Terms of Use

INSTRUCTIONS

BrainShift is enthusiastic about serving you and hopes to make your experience with us a positive one. One step toward enhancing your relationship with us is to clearly describe the terms that are applicable to you and your use of our services, as explained in this Terms of Use Agreement.

The terms “we,” “us,” and “our,” “Producer” refer to the owner(s) and employees of the BrainShift Foundation. The terms, “Participant” “Customer” and “you” refer to those individuals who seek to participate in the EnergySmackdown™ Program.
If you wish to become a participant (“Participant”) in the Energy Smackdown Program (the “Program”) and/or a user of www.energysmackdown.com (the “Web site”), read this Terms of Use agreement and indicate your acceptance by selecting the checkbox. You may request a printed copy of this agreement by writing to us at: info@energysmackdown.com, subject: Energy Smackdown Terms of Use Agreement

GENERAL

In consideration for my use of the Web site and/or my participation in the Program, produced by the BrainShift Foundation, Inc. (the “Producer”), I agree to be bound by this Terms of Use agreement ("Agreement"), whether or not I become a traveler or otherwise participate in the Program.

This agreement may be modified from time to time, and such modifications will become part of this agreement and will be effective once posted by the Producer on the Web site. Please read this agreement carefully, and check them periodically for changes.

Conditions of Participation

All federal, state and local laws and regulations apply. Therefore, the Program is void where prohibited or restricted by law. Participants agree to be bound by these official Terms of Use and the decisions of the Producer, which shall be final in all respects.

Eligibility

This Web site is not directed at users under the age of 13. If you are under the age of 13, you are not permitted to register as a Participant.

Promise to Reduce

As a participant, I make the following pledge:
  • I understand that the Program is a friendly competition among concerned citizens who wish to reduce their personal energy use and make the world a better place in wich to live. In the spirit of fair play, to the best of my knowledge, I agree to accurately report all electrical use, all natural gas, propane, and heating oil use, all automobile travel, all household air travel, all disposed trash and all allowed recycled items. Apart from Goodwill, or other charity, items (clothes, toys, etc.), I will not dispose of trash in any other way.
  • I understand, acknowledge and agree that if any of the information that I or any other persons participating with me (including family members, minor children and/or friends) report is found by the Program to be intentionally false or misleading, it will be grounds for elimination from the Program and forfeiture of all rights to awards and prizes.

Program Overview

The contest is organized into two broad challenges: the household challenge and the team challenge. In the Household Challenge, team members earn points by reducing energy in five areas: electricity, gas/oil, travel, waste, and food. In the Team Challenge, team members work together to expand their impact by bringing other households and organizations into the contest.

Points will be awarded for each Household based on percent reduction of per person household carbon. Points will also be awarded for each Team based on total carbon saved.

As part of the Team Challenge, special Challenge Events will be organized to increase awareness in the community of the importance of living efficiently. Prizes will be awarded for the winner and runner up of each Challenge Event. There will be four Challenge Events:
  • Travel Challenge: Teams compete to move lots of people efficiently. The team with the most people miles per pounds of carbon wins the challenge.
  • Light Bulb Blitz: Teams compete to replace light bulbs over two weeks. The team with the most confirmed replacements wins the challenge.
  • Locavore Banquet: Teams compete to prepare and serve low carbon dishes to members of the media. The team with the most points from the judges wins the challenge.
  • Air Sealing Challenge: Households compete to reduce air leakage in their homes. The household with the greatest air-sealing rating wins the challenge.

Measurement and Judging

I understand and agree that judging of Program Participants is inherently subjective and shall be made at the Producer’s sole discretion based on such criteria as the Producer shall determine. I understand that all decisions and judgments of the Producer are final and not subject to challenge or appeal. The Producer reserves the right to change the judging process without notice.

Prizes and Notification

At the end of the contest prizes will be awarded in the following categories:
  • First place Team
  • First, second, and third place Household
Notification of prizes will occur by announcement at the final challenge event and on EnnergySmackdown.com.

Release from Liability

By participating in the Program and/or by accepting any prize that I may win, I agree to release the Producer and any of its respective licensees, assigns, or affiliated entities and each of their respective employees, agents, officers and directors (collectively, the "Released Parties") from any and all actions, claims, injury, loss or damage arising in any manner, directly or indirectly, from use of the Web site, participation in this Program and/or acceptance or use of a prize.

Producer disclaims any liability for damage to any computer system resulting from participating in, or accessing or downloading information in connection with this Program, and reserves the right, in their sole discretion, to cancel, modify or suspend the Program should a virus, bug, computer problem, unauthorized intervention or other causes beyond its control corrupt the administration, security or proper play of the Program. Producer may prohibit you from participating in the Program or winning a prize if, in their sole discretion, they determine you are attempting to undermine the legitimate operation of the Program by cheating, hacking, deception, or any other unfair playing practices or intending to annoy, abuse, threaten or harass any other players or Producers’ representatives.

Use of Materials

Participation in the Program may include videotaping as a means to tell the story of individuals, households, and organizations taking creative measures to reduce their energy use. If during the Program, I consent to being filmed--by being of legal age to consent (18 years or older) and signing a consent form or by being present at an event where filming is taking place--the Producer may record me during the Program and may use such recording, or any other recordings or photographs provided to the Producer by myself or third parties, in, and in connection with, the Program.

I also agree that any opinions, advice, statements, services, offers, or other information that constitutes part of the video content expressed or made available by me and/or third parties, do not represent the opinions and judgments of Brainshift, Inc., or any of its employees.

All other material that I submit to any of the Program’s chat rooms, forums, blogs and other public posting areas, whether text or images, becomes the property of the Producer and may be reproduced, modified and distributed as Brainshift sees fit, in any medium, for any purpose and in perpetuity. Further, I understand that by posting material on the Producer’s community and social media sites, I am granting to the Producer, and to anyone authorized by the Producer, a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to display, use, copy, modify, transmit, sell, exploit, create derivative works from, distribute, and/or publicly perform such materials posted on The Producer’s community and social media sites, in whole or in part, in any manner or medium, now known or hereafter developed, for any purpose.

Copyright

All copyrights, and any other rights in and to the Materials and the Program, shall be the property of the Producer in perpetuity, throughout the world in all media now known or hereafter devised. I hereby release and assign all of my rights (if any) in the Materials, the Program, and my appearance in any publicity for the Program, to the Producer. Furthermore, the Producer shall not be obligated to use the Materials, including my appearance, in any form, or to provide a credit or acknowledgement to me, or to pay me for the use of my appearance in the application process or the Materials. I understand and agree that all Materials are or shall become the sole and exclusive property of Producer, and any and all Materials submitted by myself will not be returned.

I accordingly give the Producer the right to use my image, voice, pronouncements, likeness, and my name and any biographical material submitted by me in connection with the Program named above, whether used in excerpts or in full, for purposes of the reproduction and distribution described above, and for any associated advertising or exhibition. I further understand, and consent thereto, that portions of the resulting video may be put on the Web site.

Term and Termination

This Program will be governed by the internal laws of the Commonwealth of Massachusetts. Any and all legal actions or claims arising in connection with this Program must be brought in a court of competent jurisdiction within Middlesex County, Massachusetts. This agreement will remain in full force and effect while you use the Web site and/or participate in the Program. Whether or not you are and remain eligible to participate in the Program may be determined by the Producer in its sole and absolute discretion. You may terminate your participation at any time and for any reason upon receipt by the Producer of your written or email notice of termination. The Producer may also terminate your participation in the Program at any time and for any reason, effective upon transmission of notice to you at the email address you provide to the Producer. Even after your participation in the Program and status as a Participant is terminated, this agreement will remain in effect.

The Web Site

The Web site is for use in connection with the Program, and may not be used in connection with any other commercial endeavors except as previously approved in writing by the Producer. Use of the Web site and participation in the Program shall be in strict compliance with this agreement, the Program's privacy policy, all other procedures and guidelines set forth on the Web site and applicable law. Illegal and/or unauthorized uses of the Web site will be investigated, and appropriate legal action will be taken, including without limitation civil, criminal, and injunctive redress.

The Web site provides a number of tools allowing you to calculate your carbon footprint and costs based on a robust set of state, geographic, climate and product level data. The Producer makes reasonable efforts so that its estimates are comprehensive. However, the Program cannot be responsible for any errors or omissions in the tools or any calculations produced using them, nor for any discrepancy between your actual and estimated energy use and monetary savings.

The Web site may contain links to third-party Web sites. Such sites are not under our control, and Producer is not responsible for the contents of any of them. We provide these links as a convenience only, and a link does not imply the Producer’s endorsement of, sponsorship of, or affiliation with the linked site. Links to merchants or advertisers are owned and operated by independent retailers or service providers, and therefore, Producer is unable to ensure that you will be satisfied with their products, services or business practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties.

CAUTION: Any attempt to deliberately damage the Web site or undermine the legitimate operation of the Program may be in violation of criminal and civil laws and will result in disqualification from participation in the Program. Should such an attempt be made, the Producer reserves the right to seek remedies and damages (including attorney fees) to the fullest extent of the law, including criminal prosecution.

Password and Security

You are responsible for maintaining the confidentiality of YOUR password and account, and are fully responsible for all activities that occur under your password or account. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security. You acknowledge, consent and agree that we may access, preserve, and disclose your account information and Material if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any Materials violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of us, our users and the public. You understand that the technical processing and transmission involved in interacting with the Site, including the transmission of Materials, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. You understand that the Site may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by us and/or content providers who provide content to the Site. You may not attempt to override or circumvent any of the usage rules embedded into the Site.

No Warranties/Disclaimer of Liability

BrainShift does not guarantee that the general or specific information posted on this site is accurate, current, or suitable for any particular purpose. We also assume no obligation to update or continue to post the information on this site. BrainShift does not guarantee that access to this Website will be uninterrupted. BrainShift does not guarantee that this Website will be free of viruses. BrainShift does not guarantee that this website cannot be tampered with by third parties. Notwithstanding the above, we will make every reasonable attempt to protect the information in this site. THE USER ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THIS WEB SITE. UNDER NO CIRCUMSTANCES SHALL BRAINSHIFT, ITS EMPLOYEES OR ANYONE ELSE INVOLVED IN CREATING OR MAINTAINING THIS WEB SITE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS THAT RESULT DIRECTLY OR INDIRECTLY FROM THE USE OR INABILITY TO USE THE WEB SITE AND/OR ANY OTHER WEB SITES WHICH ARE LINKED TO THIS SITE - OR THAT RESULT DIRECTLY OR INDIRECTLY FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, VIRUSES, ERRORS, DEFECTS, OR ANY FAILURE OF PERFORMANCE, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS. IN STATES WHICH DO NOT ALLOW SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY, LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT ALLOWED BY LAW. EVEN IF BRAINSHIFT IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THIS WEBSITE AND/OR THE INFORMATION IS TO STOP USING THE SITE AND THE INFORMATION CONTAINED THEREIN.

Indemnification

You agree to indemnify, whether statutorily permitted or required under the applicable state or federal laws. Your agreement to indemnify operates to defend and hold BrainShift, its owner(s), employees, officers and agents, harmless from any liability, including, but not limited to judgments, penalties, fines, settlements, loss, claim and expense, including attorney's fees and expenses, related to or arising from your use of BrainShift EnergySmackdown™ Program, services or your violation of the Terms and Conditions or use of this web site.

Illegal Activities/Compliance with laws

BrainShift is committed to maintaining a service for and on behalf of individuals who honor their legal obligations. We only wish to serve individuals who have every intention of using this site and our proprietary program for a lawful purpose and in a lawful manner. Accordingly, you agree to comply with all the applicable laws, statutes, and regulations regarding the use of this website and our Program services.

Dispute Resolution

To prevent the waste of any number of tangible and intangible resources on litigation, you and BrainShift agree to resolve disputes privately by good faith negotiation where at all possible. Any dispute that you and BrainShift cannot resolve by negotiation shall be submitted to mediation, and if mediation fails, arbitration, under the rules of the American Arbitration Association, or any comparable entity agreed upon in writing by both BrainShift and you. Any arbitration award issued by the mediator shall be final, binding, and enforceable in any court of competent jurisdiction. You and BrainShift agree that any mediation or arbitration of disputes pursuant to this paragraph will be held at the appropriate venue in the Commonwealth of Massachusetts. You also consent to extraterritorial service of process. Each party shall be responsible for its share of the arbitration fees in accordance with the applicable Rules of Arbitration.

Attorneys' Fees

In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator's award, or fails to comply with the arbitrator's award, the other party is entitled to costs of suit, including a reasonable attorney fees for having to compel arbitration or defend or enforce the award. Should either party resort to any other legal proceedings in connection with this Agreement, the party prevailing in such legal proceedings shall be entitled, in addition to such other relief as may be granted, to recover its reasonable attorneys' fees and costs from the non-prevailing party.

No Waivers

BrainShift does not waive any of its rights to enforce any provision of this Agreement at any time. This is the case even if there is a lapse in time between our initial notice of any failure to perform on the part of a buyer or seller, and our ultimate decision to take action to strictly enforce the Agreement.

Construction

The headings, recitals and captions of this Agreement are provided for convenience only, and are intended to have no effect in construing or interpreting this Agreement. The language in all parts of this Agreement shall be in all cases construed according to its fair meaning and not strictly for or against either party. We stress again, that, by accessing this site, you are conclusively presumed to have read and understood all its terms, unless BrainShift receives a written request [write to: BrainShift Foundation, Inc. 200 Boston Avenue, Suite 2540, Medford, MA 02155] from you seeking clarification of the Agreements contents. Notwithstanding any other communications between you and BrainShift, only the terms herein constitute the entire agreement between you and BrainShift.

Severability

These Terms and Conditions were drafted in good faith with every intention of supporting notions of fairness and respect for public policy. No provision herein was written with the intent to defraud, misrepresent or to mislead. If any term, provision, covenant or condition of this Agreement, or the application thereof, to any person, place, or circumstance, shall be held to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.

Privacy

Your privacy as a visitor to our website is paramount. We, as the Producer, are committed to maintaining the privacy of personal information that Participants provide to us when participating in the Program. This privacy policy describes how we treat personal information received about you and other Participants, as well as visitors to the Web site.

The information the Producer collects is important in measuring and verifying the success of each of the teams and individuals committing to playing the energy efficiency game. That being said, the Producer agrees to make every reasonable effort to protect the privacy of Participants by storing personal information – including home addresses, telephone numbers, schools, etc. – in secure areas and by limiting access to that information to those who need it for the operation of the Program.

Information We Collect

General: When Participants register for the Program, and at other times, the Producer collects personally identifiable information that may include name, address, phone number, e-mail address, facts about household, and lifestyle. The Producer does not knowingly collect personal information from children under the age of 13.

Surveys: The Producer may occasionally conduct online surveys. These surveys are entirely voluntary. Web site usage information: The Producer automatically collects IP addresses and Web site usage information from visitors to the Web site. This information helps us evaluate how visitors use and navigate our Web site, including the number and frequency of visitors to each page, and the duration of their visits.

How We Use Information We Collect

The Program may use information in the following ways:
  • For the purposes for which Participants specifically provided the information including, for example, to enable us to process, validate and track progress in the Program.
  • To send you e-mail notifications about relevant events, programs or products, or to otherwise contact you.
  • To enhance existing features or develop new features and services.
  • Except as specifically set forth in this privacy policy, the Producer will not share personal information outside of the Program.
Message board: The community groups and message board sections of the Web site provide Participants as well as visitors opportunities to tell us what they think and to read what other readers have said. When Participants or visitors use our message board features, Producer may make public any information that they provide, including name and e-mail address.

Email messages: If you are a visitor or Participant, you may occasionally receive email messages about the Program that are intended to assist you in making the most of your participation. You may decline to receive these messages by contacting info@energysmackdown.com

Security: The Web site has implemented reasonable security measures to protect information from loss, misuse and unauthorized access, disclosure, alteration or destruction. Our security systems include authenticated access to internal databases, audits of procedures and regular reviews of overall Web security. The personally identifiable information that the Producer collects is stored in limited-access servers. We maintain safeguards to protect the security of these servers.

Review and correction: Contestants may review and update their personally identifiable information by signing in and accessing My Journal or by contacting info@energysmackdown.com

Data retention: The Program retains Participant information for as long as necessary for the purposes communicated under "Rules" and/or to comply with applicable law or regulations.

Policy modifications: When Producer makes any material change to this privacy policy, Producer will post a notice on the home page of this site. We will also change the date on this page, noting when the policy was last updated.

Comments and questions: If you have any questions, comments or concerns about our privacy policy, you may contact us at info@energysmackdown.com

Signing up. During the initial application process you will be asked to provide a valid email address, mailing address, personal description and answer some energy efficiency questions. Neither the Web site nor its affiliate the Producer will knowingly sell or trade personal information to third parties.

Energy bills. We will ask for and collect information regarding your utility bill history throughout the course of this game. This information will be used to track your progress and will be viewable/accessible by you alone.

Updates. You may receive periodic updates from the Program. We will access the valid email address you sent to us for this purpose. The frequency of these updates may vary, but will be no greater than once a month. You can choose not to receive these updates through a preference setting on our Web site.

Measurement and verification. Measurement and verification of your team’s overall progress will be viewable by the public. The names of specific members, however, will not be shared.

Team leaders. Seed team leader contact information will be shared on a contact page on our Web site. Team members must be able to contact team leaders through an energysmackdown.com email address (ex: seedteamleader@energysmackdown.com). Prior to this, the seed team leader must agree to the terms of use.

Minors. The Web site does not knowingly collect personally identifiable information from any person under the age of 13.

Links. Our Web site contains links to other Web sites. Energysmackdown.com is not responsible for the privacy practices or the content of those sites. Participants should be aware of this when they leave our site, and review the privacy statement of each Web site they visit that collects information. This privacy policy applies solely to information collected by this site.

Direct questions about the privacy practices of the Producer to info@energysmackdown.com

Rules of Conduct for Shared Spaces

The following restrictions on shared space Participants and users of the Web site making submissions are intended to make the Web site and site content suitable and appropriate for all users of the Web site. Shared space Participants and users of the Web site making submissions will not:
  • Use a shared space or make a submission for any purpose in violation of local, state, national or international laws;
  • Impersonate any person or entity, or forge or manipulate headers to disguise the origin of any shared space content or submission;
  • Harvest or otherwise collect information about others, including email addresses, without their consent;
  • Post the material or submission more than once or "spam";
  • Engage in any other conduct that restricts or inhibits any other person from using or enjoying the shared space, shared space content, Web site or site content, or which, in our sole judgment, exposes BrainShift or its partners to any liability or detriment of any type;
Shared space Participants and users of the Web site making submissions will not submit, upload to, distribute through or otherwise post any material that:
  • Is libelous, defamatory, threatening, abusive, scandalous, obscene or unlawful or that encourages a criminal offense;
  • Contains any advertising, promotional, solicitation or other commercial material;
  • Contains material from other copyrighted works without the written consent of the owner of such copyrighted material.
  • Infringes any copyright or violates any property rights, rights of privacy or publicity, or any other rights of any third party;
  • Contains any statement, formula, direction, recipe, prescription or other matter that involves a reasonably foreseeable risk of injury or damage to the material's readers or others; or
  • Contains any software viruses or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunication equipment.
BrainShift reserves the right (but is not obligated) to do any or all of the following:
  • Record shared space content;
  • Investigate an allegation that shared space content or a submission does not conform to the terms and conditions of this agreement;
  • Remove shared space content that is abusive, illegal, or that otherwise fails to conform with the terms and conditions of this agreement;
  • Monitor or disclose any shared space content; or
  • Edit or delete any shared space content, regardless of whether such content violates any terms and conditions of this agreement.
  • The Program and its partners have no liability or responsibility to users of the Web site or any other person or entity for performance or nonperformance of the aforementioned activities.
[Note: Brainshift shall notify you as to why your material was taken down. Once you are notified of our action you are free to send a counter-notification, stating that you believe you have a good-faith belief that your use of the copyrighted material is not infringing. Upon receipt of your counter-notification, Brainshift will upload the allegedly infringing video within 14 days of the counter-notification, unless the copyright owner notifies you that he/she/it has filed a copyright infringement action against you]