TERMS AND CONDITIONS OF USE
PLEASE READ MERCURY STUDIO, LLC’S TERMS OF USE (“Terms of Use”) CAREFULLY. MERCURY STUDIO, LLC (“Mercury Studio”) offers a software application (the “Service”) that helps third-party promotion sponsors (individually and collectively “Sponsors”) publish their promotions (namely, sweepstakes promotions and contests) (individually and collectively “Promotions”) online. In the case of some promotions, the Service is operated on the Sponsor’s website. The Service may also provide an online entry form through which promotion entrants (“Entrants”) can submit entries for sponsor promotions. By using the service, you agree to be bound by these Terms of Use. If you do not accept these Terms and Conditions, then do not use the Service. You further acknowledge and agree that your use of the Service is also subject to the Terms and Conditions posted on Mercury Studio’s website(s), as such Terms and Conditions may change from time to time at Mercury Studio’s sole discretion. You agree to comply in all respects with these Terms of Use and any Terms and Conditions set forth on Mercury Studio’s website(s).
These Terms of Use include terms applicable to both: (1) actual and prospective Entrants; and (2) actual and prospective Sponsors. These Terms of Use include, and incorporate by reference, the agreements, policies and guidelines referenced below.
Mercury Studio reserves the right to change or revise these Terms of Use at any time by posting any changes or revised Terms of Use on its website, www.roigravy.com (the “Mercury Studio Site”) at any time and in its sole discretion. Notice will be provided by posting such changes on the Mercury Studio Site and updating the “Date of Last Revision,” and such changes will apply to any use of the Service made after the changes are posted to the Mercury Studio Site. You also expressly waive any right you may have to individual notice of such changes to the Terms of Use. Therefore, you should review these Terms of Use prior to each use of the Service so you will understand the current, applicable terms. If you do not agree to the amended terms, you must stop using the Service.
I. TERMS AND CONDITIONS APPLICABLE TO ALL USERS OF THE SERVICE
A. Mercury Studio does not actively monitor the use of the Service or Sponsor Promotions. Similarly, Mercury Studio does not exercise editorial control or review over the content or nature of any Promotion or of any website, e-mail transmission, newsgroup, or other material created or accessible over or through the Promotions. If at any time Mercury Studio chooses, in its sole discretion, to monitor a Promotion, Mercury Studio nonetheless assumes no responsibility for its content, no obligation to modify or remove any inappropriate content or Promotion, and no responsibility for the conduct of any third party entering or conducting a Promotion. Mercury Studio intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms of Use or other terms, conditions, policies, or guidelines on the Mercury Studio Site or of any applicable laws, rules, or regulations. By using the Service, you release Mercury Studio from any and all liability stemming from such cooperation with local, state, federal and relevant country law enforcement officials. You acknowledge that Mercury Studio reserves the right to change its terms, conditions, policies, or guidelines at any time, in its sole discretion. (Notice will be provided by posting such changes on the Mercury Studio Site and updating the “Date of Last Revision” for relevant terms, policies, and/or guidelines, and such changes will apply to any use of the Mercury Studio Site or Service made after the changes are posted to the Mercury Studio Site. You also expressly waive any right you may have to individual notice of such changes.) Mercury Studio may take any one or more of the following actions, or other actions not listed, at Mercury Studio's sole discretion in response to violations of these Terms of Use or any other terms, conditions, policies, or guidelines on the Mercury Studio Site or associated with the Service: (i) issue warnings, which may be written and/or verbal; (ii) suspend or terminate a Promotion and/or your use of the Service, to the extent possible; or (iii) bring legal action to enjoin violations and/or to collect damages, if any, caused by violations.
B. Mercury Studio may, from time to time, need to interrupt the Service for maintenance and other operational reasons, as determined in its sole discretion, and you shall not receive any compensation or refund for such interruptions, and you hereby release and agree to defend, indemnify, and hold harmless Mercury Studio and its parent companies, affiliates, and subsidiaries and their respective officers, directors, employees, consultants, agents, representatives, professional advisors, and contractors from and against any and all claims, costs (including without limitation attorneys’ fees), injuries, losses, or damages arising in connection with such interruptions.
C. Because of situations beyond the control of Mercury Studio, Mercury Studio cannot guarantee that the Service will be available to you or that the Service will function properly. Mercury Studio does not guarantee the safety or integrity of any system connected to its network. This includes, but is not limited to, virus and/or trojan software infestation of said machine(s), hacker activity and exposure of confidential data. By using the Service, you acknowledge that you are solely responsible for the safety of your hardware, software, and data for the duration of your use of the Service. You also accept all liability for any of your actions while using the Service. This includes, but is not limited to, sending of unsolicited email.
You further expressly understand and agree that your use of the service is at your sole risk. The service is provided on an “as is” and “as available” basis. You expressly understand that Mercury Studio makes no representations that individuals using its service are whom they purport to be or that sponsors’ promotions will be conducted in conformance with applicable laws, rules, or regulations. Mercury Studio has no control over and accepts no responsibility for any promotions or actions of any third party, including without limitation any promotion sponsors. You assume full responsibility and risk for use of the service and the internet and are solely responsible for evaluating the accuracy and completeness of information you receive through the service or any promotion.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, EXCEPT AS REQUIRED BY APPLICABLE LAW, MERCURY STUDIO SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH THE SERVICE.
D. The Service may provide, or third parties may provide, links to other websites or resources, including without limitation to Sponsor websites or social networking websites. Because Mercury Studio has no control over such sites and resources, you acknowledge and agree that Mercury Studio is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Promotion, content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Mercury Studio and its parent companies, affiliates, and subsidiaries and their respective officers, directors, employees, consultants, agents, representatives, professional advisors, and contractors shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Promotion, content, goods or services available on or through any such site or resource. When you leave the Sponsor website and/or navigate to a website which does not operate the Service, these Terms of Use and policies no longer govern. Please review the privacy policy of any third-party website that you have linked to from either the Mercury Studio Site and a Sponsor website before you use such third-party website.
E. You agree to not use the Service to: intentionally or unintentionally violate any applicable local, state, national or international law, rule or regulation; upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, inflammatory, hateful, or racially, ethnically or otherwise objectionable; impersonate any person or entity, including, but not limited to, a Mercury Studio employee, contractor, volunteer, official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity; upload, post, email, transmit or otherwise make available any content that you do not have a lawful, legal right to make available; make available any content that infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; make available any unsolicited or unauthorized advertising, promotional or any other form of solicitation, except in those areas that are expressly designated for such purpose; interfere or attempt to interfere with service to any user, host or network, including, without limitation, by means of submitting a virus to the Service, Mercury Studio Site, or Sponsor website, or overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Service, the Mercury Studio Site, or any other host or network such as a Sponsor website; access content or data not intended for you, or log onto a server or account that you are not authorized to access; attempt to probe, scan or test the vulnerability of the Service or any associated system or network, breach security or authentication measures without proper authorization, interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; attempt to modify, reverse engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human perceivable form any of the software provided by Mercury Studio or used by Mercury Studio in providing the Service; or use a personal account for high volume or commercial use (e.g., revenue generation, advertising, etc.).
F. If you are under 13, you are not permitted to use the Service and should not provide personal information either on the Mercury Studio Site or on a Sponsor website operating the Service. Neither Mercury Studios, the Sponsors, nor the Service are designed to collect personal information from those under 13 years of age, and Mercury Studios and the Sponsors do not intend to or knowingly collect such information while operating the Service.
G. If there is any dispute about or involving the Mercury Studio Site or Service, you agree that the dispute shall be governed by the laws of the State of Michigan, without regard to conflict of law provisions and you agree to exclusive personal jurisdiction and venue in the federal and state courts located in the State of Michigan. If, for whatever reason, a court of competent jurisdiction were to find any term or condition in these Terms of Use to be unenforceable, all other terms and conditions would remain unaffected and in full force and effect. No waiver of any breach of any provision of these Terms of Use shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. The Service is controlled and operated by Mercury Studio. These Terms of Use and any and all other online policies and agreements promulgated by Mercury Studio constitute the entire agreement between Mercury Studio and you with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein. The failure of Mercury Studio to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. If a court of competent jurisdiction determines that any provision of these Terms of Use is invalid, unlawful, void or unenforceable, that provision shall be modified or severed to the maximum extent permitted by law; however, any and all other provisions shall remain valid and be given full force and effect in a valid and enforceable manner to accomplish the purposes of these Terms of Use.
H. You acknowledge that any use of the Service is solely at your own risk. Sponsor, on behalf of itself and its respective parent companies, subsidiaries, affiliates, officers, directors, employees, agents, professional advisors, contractors, co-sponsors, prize providers, assigns, and successors (collectively “Sponsor Parties”), and/or Entrants, hereby unconditionally and forever releases, discharges and agrees to defend, indemnify and hold harmless Mercury Studio and its parent companies, subsidiaries, affiliates, officers, directors, employees, agents, professional advisors, and contractors, (collectively “Released Party”), from any and all claims, judgments, costs, damages, losses, expenses and liabilities (whether under contract, warranty, tort (including negligence (whether active, passive, or imputed, strict liability, product liability or any other theory) relating to any claim that any Sponsor, Sponsor Party, and/or any Entrant may now or later have concerning any death, personal injury, property damage, intellectual property infringement, right of privacy or publicity infringement, pecuniary or other loss, damage, cost or expense (collectively “Harm”) that may be suffered by Sponsor, any Sponsor Party, any Entrant, and/or any third party as a result of any Promotion, including without limitation any harm associated with any Promotion entry form (including without limitation collection, use, or misuse of personal information), or any advertising, marketing, and/or promotional materials for the promotion (including without limitation all online and e-mail advertising and marketing for any promotion), or delivery, misdelivery, acceptance, possession, use of or inability to use any prize, or violation by Sponsor, any Sponsor Party, and/or any Entrant of any laws, rules, or regulations associated with any Sponsor Promotion, even if such harm is caused solely by the recklessness, negligence or fault of one or more release parties (collectively “Released Claims”).
You understand and agree that this agreeing to use the Service will prevent Sponsor, Sponsor Parties, and/or Entrants from brining any action against any Released Party and from recovering any money damages or other relief from any Released Party in connection with any of the Released Claims.
II. TERMS AND CONDITIONS APPLICABLE TO PROSPECTIVE PROMOTION ENTRANTS OF PROMOTIONS USING MERCURY STUDIO’S SERVICE
A. Requests for Your Personal Information
Sponsors using the Service may ask you for certain personal information (name, address, gender, date of birth, etc.) when you fill out the entry form for that Sponsor’s Promotion. Providing this information is strictly optional. However, if you choose not to enter the information required by the Sponsor in its Promotion rules, then you may not be eligible to participate in the Promotion. Please see each Sponsor’s Promotion rules for entry requirements and other important details. You acknowledge and agree that Mercury Studio may use any information you provide in a Promotion entry form available through and/or using the Service, for the purpose of aggregate analysis of the performance of the Promotions conducted using the Service; to communicate with you (including without limitation by e-mail) about your use, misuse, and/or purchase of its products or services; to assist with legal proceedings if required by any court, law, regulator, and/or law enforcement agency; and, if you “opt-in,” to send you e-mails about Mercury Studio’s products or services, including for example, about other Promotions available through the Service; and as otherwise permitted in Mercury Studio’s Terms of Use and online policies.
B. Access to Your Personal Information
If you provide personal information when completing the entry form for a Promotion being run using the Service, both the Sponsor running the Promotion and Mercury Studio will be able to view that personal data. (Sponsors may provide your personal information to parties assisting with its Promotion (e.g., providers of prizes); so please review each Sponsor’s Promotion rules and privacy policy for details.) However, Mercury Studio is not responsible for such Sponsor’s use of that personal data, or any claims or damages that may arise from any such Sponsor’s distribution of such personal data to others (e.g., prize providers). You acknowledge and agree that Mercury Studio shall not be liable or responsible for any use of your personal data by any Sponsor running any Promotion or any other third party. Please see each Sponsor’s Promotion rules and privacy policy for details on how that Sponsor handles your personal information, including without limitation, information you enter in any Promotion entry form.
C. Promotion Terms and Conditions
Each Sponsor running a Promotion using the Service is responsible for providing its own Promotion rules, terms, and conditions, and ensuring such Promotion complies with applicable laws, rules, and regulations. A link to the rules and terms and conditions for each Promotion may be provided in the Promotion entry form. If required by the Sponsor, you will be required to agree to these rules and terms and conditions before you can enter each Promotion. It is important that you review those rules, terms, and conditions carefully before consenting to them. You acknowledge that Mercury Studio shall not be responsible or liable for any Sponsor’s or other third party’s compliance or non-compliance with such rules, terms, and conditions or with applicable laws, rules, or regulations. All such matters are solely between you and the Sponsor offering the applicable Promotion.
III. FOR SPONSORS RUNNING PROMOTIONS USING THE MERCURY STUDIO SERVICE
A. Entrant’s Personal Information
Mercury Studio acknowledges that you will receive information provided to you by each Entrant, as agreed upon by you and Mercury Studio. You acknowledge and agree that Mercury Studio has the option (in its sole discretion) to use such information, royalty-free, for the purpose of conducting aggregated analysis of the performance of the Promotions conducted using the Service; to communicate with Entrants (including without limitation by e-mail) about their use, misuse, and/or purchase of Mercury Studio's products or services; to assist with legal proceedings if required by any court, law, regulator, and/or law enforcement agency; and as otherwise permitted in Mercury Studio’s Terms of Use and online policies. Mercury Studio will not otherwise communicate with users of white-label applications that are using the Service to run Promotions.
B. Compliance with Laws and Regulations
You acknowledge and agree that Mercury Studio’s Service merely helps Sponsors publish their Promotions and that the Service provides no safeguards that ensure that you operate your Promotion properly or legally. You hereby represent, warrant, and covenant that you will comply with all applicable laws, rules, and regulations in the creation, operation and completion of your Promotion(s), including without limitation in connection with all advertising and marketing associated with your Promotion(s). You further represent, warrant, and covenant that you will comply with all statements and promises made to Entrants, except to the extent such statements and promises violate applicable laws, rules, or regulations. You agree to indemnify, defend and hold harmless Mercury Studio and its parent companies, affiliates, and subsidiaries and their respective officers, directors, employees, consultants, agents, representatives, professional advisors, and contractors from any and all third-party claims, losses, liability, damages and/or costs (including attorneys’ fees and costs) arising from your use of the Service, your violation of these Terms of Use or any other agreement between you and Mercury Studio, your actual or alleged violation of any law, rule, or regulation associated with your Promotion(s), and/or infringement by any Entrants in your Promotion(s), of any intellectual property or other right of any person or entity. Mercury Studio will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage or cost. These Terms of Use will inure to the benefit of Mercury Studio’s successors, assigns and licensees.
C. Creation and Ownership of Proprietary Rights
Sponsor expressly understands, acknowledges, and consents that any patent, copyright, mask work, trademark, trade dress, trade secret, or other intellectual property or proprietary right (collectively “Proprietary Right”) which Mercury Studio possesses in using or operating the Service is owned exclusively by Mercury Studio. Any Proprietary Right which Mercury Studio develops and/or implements for use with the Service in running a Sponsor Promotion is owned solely by Mercury Studio. In addition, in exchange for using the Service, the Sponsor and Sponsor Parties expressly waive any claim of ownership to any proprietary right, or information which results in a proprietary right, for any idea, concept, or invention provided and/or created by the Sponsor and/or Sponsor Parties in operating or implementing the Service. As such, the Sponsor and Sponsor Parties covenants to execute any necessary documents, including but not limited to, any patent assignments, in order to provide Mercury Studio with full ownership and control over any and all Proprietary Right involved in the development of the Service.
D. Warrantees
Sponsor represents and warrants that Sponsor: (a) has all necessary rights and authority to agree to and be bound by these Terms of Use in valuable consideration for using the Service to run Promotions, and that by doing so shall not constitute a breach of any agreement to which Sponsor is or may be bound; (b) will comply with all applicable laws, rules, and regulations in performing its obligations in offering its Promotion(s); and (c) will clearly and conspicuously disclose the following to all Entrants before Entrants participate in any Sponsor Promotion (including without limitation before Entrants complete a Promotion entry form): (i) Sponsor’s privacy policy and these Terms of Use, and (ii) that Mercury Studio, as provider of the Service, will receive personal information from Entrants when they use the Service, and may use such information as specified in these Terms of Use and other online policies.