POWR Terms of Service 1.0 (Effective May 30, 2020)
Our Company (“we”, “us”, or “our”) appreciates your choice to use the POWR gaming connection service. To ensure a safe and fun environment for all Members, we have created these Terms of Service (the “Agreement” or “Terms”), which we may update, from time to time, at our sole discretion. These Terms, and all schedules and appendices hereto, govern the relationship between you, (“you or “your”) and the Company with respect to the matters herein.
Acceptance – shall have the meaning identified in Section 2.3 below.
Account – a user account created for use of, and access to, Company Services.
Athlete – a professional athlete or celebrity, as determined by Company in its sole discretion, that creates an Account.
Check-In – shall have the meaning identified in Section 3.5.3 below.
Code of Conduct – the restrictions on certain activities that all Members must adhere to while engaging in the Company Services, as more fully set forth in Sections 3.6, 3.7, 3.10, and 3.11.
Company - ASUAJE KUSNICK AND NEWMAN LLC, a Florida limited liability company, with its principal place of business at 131 S. FEDERAL HWY, SUITE 617, BOCA RATON, FL 33432.
Company Services – the Website, Platform and associated services which Company may offer, from time to time, which collectively comprise an online service to connect Gamers with Athletes.
Content – all communications, images, sounds, graphics, text, or other material and information that is created, uploaded, used or transmitted on the Website or in the Platform.
Credentials – shall have the meaning identified in Section 2.4 below.
Gamer – a non-Athlete natural person who creates an Account to access the Platform and engage in the Company Services.
Governing Law – any federal, state, or local law, ordinance, or other regulation, which affects any party’s performance under these Terms, in accordance with Section 10.
Match – a virtual contest or cooperative event.
Match Block – a twenty-five minute time block, with an estimated start time, subject to Scheduling Delay, as may be established by Athletes, from time to time, during which such Athlete has listed his/her availability to participate in Matches.
Match Request – a Gamer request to reserve a Match Block of a particular Athlete.
Member – a Gamer or Athlete, with an established Account.
Participation or Participating– a Member’s use of and/or access to the Platform and/or the Website, and/or engagement in any of the Company Services.
Platform - the POWR platform, whether on the desktop version of the Website, a mobile version of the Website, or a mobile application.
POWR Points – shall have the meaning identified in Section 3.3 below.
POWR Wallet – shall have the meaning identified in Section 2.7 below.
Publication – shall have the meaning identified in Section 5.0 below.
Scheduling Delay – shall have the meaning set forth in Section 3.5.5.
Seasoned – shall mean POWR Points earned by an Athlete where: i) the Athlete has completed the related Match Block, without violation of these Terms; ii) no dispute has been received by Company as to the Athlete’s completion of the Match Block; and iii) thirty (30) days has passed since the date of the related Match Block.
Termination – Shall mean termination of an Account, in which event: i) any right with respect to POWR Points associated with such Account shall be deemed forfeited, ii) no refund shall be given for any amounts which were pre-paid prior to termination; and iii) access to the Company Services shall no longer be permitted.
Third Party Sites – shall have the meaning identified in Section 3.9 below.
Website – The website, http://powr.gg where the Company Services and Platform are available.
- Member Accounts.
- Account Creation. To Participate, whether as an Athlete or Gamer, you must first register by creating an Account. The Company Services are intended for mature users, therefore, you may only create an Account if you:
- are a “natural person”; AND
- are over the age of 18; OR, subject to Governing Law, are under the age of 18 but over the age of 13 AND who has first obtained the consent and is under the supervision of his/her parent or legal guardian; AND
- have the legal authority to enter into, and be bound by, contracts; AND
- you are not an individual specifically prohibited by the Company from using the Platform; AND
- if creating an Athlete account, you are a citizen or legal resident of the United States, authorized to work and receive compensation in each US state and the US territories; AND
- agree to Participate in accordance with the terms and conditions set forth herein.
All transactions involving any person under the age of 18 shall be deemed to be consented to, and under the direct supervision of, such person’s parent or legal guardian; in all such instances the applicable parent or legal guardian shall be responsible for all activity engaged in by such person. Any Account created in violation of Section 2.1(i)-(vi) shall be deemed a material breach of these Terms by such person.
- Restrictions on Accounts. You may only have one Account. You may not Participate or otherwise create or use an Account on behalf of any other person or entity, or for a commercial purpose. In the event Company discovers any activity in violation of these Terms or any fraudulent activity involving your Account, Company reserves the right to take all necessary and proper action, including but not limited to Account termination, the banning of Members, and notification of relevant legal authorities.
- Click-Thru. Without limitation of these Terms, you agree that when in the future you click “I agree,” “I consent” or any other similarly worded “Button” on the Website or the Platform, such agreement or consent will be legally binding, enforceable and the legal equivalent of your physical signature (an “Acceptance”). For avoidance of doubt, your use of the Company Services shall constitute your Acceptance of these Terms.
- Membership Review. Company reserves the right to, but shall not be required to (or have any liability relating to), perform an investigation on Members, at any time, from the date of Account creation through the later of: i) the date of termination of applicable Account, or ii) your last event (or attempted event) of Participation. Company shall further be permitted to monitor your use of the Company Services at all times. If, at any time, Company determines your actions, inactions, or background is in violation of these Terms, or any other applicable rule, regulation, or Governing Law at such time, then Company, at Company’s sole discretion, may suspend or Terminate your Account and/or right to Participate, and/or to condition any continued use/Participation on your provision of additional verification or information. In addition to the foregoing, for Athlete created Accounts, Company may request confirmation of your identity and proof that you, in fact, qualify as an Athlete, at Company’s sole discretion and determination. FOR AVOIDANCE OF DOUBT, COMPANY SHALL HAVE FULL AND ABSOLUTE DISCRETION IN DETERMINING WHETHER A USER QUALIFIES AS AN ATHLETE. ALL DECISIONS MADE BY COMPANY ARE FINAL AND SHALL NOT BE SUBJECT TO APPEAL. NOTWITHSTANDING THE FOREGOING, A COMPANY DETERMINATION THAT A USER IS AN ATHLETE SHALL NOT BE DEEMED AN ENDORSEMENT OF SUCH USER OR A REPRESENTATION OR WARRANTY BY COMPANY AS TO THE ACTUAL IDENTITY OF SUCH USER.
- Account Communications. You agree that any communication received by Company from your Account, or the e-mail address associated with your Account, including but not limited to an Acceptance, instruction, or confirmation, shall be deemed to have been made by you, regardless of whether such communication was actually initiated by you or some other third party. In no event shall Company be responsible for investigating the authenticity of any communication received from your Account. You agree to notify Company in the event you receive any information from Company which is not expressly intended for you, and will maintain such information in strict confidence.
- Athlete Accounts. If you are deemed an Athlete by Company, you may be permitted to: i) create an Account specific for Athletes, which will allow you to participate in certain Company Services, more fully described in Section 3.5.2; ii) request eligibility to receive POWR Points from Gamers in exchange for your agreement to reserve and engage in Match Blocks; and iii) request eligibility to create a POWR Point virtual wallet (a “POWR Wallet”) to receive the POWR Points earned by you, all subject to these Terms and the terms of any other applicable written agreement between you and Company.
- Conversions. Subject to these Terms and the terms of any written agreement between Athlete and Company, if any, Athletes may, from time to time, be permitted to redeem Seasoned POWR Points received from Gamers, for US Dollars (a “Conversion”), at such rate as may be made established by Company, at its discretion, from time to time. Without limitation of the foregoing discretion of Company, in the event of any change in Conversion rate, Company shall provide Athletes with no less than thirty (30) days’ advance notice. For avoidance of doubt, in no event shall the amount charged by Company for the purchase of POWR Points be deemed to require Conversion at, or near, such amount. If you are an Athlete, you specifically agree to submit Conversion requests, if any, to Company only through the Platform and only when POWR Points become Seasoned, by completing all necessary steps via the Platform as may be required by Company, from time to time (the “Conversion Request Form”). Anything to the contrary notwithstanding, Conversion requests: i) will be processed in the order received by Company, ii) are subject to your proper completion of a Conversion Request Form, and iii) may take up to thirty (30) days to process. Conversions may be subject to third party fees, taxes, and applicable withholdings. For avoidance of doubt, all Conversion Requests relating to POWR Points that are not Seasoned will be denied. In the event Company receives any dispute relating to, or arising from, any Match Block and/or POWR Point(s) relating to a Conversion Request, Company shall have the right to delay Conversion of all associated POWR Points until Company, at its sole discretion, has determined the dispute to have been resolved, at which time Company may, at its sole discretion, approve or deny the Conversion request based upon the nature of the resolution of such dispute. Anything to the contrary notwithstanding, without limitation of its other rights, should Company, at any time and in its sole discretion, determine that an Athlete has violated these Terms, Company shall have the right to invalidate, revoke, and cancel all of the Athlete’s POWR Points and rights thereto. For avoidance of doubt, shall have no obligation to Convert any such POWR Points.
- The Company Services.
- Company Grant of License. Once you properly create an Account, we will grant you a non-exclusive, limited, non-transferable, non-sublicensable license to Participate in the Company Services, subject to these Terms, for so long as they remain in effect. For avoidance of doubt, nothing in this grant of license shall be deemed to transfer or convey ownership in any intellectual property rights owned by Company.
- Member Grant of License. By Participating you hereby grant Company a perpetual, worldwide, irrevocable, non-exclusive, royalty-free, and transferable license to use, stream, broadcast, access, view, display, copy, modify, distribute, license, sell, transfer, and exploit all Content submitted, input, or uploaded by you to the Website and/or Platform. For avoidance of doubt, this license shall include rights to your name, image, likeness, and voice, as each may appear, from time to time, in any medium arising from or relating to the Website or the Platform, including but not limited to streams, videos, and photographs.
- POWR Points. While Participating, Gamers may be provided with the ability to purchase platform currency (“POWR Points”) through the Website or Third Party Sites, which may be exchanged, at the applicable rate listed in the Platform, for the opportunity to reserve Match Blocks. In connection with the sale of POWR Points, and in additional to any charges set forth in Section 3.9, Company shall have the right, in its sole discretion, to assess processing fees and administrative charges to POWR Point purchases, from time to time. ALL SALES OF POWR POINTS ARE FINAL. Sales tax and third party fees may apply to purchases of POWR Points, which shall be the sole responsibility of the purchaser of such POWR Points. In no event, including but not limited to an Athlete’s failure to participate in, or complete, a Match Block, shall Company issue a refund for any purchase of POWR Points. POWR Point costs may vary, at Company’s sole discretion, from time to time. In no event shall Company be required to issue additional POWR Points in the event of a subsequent decrease in price. POWR Point costs for Match Blocks are determined by Athletes, not Company, and may increase or decrease, from time to time, all without prior notice. POWR Points shall be deemed redeemed, and, as between Gamer and Athlete, all rights in and to such POWR Point transferred from Gamer to Athlete, upon both Member’s completing Check-In prior to the associated Match Block. Any POWR Points not used within twelve (12) months of the date of their purchase shall be deemed expired, in which event Company, at its sole discretion, may invalidate, revoke, and cancel such POWR Points and the Gamer’s rights thereto. YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS NOT REQUIRED TO REFUND ANY AMOUNTS PAID BY YOU FOR POWR POINTS, OR FOR ANY OTHER PURCHASE(S) MADE BY YOU THROUGH THE WEBSITE OR THE PLATFORM, FOR ANY REASON, INCLUDING BUT NOT LIMITED TO AN ATHLETE’S FAILURE TO ENGAGE IN A MATCH BLOCK.
- Match Scheduling. If you are an Athlete, subject to these Terms, you may be given the option to publish your availability for one or more Match Blocks, which will allow Gamers the opportunity to reserve such time to engage in Matches. By submitting your availability for Match Blocks, you represent and warrant that: i) you will be available during the time selected should you receive and accept a Match Request; ii) you will not be under the influence of alcohol or any other mind altering substance, prescribed medication excluded, during such period; and iii) in the event you accept a Match Request, you will engage in all relevant Matches with the requesting Gamer, in full accordance with these Terms and, if any, the terms of any other written agreement between you and Company. In the event of an unforeseen unavailability during any period of time with an accepted Gamer reservation, you agree to take all necessary steps to notify Company and the affected Gamer, and to take such action as may be reasonably determined by Company to cure such breach. Should your availability change for any Match Block that has no Gamer reservation, you agree to promptly update your availability schedule in the Platform and shall decline all Match Requests for the period of unavailability.
- Match Participation.
- Gamers. If you are a Gamer, subject to these Terms, you may be provided with the ability to communicate with Athletes and other Gamers and third parties through the Platform (directly or indirectly), and to negotiate the redemption of POWR Points to reserve Match Blocks. Gamers may be given the opportunity to initiate negotiation of Match Blocks by submitting Match Requests. Anything to the contrary notwithstanding, all reservations of Match Blocks are subject to the Athlete’s acceptance of a Match Request. Selection of the subject content of a Match Block, the platform for accessing such related content, and the means of communication related to your Match Block, shall be strictly between you and the applicable Athlete, to the complete exclusion of Company. Company accepts no responsibility for, and you agree to hold Company harmless from, all damages incurred by you as a result of, or relating to, the foregoing matters.
- Athletes. If you are an Athlete, subject to these Terms and, if any, the obligations contained in any separate written agreement with Company, you may be provided with the ability to communicate with Gamers and other Athletes and third parties through the Platform (directly or indirectly), and to accept Match Requests and receive POWR Points to reserve and engage in Match Blocks. You agree to use good faith efforts to promptly respond with an acceptance or rejection of all Match Requests. Selection of the subject content of a Match Block, the platform for accessing such related content, and the means of communication related to your Match Block, shall be strictly between the you and the applicable Gamer, to the complete exclusion of Company. You further agree that you will not prematurely terminate, or fail to engage in, any Match Block for which you have accepted a Match Request, except in the event that i) a Gamer has violated the Code of Conduct; and/or ii) continuing such Match Block will reasonably cause harm to any person or property. Company accepts no responsibility for, and you agree to hold Company harmless from, all damages incurred by you as a result of, or relating to, the foregoing matters.
- Check-In. Subject to Scheduling Delays, by Participating you agree that they will “Check-In” to all Match Blocks to which you have requested/accepted. As used herein, “Check-In” shall mean submitting electronic confirmation in response to a Platform generated electronic message, not less than five (5) minutes prior to the beginning of the relevant Match Block. Notwithstanding the foregoing, in the event of a Scheduling Delay, an Athlete Check-In may be reasonably delayed. At or prior to Check-In Athletes may be required, at Company’s sole discretion, to complete multi-factor authentication, of such a nature as may be deemed reasonable by Company. Failure of either Member to Check-In prior to the scheduled start time of a Match Block may result in a cancellation of the Match Block. In the event of a Gamer failure to Check-In, all related POWR Points shall be deemed forfeited and shall immediately be deemed earned by Athlete. For avoidance of doubt, Company shall not be responsible for any cancellation for failure of either party to Check-In. Without limitation of any other provision of these Terms, in no event shall Company be required to issue a refund upon a cancellation under this Section.
- Partial Matches. By Participating, you acknowledge and agree that Matches are variable in length and that: i) Match Blocks may be insufficient in length to complete a Match to conclusion; and/or ii) Match(es) may be insufficient in length to fill a Match Block. Furthermore: i) in the event a Match concludes prior to the conclusion of the Match Block, the relevant Members agree to work in good faith to determine whether they will: x) attempt to play another Match, with the mutual understanding that such Match will be discontinued prior to completion when the Match Block ends, if still ongoing; or y) utilize the remaining time to engage in a different Match or other mutually agreeable activity; and ii) in the event a Match Block concludes prior to the conclusion of the Match, the relevant Members agree to work in good faith to determine whether they will: x) end the Match at the conclusion of the Match Block; or y) the Gamer will purchase an additional Match Block. Company accepts no responsibility for, and you agree to hold Company harmless from, all damages incurred by you as a result of, or relating to, the foregoing matters.
- Scheduling Delays. By Participating, you acknowledge and agree that Match Block start times are estimates and an Athlete’s availability for such Match Block is subject to reasonable delay or cancellation to accommodate unforeseen factors, including but not limited to delays in commencing prior Match Blocks, internet connectivity issues, hardware and software issues, and Match availability (each a “Scheduling Delay”). By way of example, some third party software may impose time bans on players who abandon games early, resulting in a delay of the successive Match Block to either: i) accommodate conclusion of such game; or ii) await the conclusion of the time ban imposed. In the event of a Scheduling Delay, the relevant Members agree to work in good faith to negotiate alternative start times for the affected Match Block(s). In the event of a Match Block cancellation under this part, the POWR Points used for such cancelled Match Block will be returned to Gamer within thirty (30) days of Company’s receipt of written request from Gamer, which shall be the affected Gamer’s sole remedy.
- Member Conduct; Hold Harmless. Though we strive to promote a great experience for all Members, and have established these Terms in an effort to realize this goal, by Participating you acknowledge and agree that Company serves solely as a provider of a platform for Members to interact, and Company has no control over the individual conduct of any Member(s). Accordingly, you hereby agree to assume the risk of interaction with Members, including but not limited to the Athletes (if you are a Gamer) and Gamers (if you are an Athlete), and to hold Company harmless from all costs, claims, damages, and causes of action relating to, or arising from, the actions or inactions of any Member. For avoidance of doubt, in no event shall Company be responsible for any damage or harm resulting from your interactions with any Athlete, other Gamers, or any other Members, including but not limited to the following:
- Failure of a Member to complete or engage in a Match;
- Failure of a Member to engage in communications during a Match;
- Any misrepresentation of identity by any Member;
- The outcome of any Match;
- Member conduct which violates the Code of Conduct;
- Use and/or reproduction of your name, image, voice, likeness, or Content by any Member, including in any Publication, where such use is in violation of these Terms;
- Emotional or physical distress or injury suffered by you as a result of any Member; and/or
- Member conduct in violation of these Terms which leads to the harm of any person or property.
COMPANY MAKES NO REPRESENTATIONS OR GUARANTEES REGARDING THE ACTUAL IDENTITY OF ATHLETES. IF YOU ARE AN ATHLETE, YOU AGREE YOU SHALL NOT MAKE ANY MISREPRESENTATION, DIRECTLY OR INDIRECTLY, REGARDING YOUR IDENTITY AND SHALL AT ALL TIMES BE THE ACTUAL PARTY ENGAGING IN COMMUNICATION AND PLAY RELATING TO EACH MATCH. IF YOU ARE A GAMER, YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO TAKE ALL REASONABLE EFFORTS TO VERIFY THE AUTHENTICITY OF ANY PARTY CLAIMING TO BE AN ATHLETE, PRIOR TO ENGAGING IN A MATCH AND/OR REDEEMING POWR POINTS TO PLAY WITH SAID ATHLETE. ANTYTHING TO THE CONTRARY NOTWITHSTANDING, IN NO EVENT SHALL COMPANY BE LIABLE FOR, OR REQUIRED TO ISSUE A REFUND RELATING TO, ANY MISREPRESENTATION OF IDENTITY BY AN ATHLETE.
- Member Claims. You agree that for any legal proceeding brought by you for the actions or inactions of any Member, or any other third parties relating to, or arising from, your use of the Company Services, such proceeding will be limited to a claim against the particular Member(s) or other third parties who caused you harm. You specifically agree not to attempt to impose any liability on, or seek any legal remedy from or against, Company with respect to the actions or inactions of any Member(s) or such third parties. Anything to the contrary notwithstanding, Company’s sole and exclusive liability for the Company Services shall be as expressly provided for in Section 8 of these Terms.
- Third Party Payment; Links. The Website and Platform may contain links to third party websites including, but not limited to, payment sites for the purchasing of POWR Points (“Third Party Sites”). You acknowledge and agree that Company does not control such Third Party Sites, and Company makes no representations whatsoever concerning the terms, content, accuracy, security or privacy of those sites. Third Party Sites may included charges by such third party for their use. The presence or use of Third Party Sites shall not be deemed to imply any endorsement thereof by Company. By your Participation, you agree to assume all risk arising from your use of all Third Party Sites.
- Conduct In Participation. You agree that your Participation shall at all times be in compliance with Governing Law, and that you will not engage in any conduct which Company may deem or construe as disruptive, offensive, or dangerous. For avoidance of doubt, and without limitation of the foregoing, the following content is explicitly prohibited during any Participation in the Company Services:
- Illegal activity;
- Illicit drug use;
- Drug and/or alcohol abuse;
- Sexual misconduct;
- Sexually suggestive content relating to minors;
- Conduct that threatens, harasses, or bullies, or encourages such actions from any party;
- Conduct that may reasonably be deemed offensive;
- Conduct that violates the personal or confidential privacy of any individual;
- Conduct that promotes or facilitates self-destructive behavior;
- Violence or threats;
- Violation of the intellectual property rights of Company and/or any third party, including but not limited to use of any trademarked and/or copyrighted materials of any party, including but not limited to that contain in any Content, without such party’s written consent; and/or
- Any other conduct that may reasonably harm or lead to the harm of any person.
- Conduct in Accessing Website and Platform. You may not access or use the Website or Platform for any purpose other than that for which we make the Website or Platform available. As a user of the Website or Platform, you agree not to:
- Use the Website and/or Platform as part of any effort to compete with Company, or otherwise use the Website, Platform, and/or Content for any revenue-generating or commercial enterprise.
- Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with the use and enjoyment of the Website or Platform, or modifies, impairs, disrupts, alters, or interferes with the use, features, operation, or maintenance thereof;
- Interfere with, disrupt, or create an undue burden on the Website, the Platform or any related networks or services;
- Attempt to bypass any measures of the Website designed to prevent or restrict access to the Site, or any portion of the Website;
- Decipher, decompile, disassemble, reverse engineer, copy, or adapt any of the software comprising or in any way making up a part of the Website and/or Platform, for any purpose;
- Systematically retrieve data or other content to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from Company;
- Collect any Member usernames and/or email addresses, by electronic or other mean, for the purpose of sending unsolicited email or any other unapproved, or creating user accounts by automated means or under false pretenses;
- Make improper use of Company support services or submit false reports of abuse or misconduct;
- Circumvent, disable, or otherwise interfere with any security-related features, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Website, the Platform, and/or the Content contained therein;
- Engage in unauthorized framing of or linking to the Website and/or the Platform;
- Use a buying agent or purchasing agent to make purchases relating to the Company Services;
- Use the Website or Platform to advertise or offer to sell goods and services;
- Use scripts or data gathering or extraction tools to engage in any automated use of the Website and/or Platform; or
- Delete the copyright or other proprietary rights notice from any content of the Website and/or Platform, including but not limited to any Content.
- Gamer Representations. By Participating you represent, acknowledge and agree that:
- You shall be responsible for providing the required hardware to access the Platform and the Website, including, without limitation, preparation of any computing device or console, and provision of Wi-Fi access and/or data plan coverage relating thereto. You are solely responsible for all costs associated with the aforementioned hardware.
- You shall be responsible for providing the software required to x) access the Platform and the Website, y) engage in any Match Block, and z) engage in Company Services, including, without limitation, the game(s) or content relating to which the activities during Match Blocks take place. You are solely responsible for all costs associated with the aforementioned software.
- EXCEPT AS IS EXPRESSLY SET FORTH HEREIN, NO LICENSE, SALE, OR RIGHT TO USE OR OWN ANY SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO ANY SOFTWARE MENTIONED AND/OR REFERRED TO ON THE WEBSITE, THE PLATFORM, OR ANY SOCIAL MEDIA POST OF AN ATHLETE, IS/ARE INCLUDED WITH YOUR PURCHASE OR USE OF POWR POINTS OR YOUR PARTICIPATION IN THE COMPANY SERVICES. YOU SHALL BE SOLELY RESPONSIBLE FOR PROVIDING ALL REQUIRED SOFTWARE AND HARDWARE.
- You shall notify Company of any error or other material defect experienced during your use of the Website and/or Platform.
- You have all necessary rights to use or reproduce all software, Content, and hardware used by you during your Participation, and no use of the Product in connection therewith shall be made that causes and infringement of the rights of any third party.
- You will, at all times, maintain strict adherence to these Terms.
- Streaming and Captures. Without limitation of any other provision of these Terms, by Participating you specifically agree that you will only stream or publish any video, image, or other data arising from, or relating to your Matches, or any other events or occurrences relating to or arising from the Company Services (then a “Publication”), in compliance with the terms of this Section. Except as set forth in this Section, all Publications are strictly prohibited and shall be deemed a material breach of these Terms. Notwithstanding anything to the contrary, you shall not be permitted to create, or permit, a Member Stream unless:
- You have first obtained the written consent of all relevant parties, including but not limited to x) Company and y) Members, who are: a) participants in the underlying event of such Publication, b) captured, depicted, or otherwise identifiable on, or in, such Publication, and c) parties with any claim to rights relating to use of such party’s name and/or likeliness, relating to, or arising from, such Publication;
- You are in strict compliance with these Terms.
Without limitation of Company’s other indemnification rights, or other recourse, in the event of your breach hereof, by Participating you specifically agree to indemnify and hold Company harmless from all claims, damages, and causes of action relating to, or arising from, your breach of this Section.
- Trademarks and Copyrights. The Website, Platform, and related materials are owned by Company or its affiliates or agents and is protected by United States copyright and trademark laws and international treaty provisions. All Content, trademarks, services marks, trade names, logos, and icons are proprietary to Company or its affiliates or agents, or the third-party to which they are affiliated. Nothing contained in the Website or Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed on the Website or Platform without the written permission of Company or such third party that may own the trademarks displayed on the Website or Platform. Your use of the trademarks displayed on the Website or Platform, or any other Content related thereto, except as provided herein, is strictly prohibited.
You are prohibited from using or authorizing the use of images displayed through the Website and Platform unless specifically permitted under these Terms. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, or other regulations and statutes.
- Generated Content. Except as stated in these Terms, all Content, whether generated through the Website, Platform, and Company Services shall belong to the Company and its affiliates. Company’s agreement to permit your use or access to the Content, is expressly conditioned on your compliance with the Terms and other applicable agreements, if any, and all applicable copyright and intellectual property rights laws.
- Improvements and Suggestions. All right, title and interest in and to, and the right to pursue protection for, suggestions, improvements, enhancements and modifications to the Company Services (“Improvements”), or any portion thereof, or the individual or collective use or applicability, that are created, suggested or made by you shall vest solely with Company, and by Participating, you hereby assign to Company any and all rights and interests you may have therein, and agree to promptly provide upon the request of Company reasonable documentation executed by you reflecting such assignment. No license is granted to you to, or under, any Improvements or other intellectual property or moral right owned or otherwise assertible by Company, whether by express or implied grant, estoppel or otherwise. All benefits from the use of any such Improvements shall inure solely to Company.
- Carrier and Internet Charges. Company does not charge you for access to the Website or the Platform, but data rates and additional charges may apply. You acknowledge that internet connectivity, including Wi-Fi connectivity, or data coverage may be required for the Website and/or Platform to function properly and for you to engage in Matches and/or Match Blocks. Company is not responsible for providing such connectivity or data coverage, and you hereby agree to hold Company complete harmless for interruption in, and/or inability to obtain, internet connectivity or data coverage.
- Limitation and Disclaimers of Liability, Damages, Warranties.
- Disclaimer of Warranties. YOUR PARTICIPATION IN THE COMPANY SERVICES IS ENTIRELY AT YOUR SOLE RISK. THE COMPANY SERVICES ARE PROVIDED BY COMPANY ON AN “AS IS” BASIS. EXCEPT FOR THOSE WARRANTIES SET FORTH IN THESE TERMS, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY THAT (i) THE COMPANY SERVICES WILL MEET YOUR REQUIREMENTS, OR (ii) THAT THE COMPANY SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY, OR THROUGH THE APP SHALL CREATE ANY WARRANTY REGARDING THE APP NOT EXPRESSLY STATED IN THIS AGREEMENT.
- Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS, AND/OR DAMAGES OF ANY KIND RESULTING FROM YOUR PARTICIPATION IN THE COMPANY SERVICES, REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE COMPANY SERVICES OR ANY OTHER MATTER RELATING TO THE COMPANY SERVICES. ANYTHING TO THE CONTRARY NOTWITHSTANDING, COMPANY’S TOTAL MAXIMUM LIABILITY FOR DAMAGES IN THE EVENT COMPANY IS FOUND TO HAVE BEEN LIABLE FOR ANY MATTER RELATED TO OR ARISING FROM THE COMPANY SERVICES AND/OR THESE TERMS SHALL BE THE LESSER OF: I) FIVE HUNDRED DOLLARS ($500.00); OR II) THE ACTUAL DOLLAR AMOUNT OF DIRECT DAMAGES INCURRED BY THE INJURED PARTY. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL COMPANY OR ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DAMAGES OF ANY KIND THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE WEBSITE AND/OR THE PLATFORM.
- Indemnification. You agree to agree to indemnify and hold Company and its affiliates, agents, employees, and licensors harmless from any claim, demand, loss, costs, or expense, including attorneys’ fees, made by any person or entity, arising out of: i) your breach of these Terms; ii) your violation of any Governing Law; iii) your violation of the intellectual property rights (including but not limited to copyrights, trademark rights, and licensing and use restriction rights) of any third party while Participating; iv) your breach of any agreement between you and a third-party relating to your Participation; v) your negligence, gross negligence, and/or willful misconduct.
- Discontinuation of Services. Should Company, at any time, determine, in its sole discretion, that it will no longer provide some or all of the Company Services, Company shall be entitled to terminate provision of such services, without necessity of advance notice. In the event Company determines it desirable to proceed with a complete discontinuation of the Company Services, Company may, but shall not be required to, make good faith efforts to Convert and/or refund all POWR Points, as applicable, on the date of termination.
- Choice of Law and Venue. These Terms, and all future amendments, shall be governed by the law of the State of Florida, without regard to conflicts of law principles thereof. This is the case regardless of whether you reside or transact business with Company or any of its affiliates or agents in the State of Florida or elsewhere. If any part of these Terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions. The exclusive venue for action or proceeding brought to enforce these Terms shall be the state or federal courts of Orange County, Florida.
- Complete Agreement. This Agreement constitutes the entire agreement between you and Company regarding the Company Services and your Account, and governs your use of the Website and the Platform, superseding any prior agreements between you and Company relating thereto. The failure of Company to enforce any provision in these Terms shall not constitute a waiver of such provision or any other provision. The headings in these Terms are for convenience only and shall not be deemed to affect in any way the language of the provisions to which they refer. Where the context so admits, words and expressions appearing in the singular in these Terms may be interpreted in the plural, and vice versa. If any term or provision of these Terms is found to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Contact Information.
ASUAJE KUSNICK AND NEWMAN LLC, a Florida limited liability company
Phone: (954) 866-0021
- Attorneys’ Fees. In the event that of any legal suit, action, or proceeding against the other party arising out of or relating to these Terms, the prevailing party in the suit, action, or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys’ fees and expenses and court costs.
- Waiver of Jury Trial. BY ASSENTING TO THESE TERMS AND USING THE COMPANY SERVICES, WEBSITE, PLATFORM, AND YOUR ACCOUNT, YOU HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS AGREEMENT OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY YOU AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. AS APPLICABLE, YOU ARE HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY THE OTHER PARTY.