DISCOVER YOUR HERO WEBSITE TERMS AND CONDITIONS
Last Updated: [6/20/16]
DYH reserves the right, at its discretion, to change, modify, add, or remove portions of these Terms and Conditions upon reasonable notice to you. You agree that notice of such changes posted on the Site shall constitute reasonable notice. Your continued use of the Site and/or the Services following reasonable notice of such modifications will be conclusively deemed acceptance of any changes to these Terms and Conditions. If you do not accept any changes made to these Terms and Conditions, you should immediately terminate this Agreement pursuant to Section 16 below. At all times, you are bound by the then-current version of these Terms and Conditions and all applicable laws. DYH highly recommends that you review these Terms and Conditions from time to time to ensure that you are familiar with the most recent version. When you visit the Site or send e-mails to us, you are communicating with us electronically. DYH will communicate with you by e-mail or by posting notices on this Site. You consent to receive communications from us electronically. You agree that all agreements, notices, disclosures and other communications DYH provides to you electronically satisfy any legal requirement that such communications be in writing.
Site Content. This Site (including the software and files) and content provided on this Site, including the text, music and sound, graphics, images, photographs, audio and video, footage, animations, podcasts, analyses, studies, reports, and downloads (all such content collectively, the “Content”) are the exclusive property of DYH or are licensed to DYH, and are protected by law, including United States copyright, database, trade secret, and trademark law, as well as other state, national, and international laws and regulations. Except as expressly provided in this Agreement, DYH does not grant any express or implied rights to you. The Contents are © 2016, Discover Your Hero, Inc. All rights reserved. DYH also owns copyright rights in the Site as a collective work and/or compilation and in any and all databases accessible on or through the Site. Unless otherwise noted, DISCOVER YOUR HERO and other trademarks featured on the Site constitute DYH’s trade/service marks. You agree not to directly or indirectly attempt to register, challenge, or contest the validity or DYH’s ownership of, such copyrights, trademarks or any other DYH intellectual property, or assist any third party in doing so. The Site may also include the product, service and company names, as well as logos, of third parties. Such third-party designations are the trade/service marks of their respective owners, and may not be used without the prior written permission of their respective owners as necessary.
Grant of License. DYH grants to you a personal, revocable, nonexclusive, nontransferable license to use this Site conditioned on your continued compliance with this Agreement. Limited portions of the Content available in the public areas of the Site may be accessed, printed and downloaded on an occasional basis for non-commercial purposes, provided that all hard copies contain any copyright and other applicable proprietary rights notices included in such content and information and/or appropriate attribution to DYH in a form and manner acceptable to us. You may not use Content in any manner that suggests the endorsement or association of any third-party entity, person, product, or service by DYH unless express written permission has been given by DYH in advance. You may not under any circumstances copy, print, or download in any medium all or substantially all of the Content. Unless and except as otherwise expressly permitted by this Agreement, you may not access, copy, reproduce, modify, create derivative works of, alter, publicly distribute, republish, upload, post, transmit, publicly perform or display, license, transfer, sell, mirror, frame, “deep link,” “scrape,” data mine, or otherwise use any Content, information, or material obtained from or through this Site without written permission from DYH. You may not remove any copyright notices or other notices of intellectual property rights from the Site or any Content available on or through the Site. Any unauthorized use of this Site or the Content will terminate the permission granted by this Agreement and may violate applicable laws, including copyright law, trademark laws, and commercial regulations and statutes.
Specific Terms Relating to Heroes in Need. For consideration (including without limitation any support provided to me and/or my family by DYH), the receipt and adequacy of which you acknowledge, you grant to DYH, its affiliates, subsidiaries, officers, directors, shareholders, and their respective licensees, successors, assigns, legal representatives, agents and heirs, the transferable, irrevocable, sublicensable, perpetual, nonexclusive and worldwide right and license to use (a) your image, name, photograph, voice, persona, likeness, or other identifying characteristics (collectively, your “Image”); (b) the background information or other descriptions that you submit to DYH, including but not limited to a description of your charitable need and/or a description of how you have been helped by DYH or any Hero In-Deed (your “Story”); and (c) any other ideas, descriptions, photos, or other materials that you submit to DYH (together with your Image and Story, your “Hero in Need Materials”), in all forms of media now known or hereafter developed in connection with the Site, the Services, DYH’s marketing and promotional materials, and for such other purposes as DYH deems reasonable and appropriate.
You authorize DYH to freely use your Hero in Need Materials in any and all manner that it deems appropriate, including adopting, publishing, reproducing, disseminating, transmitting, distributing, copying, using, creating derivative works of, displaying (in whole or part) worldwide, or acting on such Hero in Need Materials for the full term of any rights that may exist in such Hero in Need Materials. You waive the right to inspect or approve any materials incorporating your Hero in Need Materials, as well as any right to royalties or other compensation for the use of same. You also waive any claim to any intangible rights, including (but not limited to) the right of publicity or copyright, that you may hold in any tangible medium of expression incorporating your Hero in Need Materials created and/or used by DYH or its designee. In addition, you release and hold harmless DYH from any claims and/or liabilities arising out of or in connection with DYH’s use of your Hero in Need Materials.
By submitting a request for Services to DYH, through the Site or otherwise, you represent and warrant that: (a) you are at least eighteen (18) years of age or you are a parent or legal guardian accepting this Agreement on behalf of an individual who is under eighteen (18) years of age; (b) any information you submit to DYH, including your Story, is accurate; and (c) you have full rights to any Hero in Need Materials you submit to DYH, and that you (and not DYH) are solely responsible for such Hero in Need Materials, including their legality and appropriateness, and that all such Hero in Need Materials are your original creation (as applicable) and use by DYH will not infringe any rights of any third party.
Further, by submitting a request for Services to DYH, through the Site or otherwise, you hereby understand and acknowledge that (a) DYH is under no obligation to use your Hero in Need Materials in any way and that DYH may elect to refrain from using any or all of your Hero in Need Materials in its sole discretion; (b) DYH reserves the right to fact check the accuracy and legitimacy of your Story or any other Hero in Need Materials, but is not obligated to do so; and (c) DYH makes no guarantee or representation that your request for a charitable donation will be met either in whole or in part.
DYH is not responsible for ensuring AND CANNOT GUARANTEE that any particular Hero in-Deed completes his or her donation. IN THE EVENT THAT ANY PARTICULAR HERO IN-DEED DOES COMPLETE HIS OR HER DONATION TO YOU, YOU AGREE TO USE YOUR BEST EFFORTS, TO THE EXTENT APPROPRIATE AND FEASIBLE, TO MEET THE HERO IN-DEED, EITHER IN PERSON OR BY VIDEO CONFERENCE AND ALLOW SUCH MEETING TO BE VIDEOTAPED FOR PUBLICATION ON THE SITE TO ENCOURAGE OTHERS TO PARTICIPATE IN DYH’S DIRECT DONOR MATCHING.
Specific Terms Relating to Heroes In-Deed. For consideration, the receipt and adequacy of which you acknowledge, you grant to DYH, its affiliates, subsidiaries, officers, directors, shareholders, and their respective licensees, successors, assigns, legal representatives, agents and heirs, the transferable, irrevocable, sublicensable, perpetual, nonexclusive and worldwide right and license to use (a) your image, name, photograph, voice, persona, likeness, or other identifying characteristics (collectively, your “Image”); (b) the background information or other descriptions that you submit to DYH, including but not limited to a description of how you have helped or intend to help any Hero in Need (your “Story”); and (c) any other ideas, descriptions, photos, or other materials that you submit to DYH (together with your Image and Story, your “Hero In-Deed Materials”), in all forms of media now known or hereafter developed in connection with the Site, the Services, DYH’s marketing and promotional materials, and for such other purposes as DYH deems reasonable and appropriate.
You authorize DYH to freely use your Hero In-Deed Materials in any and all manner that it deems appropriate, including adopting, publishing, reproducing, disseminating, transmitting, distributing, copying, using, creating derivative works of, displaying (in whole or part) worldwide, or acting on such Hero In-Deed Materials for the full term of any rights that may exist in such Hero In-Deed Materials. You waive the right to inspect or approve any materials incorporating your Hero In-Deed Materials, as well as my right to royalties or other compensation for the use of same. You also waive any claim to any intangible rights, including (but not limited to) the right of publicity or copyright, that you may hold in any tangible medium of expression incorporating your Hero In-Deed Materials created and/or used by DYH, or its designee. In addition, you release and hold harmless DYH from any claims and/or liabilities arising out of or in connection with DYH’s use of your Hero In-Deed Materials.
By applying to become a donor or to otherwise participate in the Services as a Hero In-Deed, through the Site or otherwise, you represent and warrant that: (a) you are at least eighteen (18) years of age or you are a parent or legal guardian accepting this Agreement on behalf of an individual who is under eighteen (18) years of age; (b) any information you submit to DYH, including your Story, is accurate; (c) you have full rights to any Hero In-Deed Materials you submit to DYH, and that you (and not DYH) are solely responsible for such Hero In-Deed Materials, including their legality and appropriateness, and that all such Hero In-Deed Materials are your original creation (as applicable) and use by DYH will not infringe any rights of any third party; (d) any donation you make is legal in your jurisdiction; and (e) you will use all reasonable efforts to fulfill any donation offer you submit to DYH.
Further, by applying to become a donor or to otherwise participate in the Services as a Hero In-Deed, through the Site or otherwise, you hereby understand and acknowledge that (a) DYH is not responsible for verifying the accuracy of the information provided by any Hero in Need or his or her designees and (b) DYH is under no obligation to use your Hero In-Deed Materials in any way and that DYH may elect to refrain from using any or all of your Hero In-Deed Materials in its sole discretion.
IN THE EVENT THAT YOU COMPLETE YOUR DONATION TO A HERO IN NEED, YOU AGREE TO USE YOUR BEST EFFORTS, TO THE EXTENT APPROPRIATE AND FEASIBLE, TO MEET THE HERO IN NEED, EITHER IN PERSON OR BY VIDEO CONFERENCE AND ALLOW SUCH MEETING TO BE VIDEOTAPED FOR PUBLICATION ON THE SITE TO ENCOURAGE OTHERS TO PARTICIPATE IN DYH’S DIRECT DONOR MATCHING.
You may receive a password and account designation when you have completed the Account Information. You are responsible for maintaining the confidentiality of any password and account and are fully responsible for all activities that occur under your password or account. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security.
Assumption of Risk. You use the Internet solely at your own risk and subject to all applicable local, state, national, and international laws and regulations. Although DYH has endeavored to create a secure and reliable Site, the confidentiality of any communication or material transmitted to/from this Site over the Internet cannot be guaranteed. Accordingly, DYH is not responsible for the security of any information transmitted via the Internet, the accuracy of the information contained on the Site, or for the consequences of any reliance on such information. DYH shall have no liability for interruptions or omissions in Internet, network or hosting services. You assume the sole and complete risk of using this Site.
Links to Other Sites. DYH may describe, reference, or provide links, in its sole discretion, to other information or products or sites on the World Wide Web for your convenience in locating related information and services. Any descriptions of, references to, or links to other products, publications or services does not imply endorsements of any kind, unless expressly stated by DYH. Any such information, products or sites have not necessarily been reviewed by DYH and are provided or maintained by third parties over whom DYH exercises no control. In addition, to the extent that they were reviewed by DYH, DYH undertakes no responsibility for continually monitoring such sites; the material at a site when DYH viewed it may differ materially than when you do. Accordingly, DYH expressly disclaims any responsibility for the content, the accuracy of the information, and/or quality of products or services provided by or advertised on these third-party sites.
Events beyond DYH’s Control. You expressly absolve and release DYH, its affiliates, subsidiaries, officers, directors, shareholders, and their respective licensees, successors, assigns, legal representatives, agents and heirs, from any claim of harm resulting from a cause beyond its control including, but not limited to, the failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses or software failures, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, terrorism, or governmental restrictions.
Enforcing Security. Actual or attempted unauthorized use of the Site may result in criminal and/or civil prosecution. DYH reserves the right to view, monitor, and record activity on the Site without notice or further permission from you. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on the Site. DYH will also comply with all court orders involving requests for such information.
Submissions. DYH welcomes your feedback and suggestions about how to improve this Site, as well as other comments related to this Site and any Services offered in connection with this Site. DYH may also offer the ability to post comments, reviews, feedback, and other material to certain interactive portions of the Site. Any ideas, suggestions, information, know-how, material, or any other content, excluding Hero in Need Materials and Hero In-Deed Materials (which are discussed above) (collectively, “Submissions”) received through this Site, however, will be deemed to include a royalty-free, transferable, irrevocable, sublicensable, perpetual, nonexclusive and worldwide right and license for DYH to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works of, display (in whole or part) worldwide, or act on such Submissions without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such Submissions. You expressly acknowledge and agree that you waive any claim to the contrary. DYH may, but will not be obligated to use, and/or provide any author attributions related to, any Submissions.
You agree that the Submissions will not constitute or be comprised of any material that is unlawful or prohibited by this Agreement. DYH reserves the right, but is not obligated, to monitor your public Submissions and remove any public Submissions that DYH considers, in its sole discretion, to constitute misuse of these rules. DYH may restrict, suspend, or terminate your use of the Site or the Services where, in DYH’s sole discretion, it believes that there may have been such misuse. The following examples include misuse of the Site: (a) claiming a relationship with or speaking for any individual, business, association, institution, or other organization for which you are not authorized to claim such a relationship (including but not limited to DYH); (b) providing false or misleading personal information or email addresses, or impersonating any other person or entity; (c) harming minors in any way; (d) harassing another person; (e) unlawful, threatening, libelous, harassing, defamatory, vulgar, obscene, pornographic, profane, invasive of another’s privacy, hateful, or ethnically, racially, or otherwise objectionable Submissions; (e) infringing any patent, trademark, trade secret, copyright, or other proprietary rights of any person, or (f) unsolicited advertising, promotional materials, or other forms of solicitation to other users including, without limitation, “junk mail,” “spam,” “chain letters,” or “pyramid schemes.”
The list above only serves to provide examples and is not meant to be an exhaustive list of the types of unacceptable uses of the Site that may result in the restriction, suspension, or termination of your use of the Site or the Services.
Notice and Procedure for Making Claims of Copyright Infringement. DYH respects the intellectual property of others, and it asks users of the Site to do the same. DYH may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who infringe the rights of third parties, or whom DYH has a reasonable basis to believe infringe the rights of third parties. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact DYH’s copyright agent at the address below with the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material; (d) information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Discover Your Hero, Inc.
PO Box 294
Briarcliff Manor, New York 10510
Attn: Copyright Agent
User Representations. You represent and warrant to DYH that you will not use this Site for any purpose that is unlawful or prohibited by these Terms and Conditions, including but not limited to attempting or actually (a) disrupting, impairing or otherwise interfering with the operation or integrity of the Site or circumventing any Site security system; (b) collecting any information about other users of the Site; or (c) systematically extracting Content or other information or data contained in the Site to populate databases or other sites for internal or external use.
DISCLAIMERS. DYH PROVIDES THIS SITE, THE CONTENT, AND THE SERVICES ON AN “AS IS” BASIS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. DYH MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO YOU OR ANY OTHER PERSON OR ENTITY AS TO THE ACCURACY, RESULTS, TIMELINESS, COMPLETENESS, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE SITE, THE CONTENT, OR THE SERVICES. FURTHER, THE INFORMATION AVAILABLE ON THIS SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. AS STATED HEREIN, DYH MAY MAKE MODIFICATIONS AND/OR CHANGES TO THIS SITE OR THE CONTENT, MATERIALS, AND SERVICES DESCRIBED ON THIS SITE AT ANY TIME, FOR ANY REASON. FURTHER, DYH is not responsible for ensuring AND CANNOT GUARANTEE that any particular Hero in-Deed WILL complete his or her PROPOSED donation OR THAT ANY PARTICULAR DONATION WILL BE TAX DEDUCTIBLE. YOU ASSUME THE SOLE RISK OF MAKING USE OF THIS SITE, THE CONTENT, AND THE SERVICES OFFERED ON THE SITE.
UNDER NO CIRCUMSTANCES WILL DYH BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING FROM THIS AGREEMENT, YOUR ACCESS OR USE OF THIS SITE, THE CONTENT, OR THE SERVICES OFFERED ON THE SITE, INCLUDING, BUT NOT LIMITED TO, EXPENDITURES, INVESTMENTS, OR LOSSES OF ANY KIND (INCLUDING LOSSES OF DATA), COMMITMENTS MADE IN RELIANCE ON AN EXPECTED DONATION, COST OF SUBSTITUTE SERVICES OR INFORMATION, THE CLAIMS OF ANY THIRD PARTY, OR FOR ANY OTHER REASON WHATSOEVER, EVEN IF DYH HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
DYH’S LIABILITY TO YOU FOR DIRECT DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, YOUR ACCESS OR USE OF THIS SITE, THE CONTENT, OR THE PRODUCTS AND SERVICES OFFERED ON THE SITE (FOR ANY CAUSE OF ACTION), WILL AT ALL TIMES BE LIMITED TO FIFTY ($50) DOLLARS.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR DIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
YOUR USE OF THE SITE AND THE SERVICES IS AT YOUR SOLE RISK AND IF YOU ARE DISSATISFIED WITH THE SITE, THE CONTENT, OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE AND THE SERVICES.
Indemnity. You agree to indemnify and hold harmless DYH, its affiliates, subsidiaries, officers, directors, shareholders, and their respective licensees, successors, assigns, legal representatives, agents and heirs, from and against any damages, liabilities, costs and expenses (including reasonable attorneys’ and professionals’ fees and court costs) arising out of any third-party claims based on or related to your (a) use of this Site, the Content, or any Services offered on the Site, (b) any Submissions, Hero in Need Materials, or Hero In-Deed Materials you submit; or (c) any breach by you of these Terms and Conditions.
Term and Termination. Subject to this section, this Agreement will remain in full force and effect while you use the Site, are participating in the Services, and/or have an account on the Site. You may terminate your account and your participation in the Services at any time, for any reason, by sending an email request to firstname.lastname@example.org.
DYH may immediately terminate this Agreement or immediately suspend or terminate your access to your account on the Site or the Services at DYH’s discretion with or without notice at any time. DYH may send notice of such termination or suspension to you at the e-mail address you provided at the time of creating your account or such other e-mail address as you may later provide to DYH.
Upon termination of this Agreement by either party, your right to access the Site and to receive the Services will terminate immediately. Even after this agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 4, 5, 9, 11, and 13-22.
Governing Law and Forum. This Agreement shall be governed by the laws of New York, without regard to conflicts of law rules, and the exclusive jurisdiction and venue for any dispute shall be New York. You agree to submit to the jurisdiction of the state and federal courts in New York for the purposes of any judicial proceedings relating to or arising from this Agreement not subject to arbitration as set forth in Section 18.
Arbitration; Waiver of Class Action. While DYH makes every reasonable effort to resolve any disagreements you may have with us, if these efforts fail you and we agree that all claims, disputes or controversies arising out of or relating to this Agreement or your use of the Site or Services are subject to binding arbitration. This includes claims based on contract, tort (including intentional tort), fraud, agency, your or DYH’s negligence, statutory or regulatory provisions, or any other sources of law; claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; and claims made independently or with other claims. As used in this arbitration agreement, DYH includes its parent, subsidiaries, divisions, or affiliates and their respective officers, directors, employees, agents, or successors. Notwithstanding the above, we both agree that we may bring suit in court to enjoin infringement or other misuse of intellectual property rights or to otherwise obtain provisional relief pending a decision on the merits by the arbitrator.
YOU AND DYH ALSO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER IN ARBITRATION ONLY IN YOUR OR DYH’S INDIVIDUAL CAPACITY AND IN SO DOING YOU AND DYH HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY, TO ASSERT OR PARTICIPATE IN A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION LAWSUIT OR CLASS ACTION ARBITRATION, TO ASSERT OR PARTICIPATE IN A PRIVATE ATTORNEY GENERAL LAWSUIT OR PRIVATE ATTORNEY GENERAL ARBITRATION, AND TO ASSERT OR PARTICIPATE IN ANY JOINT OR CONSOLIDATED LAWSUIT OR JOINT OR CONSOLIDATED ARBITRATION OF ANY KIND.
Either party may initiate arbitration, which shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Commercial Arbitration Rules and Supplemental Procedures for Consumer-Related Disputes in effect on the date the arbitration is filed (“AAA Rules”). The AAA Rules are available on the AAA’s website www.adr.org, or by calling the AAA at (800) 778-7879. Any arbitration hearing that you attend will be held at a place chosen by the AAA in Westchester, New York. Any claim you have must be commenced within one (1) year after the claim arises.
Force Majeure. DYH shall be relieved of its obligation to perform this Agreement to the extent that the performance is prevented by your failure to perform this Agreement, fire, weather conditions, industrial dispute, labor disturbance, or any other cause beyond DYH’s reasonable control.
Waiver. Failure to insist on strict performance of any of the provisions of this Agreement will not operate as a waiver of any subsequent default or failure of performance. No waiver by DYH of any right under this Agreement will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time.
Nature of Relationship/Severability. No joint venture, partnership, employment, agency or other relationship exists between you and DYH as a result of this Agreement or your use of this Site. If any provision of this Agreement (including any change, modification, or update made pursuant to this Agreement) is held unenforceable by a court or tribunal of competent jurisdiction, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.