BLOCKCHAIN CREATIVE LABS REWARDS PROGRAM
TERMS AND CONDITIONS
Last Updated February 9, 2023
THESE REWARDS PROGRAM TERMS AND CONDITIONS (THE “PROGRAM TERMS”) GOVERN THE BLOCKCHAIN CREATIVE LABS REWARDS PROGRAMS (EACH, A “PROGRAM” AND COLLECTIVELY THE “PROGRAMS”), WHICH CURRENTLY INCLUDE:
- The Krapopolis Rewards Program (the “Krapopolis Program”);
- The Masked Singer Experience Rewards Program (the “MSE Program”);
- The USFL Rewards Program (the “USFL Program”);
- The Deportes Rewards Program (the “Deportes Program”)
PLEASE READ THESE TERMS CAREFULLY AND THE FOLLOWING RELATED TERMS AND POLICIES BEFORE PARTICIPATING IN THE PROGRAM (EACH OF THE FOLLOWING RELATED TERMS AND POLICIES ARE INCORPORATED HEREIN BY THIS REFERENCE WITH RESPECT TO THE PROGRAM TO WHICH THEY APPLY):
BY REGISTERING FOR OR PARTICIPATING IN A PROGRAM, YOU AGREE TO BE BOUND BY THESE PROGRAM TERMS, INCLUDING WITHOUT LIMITATION, THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER INCLUDED BELOW, AND ANY ADDITIONAL TERMS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT PARTICIPATE IN THE APPLICABLE PROGRAM.
1.1 Each Program is a rewards program operated by or on behalf of Blockchain Creative Labs, LLC (“BCL”). Each Program corresponds to NFT marketplaces operated by BCL, including but not limited to Krapopolis, The Masked Singer Experience, and USFL (each, a “Marketplace”). Eligible account holders who purchase NFT(s) in an applicable Marketplace are referred to in these Program Terms as “Member(s)” or “you”. Members may register to participate in the Program corresponding to such Marketplace. By participating in various activities, some of which are described below, Members may have the opportunity to earn virtual items that can be redeemed for various other items under certain circumstances. The term “Points” refers to the virtual items that can be earned. The term “Awards” refers to the digital or other virtual assets, merchandise, and other items that Members can redeem Points for, as chosen by BCL in its sole discretion and as set forth below.
1.2. These Program Terms govern the Program along with any other terms or policies incorporated by reference into these Program Terms. In the event of any conflict or inconsistency between these Program Terms and the terms of any other policies incorporated herein, these Terms and Condition will prevail, govern and control with respect to any matters pertaining to the applicable Program and the other policies will prevail, govern and control with respect to all other matters. These Program Terms do not otherwise alter the terms and conditions of any other agreement you may have with BCL for other products or services, or the terms or conditions of any other promotional offers or programs conducted by BCL outside of the context of the Programs. Please read these Program Terms carefully before participating in any of the Program(s). Your participation in any Program indicates that you have read, understood, and unconditionally consent and agree to these Program Terms. If you do not agree to these Program Terms, you may not participate in any Program. Each Program is only for your own personal use. Members may not use any Program for commercial purposes, or in any way that harms BCL or any other person or entity, as determined by BCL in its sole discretion.
2.1. The Program is open to legal residents of the fifty (50) United States of America and Washington, D.C. who are eighteen (18) years of age, or the age of majority in their jurisdiction of residence, if older, or older who register for a particular Program. No Program is targeted toward, nor intended for use by, anyone under the age of majority in their jurisdiction of residence.
2.2. Any person whose access to any of the Marketplaces has been terminated is NOT eligible to participate in any of the Programs. To participate in any Program, access the website for the applicable Marketplace, submit the information requested on the registration page and confirm your agreement to these Program Terms.
2.3. Once you complete and submit all of the registration information, a Program account (each, an “Account”) will be created for you. All registration information must be completed in full. You should not give your Account information to any other person. You are responsible for all activity in your Account and any use of your Account information. If you change your country of residence in your Account, your Program account may be deactivated. Once deactivated, you will no longer be able to accumulate Points or receive or redeem Awards. Previously credited Points and Awards may also expire as described below. Limit one (1) Account per person. You cannot have more than one Account. BCL may, at any time, require you to verify your identity. If you attempt to obtain or control more than one Account, all Points in your Account(s) may be forfeited, and BCL may, at its sole discretion, terminate your membership and permanently ban you from participating in any of the Programs.
2.4. Officers, directors and employees of BCL and its parent, subsidiaries, divisions and affiliates, (each of the foregoing, a “Program Entity”, and collectively (including BCL), the “Program Entities”) may participate in the Program but may not be allowed to redeem Points for certain Awards and may otherwise be subject to restrictions that do not generally apply to how Points are earned or used. Additional or different eligibility criteria may apply to certain opportunities to earn or use Points and other invitations made by the Program Entities or their business partners. The Program is provided to individuals only. Corporations, associations, or other groups may not participate in any Program. It will be considered fraudulent for any individual, company, club, association or group to use or to direct, encourage, or allow other persons to use a single Account for the purpose of accumulating or aggregating Points for combined use, unless such use is expressly permitted in writing by BCL.
3. Earning Points.
3.1. You can earn Points in a Program in many different ways. Each Program may also award more than one type or “class” of Points. The number of Points and the type or “class” of Points that can be earned by participating in any opportunity to earn Points will be disclosed when the opportunity is presented. Points earning opportunities may vary based on the Marketplace and the type or class of NFT that a Member holds in some cases. Some of the ways Members may have the opportunity to earn Points in the Programs may include the following (subject to change):
3.1.1. Time-Based Points Earning Opportunities
Programs may offer Members the opportunity earn Points based on the amount of time a Member has held an NFT on the applicable Marketplace, or the amount of time a member has held a Program Account. Points may accrue on variable time-based intervals (e.g., daily, weekly, monthly, annually, or otherwise) as may be disclosed further when the opportunity is presented. These opportunities may offer Members the ability to earn different amounts of Points for certain types of NFTs or categories of items.
3.1.2. By Making a Purchase
Programs may offer Members the opportunity to earn Points based on purchases made by the Member while logged into their Account on the applicable Marketplace. These opportunities may be presented as per item, per transaction, or by reaching certain monetary thresholds on the applicable Marketplace. If you void or cancel a qualifying purchase credited toward accumulation of Points, BCL reserves the right to deduct the Points associated with that purchase from your Account.
3.1.3. Interacting with Content on a Marketplace
Programs may offer Members the opportunity to earn Points by interacting with designated content on the applicable Marketplace. These opportunities may include, but are not limited to, watching videos, reading articles, participating in certain activities, or otherwise interacting with other forms of content on the applicable Marketplace.
3.1.4. Voting or Participating in Polls
Certain Programs may offer users the opportunity to earn Points by submitting a vote in an online poll during the time period when the poll is open. Additional limits on the number of votes that are eligible to earn Points may be communicated at the time of submitting a vote.
3.1.5. Attending Events
Members may have the opportunity to earn Points by attending certain live events sponsored by or associated with the applicable Marketplace and taking an action to check in at a designated location or by scanning a QR code and submitting information while logged into the Member’s Account.
3.1.6. Viewing Broadcasts or Streams
Members may have the opportunity to earn Points by viewing television broadcasts or live streams and taking an action such as scanning a designated QR code and submitting information while logged into the Member’s Account.
3.1.7. Skill-Based Points Earning Opportunities
Programs may offer Members the opportunity to earn Points by playing certain skill-based games on the applicable Platform or other online location designated by BCL. The rules applicable to the opportunity will be communicated at the time the opportunity is presented.
From time to time, BCL may invite Members to enter a sweepstakes or contest (each, a “Promotion”). Details and information about each Promotion and any specific rules that apply to such Promotion will be communicated by BCL at the time each Promotion is presented.
3.1.9. Special Offers
From time to time, BCL may decide in its sole discretion to make available to Members the opportunity to earn additional Points, and/or achievement “badges” or other Program features, through special offers, challenges, bonuses or other Promotions. The terms, conditions, and benefits applicable to any such special offers will be determined by BCL in its sole discretion and communicated to Members in conjunction with any such offers. Because any terms and conditions associated with any special offers under a Program may be different from or in addition to the provisions of these Program Terms, you should read any such special offer terms and conditions carefully before participating in any special offer.
3.2. For clarity purposes, Points will not be awarded to any Member for any Points-earning activity (i) completed before a Member enrolled in the applicable Program; (ii) while the Member was not logged into the Member’s Program Account if that is necessary for tracking purposes; or (iii) for any activity not in compliance with the additional terms and conditions presented at the time the Points earning activity is communicated.
3.3. Points are personal to each Member’s Account. Points have no cash value and may not be redeemed for cash and may not be sold, auctioned, bartered, brokered, purchased, transferred, assigned or used to engage in any gambling activity. Any Points obtained in this manner by any person or entity will be considered to have been fraudulently obtained and deemed void and such Points may be confiscated or cancelled. Points must be redeemed in accordance with these Program Terms. Points will not be replaced, reissued or credited if lost, stolen or otherwise altered or destroyed. If a Program includes tiers that provide the Member with benefits based on meeting a stated minimum threshold number of Points (each such tier, if any, referred to as “Points Level”), you should know that Points Levels are subject to change and that different Programs may offer different Points Levels. BCL, in its sole discretion and without notice to you, reserves the right to change, modify, withdraw or cancel any Points Level for any of the Programs. BCL also reserves the right, in its sole discretion, to determine and modify, at any time, the value of Points and the number of Points that may be earned for any given activity in any of the Programs. Points cannot be used in combination with any other discount, coupon or offer unless specifically allowed by the terms of a specific promotion. Once you have redeemed your Points, they are gone and there are no refunds, returns or exchanges for additional Points, cash, or other goods and services, even if you return the merchandise or other item(s) that your Points were redeemed toward.
4. Redeeming Points.
4.1. Members may have the opportunity to redeem Points for Awards. Points will expire if not used by a date specified by BCL or as otherwise specified. The expiration date for Points may vary by the Program, the type of Points, or the activity in question. BCL, in its sole discretion, may impose a limit on the number of Awards in the aggregate or by type that may redeemed per Account, per day, per Award or per any other generally applicable metric that may be selected by BCL from time to time in its sole discretion.
4.2. All Awards and redemption requirements will be determined by BCL in its sole discretion. There may be a limited number of a particular Award, in which case such Award will be delivered on a first-come, first-served basis. BCL reserves the right to modify, amend or revise the Awards available. Members may not rely on continued Award availability. The number of Points required to redeem any Award may be substantially increased, any Award may be withdrawn, and restrictions on any Award or its redemption may be imposed by BCL or its designee or the third-party business partner supplying the Award. Awards are non-assignable and non-transferable and may not be bartered or sold. Any Awards assigned, transferred, bartered or sold in violation of these Program Terms may be confiscated or cancelled. Physical Awards will be shipped only to the United States address associated with the applicable Member’s Account and will not be shipped to any other person or address. A pattern of redeeming Points for Awards preceded or followed by changing the address for the applicable Account may be viewed as redemption fraud and could result in the termination of your membership in the Program. BCL reserves the right to substitute Awards of comparable or greater value if any redeemed Award becomes unavailable for any reason. Unless otherwise specified at the time of redemption, physical Awards will be fulfilled within six (6) to eight (8) weeks from date of redemption. Awards pictured in point-of-sale, online, television and print advertising, promotional packaging, and other Program materials are for illustrative purposes only. The actual Award may vary from the Award pictured.
4.3. All details and restrictions of the Awards not specified at the time the redemption opportunity is presented will be determined by BCL in its sole discretion. Members shall be solely responsible for all federal, state, and/or local taxes including, without limitation, income taxes and any reporting consequences thereof in connection with an Award. If required by law, as determined by BCL in its sole discretion, BCL reserves the right to withhold and remit to the appropriate taxing authorities the amount of any taxes due.
5. Limitations; Restrictions; and Other Terms.
5.1. BCL may modify any of these Program Terms, including, but not limited to, the methods through which Points can be earned, how Points can be used, the types or “classes” of Points available, the types and classes of Points Levels, the conditions under which Points may expire or be forfeited, and any other aspect of how Points are earned or redeemed, at any time, with or without notice, even though these changes may affect a Member’s ability to use the Points that they have already earned. The Program has no predetermined termination date and may continue until such time as BCL decides to terminate the Program. BCL may, in its sole discretion, modify or terminate any or all of the Programs, in whole or in part, at any time and for any reason or no reason at all, with notice on the applicable Marketplace website, Discord server and/or via email to the Member’s email address or other contact information associated with their Account in the affected Program(s).
5.2. If BCL amends these Program Terms, it will revise the “last updated” date located at the top of these Program Terms. If you continue to participate in the Program by earning Points, redeeming Points, logging into your Account or in any other way after these Program Terms have been changed, you will be deemed to have read, understood and unconditionally consented to and agreed to such changes. The most current version of these Program Terms will be available on the website and will supersede all previous versions of these Program Terms.
5.3. If BCL decides in its sole discretion to discontinue the Program, Members will have approximately thirty (30) days, or an amount of time deemed reasonable by BCL in its sole discretion from the date Program termination is announced to use their remaining Points. Use of any remaining Points will be on a first-come, first-served basis and otherwise subject to the availability of Awards. Members may not rely on continued Award availability. BCL makes no representation or warranty about the number or type of Awards that may be available after any Program termination has been announced, and many Awards that may have been available prior to termination will quickly become depleted or otherwise unavailable once the Program termination has been announced. Any Points remaining in a Member’s Account at the time of termination will be forfeited and no compensation will be provided.
5.4. BCL may cancel your membership, cancel accumulated Points, alter the number of Points in your Account or suspend your membership privileges at any time with immediate effect if BCL determines in its sole discretion that you (a) have acted in a manner inconsistent with applicable laws or ordinances; (b) acted in a fraudulent or abusive manner; (c) breached any of these Program Terms; (d) engaged in any fraud or abuse concerning Points, Points usage or Points redemption; or (e) engaged in any conduct or act that causes BCL to terminate or suspend your access to their website. BCL may also take appropriate administrative or legal action if any of the items listed above occurs. Nothing contained in these Program Terms shall limit BCL in its exercise of any legal or equitable rights or remedies.
5.5. By participating in any Program, in addition to any other grants which may be granted in any other agreement entered into between the Program Entities and any Member, each Member hereby irrevocably grants the Program Entities and each of their respective successors, assigns and licensees, the right to use such Member’s name, photograph, social media tag, username, likeness, statements, biographical information, and any other personal characteristics, in any and all media for any purpose, including without limitation, to advertise, market, and promotion the Program Entities, the Marketplaces, the Programs, on or in connection with any leaderboard, or other promotions, and each Member hereby releases the Program Entities from any liability with respect thereto.
6. General Terms and Conditions.
6.1. ACCRUED POINTS DO NOT CONSTITUTE PROPERTY OF A MEMBER AND HAVE NO VALUE OUTSIDE OF THE APPLICABLE PROGRAM. POINTS ARE CREDITS THAT BCL MAY REVOKE AT ANY TIME AS SET FORTH HEREIN. POINTS ARE NOT TRANSFERABLE UPON DEATH, AS PART OF A DOMESTIC RELATIONS MATTER OR OTHERWISE. Each Member is responsible for ensuring that the information in their Account is accurate and is kept current. If a Member believes that their Account does not properly reflect Points earned from engaging in any activities, the Member must contact BCL to resolve the issue. Any attempt by any person to undermine the legitimate operation of the Program may be a violation of criminal and civil law, and should such an attempt be made, BCL reserves the right to seek damages from any such person to the fullest extent permitted by law. BCL’s failure to enforce any of these Program Terms shall not constitute a waiver of the affected provision, or any other provision. All questions or disputes regarding an individual’s eligibility for any Program, the earning, crediting or use of Points, or a Member’s compliance with these Program Terms will be resolved by BCL in its sole discretion.
7. Program Malfunctions; Conduct.
7.1. The Program Entities are not responsible for lost, interrupted, inaccessible or unavailable networks, servers, satellites, Internet Service Providers, websites, or other connections; or for miscommunications, failed, jumbled, scrambled, delayed, or misdirected computer, telephone or cable transmissions; or for any technical malfunctions, failures, or difficulties, or other errors of any kind or nature; or for the incorrect or inaccurate capture of information, or the failure to capture any information. Additionally, the Program Entities are not responsible or liable for any computer, programming, printer errors or the issuance of any unintended Points. In no event will Program Entities be liable for, and members expressly release the Program Entities from any claims as to the issuance of any unintended Points. If, for any reason, the Program is not capable of running as planned, including, due to errors of any kind or nature, infection by computer virus, bugs, tampering, unauthorized intervention, fraud, technical failures, or any other causes beyond the control of BCL which corrupt or affect the administration, security, fairness, integrity or proper conduct of the Program, BCL reserves the right in its sole discretion to cancel, terminate, modify, or suspend the Program or otherwise respond to the circumstances as BCL deems appropriate. In the event BCL is prevented from continuing with the Program as contemplated herein by any event beyond its control, including but not limited to fire, flood, natural or man-made epidemic of health of other means, earthquake, explosion, labor dispute or strike, act of God or public enemy, satellite or equipment failure, riot or civil disturbance, terrorist threat or activity, war (declared or undeclared) or any federal state or local government law, order, or regulation, natural or manmade public health crisis (including any epidemic, pandemic, viral outbreaks, or global health emergencies) and resulting governmental action, societal restrictions, and/or curtailment or closure of any means of travel, modes of public transit, and/or common carriers, order of any court or jurisdiction, or any other (similar or dissimilar) cause or event not reasonably within BCL’s control (each a “Force Majeure” event or occurrence), BCL shall have the right to modify, suspend, or terminate any Program, in whole or in part.
7.2. Any attempts by any Member to access the Program or any associated websites via a bot script or other brute-force attack shall result in that Member becoming ineligible to participate in the Programs. BCL, in its sole discretion, reserves the right to disqualify and terminate participation of any Member found to be (i) tampering with the operation of the Program(s) or any associated website (ii) acting in violation of these Program Terms (iii) acting in an unethical or disruptive manner (iv) acting with intent to annoy, abuse, threaten or harass BCL, its representatives or any other Member in any manner related to the Program(s) (v) or tampering with, altering, or attempting to alter Points standings, (vi) tampering with, altering, attempting to alter, creating, attempting to create or duplicate Points, or (vii) colluding or attempting to collude with one or more Members to gain an unfair advantage by sharing knowledge or other information in order to earn Points.
8. Arbitration Agreement and Class Action Waiver.
8.1.You agree that any “Dispute” (as defined herein) between you and the Program Entities, regarding any aspect of your relationship with the Program Entities, will be resolved in a binding, confidential, individual and fair arbitration process, and not in court. Each of you and the Program Entities agree to give up the right to sue in court.
8.2. The term “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any dispute, claim, demand, count, cause of action, or controversy between you and the Program Entities, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory. The term “Dispute” specifically includes, but is not limited to, any disputes, actions, claims, or controversies between you and the Program Entities that arise from or in any way relate to or concern your participation in the Program, earning Points, Redeeming Points, this Arbitration Agreement, any other aspect of these Terms (including their applicability and their conformance to applicable law), and any disputes relating to telephonic, text message, or any other communications either of us received from the other. The only exceptions to this Arbitration Agreement are that (a) each of you and the Program Entities retain the right to sue in small claims court and (b) each of you and the Program Entities may bring suit in court against the other to enjoin infringement or other misuse of intellectual property rights. Disputes over whether these exceptions apply shall be resolved by the court in which such action has been brought; all other disputes over arbitrability shall be resolved by the arbitrator.
8.3. Each of you and the Program Entities also agree to give up the ability to seek to represent, in a class action or otherwise, anyone but each of you.
8.4. There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator must follow these Terms. The arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages) provided that they are recoverable under these Program Terms.
8.5. These Program Terms evidence a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement shall survive termination of these Program Terms.
8.6. Any arbitration between you and the Program Entities will be conducted by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective June 1, 2021 (the “JAMS Rules”), as modified by this agreement to arbitrate. The arbitration shall be conducted by a single, neutral arbitrator, and if you and the Program Entities involved cannot agree on who that single arbitrator will be, the arbitrator will be appointed pursuant to the JAMS Rules. The JAMS Rules are available on its website at https://www.jamsadr.com/rules-streamlined-arbitration/. The Consumer Arbitration Minimum Standards are available at https://www.jamsadr.com/consumer-minimum-standards/. The arbitrator is bound by these Terms.
8.7. If either you or a Program Entity wants to arbitrate a claim, you or that Program Entity must first send by mail and email to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the Service to which the Notice relates, and the relief requested. Your Notice to the Program Entity must be sent by mail and email to: Fox Corporation, 10201 West Pico Boulevard, Los Angeles, CA 90064, [email protected]. The involved Program Entity will send any Notice to you at the contact information we have for you or that you provide, if any. It is the sender’s responsibility to ensure that the recipient receives the Notice. During the first 45 days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute.
8.8. If you and the Program Entity do not resolve the Dispute within 45 days, either you or the applicable Program Entity may initiate arbitration in accordance with the JAMS Rules. Further instructions on submitting a Demand for Arbitration may be found at http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf. In addition to filing this Demand for Arbitration with JAMS in accordance with its rules and procedures, you must send a copy of this completed Demand for Arbitration to Fox at the address listed above to which you sent your Notice of Dispute.
8.9. (i) YOU AND THE PROGRAM ENTITIES MAY BRING CLAIMS AGAINST THE OTHERS ONLY IN YOUR OR THEIR INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING, AND THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF; (ii) the involved Program Entities will pay arbitration costs as required by the JAMS Consumer Arbitration Minimum Standards and consistent with this Section; (iii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law and these Terms; and (iv) each side pays its own attorneys’ fees, except as otherwise provided in this Section.
8.10. JAMS charges filing and other fees to conduct arbitrations. Ordinarily, the claimant has to pay the filing fee to initiate arbitration, but if you wish to commence an arbitration against a Program Entity, you and the applicable Program Entity acknowledge and agree to abide by the following: (i) If you are seeking to recover less than $10,000 (inclusive of attorneys’ fees), the involved Program Entity will pay the filing fee on your behalf or reimburse your payment of it; (ii) if you are seeking to recover $10,000 or more, you will have to pay the filing fee charged by JAMS, but the involved Program Party will reimburse the filing fee if you prevail on all claims decided upon by the arbitrator; (iii) the Program Entities and you agree that, if the claims to be arbitrated total less than $10,000 (inclusive of attorneys’ fees), the claim ordinarily should be decided on written submissions only, without a telephonic or in-person hearing. The Program Entities will not request a hearing for any claims totaling less than $10,000. This provision shall not be construed by the arbitrator to deprive you of any rights you may have to a telephonic or in-person hearing in your hometown area pursuant to the JAMS Rules; (iv) the Program Entities and you agree that, if the claims to be arbitrated total $10,000 or more, the arbitration will occur in a manner and place consistent with the JAMS Rules.
8.11. Regardless of how the arbitration proceeds, each of you and the involved Program Entity shall cooperate in good faith in the exchange of non-privileged documents and information as necessary in accordance with the JAMS Rules, and the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions, which will be part of the arbitration award and admissible in any judicial proceeding to confirm, correct, or vacate the award.
8.12. Each of you and the involved Program Entity may incur attorneys’ fees during the arbitration. Each side agrees to pay its own attorneys’ fees unless the claim(s) at issue permit the prevailing party to be paid its attorneys’ fees, and in such instance, the fees awarded shall be determined by the applicable law(s). In addition, if the arbitrator, at the request of the winning party, finds that the losing party brought a claim or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by applicable law.
8.13. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief, only to the extent necessary to provide relief warranted by that party’s individual claim, only as permitted by applicable law, and only to the extent that declaratory and injunctive relief are permitted by these Program Terms. The arbitrator shall have no authority to award punitive, exemplary, multiplied or consequential damages or any other relief not allowed under these Program Terms, nor shall the arbitrator have any authority to enter any award that is contrary to or inconsistent with any applicable statute, case law, or constitutional law, nor shall they have any power to modify, change, or excuse performance of any material term of this Agreement. The arbitrator also may not order any involved Program Entity to pay any monies to or take any actions with respect to persons other than you, unless the involved Program Entity explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order. Further, unless the involved Program Entity expressly agrees, the arbitrator may not consolidate other persons’ claims with yours and may not otherwise preside over any form of a representative, multi-claimant or class proceeding.
8.14. You and the Program Entities agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation, proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, an order confirming the award, or unless otherwise required by law or court order. In keeping with the confidential nature of the arbitration, you and the Program Entities agree that an order confirming award is only necessary if the obligations of the award have not been performed. Therefore, before taking any steps to confirm the arbitration award, the party seeking confirmation of the award must give the other party notice of its intention to confirm the award. If the party who would be the respondent in any such confirmation proceeding performs its obligation under the terms of the arbitration award within 15 business days of such notice, the party who gave notice of its intent to confirm the award shall not seek to confirm or otherwise enforce the award.
8.15. If any part of this Arbitration Agreement is deemed invalid, unenforceable, or illegal, then the balance of this Arbitration Agreement shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained.
9. Limitation of Liability; Incontestability.
9.1. Each Program is provided on an “AS IS” basis and without warranty, guaranty, or representation of any kind, expressed or implied, including without limitation, any implied warranty of merchantability, fitness for a particular purpose and non-infringement. The Program Entities are not responsible for any assurances, guarantees, representations or warranties made or implied by any parties associated with or involved in the Programs, including but not limited to any merchandisers, manufactures, suppliers or advertisers of any Award. By participating in the Program(s), each Member accepts all responsibility for, and hereby indemnifies and holds harmless the Program Entities, from and against any claims that may arise from actions taken by such Member or for any unauthorized access to Member’s Account by any third party.
9.2. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE PROGRAM ENTITIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE PROGRAM, EVEN IF ANY OR ALL OF THE PROGRAM ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES; THEREFORE, SUCH EXCLUSIONS MAY NOT APPLY TO YOU. IF A MEMBER PROVES THAT BCL HAS IMPROPERLY DENIED SUCH MEMBER ANY POINTS, THEN THE MEMBER’S SOLE AND EXCLUSIVE REMEDY UNDER SUCH CIRCUMSTANCES WILL BE LIMITED TO RECEIVE THE EQUIVALENT NUMBER OF POINTS. PARTICIPANTS IRREVOCABLY WAIVE ANY RIGHT TO SEEK INJUNCTIVE OR EQUITABLE RELIEF.
9.3. BY PARTICIPATING IN THE PROGRAM, A MEMBER WAIVES ANY AND ALL RIGHTS TO BRING ANY CLAIM OR ACTION RELATED TO SUCH MATTERS IN ANY FORUM MORE THAN ONE (1) YEAR AFTER THE FIRST OCCURRENCE OF THE ACT, EVENT, CONDITION OR OMISSION UPON WHICH THE CLAIM OR ACTION IS BASED. EACH MEMBER SPECIFICALLY WAIVES ANY BENEFIT UNDER CALIFORNIA CIVIL CODE SECTION 1542 (OR ANY SIMILAR OR COMPARABLE LAW IN OTHER JURISDICTIONS) WHICH PROVIDES “A GENERAL RELEASE DOES NOT EXTEND TO UNKNOWN CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED THE SETTLEMENT”.
10.1. If any provision of these Program Terms is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of these Program Terms, which will otherwise remain in full force and effect.
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