Introduction

IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU AND CHEERITY, INC., (HEREINAFTER, “CHEERITY” OR “WE” OR “OUR” OR “US”), THE OWNER OF THE WEBSITE AND HOSTED PLATFORM LOCATED AT WWW.CHEERITY.COM. (HEREINAFTER, THE “PLATFORM”). BEFORE ACCESSING OR USING ANY PART OF THE PLATFORM, YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS TERMS OF USE AGREEMENT (THE “TERMS”) BECAUSE YOUR ACCESS TO AND USE OF THE PLATFORM ARE SUBJECT TO THESE TERMS OF USE, AS WELL AS TO ALL APPLICABLE LAWS AND REGULATIONS.

CHEERITY IS WILLING TO LICENSE AND ALLOW THE USE OF THE PLATFORM ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE PLATFORM. THESE TERMS OF USE MAY BE CHANGED, MODIFIED, SUPPLEMENTED OR UPDATED BY CHEERITY FROM TIME TO TIME WITHOUT ADVANCE NOTICE BY POSTING HERE AND YOU WILL BE BOUND BY ANY SUCH CHANGED, MODIFIED, SUPPLEMENTED OR UPDATED TERMS OF USE IF YOU CONTINUE TO USE THE PLATFORM AFTER SUCH CHANGES ARE POSTED. THE DATE THESE TERMS OF USE WERE LAST UPDATED IS STATED AT THE END OF THIS DOCUMENT. YOU ARE ENCOURAGED TO REVIEW THESE TERMS OF USE PERIODICALLY FOR UPDATES AND CHANGES.

Terms and Conditions

Description of the Service

The Cheerity Platform provides brands and organizations (“Clients”) the opportunity to run campaigns and users the opportunity to participate in such campaigns. Users participate in Clients’ campaigns by uploading personal photos, videos and messages (collectively, “User Content”) in encouragement and support of a brand, cause or movement. The Platform provides users with functionality to share their User Content with friends with whom they are connected via social media, email or text in order to encourage additional participation and tracks all such activities.

Registration, Eligibility & Restrictions

You can visit the Platform and participate in Clients’ campaigns without having to register or create an account. Only certain functionality of the Platform, including managing a campaign as a Client, requires that you register with us. If you decide to register with us, you will be asked to provide some personally identifiable information, including your name and email address. You may also be asked to create a username and password. The username and password that you provide are your credentials (“Credentials”), and you will use these Credentials in order for the Platform to authenticate you as a registered user of Cheerity. You may not have more than one active set of Credentials. Additionally, you are prohibited from selling, sharing or otherwise transferring your Credentials to another party. You also agree to provide true, accurate, current and complete information about yourself as prompted during the registration process.

Once registered, if you provide any information that is untrue, inaccurate, not current or incomplete (or becomes untrue, inaccurate, not current or incomplete), or Cheerity has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we reserve the right to suspend or terminate your account and refuse any and all current or future use of the Platform (or any portion thereof). If you use the Platform, you are responsible for maintaining the confidentiality of your Credentials and for restricting access to your device. You agree to accept responsibility for all activities that occur under your account. You agree to notify us immediately – by emailing us at team@cheerity.com – of any unauthorized use of your account or any other breach of security.

You understand that by using the Platform and by participating in Client’s campaigns on the Platform, you consent to the collection and use of your personally identifiable information (PersonaI Information) as set forth in our Privacy Policy, and to have such information collected, used, transferred to and processed in the United States. You understand, acknowledge and agree that if you provide Personal Information, we may share that Personal Information only with the Client that is the operator of the campaign you participated in. Cheerity will not sell or rent to any other third party any of the Personal Information or data that you provide on the Platform.

The campaigns you interact with on the Cheerity Platform are not operated and controlled by Cheerity. Cheerity does not represent or endorse any Client, nor do we support any views, opinions, endorsements, recommendations or advice in Clients’ campaigns, or as may be posted by users in such campaigns. We shall not be responsible for the safety, quality, accuracy, reliability or integrity of any such campaign or any content displayed or distributed in connection with such a campaign.

Cheerity License Grant

The Cheerity Platform is provided by Cheerity, and these Terms provide to you a personal, revocable, limited, non-exclusive, royalty-free, non-transferable license to access the Platform solely for your own personal use. Your use of the Platform and any services, materials or information made available through the Platform is conditioned on your continued compliance with the terms and conditions of these Terms. Accordingly, you expressly acknowledge and agree that Cheerity transfers no ownership or intellectual property interest or title in and to the Cheerity Platform.

Age Requirements

The Cheerity Platform and Clients’ campaigns on the platform are intended solely for users who are 18 years of age or older, and any use of or access to the Platform and such campaigns by anyone under 18 is unauthorized. If you are 13 or older but under the age of 18, you are only authorized to use our Platform with your parent/guardian permission. If you are a parent or guardian of a child who is at least 13 years of age, but under the age of 18, and you give your child permission to use the Platform, you hereby agree to the terms set forth in these Terms on behalf of both yourself and your child. You further agree that you are solely responsible for any and all use of the Platform by your child regardless of whether such use was authorized by you. If you reside in a jurisdiction that would restrict the use of this Platform – or any of the functionalities or features offered via the Platform – because of age, or restricts the ability to enter into contracts such as this one due to age, you must abide by such age limits and you must not use the Platform if you are not permitted to do so by such local jurisdiction. Please note that children under the age of 13 are forbidden to use this Platform. If you are a parent/guardian of a child that you believe has accessed our platform without your permission and supervision, please contact us at team@cheerity.com and we will make efforts to address.

User Content

If you choose to participate in a campaign, you will have the option of posting User Content – you hereby represent and warrant that User Content that you upload will be of yourself, and if you include any other person(s) in such User Content, that you have the permission of each such additional person. By uploading User Content to a campaign, you grant Cheerity, the Client that operates the campaign and its affiliates, and each of their respective licensees, successors, and assigns a non-exclusive, irrevocable, unrestricted, perpetual, worldwide and royalty-free and fully paid-up right and license to use, reproduce, display, distribute, and otherwise exploit the User Content for any purpose. You represent and warrant that you own or control all rights in and to the User Content and have the right to grant the license granted above to Cheerity, the Client that operates the campaign and its affiliates, and each of their respective licensees, successors, and assigns. Cheerity reserves the right to reject and/or remove any User Content that we believe, in our sole discretion, violates these provisions. Cheerity is not responsible or liable to any third party for the content or accuracy of any User Content posted by you or any other user of the Platform.

Intellectual Property Rights

Trademarks and Service Marks

Certain trademarks are the service marks and trademarks of Cheerity or one of its affiliates/partners. All page headers, custom graphics, and button icons are service marks, trademarks, logos, and/or trade dress of Cheerity or one of its affiliates/partners. All other trademarks, service marks, product names, company names or logos, whether registered or not, on the Platform are the property of their respective owners. In addition to complying with all applicable laws, you agree that you will not use any such trademarks, service marks, or other logos from this Platform without the prior written authorization of Cheerity or their respective owners.

Copyrights

Except as otherwise expressly stated, all content appearing on this Platform is the copyrighted work of either Cheerity, its Clients or its third party content suppliers or authorized users, and is protected by U.S. and international copyright laws. The compilation (meaning the collection, arrangement and assembly) of all content is also the exclusive property of Cheerity, and is protected by U.S., and international copyright laws.

Except as otherwise expressly stated herein or as expressly permitted, you may not alter, modify, copy, distribute (for compensation or otherwise), transmit, display, perform, reproduce, reuse, post, publish, license, frame, download, store for subsequent use, create derivative works from, transfer, or sell any information or content obtained from this Platform, in whole or in part, including any text, images, audio, and video in any manner, without the prior written authorization of Cheerity, or any applicable third-party suppliers or authorized users. The use of content, including images, by you, or anyone else authorized by you, is prohibited unless specifically permitted by Cheerity. Any unauthorized use of text or images may violate copyright laws, trademark laws, the laws of privacy and publicity, and applicable regulations and statutes. Cheerity does not warrant nor represent that your use of any content or materials displayed on the Platform will not infringe rights of third parties.

Content

The Cheerity Platform is provided by Cheerity, and these Terms provides to you a personal, revocable, limited, non-exclusive, royalty-free, non-transferable license to access the Platform solely for your own personal use. Your use of the Platform and any services, materials or information made available through the Platform is conditioned on your continued compliance with the terms and conditions of these Terms. Accordingly, you expressly acknowledge and agree that Cheerity transfers no ownership or intellectual property interest or title in and to the Cheerity Platform.

Promotions

All sweepstakes, contests or other promotions (“Promotion”) that may be a part of Clients’ campaigns on the Cheerity Platform shall be governed by the applicable Promotion’s Official Rules.

Notice of Infriging Materials

We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. If you believe in good faith that any content on this Website violates or infringes upon your copyright rights pursuant to Title 17, United States Code, Section 512(c)(2), you may file a DMCA Notice of Alleged Infringement with the Company’s Designated Copyright Agent with all specifics necessary for us to consider and respond to your complaint, as set forth below. You may be asked to provide additional information and follow additional procedures for us to act on your complaint. Please note that we may not process your complaint if it is not properly filled out or is incomplete.

You (or your agent) may send us a written notice that includes the following information.

a clear identification of the copyrighted work you claim is infringed;
a clear identification of the material you claim is infringing on the Website, such as a link to the infringing material;
your address, email address and telephone number;
a statement that you have a “good faith belief that the material that is claimed as copyright infringement is not authorized by the copyright owner, its agent, or the law;”
a statement that “the information in the notification is accurate, and under penalty of perjury, the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;”
a signature by you or the person authorized to act on behalf of the copyrighted work that you claim is infringing.

Please send to your notice to the following address:

Cheerity, Inc.

3360 Peach Court

Mohegan Lake, NY 10547

Email: team@cheerity.com

Reservation of Rights

Cheerity reserves the right, in its sole discretion and at any time, to modify, interrupt, limit, suspend or discontinue, temporarily or permanently, the Platform, in whole or in part, including, but not limited to, as we deem necessary for purposes of maintenance, upgrades and the like, or to maintain the Platform or to comply with applicable law. Cheerity shall not be liable to you or to any third party for any such modifications, suspensions or discontinuances of the Platform.

Additional Acknowledgments

You hereby agree to abide by all applicable local, state, national, and international laws and regulations with respect to your use of the Cheerity Platform. In addition, you also acknowledge and agree that use of the Internet and access to or transmissions or communications with the Cheerity Platform is solely at your own risk. While Cheerity has endeavored to create a secure and reliable Platform, you should understand that the confidentiality of any communication or material transmitted to/from the Cheerity Platform over the Internet or other form of global communication network cannot be guaranteed. Accordingly, Cheerity is not responsible for the security of any information transmitted to or from the Platform.

Prohibited Use/Activities

In addition to any other restrictions or conditions of use, you hereby acknowledge, and represent and warrant, that your use of the Platform – including any communication or message shared via the Platform – will not be, or alleged to be:

unlawful, unauthorized, fraudulent or malicious in purpose;
a violation, misappropriation or infringement on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights;
false, offensive, abusive, libelous, hateful, defamatory, obscene, racist, sexually explicit, ethnically or culturally offensive, indecent, pornographic;
an invasion another’s right of privacy or publicity.

In addition, you agree you will not:

create a false identity for the purpose of misleading others or impersonate any person or entity;
violate any applicable local, state, national or international law;
license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Platform or in any way;
modify or make derivative works based upon the Platform;
create Internet “links” to the Service or “frame” or “mirror” any Platform on any other server or wireless or Internet-based device;
reverse engineer or access the Platform in order to (a) design or build a competitive product or service, (b) design or build a product using similar ideas, features, functions or graphics of the Services or Application, or (c) copy any ideas, features, functions or graphics of the Services or Application;
launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Services or Platform;
interfere with or disrupt the integrity or performance of the Platform or the data contained therein, or attempt to gain unauthorized access to the Platform or its related systems or networks.

Cheerity will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. You acknowledge that Cheerity has no obligation to monitor your access to or use of the Platform, but has the right to do so for the purpose of operating the Platform and providing the Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Cheerity reserves the right, at any time and without prior notice, to suspend or terminate your account, or restrict, disable or permanently bar your use and access to the Platform (or any portion thereof) if we believe, in our sole discretion, that you have engaged, or may engage, in any of the above prohibited activities.

Disclaimers

WHILE CHEERITY ENDEAVORS TO PROVIDE A RELIABLE AND FUNCTIONAL PLATFORM, THE INFORMATION, PLATFORM, CONTENT AND SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. YOU ASSUME THE SOLE RISK OF MAKING USE AND/OR RELYING ON THE PLATFORM, SERVICES, AND INFORMATION. CHEERITY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PLATFORM AND ALL ELEMENTS THEREOF, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON INFRINGEMENT OF THIRD-PARTY RIGHTS, SATISFACTORY QUALITY, QUIET ENJOYMENT AND ACCURACY, OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. CHEERITY ALSO MAKES NO REPRESENTATION OR WARRANTY THAT THE PLATFORM WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION OR THAT ANY FILES OR INFORMATION THAT YOU DOWNLOAD FROM THE PLATFORM WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES.

Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL CHEERITY (AND ITS SUCCESSORS, PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, DEVELOPERS, NETWORKS, AND DISTRIBUTORS) BE LIABLE FOR (i) ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, BUSINESS OR PROFITS THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE PLATFORM OR ANY OF THE SERVICES, OR (ii) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY CHEERITY OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE PLATFORM, OR (iii) ANY ERRORS OR OMISSIONS IN THE SERVICE’S OPERATION, OR ANY 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, WITHOUT LIMITATION, LOSS OF GOODWILL, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR ANY OTHER ACTION. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. BY USING THIS PLATFORM, YOU EXPRESSLY AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN; IF YOU DO NOT AGREE TO THIS ALLOCATION OF RISK, YOU MUST NOT USE THE PLATFORM.

Indemnity

You agree to defend, indemnify, and hold harmless Cheerity and affiliates and all of their respective employees, funders, parents, subsidiaries, joint ventures, affiliates, agents, developers, directors, officers and attorneys from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses) relating to or arising from i) any breach or alleged breach by you of this Terms, or ii) any act or omission related to your use of this Platform, or iii) any User Content that you send out or respond to, or iv) your violation of any third-party right, including without limitation – and including in regard to your Content – any intellectual property right, publicity, confidentiality, property or privacy right.

Governing Law

These Terms have been made in and will be construed and enforced solely in accordance with the laws of the United States of America and the State of New York, U.S.A. as applied to agreements entered into and completely performed in the State of New York. You and Cheerity each agree to submit to exclusive subject matter jurisdiction, personal jurisdiction, and venue to the federal and state courts located within the state of New York.

Arbitration

At Cheerity’s sole discretion, any disputes or claims under these Terms or its breach may be submitted to and resolved exclusively by arbitration conducted in accordance with American Arbitration Association rules. One arbitrator appointed under such rules shall conduct arbitration. Any such arbitration shall be within the state of New York, and the laws of New York shall be applied. Any decision in arbitration shall be final and binding upon the parties. Judgment may be entered thereon in any court of competent jurisdiction. Notwithstanding the above, Cheerity may sue in any court for infringement of its proprietary or intellectual property rights. All claims you bring against Cheerity must be resolved in accordance with this section. All claims filed or brought contrary to this section shall be considered improperly filed. Any claim or cause of action arising out of or related to use of the Platform and/or any of the services, or the Ads, Rewards or the Terms, must be filed within one (1) year after such claim or cause of action arose regardless of any status or law to the contrary. In the event any such claim or cause of action is not filed within such one (1) year period, such claim or cause of action shall be barred. Any failure to act by Cheerity with respect to a breach by you or others does not waive Cheerity’s right to act with respect to subsequent or similar breaches.

Term and Termination

These Terms and your right to use the Cheerity Platform will take effect at the moment you access the Cheerity Platform, and is effective, binding and enforceable for as long as use the Platform. In addition, Cheerity reserves all of its legal rights to pursue any and all legal remedies if we believe you are using the Platform for fraudulent or unlawful activity or you are taking any actions or omissions that violate any term or condition of these Terms, or in order to protect its name and goodwill, its business, and/or other users. Additionally, Cheerity reserves the right to terminate your use of the Platform at any time, for any reason or for no reason. Termination will be effective without notice. You may also terminate these Terms at any time by ceasing to use the Platform and all of its related features and, if you have registered with the Platform, by emailing us at team@cheerity.com requesting that we delete your account information; please note that all provisions of these Terms that by their nature are intended to survive termination will so survive and remain binding and effective – such provisions include, but are not limited to the miscellaneous section below, the provisions concerning Cheerity’s proprietary rights, feedback, indemnity, disclaimers of warranty, limitation of liability, and governing law.

No Class Action

YOU AND CHEERITY AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR CHEERITY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR CHEERITY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. YOU AND CHEERITY FURTHER AGREE THAT NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, CHEERITY, AND ALL PARTIES TO ANY SUCH PROCEEDING.

Changes to the Terms of Use

Cheerity reserves the right to change, alter, replace or otherwise modify these Terms at any time. The date of last modification is stated at the top of these Terms. It is your responsibility to check this page from time to time for updates, and you hereby acknowledge and agree that you will be bound by the then current posted Terms.

Miscellaneous

These Terms constitute the entire agreement between you and Cheerity and govern your use of the Platform, superseding any prior agreements between you and Cheerity. You will not assign the Terms or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Cheerity. Any purported assignment or delegation by you without the appropriate prior written consent of Cheerity will be null and void. We may assign these Terms or any rights hereunder without your consent. Failure by Cheerity to insist on strict performance of any of the terms and conditions of these Terms will not operate as a waiver by Cheerity of that or any subsequent default or failure of performance. The Platform 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 Cheerity to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Platform or any portion of the Platform, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the service or other features that the Platform provides. If any provision (or part thereof) contained in these Terms is determined to be void, invalid, or otherwise unenforceable by a court of competent jurisdiction or on account of a conflict with an applicable government regulation, such determination shall not affect the remaining provisions (or parts thereof) contained herein and the illegal, invalid, or unenforceable clause shall be modified in compliance with applicable law in a manner that most closely matches the intent of the original language. No joint venture, partnership, employment, or agency relationship exists between you and Cheerity as result of these Terms or your utilization of the Cheerity Platform. Headings herein are for convenience only.