TERMS OF SERVICE
The Effective Date of these Terms is Mar 16, 2012.
Welcome! You have arrived at Charity Miles (the “Application”), an application owned and operated by Charity Miles, LLC, a Delaware limited liability company (“Company” or “we,” “our” or “us”).
1. How It Works
Overview. This Application allows you to earn sponsorships on behalf of certain charities (each, a “Charity”) while walking, running, biking and participating in other activities (each, an “Activity”). You are accessing this Application from an iPhone, Android phone or, possibly, some other device (each, a “Device”). When you use the Application, we use your Device’s GPS functionality to measure the distance of your Activity. For every mile (or portion thereof) that you travel using the Application, you can earn money for a Charity. Here’s how…
The Purse. We have committed a $1,000,000 purse (the “Purse”) for users like you to earn on behalf of the Charities. We hope to increase the size of the Purse by attracting sponsorships from third party sponsors (each, a “Sponsor”) who, for various reasons, may desire to sponsor Charity Miles and our users. If we are able to attract sponsorships in excess of the Purse, then we will increase the size of the Purse—thereby increasing the amount of money that you and other users can earn for the Charities.
Earning Sponsorships. You can earn sponsorships for a different Charity (or the same Charity) each time that you use the Application. To begin earning a sponsorship, simply swipe the Application’s home screen to select your desired Charity. Once you have selected your Charity, please choose whether you want to walk, run or bike… And then press the “START” button to commence a session.
Once you commence a session, the Application will track your distance and, subject to the amount of the Purse, you can earn 25¢ per mile for your chosen Charity while walking or running, and 10¢ per mile while biking. The Application will convey your achievements both in terms of: (i) the miles you complete; and (ii) the real world impact that you can help your Charity fund. Please note that our expressions of your real world impact are good faith approximations and may not be exact in each case.
When you finish a session, the Application will summarize your achievements and offer you a sponsorship for your Charity. To accept the sponsorship, you will be asked to share your achievements, raise awareness for your Charity and (please) thank your Sponsor on Facebook and/or Twitter. In each instance, we will present you with a proposed but editable message to share. Subject to the User Content Rules (described below) you can say anything you want in these messages. However, as we discuss below, we encourage you to thank your Sponsors.
Also, please note: if you do not accept the sponsorship, then your achievements will not accrue on behalf of your Charity. We have instituted this policy for two reasons. First, walking, running and biking for charity is not just about raising money—it is also about raising awareness. Therefore, we want to encourage you to use Charity Miles to promote your Charities as much as possible.
Second, while our Sponsors are genuinely grateful for the opportunity to support you, we are just as grateful for their support. So, if you are grateful for your Sponsor’s support, then we encourage you to promote them too. It’s not required. But the point of Charity Miles is to turn amateur walkers, runners and bikers into sponsored athletes. And just like professionally sponsored athletes, we should try to do right by our Sponsors. Remember: the more we support our sponsors, the more they will support us. And the more they support us, the bigger the Purse will be for the Charities!
Payout. On the date that is one year following the Effective Date (the “Accounting Date”), we will have a final accounting of: (i) all sponsored miles completed for each Charity; and (ii) all money earned on behalf of each Charity.
If, as of the Accounting Date, users have collectively earned for the Charities an amount of money that is less than or equal to the Purse, then we will pay each Charity an amount equal to: (i) 25¢ per sponsored mile that users completed on behalf of such Charity while walking or running; and (ii) 10¢ per sponsored mile that users completed on behalf of such Charity while biking.
However, if as of the Accounting Date, users have collectively earned for the Charities more money than is in the Purse, then: (i) we will distribute the Purse to the Charities pro rata, in proportion to the number of sponsored miles completed for each of them; and (ii) in such an event, each walking and running mile will be weighted to equal 2.5 biking miles.
Cheating. The Application has fairly sophisticated algorithms to detect cheating. So, if you cheat, it will probably be obvious to us and we reserve the right to disqualify any session that appears suspicious, with or without notice to you. Of course, if you’re really determined to cheat, then we probably can’t stop you. But if that’s the case, then you’ll just have to live with yourself as a cheater. You’re on the honor system here. So, please don’t cheat.
2. Application Ownership & License
Ownership. We like our Application and want to protect it. We own and control the Application (including past, present and future versions thereof) and all “Company Materials” which include: (i) all graphics, layout, text, images, audio clips, sounds, pictures, videos, animation, designs, and all other materials related to the Application (except for Charity Materials and Sponsor Materials, explained below); (ii) our trademarks, logos, trade names, service marks, and trade identities; and (iii) all other forms of intellectual property related to the Application. Except as we expressly allow, you may not copy, reproduce, download or distribute the Company Materials (or any part of them) in any way. You agree to abide by any and all additional copyright notices, information or restrictions contained in any part of the Application.
Likewise, we like and want to protect our Charities and their “Charity Materials” which include: (i) all graphics, layout, text, images, postcards, audio clips, sounds, pictures, videos, animation, designs and all other materials made available through the Application by a Charity; (ii) each Charity’s trademarks, logos, trade names, service marks and trade identities; and (iii) all other forms of each Charity’s intellectual property. Each Charity owns and controls its own Charity Materials. Except as a Charity expressly allows, you may not copy, reproduce, download or distribute any Charity Materials (or any part of them) in any way. You agree to abide by any and all additional copyright notices, information or restrictions contained in any part of the Application with respect to each Charity.
We also like and want to protect our Sponsors and their “Sponsor Materials” which include: (i) all graphics, layout, text, images, postcards, audio clips, sounds, pictures, videos, animation, designs and all other materials made available through the Application by a Sponsor; (ii) each Sponsor’s trademarks, logos, trade names, service marks and trade identities; and (iii) all other forms of each Sponsor’s intellectual property. Each Sponsor owns and controls its own Sponsor Materials. Except as a Sponsor expressly allows, you may not copy, reproduce, download or distribute any Sponsor Materials (or any part of them) in any way. You agree to abide by any and all additional copyright notices, information or restrictions contained in any part of the Application with respect to each Sponsor.
3. Your License to Use Company Materials In Our Application
License. As long as you comply with these Terms, we grant you a limited, personal, non-exclusive, non-commercial, revocable, non-assignable and non-transferable license (“License”) to download (for temporary storage only), display, view, use and/or play a single copy of the Company Materials (excluding source and object code) on any Device for your personal, non-commercial use only. The License does not give you any ownership of, or any other intellectual property interest in, any Company Materials or the Application, and you cannot otherwise use the Company Materials or the Application without our express prior written permission. All rights not expressly granted to you are reserved by us and our licensors and other third parties. Any unauthorized use of any Company Materials or the Application for any purpose is prohibited.
4. User Content
User Content. As noted above, when you accept a sponsorship, the Application requires you to share your achievements, raise awareness for your Charity and (please) thank your Sponsor on Facebook and/or Twitter. In each instance, we will present you with a proposed but editable message to share. These messages are editable. And, in the future, we may allow you to include images, videos, audio clips, hyperlinks or other content with these messages. To the extent you edit any of these messages before posting them, or to the extent you include any images, videos, audio clips or hyperlinks in such messages, all such content that you create shall be referred to herein as “User Content”.
Terms Applicable to User Content. You agree that you either: (i) own the rights to the User Content you submit and the right to grant all of the rights and licenses in these Terms; or (ii) you have all necessary rights and licenses from the owner(s) of these rights to agree to these Terms and grant us these licenses. If we so request, you will provide us with any documentation, substantiation or releases necessary to verify your compliance with these Terms.
Use of Your User Content. Specifically, by uploading your User Content, you are creating message that will be shared on Facebook and/or Twitter, as applicable. We have no control over who sees your User Content or the extent to which your User Content will be shared with others.
Company’s Obligations Regarding User Content. We have no obligation to pre-screen, monitor or enforce your intellectual property rights to your User Content. We may (but have no obligation to) review, monitor and reject any User Content. Further we may, in our sole discretion, delete, edit, re-format, edit, alter, distort, remove or refuse to use your User Content without notice or liability.
User Content Rules. When sharing User Content on Facebook, Twitter or any other means through the Application, you must follow these User Content Rules (“Rules”), which we have conveniently listed below.
User Content must be yours. All User Content must be originally created by you, not copied from someone else’s work, and you must have all rights in the User Content; OR, all persons who contributed in any way or have any rights to your User Content have given you permission to upload and distribute the User Content to the Application and elsewhere.
Please act appropriately. Seriously, keep it clean. Represent yourself, your Charity and your Sponsor well.
Be honest and do not misrepresent yourself. Do not impersonate any other person, user or company or upload or post User Content that you know is false, fraudulent, deceptive, inaccurate or misleading.
Others are watching. Please remember that User Content will be shared publicly on Facebook and/or Twitter; and (ii) may become accessible and viewable by other users. Please do not share any User Content unless you are comfortable with that User Content being seen and accessible by the public.
Don't damage the Application or anyone’s computers. Do not upload any User Content that contains or transmits viruses, Trojan horses, spyware or any other technologies that could impact the operation of the Application or any computer system.
We reserve the right, in our sole discretion, to monitor and screen all User Content shared through the Application. We also reserve the right to disregard or delete any User Content that, in our sole discretion, violates these Rules or the Terms, or that we otherwise find objectionable.
5. Access Permissions
In order to access or use certain portions of the Application, we may require that you grant us permission to: (i) access your Facebook profile’s basic information (including your name, profile picture, gender, networks, user ID, and any other information you’ve shared with everyone); (ii) send you email; and (iii) post to your Facebook wall. The decision to grant these permissions is purely optional. These permissions are necessary in order for material features of the Application to work. Therefore, if you elect not to grant such permissions, you may not be able to use the Application.
You agree to accept responsibility for all information submitted to the Application through your Facebook account. You are responsible for keeping your Facebook password confidential and for restricting access to your Facebook account so that others may not use the Application through your Facebook account. We reserve the right to block your account from using the Application or otherwise deny you access to the Application in our sole discretion without notice and without liability.
6. Your Warranties
You represent and warrant that: (i) you have the legal right and capacity to enter into these Terms in your jurisdiction and to comply with these Terms; (ii) all information you provide to us is true, accurate, complete and current; and (iii) you hold and will continue to hold all rights necessary to enter into and perform your obligations under these Terms.
From time to time, we may feature certain contests, sweepstakes or other promotions, which may be governed by a separate set of rules that describe the sweepstakes or promotion and may have eligibility requirements, such as certain age or geographic area restrictions. We hope you participate in any fun promotions we offer but it is your responsibility to read the rules to determine whether or not your participation, registration or entry will be valid and to determine the sponsor’s requirements of you in connection with the applicable contest, sweepstakes or promotion.
8. Third Party Links and Content
9. Linking Policy
We grant you the revocable permission to link to the Application; however, we reserve the right to prohibit linking to the Application for any reason, in our sole and absolute discretion.
10. Items Available For Download
Any items that we make available for download or use from the Application and/or our servers (the “Downloadable Items”) are our copyrighted work or the copyrighted work of our licensors, licensees, suppliers, Charities or Sponsors, as the case may be. All Downloadable Items are either Company Materials, Charity Materials or Sponsor Materials, as may be applicable. Your use of the Downloadable Items may be governed by additional terms, which may be included with the Downloadable Items (“Additional Terms”). Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such Downloadable Items. ALSO, COPYING OR REPRODUCTION OF THE DOWNLOADABLE ITEMS TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT APPLICABLE TO SUCH DOWNLOADABLE ITEMS. Note that if you install certain applications that may be available via the Application, you consent to the download of software to your Device and accept these Terms and any Additional Terms related to such application.
12. Disclaimer of Warranties
WE REALLY HOPE YOU ENJOY THE APPLICATION AND ALSO HOPE THE APPLICATION WILL FUNCTION PROPERLY HOWEVER, YOUR ACCESS TO AND USE OF THE APPLICATION IS AT YOUR SOLE RISK.
THE APPLICATION IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, we and our parent, affiliates, subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Company Parties”), hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
the Application, Company Materials, Charity Materials or Sponsor Materials;
the functions, features, or any other elements on, or made accessible through, the Application;
any products, services, or instructions offered, referenced or linked through the Application;
whether the Application, Company Materials, Charity Materials, Sponsor Materials or the servers that make them available, are free from any harmful components (including viruses, trojan horses, and other technologies that could adversely impact your Device);
whether any information or instructions on the Application are accurate, complete, correct, adequate, useful, timely, or reliable;
whether any defects to the Application will be repaired; and
whether your use of the Application is lawful in any particular jurisdiction.
THE COMPANY PARTIES FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM ERRORS, COMPUTER VIRUS OR OTHER HARMFUL ELEMENTS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
13. Limitation of Liability
(a) LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
the Application, Company Materials, Charity Materials or Sponsor Materials;
your use of or inability to use the Application, or the performance of the Application;
any action taken in connection with an investigation by Company Parties or law enforcement authorities regarding your access to or use of the Application;
any action taken in connection with copyright or other intellectual property owners or other rights owners;
any errors or omissions in the Application’s technical operation; or
any damage to any user’s Device, computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the events or circumstances were foreseeable and even if Company Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action of contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Application).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY PARTIES’ TOTAL LIABILITY TO YOU IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE APPLICATION AND YOUR RIGHTS UNDER THESE TERMS EXCEED AN AGGREGATE OF $10.00 FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION.
(b) WAIVER OF INJUNCTIVE RELIEF. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF OUR ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF THE APPLICATION OR ANY OTHER WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER COMPANY MATERIALS OWNED OR CONTROLLED BY THE COMPANY PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE OR OTHER COMPANY MATERIALS OWNED OR CONTROLLED BY THE COMPANY PARTIES OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.
(c) WAIVER OF UNKNOWN CLAIMS. BY ACCESSING THE APPLICATION, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE, WHICH PROVIDES AS FOLLOWS: “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.”
You agree to indemnify, defend and hold harmless the Company Parties from and against any and all claims, damages, losses, costs, liabilities, judgments, settlements and expenses, including reasonable attorneys’ fees, resulting from: (a) your User Content; (b) your use of the Application or activities in connection with the Application; (c) your breach or alleged breach of these Terms; (d) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, all regulatory, administrative and legislative authorities; (e) information or material transmitted through your Device used to access the Application, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or defames any person; or (f) any misrepresentation made by you. You will cooperate as fully required by any Company Party in the defense of any claim. Notwithstanding the foregoing, each Company Party retains the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of action that are brought against it. Each Company Party reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of the respective Company Party.
15. Termination and Modifications
Termination. We reserve the right to terminate your access to and use of the Application or any part of it, in our sole discretion, without notice and liability, including, if we believe that you are not following these Terms. We also reserve the right to investigate suspected violations of these Terms, including, any violation arising from any User Content or e-mails you send to the Application or us. We don't like to tattle, but any violation, or potential violation, of these Terms may be referred to law enforcement authorities.
Modifications. We reserve the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time, any Company Materials available on the Application, and to even stop all activities associated with the Application, with or without notice. You agree that we will not be liable to you or to anyone else for any modification, suspension or discontinuance of the Application or any part thereof.
What happens upon Termination? If we terminate your access to the Application, or if we so demand, all rights granted to you under these Terms will stop immediately, and you agree that you will immediately: (a) stop using the Application and forfeit any Stamps or other virtual items that remain in your account; (b) remove any links that you created with respect to the Application; and (c) destroy all Company Materials obtained from the Application and all related documentation.
16. Location of Application and Territorial Restrictions
Location of Application. The information provided on the Application is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. We control and operate the Application from offices located in the United States. We make no representations or warranties that the information, products or services contained on the Application are appropriate for use or access in other locations. Anyone using or accessing the Application from other locations does so on their own initiative and are responsible for compliance with United States’, and local laws regarding online conduct and acceptable content, if and to the extent such local laws are applicable. We reserve the right to limit the availability of the Application and/or the provision of any content, program, product, service or other feature described or available thereon to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide.
17. Governing Law, Jurisdiction and No Class Actions
GOVERNING LAW/JURISDICTION. THESE TERMS AND THE INTERPRETATION OF THESE TERMS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. YOU AGREE THAT JURISDICTION OVER AND VENUE IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE APPLICATION, THE USE OR ACCESS THEREOF, OR THESE TERMS MUST BE IN THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK AND YOU HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS LOCATED IN NEW YORK, NEW YORK FOR ANY SUCH LEGAL PROCEEDING. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
No Class Actions. To the fullest extent permitted by applicable law, you agree that any and all disputes, claims and causes of action you may have in connection with or related to the Application will be resolved individually, without resort to any form of class action.
18. Updates to Terms
We reserve the right to modify or add to these Terms or any Additional Terms, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Application so that they are accessible via a link on the home page of the Application, and that your use of the Application after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms and any Additional Terms before using the Application. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Application from that point forward.
If we fail to act with respect to any breach of these Terms by you or others, that does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. We shall not be deemed to have waived any of these Terms unless we do so in a writing that is signed by one of our duly authorized officers. We may assign our rights and duties under these Terms to any party at any time without any notice to you. You may not assign these Terms to anyone. If any provision of these Terms will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. You agree that these Terms will not be construed against us by virtue of our having drafted them.
THANKS FOR TAKING THE TIME TO READ ALL THAT LEGAL LANGUAGE. WE HOPE YOU ENJOY USING THE APPLICATION!