IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE BINDING ARBITRATION AND CLASS ACTION WAIVER SECTION IN SECTION 21 BELOW.
Last Update Posted: February 28, 2018
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.
Acceptance of Terms
BY CLICKING “SIGN IN” OR “REGISTER” OR ANY SIMILAR ACTION, CONNECTING TO THE SERVICES THROUGH A THIRD PARTY SUCH AS FACEBOOK (OR A SIMILAR THIRD PARTY OPTION), USING OR ACCESING THE SERVICES, OR DOWLOADING, INSTALLING OR USING THE SERVICES IN ANY WAY, YOU, YOUR HEIRS, AND ASSIGNS (COLLECTIVELY, “YOU”) AGREE TO BE BOUND BY THESE TERMS AND OUR ADDITIONAL RULES AND SCORING SYSTEM.
Modification to Terms
Except for Section 21, 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 18 years old 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 of 18 years of age or older or the age of majority in your jurisdiction;
-you are a citizen or resident of (and have an address in) the United States of America, Canada, or another jurisdiction in which participation in the contest is not prohibited by applicable law;
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 Document 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: Alaska, Arkansas, Arizona, Iowa, Louisiana, Maryland, or Vermont;
-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 5 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 6 and 7 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 employees may use the Services for the purpose of testing the user experience, but may not enter paid contests unless they are private contests with other Challenger employees.
Relatives of Challenger employees with whom they share a household are not eligible to participate in paid contests unless they are private contests with other Challenger employees or household members.
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.
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 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.
Username, Password, and Security. At the time of registration for online account access, you must provide a valid email address and supply a Username and Password to be used in conjunction with your account. 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"). You are responsible for maintaining the confidentiality of your Password, and are fully responsible for all uses of your Username and Password, whether by you or others. You agree to (a) never to use the same Password for the Services that you use or have ever used outside of the Services; (b) keep your Username and Password confidential and not share them with anyone else; (c) immediately notify Challenger of any unauthorized use of your Username and Password or account or any other breach of security; and (d) use only your own Username and Password to access the Services’ Restricted Areas. Challenger cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
Challenger may require you to change your Username or may unilaterally change your Username.
Disqualification and Cancellation. Challenger reserves the right to cancel contests, in our sole discretion, without any restrictions.
Deposits and Withdrawals
By depositing funds or entering paid contests, you agree to provide us with a valid mailing address, date of birth 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 Terms compliance, 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.
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 name, username, state and country of residence, games played, gaming identities, and photos 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. You should review the Rules and Scoring System. 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 while playing the online, multiplayer version of a Challenger-supported video game. A current list of Challenger-supported video games can be found on our support portal.
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.
Bonuses and Promotions. We frequently offer bonuses to newly depositing users and for other marketing purposes. Certain bonuses are awarded as a “promotional credits” earned gradually when users enter and complete paid contests. A user’s pending bonus is converted into a Challenger Credit that can be used to play on Challenger as the user enters paid contests in accordance with the terms of the offer or promotion. Unless otherwise stated, any unconverted pending bonus remaining in a player’s account 45 days after it has been initially credited can be removed by Challenger. Any credit a new user receives is for entry into competitions on Challenger and can only be withdrawn if they have been previously entered into at least one game. Additionally, if a user immediately withdraws money after a deposit which delivers a deposit bonus then the bonus will be retracted. In the event of abuse of the bonus system by any user, Challenger reserves the right to retract your user bonuses.
Challenger may also offer Challenger Promotional Credits, in accordance with the terms of a promotion or for other marketing purposes at Challenger’s sole discretion. The terms and conditions of that promotion will be provided on the promotion page.
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. 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.
When you submit User Content on or through your use of any of the Services, you grant Challenger a world-wide, perpetual, irrevocable, royalty-free, non-exclusive, and sub-licenseable license to use, copy, distribute, reproduce, modify, edit, adapt, publicly perform, publicly display, translate, create derivative works from, and publish such User Content, in whole or in part, in any format or medium now known or developed in the future, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. Notwithstanding the above, you shall maintain your intellectual property rights in your User Content.
You acknowledge and agree that your user Registration Data may be associated with any User Content that you post. You represent and warrant to Challenger that you own or otherwise control all rights to any User Content you post on or through the Services. You agree that you will indemnify, defend, and hold harmless Challenger for all claims resulting from User Content you post. 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.
You acknowledge and agree that Challenger and its designees may or may not, at Challenger discretion, pre-screen User Content before its appearance on the Services, but that Challenger has no obligation to do so. You further acknowledge and agree that Challenger reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit or remove any User Content that is contributed to the Services. Without limiting the foregoing, Challenger and its designees shall have the right to remove any User Content that violates the Terms or is otherwise objectionable in Challenger’s sole discretion. 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.
You acknowledge and agree that Challenger does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content. You understand that by using the Services, you may be exposed to User Content that you may consider offensive or objectionable. You also acknowledge that Challenger is a provider of an interactive computing service as set forth the Communications Decency Act, 47 U.S.C. §230. Challenger expressly reserves its rights to not be treated as the publisher or speaker of any information provided by another information content provider on or through the Services.
Code of Conduct
You promise not to use the Services for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably intended by Challenger. By way of example, and not as a limitation, you agree:
-that you will not to abuse, harass, impersonate, intimidate or threaten other users.
-that you will not post or transmit, or cause to be posted or transmitted, any content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification.
-that you will not post or transmit, or cause to be posted or transmitted, any content that is unlawful, harmful, tortious, defamatory, libelous, obscene, pornographic, or invasive of another's privacy.
-that you will not make available through the Services any information that infringes any intellectual property or privacy rights of any other person or entity.
-that you will not copy, download (other than through page caching necessary for personal use, downloading a mobile application or the Challenger client application, or as otherwise expressly permitted by these Terms), modify, distribute, transmit, display, perform, reproduce, broadcast, duplicate, publish, license, create derivative works from, or offer for sale any content or other information contained on or obtained from or through the Services, by any means except as provided for in these Terms or with the prior written consent of Challenger.
-that you will not scrape, access, monitor, index, frame, link, or copy any content or information on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or using any method of access other than manually accessing the publicly-available portions of the Services through a browser or accessing the Services through any approved mobile application, application programming interface, or client application.
-that you will not violate the restrictions in any robot exclusion headers of the Services, if any, or bypass or circumvent other measures employed to prevent or limit access to the Services.
-that you will not post material that advocates illegal activity or discusses illegal activities with the intent to commit them (in either case as determined by Challenger in its sole discretion).
-that you will not post or otherwise make available any material that contains any software, device, instructions, computer code, files, programs and/or other content or feature that is designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment (including without limitation any time bomb, virus, software lock, worm, self-destruction, drop-device, malicious logic, Trojan horse, trap door, "disabling," "lock out," "metering" device or any malicious code).
-that you will not post or do anything that could disable, overburden, or impair the proper working of the Services.
-that you will not post material that impedes or otherwise prohibits communication; disrupts the discussion including, without limitation, material that is offensive to a user, a video game, a video game developer or service provider, or repeatedly posting off-topic messages in a topical message board.
-that you will not post, utilize or otherwise make available any other party's intellectual property unless you have the right to do so, whether through an assignment of rights, use waiver, license, fair-use exception, or under generally accepted news practices.
-that you will not post any trade secrets or other confidential or proprietary information, or post any material that you do not have a right to make available under any law or under contractual or fiduciary relationships, including but not limited to inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements.
-that you will not falsely state or otherwise misrepresent your affiliation with a person or entity, or impersonate any person or entity in a manner that does not constitute parody.
-that you will not through misrepresentation or otherwise, solicit personal or sensitive information from other users such as address, credit card or financial account information, passwords or other Registration Data.
-that you will not submit content linking to affiliate programs, multi-level marketing schemes, sites repurposing existing stories or off-topic content.
-that you will not violate the law or encourage conduct that would constitute a criminal offense or give rise to civil liability.
-that you will not download or use the Services if you are under the age of 18, regardless of any age rating that is given to the Services by any third party.
-that you will deny access to the Services to individuals under the age of 18, and monitor the use of Services so that it may not be used by individuals under the age of 18.
-that you will use the Services for personal and non-commercial purposes only.
-that you will not use the Services to advertise, solicit or transmit commercial advertisements, including without limitation junk e-mail, spam, spim, or any other unsolicited messages regardless of the medium (e.g., email, text, SMS, chat, etc.)
-that you will use the Services only for lawful purposes. This means that you will not use the Services to directly or indirectly violate any applicable law, rule or regulation or use the Services in any manner that would promote, aid or abet the violation of any applicable law, rule or regulation.
-that you will not transfer, sell or trade the Services to anyone without written permission from Challenger.
-that you will not sell or otherwise transfer your Registration Data.
-that you will not use or access a version of the Services or Registration Data that has been transferred, sold or traded from another user without written permission from Challenger, except as permitted by these Terms.
-that you will not use the Services in a way that violates these Terms, any Other Governing Agreement or any guidelines or policies posted by Challenger.
-that you will not use the Services in a way that interferes with any other party’s use and enjoyment of the Services.
A violation of this Section 11 may result in the removal of your content from the Services and/or the suspension or cancellation 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 email@example.com.
Limited License Grant
This Section 12 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
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.
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.
Location and Push Notifications and Other Technologies
This Services also may make use of push notifications to devices that support the transmission of such notifications or alerts. Push notifications are used to send notification messages to you regarding offers, products, events, and other promotions and related alerts, as well as informational and/or administrative messages. After downloading the Services, you may be asked to accept or deny push notifications. If you deny, you will not receive any push notifications. If you accept, push notifications will be automatically sent to you. If you no longer wish to receive push notifications from this Services, you may opt out by changing your notification settings on your device or, if applicable, through the push notification service. For mobile devices, the device manufacturer, not Challenger, controls these notification settings
Links to Third Party Websites and Services
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.
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; 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.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold Challenger and each of its officers, directors, employees, shareholders and representatives harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms.
If you are a California resident, you waive California Civil Code Section 1542, which provides:
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.
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.
THE SERVICES AND ALL RELATED CONTENT, PRODUCTS, SERVICES AND MATERIALS PROVIDED OR MADE AVAILABLE ON OR THROUGH THE SERVICES ARE PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. CHALLENGER AND ITS RESPECTIVE LICENSORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AND REPRESENTATIVES (COLLECTIVELY “CHALLENGER” FOR PURPOSES OF THIS SECTION AND SECTION 18) DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CHALLENGER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT THE SERVICES WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER SERVICES OR EQUIPMENT; THAT ANY ERRORS IN THE SERVICES WILL BE CORRECTED; OR THAT THE SERVICES WILL BE AVAILABLE FOR REINSTALLATION TO THE SAME OR MULTIPLE DEVICES OR EQUIPMENT. NO ORAL OR WRITTEN ADVICE PROVIDED BY CHALLENGER, APPLE INC. (“APPLE”), GOOGLE INC. OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
Limitations on Liability
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL CHALLENGER OR ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS AND REPRESENTATIVE BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE FAILURE OR MALFUNCTION OR ANY OTHER FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, THE LICENSE, OR THE SERVICES WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CHALLENGER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEMDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 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 USE OF THE SERVICES. THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO NEW JERSEY RESIDENTS.
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. 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 firstname.lastname@example.org 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), Game Rules (only Bonuses and Promotions), Conduct, Limited License Grant, Warranty Disclaimers, Indemnity, Limitations of Liability, Our Proprietary Rights, Binding Arbitration and Class Action Waiver.
Binding Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS
Federal Arbitration Act
You and Challenger (the “parties”) agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
Initial Dispute Resolution
Most disputes can be resolved without resort to litigation. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Challenger, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. To commence this procedure, you agree to contact Challenger’s support department at email@example.com or Challenger may contact you using the last available information it has for you.
If the parties do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then the parties agree to resolve by arbitration subject to the provisions in this Section 21. Specifically, all claims arising out of or relating to these Terms (including its formation, performance, and breach), the parties’ relationship with each other, and/or your download of, access to, or use of the Services shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS rules in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. 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 is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. 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. To start an arbitration, you must do the following: (A) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover. You may find a copy of a Demand for Arbitration at www.jamsadr.com; (B) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 401 B Street Suite 2100 San Diego, CA 92101, USA; and (C) Send one copy of the Demand for Arbitration to us at 7040 Avenida Encinas, Suite 104-433, Carlsbad, CA 92011
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. 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 may take place at any reasonable location within the United States convenient for you. For residents outside the United States, arbitration shall be initiated in the State of California, United States of America. Residents of the United States and those who resides outside the United States and we further agree to submit to the personal jurisdiction of any federal or state court in San Diego, California, United States of America 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.
Class Action Waiver
The parties further agree that the resolution of any disputes between the parties 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 any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through initial dispute resolution or binding arbitration, either party may bring an action in state or federal court or in the U.S. Patent and Trademark Office 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 seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction. For such disputes, you and Challenger agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in the San Diego, California, United States of America. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
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 firstname.lastname@example.org with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of your first download of, access to, or use of the Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, we also will not be bound by them.
Changes to this Section. Challenger will provide 60-days’ notice of any changes to this section. Changes will become effective on the 60th day, and will apply prospectively only to any claims arising after the 60th day. If a court or arbitrator decides that this subsection on “Changes to this Section” is not enforceable or valid, then this subsection shall be severed from the Section entitled Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Arbitration and Class Action Waiver (or similarly named) section in existence after you first downloaded, accessed, or used the Services.
These 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. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to these Terms or to any dispute or transaction arising out of these Terms.
In this Section 23, references to Terms shall include these Terms and the License.
Sever-ability 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.
Section Titles. The section titles in the Terms are for convenience only and have no legal or contractual effect.
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.
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.
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