checks for compliance with these Terms and Other Governing Agreements, including anti-fraud checks on playing patterns and deposits prior to processing a withdrawal, and we may request additional information before permitting a withdrawal. Subject to such checks, you may close your account and withdraw your deposits and/or winnings at any time and for any reason. Deposits, and player winnings after contests are finished, are held in a separate, segregated bank account by Challenger. These funds belong to you, subject to review for evidence of fraud, verification or other prohibited conduct as described above, and Challenger may not use them to cover its operating expenses or for other purposes. Your withdrawals will be made from this segregated bank account, and checks issued from that account may bear the name of Challenger’s subsidiary. Challenger may limit the amount a user can deposit into his or her account in its sole discretion and/or in accordance with potentially applicable state-imposed limits.
CHALLENGER RESERVES THE RIGHT TO SET A MINIMUM THRESHOLD FOR WITHDRAWAL. YOU MAY NOT BE ABLE TO WITHDRAW WINNINGS BELOW THAT MINIMUM THRESHOLD.
Each year all winners who have won $600 or more over the previous year must provide updated address and social security details to Challenger. These details will be used to allow Challenger to comply with tax regulations and may be shared with appropriate tax authorities. You, not Challenger, are responsible for filing and paying applicable state and federal taxes, duties, levies and/or fees on any winnings. Challenger does not provide tax advice, nor should any statements in this agreement or on the Services be construed as tax advice.
By entering a contest, you consent to Challenger’s and its service providers’ and business partners’ use of your in connection with the development, production, distribution and/or exploitation (including marketing and promotion) of the selected contest and/or other Challenger contests and Challenger generally, unless otherwise prohibited by law. Challenger and its business partners reserve the right to make public statements about the entrants and winner(s), on-air, on the Internet, or otherwise, prior to, during, or following the contest. Entrants agree that Challenger may announce any winner’s name on-air or on any of its websites or any other location at any time in connection with the marketing and promotion of Challenger or other contests or games operated by Challenger. You agree that participation in and (where applicable) the winning of a prize in connection with a contest constitute complete compensation for your obligations under this paragraph, and you agree not to seek to charge a fee or impose other conditions on the fulfillment of these obligations. The rules specific to certain contests may contain additional publicity obligations or may require a written signature on a separate publicity waiver.
Each contest is governed by the specific contest rules, scoring rules, controls and guidelines for that contest as may be described in the Other Governing Agreements. Such rules, scoring rules, controls and guidelines form part of these Terms and you agree that you shall comply with them in respect of each individual contest which you choose to enter.
Game of Skill. Challenger is a game of skill. Winners are determined by the criteria stated in each contest’s rules. For each contest, winners are determined by the entrants exhibiting their skill in the relevant video game.
Entry and Entry Fees. In order to enter into a contest, a user must download and run the Challenger client application, follow the instructions, and play a Challenger-supported video game.
After each contest ends, a tentative winner is announced but remains subject to final verification. No substitution or transfer of a prize is permitted. All taxes associated with the receipt or use of any prize are the sole responsibility of the winner. In the event that the awarding of any prizes to winners of the contest is challenged by any legal authority, Challenger reserves the right in its sole discretion to determine whether or not to award or adjust such prizes. In all disputes arising out of the determination of the winner of Challenger contests, Challenger is the sole judge and its actions are final and binding.
Winners are generally notified immediately following the conclusion of each contest. Winners may be requested to return via email or regular mail an affidavit of eligibility, a publicity agreement and appropriate tax forms by a specified deadline. Failure to comply with this requirement can result in disqualification.
Bonus Credits. We may offer credit bonuses to newly depositing users and for other marketing purposes. Any bonus credits a user receives is for entry into contests on Challenger and can only be withdrawn if the user has deposited funds into their Challenger account or won over a stated threshold of credits. In the event of abuse of the bonus system by any user, Challenger reserves the right to retract your user bonus. In cases where you have participated in a promotion to receive a bonus or other benefit, you may be required to play through your deposit (by entering contests) whose total entry fees equal the value of the deposit to receive the entirety of such bonus.
10. Access to the Services
You must provide, at your own expense, the equipment, software, subscriptions, Internet connections or devices and/or service plans, which may include, without limitation, content from video game platforms and service providers, as may be required to access and/or use the Services. Challenger does not guarantee that the Services or all portion(s) thereof can be accessed on all devices, or in connection with all video games. Challenger does not guarantee that the Services are available in all geographic locations. You acknowledge that when you use the Services, your Internet provider or video game platform or service provider may charge you fees for access, data, and/or other contents, products, or services. Check with your applicable provider(s) to see if there are any such fees that apply to you.
The Services may enable you to submit, post, upload, or otherwise make available through the Services content such as profile information, communications with other users, whether privately or made publicly available, video clips, photographs, public messages, ideas, comments and other content (collectively, “User Content”) that may or may not be viewable by other users.
You acknowledge and agree that all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom the User Content originated. This means that you, not Challenger, are entirely responsible for all User Content that you upload, post, share, email, transmit, or otherwise make available via the Service. You further agree that you have all required rights to submit, post, upload or otherwise use or disseminate such User Content without violation of any third-party rights. Under no circumstances will Challenger be liable in any way for any User Content.
You acknowledge that Challenger may or may not pre-screen User Content, but that Challenger and its designees have the right (but not the obligation) in their sole discretion to pre-screen, refuse, permanently delete, undelete, modify and/or move any User Content available via the Service. Without limiting the foregoing, Challenger and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable in Challenger’s sole discretion. You understand that by using the Service, you may be exposed to User Content that you may consider to be offensive or objectionable. You agree that you must evaluate, and bear all risks associated with, the use or disclosure of any User Content. You further acknowledge and agree that you bear the sole risk of reliance on any Content available on or through the Service.
With respect to User Content you submit or otherwise make available on or to the Service, you grant Challenger an irrevocable, fully sub-licensable, perpetual, world-wide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such User Content (in whole or in part), and to incorporate such User Content into other works, in any format or medium now known or later developed.
You are solely responsible for your interactions with other users of the Service. Challenger reserves the right, but has no obligation, to monitor disputes between you and other users.
12. Code of Conduct
You agree not to do or attempt to do any of the following:
- Create or operate multiple user accounts, log into a user account from multiple devices simultaneously, log into a user account from more than five different devices, or log into multiple user accounts from the same device, without Challenger’s express written consent;
- Participate in a contest on behalf of multiple users (including through multi-accounting) or otherwise collaborate or collude with others to participate in any contest or to achieve competitive advantage;
- Use cheats, exploits, hacks, bots, mods or third-party software designed to gain an advantage, perceived or actual, over other users of the Services, or modify or interfere with the Services;
- Violate contest rules, these Terms, any Other Governing Agreement, or any applicable law or regulation;
- Engage in any type of financial fraud, including unauthorized use of credit instruments to enter a contest or claim Credits or other prizes or deliberately transfer money between multiple user accounts, or any type of bonus abuse, abuse of the refer-a-friend program, or abuse of any other offers or promotions;
- Tamper with the administration of a contest or tamper with the computer programs or any security measure associated with a contest;
- Post or transmit, or cause to be posted or transmitted, any User Content that are infringing, libelous, defamatory, abusive, offensive, obscene, pornographic or otherwise violates any law or right of any third party;
- Use, replicate, display, mirror or frame (whether directly or through the use of meta tags) the Services or any individual element within the Services, Challenger’s name, any Challenger trademark, logo or other proprietary information or intellectual property, or the layout and design of any page or form contained on a page in any manner or format, including the development of any third-party applications that interact with our Services, without Challenger’s express written consent;
- Access, tamper with, or use non-public areas of the Services, Challenger’s computer systems, or the technical delivery systems of Challenger’s providers;
- Probe, scan or test the vulnerability of any Challenger system or network or breach, compromise, or circumvent any security or authentication measures;
- Use methods to disguise your location or otherwise circumvent Challenger’s tools to control access to the Service;
- Access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Challenger;
- Interfere with, disrupt, interrupt, negatively affect or inhibit other users from enjoying the Services, or take actions that could damage, interrupt, disable, overburden or impair the functioning of the Services in any manner;
- Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party without our express written approval to do so or in any manner not permitted by these Terms;
- Decipher, decompile, disassemble or reverse engineer or otherwise derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application or software used to provide the Services);
- Interfere with the access of any user, host or network;
- Collect, harvest, publish, or store any personally identifiable information from the Services from other users of the Services without their express permission or use automated means (including, but not limited to, harvest bots, robots, parser, spiders or screen scrapers) to obtain, collect or access any information on the Services or of any user for any purpose;
- Create a false identity or a user account for anyone other than yourself, impersonate or misrepresent your affiliation with any person or entity or falsify personal information or location information required to enter a contest or claim prizes;
- Transfer, sell, or trade your user account, credentials, or access to the Services to anyone without written permission from Challenger;
- Solicit or obtain other users’ user account credentials or confidential information or spam other users;
- Abuse the Services in any way; or
- Encourage or enable any other individual or User to do any of the foregoing.
A violation of this Section 12 may result in the removal of your content from the Services and/or the suspension or termination of your account or right and ability to use the Services. You acknowledge and agree that Challenger may in its sole discretion remove any User Content, block access to the Services or the content therein, and suspend or terminate any account at any time for any reason or no reason. To report abuse of the Terms, please contact us at firstname.lastname@example.org.
13. Limited License Grant
This Section 13 sets forth your limited license to use the Services (“License”). The Services are licensed to you, not sold.
Through your access, use, downloading, and/or installation of the Services, you are acquiring and Challenger grants you a personal, limited, non-exclusive, non-transferable license to install, use and access the Services for your non-commercial use as set forth in this License. Your acquired rights are subject to your compliance with this License. Any commercial use is prohibited. You are expressly prohibited from sub-licensing, renting, leasing, transferring or otherwise distributing the Services or any rights to use the Services (including, without limitation, your Registration Data and/or any other similar information). The term of your License shall commence on the date that you install or otherwise access or use the Services, and shall end on the earlier of the date that you dispose of the Services, or Challenger’s termination of this License.
14. Further Restrictions
Your right to use the Services is limited to the license grant above, and you may not otherwise copy, display, seek to disable, distribute, perform, publish, modify, transfer, create works from, or use the Services or any component of it, except as expressly authorized by Challenger. Unless expressly authorized in writing by Challenger, you are prohibited from making the Services (and/or a copy of the Services) available on or over a network where it could be used and/or downloaded by multiple users. You may not remove or alter any of Challenger’s trademarks and/or logos, any legal notices included in the Services and/or any related assets. Your right to use the Services is also predicated on your compliance with any applicable terms or agreements you have with third parties when using the Services.
15. Reservation of Rights
You have obtained a license to the Services and your rights are subject to this License. Except as expressly licensed to you herein, Challenger and its licensors reserve all right, title and interest in the Services, and all associated copyrights, trademarks, and other intellectual property rights therein. This License is limited to the intellectual property rights of Challenger and its licensors in the Services and does not include any rights to other patents or intellectual property. Except to the extent permitted under applicable law, you may not decompile, disassemble, or reverse engineer the Services, or any component thereof, by any means whatsoever. You may not remove, alter, or obscure any product or brand identification, copyright, or other intellectual property notices in the Services. All rights not expressly granted herein are reserved by Challenger.
This License is effective until terminated. Your rights under this License will terminate immediately and automatically without any notice from Challenger if you fail to comply with any of provision of these Terms or any Other Governing Agreement. Promptly upon termination, you must cease all use of the Services and destroy all copies of the Services in your possession or control. Termination will not limit any of Challenger’s other rights or remedies under these Terms, at law or in equity.
16. Location and Push Notifications and Other Technologies
17. Updates to the Services
You agree that the Services may automatically download and install updates, upgrades and additional features that Challenger deems reasonable, beneficial to you and/or reasonably necessary. You acknowledge and agree that any obligation Challenger may have to support the previous version(s) may be ended upon the availability of the update, upgrade and/or implementation of additional features. This License shall apply to any updates, upgrades and/or additional features that are not distributed with a separate license or other agreement.
18. Indemnification and Release
By using the Services, you agree to defend, indemnify, release and to hold harmless Challenger, as well as its officers, directors, employees, shareholders and representatives from and against any claims, liabilities, damages, losses, actions or expenses, including without limitation reasonable legal and accounting fees, of any kind, arising out of or in any way connected with (i) you access to our use of Services or your violation of these Terms; (ii) your User Content; (iii) your interaction with any other users; (iv) your receipt, ownership, use, or misuse of any prize, (v) any of your acts or omissions that implicate publicity rights, defamation, or invasion of privacy, or (iv) any claims made by any third party in connection with your use of the Services, the receipt, ownership, use or misuse of any products or services made available on or through the Services.
We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.
19. Warranty Disclaimers
You expressly understand and agree that your use of the Services is at your sole risk. The Services (including the related websites, apps, and content) are provided on an "AS IS" and "as available" basis, without warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose or non-infringement. You acknowledge that Challenger has no control over, and no duty to take any action regarding: which users gain access to or use the Services; what effects the content may have on you; how you may interpret or use the content; or what actions you may take as a result of having been exposed to the content. You release Challenger from all liability for you having acquired or not acquired content through the Services. The Services may contain, or direct you to other websites containing information that some people may find offensive or inappropriate. Challenger makes no representations concerning any content contained in or accessed through the Services, and Challenger will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services.
20. Limitations on Liability
YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SERVICES MAY NOT BE SECURE AND MAY BE INTERCEPTED OR LATER ACQUIRED BY UNAUTHORIZED PARTIES. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. RECOGNIZING SUCH, YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CHALLENGER NOR ITS SUPPLIERS OR LICENSORS WILL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER TANGIBLE OR INTANGIBLE LOSSES OR ANY OTHER DAMAGES BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY (EVEN IF CHALLENGER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE SERVICES; THE USE OR THE INABILITY TO USE THE SITE OR SERVICES; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; ANY ACTIONS WE TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS YOU SEND TO US; ANY INCORRECT, ILLEGIBLE, MISDIRECTED, STOLEN, INVALID OR INACCURATE INFORMATION; HUMAN ERRORS; TECHNICAL MALFUNCTIONS; FAILURES, INCLUDING PUBLIC UTILITY OR TELEPHONE OUTAGES; OMISSIONS, INTERRUPTIONS, LATENCY, DELETIONS OR DEFECTS OF ANY DEVICE OR NETWORK, PROVIDERS, OR SOFTWARE (INCLUDING, BUT NOT LIMITED TO, THOSE THAT DO NOT PERMIT AN INDIVIDUAL TO JOIN OR PARTICIPATE IN A CONTEST); ANY INJURY OR DAMAGE TO COMPUTER EQUIPMENT; INABILITY TO FULLY ACCESS THE SERVICES OR ANY OTHER WEBSITE; THEFT, TAMPERING, DESTRUCTION, OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, TRANSACTIONS, IMAGES OR OTHER CONTENT OF ANY KIND; DATA THAT IS PROCESSED LATE OR INCORRECTLY OR IS INCOMPLETE OR LOST; TYPOGRAPHICAL, PRINTING OR OTHER ERRORS, OR ANY COMBINATION THEREOF; OR ANY OTHER MATTER RELATING TO THE SERVICES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, CHALLENGER’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO CHALLENGER FOR GENERAL USE OF THE SERVICES DURING THE TERM OF YOUR REGISTRATION FOR THE SERVICES, NOT INCLUDING ANY PAYMENTS FOR CONTESTS RUN PRIOR TO THE CIRCUMSTANCES GIVING RISE TO THE CLAIM.
BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, LIABILITY OF CHALLENGER SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. ADDITIONAL DISCLAIMERS MAY APPEAR WITHIN THE SERVICES AND ARE INCORPORATED HEREIN BY REFERENCE. TO THE EXTENT ANY SUCH DISCLAIMERS PLACE GREATER RESTRICTIONS ON YOUR USE OF THE SERVICES OR THE CONTENT CONTAINED THEREIN, SUCH GREATER RESTRICTIONS SHALL APPLY. THIS LIMITATION OF LIABILITY SHALL APPLY TO THIRD PARTY CLAIMS AS WELL AS CLAIMS BETWEEN THE PARTIES.
IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IF YOU ARE A NEW JERSEY RESIDENT, OR A RESIDENT OF ANOTHER STATE THAT PERMITS THE EXCLUSION OF THESE WARRANTIES AND LIABILITIES, THEN THE ABOVE LIMITATIONS SPECIFICALLY DO APPLY TO YOU.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
IF YOU ARE NOT A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS UNDER ANY STATUTE OR COMMON LAW PRINCIPLE SIMILAR TO CALIFORNIA CIVIL CODE SECTION 1542 THAT GOVERNS YOUR RIGHTS IN THE JURISDICTION OF YOUR RESIDENCE.
21. Our Proprietary Rights
All title, ownership and intellectual property rights in and to the Services are owned by Challenger or its respective licensors. You acknowledge and agree that the Services contains proprietary and confidential information that is protected by applicable intellectual property and other laws. These Terms do not grant you or any other party any right, title, or interest in the Services or any content in the Services. Except as expressly authorized by Challenger, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services, in whole or in part.
Challenger reserves the right at any time to modify, suspend, discontinue, or terminate, temporarily or permanently, the Services or associated services (or any part thereof), with or without notice. You agree that Challenger shall not be liable to you or any third party for any modification, suspension or discontinuance of the Services or associated services.
We do not guarantee that any of our Services will be available at all times or at any given time or that we will continue to offer all or any of our Services for any particular length of time. We may change and update our Services without notice to you. We make no warranty or representation regarding the availability of our Services and reserve the right to modify or discontinue the Services in our sole discretion without notice, including for example, ceasing a contest or other Services for technical reasons (such as technical difficulties experienced by us or on the internet) or to allow us to improve user experience. NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU ACKNOWLEDGE AND AGREE THAT ANY OR ALL OF OUR SERVICES MAY BE TERMINATED IN WHOLE OR IN PART AT OUR SOLE DISCRETION WITHOUT NOTICE TO YOU. YOU ASSUME ANY AND ALL RISK OF LOSS ASSOCIATED WITH THE TERMINATION OF OUR SERVICES.
If you wish to terminate your account, you may simply discontinue using the Services or contact us at email@example.com via an email expressly stating that you wish to terminate your account.
All provisions of these Terms, which by their nature should survive termination, shall survive termination, including, without limitation, Conditions of Participation (except for Registration and username, password, and Security), Conduct, Limited License Grant, Warranty Disclaimers, Indemnity, Limitations of Liability, Our Proprietary Rights, Binding Arbitration and Class Action Waiver.
23. Binding Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
23.1 Initial Dispute Resolution
Our Customer Support team is available via email at firstname.lastname@example.org to address any concerns you may have regarding the Service. Our Customer Service team can resolve most concerns quickly to our players’ satisfaction. The parties shall use their best efforts through this customer support process to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration. Failure to engage in this process could result in the award of fees against you in arbitration.
23.2 Binding Arbitration
If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution begins under the Initial Dispute Resolution provision, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Service shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Streamlined Arbitration and Procedures, excluding any rules or procedures governing or permitting class or representative actions.
Except as set forth in Section 23.5, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
The Streamlined Arbitration Rules governing the arbitration may be accessed at www.jamsadr.com or by calling JAMS at (800) 352-5267. If you commence arbitration in accordance with these Terms, you will be required to pay $250 to initiate the arbitration. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require Challenger to pay the additional cost. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. If the arbitrator finds the arbitration to be non-frivolous, Challenger will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. For claims above $75,000, fees and costs will be determined in accordance with applicable JAMS rules. The arbitration rules permit you to recover attorney’s fees in certain cases.
Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based. The arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions in accordance with JAMS Rule 24 for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11).
The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Section 23 while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For residents outside of the United States, arbitration shall be initiated in the County of San Diego, State of California, United States of America, and you and Challenger agree to submit to the personal jurisdiction of any federal or state court in San Diego County, State of California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
23.4 Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND CHALLENGER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If there is a final judicial determination that applicable law precludes enforcement of this Paragraph’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
23.5 Exception - Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also elect to have disputes or claims resolved in a small claims court that are within the scope of that court’s jurisdiction. Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court in your state and county of residence. Seeking such relief shall not waive a party’s right to arbitration under this agreement.
23.6 30-Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: Challenger Interactive, Inc., 7040 Avenida Encinas, Suite 104-433, Carlsbad, CA, 92011. The notice must be sent within 30 days of the later of (i) your first use of the Services, or (ii) the Last Revised date of these Terms where Challenger made a material change to this Arbitration and Class Action Waiver section; otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Challenger also will not be bound by them.
23.7 Changes to this Section
Challenger will provide 30 days’ notice of any changes to this section. Changes will become effective on the 30th day. If you continue to use the site after the 30th day, you agree that any unfiled claims of which Challenger does not have actual notice are subject to the revised clause.
For any dispute not subject to arbitration you and Challenger agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in San Diego, California. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
The Terms and the relationship between you and Challenger shall be governed by the laws of the State of California without regard to conflict of law provisions.
Notice and Procedure for Making Claims of Copyright Infringement
Challenger may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who infringe the intellectual property of others. If you believe that your copyright or the copyright of a person on whose behalf you are authorized to act has been infringed, please provide Challenger’s a written Notice containing the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Service;
- your address, telephone number, and email address;
- a 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;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Challenger’s Copyright Agent can be reached in the following ways:
Mail: ATTN: Legal, Challenger, 7040 Avenida Encinas, Suite 104-433, Carlsbad, CA, 92011
To be valid, a Notice must be in writing and must follow the instructions above. You also may use the contact information in this Section to notify us of alleged violations of other intellectual property rights.
In this Section 25, references to Terms shall include these Terms and the License.
Severability and Survival. If any provision of the Terms is found by an arbitrator or court of competent jurisdiction to be invalid, illegal or unenforceable under applicable law, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the remainder of the provision shall be interpreted to achieve as closely as possible the effect of the original term and all other provisions of the Terms remain in full force and effect.
Limitation of Liability and Disclaimer of Warranties are Material Terms of these Terms. You agree that the provisions in these Terms that limit liability and disclaim warranties are essential terms of these Terms.
Entire Agreement. The Terms constitute the entire agreement between you and Challenger with respect to the Services and supersedes any prior agreements, oral or written, between you and Challenger.
The failure of Challenger to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or will be forever barred.
Section Titles. The section titles in the Terms are for convenience only and have no legal or contractual effect.
No Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
You agree to abide by U.S. and other applicable export control laws and agree not to transfer the Services to a foreign national or national destination, which is prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You certify that you are not a person with whom Challenger is prohibited from transacting business under applicable law.
Notices. Any notices or other communications provided by Challenger under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. Except as explicitly described in the “Binding Arbitration and Class Action Waiver” section, you may give notice to Challenger (such notice shall be deemed given when received by Challenger) at any time by emailing.
Assignment. These Terms are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
26. Contacting Us
If you have any questions, concerns, requests or comments regarding these Terms, or if you wish to opt out of communications from Challenger, we invite you to contact us by email at email@example.com or write to us at 7040 Avenida Encinas, Suite 104-433, Carlsbad, CA, 92011.