This Agreement regarding Terms of Service (the “Agreement”) is entered into by Stephens Media Group (“SMG”) and the client identified in the Licensing Agreement which is governed hereby (the “Client” or “You”). SMG and Client agree as follows:
SMG provides software, Facebook enabled applications, websites and other online services (the “Platform”) to enable its business clients (“Organizers”) to operate sweepstakes, contests, promotions, websites, website plugins, Facebook page apps, surveys, polls, and other market data gathering activities, collectively called Promotions or Services. SMG applications and Services are designed to allow Organizers to engage end-users and gather personally identifiable information from end-users who choose to enter a particular Promotion together with anonymous data regarding the Promotion itself. This data is gathered and may be used by the Organizers for various marketing purposes.
By using the SMG Software and associated applications, or running any Promotions with them, you signify that you have read, understand and agree to be bound by these Terms of Service (“Terms of Service” or “Agreement”). These Terms of Service form a legally binding agreement between you and SMG in relation to your use of the Services. It is important that you take the time to read them carefully. However, if you are not of legal age to form a binding contract with us, or you are a person barred from receiving the Services under the laws of Canada, the United States or other countries including the country in which you are resident or from which you use the Services, then you may not use the Services and may not accept this Agreement. We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Service at any time without further notice. If we do this, we will post changes to these Terms of Service. Your continued use of the Software applications and/or the Services after any such changes constitutes your acceptance of the new Terms of Service. If you do not agree to abide by these or any future Terms of Service, please do not use or access the Website or the Services. It is your responsibility to regularly review these Terms of Service.
Third-Party Services and Sites.
Reporting and Revisions
Use of SMG Platform analytics and social reporting features could include technical, factual, typographical, or statistical errors. SMG does not warrant that any of the materials available on or generated by the Platform are accurate, complete, or current. SMG may revise and make changes to the Platform, data, or reporting features at any time without notice. SMG does not, however, make any commitment to update the Platform and associated content, which are delivered on an “as-is” and “as-available” basis.
As part of keeping the Platform technology updated and functional, SMG may perform Routine Maintenance and Urgent Maintenance (collectively “Maintenance”). SMG will need to perform routine enhancements, upgrades and maintenance (“Routine Maintenance”) of the Platform and/or Product(s) that will or is likely to result in the downtime of the Platform and/or Product(s), during which all or certain functions of the Platform and/or Product(s) will not be available. If SMG determines that immediate maintenance on the Platform and/or Product(s) is required (“Urgent Maintenance”), SMG can perform such Urgent Maintenance at any time and for any period of time (as determined by SMG). Subject to any uptime commitments expressed in your Licensing Agreement, SMG will not be liable to you for any reasonable inability to use the Platform.
You understand that you are personally responsible for your activity while on the site and for all content provided via your account, and agree to indemnify and hold SMG and its affiliates and their officers, directors, employees and agents harmless from and against any loss, damage, liability, cost or expense of any kind (including attorneys’ fees) that we may incur in connection with a third party claim or otherwise, in relation to your use of the software, application, site, the content you contribute or link to, or your access to the site, or your violation of either these terms or the rights of any third party.
To the maximum extent permitted by applicable law, in no event will SMG or its affiliates be liable to you (or any third party making claims through you) for any damages whatsoever, including but not limited to any direct, indirect, special, consequential, punitive or incidental damages, or damages for loss of use, profits, data or other intangibles, or the cost of procurement of substitute goods or site, unauthorized access to and tampering with your personal information or transmissions, arising out of or related to the use, inability to use, unauthorized use, performance or non-performance of the site or the site, even if SMG has been advised previously of the possibility of such damages and whether such damages arise in contract, negligence, tort, under statute, in equity, at law or otherwise.
Client represents and warrants that it (a) will be solely responsible for (i) the management and administration of the Product Content; (ii) obtaining the Product Content and Client Furnished Items and all rights necessary to use the Product Content and Client Furnished Items, (iii) assuring that the Product Content and Client Furnished Items fully comply with all applicable laws, rules and regulations; (b) will not (i) license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Services available to any unauthorized user, including but not limited to, by “mirroring” or “framing” any part of the Platform or Product(s), or by creating internet links to the Platform or Product(s) which include log-in information, user names, passwords, and/or secure cookies; (ii) modify or make derivative works based upon the Services or the Product Content other than for the purpose stated in the applicable Licensing Agreement(s); (iii) “frame” or “mirror” any Product Content on any other unauthorized server or wireless or Internet-based device; (iv) reverse engineer the Services; (v) access the Services in order to build a competitive product or service; (vi) access the Services if Client is SMG’s direct competitor, except with SMG prior written consent; (vii) access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; (viii) attempt to gain unauthorized access to the Platform or its related systems or networks; (ix) attempt to re-identify or unanonymize data that SMG provided in an anonymous format or (x) use the Platform for any purpose other than those expressly authorized under this Agreement; and (c) will not use the Services to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (v) collect highly sensitive personal information (such as passport numbers, religion, credit card numbers, bank account numbers or any other sensitive personal data as defined by applicable privacy laws; (vi) attempt to gain unauthorized access to the Services or its related systems or networks; or (vii) use the Services to engage in illegal activity, or cause immediate, material or ongoing harm to SMG or others.
If you violate any of the guidelines set forth above, or any other aspect of these terms, we reserve the right to suspend or terminate your rights to use the platform without giving you any notice. In the event that your access is terminated, you will immediately lose access to any information that may be on the system. You understand that SMG is not responsible for your inability to access any information on the platform for any reason, whether it be because of termination of your account; software, hardware, or internet problems or errors; or any other reason.
You understand that your use of the Platform or site (including any download from the site and any loss of data or other damage to your computer system you experience from using the site) is at your sole risk. You understand that the site and all information, products and other content (including third party information, products and content) included in or accessible from the site, are provided on an “as is” “where-is” and “where available” basis, and are subject to change at any time without notice to you. You acknowledge that SMG makes no warranty that the site will be uninterrupted, timely, secure or error-free. You understand that SMG does not warrant that the results obtained from your use of the site will meet your expectations. No warranty of any kind, whether oral or written, can modify the terms of the disclaimer set forth in this document. To the fullest extent permitted by law, SMG disclaims all representations, warranties and conditions of any kind (express, implied, statutory or otherwise, including but not limited to the warranties of merchantability and fitness for a particular purpose, title and non-infringement of proprietary rights) as to the site and all information, products and other content (including third party information, products and content) included in or accessible from the Platform, site, or associated services.
Collection and Use of Information
SMG may use your information in order to customize our Platform to your needs and enhance your overall experience at our applications. While SMG strives to protect the personal information of Client and end-users, SMG may release personal information if required by law or in the good-faith belief that such action is necessary or appropriate.
Law and Jurisdiction
This Agreement and the rights and obligations of SMG and you, including all non-contractual obligations arising under or in connection with this Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada, without regard to choice or conflicts of law rules. In the event of a dispute, claim or controversy arising out of or relating to this Agreement, you irrevocably consent to submit to the exclusive jurisdiction of the courts of the Province of Ontario for any claim, proceeding or action under the Terms of Service, except for any claim, proceeding or action by SMG for equitable relief.