Terms and Conditions
PLEASE READ THIS AGREEMENT CAREFULLY. THIS IS A BINDING CONTRACT.
This Terms and Conditions (TC) sets forth the terms and conditions under which Captivate.org, Inc. (Captivate.org, Captivate, we, or us) provides you access to, and governs your use of, the website located at Captivate.org (the Site), and the Captivate applications made available through the Site (the Software) and the information, content, features and services provided through the Site (together with the Software, collectively, the Service).
YOUR USE OF THE SITE AND/OR THE SERVICE, OR BY CLICKING “I ACCEPT” IF PRESENTED WITH THIS TC IN A CLICK-THROUGH FORMAT, SIGNIFIES YOUR AGREEMENT TO THIS TC AND CONSTITUTES YOUR BINDING ACCEPTANCE OF THIS TC, INCLUDING ANY MODIFICATIONS THAT CAPTIVATE MAKES FROM TIME TO TIME. If you do not agree to this TC, you may not use the Site or the Service.
2. The Services.
The Captivate Site provides an online marketplace for users to enter into sweepstakes for once-in-a-lifetime experiences traditionally unavailable to the general public. Participants may enter the sweepstakes by creating an Account (defined below) and making a donation through the Site, or by Captivate’s Free Alternate Method of Entry. No purchase, payment or other financial contribution is necessary to enter or win a sweepstakes, and any and all sweepstakes are void where prohibited by law. In addition, if you are registering for or participating in a Captivate sweepstakes contest, participation is subject to our Official Sweepstakes Rules and Regulations and any other rules and regulations applicable to such competition (collectively, Rules). If this TC conflicts with or is inconsistent with any Rules, such Rules will govern and be given precedence.
Captivate reserves the right to add, change, modify, suspend or discontinue any portion of the Service, in its sole discretion, at any time. Your use of the Site and/or the Service, including the availability of new services through the Site, shall be subject to this TC. In addition, Captivate may impose limits on any portion of the Service or restrict your access to portions of or the entire Site in its sole discretion without notice or liability.
3. Internet Access.
You are responsible for any Internet connection and telecommunication fees and charges that you incur when accessing the Site and/or the Service.
To use certain portions of the Site and Service, you will be directed to register on the Site and create a user profile or account (Account). Eligibility is limited to residents of the United States and persons over the age of 18 or to persons who have reached the age of majority in their countries of residence. Void in Sweden, Malaysia, Spain and countries on the United States list of embargoed countries. As part of the registration process, you will be asked to submit your name, address, email address, date of birth and/or similar information and to select a password. You agree that all information you provide to Captivate for purposes of creating an account (Registration Information) will be true, accurate, current and complete and your failure to provide such information shall constitute a breach of this TC and may result in the immediate termination of your Account. You shall (i) promptly update your Registration Information to keep it true, accurate, current and complete; and (ii) maintain the confidentiality of your password.
In creating an Account, you shall not (a) select or use the email address or user name of another person with the intent to impersonate that person, (b) use a name subject to the rights of any other person without authorization, (c) use an email address or user name that is profane, offensive or otherwise inappropriate or (d) allow any other party to use your Account and/or password except as set forth herein.
You may not share or transfer any Account. You may not disclose your password to anyone. You agree to immediately notify Captivate by sending an email to email@example.com of any known or suspected unauthorized use(s) of your Account or any known or suspected breach of security, including loss, theft or unauthorized disclosure of your password. You understand and agree that you shall be liable for all activities that occur under any Account created for your use, even if such activities were not committed by you. Captivate is not responsible for any loss or damage arising from your failure to maintain the confidentiality of your password.
Captivate employees, directors, managers and their respective immediate family members (i.e., parents, spouses, domestic partners, siblings and children) or any other person residing in the same household as an Captivate, employee, director or manager may not participate in the Service or create an Account through the Site
5. Termination of Account.
You understand and agree that you have no ownership rights in your Account and Captivate may stop offering the Service at any time. Further, Captivate may cancel your Account, delete all of your Registration Information and any other information you have provided through the Site (collectively, User Content) associated with your Account at any time, without notice, for any reason or no reason including, without limitation, your violation of this TC. Captivate will not be liable for any damages or loss resulting from the removal of any User Content from the Site and/or the Service. You may cancel your Account at any time and cancellation will take effect immediately. Captivate reserves the right to temporarily or permanently restrict or block access to the Site and/or the Service to any users who have had their Accounts cancelled.
6. Limited License to Use Site and Service.
Subject to all of the terms and conditions of this TC, Captivate hereby grants you a limited, non-exclusive, personal, non-sublicensable, non-assignable license to access and use the Site and Service. The Site and Service may only be used for personal and non-commercial purposes and must at all times be used in accordance with this TC and rules, restrictions and/or documentation set forth by Captivate from time to time. All modifications and enhancements to the Site and Service remain the sole property of Captivate. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, or services obtained from the Site. You understand that Captivate, in its sole discretion, may at any time for any reason suspend or terminate any license hereunder and disable the Site, or any part thereof including any Service, without prior notice. Captivate reserves the right to add or remove features or functions to the Site or Service at any time in its sole discretion. Notwithstanding anything to the contrary herein, you may not: (i) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Site or Service; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Site or Service, including, without limitation, through sublicense, to any other entity without the prior written consent of Captivate; or (iv) make any false, misleading or deceptive statement or representation regarding Captivate and/or the Site or Service.
7. Use of Site and Service.
You agree that you will not, in connection with your use of the Site, or Service, violate any applicable law or regulation. Without limiting the foregoing, you agree not to (i) make available through the Site any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity); (ii) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Site and/or the Service or otherwise attempt to disrupt the Site and/or the Service or any other person’s use of the Site and/or the Service; or (iii) attempt to gain unauthorized access to the Site, Service, Accounts registered to other users, or the computer systems or networks connected to the Site and/or the Service. Furthermore, you may not use the Site to develop, generate, transmit or store information that: (a) is defamatory, harmful, abusive, obscene or hateful; (b) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Site and/or the Service, (c) performs any unsolicited commercial communication not permitted by applicable law; (d) constitutes harassment or a violation of privacy or threatens other people or groups of people; (e) is harmful to children in any manner; (f) violates any applicable law, regulation or ordinance; (g) makes any false, misleading or deceptive statement or representation regarding Captivate and/or the Site or Service or (h) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias).
You agree that you will not (i) obtain or attempt to obtain any information from the Site including, without limitation, email information of other Account holders or other Software data; (ii) intercept, examine or otherwise observe any proprietary communications protocol used by the Site or Software, whether through the use of a network analyzer, packet sniffer or other device; or (iii) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Site or Software.
You understand that all data, information, text, software, graphics, video, messages, tags, or other materials (Content), whether publicly posted or privately transmitted, on the Site or through the use of the Site or the Service, are the sole responsibility of the person posting or transmitting such Content. Captivate does not control the Content posted on the Site or transmitted through the use of the Site or the Service and, as such, Captivate does not guarantee, and shall not be responsible for any deficiencies relating to, the accuracy, reliability or quality of such Content. Further, you acknowledge that Captivate may or may not pre-screen Content that is displayed on the Site or transmitted through the use of the Site or the Service. You understand that by visiting the Site or using the Service, you may be exposed to Content that you may consider to be offensive, indecent or objectionable. Under no circumstances will Captivate be liable in any way for any user-generated Content including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available on the Site or through the use of the Site or the Service.
The Site may provide forums and/or chat features enabling users to post user observations and comments. We cannot guarantee that other members or users will not use the ideas and/or information that you share. If you have ideas and/or information that you want to remain confidential and/or do not want others to use, do not post them via the Site. We shall have no responsibility to evaluate, use or compensate you for any ideas and/or information that you submit on the Site or through the use of the Site or Service.
All comments, feedback, suggestions, ideas, and other submissions that you disclose, submit or offer to us in connection with your use of the Site or Service, such as your suggestions regarding improvements that we make to the Site or Service (collectively,Comments) will become our exclusive property. Such disclosure, submission or offer of any Comments shall constitute an assignment to us of all worldwide right, title and interest in all patent, copyright, trademark, and all other intellectual property and other rights whatsoever in and to the Comments and a waiver of any claim based on moral rights, unfair competition, breach of implied contract, breach of confidentiality, and any other legal theory relating to submissions. Thus, we will own exclusively all such right, title and interest and shall not be limited in any way in the use, commercial or otherwise, of any Comments. You should not submit any Comments to us if you do not wish to assign such rights to us. We are and will be under no obligation: (i) to maintain any Comments in confidence; (ii) to pay to you or any third party any compensation for any Comments; or (iii) to respond to any Comments. You are and shall remain solely responsible for the content of any Comments you make. By posting Comments or any other content, you warrant and represent that you own the rights to such or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute such Comments and content and grant us the right to do the same. You hereby irrevocably waive any claims based on moral rights and similar theories, if any.
Your User Content, and the contents of all of your Comments and other online communications (including without limitation chat text, voice communications, IP addresses and your personal information) may be accessed and monitored as necessary to provide the Service and may be disclosed: (i) when we have a good faith belief that we are required to disclose the information in response to legal process (for example, a court order, search warrant or subpoena); (ii) to satisfy any applicable laws or regulations (iii) where we believe that the Site or Service is being used in the commission of a crime, including to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (iv) when we have a good faith belief that there is an emergency that poses a threat to the health and/or safety of you, another person or the public generally; and (v) in order to protect the rights or property of Captivate, including to enforce this TC. By entering into this TC, you hereby provide your irrevocable consent to such monitoring, access and disclosure.
When accessing the Site you agree to obey the law and to respect the intellectual property rights of others. Your use of the Site is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. You shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any content you provide or transmit, or that is provided or transmitted using your account. The burden of proving that any content does not violate any laws or third party rights rests solely with you.
The Site and the Service are operated by Captivate in the United States. Those who choose to access the Site, and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.
8. Third-Party Products.
Third party services, content, information and products may be made available by Captivate on or through the Site (Third Party Products). Third Party Products are provided solely for the convenience of Site users and Captivate makes no representations or warranties regarding any Third Party Products and takes no responsibility and assumes no liability for any Third Party Products. Third Party Products are subject to the applicable terms and policies of the third parties that offer them.
9.1. Links from the Site. The Site may contain links to websites operated by other parties. Captivate provides these links to other websites as a convenience, and use of these sites is at your own risk. The linked sites are not under the control of Captivate, and Captivate is not responsible for the content available on the other sites. Such links do not imply Captivate endorsement of information or material on any other site and Captivate disclaims all liability with regard to your access to and use of such linked websites.
9.2. Links to the Site. You may not place a link to the Site on another website without our prior written consent and, without limiting the foregoing, you must adhere to Captivate linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Captivate and/or its licensors’ names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Captivate, (iii) when selected by a user, the link must display the Site on full-screen and not within a frame on the linking site, and (iv) Captivate reserves the right to revoke its consent to the link at any time and in its sole discretion.
10. Captivate Intellectual Property and Intellectual Property Infringement.
The interfaces, content, arrangement and layout of the Site including, but not limited to, the Captivate trademark and logo, designs, text, artwork, graphics, images, buttons, user interfaces, information and other content, and any compilation of the foregoing (Captivate Intellectual Property) are the property of Captivate, except where otherwise noted, and are protected from copying, imitation, communication, or simulation under U.S. and international laws and may not be reproduced, modified, communicated, displayed, distributed, or transmitted without the prior written permission of Captivate. You understand and acknowledge that, by visiting the Site, you do not acquire or obtain by implication or otherwise, any license or right to use or make additional copies of any materials or information displayed on the Site. You agree not to display or use any Captivate Intellectual Property or third party content located on the Site in any manner not expressly permitted under this TC.
We respect the copyrights of others and expect our users to do the same. We have a policy of terminating users who repeatedly infringe the copyrights of others. If you learn or believe that the Site or Service or any information on the Site, including any Content, infringes upon any copyright or other intellectual property that you own or control, you may file a notice under our Intellectual Property Policy. In the event of any third party claim that the Site or Service infringes that third party’s intellectual property rights, we will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
11. Disclaimer of Warranties.
THE SITE, SOFTWARE AND THE SERVICE ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. CAPTIVATE MAKES NO WARRANTY AS TO THE QUALITY, ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE, THE SOFTWARE OR THE SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE, THE SOFTWARE AND/OR THE SERVICE IS AT YOUR SOLE RISK. CAPTIVATE DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE, THE SOFTWARE AND/OR THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE OPERATION OF THE SITE, THE SOFTWARE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT THE SITE, THE SOFTWARE OR THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
CAPTIVATE PROVIDES NO WARRANTY OR GUARANTY OF ANY KIND THAT THE SITE, THE SOFTWARE OR THE SERVICE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
12. Limitation of Liability; Sole and Exclusive Remedy.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CAPTIVATE OR ANY OF ITS AFFILIATES, TOGETHER WITH ITS RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES AND AGENTS, BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS TC, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) FOR ANY LOST OR CORRUPTED DATA, LOST PROFITS, LOSS OR DAMAGE TO ANY COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, THE SOFTWARE AND/OR THE SERVICE, EVEN IF CAPTIVATE AND/OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (II) THE USE OR THE INABILITY TO USE THE SITE, THE SOFTWARE OR THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; (V) ANY OTHER MATTER RELATING TO THE SITE, THE SOFTWARE OR THE SERVICE; OR (VI) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, CAPTIVATE’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SITE, THE SOFTWARE OR ANY PORTION OF THE SERVICE IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE USE OF THE SITE, THE SOFTWARE AND THE SERVICE.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Captivate and its affiliates shall be limited to the fullest extent permitted by law.
You agree to defend, indemnify and hold Captivate, and its successors and assigns, and their respective officers, directors, affiliates, agents and employees, harmless from and against any and all claims, actions, proceedings and suits and all related liabilities, losses, damages, judgments, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys fees and costs) arising out of or relating to (i) your use or misuse of the Site, the Software or the Service, (ii) your breach or alleged breach of this TC, including, without limitation, a breach or alleged breach of any representation or warranty by you in this TC; (iii) your violation of any law, rule, regulation or rights of others in connection with your use of the Site, the Software or the Service, or (iv) infringement, violation or misappropriation of any copyright, trade secret, or any other intellectual property rights or the violation of any property or privacy right arising from any of the User Content or Comments that you post on the Site or transmit through the Service.
14. Governing Law; Jurisdiction.
This TC shall be is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to choice of law principles. All disputes arising out of or related to your use of the Site, the Software and/or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located within Los Angeles County, California and you agree to submit to the personal jurisdiction of such courts.
15.1. Amendments/Revisions. This TC may only be amended and/or revised in writing by Captivate (including by publishing such revisions by Captivate on the Site.
15.2. Relationship of Parties. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Captivate as a result of this TC or your use of the Site, the Software or the Service.
15.3. Assignment. Captivate may assign this TC, in whole or in part, to any person or entity at any time with or without your consent. You may not assign this TC without Captivate’s prior written consent, and any unauthorized assignment by you shall be null and void.
15.4. Severability. If any of the provisions of this TC is found to be invalid or unenforceable, then that provision will be construed in a manner consistent with applicable laws to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions shall remain in full force and effect.
15.5. Attorneys’ Fees. In the event any litigation is brought by either party in connection with this TC, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
15.6. No Waiver. Our failure to enforce any provision of this TC shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this TC shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
15.7. Notices. All notices given by you or required under this TC shall be in writing and addressed to: Captivate.org, Inc., 8774 Yates Dr., Suite 320, Westminster C0 80031, Attn: Captivate.org customer service.
15.8. Equitable Remedies. You hereby agree that Captivate would be irreparably damaged if the terms of this TC were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this TC, in addition to such other remedies as we may otherwise have available to us under applicable laws.
15.9. Entire Agreement. This TC, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site, the Software and the Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site, the Software and/or the Service.
All questions and concerns regarding this TC should be directed to firstname.lastname@example.org
16. Refund Policy
Due to the philanthropic nature of our business, we can not offer any refunds on any purchases made through Captivate.org.
17. Delivery and Timing Method
All items purchased through Captivate.org will be shipped within 4-6 weeks of the end of the contest/campaign.
UPDATED: October 2013