Effective Date: November 1, 2023
IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS RELIEF AS FURTHER DETAILED IN SECTION 17 BELOW.
This Betr Terms and Conditions (“Terms”) is a legally binding agreement that governs any access to and use of the Services (as defined below). Betr may issue additional terms, rules, and conditions of participation in particular contests or games, which you should consult in order to understand the parameters and terms for those contests and games.
You must be twenty-one (21) years of age or older to use the Services. Services are not available in Nevada, Washington, or where prohibited or restricted by law. If you have any questions, please contact us at email@example.com.
1. About Us
a. Betr owns and operates the website www.betr.app and any other sites where these Terms are posted (collectively, “Websites”), and the Betr mobile, tablet, and other applications (collectively, “Apps” and together with the Websites, the “Platforms”). References herein to Betr, “we”, “us”, or “our” are to Betr Holdings, Inc.
b. The services (“Services”) that Betr is providing pursuant to these Terms are: (i) the Betr Platforms; (ii) the games, services, contests, and applications offered by Betr, which may be on the Platforms or accessed through third-party websites; and (iii) the Content (as defined herein) contained in the foregoing clauses (i) or (ii).
2. Acceptance of these Terms
a. By accessing, submitting information to, or otherwise using the Services (whether or not you sign up as an account holder of the Services), you understand and agree to be, and are, bound by the following: (i) these Terms and (ii) any additional terms, rules, and conditions of participation for particular Services offered by us from time to time. Your use of the Services is conditioned upon your compliance with these Terms and any use of the Services in violation of these Terms will be deemed a violation of these Terms.
b. By using these Services, you affirm that (i) you are twenty-one (21) years of age or older; (ii) you are not prohibited or restricted from using the Services, including, without limitation, by any applicable law, rule, or regulation (and you acknowledge that we make no representations or warranties, implicit or explicit, as to your legal right to participate); and (iii) you understand that the Services are for amusement purposes only.
c. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE SERVICES, AND YOU MAY NOT ACCESS OR USE THE SERVICES.
3. Amending the Terms and Changing of the Services
a. We reserve the right to revise these Terms at any time and in our sole discretion. Where we wish to make material changes to the Terms, you will be notified of material changes before they come into effect. It is your responsibility to review these Terms for any changes. Your continued use of the Services following our posting of revised Terms constitutes your acceptance of any changes we may make. The date on which each relevant document comprising the then current Terms came into (or will come into) force will be as stated in the date contained at the top of the Terms and Conditions page. Please check these Terms frequently for updates.
b. We may, in our absolute discretion, modify, suspend, or discontinue any part of the Services (including, but not limited to the games we offer), and/or restrict, suspend, or terminate your access to the Services or your Account, at any time, with or without notice. If we cancel or terminate a game, any advertised rewards may, at our sole discretion, be either voided or awarded in any manner we deem fair and appropriate, consistent with laws, regulations, and rules governing such game. We reserve the right, in our sole and absolute discretion, to refuse service and access to any potential user of our Services.
c. We may also at our discretion engage new or alternative third-party service providers in respect of any of our Services. By registering or using the services of any such third parties, you thereby provide your consent to any applicable, additional terms and conditions of such third parties as they may be amended from time to time, including, but not limited to, any change to the third-party service provider itself.
4. Account Pre-Conditions
a. Use of our Apps will require you to register for a user account (an “Account”) with us. In order to register for an Account, you agree, represent, and warrant that:
i. You are at least twenty-one (21) years of age;
ii. You agree to provide accurate registration information and agree to inform us of any changes in such details in order to keep such information accurate, current, and complete;
iii. You acknowledge that you are opening a non-transferrable Account with us solely for your personal use, and are acting as a principal and not as an agent on behalf of a third party;
iv. You will not allow any other person to access or use your Account;
v. You will not attempt to sell or otherwise transfer the benefit of your Account to any third party, nor will you acquire or attempt to acquire an Account which has been opened in the name of a third party;
vi. You are legally capable of entering into binding contracts, including these Terms, and that you have read and agree to abide by all of these Terms;
vii. You are not prohibited for any reason from using the Services;
viii. You reside in the United States and are physically located in a jurisdiction where participation in the App’s Services is legal and not prohibited or restricted by law;
ix. You do not reside in Nevada or Washington; and
x. You are not physically located in Nevada or Washington.
b. We reserve the right to request proof of age or identity, or to otherwise verify eligibility conditions. In the event of a dispute as to the identity or eligibility of an Account holder, we will, in our sole and absolute discretion, utilize the information we collect to assist in verifying the identity and/or eligibility of such Account holder.
c. If we otherwise determine that you do not meet the eligibility requirements of this Section, in addition to any rights that we may have in law or equity, we reserve the right to terminate or suspend your Account, withhold or revoke the awarding of any rewards associated with your Account or limit your ability to redeem such rewards for prizes.
d. We reserve the right to refuse to register you as an Account holder, either with or without cause.
5. Opening an Account and Account Information
a. We will take reasonable steps to prevent unauthorized access to your Account information. You are responsible for maintaining the security and confidentiality of your Account, including, without limitation, keeping your login name and password confidential. You are responsible for any misuse of your password. You agree to inform us as soon as possible at firstname.lastname@example.org if you believe that your Account information is being misused by a third party so that we may suspend your Account to prevent further abuse. Provided that we have been correctly supplied with the Account information requested, we are entitled to assume that any actions taken are made by you. If a third party accesses your Account, you are solely responsible for that third party’s actions, whether or not that third party’s access was authorized by you. We will not be liable for any loss that you may incur as a result of misuse of usernames or passwords or from any unauthorized use of your Account, whether fraudulent or otherwise.
b. Only one Account per person is allowed. Your Account is unique to you and non-transferable. It shall be a violation of these Terms to allow any other person to use your Account. Each Account on the Services may only be owned, maintained, used and controlled by one individual. For avoidance of doubt, users may not “co-own” Accounts on the Services. If it is determined that you have registered more than one Account, then you acknowledge and agree that, in addition to any rights that we may have in law or equity, we reserve the right to terminate or suspend your Account(s), withhold or revoke the awarding of any rewards associated with your Account or limit your ability to redeem such rewards for prizes.
c. In opening an Account, you will not choose a nickname and/or alias that is defamatory or offensive, or in any way intended to impersonate a real person or brand or to be used for any nefarious purpose, and you agree that we reserve the right to amend your nickname and/or alias in its absolute discretion or if we believe you have breached this Section.
6. Consent to Contact
By signing up for an Account and/or communicating with us electronically, such as via e-mail, you hereby consent to receive communications from us via e-mail, telephone or mail, from us or our affiliates. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
7. Third-Party Websites
a. At our discretion, the Services may contain links to third-party websites. These links are provided solely as a convenience to you and not as an endorsement by us of the contents on such third-party websites. You acknowledge that we are not responsible for the content of linked third-party websites and that we do not make any representations regarding the content or accuracy of materials on such third-party websites. If you decide to access any linked third-party websites, you do so at your own risk. You further acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website or resource.
b. We may provide experiences on social media platforms that enable online sharing and collaboration among users who have registered to use them. Any content you post is subject to the terms and conditions and privacy policies of those platforms and related services. We have no control over such social media platforms or related services.
8. Errors Related to Your Account
You will inform us as soon as you become aware of any errors with respect to your Account and you will forfeit any rewards/amounts shown to be in your Account that result from human error or technical fault on the part of us or our respective vendors and suppliers.
9. Use of the Services
a. YOU AGREE THAT YOU ARE RESPONSIBLE FOR YOUR OWN CONDUCT WHILE ACCESSING OR USING THE SERVICES, AND FOR ANY CONSEQUENCES THAT RESULT. YOU AGREE TO USE THE SERVICES ONLY FOR PURPOSES THAT ARE LEGAL, PROPER AND IN ACCORDANCE WITH THESE TERMS AND ANY APPLICABLE LAWS OR REGULATIONS.
b. Without limiting the foregoing, you agree that your use of the Services will not (and will not allow any third party to), in any manner:
i. Engage in, promote, or encourage illegal activity, or activity that violates any third-party rights;
ii. Interfere with other users’ enjoyment of the Services;
iii. Abuse, harass, impersonate, intimidate, or threaten other users or any of our authorized representatives, customer service personnel, moderators, or volunteers (including, without limitation, filing support tickets with false information, sending excessive emails or support tickets, obstructing our employees from doing their jobs, or refusing to follow the instructions of our employees);
iv. Access the Services by automated means or under false or fraudulent pretenses;
v. Involve the impersonation of another person (via the use of an email address or otherwise);
vi. Remove any copyright, trademark or other proprietary rights notices contained in or on the Services, in whole or in part;
vii. Disguise or interfere in any way with the internet protocol (“IP”) address of the mobile or other device you are using to access the Services or otherwise take steps to prevent us from correctly identifying the actual IP address of the mobile device you are using while accessing the Services;
viii. Modify, adapt, translate, or reverse engineer any portion of the Services;
ix. Involve cheating or any other activity deemed by us to be in conflict with the spirit or intent of the Services;
x. Involve engaging in commercial activities, including, without limitation, any attempt to raise money for anyone or advertise or promote a product, service, or website, or build a business using the Content; or
xi. Attempt to sell the Services, in whole or in part, including, without limitation to virtual items, user accounts, or access to them in exchange for real currency or items of monetary value.
c. As between you and us, the software used to operate the Services (the “Software”) is owned by us and will remain as our property. You will only use the Software to use the Services in accordance with these Terms. If you become aware that the Software is being used in any manner not authorized by these Terms, you will immediately notify us. You will not: (i) reverse engineer or decompile (whether in whole or in part) the Software; (ii) make copies, modify, reproduce, transmit, alter or distribute the Software or all or any part of the Services or any material or information contained on the Services; (iii) use the Software for any unlawful purposes; (iv) use the Software in a manner that constitutes a violation or infringement of the rights of any third party (including, but not limited to, intellectual property rights); or (v) use the Software to cause harm or damage to the computer systems, network or equipment of any third party.
d. From time to time, we may issue and make available to you upgraded versions of the Software. All such upgrades shall be deemed to be Software for the purposes of these Terms. If you have downloaded our Apps, you agree to promptly download and install any new version that we make available. Some new versions may contain updated Terms. Some new versions may contain security fixes and service improvements, whether or not we disclose that they do; accordingly, failure to promptly update your version of the Apps may in some cases expose you to increased security risks or service malfunctions.
e. You are solely responsible for the acquisition, supply and maintenance of all of the computer and mobile equipment, telecommunications networks, and Internet access services, and of all other consents and permissions that you need to use in order to access our Services.
f. You are solely responsible for recording, reporting, paying, and accounting for any tax that may be payable on any prizes to any relevant governmental or taxation authority.
10. Systems Failure, Hacking, and Other Offenses
You warrant, represent and agree that you will not interrupt, corrupt, or exploit for any purposes not intended by us any of the Services, including for example by:
a. Attempting to gain unauthorized access to any of the Services, the servers on which the Services are hosted, or any server, computer or database connected to the Services;
b. Using any features which may affect the function or performance of the Services in any way for example (but not limited to) releasing viruses, worms, trojans, or similar material that may be malicious or harmful;
c. Interfering or tampering with, removing, or otherwise altering in any way, any information in any form or any security feature which is included in or on any of the Services;
d. Attacking the Services via a denial-of-service attack or any other form of attack or interference;
e. Uploading or transmitting (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, web bugs, cookies or other similar devices; or
f. Using any script, robot user, bot, or equivalent mechanism.
11. Virtual Items
a. The Services may provide you with an opportunity to obtain a variety of virtual items such as virtual currency and virtual, in-game digital items, that can be used while playing the Services.
b. We reserve the right to change the availability and values of virtual items with or without notice.
c. You have no property interest in virtual items. Other than a limited, personal, revocable, non-transferable, non-sublicensable license to use the virtual items in the Services, you have no right or title in or to any such virtual items appearing or originating in the Services, or any other attributes associated with use of the Services or stored within the Services.
d. We have the absolute right to manage, regulate, control, modify and/or eliminate such virtual items as we see fit in our sole discretion, and we shall have no liability to you or anyone for the exercise of such rights.
e. Transfers of virtual items are strictly prohibited except where explicitly authorized within the Services. Virtual items may not be transferred or sold by you or others for commercial gain in any manner, including, without limitation, by means of any direct sale or auction service. Virtual items may not be purchased from or sold to any individual or company under any circumstances, including, without limitation, via cash, barter or any other transaction. Virtual items have no monetary value, and cannot be used to purchase or use products or services other than within the Services. Except as expressly authorized by the Services, virtual items cannot be exchanged in any way. Any attempt to do so is strictly forbidden and in violation of these Terms and may result in a lifetime ban from the Services and possible legal action.
f. All virtual items are forfeited if your Account is terminated or suspended for any reason, in our sole and absolute discretion, or if we discontinue providing the Services.
g. We have no liability for hacking or loss of any virtual items. We reserve the right, without prior notification, to limit the number of virtual items you may receive, or to refuse to provide you with any virtual items.
a. The Services contain a variety of materials, including, but not limited to: (i) materials and other items relating to us and our products and services, and similar items from our licensors and other third parties, including all layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Services, and the compilation, assembly, and arrangement of the materials of the Services and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including those of Betr; and (iii) other forms of intellectual property (all of the foregoing, collectively, “Content”).
b. The Services (including past, present, and future versions) (including, the Content therein) are owned or controlled by Betr and/or our licensors and certain other third parties. All right, title and interest in and to the Services (including, the Content therein) are the property of Betr or our licensors or certain other third parties and is protected by United States and international copyright, trademark, patent, or other intellectual property rights to the fullest extent possible. We reserve all rights in and to the Services (including, the Content therein) not expressly granted to you under these Terms. You acknowledge that you do not acquire any right, title, or interest in any of the Services (including, the Content therein) as a result of using our Services, including, without limitation, downloading material from or uploading material to the Services, or purchasing any virtual items. Nothing contained on the Platforms should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Services without our express written permission.
c. Subject to your strict compliance with these Terms, we grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device for your personal, non-commercial use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in our sole discretion, and without advance notice or liability. You may not distribute, modify, transmit, reuse, re-post, or use the Content for public or commercial purposes without our express written permission. Further, unless expressly stated herein, you may not use, copy, reproduce, distribute, transmit, broadcast, display, sell, license, create derivative works, or otherwise exploit any of the Content (or intellectual property rights therein), whatsoever without the express written permission of the respective owners.
d. All comments, feedback, suggestions, ideas, and other submissions (“Ideas”) disclosed, submitted, or offered to us in connection with the use of the Services shall be our exclusive property. You agree that unless otherwise prohibited by law, we may use, sell, exploit, and disclose the Ideas in any manner, without restriction and without compensation to you.
13. User Generated Content
a. Certain of the Services may invite or permit you to upload your own content or communicate content or materials through the Services (such content, “User Generated Content”). We do not exercise editorial control over, and therefore do not endorse any, User Generated Content, and we will not be liable in relation to such User Generated Content. You understand and agree that you are solely responsible for your User Generated Content.
b. Once you post or communicate any User Generated Content through the Services, you expressly, and hereby do, grant Betr, its parents, subsidiaries, affiliates, and partners, a non-exclusive, worldwide, royalty-free, fully sublicensable, transferable, and irrevocable license to quote, re-post, use, reproduce, modify, adapt, publish, sell, translate, create derivative works from, display, distribute, transmit, and broadcast such User Generated Content in any form and for any purpose (including commercial purposes), with or without attribution to you, and without any notice or compensation to you of any kind. You hereby waive any so-called "moral rights" you may have in your User Generated Content. You agree that we may also use the name, likeness, voice, and/or image contained in such User Generated Content as we see fit, including for commercial purposes, and you represent and warrant that you have the right to grant us permission to use any such name, voice, likeness and/or image of such individual appearing in the User Generated Content throughout the world in perpetuity. In addition, you waive any right to inspect or approve the finished product, including written copy, where the likeness or testimonial appears.
c. For any User Generated Content you provide, you hereby warrant, represent and agree that such content:
i. Does not violate any rights of third parties (including intellectual property rights or rights of publicity or privacy), and that you have all rights necessary to grant to Betr the license above;
ii. Does not contain any defamatory or otherwise inappropriate materials or statements;
iii. Does not contain any form of malicious computer code (e.g., viruses, bugs, trojan horses etc.) which could disable or disrupt any of the Services;
iv. Complies with all applicable laws and regulations; and
v. May be used in connection with publicizing and promoting Betr and its Services.
d. You acknowledge and agree that any User Generated Content you submit when using the Services, including without limitation, reviews and your communications with other users via online messaging, private messaging, forums or bulletin boards, and any other similar types of communications and submissions on or through the Services, are non-confidential, public communications, and you have no expectation of privacy concerning your use of or participation in the Services (other than with respect to the information you provide to us in establishing your Account).
e. We reserve the right (but are not obliged to), in our sole discretion, to edit or remove User Generated Content, with or without notice and for any reason. You hereby agree that, to the maximum extent permitted by applicable law, we will at no time be responsible or held liable for the removal, modification, or blocking of, or other damage to or loss of, any User Generated Content.
You agree to indemnify, defend (at our option) and hold Betr and its parent companies, subsidiaries, affiliates, and each of their respective employees, directors, officers, managers, shareholders, agents, prize providers, agencies, vendors, licensors, licensees, contractors, successors, and assigns (collectively, “Betr Parties”) harmless from and against any and all damages, losses, liabilities, claims, costs, investigations, judgments, fines, penalties, settlements, interest, expenses or demands, including, but not limited to, personal injury, death, or damage to or loss of property, that directly or indirectly arise from or are related to: (i) your use of the Services and your activities in connection with the Services; (ii) any information you submit to us, including, without limitation, any User Generated Content; (iii) your breach or alleged breach of these Terms; (iv) your violation of any applicable laws or regulations in connection with your use of the Services; (v) information or material transmitted through your device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; and (vi) any misrepresentation made by you (all of the foregoing, “Claims”). You will cooperate as fully required by us in the defense of any Claims. Notwithstanding the foregoing, we retain the exclusive right to settle, compromise, and pay any and all Claims. We reserve the right to assume the exclusive defense and control of any Claims. You will not settle any Claims without the prior written consent of Betr.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THAT THE SERVICES ARE PROVIDED ON AN "AS IS", “AS AVAILABLE”, AND “WITH ALL FAULTS BASIS”, AND ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, BETR, ITS PARENTS, SUBSIDIARIES, AND AFFILIATES, HEREBY DISCLAIM AND MAKE NO REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, OR PROMISES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES (INCLUDING, FOR CLARITY, AND WITHOUT LIMITATION, THE PLATFORMS, SOFTWARE, CONTENT, AND ANY GAMES), INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, CORRECTNESS, ACCURACY, OR RELIABILITY, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING OR USAGE OF TRADE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE, OUR PARENT, SUBSIDIARIES, AND AFFILIATES, DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR ACCESS TO OR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR; (III) DATA PROVIDED THROUGH THE SERVICES WILL BE ACCURATE; (IV) THE SERVICES (INCLUDING FOR CLARITY, ANY CONTENT OR FEATURES) MADE AVAILABLE ON OR THROUGH THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) ANY DATA THAT YOU DISCLOSE WHEN YOU USE THE SERVICES WILL BE SECURE.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
16. Limitation of Liability
a. YOU UNDERSTAND AND AGREE THAT BETR, ITS PARENTS, SUBSIDIARIES, AND AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, ENHANCED, PUNITIVE, OR EXEMPLARY DAMAGES WHICH YOU MAY INCUR, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DIMINUTION OF VALUE OR ANY OTHER INTANGIBLE LOSS, EVEN IF BETR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATION OR EXCLUSION ABOVE MAY NOT APPLY TO YOU.
b. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SERVICES IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION FIRST AROSE. OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION (INCLUDING ANY ACTION PURSUANT TO ANY STATUTE THAT ALLOWS RECOVERY ON BEHALF OF, FOR THE BENEFIT OF, OR OF AMOUNTS LOST OR SPENT BY OTHER INDIVIDUALS) SHALL BE LIMTED TO ONLY THE AMOUNT PAID BY YOU DURING SUCH NINETY (90) DAY TIME PERIOD.
c. YOU ACKNOWLEDGE AND AGREE THAT WE HAVE MADE THE SERVICES AVAILABLE TO YOU AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE REPRESENTATIONS AND WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN US AND YOU AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US AND YOU. WE WOULD NOT BE ABLE TO PROVIDE THE SERVICES TO YOU WITHOUT THESE LIMITATIONS.
d. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF OUR ACTS OR OMISSIONS OR YOUR USE OF THE SERVICES ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE SERVICES. IF YOU ARE DISSATISFIED WITH THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SERVICES.
PLEASE READ THIS SECTION CAREFULLY, BECAUSE IT REQUIRES ARBITRATION OF CERTAIN DISPUTES WITH BETR AND IT LIMITS THE MANNER IN WHICH RELIEF CAN BE SOUGHT FROM BETR UNLESS YOU OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS SET FORTH BELOW. THIS SECTION PRECLUDES YOU FROM BRINGING ANY CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION AGAINST BETR, INCLUDING ANY ACTION PURSUANT TO ANY STATUTE THAT ALLOWS RECOVERY ON BEHALF OF, FOR THE BENEFIT OF, OR OF AMOUNTS LOST OR SPENT BY OTHER INDIVIDUALS (INCLUDING IN A PRIVATE ATTORNEY GENERAL CAPACITY). ALL ARBITRATIONS (AND LITIGATION, WHERE ALLOWED) SHALL PROCEED SOLELY ON AN INDIVIDUAL BASIS.
a. Binding Arbitration; Waiver of Jury Trial. All disputes arising out of or related to these Terms or any aspect of the relationship between you and Betr (including, for purpose of this Section, its affiliates) or your use of the Services, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator, instead of in a court by a judge or jury and you hereby agree that Betr and you are each waiving the right to trial by a jury. To the fullest extent permitted by applicable law, you agree that any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted and you are expressly agreeing to give up the ability to participate in a class action. The arbitration shall be seated in New York, New York, and shall be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules, as amended by these Terms. The Consumer Arbitration Rules are available online at https://www.adr.org. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
The arbitrator shall conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision shall follow these Terms and shall be final and binding. The arbitrator shall have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator.
You agree that, regardless of any law to the contrary, the arbitrator shall have no authority to award punitive, exemplary, or enhanced damages. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal or state agencies and, if the law allows, they can seek relief against us for you.
The parties shall maintain the confidential nature of the arbitration proceedings and the arbitration award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
b. 30-Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: Betr Holdings, Inc., 2900 NE 7th Ave, #4001, Miami, FL 33137. The notice must be sent within thirty (30) days of your first use of the Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Betr also will not be bound by them.
c. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT ANY CLAIM OR CAUSE OF ACTION AGAINST THE OTHER ARISING OUT OF OR RELATED TO THE USE OF THE SERVICES OR THE TERMS, THEN YOU OR WE MUST COMMENCE IT WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE -- OR IT WILL BE FOREVER BARRED.
d. Resolution of Disputes on Individual Basis/Waiver of Class Relief. ALL ARBITRATIONS AND LITIGATION SHALL PROCEED SOLELY ON AN INDIVIDUAL BASIS. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AGREE THAT YOU AND BETR WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION, OTHER REPRESENTATIVE ACTION, OR ANY ACTION PURSUANT TO ANY STATUTE THAT ALLOWS RECOVERY ON BEHALF OF, FOR THE BENEFIT OF, OR OF AMOUNTS LOST OR SPENT BY OTHER INDIVIDUALS (INCLUDING IN A PRIVATE ATTORNEY GENERAL CAPACITY).
18. Force Majeure
Betr will not be deemed in default or otherwise liable to you under these Terms for any loss or damage that you may suffer due to our inability to perform our obligations by reason of any act of God, fire, earthquake, blizzard, flood, hurricane, fire, epidemic, pandemic, danger to public health or safety, accident, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, law, ordinance, regulation, legal order (unless caused by Betr’s default hereunder), failure or delay of any transportation, power, or communications system, or any other act, omission, delay, or failure, not under Betr’s control.
19. Queries and Disputes
If you have any concerns or questions, please contact us via email at email@example.com. We will make reasonable efforts to respond to disputes and queries as soon as possible.
We reserve the right, without any limitation, to: (i) investigate any suspected breaches of the Services’ security or its information technology or other systems or networks; (ii) investigate any suspected breaches of these Terms; (iii) investigate any information obtained by us in connection with reviewing law enforcement databases or complying with criminal laws; (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters; and (v) prosecute violators of these Terms.
21. Additional Provisions
a. Entire Agreement. These Terms contain the entire understanding of the parties with respect to the matters contained herein and supersede and replace in its entirety any and all prior communications and contemporaneous agreements and understandings between the parties, whether oral, written, electronic or implied, and cannot be changed or modified by you except as posted on the Services by us. We each acknowledge that we have not relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us except as expressly stated in these Terms.
b. Severability. If any provision of these Terms is held invalid, void, or unenforceable under any circumstance, that provision will be, to the extent strictly necessary, severed from the remaining terms and conditions and that determination shall not affect the validity of the remaining provisions of these Terms. In the case of the severance of any terms, the part deemed invalid, void, or unenforceable shall be amended in a manner consistent with the applicable law to reflect, as closely as possible, the original intent in these Terms.
c. Waiver. No waiver of any provision of these Terms by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision and shall not relieve you from compliance with such obligations.
d. Relationship Between Parties. Nothing in these Terms shall create or be deemed to create a partnership, agency, trust arrangement, fiduciary relationship, or joint venture between you and us.
e. Assignment. You may not assign, sublicense or otherwise transfer in any manner whatsoever any of your rights or obligations under these Terms without our prior written consent. On occasion, we may require the ability to transfer, assign or sublicense these Terms to a third party, for example (but without limitation) in the case of our engaging new third-party service providers or in the case of a merger or acquisition. You hereby consent, and we reserve the right to, transfer, assign or sublicense these Terms, in whole or in part, to any person without requiring any additional consent and without notice.
f. Headings; Interpretation. The section headings used herein are for convenience only and shall not be given any legal import. You agree that these Terms will not be construed against Betr by virtue of having drafted them.
g. No Third-Party Beneficiaries. Except as is expressly stated in Section 23, these Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you.
h. Termination. Any suspension or termination will not affect your obligations to us under these Terms. Upon suspension or termination of your access to the Services, or upon notice from us, all rights granted to you under these Terms will cease immediately, and you agree that you will immediately discontinue use of the Services. The provisions of these Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to us in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
i. Governing Law. These Terms and all aspects of the Services shall be governed by and construed in accordance with the laws of the State of Delaware without regard to conflict of laws provisions, regardless of your location. With respect to any disputes or claims not subject to arbitration (as set forth above), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in New Castle County, Delaware, and you hereby consent to, and waive any and all jurisdictional and venue defenses otherwise available.
22. Digital Millennium Copyright Act
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, we have adopted a policy of terminating, in appropriate circumstances, the Accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on the Services infringes any copyright that you own or control, you may notify us. For your notice to be effective, it must include the following information per the DMCA:
a. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b. A description of the copyrighted work that you claim has been infringed upon;
c. A description of where the material that you claim is infringing is located within the Services;
d. Information reasonably sufficient to permit Betr to contact you, such as address, telephone number, and, if available, an e-mail address at which you may be contacted;
e. A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
f. A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you are accessing or using one of our Apps through a device manufactured and/or sold by Apple, Inc. (“Apple”, with such a device herein referenced as an “Apple Device”):
a. These license granted to you in Section 12 of these Terms is subject to the permitted Usage Rules set forth in the Apple App Store Terms and Conditions (see: https://www.apple.com/legal/itunes/us/terms.html) and any third-party terms of agreement applicable to the Apps.
b. To the extent that you are accessing an App through an Apple Device, you acknowledge that these Terms are entered into between you and Betr and, that Apple is not a party to these Terms other than as a third-party beneficiary as contemplated below.
c. You acknowledge that Betr, and not Apple, is responsible for providing the Apps and Content thereof.
d. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Apps.
e. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apps.
f. Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Betr, Betr and not Apple is responsible for addressing any claims you may have relating to the Apps, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
g. Further, you agree that if an App, or your possession and use of an App, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
h. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
i. When using an App, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the App.
j. 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.
24. Terms for the Free-To-Play Game
The following terms are specific to the Free-To-Play Game (the “Game”).
a. To participate in the Game, you must have an active Account. You may find and access the Game in our App.
b. Each first-time user of the Game will receive 2,000 tokens from us, with which they can use to submit live predictions throughout every available NFL, MLB, NBA, and NCAA football and basketball game, in order to try to accumulate as many tokens as possible. Such tokens have no cash value and may not be redeemed for cash. No purchase or deposit is necessary in order to participate.
c. Subject to us verifying your compliance with the Terms, users who accumulate a certain number of tokens may be eligible to redeem such tokens for certain prizes in the form of gift cards via the service of our third-party partner, Prizeout. Redemption of such prizes on Prizeout and use of the Prizeout service are subject to Prizeout’s terms and conditions. All taxes associated with the receipt of any prize are the sole responsibility of the user. We makes no warranty of any kind, express or implied with respect to the prizes. We, in our sole discretion, reserve the right to revise the number of tokens necessary to redeem a prize.
d. For information on how to play the Game and all applicable guidelines, please review the rules for the Game, which can be found here.
e. Should you wish to cancel your participation in the Game at any time, please contact customer support at firstname.lastname@example.org.