INTERNET SALES AND USER TERMS AND CONDITIONS
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS A USER AND ENTRANT AT AND THROUGH THIS INTERNET SITE OR ANY RELATED INTERNET SITE, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.
These Terms and Conditions (these “Terms”), together with any documents referenced herein, contain all of the terms and conditions that apply to access to, review of, participation in and entry into one or more sweepstakes, drawings, promotions and other giveaways (collectively, the “Giveaways”, and each a “Giveaway”) by those persons (each, a “User”) accessing, using and utilizing the Materials the Internet website www.gimmiegiveaway.com and related Internet websites (collectively, the “Sites”), as provided by the Sites’ proprietor, Gimmie Giveaway LLC, an Arizona limited liability company (“GGLLC”). By clicking “I accept” and also by accessing the Giveaways, or any of them, at the Sites, User, freely, voluntarily and with full authority and capacity to do so, agrees to be bound by and accepts these Terms. If you (as a User) do not agree to be bound by all of these Terms, please do not use, utilize or access the Sites, the Giveaways, or any of them. GGLLC reserves the right to cancel your User account and discontinue making the Giveaways available to you, as User, should you, as User, violate any of these Terms.
- General Terms Subject to Change. These Terms may change without prior notice at any time, in GGLLC’s sole discretion, including, but not limited to, the protocols for use of the Sites, access to the Giveaways, availability of the Giveaways, materials made available at or through the Sites, or any of them, in connection with or in relation to any of the Giveaways (collectively, the “Materials”), descriptions, and other e-commerce related information and/or functionality. GGLLC reserves the right, its sole discretion, to discontinue the Sites or Giveaways, or any of them, and/or modify the contents of the Sites, or any of them. User agrees that GGLLC will not be liable to User for any such discontinuance or modification of the Sites or the Giveaways, or any of them. Each of the Giveaways is offered exclusively at and through the Sites.
- Specific Giveaway Terms. While these Terms apply generally to User’s access to, review of, participation and entry into all Giveaways made available at or through the Sites, each of the Giveaways will have its own rules, terms and conditions, which are hereby incorporated herein and integrated herewith by this reference. Such rules, terms and conditions will be determined solely by the proprietor, organizer, offeror or sponsor (each, a “Sponsor”) of each Giveaway, as identified at the Sites. User is expected to comply fully with all rules, terms and conditions required by a Sponsor in connection with a Giveaway, provided that in the event of any conflict or inconsistency between these Terms and such Sponsor’ rules, terms and conditions in connection with a Giveaway, these Terms shall govern and take precedence. In no event and under no circumstance shall GGLLC be responsible or liable to any User or Sponsor, or to any third party, for or in relation to any Sponsor or User’s compliance with any rules, terms or conditions required in connection with a Giveaway. Each User may only enter once into each Giveaway. Once User has entered User’s profile data at the Sites, User need not re-enter such information in connection with each Giveaway, as the Sites will automatically track User’s profile data associated with User’s entry into each Giveaway. If any profile data of User changes, however, User will need to update User’s profile data accordingly at the Sites.
- No Reliance. User hereby recognizes, acknowledges and agrees that User’s decision to access, review, participate in and enter a Giveaway is that of User and User alone. By making the Giveaways available through the Sites, GGLLC does not necessarily endorse such Giveaways, or any of them, or the products, services, businesses or endeavors promoted or otherwise depicted in connection therewith. GGLLC likewise does not encourage or discourage User from accessing, reviewing, participating in or entering any particular Giveaway. In considering any particular Giveaway, User, his/her advisers, if any, and his/her representatives, if any, have relied only on their own independent information, assessment and evaluation, including that pertaining to any information provided at or through the Sites in connection with the Giveaway. In no event and under no circumstance shall GGLLC be responsible or liable to any User or Sponsor, or to any third party, for any decision by any User to access, review, participate in or enter a Giveaway, or to sample, purchase, use or utilize any products, goods or services promoted or otherwise depicted in connection with a Giveaway, or to enter into any business relationship with a Sponsor. In the event User sustains any damages or injuries, suffers any losses, or incurs any costs or expenses, in relation to any Giveaway, User’s sole recourse, if any, shall be against the Sponsor of such Giveaway, and in no event and under no circumstance against GGLLC. Subject to the provisions set forth in this Section 3 and in Section 10, below, GGLLC, in addition to sending confirmation of your registration at the Sites, reserves the right to send one (1) follow-up e-mail communication to User on behalf of each Sponsor of a Giveaway for which User submits an entry to confirm entry into such Giveaway, and if User has won a Giveaway one (1) additional follow-up e-mail communication to User to confirm User’s status as a Giveaway winner. The Giveaway Sponsor may then communicate with the winning User as such Sponsor sees fit. For all purposes, including under Section 10, below, the contents of such follow-up e-mail communication from the Sponsor shall be authored and provided strictly by the Sponsor and therefore shall be considered third-party content and shall not under any circumstances be considered originated by or provided directly by GGLLC.
- Authorized Use.
(a) Limited License. GGLLC grants User a limited license to access and make personal use of the Sites for legal purposes and uses and that are otherwise permitted by these Terms, namely to review availability and features of Giveaways at and through the Sites, and to participate in and enter Giveaways at and through the Sites. This license does not include any resale or commercial use of the Sites or contents thereof; any collection and use of any Materials, or any Giveaway or Sponsor listings, descriptions, features, rules, terms or conditions; any derivative use of the Sites or contents thereof; any downloading or copying of account information for the benefit of another; or any use of data mining, robots, cookies or similar data gathering and extraction tools. User shall have the ability to post certain limited content at the Sites upon prompting.
(b) No Modifications or Deep Links. Other than page caching, User is not authorized to download or modify the Sites, or any of them, or any portion thereof. Unless otherwise authorized in writing by GGLLC, no User or other third-party is authorized to deep link to any web page contained in the Sites, or any of them, (i.e., no links are permitted under any circumstances from third-party websites to any page of the Sites, or any of them, other than the Sites’ home pages). Such links are expressly prohibited. In addition, no User or third party may link to any of the Sites’ home pages in such a manner as to create a reasonable possibility or likelihood of confusion by users of a third party website as to the true ownership or sponsorship of the Sites, or any of them, and/or as to the existence or lack thereof of some affiliation or other relationship between GGLLC and the third party and/or its website.
(c) Posting Restrictions. No User may post or transmit through the Sites, or any of them, any material that violates or infringes in any way upon the rights of others, which is unlawful, misleading, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, confidential or proprietary to third parties, or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, which is inconsistent with the non-religious and non-political purposes of the Sites, or any of them, or which contains advertising or any solicitation with respect to products or services, each as determined by GGLLC in its sole discretion. User is also prohibited from using the Sites, or any of them, in any way that restricts or inhibits any other User of the Sites, or any of them, from using or enjoying the Sites, or any of them. Also, no User shall use the Sites, or any of them, for any illegal purpose, including but not limited to, uses in violation of the CAN-SPAM Act of 2003, or in violation of any privacy laws.
(d) No Harmful Materials. User shall refrain from uploading, posting, e-mailing, or otherwise transmitting to or through the Sites, or any of them, or to or through any Sponsor or any other User at the Sites, or any of them, any messages, programs, or other materials (including but not limited to Trojan Horses, malware, spyware, viruses, worms, and the like) that contain software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of or perform any invasive measures upon any computer software or telecommunications equipment.
(e) User Responsibility. GGLLC may enact and enforce reasonable rules of use as promulgated and amended from-to-time by GGLLC regulating the use of the Sites, or any of them, by all parties, including without limitation User, and User agrees to be bound by and to bind each of its users to such rules.
- User Account and Password. User shall propose, and GGLLC shall approve and assign, a unique username and password to access pages at the Sites regarding the Giveaways available for access, review, consideration, participation and entry. User shall also have the opportunity to change such username and password from time to time in accordance with GGLLC’s security policies. User may not authorize any other person or party to access the Sites, or any of them, using User’s username and password. User may not obtain more than one username and password for each physical address and e-mail address attributed to User. User acknowledges and agrees that User shall be responsible for maintaining the confidentiality of User’s username and password, and to the extent caused by, arising from or attributable to the acts and omissions of User, or User’s agents, employees, representatives or other parties for whom User is legally responsible, User shall be liable for any consequences that may result from their disclosure, including but not limited to any resulting access to, use of, or modification of the Sites, or any of them, or any Materials, and access to, integrity of and loss of any User Content (as defined in Section 5, below). User agrees to accept responsibility for all activities that occur under User’s account, username and/or password. GGLLC reserves the right to refuse service, terminate accounts, or remove or edit content, including without limitation User Content and Materials, in its reasonable discretion. User’s username, account and password are non-transferable, except upon written agreement by GGLLC, in GGLLC’s sole discretion, and may not under any circumstances be shared. User agrees to (a) maintain all equipment necessary for User’s access to and use of the Sites; (b) maintain the security of User’s user account identification, username, password, User Content and any other confidential information relating to User’s account at the Sites; and (c) take responsibility for all charges resulting from use of User’s account at the Sites, including without limitation those pertaining to any unauthorized use prior to User’s notifying GGLLC of such unauthorized use and taking the legal steps to prevent its further occurrence by contacting GGLLC to change User’s username and password.
- User Profile Data and Content. User shall have the sole responsibility to input and maintain profile data at the Sites. Such data, all of which is incorporated into and integrated with these Terms by this reference, shall under all circumstances include identification of User’s full legal name, age, gender, most recent active physical address (including zip code), e-mail address and telephone number. User shall maintain his/her own proprietary content and profile data provided and utilized in connection with the utilization of the Sites (collectively, “User Content”), and to test to ensure that User Content, including without limitation all profile data, is maintained and up to date. GGLLC shall exercise reasonable efforts to secure User Content, and GGLLC shall not maintain, test or alter User Content in any way. Except as otherwise expressly provided in these terms, GGLLC does not warrant that any User Content shall be maintained or up to date in any manner, and GGLLC shall not have any responsibility for any mistaken Giveaway entries or corresponding forfeiture of prizes or promotional items due to User’s failure to maintain and update User Content as appropriate. Specifically, User shall remain solely responsible for all errors or problems in User Content impacting the Sites, or any of them, or the processing of any Giveaway entry placed at or through the Sites, or any of them.
- Third Party Hosts. User acknowledges that certain aspects, features and functions of the Sites reside in computing environment(s) of one or more third party hosting companies, which comprise both servers and telecommunications services, and that certain uses of the capabilities offered by the Sites may render the Sites, or any of them, inaccessible or may impair the performance of the computing environment for User and/or one or more Sponsors. In the event of any such use by User, GGLLC shall so notify User, and User shall be obligated to put an immediate stop to such use and will notify GGLLC, in writing, that User has stopped such use. In the event of User’s failure to put an immediate stop to such use, GGLLC reserves the right to suspend or terminate User’s access to the Sites, or any of them.
- Security. GGLLC shall exercise commercially reasonable efforts to operate, maintain and provide the Sites in good working order and shall establish and maintain commercially reasonable security measures designed to protect User from any security breaches at or through the Sites. However, GGLLC shall not under any circumstances be responsible for any security breaches caused by, arising from, resulting from or attributable to any factor other than GGLLC’s gross negligence or intentional misconduct. Specifically, among other things, GGLLC shall have no responsibility for any security breaches caused by, arising from, resulting from or attributable to any features employed by any third party hosting company, it being understood and agreed that User may not under any circumstances hold GGLLC responsible or liable therefor and that User’s recourse therefor shall be limited to the appropriate third party hosting company or companies.
- Site Operation and Maintenance. GGLLC shall use reasonable efforts to maintain the Sites in good condition and operating order. GGLLC shall not be responsible for any inaccessibility of User due to scheduled maintenance and upgrades of the Sites, or any of them, or any corresponding Internet servers or software. GGLLC shall use reasonable efforts to ensure that any period of inaccessibility shall not exceed 48 hours. In the event that the Sites, or any of them, become inaccessible, or operation thereof fails in any way, User shall give written notification of the inaccessibility or the failure, and in the case of failures, sufficient information to permit replication and analysis. Upon receipt of notice from User of any inaccessibility or failure, GGLLC shall use reasonable efforts to diagnose the cause of the inaccessibility or failure. Upon completion of the diagnosis, GGLLC shall advise User of the cause of the inaccessibility or failure and shall use efforts that GGLLC considers to be reasonable in GGLLC’s sole discretion to restore access to and use of the Sites or avoid the failure. Notwithstanding the foregoing, GGLLC shall have no obligation to resolve any inaccessibility or failure caused by (a) modification of the Sites, or any of them, by anyone other than GGLLC, (b) use of the Sites, or any of them, for any purpose other than intended, (c) misuse or incorrect use of the Sites, or any of them, or (d) malfunction of any User or third party’s computer or any telecommunications services not under the control of GGLLC. GGLLC shall implement the data archive procedures resident in the Sites at reasonable regular intervals, and User acknowledges that the liability for loss, destruction or damage to any data User may store in GGLLC’s computing environment, including without limitation any User Content, is limited pursuant to these Terms. GGLLC has the sole right to maintain and update the logical and physical organization and structure of the databases and associated files within the Sites.
- Third Party Content. The Sites contain and may contain information, data, software, photographs, graphs, videos, typefaces, graphics, audio and other material (collectively “Content”), including without limitation Content posted by Sponsors. GGLLC does not control the Content supplied by parties other than directly by GGLLC. Any opinions, advice, statements, services, offers, and/or other information that constitute part of Content expressed or made available by third parties and not directly by GGLLC are those of the respective Sponsors, authors or distributors, and not of GGLLC. Neither GGLLC, nor any third party, including any third-party User of the Sites, or any of them, guarantees the accuracy, completeness, or usefulness of any Content not directly of GGLLC, nor its merchantability or fitness for any particular purpose. In many instances, the Content available through the Sites, including features and descriptions of certain Giveaways, Sponsors and related products, services and endeavors provided at or through the Sites, represent the opinions and judgments of the respective Sponsor, customer, vendor or user. GGLLC neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, or statement made on or at the Sites, or any of them, by anyone other than GGLLC and GGLLC’s authorized employees and independent contractors. Under no circumstances shall GGLLC be liable for any loss, damage or harm caused by User’s reliance on information obtained through the Sites, or any of them, other than information originated by GGLLC. It is the sole responsibility of a User to evaluate the information, opinion, advice or other Content made available through the Sites other than that originated by GGLLC.
- Links to Other Sites. The Sites may reference or link to third-party websites throughout the Internet. GGLLC has no control over such third-party websites or the content within them. GGLLC cannot and does not guarantee, represent or warrant that the content contained in such third-party websites is accurate, legal or inoffensive. GGLLC does not endorse the content of any third-party website, nor does GGLLC warrant that they will not contain viruses or otherwise impact User’s computer. GGLLC does not assume any responsibility or liability for the actions, product, services, and content of all these and any other third parties. If User chooses to link to or use a third-party website, User should carefully review such third party’s privacy statement and other terms and conditions of use. By using the Sites, or any of them, to search for or link to another third-party website, User agrees and understands that User may not make any claim against GGLLC for any damages or losses, whatsoever, resulting from User’s use or utilization of the Sites, or any of them, to obtain search results or to link to another website.
- Posted Materials. User understands and acknowledges that GGLLC cannot, does not and will not monitor all material posted or transmitted by Sponsors, customers, users and third party information providers at the Sites. Although GGLLC has no obligation to review or remove any such content, in general, GGLLC reserves the right to remove any content posted at or through the Sites, or any of them, at any time for any reason in its sole discretion, including without limitation copyrighted content or other proprietary information of any kind that has been posted or linked to without the express permission of the owner of that material. Decisions in such regard shall be made by GGLLC in its sole discretion after actual notice of such posting.
- Confidentiality and Intellectual Property. In connection with these Terms, and User’s access to, review of, consideration of, participation in and entry into one or more Giveaways at or through the Sites, or any of them, GGLLC might provide, and User might receive, certain “Confidential Information” concerning one or more businesses, products, materials and/or services of GGLLC (collectively, the “GGLLC Items”), which GGLLC deems to be highly proprietary and valuable.
(a) Scope of Confidentiality Protection. For the purpose of this Section 13, “Confidential Information” shall include all information, whether written or oral, that is prepared, uniquely known and/or provided by GGLLC, any member or principal of GGLLC, and/or any affiliate, parent, subsidiary, principal, member, officer, director, employee, agent, representative, predecessor, successor or assign of any of them that is not User (collectively, the “GGLLC Parties”, and each an “GGLLC Party”), including without limitation that related to prospective development of the GGLLC Items, or any of them, descriptions, compositions and features of the GGLLC Items, or any of them, operational, logistical, financial, physical, legal and other practical requirements for the GGLLC Items, or any of them, expected financial gains to be realized from the GGLLC Items, or any of them, identities of parties potentially involved with the GGLLC Items, or any of them, including without limitation actual and prospective vendors, contractors, consultants, distributors, suppliers, and other business partners of GGLLC related to the GGLLC Items, or any of them, prospective impacts of the GGLLC Items, or any of them, and other information related to the GGLLC Items, or any of them, or GGLLC’s ongoing or prospective involvement with the GGLLC Items, or any of them, which is not readily available to the public. For the purpose of this Section 13, “Confidential Information” shall also mean (i) the contents of these Terms, with the understanding that the existence of these Terms and User’s general obligation of confidentiality hereunder may and should be disclosed to all third parties who seek or might receive any Confidential Information, (ii) all terms, conditions and features related to User’s access to, review of, consideration of, participation in and entry into one or more Giveaways, (iii) all Intellectual Property, as defined in Section 13(b), below, (iv) non-public information related to any and all GGLLC Items developed, performed or generated by or for GGLLC or any of the GGLLC Parties, and (v) proprietary information relating to the business, operations, methodologies, technologies, personnel, vendors, financial condition or procedures of GGLLC or any of the GGLLC Parties that is not generally known to the public and that, under all of the circumstances, ought reasonably to be treated as confidential and/or proprietary. Confidential Information shall include any information, whether or not labeled “confidential”, that by its nature could be deemed to be confidential, sensitive, privileged and/or proprietary information of GGLLC or any of the GGLLC Parties. User shall disclose the Confidential Information solely as necessary to access, use and utilize the Sites and to access, review, consider, participate in and enter one or more of the Giveaways, as expressly set forth in these Terms, and User shall consider and utilize the Confidential Information solely for such purposes. Confidential Information may be disclosed orally, visually, and in written form (including but not limited to electronic or other media).
(b) Intellectual Property. All Intellectual Property in any way related to any Confidential Information of GGLLC provided by GGLLC or any of the GGLLC Parties to User is hereby acknowledged to remain in the exclusive possession of GGLLC, the applicable GGLLC Party, or the applicable licensor thereof (the “GGLLC Licensor”), as appropriate, and any rights to or interests in such Intellectual Property, or any permutation or derivation thereof, are hereby fully disclaimed, waived and renounced by User in favor of GGLLC, the applicable GGLLC Party, or the applicable GGLLC Licensor, as appropriate, subject to the limited license provided in Section 4(a), above. For the purposes of this Section 13(b), “Intellectual Property” means all intellectual property owned, licensed (as licensee) or otherwise used by GGLLC and/or any of the GGLLC Parties, arising from or in respect of, or that might arise from or relate to, the following, whether protected, created or arising under the laws of the United States or any other jurisdiction, whether or not registered with any governmental authority: (i) all patents and applications therefor, including continuations, divisionals, continuations-in-part, reexaminations, or reissues of patent applications and patents issuing thereon (collectively, “Patents”), (ii) all trademarks (registered or common law marks), service marks, trade names, service names, brand names, trade dress rights, logos, domain names, Internet URL addresses, corporate names and general intangibles of a like nature, together with the goodwill associated with any of the foregoing, and all applications, registrations and renewals thereof (collectively, “Marks”), (iii) all copyrights and registrations and applications therefor, works of authorship and mask work rights (collectively, “Copyrights”), (iv) all discoveries, concepts, ideas, research and development, know-how, formulae, inventions, compositions, manufacturing and production processes and techniques, technical data, data compilations, text information and materials, graphics, procedures, designs, drawings, specifications, databases, and other proprietary and confidential information, whether or not displayed, maintained or accessed on, at or through the Sites, or any of them, including without limitation sponsor lists, vendor lists, user lists, customer lists, supplier lists, pricing and cost information, and business and marketing plans and proposals of GGLLC and/or any of the GGLLC Parties, in each case excluding any rights in respect of any of the foregoing that comprise or are protected by Marks, Copyrights or Patents, (v) all software, including all source code and open source code, and all related documentation; (vi) all artwork, designs, images, photographs or other content displayed, illustrated or otherwise used on or in connection with GGLLC’s websites, including without limitation the Sites, or any websites of any of the GGLLC Parties or otherwise used in connection with GGLLC or any GGLLC Items, and (vii) all other technology and know-how uniquely in the possession of GGLLC and/or any of the GGLLC Parties.
(c) Restrictions Regarding Intellectual Property. Neither User, nor any affiliate, parent, subsidiary, principal, officer, director, employee, agent, representative, predecessor, successor, assign, legal or financial advisor, contractor or consultant of User that is not GGLLC, an applicable GGLLC Party or an applicable GGLLC Licensor as referenced in Section 13(b), above (collectively, the “User Parties”, and each a “User Party”), may apply for a right in any Intellectual Property, or use or utilize any Intellectual Property for any purpose other than that provided under Section 4, above, except upon the express written consent of an actually authorized representative of GGLLC in the sole and absolute discretion of GGLLC, whether or not any Intellectual Property has been issued, registered, or in any other way afforded any rights by the United States Patent and Trademark Office, the United States Copyright Office, or other similar administrative agency. To the extent User or any User Party may claim any rights, direct, derivative or otherwise, related to any Intellectual Property, other than the limited license provided under Section 4(a), above, User hereby disclaims, and shall cause each User Party to disclaim, such rights, and hereby assigns, and shall cause each User Party to assign, such rights to GGLLC. User agrees to execute and to cause each User Party to execute, and in the alternative hereby grants to GGLLC, and shall cause each User Party to grant to GGLLC, power of attorney to execute and record in User’s stead, and in each User Party’s stead as applicable, any and all documentation, including without limitation disclaimers and assignments of Intellectual Property rights, as necessary to document publicly, legally, and officially the exclusive ownership of all Intellectual Property referenced in Section 13(b), above, by GGLLC, the applicable GGLLC Party, or the applicable GGLLC Licensor, as appropriate. Neither User, nor any third party, may market, utilize, reuse or redistribute any Intellectual Property, except as authorized hereunder or except as approved in writing by an actually authorized representative of GGLLC. With the exception of the limited license under Section 4(a), above, no license or other right of any kind in any Intellectual Property is granted or otherwise provided to User, to any User Party or to any third-party in relation to these Terms or User’s use of the Sites, or any of them, or User’s access to, review of, consideration of, participation in and entry into one or more Giveaways at or through the Sites, or any of them. Neither User nor any User Party may frame or utilize any framing techniques to enclose any GGLLC Intellectual Property or Confidential Information. Neither User nor any User Party may use any metatags or other hidden text utilizing GGLLC’s Intellectual Property. Any unauthorized use terminates the permission or license granted by GGLLC under Section 4(a), above, whereupon GGLLC may but is not obligated to terminate User’s access to the Sites, Materials and Giveaways. The Sites contain copyrighted material, trademarks and other proprietary information, which may include text, software, photos, video, graphics, music and sound. GGLLC owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. Neither User nor any User Party may modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the Sites’ content, in whole or in part. Except as otherwise expressly permitted under copyright law or expressly allowed herein, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express written permission of GGLLC. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made.
(d) Restrictions Regarding Disclosure of Confidential Information to Third Parties. User shall, and shall cause each User Party to, hold GGLLC’s Confidential Information, whether delivered before or after the date hereof, in strict confidence and shall refrain from and cause each User Party to refrain from: (i) providing, copying, disclosing, divulging or otherwise making available the Confidential Information to any other person or entity without the prior written consent of an actually authorized representative of GGLLC, in GGLLC’s sole discretion; and (ii) removing or permitting to be removed from such Confidential Information any notice indicating the confidential nature of, or GGLLC’s proprietary right in and to the Confidential Information. User shall, and shall cause each User Party to, exercise at least the same degree of care and protection with respect to GGLLC’s Confidential Information that User or such User Party, as applicable, would exercise with respect to User’s (or such User Party’s) own confidential, sensitive, privileged and/or proprietary information, which in no event shall be less than the highest level of care for the industry. User shall, and shall cause each User Party to, take all precautions necessary to ensure that the Confidential Information shall not be, or permitted to be, shown, copied or disclosed to other parties, except as expressly provided in this Section 13. In the event of written consent to disclose Confidential Information to any other party, User shall, and shall cause each User Party to, advise that other party of his/her/its obligations with respect to the Confidential Information, and have that party acknowledge in writing that the terms and conditions of this Section 13 may be directly enforced by GGLLC against him/her/it as a condition to such disclosure. User or the User Party, as applicable, shall provide an original of such written acknowledgment to GGLLC, if so requested by GGLLC. In any event, User or such User Party, as applicable, shall disclose the Confidential Information to the other only as necessary for the purposes authorized in writing by an actually authorized representative of GGLLC. In addition, User or such User Party, as applicable, shall ensure that confidentiality notices are included on copies of Confidential Information so provided and shall account for the return or destruction of the Confidential Information and all reproductions thereof, if so requested by GGLLC. In any event, GGLLC consents to disclosure of Confidential Information by User to any User Party, or such User Party’s employees, contractors, consultants and advisers as necessary for the purposes set forth in 13(a), above, provided such disclosures are subject to the remaining requirements of Sections 13(c) and 13(d) of these Terms.
(e) Exception for User Content. Any proprietary User Content that is collected or generated through use of the Sites, or any of them, shall be deemed Confidential Information of User, which shall be subject to the provisions of Section 13 of these terms and the corresponding restrictions thereon as applied to GGLLC’s protection and disclosure thereof, in any event subject to this Section 13(e). User shall be solely responsible for the accuracy, quality, integrity, reliability, appropriateness, legality and intellectual property ownership or right to use all of the User Content, and User shall have indemnity obligations to GGLLC therefor and in relation thereto as provided below. User represents and warrants that (i) User has the appropriate authority, license or other rights to use all such User Content and to provide such User Content as contemplated in these Terms; (ii) User has and will maintain all rights, consents and approvals required to grant to GGLLC the rights to access, use, adapt, display and modify User Content in accordance with this Section 13(e) and will upon GGLLC’s request provide proof of the same; and (iii) User shall not knowingly infringe upon the intellectual or other proprietary rights of any third party. User hereby grants to GGLLC a nonexclusive, irrevocable, transferable, perpetual, worldwide, royalty-free and fully paid-up license to access, use, adapt, display and modify any and all User Content that is collected or generated through use of the Sites, or any of them, for any legal purpose, including without limitation to perform GGLLC’s obligations under these Terms, to enforce these Terms, to analyze, transfer and use such User Content in an aggregated form from which all personally identifiable information has been removed, for purposes of benchmarking system performance, preparing statistics, system metrics and other purposes, and to market the Sites and Giveaways, as well as the right to sublicense such rights to any holding provider and other third parties as necessary for GGLLC to do so or as may be reasonably necessary or appropriate in connection with the provision of the Sites and operation of the Giveaways by GGLLC, and User’s use and utilization thereof. In any event, notwithstanding the remaining provisions of this Section 13(e), User understands, acknowledges and agrees that GGLLC may provide User’s first name, age, gender and zip codes to one or more Sponsors in GGLLC’s sole and absolute discretion, and the license granted to GGLLC under this Section 13(e) includes the same. In addition, User understands, acknowledges and agrees that in the event User is declared a winner with respect to any Giveaway, GGLLC may and shall provide User’s full name, physical address, e-mail address and telephone number to the Sponsor or Sponsors associated with such Giveaway, who shall then make arrangements directly with User to provide User with the corresponding prize or prizes or promotional items.
(f) Ownership of Confidential Information. With the exception of User Content as described in Section 13(e), above, and subject to the licenses set forth in said Sections 4(a) and 13(e), above, all Confidential Information, including reproductions thereof, shall be deemed to be and remain the exclusive property of GGLLC (or GGLLC Party or GGLLC Licensor, as appropriate), and no ownership rights of any kind in and to any of GGLLC’s Confidential Information are transferred hereby, hereunder or in connection herewith to User, any User Party or any third party. User acknowledges that User does not acquire any such ownership rights by accessing and utilizing copyrighted material or otherwise using the Sites, or any of them. All rights are reserved.
(g) Exceptions to Confidentiality. The foregoing obligations of confidentiality shall not apply to any Confidential Information, which: (i) is or becomes available to the public through no act or omission of User, any User Party or any party in violation of the terms and conditions of this Section 13; (ii) was already known by User at the time of the disclosure by GGLLC, as evidenced by User’s written records existing prior to the date of GGLLC’s disclosure; (iii) is lawfully obtained from a person or entity other than GGLLC or User without any obligation of confidentiality; (iv) is approved for release by GGLLC’s written authorization, but only to the extent of such authorization and subject to the further requirements set forth in Sections 13(c) and 13(d), above; (v) is required by law or regulation to be disclosed to any person, but only: (A) to the extent and for the purposes of such required disclosure and (B) after first giving GGLLC reasonable notice of such required disclosure and reasonable opportunity to contest such required disclosure; (vi) is disclosed in response to a valid order of a court or other governmental body or any political subdivisions thereof, but only to the extent of and for the purposes of such order, and only if User first promptly notifies GGLLC of the order and permits GGLLC to seek an appropriate protective order; or (vii) is developed independently for User by personnel not having access to any of GGLLC’s Confidential Information.
(h) Reverse Engineering / Independent Development. Notwithstanding any other provision of this Section 13 or these Terms, User shall not (and User shall not use any third party to), and User shall cause each User Party not to (and not to use any third party to) reverse engineer, decompile, disassemble, or otherwise attempt to discern the design, structure, internal workings, or other technology incorporated in any of GGLLC’s Confidential Information.
(i) Restrictive Covenant. In consideration of any of GGLLC’s Confidential Information, which User will receive or have access to, in connection with the Sites, Giveaways and GGLLC Items, User shall not, and shall cause each User Party not to use or utilize any of GGLLC’s Confidential Information to: (a) directly or indirectly sell to, solicit or divert, or attempt to sell to, solicit or divert any customer, client or business affiliate of GGLLC for the purpose of or with the result of (I) competing with GGLLC with respect to the Sites, Giveaways, Materials or any of them, (II) altering, modifying, diverting or precluding the development of any GGLLC business relationship involving the Sites, Giveaways, Materials, or any of them, or (III) otherwise interfering with business transacted with GGLLC with respect to the Sites, Giveaways, Materials, or any of them; or (b) directly or indirectly solicit or attempt to solicit, encourage, induce or entice GGLLC’s employees, contractors, suppliers or consultants to terminate or modify their employment, engagement or business relationship with GGLLC with respect to the Sites, Giveaways, Materials, or any of them.
(j) Obligation to Notify and Assist. User agrees to immediately notify GGLLC of any unauthorized use or disclosure of any of GGLLC’s Confidential Information related to User’s possession of such Confidential Information or any other breach of this Section 13 and these Terms, and User agrees to cooperate in every reasonable way to help GGLLC regain possession of any misused or mis-disclosed Confidential Information of GGLLC and prevent (or limit to the extent possible) its further unauthorized use or disclosure.
(k) No Warranty. All of GGLLC’s Confidential Information is provided “as-is, where-is”. GGLLC makes no warranty, express or implied, regarding the timeliness, accuracy, performance or completeness of any of GGLLC’s Confidential Information, except to the extent GGLLC actually knows of or actually discovers any inaccuracies, errors or omissions in such information, in which event GGLLC hereby warrants that it will promptly either correct or complete such information or report comprehensively and fully all inaccuracies, errors and omissions in such information.
- Non-Disparagement. User shall not at any time, directly or indirectly through third parties, actively or passively, disparage, question, criticize or otherwise make reference to any of the Sites or Giveaways, or to GGLLC or any GGLLC Party, or to any actions or failures to act of GGLLC or any GGLLC Party, or cause others to do so, if the effect of such action(s) reasonably could be anticipated to result in any harm to or adverse impact upon the reputation, business, interests or relations of GGLLC or any GGLLC Party, or to the morale among the work force of GGLLC or any GGLLC Party.
- Injunctive Relief. User recognizes and agrees that a breach of any or all of the provisions of Sections 4, 13 and 14, above, will constitute immediate and irreparable harm to GGLLC’s valuable business relations, for which damages cannot be readily calculated and for which damages and other remedies at law constitute an inadequate remedy. In the event User or any User Party attempts or threatens to violate its obligations under such Sections 4, 13 and 14, above, GGLLC shall have, in addition to any other remedies available to it, the right to injunctive relief enjoining any further breaches of such Sections 4, 13 and 14.
- Warranty Disclaimers. THE SITES AND THE GIVEAWAYS ARE PROVIDED AS IS, WHERE IS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. USER ACCEPTS, USES AND UTILIZES THE SAME AT USER’S OWN KNOWING AND VOLUNTARY RISK, AND THESE TERMS PROVIDE NO SUCH WARRANTIES. TO THE EXTENT PERMITTED BY LAW, GGLLC HEREBY EXPRESSLY DISAVOWS, AND USER HEREBY WAIVES AND DISCLAIMS, ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTIES, CONDITIONS, GUARANTEES OR REPRESENTATIONS, WHETHER ORAL, IN WRITING OR IN ELECTRIC FORM, EXPRESS OR IMPLIED. AMONG OTHER THINGS, NEITHER GGLLC NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSEES, EMPLOYEES, OFFICERS, DIRECTORS, ASSIGNEES, OR AGENTS WARRANT THAT THE SITES OR THE INFORMATION PROVIDED VIA THE SITES WILL BE UNINTERRUPTED OR ERROR FREE, FULLY FUNCTIONAL, UP TO DATE, SATISFACTORY TO USER OR SUITABLE FOR USER’S PURPOSES.
- Limitation of Liability. GGLLC SHALL HAVE NO LIABILITY FOR UNAUTHORIZED THIRD-PARTY ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, ANY INFORMATION CONTAINED AT THE SITES, OR ANY OF THEM, THROUGH ACCIDENT OR THROUGH FRAUDULENT OR WRONGFUL MEANS OR DEVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL GGLLC, ANY GGLLC PARTY OR ANY OF GGLLC’S SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS OR LICENSEES, BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING IN ANY WAY FROM ANY CONTENT OR MATERIALS PROVIDED ON, AT OR THROUGH THE SITES, OR ANY OF THEM, OR THE USE OF THE INFORMATION OR THE RESULTS OF THE USE OF THE INFORMATION PROVIDED ON, AT OR THROUGH THE SITES, OR ANY OF THEM, EVEN IF EACH IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN THE EVENT OF GGLLC’S RECKLESS OR INTENTIONALLY WRONGFUL CONDUCT, GGLLC’S LIABILITY SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE RESPONSIBILITY TO CORRECT THE SITES OR ANY MATERIALLY DEFECTIVE CONTENT OR MATERIALS AT GGLLC’S EXPENSE. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
- Jurisdictional Limitations. NOTE THAT SOME JURISDICTIONS EITHER DO NOT ALLOW OR OTHERWISE LIMIT THE PERMISSIBLE SCOPE OF DISCLAIMERS AND LIMITATIONS SUCH AS THOSE APPEARING IN THE TWO PRECEDING SECTIONS. ACCORDINGLY, SOME OF THE LIMITATIONS AND DISCLAIMERS APPEARING THEREIN MAY NOT APPLY TO YOU. IF USER IS A CALIFORNIA RESIDENT, OR IF ANY GIVEAWAY PRIZES OR PROMOTIONAL ITEMS ARE TO BE DELIVERED TO CALIFORNIA, THEN BY AGREEING TO THESE TERMS, USER IS WAIVING CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES THAT “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT ANY TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR”. THE LIMITATIONS OF LIABILITY IN THESE TERMS SHALL BE CONSIDERED INAPPLICABLE ONLY TO THE EXTENT SUCH LIABILITY CANNOT BE SO LIMITED OR EXCLUDED BY APPLICABLE LAW. IN JURISDICTIONS WHERE ANY SUCH LIMITATIONS ARE PROHIBITED, THOSE THAT ARE NOT PROHIBITED SHALL REMAIN IN FULL FORCE AND EFFECT, AND THE MAXIMUM DAMAGES AND TOTAL AGGREGATE LIABILITY OF GGLLC SHALL NOT EXCEED THE STATUTORY LIMIT.
- Force Majeure. GGLLC shall not be liable or responsible in any way for any failure or delay in performance or delivery, or for any damage to User, caused by or attributable to, in whole or in part, any factor beyond GGLLC’s control, including without limitation strikes, riots, wars, fires, acts of God, acts of compliance with any law or regulation, acts or omissions of third parties for which GGLLC is not legally responsible, and/or any other factor that could be characterized as a force majeure event.
- Indemnification. User agrees to indemnify, defend, and hold harmless GGLLC, and each of the GGLLC Parties, and defend any action brought against the same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorney’s fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of User’s representations, warranties, or agreements hereunder; (ii) arises out of User’s negligence, willful misconduct, or other breach of these Terms or the rules, terms and conditions of any Giveaway; and/or (iii) arises out of, relates to, is caused by or is attributable to User’s access to, review and consideration of, participation and entry into any Giveaway, except to the extent arising out of GGLLC’s gross negligence, willful misconduct, or material breach of these Terms.
- Governing Law. THESE TERMS, AND THE RIGHTS AND OBLIGATIONS HEREUNDER, SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF ARIZONA, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
- 22. Dispute Resolution. To the extent that User and GGLLC are unable to resolve any disputes or controversies (each, a “Dispute”) arising out of or relating to these Terms, or the performance, breach, validity, interpretation or enforcement of these Terms, all such Disputes will be submitted to a mediator located in Maricopa County, Arizona prior to any arbitration or other action. The mediator’s fees and expenses shall be shared equally by User and GGLLC, who agree to exercise their best efforts in good faith to resolve all disputes in mediation. Mediation begins on the date one party sends written notice to the other requesting mediation and presenting in the notice the matter to be mediated. Mediation shall conclude when both parties sign an agreement that resolves the subject of the mediation. If no agreement is reached within sixty (60) calendar days after the date of the original written notice, the mediation is considered unsuccessful. In the event any Dispute cannot be settled by User and GGLLC informally or through mediation, the matter in controversy or dispute shall be resolved by binding confidential private arbitration before a mutually agreeable arbitrator in Maricopa County, Arizona. In the event the parties cannot agree on an arbitrator, the presiding judge of the Superior Court of Maricopa County, Arizona, shall decide who the arbitrator shall be. The decision of the arbitrator will be final and binding on the parties to such proceeding. In any arbitration or other proceeding related to a Dispute, the prevailing party shall be entitled to reimbursement of such party’s reasonable costs and attorney’s fees. Otherwise, the arbitrator shall have the discretion to enter any award permissible under applicable law, and such award shall be enforceable exclusively in a state or federal court of competent jurisdiction in Maricopa County, Arizona.
- Entire Agreement. These Terms, together with the rules, terms and conditions of any Giveaway in which User participates and into which User enters to which User is bound, contain the entire understanding and agreement between GGLLC and User with respect to the subject matter hereof and supersedes all prior agreements and understandings, express or implied, oral or written, among such parties with respect to the subject matter hereof. There are no promises, terms, conditions, or obligations between User and GGLLC other than those contained (t)herein.
- Notices. Notices to GGLLC provided in connection with these Terms shall be sent via verifiable e-mail to [email protected]. Notices to User provided in connection with these Terms shall be sent via verifiable e-mail to User’s e-mail address most recently listed by User with User’s profile data. GGLLC and User may provide for alternative notice by providing notice as set forth in this Section 24.
- Number and Gender; Captions. Whenever herein the singular number is used, the same shall include the plural where appropriate, and words of any gender shall include each other gender where appropriate. The captions, headings and arrangements used in these Terms are for convenience only and do not in any way affect, limit or amplify the provisions hereof.
- Invalid Provisions. If any provision of these Terms, or of the rules, terms or conditions of any Giveaway, is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, such provision shall be fully severable; these Terms and the rules, terms and conditions of each Giveaway shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part (t)hereof; and the remaining provisions of these Terms and the rules, terms and conditions of each Giveaway shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or its severance from these Terms or the rules, terms and conditions of each Giveaway, as applicable. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part hereof a provision as similar in terms, but in any event no more restrictive than, such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
- No Waiver. Failure on the part of GGLLC to complain of any act or failure to act of another party or to declare another party in default, irrespective of how long such failure continues, shall not constitute a waiver by GGLLC of its rights hereunder. Any waiver by GGLLC of any default of another party shall not affect or impair any right arising from any other or subsequent default. Nothing herein shall limit GGLLC’s remedies and rights under and pursuant to these Terms.
- Survival. The requirements of Sections 13 through 22 of these Terms shall survive any cancellation or termination of User’s account at and access to the Site and Giveaways.
I HAVE READ THESE TERMS, FULLY UNDERSTAND ALL PROVISIONS HEREIN, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY AGREEING TO THESE TERMS, AND ACCEPT AND AGREE TO BE BOUND BY THESE TERMS FREELY AND VOLUNTARILY. I ACKNOWLEDGE THAT I HAVE RECEIVED VALUABLE CONSIDERATION IN RELATION TO MY ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY THESE TERMS, WHICH I UNDERSTAND TO BE A PREREQUISITE TO MY ABILITY TO USE THE SITES AND TO ACCESS, CONSIDER, REVIEW, PARTICIPATE IN AND ENTER INTO ANY GIVEAWAYS MADE AVAILABLE THORUGH THE SITES. FINALLY, I UNDERSTAND THAT THESE TERMS SHALL BE OF FULL FORCE AND EFFECT AS TO ANY AND ALL SUCH GIVEAWAYS, WITHOUT REGARD TO THE DATE OR TIMING OF ACCESS OR ENTRY. I CERTIFY THAT I AM AT LEAST 18 YEARS OF AGE AND OF SOUND MIND AND FULL CAPACITY TO ENTER INTO AND BE BOUND BY THESE TERMS.