Term of Use
- NOTICE OF BINDING ARBITRATION; WAIVER OF CLASS ACTION. THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION IN SECTION 13.1 WHICH PROVIDES THAT YOU AND HUMBLEBERRY WILL RESOLVE ALL DISPUTES THROUGH MANDATORY AND BINDING ARBITRATION, UNLESS YOU OPT OUT THROUGH THE MECHANISM PROVIDED IN THESE TERMS OR ARE IN A PROVINCE, STATE, OR COUNTRY IN WHICH THE COURTS WILL NOT PERMIT YOU TO CONSENT TO BINDING ARBITRATION. THIS MEANS THAT, IN THE EVENT OF A DISPUTE WITH HUMBLEBERRY, YOU WILL NOT BE ABLE TO HAVE THAT DISPUTE RESOLVED BY A JUDGE OR A JURY. ADDITIONALLY, IN SECTION 13.2 OF THESE TERMS, YOU ALSO WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS AGAINST HUMBLEBERRY. PLEASE CAREFULLY READ SECTIONS 13.1 AND 13.2.
- ENTITIES. IF YOU ARE USING OR ACCESSING OUR SITE ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU: (I) ARE AN AUTHORIZED REPRESENTATIVE OR AGENT OF THAT ENTITY WITH THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS; AND (II) AGREE TO THESE TERMS ON BEHALF OF SUCH ENTITY. IN SUCH A CIRCUMSTANCE, THE WORDS “YOU” AND “YOUR” AS USED IN THESE TERMS WILL REFER TO AND APPLY TO BOTH THAT ENTITY AND YOU PERSONALLY.
- Location. HumbleBerry is a federally registered Canadian corporation and has an address at Suite 201A - 260 Carlaw Ave, Toronto, ON M4M 3L1.
- Modifications. We reserve the right to amend these Terms and any document referred to herein, or any part thereof, at any time, by posting the amended version on our Platform and providing you notification via the Platform or at the email address linked to your account on the Platform (“Account”). Such amendment will become effective seven days after such notice. If prior to such amendments taking effect you terminate your Account in accordance with section 12.1, such amendments will not apply to you; provided that thereafter you do not access or use the Platform. Your continued use of the Platform after such seven day notice period confirms your consent to and acceptance of such amendment, even if you terminated your Account. The most current version of these Terms will govern your use of the Platform, including without limitation any content made available on the Platform. These Terms may not be amended in any other way except through a written agreement by authorized representatives of each party.
- Target Jurisdiction; Age. The Platform is intended for residents who are the age of majority in their jurisdiction. All other persons are prohibited from using the Platform (including, without limitation, participating in Sweepstakes [defined below], Auction, or using our online store) and must leave the Platform immediately. Residents of Austria, Belgium, China, Crimea, Cuba, Czech Republic, France, Greece, Hong Kong, Iran, Iraq, Italy, Japan, Portugal, Russia, South Korea, Singapore, South Korea, Spain, Sudan, Taiwan, Thailand and the province of Quebec are NOT eligible and are prohibited from entering the Sweepstakes. The Sweepstakes is void where prohibited or restricted by law.
THE SITE & SERVICES
Summary. In a nutshell, the Platform is an online platform for (i) promotional prize draws/sweepstakes (“Sweepstakes”) that promote various charities and not-for-profit organizations with whom we partner (collectively, the “Charities”, each a “Charity”); and (ii) silent auctions (“Auctions”) which are also held to promote Charities. Our Platform also has an online store where you can purchase merchandise. If you are a user of our Website (each such user of the Platform, a “User”) and you are eligible, the Platform gives you the ability to enter into Sweepstakes or Auctions with a chance to win prizes and experiences from the Charities that are affiliated with the Sweepstakes or Auctions, as applicable. Multiple Sweepstakes and Auctions may be promoted on our Platform at any given time, but all Sweepstakes and Auctions are separate from each other. Among other things, this means that your entry into one Sweepstakes will not earn you an entry into any other Sweepstakes (or into an Auction, for that matter).
The Sweepstakes and Auctions provide Charities with an opportunity to raise money for their charitable purposes. To help a Charity raise money, you can make a voluntary donation through our Platform (a “Donation”) to the Charity, and as an added bonus for your voluntary donation you will be entered into the Sweepstakes that is being held for the benefit of such Charity; provided that you are eligible to enter and provided that the Charity is currently holding an active Sweepstakes on our Platform. Depending on the Sweepstakes, your voluntary donation might also earn you free gifts. Donations made to Charities through means other than our Platform will not result in entries for any Sweepstakes.
Sweepstakes Participation. In summary, to participate in a Sweepstakes, you must:
- register an Account on our Platform;
- accept and comply with these Terms and the applicable official Sweepstakes rules as posted on the applicable Sweepstakes page (the “Sweepstakes Rules”); and
- as posted on the applicable Sweepstakes page:
- make a Donation to the Charity fundraising through your target Sweepstakes (a “Donation”); or
- use the Free Alternative Method of Entry;
This summary is subject to the Sweepstakes Rules. For full instructions and rules on how to participate in a Sweepstakes, please read and comply with the Sweepstakes Rules which you can find posted on our Platform.
To be clear, you do not need to make a Donation, pay money, or pay other consideration (a fancy legal term) to participate in or win a Sweepstakes, but the Charities do appreciate the Donations. For more information about the Sweepstakes, see the Sweepstakes section of these Terms below and the official Sweepstakes Rules. For more information about making Donations, see section 6 below. To use our Free Alternative Method of Entry, please follow the instructions on our Platform or in the Sweepstakes Rules.
Money transferred to Charities through Donations is not an entry-fee for Sweepstakes, but is instead a donation to the applicable Charity made by you without any expectation of return from the recipient Charity, HumbleBerry, or any other entity. HumbleBerry and the Charities are not obligated to provide any services, products, or otherwise in exchange for Donations made.
- Auction Participation. Participation in any Auction is subject to the Official Auction Rules (the “Auction Rules”) which are incorporated into these Terms by reference.
- Services. Our Platform makes available numerous services (“Services”). Some of those Services are made available only to Charities and others are available to all Users, subject to certain terms and conditions. If you want access to a Service and you are eligible to receive it (for example, by being a Charity), you may request such service on the Platform via the applicable online order form for such service. From time to time, we may also agree in writing to provide you with services. Our provision of, and your access to, our services is subject to us agreeing in writing to provide them to you. Additionally, all Services are subject to these Terms. You can find out more about each Service on its order form or elsewhere on our Platform. We reserve the right to change our Services at any time.
- Summary. In a nutshell, the Platform is an online platform for (i) promotional prize draws/sweepstakes (“Sweepstakes”) that promote various charities and not-for-profit organizations with whom we partner (collectively, the “Charities”, each a “Charity”); and (ii) silent auctions (“Auctions”) which are also held to promote Charities. Our Platform also has an online store where you can purchase merchandise. If you are a user of our Website (each such user of the Platform, a “User”) and you are eligible, the Platform gives you the ability to enter into Sweepstakes or Auctions with a chance to win prizes and experiences from the Charities that are affiliated with the Sweepstakes or Auctions, as applicable. Multiple Sweepstakes and Auctions may be promoted on our Platform at any given time, but all Sweepstakes and Auctions are separate from each other. Among other things, this means that your entry into one Sweepstakes will not earn you an entry into any other Sweepstakes (or into an Auction, for that matter).
Restricted Participation. Residents of Austria, Belgium, China, Crimea, Cuba, Czech Republic, France, Greece, Hong Kong, Iran, Iraq, Italy, Japan, Portugal, Russia, South Korea, Singapore, South Korea, Spain, Sudan, Taiwan, Thailand and the Province of Quebec of Canada are NOT eligible and are prohibited from entering the Sweepstakes. The Sweepstakes is void where prohibited or restricted by law.
- Acceptance of Sweepstakes Rules. By entering any Sweepstakes, you agree with the Sweepstakes Rules for such Sweepstakes. Your participation in a Sweepstakes is subject to the applicable Sweepstakes Rules.
- Conflicts. If these Terms are inconsistent with or conflict with the Sweepstakes Rules, the Sweepstakes Rules prevail.
- Void. Sweepstakes are void where prohibited by applicable law.
- Prohibited Parties. HumbleBerry directors, officers, employees, and agents, their respective immediate family members (including, without limitation, spouses, domestic partners, parents, children, and siblings) and any other person residing in the household of any of the foregoing persons are prohibited from participating in any Sweepstakes.
- Clarification of Terminology. You acknowledge that although we may use the word “contest” or “promotional prize draw” on our Platform we are referring to Sweepstakes as defined in these Terms. Additionally, you acknowledge that when we refer to a “contest” on the Platform or Sweepstakes in these Terms, such activity may legally or colloquially be known as a contest, sweepstakes, or promotional prize draw depending on the particular Sweepstakes Rules.
- Cancelled Sweepstakes. Donations are not refundable in the event of a cancelled or suspended Sweepstakes.
Account and Credentials are specific to you and may not be shared with or transferred to any other person. You are solely responsible for maintaining the confidentiality of your Credentials and you will be held responsible for any harm caused by disclosing or resulting from any unauthorized use of your Credentials. You will not permit any other person to use your Account or Credentials, and you will immediately notify HumbleBerry if you know or suspect that your Account or Credentials have been used by any other person. You shall not use or access an Account which is not your own.
- Registration Data. During the registration process, you will provide true, accurate, current and complete information about yourself as prompted by the Platform's registration form (such information being the "Registration Data"). You will also maintain and promptly update the Registration Data and your Account data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or complete, or if HumbleBerry has reasonable grounds to suspect that such information is untrue, inaccurate, not current or complete, HumbleBerry has the right to suspend or terminate your Account and refuse any and all current or future use of the Platform (or any portion thereof) by you.
Credentials. HumbleBerry may act upon any communication that is given through your Account or by using your Credentials. HumbleBerry is not required to verify the actual identity or authority of a person using your Account or Credentials, but HumbleBerry may in its discretion at any time require verification of the identity of a person seeking to access your Account and may deny access to and use of your Account if HumbleBerry is not satisfied with the verification.
If HumbleBerry, in its discretion, considers your Account or Credentials to be unsecure or to have been used inappropriately, then HumbleBerry may immediately cancel the Account or Credentials without any notice to you. We may require you to change your Credentials from time to time.
- Suspension or Termination of Account. We may suspend or terminate your Account at any time and for any reason or no reason whatsoever in our sole discretion without notice to you. Without limiting the generality of the foregoing, your breach of these Terms (including without limitation failure to pay any charges or fees as billed and without delay), Sweepstakes Rules, or Auction Rules may result in the suspension or termination of your Account.
USE OF THE PLATFORM
- Materials. Except with respect to third-party materials, HumbleBerry authorizes you to view, download and print a single copy of materials and content provided on our Platform for your personal, non-commercial use only and only in connection with your use of the Platform. You may not remove any trademark, copyright or other proprietary notices from such copy nor modify the material or content in any way. Except as otherwise set out in these Terms, any copying or reproduction of the Platform's materials or content, in whole or in part, for commercial purposes or distribution, re-transmission, republication, modification, reverse engineering, sale or other exploitation of this Platform or this Platform’s materials or content without the prior written permission of HumbleBerry is strictly prohibited. HumbleBerry reserves the right to take such steps as it deems necessary, including legal action, to restrain such unauthorized and prohibited activity and HumbleBerry reserves the right to suspend or terminate your access to any part of this Platform immediately, without prior notice, at its sole discretion. You are solely and fully responsible for all consequences, however remote, resulting from your use of our Platform.
- Lawful Use. You agree that your use this Platform and materials on this Platform will be for lawful purposes only and in a manner consistent with local, national or international laws and regulations. Some jurisdictions may have restrictions on the use of the Internet or participation in Sweepstakes by their residents.
- Restricted Users. Potential users of this Platform or any of its Auctions or Sweepstakes, in any jurisdiction of the world, whose laws would: (i) void these Terms in whole or in part; or (ii) render accessing this Platform or any of its Platform or Contents illegal; are not permitted to use this Platform or participate in any Sweepstakes or Auctions.
Restrictions. You agree not use this Platform, or the products sold on this Platform in any manner that:
- infringes, violates or misappropriates the intellectual property rights of any third party;
- may be considered defamatory, discriminatory, fraudulent, or otherwise malicious or harmful to any person or entity; or
- violates applicable law or would be constitute a tort.
Rules. As a condition of your use of the Platform, you agree:
- not to use the Platform for any purpose that is prohibited by these Terms;
- not to participate in any Sweepstakes or Auction if doing so is unlawful under applicable law, or prohibited by these Terms;
- not to use the Platform if doing so is unlawful in your jurisdiction;
- not to use or access, or attempt to use or access, an Account which is not your own;
- not to transfer, assign, or rent out your Account to any other person;
- not to falsely state or misrepresent the origin of any User Content (defined below) provided by you;
- not to use the Platform or participate in any Sweepstakes if you are not the age of majority in your jurisdiction;
- not to impersonate any person or entity or falsely state or misrepresent your affiliation with a person or entity;
- not to use scrapers, indexing tools, or other automated tools for the purposes of data mining or surveying on the Platform;
- not to use bots or automated tools on the Platform (for example, you are prohibited from automating entries into Sweepstakes or bids for Auctions);
- not to mirror, frame, or link to any part of the Platform;
- not to harvest or otherwise collect, use or disclose personal information about Users, including email addresses, without their prior consent and then only in compliance with applicable data protection and privacy laws;
- not to inhibit any person’s use or access of the Platform or impair any element of the Platform or its underlying infrastructure;
- not to defame or disparage anybody or make comments of an obscene, derogatory or offensive manner or otherwise use the Platform or its content in a way that brings us or any third party into disrepute or causes us to be liable to any third party;
- not to reverse engineer, decompile, copy, modify, distribute, transmit, license, sublicense, display, revise, perform, transfer, sell or otherwise make available to any third party or otherwise publish, deep-link, create derivative works from or exploit in any way the Platform or its content except as permitted by us under these Terms or as expressly provided under applicable law;
- not to use the Platform to distribute viruses or malware or other similar harmful software code;
- not to represent or suggest that we endorse any other business, person, product, or service unless we have separately agreed to do so in writing;
- not to register more than one Account;
- not to use the Platform to harass, inconvenience, annoy, cause nuisance, occasion violence on any person, or cause property damage;
- not to use the Platform to infringe any person’s intellectual property rights, including without limitation copyright, trademark, trade secret, and patent rights, or rights of publicly or privacy;
- not to rent out, stream, distribute, lease, publicly perform, publicly display, transmit, broadcast, resell, modify, reproduce, prepare derivative works based upon, or otherwise exploit or commercialize the Platform except as expressly permitted by HumbleBerry;
- not to remove any intellectual property or proprietary property notices, including copyright and trademark notices, from the Platform;
- that you are solely responsible for all costs and expenses you may incur in relation to your use of the Platform or in relation to any Sweepstakes or Auction;
- to act professionally and courteously when using the Platform and participating in any Sweepstakes or Auction (including, without limitation, in connection with your use of any prize); and
- to comply with any additional posted guidelines or rules applicable to specific services or features relating to the Platform which may be posted by HumbleBerry from time to time (such additional guidelines or rules are hereby incorporated by reference into these Terms);
- Availability. While we make commercially reasonable efforts to ensure that the Platform is available, we do not represent, warrant or guarantee in any way the Platform’s continued availability at all times or uninterrupted use by you of the Platform. You acknowledge that access and use of the Platform may be subject to bugs, malfunctions, delays, and downtime. You recognize that, due to the nature of the internet and electronic devices, your access and use of the Platform may be inhibited or affected by factors outside of our control. Availability of the Platform is subject to your continued access to sufficient internet and/or data services.
- Accuracy of Content. Although HumbleBerry reserves the right to monitor, edit, review or remove content from the Platform, we do not represent, warrant or promise (whether expressly or by implication) that any content is or remains available, accurate, complete and up to date, free from bugs, errors or omissions or fit or suitable for any purpose. Any reliance you may place on the information on the Platform is at your own risk and we may suspend or terminate operation of the Platform at any time at our sole discretion. Nothing in these Terms shall operate to prejudice any mandatory statutory requirement or your statutory rights. Content on the Platform does not constitute technical, financial, tax, medical or legal advice or any other type of professional advice and should not be relied on for any purposes.
- Responsibility for Expenses. You are solely responsible for all costs, expenses, and liabilities connected to your access and use of the Platform (including any Auctions, Sweepstakes, prizes or merchandise). Without limiting the generality of the foregoing, you are responsible for (a) your internet, wireless, and data costs incurred in connection with your use or access of the Platform, participation in a Sweepstakes, receipt or use of a prize, or participation in an Auction; (b) obtaining and maintaining any device or other hardware or software you use to access and use the Platform or any Sweepstakes, Auction, or prize.
- Limitations. We do not guarantee that the Platform will work on all hardware. You are solely responsible for obtaining and maintaining compatible devices necessary to access and use the Platform, as updated from time to time.
- Taxes. You are responsible for all tax law compliance related to your participation in a Sweepstakes or Auction. If you are a winner, you agree to cooperate with the Sweepstakes sponsor’s or Auction holder’s reasonable requests in connection with tax filings and other tax law compliance related to your receipt of a prize or auctioned item (“Auctioned Item”).
- HumbleBerry Initiated Bans. HumbleBerry may, in HumbleBerry’s sole arbitrary discretion, permanently or temporarily ban any User from any or all Sweepstakes or Auctions, or the Platform as a whole. In such a circumstance, until the ban is lifted, the banned User is prohibited from entering any Sweepstakes or Auctions from which they have been banned.
PAYMENT & SHIPPING
- Charges. You acknowledge and agree that your use of certain Services, such making a Donation, making a bid in an Auction (a “Bid”), or making purchases from our online store, may result in charges to you, plus applicable taxes (“Charges”). For example, if you enter a Sweepstakes by making a Donation, you will be charged the amount you choose to donate. The Charges for services or goods are described in the online order form for such service or good. When you order or subscribe to a paid Service, make a Donation, make a Bid, or make a purchase from our online store you agree to pay the applicable Charges. Charges might be one-time or recurring, depending on the Service selected. You agree to pay all Charges without delay.
- Payment. By providing a payment method, such as a credit card, that is accepted by us, you represent and warrant that you are authorized to use such payment method and that you authorize us (or our third-party payment processor) to charge your payment method for all applicable Charges. If we, or our third-party payment processor, are unable to verify your payment method, or if it is otherwise invalid or not acceptable, any service or product you ordered may be suspended or cancelled. You remain responsible for any uncollected amounts related to any failure to properly charge your payment method.
- Donations & Bids. You acknowledge and agree that when you make a Donation or a winning Bid, a certain percentage of the Donation or winning Bid may be remitted to HumbleBerry as a service charge payable for the provision of this Platform (the “Service Charge”). Where applicable, taxes will be collected in connection with the Service Charge. Payment processing and transaction fees may be deducted from your Donation.
- Accurate Information. When incurring a Charge on Platform, you must provide accurate and complete personal information as requested by us, such as your name, address, telephone number, e-mail address, credit card information, and shipping address.
- Purchases made from our online store are subject to our Terms & Conditions of Sale (the “E-Commerce Terms”) which are hereby incorporated to these Terms by reference.
- No Refunds. Except as expressly provided in the E-Commerce Terms, HumbleBerry does not provided refunds or credits, including with respect to Donations. All Donations made are final.
- Shipment of Auctioned Items. Shipment of Auctioned Items is subject to the Auction Rules.
TRADEMARKS AND COPYRIGHT
Trademarks. HumbleBerry and related words and logos are trademarks or trade-names of HumbleBerry in Canada and other jurisdictions. HumbleBerry is also the owner in Canada as well as other foreign jurisdictions of additional trademarks, registered and unregistered. Nothing in these Terms or on this Platform will be construed as granting or conferring, either expressly, by implication, by estoppel or otherwise, a licence or other right to you to use any such marks or names or any other intellectual property right of HumbleBerry. The names of other companies, products, and services referred to on this Platform may be trademarks or trade-names of their respective owners. Any unauthorized use of the trademarks or trade-names of HumbleBerry or of third parties is strictly prohibited.
All third-party trademarks referred to on the Platform belong to their respective owners.
- Copyright. The materials provided on this Platform including, without limitation, all portions of this Platform, content, site design, text, graphics and the selection and arrangement thereof, are protected by copyright. All rights reserved. Title to HumbleBerry materials remains with HumbleBerry and any unauthorized use of such materials is strictly prohibited. HumbleBerry reserves the right to take such steps as it deems necessary, including legal action, to enforce its rights under trademark and copyright law.
- Infringement Reports. As copyright holders ourselves, we respect copyright holders’ rights and will quickly respond to any claims of copyright infringement reported on our Platform. If you find anything on our Platform that you believe infringes your copyright or the copyrights of a person you are authorized to represent, please report the alleged infringement to us at admin@HumbleBerry.ca.
- Trademarks. HumbleBerry and related words and logos are trademarks or trade-names of HumbleBerry in Canada and other jurisdictions. HumbleBerry is also the owner in Canada as well as other foreign jurisdictions of additional trademarks, registered and unregistered. Nothing in these Terms or on this Platform will be construed as granting or conferring, either expressly, by implication, by estoppel or otherwise, a licence or other right to you to use any such marks or names or any other intellectual property right of HumbleBerry. The names of other companies, products, and services referred to on this Platform may be trademarks or trade-names of their respective owners. Any unauthorized use of the trademarks or trade-names of HumbleBerry or of third parties is strictly prohibited.
USER GENERATED CONTENT
- User Content. Portions of this Platform allow Users to post and exchange information and content (such information and content, "User Content"), such as images, text, audio, and video, but HumbleBerry does not screen, edit or review any User Content before it is posted or transmitted. You retain the copyright and any other rights you already hold in User Content. By submitting or otherwise posting User Content on our Platform, you grant HumbleBerry a worldwide, non-exclusive, perpetual, irrevocable, fully-paid up, royalty-free, assignable, transferable, and sub-licensable (through multiple tiers) licence to exploit, use, access, store, reproduce, adapt, translate, publish, publicly perform, publicly display, modify, repost, sublicense, create derivative works from, and distribute your User Content, subject to these Terms, without any notice or compensation to you or any other person (the “User Content Licence”). You confirm, represent, and warrant to HumbleBerry that you have all the rights, power, and authority necessary to grant the User Content Licence and that any User Content you submit to us or otherwise post on the Platform is and shall be your own original work or work which you are authorized to supply to us. When you submit or post any User Content on our or through our Platform, and you are the author of such User Content, you irrevocably and unconditionally waive all moral rights you may now or in the future have in any such User Content. Please note that User Content on the Platform does not necessarily reflect the views of HumbleBerry, and HumbleBerry disclaims all responsibility for any such User Content and for any losses or expenses resulting from their use or appearance on this Platform.
- Responsibility. You understand that all User Content, whether publicly posted or privately transmitted when posting, sharing, displaying, sending or submitting material using the Platform, is the sole responsibility of the person from whom it originated. This means that you, and not HumbleBerry, are entirely responsible: (i) for all User Content that you upload, post, email, transmit, or otherwise make available via the Platform; and (ii) for ensuring that all User Content is accurate, lawful, and does not include misleading information or infringe or violate anyone’s rights. HumbleBerry does not control the User Content posted via the Platform and, therefore, does not guarantee the accuracy, integrity, or quality of any User Content. You therefore agree that you will not hold HumbleBerry responsible or liable for any inaccuracies or for any errors or omissions in any User Content, or for any loss, injury or damages of any kind incurred as a result of the use of or reliance upon any User Content posted, emailed, transmitted, or otherwise made available via the Platform.
- Removal of Content. You acknowledge that HumbleBerry does not pre-screen, monitor, or modify User Content, but that HumbleBerry has the right (but not the obligation) to refuse, remove, modify, or delete any User Content that is available via the Platform that violates these Terms, or is otherwise objectionable, in our sole and arbitrary discretion. You acknowledge and expressly consent to HumbleBerry, accessing, preserving, and disclosing your Account information and User Content if required to do so by law or if in good faith HumbleBerry believes that such access, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any User Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety or security of HumbleBerry, or our affiliates, staff, users, or the public.
- Ownership of Derivative Content. HumbleBerry owns all data, information, materials, works, and content derived or created from User Content (“Derivative Content”).
- Feedback. We value your visit to this Platform and welcome any questions, comments or feedback you might have about this Platform, these Terms, the Sweepstakes or any of the products or services offered by HumbleBerry ("Feedback"). Please refer to the Contact section of this Platform for phone and email addresses. That said, the Platform is not a secure means of communication and any information or content you supply to us will not be kept confidential. For that reason, you should not submit or send to us any patentable ideas or patent applications, advertising or marketing suggestions, know-how, trade secrets, prototypes or any information, written or oral, which you regard as confidential or commercially sensitive or valuable (collectively referred to as “Unwanted Submissions”). While we value your feedback, you agree not to submit any Unwanted Submissions. We shall not be subject to any obligation of confidentiality nor be liable for any use and/or disclosure of such submissions. You agree we are free to use your Unwanted Submissions as we see fit without any liability owed to you.
- License to Feedback and Submissions. If you provide Feedback, or Unwanted Submissions, you grant HumbleBerry a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, transferable, and fully sub-licensable right to use, reproduce, publish, distribute, publicly display, publicly perform, translate, adapt, modify, telecommunicate, rent out, commercialize, monetize, and create derivative works from the Feedback or Unwanted Submissions in any way and for any purpose without providing any compensation to you or any other person. You also grant HumbleBerry the right to use the name you submit with the User Content or Feedback, if any, in connection with HumbleBerry's rights hereunder.
- Third Party Rights Warranty. You represent, warrant, and covenant to HumbleBerry that your User Content, Feedback, and Unwanted Submissions do not violate the privacy rights, intellectual property rights, personality rights, or any other rights, of any person.
THIRD PARTY SERVICES AND CONTENT
REPRESENTATIONS AND WARRANTIES
Your Representations and Warranties. In addition to and not in derogation of any other representations and warranties you provide to us in these Terms, you represent and warrant to us that:
- You are a legal entity or the legal age of majority as that is defined in your jurisdiction;
- All information in your Account, and any other information you provide us (including via a Third-Party Site login), is true, accurate, current, and complete, including, without limitation, your age and residency information;
- you are using the Platform in a jurisdiction where access to, and use of, the Platform (or any part thereof) is not prohibited or illegal;
- if your business uses the Platform, your business has complied with all applicable licensing, permit, and registration requirements related to your business;
- your User Content does not violate the privacy rights, personality rights, intellectual property rights, or any other rights, of any person;
- you have all authorizations and licenses necessary to post your User Content on the Platform and to grant us the license thereto;
- you understand the contents of these Terms and have had the opportunity to obtain legal advice with respect to these Terms before agreeing to it;
- you have the written consent, release and/or permission of every identifiable individual person appearing or referenced in your User Content to use his/her name and/or likeness;
- you have the capacity and authority to enter into, execute, and perform your obligations under, these Terms;
- you have provided accurate and complete information on your Account registration form and will keep such information updated and current;
- operation of sweepstakes is lawful in your jurisdiction;
- participation in sweepstakes is lawful in your jurisdiction; and
- participating in Auction is lawful in your jurisdiction.
- Your Representations and Warranties. In addition to and not in derogation of any other representations and warranties you provide to us in these Terms, you represent and warrant to us that:
DISCLAIMER OF WARRANTIES & LIMITATIONS OF LIABILITY
- DISCLAIMER OF WARRANTIES. YOU AGREE THAT YOU USE THE PLATFORM (WHICH INCLUDES WITHOUT LIMITATION THE SWEEPSTAKES, AUCTIONS, AND ONLINE STORE) AT YOUR OWN RISK. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THESE TERMS, HUMBLEBERRY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND HUMBLEBERRY SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, HUMBLEBERRY MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM, SERVICES, HUMBLEBERRY MATERIALS, CONTENT, USER CONTENT, THIRD-PARTY CONTENT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRDPARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS. WE CANNOT GUARANTEE THAT THE PLATFORM WILL FUNCTION WITHOUT ERRORS, INTERRUPTION, OR DOWNTIME.
LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HUMBLEBERRY OR ITS DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS, JOINT VENTURES, LICENSORS (EXCEPT OTHER USERS), AGENTS, AFFILIATES, SUCCESSORS, ASSIGNS, OR SUBSIDIARIES (COLLECTIVELY, THE “REPRESENTATIVES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR OR RELATED TO LOSS OF PROFITS, LOSS OF REVENUES, PROPERTY DAMAGE, LOSS OF GOODWILL, USE, DATA LOSS, PERSONAL INJURY, LOST OPPORTUNITIES, DAMAGE TO REPUTATION, COMMERCIAL LOSS, FINANCIAL LOSS, OR ECONOMIC LOSS, OR INTANGIBLE LOSSES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OR BASIS OF LIABILITY. THE FOREGOING LIMITATION SHALL APPLY EVEN IF HUMBLEBERRY, OR HUMBLEBERRY’S REPRESENTATIVES, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR GREATER CERTAINTY, BUT WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HUMBLEBERRY, AND IT’S REPRESENTATIVES, SHALL NOT BE LIABLE FOR ANYTHING WHICH ARISES OR RESULTS FROM:
- YOUR USE OF OR RELIANCE ON THE PLATFORM;
- YOUR INABILITY TO ACCESS OR USE THE PLATFORM DUE TO ANY CAUSE;
- ANY SWEEPSTAKES OR PRIZE;
- ANY AUCTION OR AUCTION ITEM;
- ANY TRANSACTION, CONTRACT, RELATIONSHIP OR ENGAGEMENT YOU HAVE WITH ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, OTHER USERS);
- ANY SERVICES OR GOODS YOU REQUEST OR RECEIVE THROUGH THE PLATFORM;
- YOUR RELIANCE ON CONTENT, THIRD-PARTY CONTENT, USER CONTENT, OR INFORMATION MADE AVAILABLE ON THE PLATFORM;
- PRODUCTS OR SERVICES SOLD OR MADE AVAILABLE THROUGH THE PLATFORM;
- THE ACTS OR OMISSIONS OF ANY USERS;
- ANY ACT YOU MAKE OR FAIL TO MAKE AS A RESULT OF YOUR USE THE PLATFORM; OR
- ANY OTHER MATTER RELATING TO THE PLATFORM.
- Liability Cap. WITHOUT LIMITING SECTION 11.2, IN NO CIRCUMSTANCE WILL HUMBLEBERRY OR THEIR REPRESENTATIVES AGGREGATE LIABILITY EXCEED $10 IN ALL CASES.
- Security Breach. HumbleBerry strives to keep your personal information, User Content, and Account safe from security breaches; however, we cannot guarantee the safety or security of your personal information, User Content, or Account. BY USING THE PLATFORM OR THE SERVICES, OR PARTICIPATING IN A SWEEPSTAKES, YOU AGREE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TO RELEASE HUMBLEBERRY AND ITS REPRESENTATIVES FROM ALL AND ANY LIABILITY FOR ANY HARM, INJURY, LOSS, OR DAMAGES SUFFERED BY YOU AS A RESULT OF A SECURITY BREACH, FAILURE, OR SHORT COMING OF THE PLATFORM. If you believe that a security breach is occurring, or will occur, you must notify us immediately.
- Limitation. Notwithstanding any other provision of these Terms, if applicable law limits or prohibits the application of sections 11.1 to 11.4, then HumbleBerry and it’s Representatives liability will be limited and excluded to the maximum extent permissible.
General Indemnification. You agree to defend, indemnify, and hold harmless HumbleBerry and its Representatives from and against any and all third party claims, proceedings, suits, disputes, demands, threats, actions, obligations, liabilities, costs (including legal and accounting fees), damages, losses, penalties, fees, expenses, and injuries arising or resulting from:
- your use of the Platform;
- your receipt of or failure to receive a Sweepstakes prize;
- your participation in or ability to participate in a Sweepstakes;
- your receipt or failure to receive an Auctioned Item;
- your participation in or ability to participate in an Auction;
- your use of a Sweepstakes prize or Auctioned Item or any third party’s use of such prize or item that has been won by you;
- your use of any product ordered from our online store;
- any third party’s use of a product you ordered from our online store;
- your breach of these Terms;
- any violation of any right of, or harm or loss of, any person caused by you;
- your violation of any law, regulation, order, or by-law.
HumbleBerry reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you and you shall not in any event settle any matter without the prior written consent of HumbleBerry. You will co-operate as fully as reasonably required in the defense of any indemnified claim.
- Reliance. You understand and agree that we are making the Platform available to you in reliance upon the limitations and exclusions of liability, indemnities, release, and the disclaimers set forth herein and that the same form an essential basis of the contract between you and us. You agree that the limitations and exclusions of liability, indemnities, and the disclaimers set forth herein will survive, and continue to apply in the case of a fundamental breach or breaches of, the failure of essential purpose of contract, the failure of any exclusive remedy or the termination, suspension, or cancellation of your Account or suspension or termination of use of, or access to, Platform.
- Termination of Your Account. You may terminate your Account at any time by providing us written notice at email@example.com with your Account name. We may terminate your Account if you breach these Terms or for any other reason whatsoever in our sole discretion.
- Effect of Account Termination. If we or you terminate your Account, you will lose access to all information and materials that were stored in your Account. Additionally, you will lose the ability to use certain features of the Platform, including the ability to participate in Sweepstakes. If you are an entrant in any active Sweepstakes, and your Account has been terminated, you will immediately be disqualified from such Sweepstakes. If you have bid in any active Auction, and your Account has been terminated, you will be still be obligated to pay any winning bids in any Auctions you entered, notwithstanding that your Account has been terminated. Although your Account is terminated, we reserve the right to retain information and content associated with your Account for purposes of archive, back-up, audit, to complete Auctions, and investigation, and also for legal compliance. To completely delete your Account, you must make a specific deletion request to firstname.lastname@example.org. Deleting your Account will not release you from any prior obligations incurred hereunder.
- Termination of Platform. HumbleBerry may terminate these Terms or stop providing the Platform to you at any time in its sole discretion.
Arbitration. If the courts in your province, state, or country will not permit you to consent to binding arbitration, then any legal suit, action, or proceeding arising out of or related to these Terms will be instituted exclusively in the courts of the Province of Ontario, Canada, and you irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Otherwise, you agree that in the event of any dispute between you and HumbleBerry arising out of or relating to these Terms (which includes, without limitation, the E-Commerce Terms, Sweepstakes Rules, and Auction Rules), the Platform, Auctions, Sweepstakes, or the relationship between HumbleBerry and you, that you and HumbleBerry shall consult and negotiate with each other and, recognizing your mutual interests, attempt to reach a solution satisfactory to both you and HumbleBerry. If you and HumbleBerry do not reach settlement within a period of 60 days, then such dispute shall be referred to and finally resolved by mandatory and binding arbitration under the International Commercial Arbitration Rules of Procedure of the British Columbia International Commercial Arbitration Centre. The appointing authority shall be the British Columbia International Commercial Arbitration Centre. The case shall be administered by the British Columbia International Commercial Arbitration Centre in accordance with its Rules. The place of arbitration shall be Vancouver, British Columbia, Canada. The number of arbitrators shall be set to one unless otherwise required by the Rules. The language of the arbitration will be English. The existence and content of the arbitration proceedings, including documents submitted by the parties, correspondence to and from the British Columbia International Commercial Arbitration Centre, correspondence to and from the arbitrator, and orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party (except for professional advisors) without the express written consent from the other party unless: (a) (i) the disclosure to the third party is reasonably required in the context of conducting the arbitration proceedings; and (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein; or (b) such disclosure is required by applicable law or court order. Notwithstanding the foregoing, HumbleBerry may seek injunctive or other equitable relief to protect its rights, and for any other purpose, in any court of competent jurisdiction.
You may opt out of the above arbitration clause. If you opt out, then neither you nor we will be able to require the other to participate in arbitration for the purposes of resolving any dispute, claim or controversy between you and HumbleBerry arising out of or relating to these Terms, the Platform, Auctions, Sweepstakes, or the relationship between HumbleBerry and you. To opt out, you must, within 30 days of accepting these Terms, deliver to HumbleBerry a clear written statement indicating that you wish to opt out of the arbitration provisions in these Terms. The statement must contain: (a) your name; (b) your address; (c) your telephone number; (d) your email address; and (e) your Account name (if any). The opt-out statement must be delivered to the following address:
Suite 201A - 260 Carlaw Ave.
Toronto, Ontario, Canada M4M 3L1
If you opt out of the arbitration clause in the manner provided above, then, unless the first sentence of this section 13.1 applies to you, you irrevocably agree that the courts of British Columbia will have exclusive jurisdiction to settle any dispute, claim, or controversy arising out of or related to these Terms, the Platform, Auctions, Sweepstakes, or your relationship with HumbleBerry.
- Waiver. You agree to waive any right you may have to commence or participate in any class action against HumbleBerry related to any claim and, where applicable, you also agree to opt out of any class proceedings against HumbleBerry. Where applicable, if a dispute arises between us and you, you waive any right you may have to participate in a trial by jury with respect to that dispute.
- Arbitration. If the courts in your province, state, or country will not permit you to consent to binding arbitration, then any legal suit, action, or proceeding arising out of or related to these Terms will be instituted exclusively in the courts of the Province of Ontario, Canada, and you irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Otherwise, you agree that in the event of any dispute between you and HumbleBerry arising out of or relating to these Terms (which includes, without limitation, the E-Commerce Terms, Sweepstakes Rules, and Auction Rules), the Platform, Auctions, Sweepstakes, or the relationship between HumbleBerry and you, that you and HumbleBerry shall consult and negotiate with each other and, recognizing your mutual interests, attempt to reach a solution satisfactory to both you and HumbleBerry. If you and HumbleBerry do not reach settlement within a period of 60 days, then such dispute shall be referred to and finally resolved by mandatory and binding arbitration under the International Commercial Arbitration Rules of Procedure of the British Columbia International Commercial Arbitration Centre. The appointing authority shall be the British Columbia International Commercial Arbitration Centre. The case shall be administered by the British Columbia International Commercial Arbitration Centre in accordance with its Rules. The place of arbitration shall be Vancouver, British Columbia, Canada. The number of arbitrators shall be set to one unless otherwise required by the Rules. The language of the arbitration will be English. The existence and content of the arbitration proceedings, including documents submitted by the parties, correspondence to and from the British Columbia International Commercial Arbitration Centre, correspondence to and from the arbitrator, and orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party (except for professional advisors) without the express written consent from the other party unless: (a) (i) the disclosure to the third party is reasonably required in the context of conducting the arbitration proceedings; and (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein; or (b) such disclosure is required by applicable law or court order. Notwithstanding the foregoing, HumbleBerry may seek injunctive or other equitable relief to protect its rights, and for any other purpose, in any court of competent jurisdiction.
- Survival. Articles and Sections 1.7, 5.7, 5.8, 5.10, and 6 to 14 and all other provisions of these Terms which must survive termination of these Terms to fulfill their purpose will survive termination of these Terms or the termination or deletion of your Account.
- Supplemental Contracts. Notwithstanding section 14.2 of these Terms, your use of the Platform is subject to any other written and duly executed contracts you may have with HumbleBerry (a “Supplemental Contract”). In the case of any conflict between these Terms and a Supplemental Contract, the terms of such Supplemental Contract shall prevail.
- Assignment. We may assign these Terms in part or in their entirety, including our rights, interests, and obligations hereunder, without notice to you or your consent. These Terms are personal to you and you may not assign these Terms nor your rights, interests, or obligations under these Terms to any person.
- Governing Law. The courts in some countries or provinces will not apply the law of British Columbia to some types of disputes. If you reside in one of those countries or provinces, then where British Columbia law is excluded from applying, your country or province’s laws will apply to such disputes related to these Terms. Otherwise, these Terms are governed and interpreted pursuant to the laws of the Province of British Columbia, Canada and the federal laws of Canada applicable therein, without regard to principles of conflicts of law that would impose the law of another jurisdiction. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
- No Waiver. Our failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. No waiver of a breach of these Terms will constitute a waiver of any other breach of these Terms.
- Waiver & Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of these Terms invalid or otherwise unenforceable in any respect. If any provision of these Terms is held to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of these Terms or invalidate or render unenforceable such provision in any other jurisdiction.
- Headings. Headings are for convenience only and shall not affect the interpretation of these Terms.
- Currency. References to dollar amounts in these Terms and on the Platform are in Canadian dollars unless otherwise stated in writing..
- Enurement. These Terms will enure to the benefit of and be binding upon the parties to these Terms and their respective successors, heirs and permitted assigns.
- Notice. HumbleBerry may give notice to you by email, letter, or SMS to the applicable address or number you provide on your Account or by notice posted on the Platform. You may provide notice to us by letter to admin@HumbleBerry.ca.
- Further Assurance. You agree to provide such further documents or instruments, and take such further actions, reasonably requested by HumbleBerry, to effect the purposes of these Terms and carry out its provisions.
- Force Majeure. In no event will HumbleBerry be liable or responsible to you, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms, when and to the extent that such failure or delay is caused by any circumstances beyond HumbleBerry’s reasonable control, including acts of God, flood, fire, earthquake, tsunami, explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of these Terms, national or regional emergency, strikes, labour stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.