Last Update: [11-17-2023]

Published: [11-22-2023]

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These Terms of Use (collectively, the “Agreement”) govern your (“you”, “your”) use of any webpages or related content, functionality, or software (collectively, the “Website”) provided to you by Energize Marketing, LLC and its Affiliates (collectively, “Energize”, “we”, “us”, or “our”). By using the Website, indicating your acceptance of this Agreement, or by continuing your use of the Website after being notified of the terms of this Agreement or any changes thereto, you hereby agree to be bound by this Agreement for as long as you use the Website. You hereby acknowledge and agree that you have reviewed this Agreement. The Website may be unavailable from time to time, may be offered for a limited time, or may vary depending on your region or device. We reserve the right, in our sole discretion, to modify, suspend, or discontinue the Website, in whole or in part, at any time.

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ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE IN SECTION 12 BELOW WHICH SHALL APPLY TO YOU WHEN YOU USE OR ACCESS THE WEBSITE. BY AGREEING TO THE ARBITRATION CLAUSE, YOU WAIVE ANY RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. WE EXPLAIN BELOW CERTAIN EXCEPTIONS AND HOW YOU CAN OPT-OUT OF ARBITRATION. 

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AGE RESTRICTION: BY ACCESSING OR USING THE WEBSITE, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST EITHER EIGHTEEN (18) YEARS OLD OR THE AGE OF MAJORITY IN YOUR JURISDICTION, WHICHEVER IS OLDER.

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1. DEFINITIONS

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“Affiliate” means any entity controlling, controlled by, or under common control with a party, where “control” is defined as: (a) the ownership of at least fifty percent (50%) of the equity or beneficial interests of the entity; (b) the right to vote for or appoint a majority of the board of directors or other governing body of the entity; or (c) the power to exercise a controlling influence over the management or policies of the entity, whether through the ownership of voting securities, by contract, or otherwise.

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“Intellectual Property” means any and all common law, statutory and other industrial property rights, and intellectual property rights, including but not limited to copyrights, trademarks, trade secrets, patents, and other proprietary rights issued, honored, or enforceable under any applicable laws anywhere in the world, whether registered or unregistered, and all applications thereto.

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2. SERVICES 

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2.1 Access. Upon your confirmation of assent to this Agreement, Energize hereby grants to you a nonexclusive, non-assignable, revocable right to access the Website subject to the terms herein. 

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2.2 Account Registration. Some of the Website may require you to create an account with us. You may not be able to access the Website or some portions or features thereof unless you are signed into your account. When creating an account, you must provide accurate and complete information, and you must promptly keep this information updated. You must secure and keep confidential your account credentials, and you will immediately notify us if you discover or otherwise suspect any unauthorized access to or use of your account. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN YOUR ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO THE ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF ENERGIZE. We do not recognize or allow the transfer of accounts between users. Any such attempt shall be null and void and may result in the termination and forfeiture of the account.

 

3.  RESTRICTIONS 

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3.1 Restrictions on Use. Except as expressly permitted in this Agreement, you shall not, and shall not permit anyone to: (i) use the Website in contravention of this Agreement; (ii) copy or republish the Website; (iii) disrupt the function of the Website; (iv) modify or create derivative works based upon the Website; (vi) remove, modify, or obscure any copyright, trademark, or other proprietary notices contained in the Website; or (vii) use or attempt to use another end user’s account without authorization from that user or Energize. WE MAY WITHHOLD, SUSPEND, MODIFY, OR TERMINATE YOUR ACCESS TO THE SERVICES FOR ANY OR NO REASON AT ANY TIME WITHOUT NOTICE UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW. 

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3.2 Code of Conduct. While using the Website, you must comply with all applicable local, state, and national laws and regulations in the jurisdiction where you reside. You must also comply with the acceptable use and behavioral policies that we publish from time to time on our webpages, apps, and games, and the behavioral rules listed below (collectively, the “Code of Conduct”). The Code of Conduct is not exhaustive and we reserve the right to modify them. You agree that we may take appropriate disciplinary measures, including bans, account suspension, or termination and deletion, to protect the integrity of the Website, regardless of whether the offending conduct is expressly listed in the Code of Conduct as inappropriate. You are solely responsible for all activities, acts, and omissions that occur in or from your use of the Website and/or through or under your account. 

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The following are examples of behavior that warrant disciplinary measures:

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●  Transmitting or facilitating the transmission of any content that contains a virus, corrupted data, trojan horse, bot keystroke logger, worm, time bomb, cancelbot, or other computer programming routines that actually and/or are intended to damage, detrimentally interfere with, surreptitiously intercept, or mine, scrape, or expropriate any system, data, or personal information;

●  Avoiding, bypassing, removing, deactivating, impairing, descrambling, or otherwise circumventing any technological measure implemented by Energize or any third party to protect or control access to the Website or any part thereof;

●  Intercepting, emulating, or redirecting the communication protocols used by Energize or its designees in any way, including without limitation through protocol emulation, tunneling, packet sniffing, modifying or adding components to software, use of a data mining utility program to intercept, collect, read, or mine information generated by the Website, or in any way utilize a known or hereafter developed technique that would allow for, or otherwise make available, unauthorized access or use of the Website.

●   Accessing or attempting to access areas of the Website that are not made available to the public by Energize;

●  Engaging in any other conduct that, in Energize’s sole judgment, exposes Energize, any of our users, or any other third party to any liability, damages, or detriment of any type.

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4. INTELLECTUAL PROPERTY MATTERS 

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4.1 Ownership of the Website. Energize owns all right, title, and interest in and to the Website, including but not limited to all information, services, logos, images, trademarks, graphics, or software associated with the Website, as well as any and all Intellectual Property Rights to the foregoing.

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4.2 Ownership of Feedback. Energize will own all right, title, and interest in any suggestions, ideas, enhancement requests, feedback, or recommendations, or other information provided by you concerning or relating to the Website (“Feedback”), all of which are hereby assigned to Energize by you.

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4.3 Third Party Technology. Certain third party technology (e.g., web browsers) may be appropriate or necessary for use with the Website. Your right to use such third party technology is governed by the terms of the third party technology license agreement, and you represent and warrant that you shall comply with all such applicable license agreements. You acknowledge and understand that you use such third party technology shall be at your own risk, and you are solely responsible for your dealings with any and all third party technology.

 

5. YOUR REPRESENTATIONS AND WARRANTIES 

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5.1 Compliance with Laws. You shall comply with all applicable local, state, national, and foreign laws in connection with your use of the Website. Energize reserves the right to completely or partially restrict or revoke your access to the Website for violating these terms or any applicable law, either completely or for a period of time, in our sole discretion. We reserve the right to amend, rectify, edit, or otherwise modify the Website to mitigate any damage caused either to us or to any other person as a result of your violation of these terms or applicable law.

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5.2 Authority. You represent and warrant that you have the power and authority to enter into and be bound by this Agreement.

 

6. TERMINATION 

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6.1 Term of Agreement. The term of this Agreement shall begin upon your acceptance of this Agreement and shall continue until terminated by either party as outlined in this Section, or until you cease using the Website. 

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6.2 Termination. Energize shall have the right to terminate this Agreement at any time, for any reason, with or without notice to you. Upon termination of the Agreement, Energize will remove your access to the Website, including by suspending or deleting the applicable user account. You may terminate this Agreement by deleting your user account. 

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6.3 Effect of Termination. In the event of a termination of this Agreement, any right you may have had to any user account or associated digital materials shall be forfeit.

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7. MODIFICATION OF TERMS

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7.1 Modifications. We hereby reserve the right to modify the terms of the Agreement at any time in our sole discretion. If we modify these terms, you will be required to confirm you accept the modified terms upon the next time you access or use the Website. If the modified terms are not acceptable to you, your only recourse is to cease using the Website. We encourage you to check back regularly to review these terms.

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8. WARRANTIES 

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8.1 Warranty Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, ENERGIZE EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE IS PROVIDED “AS IS” AND “AS AVAILABLE”, AND ENERGIZE MAKES NO OTHER WARRANTY AS TO THE SERVICES. ENERGIZE EXPRESSLY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR: (1) THE WEBSITE BEING ACCURATE, COMPLETE, CURRENT, RELIABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; (2) INJURY OR DAMAGE RESULTING FROM THE WEBSITE; AND (3) VIRUSES, ADWARE, SPYWARE, WORMS, OR OTHER TYPES OF MALICIOUS CODE THAT MAY BE USED IN ANY WAY TO AFFECT THE FUNCTIONALITY OR OPERATION OF THE WEBSITE.

 

9. LIMITATIONS OF LIABILITY.

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9.1 Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ENERGIZE BE LIABLE TO YOU FOR ANY LOSS, DAMAGE, OR INJURY OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE, MALFUNCTION, OR LOSS OF PROFITS, DATA, USE, BUSINESS, GOOD-WILL, OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR IN CONNECTION WITH: (A) THE WEBSITE OR  INABILITY TO USE OR ACCESS THE WEBSITE; (B) MISUSE OF THE WEBSITE (INCLUDING WITHOUT LIMITATION, UNAUTHORIZED ACCESS OF THE WEBSITE); (C) ANY OTHER USER’S OR THIRD PARTIES’ CONDUCT ON THE WEBSITE; OR (D) TERMINATION, SUSPENSION, RESTRICTION, OR OTHERWISE LIMITATION OF ACCESS TO THE WEBSITE.

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10. INDEMNIFICATION 

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10.1 Indemnification by You. If a third party makes a claim against Energize or its directors, officers, agents, representatives, licensors, and employees (collectively, the “Energize Indemnitees”) as a result of: (i) your use or misuse of the Website; (ii) your violation of these terms; or (iii) any breach or non-performance of any representation, warranty, covenant, or agreement made by you, you shall indemnify, defend, and hold harmless the Energize Indemnitees against the claim at your sole expense, and you shall pay all losses, damages, and expenses (including reasonable attorneys’ fees) levied against the Energize Indemnitees. Energize agrees to promptly notify you of any such third party claims.

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11. GENERAL PROVISIONS 

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11.1 Assignment. You may not assign this Agreement or any right under this Agreement. Energize may assign, license, delegate or otherwise transfer its rights or obligations hereunder to any third party without restriction. Subject to the foregoing, the rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted assignment other than in accordance with this Section shall be null and void.

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11.2 Severability. If any term of this Agreement is held to be invalid or unenforceable pursuant to a final judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable. In the event of such partial invalidity, the Parties shall seek in good faith to agree on replacing any such legally invalid provision with a valid and enforceable provision which shall most nearly and fairly reflects the Parties’ intent in entering into this Agreement.

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11.3 Governing Law. This Agreement and the rights and obligations of the parties shall be governed and construed in accordance with the substantive laws of the state of New York[SB1] , United States, without regard to the conflict of laws principles thereof or of any other jurisdiction. 

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12. BINDING INDIVIDUAL ARBITRATION

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12.1 General. Arbitration is an alternative dispute resolution process that allows us to seek to resolve Disputes (as defined below) without the formality or expense of litigating in court. Arbitration is often faster and less expensive than formal court litigation. Any qualifying Dispute between you and Energize, including the arbitrability of such Dispute, will be submitted to a neutral arbitrator instead of being presented in court to a judge or jury. If you wish to opt-out of this binding individual arbitration requirement, you must comply with the opt-out process set forth in the “Opt-Out Right” paragraph below. This Section 12 will not apply to the extent prohibited by the laws of your country of residence.

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12.2 Disputes for Arbitration. Prior to commencing any legal proceeding against us, including an arbitration as set forth below, you and Energize agree that we will attempt to resolve any dispute, claim, or controversy between us arising out of or relating to these terms or the Website, including the validity, enforceability, and scope of this Section 12 section, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory (each, a “Dispute” and, collectively, “Disputes”) by engaging in good faith negotiations. For such Disputes that cannot be resolved through negotiation, you and we agree to submit all Disputes to individual binding arbitration. You understand that there is no judge or jury in arbitration and that court review of an arbitration award is limited.

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12.3 No Class Actions. THE ARBITRATION OF DISPUTES UNDER THESE TERMS WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY. The arbitrator may not consolidate disputes against us by other individuals or entities unless we expressly consents to such consolidation. You may not arbitrate any Dispute in a representative capacity, including, without limitation, as a representative member of a class or in a private attorney general capacity. The arbitrator may award any relief permitted by applicable law with respect to your individual claim, but to the maximum extent permitted by applicable law, may not award relief against us with respect to any person other than you.  

 

12.4 Opt-Out Right. YOU HAVE THE RIGHT TO OPT-OUT OF THIS BINDING INDIVIDUAL ARBITRATION REQUIREMENT AND CLASS ACTION WAIVER. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION, YOU MUST NOTIFY US IN WRITING OF YOUR INTENT TO DO SO WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST ACCEPT THESE TERMS, UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW. Your written notification must be submitted via email to privacy@energize-marketing.com and include “Attn: ARBITRATION OPT-OUT” in the subject line or description. Your notice must include: (i) your full name; (ii) your mailing address; (iii) your user account name, if you have one; and (iv) a clear statement that you do not wish to resolve disputes with Energize under this Agreement through arbitration. You are responsible for ensuring our receipt of your opt-out notice, and you therefore may wish to send a notice by means that provide a written receipt.

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12.5 Notice of Disputes. If you have a Dispute with us, you must submit written notice via email to privacy@energize-marketing.com and include “Attn: ARBITRATION OF DISPUTE” in the subject line or in the description in order to give us the opportunity to resolve the Dispute informally through negotiation as set forth above. Notice must be provided within two (2) years of the events giving rise to the Dispute, but in no event after the date when initiating legal proceedings would be barred under the applicable statute of limitations. Failure to provide timely notice will permanently bar all claims. If we have a dispute with you, we will provide notice to the address that we have on file for you, if possible. You and Energize agree to first attempt to negotiate the Dispute in good faith for no less than sixty (60) days after notice of the Dispute is provided. If the Dispute is not resolved within sixty (60) days after receipt of notice of the Dispute, you or Energize may pursue the claim in binding individual arbitration as set forth in this section.  

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12.6 Arbitration Rules and Procedures. The U.S. Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this Section 12. Arbitration shall be subject to the FAA and federal arbitration law and shall be conducted by Judicial Arbitration Mediation Website, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules and Procedures, effective as of the date of the notice of dispute (the “JAMS Rules”), as modified by this agreement to arbitration. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com/rules-streamlined-arbitration or 1-800-352-5267. Each party will bear its own arbitration costs as required by the JAMS Rules, provided that if you demonstrate that the arbitration costs are an undue burden, Energize will pay as much of your arbitration filing and hearing fees as the arbitrator finds is necessary to prevent arbitration from being cost-prohibitive (as compared to the cost of litigation), excluding your attorneys’ fees and costs. Each party will pay its own attorneys’ fees and costs unless the claim(s) at issue permit the prevailing party to be paid its fees or litigation costs or the JAMS Rules permit the arbitrator to award fees after finding a claim or defense to have been asserted frivolously, in which case the arbitrator shall award fees or costs as required by the applicable law.   

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12.7 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

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12.8 Location of Arbitration. Arbitration may be conducted through the submission of documents, by phone, or in person. If an in-person hearing is required, the hearing will occur in a reasonable location in the United States, as agreed to by both parties, or, if necessary, as determined by the arbitrator. 

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12.9 Decision of the Arbitrator. Any decision or award by the arbitrator shall be final and binding on the parties. Unless otherwise agreed, any decision or award shall set forth the factual and legal basis for the award. The arbitrator shall be permitted to award only those remedies in law or equity which are requested by the parties and which the arbitrator determines are supported by credible relevant evidence. Unless otherwise expressly consented to by Energize, the arbitrator may not award relief against Energize with respect to any person other than you. Any decision or award may be enforced as a final judgment by any court of competent jurisdiction.  

 

12.10 Future Changes to Agreement to Arbitrate. Although we may revise these terms at our sole discretion, we do not have the right to alter this agreement to arbitrate or the rules specified herein with respect to any Dispute once that Dispute has accrued.

 

12.11 Arbitration Severability. If any clause within this Section 12 is found to be invalid, unenforceable, or illegal, that clause will be severed from this section, and the remainder of this arbitration agreement will be given full force and effect. The only exception to this is the “No Class Actions” paragraph. If the “No Class Actions” paragraph is found to be illegal or unenforceable in its entirety, this entire arbitration agreement will be unenforceable, and the Dispute will proceed in court. Suits brought in state court may be removed to federal court by either party if permissible by law.

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13. CONTACT INFORMATION

If you have any questions, comments or concerns, please contact us via email at privacy@energize-marketing.com.