Contest Facilitation Agreement
March 8, 2010
IMPORTANT—READ CAREFULLY AS IT CREATES A LEGALLY BINDING CONTRACT
THIS CONTEST FACILITATION AGREEMENT (THE “AGREEMENT”) SETS FORTH THE TERMS AND CONDITIONS UPON WHICH WE, WEB2WEB MARKETING, INC. (DBA ACTEVA.COM)., A DELAWARE CORPORATION (“ACTEVA”, “WE”, “OUR”, OR “US”) PERMIT YOU TO USE ACTEVA’S SERVICE (DEFINED BELOW) IN ORDER TO ENTER INTO A TRANSACTION WITH GUTSOE, INC. (“GUTSOE”) RELATED TO A POTENTIAL CONTEST PROMOTED BY GUTSOE.
BY CLICKING THE "I AGREE" ICON BELOW, YOU AGREE TO BE LEGALLY BOUND BY EACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT PROCEED AND DO NOT ATTEMPT TO USE THE SERVICES IN ANY MANNER. IF YOU CIRCUMVENT OUR TECHNICAL SPECIFICATIONS REQUIRING YOU TO CLICK ON THE "I AGREE" IN ORDER TO PROCEED (WHICH CIRCUMVENTION WOULD BE AN UNAUTHORIZED ACT BY YOU), YOU AGREE TO BE LEGALLY BOUND BY EACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU WISH TO PRINT OUT THIS AGREEMENT, YOU SHOULD HIGHLIGHT THIS TEXT, RIGHT-CLICK, SELECT “COPY” THEN “PASTE” IT INTO A DOCUMENT IN A WORD PROCESSING PROGRAM OF YOUR CHOICE.
AGREEMENT
Acteva and you, intending to be legally bound, hereby agree as follows:
1. Services. For purposes of this Agreement, “Services” shall mean the provision by Acteva of certain technological capabilities that allow you to register for an event or contest with Gutsoe (each a “Gutsoe Event”) via the World Wide Web, including, without limitation, enabling you to pay any contest entry or registration fees (or any other fees) required by Gutsoe via credit card payment. Acteva’s sole duty is to provide you access to the Services on an “AS-IS” and “AS AVAILABLE” basis.
2. No Agency. You hereby agree and acknowledge that Acteva is nothing more than a third-party facilitator to allow you to enter into a transaction with Gutsoe. As such, you further agree and acknowledge that Acteva shall, at all times, be an independent contractor providing the Services merely as a facilitator, rather than a co-venturer, agent, employee, or representative of either Gutsoe or you.
3. Duties Limited. Acteva shall perform only the duties expressly set forth herein and shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement and no further duties or responsibilities shall be implied. Acteva shall have no liability under and no duty to inquire as to the provisions of any agreement other than this Agreement and the Refund Policy. Acteva shall be under no duty to inquire into or investigate the validity, accuracy or content of any other agreements or the truth or accuracy of anything arising out of or related to any Gutsoe Event.
4. Disputes with Gutsoe; Reliance. You are solely responsible for your interactions, transactions or (attempted) with Gutsoe. You will not hold Acteva responsible for Gutsoe’s actions or inactions, including things related to any Gutsoe Event (whether offered, promoted or cancelled by Gutsoe) or any other offer made by Gutsoe. You acknowledge that Acteva is in no way involved in any actual Gutsoe Event offered or promoted by Gutsoe and have detrimentally relied on the representations and acknowledgement made by you under the terms of this Agreement in order to provide the Service. We have no control over and do not guarantee (a) the truth or accuracy of any advertisements or other content published by Gutsoe or (b) Gutsoe will actually complete a Gutsoe Event in accordance with any published rules, to your satisfaction, or at all. YOU AGREE AND ACKNOWLEDGE THAT ACTEVA DOES NOT OPERATE, ADMINISTRATE, CONTROL OR OTHERWISE OWN ANY CONTEST/PROMOTIONS PRODUCTS OR SERVICES. If you have a dispute with Gutsoe, you release Acteva (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes or your use of the Service. If you are a California resident, you waive California Civil Code §1542, which says:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
5. Limitation of Liability.EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, IN NO EVENT WILL ACTEVA BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ALSO LOST PROFITS ARISING FROM YOUR USE OF THE SERVICE OR ANY GUTSOE EVENT, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND TO THE FURTHEST EXTENT PERMITTED BY APPLICABLE LAW, ACTEVA'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF $25.00 OR THE AMOUNTS GUTSOE PAYS ACTEVA DIRECTLY RELATED TO THE COMPLETION OF YOUR TRANSACTION VIA USE OF THE SERVICE.
6. Hold Harmless; Covenant Not To Sue.You agree to indemnify and hold Acteva, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including charge-backs initiated by your credit card company and reasonable attorney's fees, due to or arising out of your use of the Service. You further agree, to the furthest extent permitted by law, to refrain from making any claim against Acteva arising out of or related to any Gutsoe Event, including, without limitation, refraining from filing any lawsuit or demand for arbitration against Acteva.
7. Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed within the State of California by California residents. Any controversy between the parties hereto involving any claim arising out of or relating to a breach of this Agreement shall be submitted to and be settled by final and binding arbitration in San Francisco, California, in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (the “AAA”). The arbitrator shall determine a prevailing party. The prevailing party shall be entitled to reasonable attorneys’ fees, costs (including arbitrators’ costs).
8. Entire Agreement; Severability. This Agreement and the Refund Policy, and the terms and documents incorporated by reference herein or therein, constitutes the entire agreement between Acteva and you relative to the subject matter hereof and shall be binding upon the parties hereto and upon their heirs, administrators, representatives, executors, successors and assigns, and shall inure to the benefit of said parties. Any previous agreement or negotiations between Acteva and you concerning the subject matter hereof is superseded by this Agreement. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
9. Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE DISCLAIMERS, ACKNOWLEDGEMENTS, AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT, VIA USE OF THE SERVICE BY YOU, AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
10. Refund Policy. The following refund policies apply to this contest.
a. Contest for Change Policy: Tickets are Non-Refundable. No refunds once you purchase your ticket because a winner will be declared. Please see Official Rules and Contest Terms.
b. Acteva’s Purchase/refund policy: Refunds and cancellations are provided only at the discretion of the organization hosting or sponsoring this event as outlined in 10.a above. Acteva.com issues credits only when directed to do so by the sponsoring organization. Contact refunds@acteva.com or the sponsoring organization for further details.