Wishbone Club

Terms of Use

Last Revised: April 8, 2019

These Terms of Use (“Terms of Use”) govern your use of our website located at [ ˜ ](the “Website”), our related mobile application (the “App”), and any sweepstakes, instant win games, activities, content and/or services associated with the [Wishbone Rewards Program] (collectively the “Program”) offered by Wishbone Club, LLC (“Wishbone” or “we” or “us”).  For purposes of these Terms of Use, “you” and “your” means you as the user of the Program.

Please review these Terms of Use carefully as they affect your legal rights and obligations.  All participants in the Program must accept and comply with these Terms of Use.  Portions of the Program may be subject to additional terms and conditions which will be presented to you the first time you use those portions of the Program or when those specific terms and conditions change in any significant manner.  If you have any questions regarding these Terms of Use, please contact us via email at support@wishbone.com.

These Terms of Use include: (1) an arbitration provision; (2) a waiver of rights to a trial by jury; (3) a waiver of rights to bring a class action against us; and (4) a release by you of certain damages against us that may arise out of your use of the Program.

 

By using the Program or downloading our App, you accept all of the provisions of these Terms of Use and represent to us that you are legally competent to enter into and agree to these Terms of Use.  If you do not accept these Terms of Use, then you may not use any portion of the Program or download the App.

 

  1. ACCOUNT REGISTRATION

 

  1. User Accounts.You do not need to create an account for the Program (a “User Account”) to visit the public pages of the Website, however, you must have a User Account to participate in most of the activities, gain status or win prizes offered by the Program.  To register for a User Account, you must be a member enrollee of an HCSC employer-sponsored plan, a legal resident of the United States of America and at least 18 years of age.  For a list of HCSC employer-sponsored plans that participate in the Program, please visit [ ˜ ].  You may create a User Account by completing the registration process set forth on the Website or in the App.  [You can also register a User Account through your Facebook, Google+ and Twitter accounts.]  You are responsible for keeping your contact information up to date.  By creating a User Account, you represent and warrant to us that all information you have provided is accurate.

 

  1. Required Information. To register for a User Account, you must provide us with your full name, home or postal address, email address, cell phone number, and HCSC plan beneficiary number.  [Any other information?]

 

  1. Protect Your Login Information. You are the sole authorized user of your User Account.  You are responsible for maintaining the confidentiality of any login and password selected by you or assigned by Wishbone for accessing the Program. You are solely responsible for all activities that occur through use of your login credentials or User Account. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you must cease all use of the Program and contact Wishbone immediately by emailing support@wishbone.com.

 

  1. No Cost to Join or Participate. There is no charge to create a User Account, access or participate in the Program or download the App.
  2. LICENSE TO USE THE PROGRAM
  3. License to Participate In the Program. Subject to your compliance with these Terms of Use, Wishbone grants you the personal right to access and participate in the Program (and to download a single copy of the App onto your own mobile device), solely on computers and devices that you own or control.  These Terms of Use are limited to the intellectual property rights of Wishbone and its affiliates and licensors and do not include any rights to intellectual property of other third parties.  We reserve all rights not expressly granted to you pursuant to these Terms of Use.

(a) Apple App Store.  If you are using the App from the Apple App Store, to the extent the other terms and conditions of the Terms of Use are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to App from the Apple App Store. You acknowledge and agree that these Terms of Use are solely between you and Wishbone, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store Terms of Use. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support Program with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms of Use. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, 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. You acknowledge that, in the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Wishbone, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Use as they relate to your license of the App, and that, upon your acceptance of the Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third party beneficiary thereof.

 

(b) Google Play Store.  If you acquire the App from Google, Inc. or one of its affiliates (“Google”) via Google Play or its successor(s), then to the extent of any conflict between the Google Play Terms of Serviceand the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms”), and the other terms and conditions in these Agreements, the Google Play Terms shall apply with respect to your use of any App that you acquire from Google Play. You acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by Wishbone or you (or any other user) under these Agreements or the Google Play Terms.

 

  1. Use Restrictions.

 

(a) You may not access or use any part of the Program or any content, information or other materials provided through the Program except as expressly permitted in these Terms of Use or in any terms provided with specific portions of the Program.

 

(b) Except as specifically permitted in these Terms of Use or expressly authorized in writing by Wishbone, you agree that you will not directly or indirectly: (i) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Program, any updates, or any part of any of them, in any form or manner or by any means; (ii) harvest or scrape any content or data from the Program; (iii) interact with the Program through any automated means (including but not limited to scripts, bots and third-party tools); or (iv) authorize any third party to engage in any of those acts.

 

(c) You further agree that you are not permitted to: (i) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Program; (ii) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Program, any updates, or any part of any of them (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Program); (iii) use any means to discover the source code of any portion of the Program; or (iv) otherwise circumvent any functionality that controls access to or otherwise protects the Program.

 

  1. Third Party Program and Materials. Certain Program may display, include or make available content, data, information, applications, software or materials from third parties (“Third Party Materials”) or provide links to third party web sites. Third Party Materials and links to other web sites are provided solely as a convenience to you. Wishbone is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Wishbone does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party Program, Third Party Materials or web sites, or for any other materials, products, or Program of third parties.

 

III.             PRIVACY.

 

Our privacy practices are described in our Privacy Policy located at www.wishbone.com/privacy(“Privacy Policy”). Please review the Privacy Policy to learn about:

 

  • how we may collect information from or about you;
  • what information we may collect about you;
  • how we use that information; and
  • what information we may share with third parties and with whom we may share that information.
  1. SWEEPSTAKES AND INSTANT WIN GAME POINTS AND STATUS POINTS.

 

You may earn points by checking into the App each day or by completing various activities offered in the Program (“Points”).  Some points will increase your status level in the Program (“Status Points”) and other points (“Game Points”) may be used to pick up virtual packages (“Packages”) which will contain either instant win game plays or entries into a monthly sweepstakes drawing.  The following rules, together with the specific rules and instructions that are provided to you from time to time in connection with particular activities, are collectively referred to as the “Official Rules.”  These Official Rules govern the awarding of Points and your opportunity to win prizes.

 

  1. No Purchase Necessary. NO PURCHASE NECESSARY TO ENTER OR WIN A PRIZE. A PURCHASE WILL NOT INCREASE YOUR CHANCES OF WINNING.

 

  1. Eligibility.In order to earn Points in the Program, you must have a User Account.  Employees of Wishbone (“Employees”) and the spouse, domestic partner, parents, grandparents, in-laws, children, siblings, and any person who lives in the same residence as an Employee of Wishbone are not eligible to [earn Points / pick up Packages].

 

  1. Point Earning Activities. Each day that you access the App you will earn a minimum number of Points sufficient to pick up a Package without otherwise engaging in any other activities on the App.  Activities available to earn Points from time to time will be described in the App along with their Point value.  Not all activities will earn Status Points.  Each of the Point earning activities described in the Program, other than viewing, reading or watching health-related information or videos (“Health Literacy Content”), will earn both Game Points and Status Points.  When you review Health Literacy Content you will receive Game Points only.

 

  1. Status Points.You have the opportunity to earn increasing levels of status within the Program through increased use and participation.  Status in the Program will allow you to earn perks, such as paid membership to other paid services and possibly elevated status with other loyalty programs.  As your status in the Program increases, the relative value of the perks will also increase.  The status rewards available from time to time will be described in the Program.

 

  1. Duration of Points. Status Points continue in force until the end of each calendar year. You will retain the status you have earned at the end of that year through the end of the following year, and your status will adjust down if you did not earn enough Status Points in that subsequent year to maintain the status earned in the prior year. Game Points can be used only to pick-up Packages and do not expire.

 

  1. Packages.The minimum number of Game Points required to pick up a Package is [ ˜ ] Game Points.  The Packages will be located on a map in the App and you must move to the location on the map in order to pick up the Package in exchange for the specified number of Game Points.  When you are searching for the location of a Package, please remain aware of your surroundings and take care to avoid unsafe locations.  If a Package appears to be in an unsafe or inaccessible location, such as in a place that would require you to climb, on private property or in a construction site, please don’t try to pick it up – there are plenty of other Packages available.  Search only during the day or in areas that are well-lit.  If a Package is in an area that you believe may be risky, please email us at support@wishbone.com.  Don’t search for Packages while driving a vehicle, riding a bike or a scooter, or doing anything else that requires your full attention.

 

  1. Prizes.Prizes available to be won from time to time will be described in the App along with their approximate retail value (“ARV”).  The prizes for both the sweepstakes and the instant win games may include gift cards, coupons, tangible rewards or experience rewards. No substitution or transfer of prize is permitted, except that Wishbone reserves the right to substitute a prize of equal or greater value if the advertised prize is unavailable. All prizes are awarded “as is” and without warranty of any kind, express or implied (including, without limitation, any implied warranty of merchantability or fitness for a particular purpose).  All prizes are subject to availability and other restrictions. All expenses not specifically mentioned as part of a prize are solely the responsibility of the winner.  In no event will more than the stated number of prizes be awarded.  If for any reason, more prize notices are sent, or more prizes are claimed, than are intended to be awarded, Wishbone reserves the right to award the actual number of prizes through a random drawing from among all verified and validated prize claims received.  Except where prohibited by law, prize winners may be required to complete and return to Wishbone documentation as reasonably requested by Wishbone including, for example a Prize Acceptance, Affidavit of Eligibility, Release of Liability, photocopy of driver’s license or government I.D., and a Publicity Release, in order to claim the prize.

 

  1. Instant Win Games. Packages that are identified as instant win game Packages will be automatically opened once they have been picked up.  Only a limited number of instant win game Packages contain prizes.  If you receive a notification that you are an instant win prize winner, you will be deemed a “potential instant winner,” subject to verification of your eligibility and compliance with these Official Rules, as determined by Wishbone in its sole discretion.  If you are a potential instant win prize winner, you will be sent an email within three (3) days after your Package is opened confirming the prize potentially won along with any required verification process and the timing for when you will receive your prize, subject to verification of your eligibility, instant win game play and compliance with these Official Rules. If the notification email is returned as undeliverable, if Wishbone is unable to contact you within thirty (30) days after your Package is opened, or if you are not in complete compliance with these Official Rules, the instant win prize will be forfeited and Wishbone will have no further obligation to you. Wishbone will not accept screen shots or other evidence of winning in lieu of its validation process.

 

  1. Selection of Sweepstakes Winners. One Package containing a sweepstakes entry will be selected through a random computer generation methodology from all Packages that contain a sweepstakes entry and that have not already been selected in a prior drawing.  The winning Package will be chosen within five (5) days after the end of each month.  If you hold the winning Package, your Package will automatically open at the time of the drawing and you will be notified you are a “potential sweepstakes winner.”  If you are a potential sweepstakes winner, you will be sent an email within three (3) days after your Package is opened confirming the prize potentially won along with any required verification process and the timing for when you will receive your prize, subject to verification of your eligibility, instant win game play and compliance with these Official Rules. If the notification email is returned as undeliverable, if Wishbone is unable to contact you within thirty (30) days after your Package is opened, or if you are not in complete compliance with these Official Rules, the sweepstakes prize will be forfeited and Wishbone will have no further obligation to you. No alternative winner will be drawn.  Wishbone will not accept screen shots or other evidence of winning in lieu of its validation process.

 

  1. Odds of Winning.The odds of winning a sweepstakes or the instant win game depend on the number of Packages available to be picked up and the number of Packages that have been picked up at any time.  The odds of winning the instant win game also depends on the number of instant win game Packages that contain instant win prizes.  The total number of Packages, instant win game Packages and instant win game Packages that contain instant win prizes available at any given time will be updated on a daily basis in the App.  Many will participate, only few will win.

 

  1. Taxes. All federal, state and local taxes associated with the receipt of any prize are the sole responsibility of the winner.  If you win any prize with a value of $600 or more, you will be required to provide Wishbone with your Social Security Number on Form W-9 as a condition to receiving your prize and Wishbone will file with the IRS and issue you an IRS Form 1099 for the ARV of your prize.

 

  1. Condition of Participation. By participating in Point earning activities, you agree to be bound by these Official Rules, the Terms of Use and the decisions of Wishbone, which shall be final and binding in all respects.

 

  1. Administration.

 

(a)  References to a “day” in these Official Rules means 12:00:01 AM through 11:59:59 PM Central Time on each calendar day. Wishbone’s server will be the official time keeping device for the Program.

 

(b)  We are not responsible for: any incorrect, invalid or inaccurate information supplied by you; technical malfunctions; human errors; failures, interruptions, deletions or defects of any communications network, computer online systems, data, computer equipment, servers, providers, or software (including, but not limited to software and operating systems that do not permit an entrant to participate in the Program), including without limitation any injury or damage to any entrant’s or any other person’s computer or communications equipment relating to or resulting from participation in the Program; inability to access the Program; theft, tampering, destruction, or unauthorized access to, or alteration of, entries and/or data of any kind; typographical, printing or other errors; or any combination of any of the foregoing.

 

(c)  Wishbone may, in our sole discretion, disqualify you from participating in the Program, refuse to award prizes and require you to return prizes, if you violate the Terms of Use or the Official Rules or engage in any conduct we deem to be unfair, improper, tampering with the administration of Points, a sweepstakes or an instant win game, or otherwise adverse to the operation of the Program.  Wishbone reserves the right, in its sole discretion, to cancel, terminate, suspend and/or modify the Program , or any part of it, at any time, without notice. If for any reason the Program or any sweepstakes or an instant win game is not able to be conducted as planned, including, but not limited to, by reason of infection by computer virus, bugs, tampering, unauthorized intervention, fraud or any other causes beyond the reasonable control of Wishbone which corrupt or affect the administration, security, fairness, integrity or proper conduct of the Program or any sweepstakes or instant win game, then Wishbone reserves the right at its sole discretion to cancel, terminate, modify or suspend the Program, or any part of it including any sweepstakes or instant win game, and award prizes from valid Packages picked up by the termination or suspension date.  Any instant win game play that occurs after any systems on which the Program is operated has failed for any reason is deemed a defective play, is void and will not be honored.

 

  1. Disputes as to Account Owner. Entries are deemed to be made by the Authorized Account Holder of the email address used in connection with obtaining a User Account.  The “Authorized Account Holder” is the natural person who is assigned to an e-mail account by an Internet access provider, online service provider or other organization (e.g., business, educational, institution, etc.) that is responsible for assigning e-mail addresses for the domain associated with the e-mail address. In the event of a dispute as to the identity or eligibility of an Authorized Account Holder, we may, our sole discretion, require you to provide proof that you are the Authorized Account Holder and may utilize any information collected by us to assist in verifying the identity and/or eligibility of the Authorized Account Holder.

 

  1. Publicity. By accepting a prize, you consent to the use of your name, identification of your hometown and state, and your voice and likeness/photograph in connection with the administration and marketing of the Program, without any right to review or approve any materials created or used, and without further consideration, except where prohibited by law.

 

  1. Winners Lists.The names of prize winners will be posted in the Program and maintained on the winners list for at least sixty (60) days after the winner’s name is added to the list.

 

  1. Sponsor.Each sweepstakes and instant win game is sponsored by Wishbone Club, LLC, [address].  Wishbone is solely responsible for all aspects of the sweepstakes and instant win games.

 

  1. NO MEDICAL ADVICE.

 

Nothing in our Program should be considered as medical advice.  It is important to distinguish between information and advice provided by your own physician, pharmacist or other health care professional (your “Healthcare Provider”) and the more general health, fitness, or nutrition information provided in the Program (collectively, “Health Related Information”).  All Health Related Information is for informational purposes only.  You should not use the Program or any Health Related Information to diagnose or treat any medical condition.  Health Related Information is not intended as a substitute for, nor does it replace, professional medical advice, diagnosis or treatment from your Healthcare Provider.  Do not disregard, avoid or delay obtaining medical advice from your Healthcare Provider because of something you may have read through the Program. Do not use the Program for emergency medical needs.  If you experience a medical emergency, immediately call 911.

 

Although we strive to ensure that the Health Related Information we provide through the Program is correct, we cannot guarantee that it is always accurate and up-to-date.  Your use of the Health Related Information is solely at your own risk.

 

  1. DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY.

 

  1. No Warranties. Your use of the Program is at your sole risk. To the maximum extent permitted by applicable law, the Program (including, without limitation, any Third Party Materials or third party web sites or Program) are provided to you on an “as is” and “as available” basis, with all faults and without warranty of any kind, and Wishbone expressly disclaims all warranties and conditions with respect to the Program (including the use, performance and support of the Program), either express, implied or statutory, including, but not limited to, the implied warranties or conditions of merchantability, quality, fitness for a particular purpose, accuracy, quiet enjoyment, title or non-infringement of third party rights, freedom from defects or disabling devices, uninterrupted use and all warranties implied from any course of dealing or usage of trade. Wishbone does not warrant that (i) the Program will meet your requirements, (ii) operation of the Program will be uninterrupted or virus- or error-free, (iii) that the Program will operate or be compatible with any other application or any particular system or device, or (iv) defects in the Program will be corrected.  No oral or written information or advice given by Wishbone or its authorized representative shall create a warranty. Some jurisdictions do not allow the exclusion of implied warranties so some or all of the above exclusions may not apply to you.

 

  1. Disclaimer of LiabilityTo the extent not prohibited by law, you agree that in no event will Wishbone be liable (i) for any indirect, special, exemplary, incidental, consequential or punitive damages (including, but not limited to, procurement of substitute goods or Program, loss of use, data or profits, business interruption or any other damages or losses, arising out of or related to your use or inability to participate in the Program), however caused and under any theory of liability, whether under these Terms of Use or otherwise arising in any way in connection with the Program, and whether in contract, strict liability or tort (including negligence or otherwise) even if wishbone has been advised of the possibility of such damage, or (ii) for any other claim, demand or damages whatsoever resulting from or arising out of or in connection with these Terms of Use or the delivery, use or performance of the Program. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above exclusion or limitation may not apply to you.
  2. Maximum Liability. Wishbone’s total liability to you for any damages finally awarded shall not exceed the amount of one hundred dollars ($100.00). The limitations in this Section VI will apply even if this remedy fails of its essential purpose.
  3. Inducement. You agree that the above limitations of liability together with the other provisions in these Terms of Use that limit liability are essential terms of these Terms of Use and that Wishbone would not be willing to grant you the rights set forth in these Terms of Use but for your agreement to the above limitations of liability.  You are agreeing to these limitations of liability to induce Wishbone to grant you the rights set forth in these Terms of Use.

VII.          OWNERSHIP.

  1. Intellectual Property. The Program and their content, including their “look and feel” (e.g., text, graphics, images, logos), are protected under copyright, trademark and other laws.  Wishbone or its licensors own all right, title and interest in and to the Program (including all intellectual property rights) and you agree not to take any actions inconsistent with such ownership interests.  You do not acquire any rights or licenses under any of Wishbone’s or its licensors’ patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights other than the limited rights expressly granted by these Terms of Use.
  2. Feedback and Revisions. Any (i) suggestions for correction, change or modification to the Program and other feedback provided to Wishbone by you (collectively “Feedback”) and (ii) improvements, updates, modifications or enhancements, whether made, created or developed by Wishbone or third parties relating to the Program (collectively, “Revisions”), will at all times remain the property of Wishbone.  Any contribution of Feedback or Revisions does not give or grant you any right, title or interest in the Program or in any such Feedback or Revisions.  All Feedback and Revisions become the sole and exclusive property of Wishbone and Wishbone may use and disclose Feedback or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim.  You hereby assign to Wishbone any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, know-how, moral rights or other intellectual property rights) that you may have in and to any and all Feedback and Revisions.  At Wishbone’srequest, you agree to execute any document, registration or filing required to give effect to the foregoing assignment.

VIII. ARBITRATION, JURY TRIAL WAIVER AND CLASS ACTION WAIVER

This Section includes an arbitration agreement, an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding) and a waiver of the right to a trial by jury.  Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.

  1. Informal Process First. You agree that in the event of any dispute between you and Wishbone, you will first contact Wishbone and make a good faith effort to resolve the dispute before resorting to more formal means of resolution, including any court action.

 

  1. Arbitration Agreement. After the informal dispute resolution process any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of the Program, or relating in any way to the communications between you and Wishbone or any other user of the Program, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and Wishbone. However, this arbitration agreement does not (a) govern any Claim by Wishbone for infringement of its intellectual property or access to the Program that is unauthorized or exceeds the authorization granted in these Terms or (b) bar you from making use of applicable small claims court procedures in appropriate cases. You may opt out of this arbitration agreement within 30 days of the first of the date you access the Program by following the procedure described below.

 

Arbitration is more informal than a lawsuit brought in a court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. The U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision.  The arbitration provisions, class action waiver and jury trial waiver will survive any termination of these Terms of Use.

 

If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to Wishbone Club, LLC, Attn:  [ ˜ ]. The arbitration will be administered by the American Arbitration Association (AAA) under its rules including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.orgor by calling 1-800-778-7879.

 

The number of arbitrators will be one.  You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.  The arbitration will be conducted in the English language. Illinois law will apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction.

 

Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. If you are an individual and have not accessed or used the Program on behalf of an entity, we will reimburse those fees for claims totaling less than $10,000, unless the arbitrator determines the claims are frivolous, and we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.

 

The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.

 

The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.

 

If you do not want to arbitrate disputes with Wishbone and you are an individual, you may opt out of this arbitration agreement by sending an email to legal@Wishbone.comwithin 30 days after the first of the date you access the Program.

 

  1. Waiver of Jury Trial. By agreeing to arbitration, you and Wishbone are waiving all rights to a trial by jury. If for any reason a Claim proceeds in court rather than in arbitration, you and Wishbone also each waive any right to a jury trial.

 

  1. Class Action Waiver. Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). You and Wishbone each waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.  If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void.

 

  1. INDEMNIFICATION BY YOU

By participating in the Program, you agree to release, defend, indemnify and hold Wishbone, any third party that assists Wishbone in the administration of the Program, HCSC, and their respective parents, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents (collectively, the “Released Parties”) harmless from and against any and all claims, actions, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your violation or breach of any term or condition of these Terms of Use, the Official Rules or any applicable law or regulation; (b) your violation of any rights of any third party; (c) any unauthorized use of the Program; (d) injuries, loss of life, damages, fines, penalties or losses to persons or property which may be sustained in connection with participation in the Program or the receipt, use or misuse of any prize; or (e) your negligence or willful misconduct.

X.GENERAL PROVISIONS

  1. Modifications. We may modify these Terms of Use at any time. Modifications become effective immediately upon your first access to the Program after the “Last Revised” date at the top of these Terms of Use.  If we make changes that are material, we may use reasonable efforts to attempt to notify you, including by email, text or placing a prominent notice on the first page of the Website. However, it is your sole responsibility to review the Terms of Use from time to time to view any such changes.  Your continued access or use of the Program after the modifications have become effective will be deemed your acceptance of the modified Terms of Use.  If you do not agree with the modifications to the Terms of Use, then please do not access or participate in the Program.

 

  1. Termination. If you breach any of these Terms of Use, all licenses granted by Wishbone, including your permission to participate in the Program, will terminate automatically. Additionally, Wishbone may suspend, disable, terminate or delete your User Account and/or the Program (or any part of the foregoing) with or without notice, for any or no reason. If Wishbone deletes your User Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Program under a different name.  All sections which by their nature should survive the termination of these Terms of Use shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by Wishbone or you.  Termination will not limit either party’s other rights or remedies at law or in equity.
  2. Use Outside of the U.S. The Program is intended for access and use by persons located in the United States. If you access the Program from outside the United States, you are responsible for compliance with local laws.
  3. U.S. Government Restricted Rights. The Program and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
  4. Injunctive Relief. You agree that a breach of these Terms of Use will cause irreparable injury to Wishbone for which monetary damages would not be an adequate remedy and Wishbone shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security, or proof of damages.
  5. Governing Law. The federal laws of the United States of America, the state laws of Illinois (excluding its conflicts of law rules), and the AAA Rules govern these Terms of Use and your use of the Program. Your use of the Program may also be subject to local or state laws in your jurisdiction.
  6. Mobile Devices. If you participate in the Program via a smart phone or other mobile device, message and data rates may apply.  Not all cellular service providers offer the services necessary to participate in this Program through a mobile device. Please check with your provider for specific capabilities, charges and pricing plans.
  7. Miscellaneous. These Terms of Use (which includes our Privacy Policy and any terms provided in connection with a particular activity that you are required to accept) set forth the entire understanding between you and Wishbone and there are no promises, covenants or undertakings other than those expressly set forth in the Terms of Use. These Terms of Use will inure to the benefit of and will be binding upon each party’s successors and assigns. These Terms of Use and the licenses granted hereunder may be assigned by Wishbone but may not be assigned by you without the prior written consent of Wishbone. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions had not been included. In the event either party on any occasion fails to perform any term hereof and the other party does not enforce that term, that failure to enforce will not constitute a waiver of any term and will not prevent enforcement on any other occasion.  In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms of Use due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such occurrence.  The headings and captions of individual sections are provided for convenience only and will not be considered to be binding parts of the Terms of Use.
  8. Residents of California. In accordance with California Civil Code Section 1789.3, California participants in the Program are notified as follows: The Complaint Assistance Unit of the Division of Consumer Program of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
  9. Contact Us. You may contact us regarding the Program or these Terms of Use by email to support@wishbone.com, or by mail at:

 

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Suite 39.309

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