Acceptance of Terms:
AS A CONDITION OF YOUR USE OF THE FanDaction SERVICE, YOU MUST ACCEPT THESE TERMS IN THEIR ENTIRETY; THEREFORE, BEFORE USING THE FanDaction SERVICE, PLEASE READ CAREFULLY THE FOLLOWING CONDITIONS AND TERMS OF SERVICE. BY REGISTERING FOR AND/OR ACCESSING, BROWSING, AND USING THE FanDaction SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS, INCLUDING THE GUIDELINES (WHICH INCLUDES THE OPERATING RULES), AND ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE "TERMS"). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE FanDaction SERVICE.
NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 21.3. FanDaction may issue additional terms, rules and conditions of participation in particular contests. You agree to be subject to them if you participate in such contests.
Before using the FanDaction Service, you must meet the following eligibility requirements. FanDaction may require you to provide FanDaction with proof that you meet these eligibility requirements prior to receiving a prize, which will be provided in U.S. Dollars if in cash, unless otherwise stated (a "Prize"). In addition to any other rights that FanDaction may have in law or equity, FanDaction reserves the right to suspend or terminate the account (and terminate, withhold or revoke any Prizes associated with such account) of any purported user of the FanDaction Service who does not meet the following requirements.
General Provisions in Using FanDaction:
1. Eligibility. By using the FanDaction Service, you hereby represent and warrant that: i) you are a natural person (corporate entities and similar organizations are not eligible to use the FanDaction Service for any purpose) at least the age of majority in your jurisdiction of residence (generally 18 years of age or older; 19 if you reside in Nebraska or Alabama) and are fully able and competent to enter into the Rules, conditions, obligations, affirmations, representations and warranties set forth in these Rules and to abide by and comply with these Rules;
ii) you are a citizen or lawful permanent resident of the United States of America or Canada and that you have an address in the United States of America or Canada;
iii) you are physically located in the United States of America or Canada and reside in a jurisdiction in which use of the FanDaction Service is not prohibited by applicable law;
iv) if you are entering any FanDaction Game in which you must pay to play and a Prize is awarded YOU ARE NOT A RESIDENT OF ANY of the following states: Arizona, Delaware, Hawaii, Idaho, Indiana, Iowa, Louisiana, Montana, Nevada, New York, Virginia, Washington and Puerto Rico and you will not access the FanDaction Service from any of those states in order to participate in a Game you must pay to play. If you are a resident of Canada and YOU ARE A RESIDENT OF Quebec, you may not access the Fandaction website.
v) you will abide at all times by these Rules; and
vi) if you are playing any Game in which a Prize is awarded you are not an employee, officer, or director (or such person's Immediate Family Member, as defined herein) of FanDaction, its parent companies, subsidiaries, and affiliates; or any other person with access to non-public information regarding the operation of the FanDaction Service. "Immediate Family Member" as used herein includes parents, siblings, spouses, children, or any other person permanently residing in the same household with such employee, officer, or director.
vii) you are not subject to backup withholding tax because: (a) you are exempt from backup withholding, (b) you have not been notified by the Internal Revenue Service (IRS) that you are subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified you that you are no longer subject to backup withholding. All prizes are subject to the relevant IRS regulations.
If you do not meet the eligibility requirements of this section, then you are not authorized to use the Service.
2.Use of the FanDaction Service:
FanDaction grants you permission to use the FanDaction Service as set forth in these Terms, provided that (i) except as expressly permitted in these Terms, you do not download, reproduce, redistribute, retransmit, publish, resell, publicly display or otherwise commercially exploit any portion of the FanDaction Site; (ii) you do not alter or modify any part of the FanDaction Site other than as may be reasonably necessary to use the FanDaction Site for its intended purposes; (iii) you do not engage in any of the prohibited uses described in these Terms (including Section 14 herein); and (iv) you will otherwise fully comply with these Terms and applicable law. The FanDaction Site is controlled and offered by FanDaction from its facilities in the United States. FanDaction makes no representations that the FanDaction Service is appropriate or available for use in all locations. You are solely responsible for compliance with local law.
3.Modifications to the Terms:
FanDaction reserves the right, at our discretion, and without notice to you, to change these Terms. All changes shall be effective immediately. In the event of a material change, we will notify you via e-mail according to your account preferences. Please check these Terms periodically for changes. Your continued use of the FanDaction Service after the posting of changes constitutes your binding acceptance of such changes.
4.Availability of FanDaction Service:
FanDaction may make changes to or discontinue any of the features or services made available through the FanDaction Service at any time, and without notice. FanDaction may also in its sole discretion and at any time discontinue providing access to the FanDaction Site, or any part thereof, with or without notice.
5.1. Accuracy of Information. In order to access some features of the FanDaction Site, you may have to create an account. You hereby represent and warrant that the information you provide to FanDaction upon registration and, at all other times, will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times. Knowingly submitting incomplete or inaccurate information may result in immediate termination of your account and may be a violation of law.
5.2 One Account. Under the Terms, a user may establish, maintain, use and control only one account on the Service. Should FanDaction determine that you have opened, maintained, used or controlled more than one account, in addition to any other rights that FanDaction may have, FanDaction reserves the right to suspend or terminate any or all of your accounts and terminate, withhold or revoke the awarding of any prizes.
5.3 Usage by FanDaction. You acknowledge, consent and agree that FanDaction may access, preserve and disclose your account information and User Submissions (as defined herein) or other information you have provided to FanDaction if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to a claim that any User Submission or any other material you have provided violates the rights of third parties; (d) provide certain customized features of the FanDaction Site to you, if any, or respond to your requests for customer service; or (e) protect the rights, property or personal safety of FanDaction, its users and the public.
5.4 Password. If you register, you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you must immediately notify FanDaction. YOU WILL BE LIABLE FOR THE LOSSES INCURRED BY FanDaction OR OTHERS DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT.
6.Dealings with Merchants and Advertisers:
Your correspondence or business dealings with, or participation in promotions of, merchants and/or advertisers found on or through the FanDaction Site are solely between you and such merchant and/or advertiser. YOU AGREE THAT FanDaction WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH MERCHANTS OR ADVERTISERS ON THE FanDaction SITE.
7.Links and Third-Party Websites:
FanDaction or third parties may provide links through the FanDaction Site to other websites, including the content therein ("Third-Party Sites"). Our terms and policies do not govern your use of any online services other than the FanDaction Site. You should review applicable terms and policies, including the privacy policies, of any Third-Party Sites. FanDaction expressly disclaims responsibility for the accuracy, quality, legality, nature, availability or reliability of Third-Party Sites or content linked to THROUGH the FanDaction SITE. ACCESS AND USE OF THIRD-PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD-PARTY SITES OR AVAILABLE THROUGH THIRD-PARTY SITES, IS SOLELY AT YOUR OWN RISK.
8.Ownership and Proprietary Rights:
As between the parties, the FanDaction Service, including the content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, and all other elements of the FanDaction Service that are provided by FanDaction ("FanDaction Materials") are owned and operated by FanDaction. FanDaction Materials do not include User Submissions (as defined below) or any Non-FanDaction Content (as defined below). Except as expressly authorized by FanDaction, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the FanDaction Materials.
9.1 General. The FanDaction Service may now or in the future permit the submission and posting or linking of text, pictures, photos, audio and video recordings, or any other content submitted by you to the FanDaction Site ("User Submissions"), and the hosting, sharing, and/or publishing of such User Submissions. FanDaction may or may not use your User Submissions in its sole discretion. You understand that whether or not such User Submissions are published, FanDaction does not guarantee any confidentiality with respect to any User Submissions.
9.2 Grant of Rights. By submitting User Submissions to FanDaction, you hereby grant FanDaction and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicenseable, and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit your User Submissions in connection with the FanDaction Service and FanDaction's (and its successor's) business, including without limitation for promoting and redistributing part or all of the FanDaction Service (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered. You also hereby grant to each user of the FanDaction Service a non-exclusive license to access your User Submissions through the FanDaction Service, and to use, reproduce, distribute, prepare derivative works of, display, and perform such User Submissions as permitted by the functionality of the FanDaction Service and these Terms. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions.
9.3 Your Representations and Warranties Regarding User Submissions. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to User Submissions to enable inclusion and use of User Submissions in the manner contemplated by FanDaction and these Terms, and to grant the rights and license set forth in this Section 9, and (ii) your User Submissions, FanDaction's use of such User Submissions pursuant to these Terms of Service, and FanDaction's exercise of the license rights set forth in this Section 9, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) violate any applicable law or regulation.
9.4 Prohibited User Submissions. In connection with your User Submissions, you further agree that you will not publish, post, submit, transmit through or otherwise make available to the FanDaction Site: (i) any material which violates or infringes any third-party proprietary right; (ii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, racist, threatening, harassing, harmful, hateful, racially or ethnically offensive, or otherwise objectionable or which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iii) any advertising or any solicitation with respect to any business, products or services; or (iv) any material that would be harmful to minors in any manner.
10.Non-FanDaction Content Disclaimer:
You understand that when using the FanDaction Site, you will be exposed to User Submissions and other third-party content (together, the "Non-FanDaction Content") from a variety of sources, and that you may be exposed to Non-FanDaction Content that is inaccurate, or otherwise objectionable. FanDaction does not endorse any Non-FanDaction Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will FanDaction be liable in any way for or in connection with the Non-FanDaction Content, including, but not limited to, for any inaccuracies, errors or omissions in any Non-FanDaction Content, any intellectual property infringement with regard to any Non-FanDaction Content, or for any loss or damage of any kind incurred as a result of the use of any Non-FanDaction Content posted, emailed or otherwise displayed or transmitted through the FanDaction Site.
11.Non-Monitoring of Users and Non-FanDaction Content:
You understand that all Non-FanDaction Content is the sole responsibility of the user who submitted such Content. This means that you, and not FanDaction, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit or otherwise make available through the FanDaction Site. FanDaction does not control the Non-FanDaction Content posted by users or otherwise made available by other persons and does not have any obligation to monitor such Non-FanDaction Content for any purpose. If at any time, FanDaction chooses, in its sole discretion, to monitor the Non-FanDaction Content, FanDaction nonetheless assumes no responsibility for the Non-FanDaction Content, no obligation to modify or remove any inappropriate Non-FanDaction Content, and no responsibility for the conduct of the person submitting any such Non-FanDaction Content. You agree that you must evaluate and bear all risks associated with the use of any Non-FanDaction Content, including any reliance on the accuracy, completeness, usefulness or legality of such Non-FanDaction Content.
12. Removal of Non-FanDaction Content:
FanDaction and its designees shall have the right (but not the obligation) in their sole discretion to refuse to post or remove any Non-FanDaction Content that is available through the FanDaction Site in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.
13. Prohibited Uses of the FanDaction Service:
13.1 As a condition of your use of the FanDaction Service, you hereby represent and warrant that you will not use the FanDaction Service for any purpose that is unlawful or prohibited (including, without limitation, the prohibitions in this Section 14) by these Terms.
13.2 You agree not to use the FanDaction Service if you do not meet the eligibility requirements of Section 1.
13.3 You agree not to use the FanDaction Service for any unauthorized purpose, or in violation of any applicable law, including, but not limited to intellectual property laws
13.4 You agree not to defame, harass, abuse, threaten, stalk or defraud users of the FanDaction Service, or collect, or attempt to collect, personal information about users of the FanDaction Service or third parties without their consent.
13.5 You agree not to intentionally interfere with or damage, impair or disable the operation of the FanDaction Site or any user's enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code.
13.6 You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the FanDaction Site, features that prevent or restrict the use or copying of any part of the FanDaction Site, or features that enforce limitations on the use of the FanDaction Site.
13.7 You agree not to attempt to gain unauthorized access to the FanDaction Site, or any part of it, other accounts, computer systems or networks connected to the FanDaction Site, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the FanDaction Site or any activities conducted through the FanDaction Site.
13.8 You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the FanDaction Site. You agree neither to modify the FanDaction Site in any manner or form, nor to use modified versions of the FanDaction Site, including (without limitation) for the purpose of obtaining unauthorized access to the FanDaction Site.
13.9 You agree that you will not use any robot, spider, scraper, or other automated means to access the FanDaction Site for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the FanDaction Site.
13.10 You agree not to utilize framing techniques to enclose any trademark, logo, or other FanDaction Materials without our express written consent. You agree not to use any meta tags or any other "hidden text" utilizing FanDaction's name or trademarks without our express written consent.
13.11 You agree not to deep-link to the FanDaction Site and will promptly remove any links that FanDaction finds objectionable in its sole discretion. You agree not to use any FanDaction logos, graphics, or trademarks as part of the link without our express written consent.
13.12 You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the FanDaction Site. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
13.13 You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the FanDaction Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
13.14 You agree not to modify, adapt, translate or create derivative works based upon the FanDaction Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
13.14 You agree not to impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity.
You are solely responsible for your involvement with other users of the FanDaction Service. FanDaction reserves the right, but has no obligation to monitor disagreements between you and other users. FanDaction DISCLAIMS ALL LIABILITY RELATED TO ANY USER DISAGREEMENT.
15.Terms of Service Violations; Termination:
15.1 FanDaction. You agree that FanDaction, in its sole discretion and for any or no reason, may terminate any account (or any part thereof) you may have through the FanDaction Service or your use of the FanDaction Site, and remove and discard all or any part of your account or any User Submission, at any time, with or without notice. FanDaction does not tolerate unlawful, infringing, fraudulent or otherwise illegitimate activities through the FanDaction Service and reserves the right to terminate access to the FanDaction Site. You agree that your access to the FanDaction Site or any account you may have, or portion thereof, may be terminated without prior notice, and you agree that FanDaction shall not be liable to you or any third-party for any such termination. These remedies are in addition to any other remedies FanDaction may have at law or in equity.
15.2 User. If you are dissatisfied with the FanDaction Service, please send us an email. Your input is valuable to us. Your only remedy with respect to any dissatisfaction with (i) the FanDaction Service, (ii) any term of these Terms, (iii) any policy or practice of FanDaction in operating the FanDaction Service, or (iv) any content or information transmitted through the FanDaction Service, is to terminate these Terms and your account. You may terminate these Terms at any time by closing your account, discontinuing your use of any and all parts of the FanDaction Site, and providing FanDaction notice of termination on our contact us page.
16.Indemnification; Hold Harmless:
YOU AGREE TO HOLD HARMLESS FanDaction, AND ITS PARENT, SUBSIDIARIES, AFFILIATES OR ANY RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP), AND THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF ANY OF THEM FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY'S FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE FanDaction SERVICE; (II) YOUR USER SUBMISSIONS, INCLUDING FanDaction'S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO YOUR USER SUBMISSIONS; (III) YOUR VIOLATION OF THESE TERMS; (IV) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER SUBMISSION INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (V) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; AND (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY FanDaction. FanDaction RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER WITHOUT THE PRIOR WRITTEN CONSENT OF FanDaction. FanDaction WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
17.Disclaimers; No Warranties:
17.1 Acknowledgement. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 17, THE TERM FanDaction INCLUDES FanDaction OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, AFFILIATES AND SUBCONTRACTORS.
17.2 No Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FanDaction DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FanDaction OR THROUGH THE FanDaction SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
17.3 "As is" and "As available" and "With All Faults." YOU EXPRESSLY AGREE THAT THE USE OF THE FanDaction SERVICE IS AT YOUR SOLE RISK. THE FanDaction SERVICE, USER SUBMISSIONS, ANY NON-FanDaction CONTENT, AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE FanDaction SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
17.4 Website Operation and Non-FanDaction Content. FanDaction DOES NOT WARRANT THAT THE FanDaction MATERIALS, USER SUBMISSIONS, FanDaction SERVICE, NON-FanDaction CONTENT OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE FanDaction SERVICE OR ANY THIRD-PARTY SITES WILL BE UNINTERRUPTED OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
17.5 Accuracy. FanDaction DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE FanDaction SERVICE OR ANY THIRD-PARTY SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
17.6 Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE FanDaction SERVICE (INCLUDING RSS FEEDS) OR ANY THIRD-PARTY SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
18.Limitation of Liability and Damages:
18.1 Limitation of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL FanDaction OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE FanDaction MATERIALS, USER SUBMISSIONS AND NON-FanDaction CONTENT ON THE FanDaction SERVICE OR ANY THIRD-PARTY SITES, THE FanDaction SERVICE ITSELF, OR ANY OTHER INTERACTIONS WITH FanDaction, EVEN IF FanDaction OR A FanDaction AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18.2 Limitation of Damages. IN NO EVENT SHALL FanDaction OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE FanDaction SERVICE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID FanDaction FOR THE SERVICE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
18.3 Third-Party Sites. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD-PARTY SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN FanDaction AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE FanDaction SITE OR RECEIVED BY YOU THROUGH ANY THIRD-PARTY SITES.
19.Limitations by Applicable Law; Basis of the Bargain:
19.1 Limitations by Applicable Law. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS OF SERVICE APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
19.2 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT FanDaction HAS OFFERED ITS SERVICES, SET ITS FEES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND FanDaction, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND FanDaction. YOU ACKNOWLEDGE AND AGREE THAT FanDaction WOULD NOT BE ABLE TO PROVIDE THE FanDaction SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
20.Digital Millennium Copyright Act Compliance:
If you are a copyright owner or an agent thereof, and believe that any User Submission or other Non-FanDaction Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the FanDaction Site are covered by a single notification, a representative list of such works from the FanDaction Site;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit FanDaction to locate the material;
(iv) Information reasonably sufficient to permit FanDaction to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
FanDaction may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on the FanDaction Site. If notice is by e-mail or mail, it will be provided to the email or regular mailing address provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty-four hours after email is sent, unless FanDaction is notified that the email address is invalid and if through postal mail, three days after the date of mailing. You may provide FanDaction with notices only by mail to the address indicated in subsection 21.11.
21.2 Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to any principles of conflicts of law.
21.3 Dispute Resolution
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT
(a) Initial Action. Contact our customer service department regarding any concerns you may have relating the Service. Our customer support department is able to resolve most concerns quickly to our customers’ satisfaction. The parties shall use their best efforts through this customer service process to settle any dispute, claim, question, or disagreement and good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration.
(b) Binding Arbitration. If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution under the Initial Action provision, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Service shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The Commercial Arbitration Rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at +1.800.778.7879. To the extent the initial filing fee for the arbitration exceeds the cost of filing a lawsuit, FanDaction will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, FanDaction will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain cases. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
(c) Location. If you are a resident of the United States or Canada, and you and FanDaction agree to submit to the personal jurisdiction of any federal or state court in the County of Summit, Ohio, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
(d) Choice of Law. You agree that any Claim you may have against FanDaction must be resolved under the laws according to the State of Ohio.
(e) Improperly Filed Claims. Any Claim you bring against FanDaction must be resolved in accordance with this Section 21.3 (Dispute Resolution). Any Claim asserted or filed contrary to this Section 21.3 (Dispute Resolution) shall be considered improperly filed. If you file a Claim contrary to this Section 21.3 (Dispute Resolution), FanDaction shall be entitled to recover its attorneys' fees and costs incurred in defending against the Claim to the maximum extent permitted by law, provided that FanDaction has notified you in writing of the improperly filed claim, and you have failed to withdraw the Claim within five business days of your receipt of such notice.
(f) Class Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND FanDaction AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
(g) Exception - Litigation of Intellectual Property. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). (h) 30-Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: FanDaction, 2443 Massillon Road, Akron, Ohio 44312. The notice must be sent within 30 days of 06/01/2015 or your first use of the Service, whichever is later, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, FanDaction also will not be bound by them.
(i) Changes to this Section. FanDaction will provide 60-days notice of any changes to this section. Changes will become effective on the 60th day, and will apply prospectively only to any claims arising after the 60th day.
For any dispute not subject to arbitration you and FanDaction agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Akron, Ohio. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
The Terms and the relationship between you and FanDaction shall be governed by the laws of the State of Ohio without regard to conflict of law provisions.
21.4 Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of FanDaction to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
21.5 Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
21.6 Assignment. The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by FanDaction without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
21.7 No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and FanDaction as a result of these Terms or use of the FanDaction Service. You further acknowledge that by submitting User Submissions or other Non-FanDaction Content, no confidential, fiduciary, contractually implied or other relationship is created between you and FanDaction other than pursuant to these Terms.
21.8 Survival. Sections 9, 16, 17, 18, 19, 20, and 21, will survive the termination of these Terms or your account, whether by you or by FanDaction.
21.9 Headings. The heading references herein are for convenience purposes only, and shall not be deemed to limit or affect any of the provisions hereof.
21.10 Limit on Statute of Limitations. YOU AGREE THAT ANY CLAIM AS DEFINED IN SECTION 21.3(a) ABOVE MUST BE FILED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR IT WILL BE PERMANENTLY BARRED.
21.11 Notice to California Users. As required by California Civil Code Section 1789.3, this notice is to advise you of the following: a) The FanDaction Service is a service provided by FanDaction, Inc. Inc.; b) The fees associated with the FanDaction Service may change at any time; c) If you have a complaint regarding the FanDaction Service or desire further information on use of the FanDaction Service, contact us at any time. For complaints, you may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 "R" Street, Sacramento, California 95814 or by telephone at 1-916-445-1254.
22. Special Provisions Regarding Fantasy Horse Racing Match Ups. FanDaction is proud to exclusively offer Fantasy Horse Racing Match Ups to our customers. In doing so, we contract with Equibase Company LLC (“Equibase”). By participating in any Fantasy Horse Racing Match Ups offered by FanDaction, you agree to the following additional terms:
(a) "[You] agree that you will only use the handicapping-related information and data provided to you in connection with the [contest] in support of your participation in the [contest] and for no other purpose whatsoever."
(b) "Equibase is not responsible for any incorrect or inaccurate information no matter what the cause and Equibase assumes and shall have no responsibility or liability whatsoever for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to or with respect to any data.” (c) “Equibase shall not be responsible for injury or damage to [participant’s] or to any other person's computer, software, servers or any peripherals related to or resulting from participation in the contest.” (d) “IN NO EVENT WILL EQUIBASE, ITS LICENSEES AND/OR THEIR PARENTS, AFFILIATES, SUBSIDIARIES AND RELATED COMPANIES, THEIR ADVERTISING OR PROMOTION AGENCIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS, BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES OR LOSSES OF ANY KIND, INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF YOUR ACCESS TO AND USE OF OR RELIANCE UPON DATA. WITHOUT LIMITING THE FOREGOING, ALL DATA IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR EXCLUSION OF IMPLIED WARRANTIES SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. CHECK YOUR LOCAL LAWS FOR ANY RESTRICTIONS OR LIMITATIONS REGARDING THESE LIMITATIONS OR EXCLUSIONS.” (e) “IN NO EVENT WILL EQUIBASE, ITS LICENSEES AND/OR THEIR PARENTS, AFFILIATES, SUBSIDIARIES AND RELATED COMPANIES, THEIR ADVERTISING OR PROMOTION AGENCIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS, BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES OR LOSSES OF ANY KIND RESULTING FROM CLAIMS AND/OR GUARANTEES MADE BY OTHER INTERNET SITES OR ANY OTHER PERSONS OR ENTITIES.” (f) “[You] agree and acknowledge that the foregoing limitations represent a reasonable allocation of risk and that they shall apply notwithstanding the failure of essential purpose of any limited remedy."
Last updated june 09, 2016Back to Top