Make Tonight Count Pty Ltd
END USER LICENSE AGREEMENT
Use of the Service
You may use the Service only if you can form a binding contract with Make Tonight Count, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any registration, use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement.
If you use our iPhone application, in addition to the terms of this Agreement, that use is governed by the Licensed Application End User License Agreement available at http://www.apple.com/legal/itunes/appstore/us/terms.html, which is incorporated by reference into this Agreement (the “iPhone EULA”).
You agree to defend, indemnify and hold harmless Make Tonight Count and its licensees and licensors, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
(i) your use of and access to the Service, including any data or Content transmitted or received by you;
(ii) your violation of any provision of this Agreement; or
(iii) any other party’s access or use of the Service with your username and password or other appropriate security code.
Content on the Service
“Content” means any information, text, graphics, or other materials uploaded, downloaded or appearing on the Service. Content includes, but is not limited to, all the plan information you submit for publication on the Service. You retain ownership of all Content you submit, post, display, or otherwise make available on the Service.
By submitting, posting or displaying Content on or through the Service, you grant and agree to grant Make Tonight Count a perpetual, non-exclusive, irrevocable, fully paid-up, royalty-free worldwide right and license (with the right to sublicense) to use, reproduce, adapt, modify, publish, transmit, perform, display, delete (in whole or in part), distribute, and make derivative works of such Content in any and all media or distribution methods (now known or later developed). You agree that this license includes the right for Make Tonight Count to make your Content available to others for the publication, distribution, syndication, or broadcast of such Content on other media and services.
We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable, license to use the Service. Make Tonight Count reserves all rights not expressly granted herein in the Service and the Make Tonight Count. Make Tonight Count may terminate this license at any time for any reason or no reason.
Your Content may be able to be viewed by other users of the Service and through third party services and websites. You should only provide Content that you are comfortable sharing with others under the terms of this Agreement. All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content.
We may not monitor or control the Content posted via the Service and, we do not take responsibility for such Content. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Service or endorse any opinions expressed via the Service. Any use or reliance on any Content or materials posted via the Service or obtained by you through the Service is at your own risk. You understand that by using the Service, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or postings that have been mislabelled or are otherwise deceptive. Under no circumstances will Make Tonight Count be liable in any way for any 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 via the Service or broadcast elsewhere.
You are responsible for your use of the Service, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and third parties partners. You understand that your Content will be published on the Service and may be republished, and if you do not have the right to submit Content for such use, it may subject you to liability. Make Tonight Count will not be responsible or liable for any use of your Content by Make Tonight Count in accordance with this Agreement. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit, and that Make Tonight Count’s use of your Content in accordance with this Agreement will not violate any law or infringe the rights of any third party.
Restrictions on Content and Use of the Service
You agree not to use the Application or the Service to:
(a) upload, post, e-mail, or otherwise transmit any Content that contains personally identifiable information, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
(b) harm minors in any way or upload, post, e-mail, or otherwise transmit Content that in any way refer to person(s) under 18 years of age;
(c) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
(d) upload, post, e-mail, or otherwise transmit Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships, or under nondisclosure agreements);
(e) upload, post, e-mail, or otherwise transmit Content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
(f) upload, post, e-mail, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other forms of solicitation;
(g) upload, post, e-mail, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
(h) interfere with or disrupt the Service, or disobey any requirements, procedures, policies, or regulations of networks related thereto;
(i) intentionally or unintentionally violate any applicable local, state, national, or international law, “stalk” or otherwise harass another, or collect or store personal data about other users;
(j) use any automated means to access the Service or collect any information from the Service (including, without limitation, robots, spiders, or scripts); or
(k) utilize framing techniques to enclose any service mark, logo, or other proprietary information, place pop-up windows over its pages, or otherwise affect the display of its pages. This means, among other activities, that you must not engage in the practices of “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information.
We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Service and to terminate users. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to
(i) satisfy any applicable law, regulation, legal process or governmental request,
(ii) enforce this Agreement, including investigation of potential violations hereof,
(iii) detect, prevent, or otherwise address fraud, security or technical issues,
(iv) respond to user support requests, or
(v) protect the rights, property or safety of Make Tonight Count, its users and the public.
Third Party Links
The Service may contain links to third-party websites or resources. You acknowledge and agree that we are not responsible or liable for:
(i) the availability or accuracy of such websites or resources; or
(ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Make Tonight Count of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
You are responsible for safeguarding the password that you use to access the Service and for any activities or actions under your password. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. Make Tonight Count will not be liable for any loss or damage arising from your failure to comply with these requirements.
Any feedback, comments, or suggestions you may provide regarding Make Tonight Count, or the Service are entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you. You hereby assign and agree to assign all of your right, title, and interest in and to such Feedback to Make Tonight Count. To the extent that the foregoing assignment is ineffective for whatever reason, you hereby grant and agrees to grant to Make Tonight Count a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit such Feedback without restriction.
User acknowledges that the Service, the terms of this Agreement, and any other proprietary or confidential information provided to User by Make Tonight Count Pty Ltd, of New South Wales, Australia ("Make Tonight Count" “our,” “us,” or "we") constitutes valuable proprietary information and trade secrets of Make Tonight Count. User agrees no to use or disclose the Make Tonight Count Confidential Information for any purpose not expressly authorized by this Agreement. Make Tonight Count may obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section. User agrees to promptly report any breaches of this section to Make Tonight Count.
You agree that Make Tonight Count may include the name, logo, and success stories of users on Make Tonight Count’s website, press releases, promotional and sales literature, and advertising materials.
The Service may include advertisements, which may be targeted to the Content or information on the Service, or other information. In consideration for Make Tonight Count granting you access to and use of the Service, you agree that Make Tonight Count and its third party providers and partners may place such advertising on the Service or in connection with the display of Content or information from the Service whether submitted by you or others.
Termination of Service
You agree that Make Tonight Count, in its sole discretion, may terminate your use of the Service, and remove and discard any Content, for any reason, including, without limitation, for lack of use or if Make Tonight Count believes that User has violated or acted inconsistently with the letter or spirit of this Agreement. Make Tonight Count may also in its sole discretion and at any time modify or discontinue providing the Service, or any part thereof, with or without notice including, without limitation, by instituting usage limits for the Service. Any modification or termination of User’s access to the Service may be effected without prior notice, and User acknowledges and agrees that Make Tonight Count may immediately deactivate or delete the Data and User’s access to the Service. Upon termination, all rights and obligations of the parties shall survive termination.
Your access to and use of the Service or any Content is at your own risk. You understand and agree that the Service is provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, Make Tonight Count AND ITS PARTNERS DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. We make no warranty and disclaim all responsibility and liability for the completeness, accuracy, availability, timeliness, security or reliability of the Service or any content thereon. Make Tonight Count will not be responsible or liable for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Service, or any Content. You also agree that Make Tonight Count has no responsibility or liability for the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Service. We make no warranty that the Service will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from Make Tonight Count or through the Service, will create any warranty not expressly made herein.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Make Tonight Count AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT Make Tonight Count HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
In the interpretation of this Agreement, the following provisions apply unless the context requires otherwise: (i) Heading are inserted for convenience only and do no affect the interpretation of this Agreement. (ii) A reference to the word ‘include’ or ‘including’ in this document is to be construed without limitation. (iii) An expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or governmental agency.
This Agreement is governed by the law of New South Wales, Australia. The parties to this agreement submit to the non-exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.
This Agreement, and if applicable the iPhone EULA, is the entire and exclusive agreement between Make Tonight Count and you relating to the subject matter hereof, and this Agreement supersedes and replaces any prior agreements between Make Tonight Count and you regarding the Service. The failure of Make Tonight Count to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
Make Tonight Count Pty Ltd
Information Collection and Use
Make Tonight Count uses information we collect to analyse how the Service is used, diagnose service or technical problems, maintain security, personalise content and advertising, remember information to help you efficiently access your account, monitor aggregate metrics such as total number of visitors, traffic, and demographic patterns, and track user Content and users as necessary to comply with applicable laws.
User-Provided Information: You provide us information about yourself, such as your name and e-mail address, when you register for the Service. If you choose to log in to the Service with your account on another online service, we will collect and store your log-in information for that account. If you visit the Service while you’re logged in to another online service that partners with Make Tonight Count, the Service may help you get started on Make Tonight Count by automatically gathering information about you from the partner service and using it to create a Make Tonight Count account for you. The Service will provide you with an option to opt out of such an account.
Your name and other information you add to your profile will be publicly displayed on the Service, subject to any privacy settings that the Service may make available and that you choose to implement. Make Tonight Count does not display your email address or your mobile phone number.
You also provide us information in Content you post to the Service. All Content you post to the Service and metadata about such (such as when you posted it), may be publicly viewed. Plans can be viewed on the Service by all users who subscribe to the Plan’s author, subject to the privacy settings that the Plan’s author imposes when posting a Plan, and will be published to third-party media as the Plan’s author may select (for instance, services such as Facebook or Twitter). Comments can be viewed on the Service by all users who subscribe to the associate Plan’s author subject to the privacy settings that the associated Plans author imposed when posting a Plan
The Service may provide you the option to connect your Make Tonight Count account to another online service in order to publish your plan information from that service on Make Tonight Count. If you choose to do this, all your plan information from that service will be automatically published as Plans on the Service. You may disconnect your account from such third-party services at any time.
We may use your contact information to send you Service-related notices (including any notices required by law, in lieu of communication by postal mail). We may also use your contact information to send you marketing messages. If you do not want to receive such messages, you may opt out by following the instructions in the message. If you correspond with us by email, we may retain the content of your email messages, your email address and our responses.
If you choose to use our invitation service to invite a friend to join the Service, Make Tonight Count may store this information to and track the success of our invitation service.
Cookies: When you visit the Service, we may send one or more “cookies” - a small data file - to your computer to uniquely identify your browser and let Make Tonight Count help you log in faster and enhance your navigation through the Service. A cookie may convey anonymous information about how you browse the Service to us, but does not collect personal information about you. A persistent cookie remains on your computer after you close your browser so that it can be used by your browser on subsequent visits to the Service. Persistent cookies can be removed by following your web browser’s directions. A session cookie is temporary and disappears after you close your browser. You can reset your web browser to refuse all cookies or to indicate when a cookie is being sent. However, some features of the Servicemay not function properly if the ability to accept cookies is disabled.
Log Files: Log file information is reported by your browser each time you access a web page. When you use the Service, our servers automatically record certain information that your web browser sends whenever you visit any website. These server logs may include information such as your web request, Internet protocol (“IP”) address, browser type, referring / exit pages and URLs, number of clicks, domain names, landing pages, pages viewed, and other such information.
Clear Gifs Information: We may employ clear gifs (also known as web beacons) to track the online usage patterns of our users anonymously. No personally identifiable information from your Make Tonight Count account is collected using these clear gifs. In addition, we may also use clear gifs in HTML-based emails sent to our users to track which emails are opened by recipients. The information is used to enable more accurate reporting and make Make Tonight Count better for our users.
Third Party Services:
Make Tonight Count may use Google Analytics or other services to help understand use of the Service. These services collect the information sent by your browser as part of a web page request, including cookies and your IP address. These services also receive this information and their use of it is governed by their Privacy Policies.
How We Share Your Information
As we develop our business, we may buy or sell assets or business offerings. Customer, email, and visitor information is generally one of the transferred business assets in these types of transactions. We may also transfer or assign such information in the course of corporate divestitures, mergers, or dissolution.
We may share or disclose your information with your consent, such as if you choose to log in to the Service through a third-party service. We cannot control third parties’ use of your information.
Make Tonight Count may disclose your personal information if required to do so by law or subpoena or if we believe that it is reasonably necessary to comply with a law, regulation or legal request; to protect the safety of any person; to address fraud, security or technical issues; or to protect Make Tonight Count’s rights or property.
Non-Personally Identifiable Information: We may share non-personally identifiable information (such as anonymous usage data, referring/exit pages and URLs, platform types, number of clicks, etc.) with interested third parties to help them understand the usage patterns for certain Make Tonight Count services.
How We Protect Your Information
Make Tonight Count uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. We cannot, however, ensure or warrant the security of any information you transmit to Make Tonight Count or guarantee that your information on the Service may not be accessed, disclosed, altered, or destroyed by breach of any of our physical, technical, or managerial safeguards.
Your Choices About Your Information
You may, of course, decline to submit personally identifiable information through the Service, in which case Make Tonight Count may not be able to provide certain services to you. You may update or correct your account information and communication preferences at any time by logging in to your account.
Protecting the privacy of young children is especially important. Make Tonight Count does not knowingly collect or solicit personal information from anyone under the age of 13 or knowingly allow such persons to register with Make Tonight Count. If we become aware that we have collected personal information from a child under age 13 without verification of parental consent, we take steps to remove that information.