Revised: September 23, 2019
THESE TERMS OF USE CONTAIN LEGAL OBLIGATIONS. PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING A MY BROTHER DARRYL SITE.
Introduction
Welcome to the Internet sites of My Brother Darryl and its subsidiaries (“MBD”). These Terms of Use apply to all MBD Internet sites which reference these Terms of Use, including mybrotherdarryl.com, promodem.com and yowinner.com (each a “MBD Site” and collectively the “MBD Sites”). By using a MBD Site, or any of the products or services (collectively the “Services”) available on a MBD Site, you agree, without limitation or qualification, to be bound by these terms and conditions and such other additional or alternative terms, conditions, rules and policies which are displayed or to which you may be directed in connection with any particular MBD Site or Service, all as may be modified by MBD from time to time in its sole discretion (collectively the “Terms of Use”). If you do not agree with these Terms of Use, you may not use a MBD Site or any of the Services on a MBD Site.
Please note that we reserve the right, at our discretion, to change, modify, add, or remove portions of these Terms of Use at any time. Please check periodically for changes. Your continued use of a MBD Site following the posting of any changes to these Terms of Use will mean you accept those changes.
Privacy
For information on how user information is collected, used and disclosed by MBD in connection with your use of a MBD Site and any of the Services, please consult our Privacy Policy.
Registration, Accounts And Passwords
Certain and related features made available on a MBD Site may require registration or subscription. Should you choose to register or subscribe for any such Services or related features, you agree to provide accurate and current information about yourself as required by the relevant registration or subscription process, and to promptly update such information as necessary to ensure that it is kept accurate and current information about yourself as required by the relevant registration or subscription process, and to promptly update such information as necessary to ensure that it is kept accurate and complete. You agree to be responsible for: (a) maintaining the confidentiality of any passwords or other account identifiers which you choose or are assigned as a result of any registration or subscription on a MBD Site, and (b) all activities that occur under such password or account. MBD shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to comply with this Section.
Restrictions On User Of Materials
All material, information and content (collectively “Content”) available on a MBD Site, including the manner in which such Content is presented, and the Services are: Copyright 2003-2019 My Brother Darryl, its affiliates and/or licensors. All rights reserved. Such Content is protected by Canadian and worldwide copyright laws and treaty provisions. MBD grants you a limited non-exclusive, non-transferable license to use and display on your computer or other electronic access device, the Content and Services for your own personal and non-commercial use only, provided that you do not modify the Content and that you maintain all copyright and other proprietary notices. Except as provided herein, you agree not to reproduce, make derivative works of, retransmit, distribute, sell, publish, communicate, broadcast or otherwise make available any Content obtained through a MBD Site or any of the Services, including without limitation, by caching, framing or similar means, without the prior written consent of the respective copyright owner of such Content.
Trademarks
MBD, My Brother Darryl, Promodem Media, mybrotherdarryl.com, promodem.com, yowinner.com, ‘the best community for online sweepstakes, contests, giveaways and surveys’, ‘the contest community’, ‘where Canadians can qualify to win daily’, ‘Your Promotions Solution Center’, ‘The Solution People’ are trademarks of My Brother Darryl. All other product, brand and company names and logos used or mentioned on a MBD Site or any of the Services may be the trademarks or registered trademarks of their respective owners. Any use of any trademarks appearing on a MBD Site or any of the Services without the express written consent of the owner of the trademark is strictly prohibited.
User Conduct
In consideration of the availability, and your use of a MBD Site or any of the Services, you agree to comply with all applications laws and these Terms of Use when using such MBD Site or Service. You acknowledge that MBD may investigate any violations of law and may cooperate with law enforcement authorities in prosecuting users in this regard. Additionally, you agree not to:
- post, transmit, link to, or otherwise distribute any materials, information or content constituting, advocating or encouraging conduct that would constitute a criminal offense or give rise to civil liability, or otherwise use a MBD Site or any of the Services in a manner which is contrary to law or would serve to restrict or inhibit any other user from using or enjoying a MBD Site, any of the Services, or the Internet;
- post, transmit, link to, or otherwise distribute any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful material or information;
- post, transmit, link to, or otherwise distribute any information, materials or content (including for greater certainty, software) which contains a virus, cancelbot, trojan horse, worm or other harmful or disruptive component.
Responsibility For Minors
In cases where you have authorized a minor to use a MBD Site or any of the Services, you recognize that you are fully responsible for: (i) the online conduct of such minor; (ii) controlling the minor’s access to and use of a MBD Site or any of the Services; and (iii) the consequences of any misuse by the minor. You acknowledge that some of the areas of a MBD Site may contain material that is inappropriate for minors.
Forums And Content Submissions
By uploading materials to any chat board or forum available on a MBD Site (collectively “Forums”) or otherwise submitting any materials to us through any other content generating or submitting Service on a MBD Site, you automatically grant (or warrant that the owner of such materials expressly grants) MBD a world-wide, perpetual, royalty-free, irrevocable and nonexclusive right and license to use, copy, adapt, transmit, communicate, publicly display and perform, distribute and create compilations and derivative works from such submitted materials, for the limited purposes of publishing and promoting such materials in connection with the Forum or other Service through which the materials were submitted or generated, and for all promotions thereof. Such license shall apply with respect to any form, media, or technology now known or later developed. In addition, you warrant that all “moral rights” in such materials have been waived.
When participating in a Forum, never assume that people are who they say they are, know what they say they know, or are affiliated with whom they say they are affiliated. MBD cannot be responsible for the content or accuracy of any information, and will not be responsible for any reliance or decisions made based on such information. When using a Forum, you may not post, transmit, link to, or otherwise distribute any information, materials or content that do not generally pertain to the designated topic or theme of the particular Forum. Use of a Forum for commercial purposes of any kind is strictly prohibited. Please note that MBD reserves the right to refuse to post or to remove any information or materials, in whole or in part, in its sole discretion, are unacceptable, undesirable, or in violation of these Terms of Use.
Disclaimer
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) A PM SITE AND ANY OF THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THAT PM MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS (as used in this section “WARRANTIES”) OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND THAT ANY SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED, AND (B) PM SPECIFICALLY MAKES NO WARRANTIES THAT A PM SITE OR ANY OF THE SERVICES, INCLUDING ANY CONTENT, INFORMATION, PRODUCTS OR SERVICES OBTAINED FROM OR THROUGH THE USE OF A PM SITE OR ANY OF THE SERVICES, WILL BE PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS OR THAT SUCH SERVICES OR THE RESULTS DERIVED THEREFROM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.
Disclaimer Regarding Search Content
Any and all pictures, sounds, sound effects, sound recordings, musical works, performances, graphics, video, cinematic productions, audio-visual works and any other works (the “Multimedia Content”) located through a MBD Site’s search services are protected by copyright and/or other intellectual property laws. MBD does not have the right to authorize you to reproduce, distribute, publicly display, publicly perform, communicate, or create derivative works from any files containing such Multimedia Content. Where search results link to sites outside a MBD Site, all of the Multimedia Content contained on such sites is owned and served by entities other than MBD. MBD provides you with the URL or address of the Multimedia Content; this information may be used to determine the server of the Multimedia Content. If you intend to make use of any Multimedia Content accessed through a MBD Site’s search services for commercial or noncommercial purposes, we strongly suggest that you contact the server and/or owner of the Multimedia Content for permission to use such Multimedia Content.
Monitoring
You acknowledge that MBD has no obligation to monitor a MBD Site or any content accessible through a MBD Site or any of the Services. However, you agree that MBD has the right to monitor a MBD Site electronically from time to time and to disclose any information as necessary to satisfy any law, regulation or other governmental request, to operate a MBD Site or any of the Services properly, or to protect itself or its users in accordance with the Privacy Policy.
Modifications
MBD reserves the right, in its sole discretion, to add, remove, modify or otherwise change any part of these Terms of Use, in whole or in part, at any time. Except as otherwise expressly contemplated herein, changes will be effective when notice of such change is posted on a MBD Site. Please check these Terms of Use regularly for updates by checking the date of “Last Update” at the top of this document. If any change is not acceptable to you, you must discontinue your use of a MBD Site and any of the Services immediately. Your continued use of a MBD Site or any of the Services after any such changes are posted will constitute acceptance of those changes. Further, MBD reserves the right to change, modify, suspend or discontinue any aspect of a MBD Site, Services or Content from time to time without notice or liability and for any reason whatsoever.
Downloads And Shareware
Certain MBD Sites allow you to download software applications or other forms of Content, including files, images and/or data incorporated therein (collectively, the “Software”). The Software is made available to you by MBD or third parties subject to the terms and conditions made available to you during the software installation process. Additionally, you agree that the Software is licensed to you by MBD or third parties for your personal and non-commercial use only provided that you do not modify the Software and that you maintain all copyright and other proprietary notices and that MBD or the designated third parties retain full and complete title to the Software and all intellectual property rights therein. You may not redistribute, sell, de-compile, reverse engineer, disassemble, or otherwise reduce the Software to a human-readable form. You agree that it is your responsibility to review and evaluate the Software and the related terms and conditions, and that all risk associated with the use of, or reliance on, the Software rests with you. You further agree that MBD, including its suppliers, shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with your use of, or reliance on, the Software, including the failure of the Software to meet your needs, standards, expectations or specifications.
Content Linked To A MBD Site
Please exercise discretion while browsing the Internet. Please note that certain links on a MBD Site may take you to other websites. MBD provides these links only as a convenience and not as an endorsement by MBD. These linked sites are not necessarily under the control of MBD. If you decide to visit any linked site, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses and other destructive elements. MBD is not responsible for the content of any such linked sites or any other web page which is not part of a MBD Site and under MBD’s control. Unless otherwise expressly provided, MBD makes no representation or warranty regarding, and does not endorse, any linked site or the information, products or services appearing thereon. Accordingly, you agree that MBD will not be responsible or liable in any way for the accuracy, relevancy, copyright compliance, legality, or decency of material contained in any site linked from a MBD Site.
Dealings With Third Parties
You acknowledge and agree that your correspondence or business dealings with any third parties, including any merchants or advertisers, found on, or through, a MBD Site or any of the Services, including payment for and delivery of related goods and services, and all other terms, conditions, representations and warranties related to such dealings, are solely between you and such third parties. MBD assumes no responsibility whatsoever for any charges you or any user of your account incurs when making purchases or other transactions in this manner. Further, the responsibility for ensuring compliance with all applicable laws in connection with any such transactions shall be yours alone. You agree that MBD shall not be responsible or liable in any way for any loss or damage of any kind incurred as a result of, or in connection with, any such dealings or transactions.
Indemnification
You agree to defend, indemnify and hold harmless each of MBD, its affiliates and licensors and each of their respective officers, directors, employees and agents, including all third parties mentioned on a MBD Site, from and against any and all claims, actions or demands, including without limitation reasonable legal and accounting fees, resulting from or related to: (a) your breach of any of these Terms of Use; (b) your access to or use of a MBD Site, Services or Content; or (c) your use or reliance on, or publication, communication or distribution of anything on or from a MBD Site or through any of the Services. You shall use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
Limitation Of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL MBD, INCLUDING ITS AFFILIATES AND LICENSORS, BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, AND ANY DAMAGES FOR LOSS OF PROFITS, SAVINGS, GOODWILL OR OTHER INTANGIBLE LOSSES, REGARDLESS OF WHETHER MBD HAD BEEN ADVISED OF OR COULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (A) THE USE, INABILITY TO USE OR PERFORMANCE OF ANY OF THE SERVICES OF A MBD SITE, OR (B) ANY UNAUTHORIZED ACCESS TO OR MODIFICATION TO ANY OF YOUR CONTENT OR TRANSMISSIONS, OR (C) ANY OTHER MATTER RELATING TO A MBD SITE OR ANY OF THE SERVICES.
You expressly acknowledge that MBD has entered into this agreement, and has and will make a MBD Site, Content and Services available to you in reliance upon the limitations and exclusions of liability and the disclaimers set forth herein, and that the same form an essential basis of the bargain between you and MBD. You expressly agree that the limitations and exclusions of liability and the disclaimers set forth herein will survive, and continue to apply in the case of a fundamental breach or breaches, the failure of essential purpose of contract, the failure of any exclusive remedy or termination of this agreement.
Governing Law/Jurisdictional Issues
All MBD Sites and Services are controlled, operated and administered by MBD from its offices within Canada. MBD makes no representation or warranty that a MBD Site or any of the Services are appropriate or available for use at any locations outside Canada. If you access an MDB Site from outside Canada, you are responsible for compliance with all applicable laws. You may not export any of the Content accessible through a MBD Site in violation of applicable export laws and regulations. These Terms of Use shall be interpreted, construed and governed by the laws in force in the Province of Ontario, Canada, without reference to its conflict of laws principles. Subject to the Arbitration and Actions paragraph below, each party hereby agrees to submit to the jurisdiction of the courts of the Province of Ontario and to waive any objections based up venue. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Use.
Arbitration And Actions
Any controversy, claim or dispute arising out of or relating to these Terms of Use, your use of any MBD Site or Service or the relationship which results from these Terms of Use, including without limitation, the performance, breach, enforcement, existence or validity of the matters provided for in these Terms of Use which cannot be amicably resolved, even if only one of the parties declares that here is a difference (collectively, a “Claim”), will be referred to and finally settled (to the exclusion of the courts) by private and confidential binding arbitration before a single arbitrator held in Toronto, Ontario in English and governed by Ontario law pursuant to the Arbitration Act, 1991 (Ontario), as amended, replaced or re-enacted from time to time. The arbitrator shall be a person who is legally trained and who has experience in the information technology field in Canada and is independent of either party. Any such Claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim, controversy or dispute of any other party. You agree to waive any right you may have to commence or participate in any class action against us related to any Claim and, where applicable, you also agree to opt out of any class proceedings against us. Notwithstanding the foregoing, we reserve the right to pursue the protection of intellectual property right and confidential information through injunctive or other equitable relief through the courts.
Termination
You acknowledge and agree that MBD, in its sole and absolute discretion, may, without notice to you, suspend or terminate your account or your use of, or access to a MBD Site or any of the Services, and remove and discard any information or content related to a MBD Site or any of the Services (and your use thereof), for any reason, including where MBD believes that you have violated any of these Terms of Use. You further agree that MBD shall not be liable to you or to any other person as a result of any such suspension or termination. If you are dissatisfied with a MBD Site or any of the Services or with any terms, conditions, rules, policies, guidelines, or practices of MBD in operating a MBD Site or any of the Services, your sole and exclusive remedy is to discontinue using a MBD Site or any of the Services.
Submission Of Ideas And/Or Suggestions
MBD is always improving its websites and Services and developing new features. If you have ideas and/or suggestions regarding improvements or additions, we would like to hear them – but any submission will be subject to these Terms of Use. UNDER NO CIRCUMSTANCES SHALL ANY DISCLOSURE OF ANY IDEA AND/OR SUGGESTION OR RELATED MATERIAL TO MBD BE SUBJECT TO ANY OBLIGATION OF CONFIDENTIALITY OR EXPECTATION OF COMPENSATION. BY SUBMITTING THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL TO MBD, YOU ARE WAIVING ANY AND ALL RIGHTS THAT YOU MAY HAVE IN THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL AND ARE REPRESENTING AND WARRANTING TO MBD THAT THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL ARE WHOLLY ORIGINAL WITH YOU, THAT NO ONE ELSE HAS ANY RIGHTS IN THE IDEA AND/OR SUGGESTION AND TO USE THE RELATED MATERIAL IF IT SO DESIRES, AS PROVIDED OR AS MODIFIED BY MBD, WITHOUT OBTAINING PERMISSION OR LICENSE FROM ANY THIRD PARTY.
General Provisions
This agreement is personal to you, and you may not assign your rights or obligations to anyone. These Terms of Use constitute the entire agreement between MBD and you pertaining to your use of a MBD Site, Services and Content and supercede any prior agreements between you and MBD with respect to the subject matter hereof. MBD’s failure to insist upon or enforce strict performance of any right or provision of these Terms of Use shall not constitute or be construed as a waiver of any right or provision. If any of the provisions (or parts thereof) contained in these Terms of Use are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions (or parts thereof) contained herein. No changes to these Terms of Use shall be made except by a revised posting on this page or except as otherwise expressly contemplated herein. The parties have required that these Terms of Use and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents que s’y rattachent soient rédigés en anglais.
