THIS IS A LEGALLY BINDING AGREEMENT THAT AFFECTS YOUR RIGHTS AND LIMITS OUR LIABILITY. PLEASE READ IT CAREFULLY. BY USING OUR SITE, YOU ARE CONFIRMING YOUR AGREEMENT WITH THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS DESCRIBED HEREIN, YOU MUST LEAVE OUR SITE IMMEDIATELY.
NOTE: THIS SITE IS NOT INTENDED FOR USE BY CHILDREN UNDER THE AGE OF 13. By using this Site, you are confirming that you are above the age of 13.
The purpose of our website is to describe and deliver our Services, which enables our registered users (“Members”) to easily create, manage, and administer sweepstakes, contests, and similar promotions (collectively, “Promotions”) and to configure, collect, and manage consumer data using the software tools we provide. In some cases, we host our Members’ Promotions on this Site, in which case consumers desiring to participate in such Promotions (“Participants”) will be directed to this Site by our Members for that purpose. This Site is comprised of trademarks, service marks, logos, written copy, images, audio or video recordings, and other information, which shall henceforth be referred to as “Content”).
If You Are a Participant
If you are a Participant visiting this Site to enter one of our Member’s Promotions, please be advised that your participation is solely governed by the Official Rules of the Promotion as devised by our Member, and (if applicable) by the Terms of Service published on our Member’s website. Please be certain to read the Official Rules carefully, and do not participate in a Promotion unless you understand and agree to them.
(a) Our Relationship With You
Our sole role is to provide our Member with the Service. We are not providing our Service to you, and any issues or disputes that may arise between you and the Member in connection with a Promotion or otherwise must be resolved solely between you and the Member.
(b) Participation Disclaimer
Piña Tropical makes no representations whatsoever concerning the manner in which our Members design or operate their Promotions, or any products or services they may offer, and hereby disclaims any and all such representations. We are not responsible or liable for (i) Promotion management, including prize selection and fulfillment, (ii) the accuracy of any descriptions of the Promotion; or (iii) our Members business practices. YOUR PARTICIPATION IN ANY PROMOTIONS ARE AT YOUR SOLE RISK.
Becoming a Member
When you complete the registration process by entering your name, company name, email address, and password, you will be allowed to access our Services. We have the sole right, at our discretion, to deny or revoke the membership of anyone for any reason. You agree to maintain the confidentiality of your password and are fully responsible for all liability and damages resulting from your failure to maintain that confidentiality and all activities that occur through the use of your password. You agree to immediately notify us of any unauthorized use of your password or any other breach of security regarding your account or information. You agree that Piña Tropical shall not be liable for any loss or damage arising from your failure to comply with password security as discussed herein.
Using the Service
By using our Services, you understand that you are solely responsible for each and every aspect of your Promotions, including, without limitation, Promotion design, administration, prize selection, and prize fulfillment, and confirm your understanding and agreement with the following:
(i) Your Legal Obligations
The Services operate solely as a platform to assist you to configure, collect, and manage Participant Data. We have no role in the design, administration, or any other aspect of your Promotion, and can not (and will not) advise or assist you to comply with your legal obligations in connection with your Promotion, including (but not limited to), drafting rules, registering sweepstakes in states that require it, obtaining bonds, collecting releases, deducting taxes, issuing tax forms, or any other legal requirement. We may make generic sweepstakes or contest rules available for you to modify to suit your particular Promotion, but make no representations or warranties whatsoever as to whether they are legal or appropriate, and hereby disclaim any such representations and warranties in full. Your use of any information we may provide is at your sole risk. You should always seek advice and information from qualified legal professional before operating a Promotion.
(iii) Children under 13
We are unable to host any Promotion directed to children under the age of 13, or in which such children may otherwise participate, and you are prohibited from designing such a Promotion to be hosted on our Site. If you run such a Promotion, be aware that the collection of personal information from children under 13 is governed by the Children’s Online Privacy Protection Act, and your failure to comply with that statute can subject you to severe penalties.
Any written copy, images, audio or video recordings, and other information you upload to our Site in connection with a Promotion or for any other reason shall henceforth be referred to as “Member Content.” By uploading Member Content, you warrant to Piña Tropical that you have legal right, whether by ownership, license, or otherwise, to transmit, display, and use such Member Content. You are solely responsible for insuring that you do not infringe the rights of any third parties in such Member Content and for any legal damages caused by your transmission, use, or display of Member Content.
If your Member Content is reported as being in violation of third party rights, offensive or inappropriate, we may ask you to retract or otherwise modify the questionable content within 24 hours. Should you fail to comply, at our sole discretion we may elect to restrict your ability to post OR to immediately terminate your Member account without further notification to you. Without limiting the foregoing, we have sole discretion to remove any Member Content that violates our Legal Terms or is otherwise objectionable in our sole discretion. You acknowledge that Piña Tropical is NOT liable for loss or damage to Member Content nor do we warrant that we may have a backup of your Member Content. You should always maintain your own backup copies of Member Content.
Piña Tropical does not make any ownership claims to your Member Content. However, by uploading Member Content, you grant Piña Tropical a perpetual, world-wide, royalty-free, irrevocable license to use, display, and redistribute your Member Content in any form we see fit.
Fees and Billing
Piña Tropical offers a subscription based service with several different pricing plans that you can choose from. By choosing to subscribe to a plan, you are agreeing to pay all fees associated with your account. If we are unable to charge your credit card for the fees incurred by your account, we reserve the right to suspend your account until all invoices have been paid in full.
It is your responsibility to manage your account, as well as the billing plan you have selected. Piña Tropical offers a self-service billing section that allows you to begin, pause, or cancel your billing at anytime. If you wish to cancel your account, you may do so at anytime on the billing page. To avoid being billed for your next subscription period you must cancel at least 24 hours prior to the termination of your subscription period to avoid being charged. We do not provide refunds or credits for unused periods, or partial periods.
When using the Service, you agree to comply with the following guidelines, and to not use the Service to:
(a) Post any Member Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, hateful, degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification or otherwise objectionable in any way or for any reason, as may be determined by us at our sole and absolute discretion;
(b) Harm, threaten, or otherwise harass any other person or entity;
(c) Attempt to host any Promotion directed to children under 13 on our Site;
(d) Utilize the Service to conduct a Promotion that is illegal, immoral, or is otherwise objectionable, as may be determined by applicable law or by us at our sole and absolute discretion;
(e) Disseminate or transmit any Content that (i) violates any law (whether local, state, national, or international), (ii) infringes or violates any copyright, trademark, trade secret, patent or any other proprietary right (including, but not limited to, using third party copyrighted materials or trademarks without appropriate permission or attribution), or (iii) includes third party information (whether or not protected as a trade secret) in violation of a duty of confidentiality;
(f) Disseminate or transmit any worms, viruses or other harmful, disruptive or destructive files, code, programs or other similar technologies; or post any material that contains software viruses or any other computer code, files, programs or other similar technologies designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
(g) Post any Content that would violate the personal privacy rights of others, including but not limited to revealing personal or private information about others without their permission;
(h) Impersonate any other person or entity; or
You may not do the following:
(a) Copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code of the Site or Services;
(b) Remove or obscure the copyright notice or other notices displayed in connection with the Content accessible through the Site or Services;
(c) Interfere with or disrupt the Site, Services, or servers and networks connected to the Site or Services, or circumvent, disable or otherwise interfere with security-related features of the Site and Services or features that prevent or restrict use or copying of any Content or that enforce limitations on use of the Site and Services;
(d) Modify the Site or Services in any manner or form, or use modified versions thereof;
(e) Sell, assign, sublicense, or otherwise transfer any right in the Content accessible through the website,
(f) Use any robot, spider, scraper, or other automated means to access the Services for any purpose;
(g) Take any action that imposes or may impose an unreasonable or disproportionately large load on the Piña Tropical infrastructure as we may determine in our sole discretion; or
(h) Knowingly disseminate or transmit any worms, viruses or other harmful, disruptive or destructive files, code, programs or other similar technologies, or otherwise utilize the Services in any manner that violates any statute, rule, or regulation.
Trademark & Copyright
All Content used and displayed on this Site (other than Member Content) include registered and unregistered trademarks, service marks, and copyrighted material belonging to Piña Tropical and others, or are otherwise protected by copyright laws. Nothing on this website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Content without our prior, written permission.
Piña Tropical hereby grants you a non-exclusive, non-transferable, revocable, limited license to access and use the Site and Services under the terms set forth below. The Site, Services and the Content, including, but not limited to, text, data, reports, opinions, software (including HTML-based computer programs), images, photos, graphics, graphs, charts, animations and video displayed may be used only for your personal and non-commercial use.
Except as otherwise permitted under these Terms of Service, you agree not to copy, reproduce, modify, create derivative works from, or store any Content, in whole or in part, from the Site or Services to display, perform, publish, distribute, transmit, broadcast or circulate any Content to anyone, or for any commercial purpose, without the express prior written consent of Piña Tropical.
If you do choose to post a review, or to provide any other Content for publication on our Site (including, but not limited to, testimonials and endorsements), you agree that we may copy, distribute, display, publish, modify or translate your Content for any purpose and in any medium worldwide without any obligation to compensate you or any other third party in any way for any such use. Such license that you are granting is royalty-free, perpetual, irrevocable and fully sub-licensable.
THE SITE AND OUR SERVICES ARE BOTH PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND. PIÑA TROPICAL MAKES NO GUARANTEES OR WARRANTIES AS TO THE WHETHER THE SERVICES WILL OPERATE CONSISTENTLY AS INTENDED, OR BE FREE OF BUGS OR OTHER DEFECTS, OR THAT ANY OF THE COTNENT DISPLAYED WILL BE ACCURATE, COMPLETE, TIMELY, OR CURRENT, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
Limitation of Liability & Release
In no event shall Piña Tropical be liable to you or any other party for any indirect, special, incidental, consequential, or punitive damages, however and wherever arising, that may result from your use of the Site or the Services including without limitation to losses incurred due to:
1. the design, administration, management, and operation of any Promotions;
2. the failure of any Member to award or fulfill a prize, or otherwise operate a Promotion in accordance with the applicable rules;
3. any inaccurate information published on the Site or Services;
4. your business dealings with any Members, Participants, third party advertisers or marketing affiliates;
5. damages or losses of any kind, including, without limitation, injuries or death, resulting from your use of the Services or participation in a Promotion;
6. any actions you take in reliance upon any information provided by the Site or Services;
7. any other damages or losses you may incur in connection with your use of the Site or Services.
IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED THE AMOUNT PAID TO PIÑA TROPICAL DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE IN WHICH THE LIABILITY AROSE.
Piña Tropical is not responsible for examining or evaluating the business practices, actions, omissions, or services of Members whose Promotions are hosted on this Site, or the Participants who enter such Promotions. IN THE EVENT OF A DISPUTE BETWEEN YOU AND A MEMBER OR PARTICIPANT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE PIÑA TROPICAL, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND LEGAL REPRESENTATIVES FROM AND AGAINST CLAIMS AND DAMAGES OF ANY KIND, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH A DISPUTE.
If you are a California resident, by using the Site, you explicitly waive the rights granted to you under California Civil Code 1542, which states: “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 his settlement with the debtor.” If you are a New Jersey resident, certain sections of these Terms of Service may not apply to you pursuant to the New Jersey Truth in Consumer Contract, Warranty, and Notice Act. Additional states may not allow this exclusion or limitation of liability, so the above limitation or exclusion may not apply to you.
All Content on this website and any intellectual property rights embodied therein are the property of or licensed to Piña Tropical or its Members. Unless otherwise stated herein, none of the Content may be copied, reproduced, modified, distributed, sold, broadcast, stored or otherwise used without the express permission of Piña Tropical or the original copyright holder. You may display and print Content available on this website solely for your personal, non-commercial use, provided that you do not modify the Content and that you retain all copyright and other proprietary notices contained in the Content. Unauthorized use of Content contained on this site is expressly prohibited by law, and may result in severe civil and criminal penalties.
Piña Tropical encourages you to report any Content on the Site that you believe infringes your rights. Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing Content. If you have a good faith belief that Content on the Site infringes your copyright, trademark, or other intellectual property rights, please follow send a written notice bearing your signature to our Copyright Agent that specifically describes the nature and location of the Content you believe to be infringing. Under the U.S. Digital Millennium Copyright Act, our designated copyright agent for notice of alleged copyright infringement appearing on the Site is:
Piña Tropical, LLC
Attention: Copyright Agent
317 Commercial St. NE Suite A
ALBUQUERQUE NM 87102
Any notices or other communications regarding copyright infringement that are sent in any manner other than as described above, or that are not relevant to copyright infringement, will receive no response. We reserve the right to remove any Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you, and/or to terminate your account if it is determined that you knowingly posted infringing Content.
Choice of Law; Forum
This document shall be governed in all respects by the laws of the United States and the State of Connecticut, regardless of conflict of law rules. Any claim or dispute you may have against us, whether subject to mandatory arbitration or otherwise, must be brought in Albuquerque, NM, except that arbitration proceedings may be conducted by telephone. For any matters not subject to mandatory arbitration, you agree to submit to the personal jurisdiction of the courts located within Albuquerque, NM for the purpose of litigating all such claims or disputes.
All claims filed or brought contrary to this section shall be considered improperly filed. Should you file a claim improperly, we may recover reasonable attorneys’ fees and costs, provided that we have notified you in writing of the improperly filed claim and you have failed to withdraw the claim promptly.
Deleting Information and Your Account
You can automatically delete information from within your account using the provided options to delete Content, or Participants.
To delete your entire account, contact us directly at [email protected]ñatropical.com. Deleting your account may not automatically make some content you’ve created go away. We may retain certain information as required by law or as necessary for our legitimate business purposes.
Arbitration Agreement and Class Action Waiver
You agree to arbitrate all disputes and claims that arise out of or relate to your use of the Site or Services. Therefore, you agree that, by using the Services, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION BASED ON OR INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC, OTHER USERS, OR PERSONS SIMILARLY SITUATED. This agreement to arbitrate includes, without limitation, claims arising out of or relating to the Service or your use thereof, regardless of when they may arise. Any arbitration proceeding brought under this section shall be conducted by an arbitration service provider chosen by Piña Tropical applying Connecticut law. The arbitration may be conducted telephonically, with the costs to be split evenly between the parties.
Limitation of Actions
Any claim or cause of action arising out of your use of the Site or Services must be filed within one year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary. Within this period, any failure by Piña Tropical to enforce or exercise any provision of these Terms of Service or any related right shall not constitute a waiver of that right or provision.
Modification and Notice of Changes
Piña Tropical reserves the right to modify these Terms of Service at any time. If we elect to modify these Terms, we will post a notice informing users of the change on the Site. You are responsible for reviewing the modified Terms of Service, and accessing this Site after any changes to these Terms have been posted thereon will constitute your acceptance of all such changes. You have the right to accept or reject any changes in these Terms. If you reject any changes in these Terms, please discontinue use of the Site and Services immediately. Unless specifically stated otherwise, any new features, products or services added to the Site shall be subject to these Terms. Some new products or features may require your acceptance of new or additional terms before use.
This Terms of Service and any document incorporated by reference herein constitute the entire agreement between you and us and govern your use of the Services, superseding any prior agreements between us.
If any provision of these Terms of Service is found by a court or other binding authority to be invalid, the remaining provisions shall continue in full force and effect.