Last updated: 2/27/16
THE SECTION BELOW TITLED “MISCELLANEOUS” CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
Description and Use of the Forcerank App
(a) The Forcerank App. The Forcerank App allows you to compete in various contests by choosing the category of the Contest and providing ranking for the relative performance of the stocks listed in the contest (each a “Contest”). You will have an opportunity to win prizes based on the total number of points you accumulated as compared to your competitors according to the relative performance of your selected stocks compared to the actual relative performance of each stock in the Contest.
(b) License to Use the Forcerank App. Forcerank hereby grants you a limited, non-exclusive, non-transferable license to download and install a copy of the Forcerank App on a single mobile device that you own or control and to run such copy of the Forcerank App solely for your own personal use. Furthermore, with respect to any application accessed through or downloaded from the Apple, Inc. (“Apple”) application store (“Apple App”), you will use the Apple App only:
- (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software); and
- (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
We reserve all rights in and to the Forcerank App not expressly granted to you under this Agreement.
Forcerank Fees. If you compete in a Contest with Entry Fees, we will take a percentage of the total prize pool for such Contest (the “Forcerank Fees”). All applicable Forcerank Fees will be made known to you before entering the Contest.
Entry Fees for Contests. If you choose to compete in Contests with entry fees, you agree to pay any applicable entry fees made known to you before entering into the Contest (the “Entry Fees”). We may use Third-Party Payment Vendors to process you payment of Entry Fees. You warrant and represent that you are the valid owner, or an authorized user, of the debit card, credit card or any other payment card you provide to such Third-Party Payment Vendors, and that all such information is accurate.
We reserve the right to change any of the Forcerank Fees, or the Entry Fees that we charge, or to institute new or additional fees, at any time upon notice to you.
(d) Contest Prizes. Each Contest will run only if we have the total number of contestants required to compete in the Contest and prizes will only be awarded if a Contest is run. We reserve the right to cancel Contests at any time. In the event a Contest is cancelled, we will refund you the applicable Entry Fees for the cancelled Contest. If you are awarded a monetary prize as a result of competing in a Contest, that prize will be available for use or withdrawal by 9PM Eastern Time on the day the Contest concludes, pursuant to confirmation by Forcerank that the Contest was competed and closed without abnormality.
If you would like to use the Forcerank App, you will need to download the Forcerank App from the Apple App Store using your Apple credentials. We will use your Apple credentials to create a user name for you. You may also link your Facebook or any other social media account with the Forcerank App. You represent and warrant that all login information you submit is truthful and accurate and you will maintain the accuracy of such information. You are solely responsible for the confidentiality of your account, as well as for its use and misuse. You will promptly inform us of any need to deactivate your account. We reserve the right to delete your account at any time and for any reason.
Use of Personal Data
Forcerank Intellectual Property
The Forcerank App contains materials, such as photographs, software, technology, text, graphics, images, sound recordings, and other material provided by or on behalf of Forcerank (collectively referred to as the “Forcerank IP”). The Forcerank IP may be owned by us or third parties. The Forcerank IP is protected under both United States and foreign laws. Unauthorized use of the Forcerank IP may violate copyright, trademark, and other laws. You have no rights in or to the Forcerank IP, and you will not use the Forcerank IP except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Forcerank IP on any copy you make of the Forcerank IP. You may not sell, transfer, assign, license, sublicense, or modify the Forcerank IP or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Forcerank IP in any way for any public or commercial purpose. The use or posting of the Forcerank IP on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Forcerank App and the Forcerank IP automatically terminates.
The trademarks, service marks, and logos of Forcerank (the “Forcerank Trademarks”) used and displayed on the Forcerank App are registered and unregistered trademarks or service marks of Forcerank. Other company, product, and service names located on the Forcerank App may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Forcerank Trademarks, the “Trademarks”). Nothing on the Forcerank App should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Forcerank Trademarks inures to our benefit.
Elements of the Forcerank App are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Forcerank IP may be retransmitted without our express, written consent for each and every instance.
User Generated Content
You may post and/or create content through the Forcerank App, including but not limited to, Ranking Data (hereinafter, “User Generated Content”). We cannot and do not review it all–we merely act as a passive conduit for distribution of the User Generated Content to other users of the Forcerank App. That said, we may remove User Generated Content that does not adhere to our Community Guidelines, or that is offensive or otherwise unacceptable to us in our sole discretion.
As between us and you, you retain all copyrights and other intellectual property rights in and to the User Generated Content. You warrant and represent that you either own, or have a sufficient license to, all User Generated Content provided through your account. You hereby grant us an irrevocable, non-exclusive, worldwide, royalty-free, sublicensable, transferable license to use your User Generated Content as reasonably necessary for us to provide you and other users with the Forcerank App.
Remember, once you submit User Generated Content through the Forcerank App, it may be accessible by other users, including any Personal Information included therein. Please carefully consider any User Generated Content that you submit through the Forcerank App.
By accessing and/or using the Forcerank App, you hereby agree that:
- You will not use the Forcerank App for any unlawful purpose;
- You will not upload, post, e-mail, transmit, or otherwise make available any content that:
- infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
- is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, or promotes extreme violence or cruelty to animals, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity; or
- discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.
- You will not “stalk” or otherwise harass another person;
- You will not spam or use the Forcerank App to engage in any commercial activities;
- You will not access or use the Forcerank App to collect any market research for a competing business;
- You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- You will not interfere with or attempt to interrupt the proper operation of the Forcerank App through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Forcerank App through hacking, password or data mining, or any other means;
- You will not use any robot, spider, scraper, or other automated means to access the Forcerank App for any purpose without our express written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the public portions of the Forcerank App for the sole purpose of and solely to the extent necessary for creating publicly-available searchable indices of the materials, but not caches or archives of such materials;
- You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
- You will let us know about inappropriate content of which you become aware. If you find something that violates our Community Guidelines, please let us know, and we’ll review it.
We reserve the right, in our sole and absolute discretion, to deny you access to the Forcerank App, or any portion of the Forcerank App, without notice, and to remove any content that does not adhere to these Community Guidelines.
- Employees, agents, successors, and assignees of Forcerank as well as family and household members of same, are ineligible to participate in Contests which include any prize or have any entry fee.
- You can compete in any number of Contests in a given day, but you cannot enter the same Contest more than once.
- If you have any non-public information regarding the plan and conditions of a company that could provide you an advantage in a Contest (“Insider Information”), you cannot use the Insider Information to compete in a Contest.
- You cannot compete in Contests if you are prohibited from doing so pursuant to a court order.
By submitting any unsolicited information and materials, including comments, ideas, questions, designs, and other similar communications (collectively, “Unsolicited Information”) to us through the Forcerank App, you agree to be bound by the following terms and conditions. If you do not agree with these terms and conditions, you should not provide us with any Unsolicited Information. All Unsolicited Information will be considered NON-CONFIDENTIAL and NON-PROPRIETARY. We, or any of our affiliates, may use such communication or material for any purpose whatsoever, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast, and further posting. Further, we and our affiliates are free to use any ideas, concepts, know-how, or techniques contained in any communication or material you send to us for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products. By submitting any Unsolicited Information, you are granting us a perpetual, royalty-free and irrevocable right and license to use, reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display, publicly perform, sublicense, create derivative works from, transfer and sell such Unsolicited Information and to use your name and other identifying information in connection with such Unsolicited Information.
Accessing and Downloading the Forcerank App from iTunes
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple App.
- In the event of any failure of the Apple App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple App. As between Forcerank and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Forcerank.
- You acknowledge that, as between Forcerank and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple App or your possession and use of the Apple App, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Forcerank Disclaimers and Limitation of Liability
THE Forcerank APP, THE Forcerank IP AND ALL CONTENT, FUNCTIONS AND MATERIALS MADE AVAILABLE TO YOU THROUGH THE Forcerank APP, IS PROVIDED “AS IS,” “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NONE OF Forcerank, ITS AFFILIATES, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “Forcerank PARTIES”) WARRANT THAT ANY OF THE FOREGOING WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. NONE OF THE Forcerank PARTIES SHALL BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF ANY OF THE FOREGOING. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE Forcerank APP IS TO STOP USING THE Forcerank APP.
WE ARE NOT A REGISTERED BROKER, INVESTMENT ADVISOR OR BROKER DEALER AND WE DO NOT PROVIDE INVESTMENT ADVICE TO INDIVIDUALS. THE PRIZE MONEY THAT YOU WIN BY COMPETING IN CONTESTS THROUGH THE Forcerank APP MAY BE SUBJECT TO TAXES AND YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR SEEKING PROFESSIONAL TAX ASSISTANCE AND PAYING ANY APPLICABLE TAXES ON SUCH AMOUNTS. NONE OF Forcerank PARTIES ENDORSE OR RECOMMEND ANY CONTEST, RANKING DATA, UNDERLYING STOCKS IN ANY CONTEST, OR ANY USER GENERATED CONTENT MADE AVAILABLE TO YOU THROUGH THE Forcerank APP. NONE OF THE Forcerank PARTIES IS A PARTY TO, OR HAS ANY RESPONSIBILITY OR LIABILITY WITH RESPECT TO, ANY USER GENERATED CONTENT, OR ANY TRANSACTION, COMMUNICATION OR INTERACTION BETWEEN CONTESTANTS OR FOR ANY RESULTS CAUSED BY USING THE Forcerank APP, INCLUDING WITHOUT LIMITATION, ANY DEATH, OR BODILY INJURY THAT YOU MAY SUFFER. WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH THE FOREGOING.
You agree to defend, indemnify, and hold the Forcerank Parties harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your access to, use, or misuse of the Forcerank App; (iii) any User Generated Content provided through your account; and/or (iv) your violation of any third-party right, including without limitation any intellectual property, or privacy right.
Compliance with Applicable Laws
The Forcerank App is based in the United States. We make no claims concerning whether the Forcerank App, Forcerank IP or any User Generated Content may be viewed or be appropriate for use outside of the United States. If you access the Forcerank App, the Forcerank IP or the User Generated Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
We may terminate this Agreement and your access to all or any part of the Forcerank App at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Forcerank App at any time without prior notice or liability.
In the event that any portion of this Agreement is held to be invalid or unenforceable, then such portion shall be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this Agreement shall remain in full force and effect. This section, and the sections entitled Forcerank Intellectual Property, Indemnification, Forcerank Disclaimers and Limitation of Liability shall survive the termination of this Agreement. You may not assign this Agreement. No waiver shall be effective unless in writing. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. In the event of a dispute arising under or relating to this Agreement (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website http://www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.