CLIENT TERMS AND CONDITIONS
Last updated July 27, 2020
Please read this Client Terms and Conditions (“Terms” or “CTAC”) carefully before using the White Label Application(s) Digital Channel(s), or the FanHero Platform (the “Application(s)”) operated by FanHero, LLC, a FanHero entity or a FanHero Affiliate (“us”, “we”, “our”, or “FanHero”). White Label Application(s) and Digital Channel(s) may be collectively referred to as “Branded Application(s)”)
You are accessing the Applications because you are either a Client of ours or you have been authorized by the Client to access the Applications on their behalf. The use of “you” or “your” throughout this CTAC refers collectively to the Client and to any person accessing the Applications on behalf of the Client. By accessing the Applications, you represent and warrant to us that you have been authorized by the Client to access the Applications and to edit, delete, post or manage Client Content on behalf of the Client.
Your access to and use of the Applications is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Applications.
By accessing or using the Applications, you agree to be bound by these Terms. If you disagree with any part of the terms and conditions contained herein then you do not have permission to access the Applications. We reserve the right to modify or amend this CTAC from time to time.
You may access and utilize the Applications only under the condition that you have entered into, or are a party to, a White Label Application Agreement, or a Digital Channel Agreement (the “Agreement”) with FanHero that is and remains in full force and effect and for which the term has not expired. The economic terms between you and us are set forth in the Agreement or the Order Form. In addition to the terms and conditions set forth in the Agreement, the terms and conditions of this CTAC also are applicable to and binding upon the contractual relationship between you and FanHero. For all matters covered within this CTAC, the terms and conditions of this CTAC shall supersede the Agreement in the event of any conflict or ambiguity. Further, this CTAC is subject to modification and amendment from time to time with or without notice. Your continued access to and use of the Applications is your agreement that the most recent version of the CTAC shall take precedence over any earlier version. Any capitalized terms used herein and not defined within the CTAC have the meaning as defined in the Agreement or the Order Form.
The Applications are provided to you as part of the FanHero Platform to enable you to a) post and manage Client Content, and b) gain access to certain End User data and analytical tools.
The Terms may be provided in languages other than English. In all such cases, translations are provided for convenience only. The governing version of the Terms are the English language version only.
All items posted to or published on the Applications by you using the Applications are included in the definition of and comprise part of the Client Content. If you are acting on behalf of the Client, you represent and warrant to us and the Client that a) the Client is either i) the owner of all Client Content for all legal purposes, including under all copyright laws, or ii) has all required permissions and authority necessary to post or publish such Client Content; and b) all actions and creative input undertaken by you and posted or published to the Applications are done as “works for hire” under the copyright laws of the United States and are the property of the Client; and c) you waive any and all claims you may have globally and perpetually to any of the Client Content and irrevocably assign any such claims to the Client.
In the event that any of the Client Content contains any third-party information, materials or content, you agree that you are responsible, at your sole cost, to obtain all consents, approvals and Intellectual Property Rights that may be necessary or advisable in order for such third party information, material or content to be used in or incorporated into Applications. You agree that you are responsible for the Client Content and will bear all costs related thereto or resulting therefrom.
You represent and warrant to us that you are the owner of and possess all rights and privileges necessary to post the Client Content and that none of the Client Content shall be in violation of any obligations or restrictions from any contract or agreement that you are subject to.
Conditions of Use
By using the Applications, you agree that you (i) are solely responsible for administering access privileges with respect to your internal users and maintaining the security of all user names, passwords, and other confidential information relating to your use of Applications; (ii) will promptly report to us any errors or irregularities in the performance of Applications and cooperate with us to diagnose any such errors or irregularities; (iii) will not cause a breach of any agreements between you and any third parties, or unreasonably interfere with our relationships with any of our third-party service providers; (iv) will perform your obligations hereunder and ensure that your use of Applications shall comply with any and all applicable agreements, laws, rules, and regulations; (v) assume full responsibility for all risk associated with your use of the Applications, including, but not limited to, any financial obligations arising with respect to third parties (including End Users) resulting from your use of the Applications; and (vi) ensure that your internal users comply with all terms and conditions of the Agreement and this CTAC.
You agree that you are subject to and bound by agreements (“Network Agreements”) that are in place and mandatory in order for Applications to be offered via the Distribution Network. You agree that we may take actions to edit or remove Client Content that we become aware is in violation of one or more terms of the Network Agreements. We reserve the right at all times to edit or remove Client Content that we believe may be fraudulent, unauthorized or illegal in nature.
We hereby grant you a limited, non-exclusive, non-transferable right during the Term to access and use the Applications (but not to access or use the source code relating to the Applications), including all data relevant to End Users. You agree that you will use the Applications in accordance with the Agreement and this CTAC. You agree that all data regarding End Users that resides on the FanHero Platform and is our property.
You agree that you have no rights with respect to the Applications except as expressly set forth in the Agreement and this CTAC. Nothing contained in the Agreement of this CTAC shall be construed to permit you, or any third party representing, posting or working on behalf of or at your direction, to: (i) alter, copy, modify, translate, reverse engineer, decompile, disassemble, create derivative works of, or otherwise attempt to derive any source code of the Applications; or (ii) sublicense, distribute, sell, assign, transfer, lease, rent, disclose, or provide access to the Applications to any third party. You acknowledge and agree that all End Users will be required to accept the End User License Agreement (“EULA”) with us as a condition to use the Applications, and that the EULA may be modified from time to time. In the event that FanHero is providing you with a White Label Application, you shall then be responsible to publish your own version of the EULA (“Client EULA”), for which you shall incur, at your own responsibility, any and all costs associated with preparing, drafting, and publishing such Client EULA. You further represent and warrant that Client EULA is in substantial conformity with the EULA including, but not limited to, data protection, data privacy, user privacy terms, policies, and other guidelines terms contained in the EULA. FanHero shall have the right, but not the obligation, to review and reject the Client EULA in the event that it conflicts, or it is not in substantial conformity with the EULA. You further represent and warrant that Client EULA is in full compliance with the laws, regulations, and policies of the United States of America.
You hereby grant to us a non-exclusive, royalty-free, worldwide license to use, copy, arrange, compile, edit and publicly display and create derivative works of the Client Content for the purposes contemplated by the Agreement and to provide the Client Content to our authorized licensees and vendors. We understand that such License will end upon the deletion of the Client Content by you from Applications; provided, however, that such deleted Client Content that has been shared with others by us or End Users is outside our direct control and may not be deleted. You understand that we may retain deleted Client Content in backup copies for a reasonable period of time but such deleted Client Content will not be made available to others.
Cooperation Between the Parties
We agree to cooperate and work with you to address your issues and concerns and to jointly work to optimize the value of Branded Applications. This includes our commitment to notify you in a timely manner regarding any significant issues that we become aware that may impact the Applications.
As set forth in the Agreement, you recognize that the success of Branded Applications may depend on ongoing cooperation with us. You have granted us authority to manage Branded Applications and you agree that we can access Branded Applications to enable that authority.
You agree to notify us whenever you are approached by or in discussion with third parties who may be interested in placing advertising or sponsoring on Branded Applications.
Posting by Us to Branded Applications
You agree to allow us to post content on your behalf to the Branded Applications; provided, however, that such content is approved by you prior to posting. The purpose of any such postings, which will be included in Client Content, would be to enhance Client Content. Your approval of our posting of such content may be provided electronically and shall be deemed approved upon being transferred to us by you.
End User Content and Moderation
You agree that End Users will be allowed to enter reactions and other content directly into Branded Applications (“End User Content”). Such End User Content may include emoticons, comments, text or video and photographic creations, but does not include personal identifying, demographic or other information about the End User that is derived from the End User’s utilization of the Applications. End User Content is subject to the terms of the EULA then in effect. You acknowledge and agree that neither we nor you can control End User Content and, therefore, End User Content that is negative, negligent or derogatory in nature may appear. You will work diligently to moderate, edit or remove such End User Content that is in violation of any of the terms and conditions of this CTAC, the EULA or any Distribution Network agreements. In addition, you grant us the authority to edit or remove any such End User Content about which we become aware. End User Content is part of the Client Content for all purposes of intellectual property ownership.
Third Party Software and Vendors
You acknowledge and consent to our use of various third-party companies (“Third Party Vendors”) that provide software and services that support and enhance the Applications. The terms and conditions of all Third-Party Vendors are pursuant to contracts entered between us and them. We may provide and share information, including information on End Users and Client Content, with Third-Party Vendors as required to fulfill the purposes of the Applications, including supporting your and our ability to generate revenue from the Branded Applications.
You acknowledge that, while we seek to use Third Party Vendors with the highest industry reliability standards, we are not responsible for technological or other failures experienced by such Third Party Vendors that affect the Applications. In any such scenario, we will work diligently with our Third Party Vendors to seek resolution as quickly as commercially feasible.
Third Party Social Media Channel Access
You acknowledge and agree that the Applications are designed to facilitate social postings by you or your representatives using the Applications. You grant us the limited right to access your accounts on third party social media channels, such as Facebook and Twitter, in order to accomplish the social media posting functions built into the Applications.
Applicable Laws and Regulations
The Branded Applications are made available globally to End Users via the Distribution Network and are therefore subject to a wide variety of laws, rules and regulations which are constantly changing, evolving and subject to interpretation. You and we agree that it is not practical or possible to know or foresee all such laws, rules and regulations which may potentially impact the Applications. However, you and we agree to abide by any such laws, rules and regulations to the best of our abilities and to take immediate action in the event that you or we become aware of any actual or potential violations. You agree that we may take actions to edit or remove Client Content that we become aware is in violation of one or more such laws, rules or regulations.
Specifically, you acknowledge that the Applications, including all Client Content, are subject to the Digital Millennium Copyright Act (“DMCA”) and the World Intellectual Property Organization Copyright Treaty (“WIPO”). You agree that you will abide by the terms of the DMCA and WIPO. You agree that we may act quickly in the event we become aware of any claim, violation or action pursuant to the DMCA and WIPO and that such action may include the editing or removal of Client Content. You agree to notify us as quickly as possible in the event that you become aware of any claim, violation or action against you or the Branded Applications resulting from the DMCA or WIPO.
You agree to cooperate and work with us to address any violations of the DMCA or WIPO in a proactive manner in the event that either you or we become aware of any such violations.
You agree and acknowledge that since the Applications are available globally via the Distribution Network, you and we may be subjected to actions that may be overt or covert in nature that are undertaken or directed by governments or agencies. You agree to notify us in a timely manner in the event that you become aware of any actual or threatened proceeding or action against you or the Branded Applications by any government or agency. You agree that we may take action, including editing or removing Client Content or removing the availability of the Branded Applications in one or more jurisdictions in response to any actual or threatened government or agency actions of which we become aware. The phrase “governments or agencies” as used herein includes a) the governments and agencies of nation-states and their subdivisions; b) transnational entities such as the United Nations and Interpol; and c) alliances and treaty organizations such as the North Atlantic Treaty Organization and the World Trade Organization. Further, you acknowledge that covert actions, which may include attempts to monitor, disrupt, disable or corrupt the Branded Applications, may be undertaken and that we have limited or no ability to know of, understand or react to such covert actions. You agree that we cannot be held liable or responsible for such covert actions.
You agree and acknowledge that since the Applications are available globally via the Distribution Network, you and we may be subjected to criminal actions, such as attempts to hack into Applications and denial of service attacks. You agree to notify us as quickly as possible in the event that you become aware of any actual or threatened criminal action against you the Applications. You agree that we may take action, including restricting or removing the availability of Applications in one or more geographic areas in response to any actual or threatened criminal actions of which we become aware. We commit to use our reasonable best efforts to defend against and mitigate any such criminal actions. You agree and acknowledge that our liability to you is limited as set forth in the Agreement and this CTAC.
Availability, Errors and Inaccuracies
We are constantly updating software, product and service offerings available on or through the Applications. We may experience delays in updating software, information, Client Content and advertising, sponsorship and other marketing information on the Applications. You may likewise post or publish errors or omissions to the Client Content. All such information found on the Applications may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Applications and we cannot guarantee the accuracy or completeness of any information thereon. We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice on the Applications. You agree to correct errors and omissions in the Client Content as quickly as possible following you becoming aware of such.
Contests, Sweepstakes, Pay-Per-View Events and Promotions
The terms of the Agreement and the Order Form you entered in with us, may allow you to create one or several products for the purposes of charging End Users to access to Client Content. Such products may include, but are not limited to, recurring products, rental products, one-time-purchase products, and pay-per-view products (“Digital Products”). You understand, acknowledge, and agree that Digital Products may not be available across the Distribution Network and that Distribution Network may require the creation and submission to them of one ore more new Branded Applications. As with all submissions to the Distribution Network, we cannot guarantee acceptance of the Branded Applications. You further acknowledge that due to cross-platform, technical, and other limitations, Digital Products may not be available across all platforms for which Branded Applications may be available and that the availability and commercialization of Digital Products may change from time to time as a result of changes to the Distribution Network or our relationship with the Distribution Network.
End User Payments
You acknowledge and agree that all payments made by End Users for Digital Products, Promotions or the sale of merchandise, products or services, will be fulfilled either by the Distribution Network, by software residing on the FanHero Platform or by Third Party Vendors. In all such cases, you and us may be charged fees for such payment fulfillment services, such as merchant fees. You agree that we will manage such fees and that such fees represent a marginal cost that will be deducted from revenues to determine Gross Margin or Gross Profit in the event a revenue sharing agreement is in place between you and we.
Distribution Network Costs
You acknowledge that the Distribution Network can and does charge significant fees for the placement of the Branded Applications. The most significant fees derive from the Distribution Network charging a percentage of the revenues generated in connection to the Branded Applications. Other Distribution Network costs may include the imposition of taxes, such as value added taxes, or various fees charged by wireless carriers, governments, agencies or other entities. You agree that all such fees represent a marginal cost that will be deducted from revenues to determine Gross Margin or Gross Profit.
You acknowledge that we are charged marginal costs related to the amount of data being streamed or downloaded to End Users via the Applications. You agree that all such fees represent a marginal cost that will be deducted from revenues to determine Gross Margin or Gross Profit.
Currency, Settlements and Banking
You agree that we will, whenever possible, settle and calculate all revenue and expenses associated with the Agreement and the Branded Applications in U.S. dollars. Our obligation to you is to calculate and account for all revenue and costs in U.S. dollars and you agree that this is the currency for all settlements and accounting purposes.
During the Term, you and us shall each maintain complete and accurate books and records regarding business operations relevant to the calculation of Revenue Sharing under the Agreement and shall make such books and records, and appropriate personnel, available during normal business hours for audit by the other party or its authorized representative; provided that the requesting party shall: (i) provide the other party with reasonable prior notice of any audit; (ii) undertake an audit no more than once per calendar year; and (iii) conduct or cause to be conducted such audit in a manner designed to minimize disruption of other party’s normal business operations. The requesting party will pay the cost of such audits unless an audit reveals a discrepancy in payment or reporting of five percent or more, in which case the other party shall reimburse the requesting party for the reasonable cost of the audit.
Upon termination of the Agreement, all of your unpaid payment obligations under the Agreement (including any Fees and Revenue Sharing), if any, shall immediately become due and payable. Within fifteen (15) days of such termination, each party shall return to the other party (or destroy in the case of electronic records) all confidential information and intellectual property of the other party in its possession, except as otherwise authorized by the Agreement or this CTAC or as required to comply with any applicable legal or accounting record keeping requirements.
Your Representations to Us
You represent and warrant to us that (i) you are the legal owner of, or in all cases have the right and authority to, all Client Content, (ii) you are now and will at all times during the Term be in compliance with all contracts and agreements, verbal or written, to which you are a bound party as such relates to the Agreement and this CTAC, (iii) you will abide by and at all times be in compliance with the policies, laws, rules and regulations governing the Applications and the Client Content on a global basis, (iv) you will not violate the copyrighted protections of third parties as such exists pursuant to the DMCA, WIPO and other applicable laws, and (v) you are responsible for all taxes and fees due to any authority and resulting from any and all revenues and income you receive that are derived from or connected to the Agreement, the Applications, and the Client Content, including the filing of all required forms, the reporting of all related information and the paying of all taxes and fees.
Our Representations to You
We represent and warrant to you that (i) the hosting, maintenance and support services performed under the Agreement and this CTAC will be performed in accordance with the Agreement, this CTAC and consistent with industry standards, and (ii) the Branded Applications will operate in a manner consistent with general industry standards as reasonably applicable to the provision hereof and in material conformity with the specifications set forth in the Agreement.
Our sole responsibility under the warranty set forth in this Section with respect to any material defects in the Applications shall be our use of commercially reasonable efforts to correct such defects within a reasonable period of time of becoming aware of them, or, if we are unable to so correct such defects within 30 days from being notified of any defects, you may terminate the Agreement. We shall have no responsibility for, and this warranty shall be voided in the event of: (a) errors or defects caused by your neglect, misuse, or damage to the Application; (b) use of the Applications with any technology not in accordance with the Agreement and this CTAC; (c) your use of any third party without our written consent to support of the Applications or use of any technology that accesses the Applications by any third party; or (d) any loss of data or use of the Applications as a result of any breach of security of the technology used by you in connection with the Agreement or this CTAC.
EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT OR THIS CTAC, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE APPLICATIONS, AND ANY SERVICES PROVIDED HEREUNDER), EXPRESS OR IMPLIED, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. ACCESS TO THE APPLICATIONS MAY BE LIMITED OR UNAVAILABLE DURING PERIODS OF PEAK DEMAND, SYSTEM UPGRADES, MALFUNCTIONS, OR SCHEDULED OR UNSCHEDULED MAINTENANCE OR FOR OTHER REASONS OUTSIDE OF OUR CONTROL. We do not warrant that the Applications i) will satisfy your requirements, ii) are without defect or error, or iii) will operate in an uninterrupted or error-free manner. We do not and cannot control the flow of data to or from our network, our service provider’s network, the Distribution Network or other portions of the Internet or wireless spectrum. Accordingly, we cannot guarantee that your connection, and the connection of any End Users, to the Distribution Network or Internet will not be impaired or disrupted, and we hereby disclaim any and all liability resulting from or related to such events.
All claims, disputes, and controversies arising out of or in relation to the performance, interpretation, application, or enforcement of the Agreement or this CTAC, including but not limited to breach thereof, shall be referred to mediation in Orange County, Florida, as a condition precedent to, the initiation of any arbitration. Without limiting or waiving the foregoing requirement to mediate, you or we may apply to any court of competent jurisdiction for the issuance of a temporary injunction pending and subject to the outcome of the mediation and any final award rendered in the arbitration proceeding. In the event any party applies for such an injunction, it shall not be deemed to be a waiver of the party’s obligation and right to mediate as contemplated in the Agreement or this CTAC..
You and we agree that any and all claims, controversies and disputes of any nature by and between us (including, without limitation, any claims, controversies and disputes arising out of or relating to the Agreement, this CTAC, its interpretation, the parties’ performances due under the Agreement, the Intellectual Property Rights, the Applications, the Client Content or the Branded Applications) that still exist after mediation shall be resolved by binding arbitration administered by and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and any court of competent jurisdiction shall enter final judgment on any such final arbitration award.
Without limiting or waiving the foregoing requirement to arbitrate, you or we may apply to any court of competent jurisdiction for the issuance of a temporary injunction pending and subject to a final award rendered in the arbitration proceeding. In the event any party applies for such an injunction, it shall not be deemed to be a waiver of the party’s obligation and right to arbitrate as contemplated in this CTAC.
All defenses and claims which would otherwise be available to the parties in any court proceeding, except for class actions, shall be available in arbitration. Arbitration of class claims under the Agreement or this CTAC shall not be permitted by the Arbitrators.
The final arbitration hearing shall be conducted in Orange County, Florida, no sooner than five (5) months and no later than nine (9) months after any demand for arbitration is served upon the respondent for the proceeding. The arbitration proceeding shall be conducted by three (3) neutral and impartial Arbitrators. Such Arbitrators shall be members in good standing with The Florida Bar, and shall be Board Certified by The Florida Bar in Business Litigation or Intellectual Property Law.
The parties shall be permitted to take no more than three (3) depositions, not to exceed five (5) hours each. In addition, the parties shall be permitted to take the depositions of all disclosed expert witnesses. The parties shall also be entitled to discover documents through the use of requests for production. No other forms of formal discovery shall be permitted by the Arbitrators, without a sufficient showing of undue prejudice and good cause. All permissible discovery shall be governed by the applicable Florida Rules of Civil Procedure.
The Arbitrators shall be bound by and shall follow the laws of the State of Florida (without regard to its choice of law requirements) for the arbitration proceeding and rendering of any final award, including, without limitation, the Revised Florida Arbitration Code contained in Chapter 682, Florida Statutes. Any final award shall reflect the reasoning for the award, but shall not be required to state findings of fact and conclusions of law.
The Arbitrators shall have the authority to award any and all relief which a court of competent jurisdiction could otherwise award. The Arbitrators shall further award reasonable attorneys’ fees incurred by the prevailing party, including reasonable attorneys’ fees incurred in litigating entitlement to attorneys’ fees and costs, as well as in determining and quantifying the amount of recoverable attorneys’ fees and costs. The Arbitrators shall also award to the prevailing party all arbitration expenses, filing fees, arbitrator compensation, expenses of collection and costs incurred by the prevailing party regardless of whether such costs and expenses are otherwise taxable in any court proceeding.
The Arbitrators and the parties shall maintain in the strictest confidence the arbitration proceeding, the final arbitration hearing, all papers filed in the arbitration proceeding and the substance of the underlying dispute for the arbitration proceeding, unless otherwise required to disclose same pursuant to applicable law.
You and we mutually agree and acknowledge that the restrictive covenants herein are not contrary to public policy and are neither overbroad, nor overlong, and are otherwise reasonably necessary to support and protect the parties’ respective legitimate business interests, including but not limited to: protecting the Intellectual Property Rights, the Applications, Client Content, trade secrets, trademarks, confidential information, client lists and contacts, client good will, advantageous business relationships and business reputations. You and we acknowledge that a breach of any of the restrictive covenants contained in the Agreement or this CTAC shall cause irreparable harm, and that in addition to any other legal or equitable remedies available, such a breach shall entitle the non-breaching party to injunctive relief.
YOU AND WE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY FOR ANY CLAIMS, DISPUTES, ACTIONS AND LITIGATIONS BETWEEN THEM, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS, DISPUTES, ACTIONS AND LITIGATIONS ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THE AGREEMENT OR THIS CTAC, THE PARTIES’ PERFORMANCES DUE HEREUNDER, THE INTELLECTUAL PROPERTY RIGHTS, FANHERO PLATFORM, FANHERO PLATFORM, APPLICATIONS, CLIENT CONTENT, AND ANY COURSE OF CONDUCT AND COURSE OF DEALING BETWEEN THE PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THE AGREEMENT AND THE CTAC.
Age Restrictions on End Users
You acknowledge that only persons who are above the age of 18 will be allowed to create an End User account on the FANHERO Platform. We rely upon the affirmative representation of each End User in enforcing this policy.
You agree that you will not support or promote our competition while using the Applications or in the Client Content.
Support of Policies and Applicable Laws, Rules and Regulations
You agree not to take action, make representations or otherwise directly or indirectly support or advocate in the Branded Applications or the Client Content positions that may construed by the End User as intending to circumvent our policies, the policies of the Distribution Network or any applicable laws, rules and regulations. You acknowledge that we will take action to terminate the account of any End User about whom we become aware is in violation of applicable policies, laws, rules and regulations, such as the age restriction policy. You agree that we may take action to edit or remove Client Content that we determine to be in violation of this section.
Your Security Obligations
You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Applications or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.
You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use as a username any name that is offensive, vulgar or obscene.
We reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in our sole discretion.
We respect the intellectual property rights of others. It is our policy to respond to any claim that any of the Client Content infringes on the copyright or other intellectual property rights (“Infringements”) of any person or entity. You are responsible for damages (including costs and attorneys’ fees) resulting from Infringements.
The Applications and its original content (excluding content posted to the Branded Applications by End Users), features and functionality are and will remain the exclusive property of FanHero and its licensors. The Applications are protected by copyright, trademark, and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without our prior written consent.
Links To Other Websites or Applications
The Applications may contain links to third party websites, applications or services that are not owned or controlled by us or you. These links may be the result of actions taken by us or by you.
You acknowledge that we have no control over, and assume no responsibility for the content, privacy policies, or practices of any third-party websites, applications or services. We do not warrant the offerings of any of these entities/individuals or their websites. We acknowledge that you have no control over, and assume no responsibility for the content, privacy policies, or practices of any third-party websites, applications or services. You do not warrant the offerings of any of these entities/individuals or their websites.
You acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party websites or services. You further acknowledge and agree that we may take action, including editing or deleting any such links about which we become aware are dangerous, illegal, support malware or other illicit purposes, or are otherwise in violations of the policies, laws, rules and regulations governing the Agreement and this CTAC.
We strongly advise you to read the terms and conditions and privacy policies of any third-party websites or services that you visit while using the Applications.
Subject to the Termination clause in the Agreement, we may terminate or suspend your access to the Applications immediately, without prior notice or liability, under our sole discretion, for any of the reasons set forth in the Agreement and this CTAC, including but not limited to a breach of the Terms.
If you wish to terminate your account, you may do so according to the terms of the Agreement.
All provisions of this CTAC which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
We agree to defend, indemnify and hold harmless all Client Indemnitees as set forth in the Agreement. Our indemnification of Client Indemnitees includes our obligation to (ii) pay reasonable costs, attorneys’ fees, and damages finally awarded against Client Indemnitees resulting from Client Claims, provided that Client Indemnitees permit us, in our sole discretion, to defend or settle the claims. If either the Applications are held to constitute an infringement of a United States copyright, patent, or other proprietary right of a third party, and Client use of such the Applications is enjoined, we may, at our sole expense and option: (i) procure for Client the right to continue using the Applications free of any liability for infringement or violation; (ii) replace or modify the Applications with an equivalent, non-infringing Software, System or content; or (iii) terminate the Agreement and provide Contracting Party a refund of Fees paid in advance pursuant to the Agreement.
You agree to defend, indemnify and hold harmless Company Indemnitees as set forth in the Agreement. Your indemnification of Company Indemnitees includes your obligation to indemnify, defend, and hold harmless Company Indemnitees against any claim by any third party against a Company Indemnitee based on: (i) any error, defect, or inaccuracy in the Client Content, including any instance of slander or similar claim or action; (ii) the posting of any Client Content or use of the Applications contrary to the terms of the Agreement or the CTAC; (iii) the infringement by the Applications of any proprietary or intellectual property rights of a third party resulting from the use of the Client Content or Client’s design, ideas, specifications, or alteration of the Applications, or use of the Applications in combination with any non-Company items; or (iv) your failure to abide by, any and all applicable laws, rules, and regulations, and the laws of the State of Florida, as amended from time to time, including, but not limited to, such laws, rules and regulations concerning and related to the privacy and security of End User information.
Limitation of Liability
In no event shall FanHero, or its directors, members, employees, partners, agents, suppliers, or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use the Applications; (ii) any conduct or content of any third party on the Applications; (iii) any content obtained from the Applications; 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 we have 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.
EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THE AGREEMENT OR THE CTAC. LOSS OF DATA, OR ANY PERFORMANCE UNDER THE AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE TOTAL LIABILITY OF EITHER PARTY UNDER THE AGREEMENT IS LIMITED TO THE TOTAL AMOUNT PAID BY CLIENT TO COMPANY WITHIN 180 DAYS PRIOR TO THE CLAIM. COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES. “EXCLUDED CLAIMS” MEANS (1) AMOUNTS OWED BY YOU UNDER ANY ORDER FORM, (2) EITHER PARTY’S EXPRESS IDEMNIFICATION OBLIGATIONS IN THE AGREEMENT AND THIS CTAC, (3) CLIENT’S BREACH TERMS RELATED TO CLIENT CONTENT, (4) EITHER PARTY’S BREACH OF THE AGREEMENT IN CONNECTION TO CLAIMS REGARDING COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGMENET, OR (5) EITHER PARTY’S BREACH OF THE AGREEMENT IN CONNECTION TO EXCLUSIVITY.
Your use of the Applications is at your sole risk. The Applications are provided on an “AS IS” and “AS AVAILABLE” basis. The Applications are provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance.
FanHero and its subsidiaries, affiliates, and licensors do not warrant that a) the Applications will function uninterrupted, or be secure or available at any particular time or location; b) any errors or defects will be corrected; c) the Applications are free of viruses or other harmful components; or d) the results of using the Applications will meet your requirements.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.
These Terms shall be governed and construed in accordance with the laws of Florida, United States, without regard to its conflict of law provisions.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have had between us regarding the Service.
All notices, requests, demands and other communications under the Agreement or this CTAC shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, (b) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, (c) mailed by reputable overnight courier and receipted for by the party to whom said notice or other communication shall have been directed or (d) sent by digital transmission (electronic mail), with receipt of oral or written confirmation that such transmission has been received. The address for such notices and communications shall be as set forth on the signature pages of the Order Form.
If either Party to the Agreement shall be prevented, hindered or delayed in the performance or observance of any of its obligations hereunder by reason of any act of God, natural disaster, war, riot, act of terrorism, civil commotion, explosion, fire, government action, epidemic, or other circumstance beyond its reasonable control, and such delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the Party through the use of alternative sources or means, then such Party shall be excused from further performance or observance of the obligation so affected for as long as such circumstances shall prevail and such Party uses its diligent efforts to recommence performance or observance whenever and to whatever extent possible. The Party so delayed shall immediately notify the other Party and describe the circumstances causing such delay. Notwithstanding the foregoing, any of Client’s monetary obligations under the Agreement, this CTAC, and any Order Form shall remain in effect.
We reserve the right, at our sole discretion, to modify or replace these Terms at any time; provided, however, that we may not modify or amend these Terms in a way that significantly alters the economic agreements between us as such are set forth in the Agreement. If a revision is material, as determined in our sole discretion, we will provide at least notice and a requirement that you acknowledge and accept such amended Terms prior to you accessing the Applications again.
By continuing to access or use the Applications after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Applications.
If you have any questions about these Terms, please contact us via our website.