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MERRY AUCTION, EVERYONE
TERMS AND CONDITIONS
Effective February 24, 2015
Access to the Merry Auction, Everyone Application or services from territories where the Application or services are illegal is strictly prohibited. Users are responsible for complying with all local rules, laws, and regulations regarding their use of the Application or services.
- DATA PROTECTION
Merry Auction, Everyone was created to allow users to easily organize and participate in races to raise money for a cause or for fun.
To be eligible to use Merry Auction, Everyone, you must: (1) be at least 18 (or between the ages of 13 and 17 and using the Application or services with parental or legal guardian consent and supervision); (2) be registered with us; and (3) not have been previously restricted, suspended or terminated by us.
Registration and Accounts
To register for Merry Auction, Everyone, you will be required to provide information when you sign up, including an email address to receive any notices required by law, in lieu of communication by postal mail, along with other messages.
You will need a user name and password to use certain features of the Application and services. By selecting a user name you agree that you will not select or use a name to impersonate another person, in violation of the intellectual property or other rights of any person; or that is considered inappropriate or offensive, at the discretion of Merry Auction, Everyone. You hereby expressly permit Merry Auction, Everyone to identify you by your user name. You are responsible for all activities (whether by you or by others) that occur under your password or account. Merry Auction, Everyone assumes no liability for any loss or damage arising from any unauthorized use of your password or account by a third party. Merry Auction, Everyone has the right to terminate any user names and accounts for any reason.
- GENERAL TERMS
Company does not accept responsibility whatsoever for the unavailability of the Application or services and any failure due to the Application or services being unavailable. Company will not be responsible for any support or maintenance for the Application.
In order to use the Application, you are required to have a compatible mobile telephone or handheld device, and internet access with the necessary minimum specifications. The version of the Application software may be upgraded from time to time to add support for new functions and services. You accept responsibility for any such charges from your mobile provider or any other third parties due to your use of the Application or services.
Third Party Links and Content
There may be links from the Application or services, or communications you receive from the Application or services, to third party web sites or applications. Also, our Application or services may include third party content that we do not control, maintain or endorse. We do not control these third party sites or applications, or any of the content contained therein and you expressly acknowledge and agree that we are in no way responsible or liable for any of those third party sites or applications, including their content or failures, and/or any damages, losses, failures or problems caused by, related to or arising from those third parties or their sites.
You represent and warrant that: (i) you have the legal right and capacity to enter into these Terms and Conditions in your jurisdiction and to comply with them; (ii) all information you provide to us is true, accurate, complete and current; and (iii) you hold and will continue to hold all rights necessary to enter into and perform your obligations under these Terms and Conditions.
Digital Millennium Copyright Act; Copyright Complaints
Merry Auction, Everyone respects the intellectual property rights of others and requires all users to do the same, and at its sole discretion will remove or modify any information provided through the Application or services that may infringe on the intellectual property rights of others. If you believe that your work has been used on the Application or services in any manner that constitutes copyright infringement, please contact us by written notice.
Conditions of Use of Application
As a condition of your use of the Application or services, you promise to: (i) Use the Application and services in compliance with all laws, regulations, ordinances, directives, court orders and these Terms and Conditions applicable to your use of the Application or services; (ii) Use the Application and services so as not to damage, disable, overburden or impair the Application or services, our networks or systems or not to interfere with any others’ legal rights or use or enjoyment of the Application and services; and (iii) Not engage in, or encourage, promote, facilitate or instruct others to engage in, activities which, in our judgment and discretion: (1) are illegal; (2) result in the infringement of the intellectual property rights of others or libel or defamation of another person; or (3) harvest or otherwise collect information about others (such as e-mail addresses or other personally identifiable information) without their consent.
When you visit the Application, use the services or send emails to Company, you are communicating with us electronically. You consent to receive communications from us electronically. You agree that all agreements, notices, disclosures and other communications that we provide you electronically satisfy any legal requirement that such communications be in writing.
- DISCLAIMER OF WARRANTIES
USE OF THE Merry Auction, Everyone APPLICATION AND SERVICES IS AT YOUR SOLE RISK. ALL Merry Auction, Everyone PRODUCTS AND SERVICES ARE PROVIDED “AS IS,” WITH NO WARRANTIES OR GUARANTEES WHATSOEVER. COMPANY EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, STATUTORY, AND OTHER WARRANTIES, GUARANTEES, OR REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS. WITHOUT LIMITATION, COMPANY MAKES NO WARRANTY OR GUARANTEE THAT THE Merry Auction, Everyone APPLICATION AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
YOU UNDERSTAND AND AGREE THAT IF YOU USE THE Merry Auction, Everyone APPLICATION OR SERVICES , YOU DO SO AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES THAT MAY RESULT, INCLUDING LOSS OF DATA OR DAMAGE TO YOUR ELECTRONIC DEVICES OR OTHER PROPERTY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- APPLICATION OWNERSHIP AND LICENSE
Ownership of the Application, Application Information and Services and License
All trademarks, copyright, database rights and other intellectual property rights of any nature in the Merry Auction, Everyone Application or services together with the underlying software code are owned either directly by Company or by Company’s licensors. You will not, nor allow third parties on your behalf to (i) make and distribute copies of the Application (ii) attempt to copy, reproduce, alter, modify, reverse engineer, disassemble, decompile, transfer, exchange or translate the Application; or (iii) create derivative works of the Application of any kind whatsoever.
As long as you comply with these Terms and Conditions, we grant you a limited, personal, non-exclusive, non-commercial, revocable, non-assignable and non-transferable license (“License”) to use the Application and services for your personal, non-commercial use only. The License does not give you any ownership of, or any other intellectual property interest in the Application or services and you cannot otherwise use the Application or services without our express prior written permission. All rights not expressly granted to you are reserved by us and our licensors and other third parties. Any unauthorized use of the Application or services for any purpose is prohibited.
You warrant that you will not: (i) in any way make commercial or other unauthorized use, by publication, re-transmission, distribution, performance, caching, aggregation or otherwise, of material obtained through the Application or services, except as permitted by the Copyright Act or other law or as expressly permitted in writing by these Terms and Conditions; (ii) disrupt, overwhelm, attack, modify, reverse engineer or interfere with the Application or its associated software, hardware and/or servers in any way, and you agree not to impede or interfere with others’ use of the Application or services; or (iii) attempt to gain unauthorized access to service provider’s servers by any means—including, without limitation, by using administrator passwords or by masquerading as an administrator while using the Application or services or otherwise.
- USER CONTENT
You, and not Company, are responsible for all content you generate and submit to Company through the Application or services (“User Generated Content”). However, by submitting your User Generated Content to Company, you hereby grant Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sub-licensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, publicly display, derive revenue or other remuneration from, and communicate to the public, your User Generated Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right, including moral rights, that may exist in your User Generated Content. This includes any Feedback (as defined below) or other information you may submit to Company.
You also agree that you have all necessary rights to post or use the User Generated Content provided through the Merry Auction, Everyone Application or services. Company is not responsible for your User Generated Content, or any other posting made through the Application or services. Any user who feels that a posted message is objectionable is encouraged to contact us.
- ACCESS PERMISSIONS
In order to access or use certain portions of the Application, we may require that you grant us permission to access your Facebook account. While you may decide not to permit us such access, such denial may restrict you from certain features of the Application. You agree to accept responsibility for all information submitted to the Application through your Facebook account.
- ADDITIONAL TERMS FOR FUNDRAISERS
Any user that registers on Merry Auction, Everyone that raises funds through the Application or services (“fundraiser”) is subject to the following additional terms that apply specifically to fundraisers.
By raising money through the Application or services, you warrant that you are raising money for a cause or activity that is legal under all applicable federal, state, and local laws and regulations. You also warrant that the funds obtained through the Application or services will be used only for the purposes described in the materials you post. Fundraiser also warrants that any representations related to the specific causes or activities funds are raised for are accurate, and fundraiser will update its materials to reflect any substantive change in the nature of the causes or activities funds are raised for. Company will not be held liable in any way for fundraiser’s representations as to the nature of the causes and activities funds are raised for, or fundraiser’s use of such funds.
Payments Through PayPal
Please consult a tax advisor for any tax questions.
- ADDITIONAL TERMS FOR DONORS
Any individual, entity or organization that registers as a member and donates funds through the Application or services (“donor”) is subject to the following additional terms that apply specifically to donors.
All donations are at your own risk. Please make sure that when you donate to a given individual, activity or cause, you understand how your money will be used. Company does not warrant that funds will be used for any particular purpose and is not responsible for any misuse of the funds by the beneficiary.
By donating money through the Application or services, you represent and warrant that any donation you make is legal in your jurisdiction and that you are authorized to use the payment method you have selected. Each donor agrees and acknowledges that all donations are made as unrestricted gifts and are final and non-refundable.
Our Partnership with PayPal
Company makes no representation as to whether all or any portion of your donations, including, if any, processing fees, are tax deductible. Company will have no liability for any claim by any federal, state, local or any other tax authority with respect to the characterization on any applicable tax return of any donation by you or any Merry Auction, Everyone user.
Payments are processed through PayPal. Company as a service charge takes a portion of the funds and the remainder is transferred to the fundraiser. All donations, less an administrative and credit card processing fee in an amount no greater than 2.9%+$0.30 or 5%+$0.05 to PayPal and 3.1% to Company, are immediately deposited into the PayPal account provided when creating the race. Additional disbursements or distributions are the responsibility of the fundraiser. Company utilizes PayPal’s Adaptive Payments API or the Mobile Payments Express API to facilitate the splitting of funds between Company and the fundraiser. Company will never obtain the donor’s financial information based on PayPal’s Adaptive Payments API or Mobile Payments Express API.
Chargebacks and Refunds
All issues concerning chargebacks and refunds will be addressed by PayPal and not Company.
- LIMITATION OF LIABILITY AND RELEASE
IN NO EVENT WILL COMPANY BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY TYPE WHATSOEVER RELATED TO OR ARISING FROM THE Merry Auction, Everyone APPLICATION OR SERVICES OR ANY USE OF THE Merry Auction, Everyone APPLICATION OR SERVICES OR OF ANY SITE OR RESOURCE LINKED TO, REFERENCED, OR ACCESSED THROUGH THE Merry Auction, Everyone APPLICATION OR SERVICES, OR FOR THE USE OR DOWNLOADING OF, OR ACCESS TO, ANY MATERIALS, INFORMATION, PRODUCTS, OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOST SAVINGS OR LOSS OF PROGRAMS OR OTHER DATA, EVEN IF COMPANY IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION AND WAIVER OF LIABILITY APPLIES TO ALL CAUSES OF ACTION, WHETHER BASED ON CONTRACT, WARRANTY, TORT, OR ANY OTHER LEGAL THEORIES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED (COLLECTIVELY, “CLAIMS”), ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE Merry Auction, Everyone APPLICATION OR SERVICES.
You agree to indemnify, defend, and hold Company, its affiliated companies, contractors, employees, agents, representatives and its third party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses as incurred, arising out of any violation by you of these Terms and Conditions. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company, and you agree to fully cooperate with Company’s defense of these claims. Company will use commercially reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
- TERMINATIONS AND MODIFICATION
Company has the right to terminate and/or suspend your ability to access the Application and services or any portion thereof, for any or no reason, with or without notice. Upon any termination, any and all rights and licenses granted to you herein shall terminate and you must cease all use of the Application and services. All provisions of the terms which by their nature should survive, shall survive termination of services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- TERRITORIAL RESTRICTIONS
The information provided on the Application and services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. We control and operate the Application and services from offices located in the United States. We make no representations or warranties that the information, products or services contained on the Application or services are appropriate for use or access in other locations. Anyone using or accessing the Application or services from other locations does so on their own initiative and is responsible for compliance with United States and local laws regarding online conduct and acceptable content, if and to the extent such laws are applicable. We reserve the right to limit the availability of the Application or services and/or the provision of any content, program, product, service or other feature described or available thereon to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide.
The site is hosted in the United States and is intended for users located in the United States. If you are a non-United States user of the Application or services, by visiting or using the Application or services and/or providing Company with any User Generated Content specifically or content generally, you agree to comply with all federal and state United States laws governing the Application, the services, online conduct and acceptable content and User Generated Content. You further agree to comply with all applicable laws regarding the transmission of data exported from the United States or the country in which you reside.
- GOVERNING LAW, JURISDICTION AND NO CLASS ACTIONS
THESE TERMS AND CONDITIONS AND THE INTERPRETATION OF THESE TERMS AND CONDITIONS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. YOU AGREE THAT JURISDICTION OVER AND VENUE IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE APPLICATION OR SERVICES, THE USE OR ACCESS THEREOF, OR THESE TERMS AND CONDITIONS MUST BE IN THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK AND YOU HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS LOCATED IN NEW YORK FOR ANY SUCH LEGAL PROCEEDING. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO THE APPLICATION OR SERVICES MUST BE COMMENCED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES. ANY CLAIMS BROUGHT BY YOU MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
- MODIFICATION OF THE TERMS AND CONDITIONS
We reserve the right to modify or add to these Terms and Conditions or any additional Terms and Conditions, at any time without prior notice (“Updated Terms and Conditions”). In Company’s sole discretion, we may unilaterally amend or modify these Terms and Conditions or any other documents referenced herein at any time by posting on the site. The date of the most recent revision will appear at the top of this page. Company encourages you to review these Terms and Conditions periodically for any updates or changes. Continued use of the Application or services constitutes acceptance of any modified Terms and Conditions. You agree that we may notify you of the Updated Terms and Conditions by posting them on the Application and site, and that your use of the Application or services after we have posted the Updated Terms and Conditions or other indication of consent to the Updated Terms and Conditions constitutes your agreement to the Updated Terms and Conditions. Therefore, you should review these Terms and Conditions and any additional Terms and Conditions before using the Application or services. The Updated Terms and Conditions will be effective as of the time of posting, or such later date as may be specified in the Updated Terms and Conditions, and will apply to your use of the Application and services from that point forward.
- MISCELLANEOUS PROVISIONS
Conflict with Other Agreements
Apple, Inc. Provisions
By accessing this Application through a device made by Apple, Inc. (“Apple”), you specifically acknowledge and agree that: (i) the Terms and Conditions are between service provider and you; Apple is not a party to the Terms and Conditions; (ii) Apple and its subsidiaries are third party beneficiaries of the Terms and Conditions and upon your acceptance of the Terms and Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions against you; (iii) the license granted to you hereunder is limited to a non-transferable right to use the Application on the Apple device(s) authorized by Apple that you own or control and as permitted by the Usage Rules set forth in Apple’s App Store Terms and Conditions; (iv) Apple has no obligation whatsoever in connection with the functionality or content of the Application, or to furnish any maintenance or support services with respect to the Application; (v) in the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple may refund the amount you paid for the Application, if any (to the maximum amount permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application); (vi) Apple is not responsible for addressing any claims made by you or a third party relating to the Application or your possession and/or use of the Application, including without limitation (a) product liability claims; (b) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; (vii) in the event of any third party claim that the Application or your possession and use of the Application infringes such third party’s intellectual property rights, Apple is not responsible for the investigation, defense, settlement and/or discharge of such claim; and (viii) you represent and warrant that (a) you are not located in a country that is subject to a United States Government embargo, or that has been designated by the United States Government as a “terrorist supporting” country; and (b) you are not listed on any United States Government list of prohibited or restricted parties.
If we fail to act with respect to any breach of these Terms and Conditions by you or others, that does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. We shall not be deemed to have waived any of these Terms and Conditions unless we do so in a writing that is signed by one of our duly authorized officers. We may assign our rights and duties under these Terms and Conditions to any party at any time without any notice to you. You may not assign these Terms and Conditions to anyone. If any provision of these Terms and Conditions will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and Conditions and will not affect the validity and enforceability of any remaining provisions. You agree that these Terms and Conditions will not be construed against us by virtue of our having drafted them. The headings used throughout these Terms and Conditions are solely for convenience of reference and are not to be used as an aid in the interpretation of these terms. These Terms and Conditions make up the entire agreement between you and Company regarding the site and supersede any prior agreements. You will not assign or transfer any of your rights or responsibilities under these Terms and Conditions to anyone without Company’s express written permission. Company may, at any time, assign our rights or delegate our obligations hereunder without notice to you in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise. Nothing in these Terms and Conditions shall prevent Company from complying with the law.