Last Updated: November 14, 2011
Mahoot, Inc. (“Mahoot,” “we” or “us”) provides this website (in these terms we call this site and any successor websites, and any software provided by Mahoot for use with the site, the “Site”) to you subject to these terms and conditions of use (“Terms” or “Agreement”). Please read these Terms carefully before using the Site. By accessing, using, or by merely browsing the Site you agree to be legally bound by these Terms and all terms, policies and guidelines incorporated by reference in these Terms. If you do not agree with these Terms in their entirety, you may not use the Site. In these Terms, our customers and any person to whom customers give access to their Mahoot account are called “Subscribers.” Mahoot customers offering promotions via the Site are called “Sponsors” and individuals who participate in promotions via the Site are called “Entrants.” In these Terms users of the Site, whether they are Subscribers, Sponsors, Entrants, people who post comments on the Mahoot blog, or casual browsers of the Site, are called “Users.” This Site is not intended to be used by children. Users must be at least thirteen (13) years of age to use this Site. Subscribers and Sponsors must be at least eighteen (18) years of age to create a Mahoot account. Mahoot reserves the right to change or modify any of the terms and conditions contained in these Terms, or any policy or guideline of the Site, at any time and in its sole discretion. If we do so, we will notify you at the email address you provide in your registration information or by other means identified in these Terms. If you do not agree with the changes, you can cancel your account with us without further obligation, except any amount due if applicable. Unless otherwise specified, any changes or modifications will be effective immediately upon posting of the revisions on the Site, and your continued use of the Site after such time will constitute your acceptance of such changes or modifications. You should from time to time review the Terms and any policies and documents incorporated in them to understand the terms and conditions that apply to your use of the Site. The Terms will always show the ‘last updated’ date at the top. If you do not agree to any amended Terms, you must stop using the Site. If you have any questions about the Terms, please email us at customersupport@Mahoot.com
2. REGISTRATION DATA; ACCOUNT SECURITY
If you register for an account on the Site, you agree to (a) provide accurate, current and complete information as may be prompted by any registration forms on the Site (“Registration Data”); (b) maintain the security of your password; (c) maintain and promptly update the Registration Data, and any other information you provide to Mahoot , and to keep Registration Data accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information you provide to Mahoot . You are responsible for all activity on your Mahoot account, and for all charges incurred by your Mahoot account.
3. OWNERSHIP, COPYRIGHT AND TRADEMARKS
In these Terms the content on the Site, including all information, data, logos, marks, designs, graphics, pictures, sound files, other files, and their selection and arrangement, is called “Content.” Content provided by Users is called “User Content.” User Content remains the property of the User. Mahoot’s rights to User Content are limited to the limited licenses granted in Section 4 and Section 15 of these Terms. Other than User Content, the Site, all Content and all software available on the Site or used to create and operate the Site is the property of Mahoot or its licensors, and is protected by United States and international copyright and intellectual property laws, and all rights to the Site, the Content and software are expressly reserved. All trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Mahoot. Mahoot collects certain information and data during the normal operation of the Site. The information and data collected through the operation of the Site is the property of Mahoot unless Mahoot has agreed to collect information and data on behalf of a Subscriber. Any agreement by Mahoot to collect information and data on behalf of a Subscriber must be memorialized in a Master Services Agreement. In the event of conflict or inconsistency between any of the provisions of this Agreement and the Master Services Agreement, the Master Services Agreement shall be given precedence. Your User Content is your responsibility. We have no responsibility or liability for it, or for any loss or damage your User Content may cause to you or other people. Although we have no obligation to do so, we have the absolute discretion to remove any User Content posted or stored on the Site, and we may do this at any time and for any reason. You are solely responsible for maintaining copies of and replacing any User Content you post or store on the Site.
4. LIMITED LICENSE OF YOUR USER CONTENT TO MAHOOT
We do not claim any ownership interest in your User Content, but we do need the right to use your User Content to the extent necessary to operate the Site, and provide the services provided by the Site, now and in the future. For example, if a Subscriber requests that we collect certain information or data on its behalf, we require your permission and license to use the information or data in the operation of the Site. Also, if you post an image utilizing the promotion builder application, we need your license to display that User Content on the Site. Therefore, by posting or distributing User Content, or permitting the collection of information or data by Mahoot , you (a) grant Mahoot and its affiliates and subsidiaries a non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such User Content on the Site, in the manner in and for the purposes for which the Site uses such User Content; (b) represent and warrant that (i) you own and control all of the rights to the User Content, information and data that you post and permit us to collect, or you otherwise have the lawful right to collect, post and distribute that User Content, information and data to or through the Site; and (ii) the use and posting or other transmission of such User Content does not violate these Terms and will not violate any rights of or cause injury to any person or entity. If your User Content is intended for the use of other Users or third-parties, you also grant us and our affiliates and subsidiaries a non-exclusive, royalty-free, transferable right to sublicense such User Content to such Users or third-parties for their use in connection with their use of the Site, as described in this Section. These licenses from you are non-exclusive because you have the right to use your User Content elsewhere. They are royalty-free because we are not required to pay you for the use of your User Content on the Site. And they are transferable because we need the right to transfer these licenses to any successor operator of the Site. Our rights to “modify, adapt, translate, and create derivative works from” are necessary because the normal operation of the Site does this to your User Content when it processes it for use in the Site.
5. OUR LIMITED LICENSE OF CONTENT TO YOU
Mahoot grants you a limited, revocable, non-exclusive, license to access the Site and to view, copy and print the portions of the Content available to you on the Site. Such license is subject to these Terms, and specifically conditioned upon the following: (i) you may only view, copy and print such portions of the Content for your own use; (ii) you may not modify or otherwise make derivative works of the Site or the Content, or reproduce, distribute or display the Site or any Content (except for page caching) except as expressly permitted in these Terms; (iii) you may not remove or modify any copyright, trademark, or other proprietary notices that have been placed in the Content; (iv) you may not use any data mining, robots or similar data gathering or extraction methods; and (v) you may not use the Site or the Content other than for its intended purpose. Except as expressly permitted above, any use of any portion of the Content without the prior written permission of its owner is strictly prohibited and will terminate the license granted in this Section, this Agreement and your account with us. Any such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws. Unless explicitly stated herein, nothing in these Terms may be construed as conferring any license to intellectual property rights, whether by estoppels, implication or otherwise. The license in this Section is revocable by Mahoot at any time. You represent and warrant that your use of the Site and the Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or violate any applicable law. To request permission for uses of Content not included in this license, you may contact Mahoot at the address identified at the bottom of these Terms.
6. INFRINGEMENT CLAIMS; REPEAT INFRINGERS
Mahoot will process and investigate proper notices of alleged copyright or other intellectual property infringement related to material on its websites or servers and will respond appropriately, following the guidelines of the Online Copyright Infringement Liability Limitation Act and other applicable intellectual property laws. Where appropriate, and regardless of the merits of the alleged infringement, our response may include removing or disabling access to material claimed to be the subject of infringing activity. If we remove or disable access in response to such a notice, we may notify the owner or administrator of the affected site or content so that he or she can make a counter notification. Mahoot will, following appropriate investigation, terminate or disable access by repeat infringers. Claims of alleged copyright or other intellectual property infringement must be in writing and directed to Mahoot’s designated agent. Mahoot's Designate agent may be contacted at: Infringement Claim Designated Agent Mahoot, Inc. 1754 Technology Dr # 226 San Jose, CA 95110-1319, att: Dave Stevens.
Misrepresentations made in your notice regarding whether material or activity is infringing may expose you to liability for damages (including costs and attorneys' fees). Accordingly, if you are not sure whether material available online infringes your copyright, we suggest that you first contact an attorney.
7. USE OF INTERACTIVE AREAS AND THE SITE
The Site may contain interactive areas including interactive advertising and promotion areas, discussion forums, bulletin boards, review services or other forums in which you or third-parties may post content, messages, reviews or other materials on the Site (“Interactive Areas”). You are solely responsible for your use of such Interactive Areas and use them at your own risk. User Content submitted to any public area of the Site will be considered non-confidential. By using any Interactive Areas, you expressly agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Site any of the following: 1. Any message, data, information, text, music, sound, photos, graphics, code or other material that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable; 2. Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law; 3. Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; 4. Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity; 5. Unsolicited promotions, political campaigning, advertising or solicitations; 6. Private information of any third-party, including, without limitation, addresses, phone numbers, email addresses and credit card numbers, unless that third-party has expressly consented to such use; 7. Viruses, corrupted data or other harmful, disruptive or destructive files; 8. Promotion entries or Content that we know or suspect are fraudulent or otherwise violate these Terms, or violate the rules and policies supplied by the promotion Sponsor; 9. Content that is unrelated to the topic of the Interactive Area(s) in which such Content is posted; or 10. Content that, in the sole judgment of Mahoot, is objectionable or which restricts or inhibits any other person from using or enjoying the Interactive Areas or the Site, or which may expose Mahoot or its affiliates or its users to any harm or liability of any type. Mahoot has a “zero-tolerance” policy towards SPAM: you may not use the Interactive Areas or the Site generally to send commercial or other messages to any third-party if those messages are not solicited, authorized or welcomed by the third-party, and in your use of the Site you must comply with all applicable laws, including laws that apply in any jurisdiction to SPAM and marketing practices, and with any applicable marketing association guidelines on ethical marketing practices. Any use of the Interactive Areas or other portions of the Site in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Interactive Areas and/or the Site.
8. PROVIDING A RELIABLE AND SECURE SERVICE
We take security seriously. We strive to maintain a reliable and secure environment for your data. However, no system is perfectly secure or reliable, the Internet is an inherently insecure medium, and the reliability of hosting services, Internet intermediaries, your Internet service provider, and other service providers cannot be assured. When you use the Site, you accept these risks, and the responsibility for choosing to use a technology that does not provide perfect security or reliability. In particular, Subscribers who choose to provide credit card information on this Site accept these risks to the security of that credit card information. Ultimately, credit card data is provided by Subscribers and Subscribers are responsible for its protection.
9. LINKS TO OTHER SITES
The Site contains links to third-party Web sites (“Third-Party Sites”) and third-party content (“Third-Party Content”) as a service to those interested in this information. Third-Party Sites include social network platforms, Subscriber and Sponsor sites, payment processors and other payment intermediaries that you may use in connection with your use of the Site. You use links to Third-Party Sites, and any Third-Party Content or service provided there at your own risk. Mahoot does not monitor or have any control over, and makes no claim or representation regarding, Third-Party Content or Third-Party Sites. Mahoot provides these links only as a convenience, and a link to a Third-Party Site or Third-Party Content does not imply Mahoot’s endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. Mahoot accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content, Third-Party Sites, or Web sites linking to the Site. When you leave the Site, our terms and policies are no longer applicable. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Site, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
10. PROMOTIONS AND MEDIA
11. WARRANTY DISCLAIMER
THE SITE, THE CONTENT AND THE SERVICES PROVIDED BY THE SITE ARE PROVIDED TO YOU ON AN “AS IS” BASIS WITHOUT WARRANTIES FROM MAHOOT OF ANY KIND, EITHER EXPRESS OR IMPLIED. MAHOOT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. MAHOOT DOES NOT REPRESENT OR WARRANT THAT CONTENT IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION AS TO THE ACCURACY OR PROPRIETARY CHARACTER OF THE SITE, THE CONTENT OR ANY PORTION THEREOF. While Mahoot attempts to make your access to and use of the Site safe, Mahoot does not represent or warrant that the Site or any Content are free of viruses or other harmful components.
12. LIMITATION OF LIABILITY; INDEMNITY
YOU WAIVE AND SHALL NOT ASSERT ANY CLAIMS OR ALLEGATIONS OF ANY NATURE WHATSOEVER AGAINST MAHOOT , ITS AFFILIATES OR SUBSIDIARIES, THEIR SPONSORS, CONTRACTORS, ADVERTISERS, VENDORS OR OTHER PARTNERS, ANY OF THEIR SUCCESSORS OR ASSIGNS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES (COLLECTIVELY, THE “RELEASED PARTIES”) ARISING OUT OF OR IN ANY WAY RELATING TO YOUR USE OF THE SITE OR THE CONTENT, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS OR ALLEGATIONS RELATING TO THE ALLEGED INFRINGEMENT OF PROPRIETARY RIGHTS, ALLEGED INACCURACY OF CONTENT, OR ALLEGATIONS THAT ANY RELEASED PARTY HAS OR SHOULD INDEMNIFY, DEFEND OR HOLD HARMLESS YOU OR ANY THIRD-PARTY FROM ANY CLAIM OR ALLEGATION ARISING FROM YOUR USE OR OTHER EXPLOITATION OF THE SITE. YOU USE THE SITE AT YOUR OWN RISK. Without limitation of the foregoing, neither Mahoot nor any other Released Party shall be liable for any direct, special, indirect or consequential damages, or any other damages of any kind, including but not limited to loss of use, loss of profits or loss of data, whether in an action in contract, tort (including but not limited to negligence) or otherwise, arising out of or in any way connected with the use of the Site or the Content, including without limitation any damages caused by or resulting from your reliance on the Site or other information obtained from Mahoot or any other Released Party or accessible via the Site, or that result from mistakes, errors, omissions, interruptions, deletion of files or email, defects, viruses, delays in operation or transmission or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction or unauthorized access to Mahoot or any other Released Party's records, programs or Services. In no event shall the aggregate liability of Mahoot, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of the Site exceed any compensation paid by you for access to or use of the Site during the three months prior to the date of any claim. Nothing in these Terms shall limit our liability in any claim for fraud or fraudulent misrepresentation. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Site, exploitation of any advertising or other materials distributed in connection therewith, or exploitation of the Site or any content or other material used or displayed through the Site and agree to limit your claims to claims for monetary damages within the limits identified in this Agreement. You shall defend, indemnify and hold harmless Mahoot and the other Released Parties from any loss, damages, liabilities, costs, expenses, claims and proceedings arising out of your use of the Site, and if you are a Subscriber or Sponsor, from your Agent(s)’ use of the Site and from the use of the Site by any person to whom you give access to your account (such as staff), including any User Content that infringes the rights of any third-party, including the intellectual property rights, of any third-party.
14. APPLICABLE LAW AND VENUE
PLEASE NOTE: This Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute. The Site is controlled by Mahoot, Inc. and operated from its offices in Redwood City, California. You and Mahoot both benefit from establishing a predictable legal environment in regard to the Site. Therefore, you and Mahoot explicitly agree that all disputes, claims or other matters arising from or relating to your use of the Site will be governed by the laws of the State of California and the federal laws applicable therein. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. Except where prohibited by applicable law, any claim, dispute or controversy arising out of or relating to these Terms; (b) the Site or Content; (c) oral or written statements, advertisements or promotions relating to these Terms or to the Site; or (d) the relationships that result from these Terms or the Site or Content (collectively, a “Claim”) will be referred to and determined by a sole arbitrator (to the exclusion of the courts). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (1) claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (2) claims that arose before this or any prior Agreement (including, but not limited to, claims relating to promotions or advertising); (3) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and (4) claims that may arise after the termination of this Agreement. You waive any right you may have to commence or participate in any class action against Mahoot related to any Claim and, where applicable, you also agree to opt out of any class proceedings against Mahoot. If you have a Claim, you should give written notice to arbitrate at the address specified in Section 18. If we have a Claim, we will give you notice to arbitrate at your address provided in your Registration Data. Arbitration will be conducted by one arbitrator pursuant to the rules of the American Arbitration Association in effect on the date of the notice in the city of San Francisco, California. To the extent arbitration as described in the immediately preceding paragraph is prohibited by applicable law, you agree that all Claims will be heard and resolved in a court of competent subject matter jurisdiction located in San Francisco, California. You consent to the personal jurisdiction of such courts over you, stipulate to the fairness and convenience of proceeding in such courts, and covenant not to assert any objection to proceeding in such courts. If you choose to access the Site from locations other than California, you will be responsible for compliance with all local laws of such other jurisdiction and you agree to indemnify Mahoot and the other Released Parties for your failure to comply with any such laws.
15. TERMINATION/MODIFICATION OF LICENSE AND SITE OFFERINGS
Notwithstanding any provision of these Terms, Mahoot reserves the right, without notice and in its sole discretion, without any notice or liability to you, to (a) terminate your license to use the Site, or any portion thereof; (b) block or prevent your future access to and use of all or any portion of the Site or Content; (c) change, suspend or discontinue any aspect of the Site or Content; and (d) impose limits on the Site or Content.
16. INACTIVE ACCOUNTS; TERMINATION OF AGREEMENT
You and Mahoot may terminate these Terms and your use of the Site at any time. If you terminate your use of the Site, and if applicable, you must pay the fees applicable for the balance of the then current billing period (if your billing period is monthly, we will prorate your account to the nearest month-end after termination). When your Mahoot account is terminated, your User Content will, shortly thereafter, not appear on the Site, except for User Content submitted to our blog, which may remain on the Site after termination. You acknowledge and agree that Mahoot has no obligation to migrate or provide assistance in migration of data from the Site. Notwithstanding the foregoing, Mahoot support may help Users with the transfer of any stored data upon request. After thirty (30) days from the date of termination, Mahoot takes no responsibility for stored data and reserves the right to delete all remaining data. If these Terms expire or terminate for any reason, Sections 3, 8, 11, 12, 14, 16 and 17, and any representation or warranty you make in these Terms, shall survive indefinitely.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. Mahoot may assign any or all of its rights hereunder to any party without your consent. You are not permitted to assign any of your rights or obligations hereunder without the prior written consent of Mahoot, and any such attempted assignment will be void and unenforceable. These Terms constitute the entire agreement between you and Mahoot regarding your use of the Site, and supersede all prior or contemporaneous communications whether electronic, oral or written between you and Mahoot regarding your use of the Site. The section titles in these Terms are for convenience only and have no legal or contractual effect. If a court of competent jurisdiction determines that any provision of these Terms 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.
19. QUESTIONS AND COMMENTS
If you have any questions regarding these Terms or your use of the Site, please contact us here:
Mahoot, Inc. 410 Sherman Ave Suite 200, Palo Alto, CA 94306. Email: firstname.lastname@example.org