User Agreement for Promotion Sponsors
READ THIS ENTIRE AGREEMENT ("Agreement") CAREFULLY BEFORE USING WILDFIRE INTERACTIVE, INC.'S ("Wildfire") SOFTWARE APPLICATIONS FOR ANY PROMOTION. THIS IS IMPORTANT BECAUSE THIS CONSTITUTES A LEGAL, BINDING AGREEMENT BETWEEN YOU AND WILDFIRE THAT MAKES REPRESENTATIONS, WARRANTIES, AND INDEMNITIES ASSOCIATED WITH YOUR USE OF WILDFIRE'S SOFTWARE APPLICATION SERVICE.
By checking the "I Agree" box (below), you, as a promotion sponsor, agree to be bound by the terms of this Agreement.
Wildfire offers a software application (the "Service") that helps third-party promotion sponsors publish promotions (namely sweepstakes and contest promotions) (individually and collectively "Promotions") online. The Service also provides an online entry form through which Promotion entrants (collectively "Entrants") can submit entries for Promotions. (You, as a Promotion sponsor, are referred to below as "Sponsor" or "it.")
In consideration for using the Service, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Sponsor agrees as follows:
1. Sponsor acknowledges that it has read, understands, and agrees to Wildfire's "Terms of Use" (available at http://www.wildfireapp.com/buzz/terms_and_conditions), which are incorporated by reference into this Agreement.
2. Sponsor acknowledges that it is solely responsible for ensuring that Sponsor's Promotion(s) and all advertising, marketing, and promotional materials for such Promotion(s) is/are fully compliant with all applicable laws, rules, and regulations.
3. Sponsor represents and warrants that Sponsor: (a) has all necessary rights and authority to enter into this Agreement and to perform its obligations under this Agreement, and that entering into this Agreement shall not constitute a breach of any other agreement to which Sponsor is or may be bound; (b) will comply with all applicable laws, rules, and regulations in performing its obligations under this Agreement and 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 Wildfire's Terms of Use, and (ii) that Wildfire, as provider of the Service, will receive personal information from Entrants when they use the Service, and may use such information as specified in Wildfire's then-current Terms of Use, privacy policy, and other online policies.
4. SPONSOR ACKNOWLEDGES THAT ANY USE OF THE SERVICE IS SOLELY AT ITS 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"), HEREBY UNCONDITIONALLY AND FOREVER RELEASES, DISCHARGES AND AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS WILDFIRE AND ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PROFESSIONAL ADVISORS, AND CONTRACTORS (COLLECTIVELY "RELEASED PARTIES"), 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 SPONSOR, ANY 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 RELEASED PARTIES (COLLECTIVELY "RELEASED CLAIMS").
SPONSOR UNDERSTANDS AND AGREES THAT THIS AGREEMENT WILL PREVENT SPONSOR AND SPONSOR PARTIES FROM BRINGING 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 CLAIMS RELEASED ABOVE.
5. If any provision of this Agreement is found to be unenforceable in any respect by a court of competent jurisdiction, it is Sponsor's intent and understanding that this Agreement will still be enforced to the maximum extent to which it is found to be legally enforceable. TO THE EXTENT PERMITTED BY LAW, SPONSOR WAIVES THE BENEFIT OF ANY PROVISIONS OF ANY STATUTE OR OTHER LAW THAT MIGHT ADVERSELY AFFECT THE RIGHTS OF ANY RELEASED PARTY UNDER THIS AGREEMENT.
Without limiting the foregoing, to the maximum extent permitted by law, SPONSOR waives all rights SPONSOR AND/OR SPONSOR PARTIES may have under California Civil Code Section 1542, which reads as follows:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the Release, which if known by him must have materially affected the settlement with the debtor."
6. This Agreement will be governed by and construed and enforced under the laws of the State of California, without reference to its choice of law rules to the contrary. Sponsor irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in California, with respect to any claim or suit arising out of or in connection with this Agreement or any Promotion, and agrees not to commence or prosecute any such claim or suit other than in the aforementioned courts.
7. The person signing below has full authority to enter into this Agreement and to bind Sponsor to the terms herein.