TERMS OF USE & CONTEST RULES

LAST UPDATED: FEBRUARY 11, 2022

OVERVIEW: Please read the terms below. They form a binding contract with you.

IMPORTANT NOTICE. These Terms of Use contain an agreement to arbitrate any dispute.  This agreement to arbitrate requires, with limited exception, that you submit any claims you have against the Company to final binding arbitration, unless you opt out in accordance with Section 14 below.  Unless you opt-out of arbitration: (1) you will only be permitted to pursue claims against the Company on an individual basis, not as part of any class or representative action or proceeding, and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

 

1. Description of APP; Acceptance of Terms; Modification of Terms

(a)        Welcome to FanLabel®, a mobile gaming application owned and operated by Fan Label, LLC (“Company”, “us” or “we”), which gamifies music discovery and promotes engagement with musical artists by allowing end-users of the App (“Users”, “you”, or “your”) to participate in free-to-enter fantasy or other contests, earn virtual currency or other awards, and/or appear on contest-based leaderboards and app-wide leaderboards (together with all products and services offered therein, the “App”).

(b)        Company may offer other services or features from time to time that are governed by different terms of service and not specifically referenced herein. Unless explicitly stated otherwise, such services or features shall be subject to these Terms of Use. Company also may offer one or more premium services or features within the App that require payment, including by subscription (each service or feature, a “Premium Service”).  Each such Premium Service may offer additional content, features and/or functionality that are not otherwise available for free via the App.

(c)        These Terms of Use and all other terms and conditions, policies and/or documents incorporated by reference herein, including, without limitation, the Privacy Policy (available at https://fanlabel.com/privacy) and any Contest Rules (available at https://fanlabel.com/contest-rules) (collectively, the “Terms of Use”) constitute a legally binding agreement between Company and each User. By creating a User Account (defined herein) and/or accessing or using the App, you are deemed to have accepted, executed and be bound by the terms of these Terms of Use.

(d)       Company may change or amend these Terms of Use at any time in its sole discretion. If Company makes a material change or amendment to these Terms of Use, it will notify Users thereof by posting such change or amendment within the App, and, if you have provided us with an email address, we also may notify you of the changes by email in our discretion.   Any such material changes will take effect thirty (30) days after notice is posted.

(e)    IF ANY OF THESE TERMS OF USE OR ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, DO NOT CREATE A USER ACCOUNT OR USE OR CONTINUE TO USE THE APP. YOUR CONTINUED USE OF THE APP FOLLOWING THE POSTING OF ANY NOTICE OF ANY CHANGE OR AMENDMENT TO THESE TERMS OF USE SHALL CONSTITUTE YOUR ACCEPTANCE AND AGREEMENT TO SUCH CHANGE OR AMENDMENT.

2. APP LICENSE; APP ACCESS, SUSPENSION AND TERMINATION

Company grants you a limited, non-exclusive, non-transferable, non-assignable, non-sublicenseable license to access and make use of the App solely as provided herein, subject to these Terms of Use, and not for redistribution of any kind (the “License”), including, without limitation, a license to download and install a copy of the App on a mobile device that you exclusively control and to run the App on such device solely for your own personal, entertainment use.  This License does not include any resale or other use of (i) the App, (ii) any Registration Data (defined below), (iii) any other content, materials, information, text, data, copyrights, trademarks, logos, designs, insignia, images, photos, sound recordings, compositions, screenshots, videos, posts, identifying marks, App pages, software, and other original works of authorship and/or intellectual property uploaded to, or incorporated into, the App by Company (collectively, “App Content”), which App Content is and shall remain the sole and exclusive property of Company (or the applicable third party owner from whom Company has licensed such App Content for use within the App, as applicable), or (iv) any content, materials, information, text, data, copyrights, trademarks, logos, designs, insignia, images, photos, sound recordings, compositions, screenshots, videos, and other intellectual property that any other User submits or uploads to the App (collectively, “User Content”), which User Content is and shall remain the sole and exclusive property of the applicable User (subject to the licenses granted to Company herein).  The App, App Content, and any User Content belonging to another User may not be used, modified, reproduced, duplicated, copied, published, distributed, downloaded, sold, resold, transformed, redesigned, reconfigured, retransmitted, or otherwise exploited by you for any purpose without express prior written consent of Company (or the applicable User with respect to such User’s User Content).  Violation of this Section 2 may result in infringement of intellectual property and contractual rights of Company, other Users of the App, or other third parties, which is prohibited by law and could result in substantial civil and criminal penalties.  Except as expressly set forth above, these Terms of Use do not grant to you any express, implied or other license or right in and to any intellectual property belonging to Company, any other User or any other third party.  This License terminates automatically upon any unauthorized use of the App and Company will take appropriate investigative and legal action for any illegal or unauthorized use of the App.

Company reserves the right, in its sole discretion and without notice or liability to you, to limit, suspend or terminate your use of, or access to, the App (either in whole or in part) at any time for any reason with any conditions, including, but not limited to, if Company believes in good faith that you have violated or acted inconsistently with these Terms of Use or any applicable law or that you have engaged in conduct that Company determines to be inappropriate or unacceptable.  Company reserves the right, in its sole discretion, to limit, suspend or terminate your access to the App if you file any claim against Company or any claim that involves the App.  Company also reserves the right, at its sole discretion, to seek and obtain any other remedies available to it pursuant to any applicable laws and regulations or at equity as a result of your breach of these Terms of Use or any other act or omission by you that gives rise to a claim by Company.  If Company limits, suspends, or terminates your right to use the App, you are prohibited from accessing or using the App through any other third party, or registering and creating a new User Account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party, unless and until Company lifts any such suspension or termination in by written notice to you.  In the event your right to use the App is terminated, limited, or suspended, these Terms of Use will remain in effect and enforceable against you.

You may terminate these Terms of Use at any time by ceasing all use of the App; provided, that all sections of these Terms of Use which by their nature should survive the expiration or termination shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of these Terms of Use.

Company may in the future update the App to change the material, product and service offerings, App Content, and/or features thereof at any time (an “Update”).  Company shall not be liable to any User in any way as a result of any temporary suspension of the App arising from or in connection with an Update.  Furthermore, Company is under no obligation to undergo an Update of the App to the extent any App Content, User Content and/or other features or material contained therein or related thereto is out of date.  The terms of the License granted to you pursuant to this Section 2 shall apply in full to any Update.  Additionally, you agree to promptly download and install any Update that Company makes available through the iTunes App Store or Google Play store or through any other mobile application store or otherwise, as applicable.

Your access to the App may be interfered with by numerous factors outside of Company’s control including, but not limited to, telecommunications and/or wireless network service disruptions, computer or mobile device viruses and bugs, tampering, unauthorized intervention, fraud, technical failures, and server, equipment or software defects.  Company is not responsible and will have no liability for any failures of the internet or any data or telecommunications equipment, system or network used in connection with the App.  In addition, perfect security does not exist on the Internet or mobile devices; Company cannot and does not guarantee that any Registration Data or other personally identifiable information submitted to the App will not become public under any circumstances.

3. USER ACCOUNTS; REGISTRATION DATA; CONSENT TO RECEIVE EMAILS

In order to access and utilize the App, each User will need to register and create a unique User profile account (each, a “User Account”).  You agree to create only one (1) unique User Account and that you shall be the sole authorized user of your User Account.  You may create a User Account directly through the App, or by logging in through your Facebook, Apple, Google, or Spotify accounts (Facebook, Apple, Google, and Spotify will automatically provide the information we need from you).  As part of the User Account creation/registration process, Users will be asked to submit certain information such as the User’s name, email, address, phone number, date of birth, User public profile name, User label name, and/or picture, etc., and to create a User Account login password (or to enter your Facebook, Apple, Google, or Spotify login password if registering through your Facebook, Apple, Google, or Spotify account) (collectively, “Registration Data”). You agree that you are prohibited from selling or transferring your User Account or related Royalty Points (defined in the Official Rules (https://fanlabel.com/contest-rules)).  You agree that all Registration Data you provide to Company will be true, accurate, current, and complete.  Company may from time to time modify or add to the Registration Data information fields required as part of the User Account creation/registration process, and you agree to promptly complete any such additional or modified information fields when requested by Company.

Company will have the right to use your Registration Data in connection with servicing and operating the App.  You agree (i) to keep your Registration Data true, accurate, current and complete at all times (and will promptly update your Registration Data as necessary from time to time), (ii) to restrict access by any other person or entity to your User Account, password or other login information, (iii) to not knowingly use the name or email of any other person without authorization, (iv) to not use a User public profile name that is profane, offensive or otherwise inappropriate, (v) to not allow any third party to use your login information, Registration Data or Account, and (vi) to notify Company of any breach of security by promptly sending Company an e-mail to [email protected].  You agree that you will be liable for all activities that occur under your User Account, even if such activities were not committed by you.  Company is not responsible for any loss or damage as a result of someone else using your User Account, Registration Data, or password with or without your knowledge.  You acknowledge and agree that certain Registration Data (such as your User public profile name and/or picture) that you provide in connection with the User Account creation/registration process will be publicly viewable by all other Users of the App.

By providing us with your email address or other contact information and using the App, you hereby affirmatively consent to the use of your email address or other contact information for notifications from us regarding important service announcements and other administrative communications related to your use of the App, as well as certain marketing and other advertising communications from us and from our third-party advertising partners, as more fully set forth in our Privacy Policy (https://fanlabel.com/privacy).  You will be able to opt out of receipt of certain notifications by following the instructions described in our Privacy Policy, however, if you do not wish to receive certain service and other administrative notifications related to the App, your only way to opt out of such messages is to stop using and delete the App.

4. PRIVACY

Your privacy is very important to us.  To understand our practices, please review our Privacy Policy at: https://fanlabel.com/privacy which is incorporated by reference into these Terms of Use and also governs your use of the App.

If you create/register your User Account using your Facebook, Apple, Google, or Spotify account or other similar joint registration process, you authorize Company to access and use certain Facebook, Apple, Google, or Spotify account information (or that of any other similar joint registrant), including but not limited to your public profiles in those Third Party (defined below) applications and information about friends on those Third Party applications you might share in common with other Users. Our Privacy Policy explains in more detail the type of information we collect and how we use it.

5. USER REPRESENTATIONS AND WARRANTIES

The App is available only to persons (i) who are thirteen (13) years or older.  BY ACCESSING AND USING THE APP, INCLUDING, BUT NOT LIMITED TO, THE CREATION OF A USER Account, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST THIRTEEN (13) YEARS OLD AND, IF YOU ARE A MINOR IN YOUR PLACE OF RESIDENCE, (a) YOU HAVE PERMISSION FROM YOUR PARENT OR LEGAL GUARDIAN PRIOR TO ACCESSING AND USING THE app, AND (b) FOR THE AVOIDANCE OF DOUBT, PRIOR TO INITIATING ANY TRANSACTION IN CONNECTION WITH YOUR ACCESS AND USE THEREOF, YOUR PARENT OR GUARDIAN HAS AGREED TO THESE TERMS OF USE.

Except as provided above for minors where a parent or guardian is agreeing on your behalf, you represent and warrant that that you have the right, authority, and capacity to enter into, and to be bound by, these Terms of Use and to abide by the terms and conditions of these Terms of Use, and that you will so abide.  You further represent and warrant that you are not prohibited from receiving United States origin products, including the App and/or any products or services offered therein.

You represent and warrant that (i) all Registration Data and all User Content and other information that you submit or upload to the App is true, accurate, current, and complete, (ii) that you are the sole owner of all right, title, and interest in, or have obtained all necessary rights and licenses from the applicable owner of, any User Content or other information you submit or upload onto the App, and (iii) that such User Content and other information, when used for the purposes in which it is submitted or uploaded to the App, does not infringe upon the rights of any third party, including, without limitation, intellectual property rights, propriety rights, and rights of publicity/privacy.  You acknowledge and agree that you shall be solely responsible for all Registration Data, User Content, and other information that you post, upload, link to, publish, exchange, or display within the App and that Company reserves the right to reject, refuse to post, edit, modify, remove all or a portion of any such Registration Data, User Content or other information from the App that Company determines, in its sole discretion, does not comply with these Terms of Use, or for any other reason, without notice or liability to you.

You represent and warrant that any User Content and other information that you submit or upload to the App (i) will not be fraudulent or involve the sale of counterfeit or stolen items; (ii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing consumer protection, unfair competition, anti-discrimination or false advertising); (iii) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (iv) will not be obscene or contain child pornography or be harmful to minors; (v) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information; and (vi) will not create liability for Company or cause Company to lose (in whole or in part) the services of its ISPs or other partners or suppliers.

6. PUBLIC AREAS; CONDUCT WITH OTHER USERS; PROHIBITED USES OF APP

The App contains User public profiles and labels, chat and other User-to-User messaging functions, and may in the future contain additional communication facilities such as blogs, message boards, news groups, forums, and other interactive community-based systems that allow Users to communicate with other Users (collectively, “Public Areas”).  You may only use such Public Areas to send and receive messages and material that are relevant and proper to the applicable forum.  You further acknowledge and agree that submissions made to Public Areas may be publicly available to other Users, and that you will be publicly identified by your User Account public profile name or label name when communicating in Public Areas, and Company will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.

All Users shall be solely responsible for all interactions with other Users of the App.  In your interactions with other Users, you agree to conduct yourself professionally, civilly, and respectfully at all times.  While using the App, you agree that you shall not under any circumstances harass, disparage, or make mischief against any other User of the App.  You hereby acknowledge and agree that Company does not actively monitor or police the Public Areas or specific interactions between Users of the App (and has no obligation to do so) and you hereby disclaim and hold Company harmless from and against any and all liability resulting from a User’s interaction with, or conduct towards, any other User.  Notwithstanding the foregoing, Company reserves the right to determine, at its sole discretion, what constitutes harassment or mischief, and where that has occurred, and may, also at its sole discretion, partially or completely deny, suspend, or terminate access to the App to any infringing party.

Without limiting the foregoing, while using the App, you may not:

• Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of Company or other Users, or use information learned from the App to otherwise defame, abuse, harass, stalk, threaten, intimidate or mislead, or otherwise violate the legal rights of Company or any other User outside of the App.
• Submit or upload User Content to the App, or otherwise utilize Public Areas to communicate or distribute information, that is defamatory, profane, infringing, obscene, unlawful, offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones, or promotes racism, bigotry, hatred, or physical harm of any kind against any individual or group of individuals.
• Use the App for any purpose in violation of local, state, national, or international law.
• Upload User Content, or files that contain software or other material, that violates the intellectual property rights (or rights of privacy or publicity) of any third party or for which you have not obtained the necessary rights or permissions to use accordingly.
• Upload User Content or files that contain viruses, Trojan horses, corrupted files, malware, spyware, bugs, or any other similar software that may damage or infiltrate the operation of any other User’s mobile device.
• Advertise or offer to sell any goods or services for any commercial purpose through the App.
• Conduct or forward surveys, contests, pyramid schemes, or chain letters.
• Impersonate another person or User or knowingly allow any other person or User to use your identification or User Account to utilize the App.
• Repeatedly upload User Content or message other Users (“Spamming”). Spamming is strictly prohibited.
• Download any User Content posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the App.
• Restrict or inhibit any other User from using and enjoying the Public Areas.
• Imply or state that any statements you make are endorsed by Company or any other User, without the prior written consent of Company or such User.
• Use a robot, spider, manual and/or automatic processes, or devices to data-mine, data-crawl, scrape, or index the App in any manner.
• Hack or interfere with the App, its servers, or any connected networks.
• Adapt, alter, license, sublicense, or translate the App for your own personal or commercial use.
• Remove or alter, visually or otherwise, any copyrights, trademarks, or proprietary marks and rights owned by Company.
• Reverse engineer, decompile, disassemble, or otherwise tamper with any security components, usage rules or other protection measures applicable to the App or any App Content.
• Make any use of any App Content or User Content that would infringe the copyright therein.
• Upload content that provides materials or access to materials that exploit people under the age of 18 in an abusive, violent or sexual manner.
• Use the App to collect usernames and or/email addresses of Users by electronic or other means.
• Use the App in a manner which is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Company’s trade secret information for public disclosure or other purposes.
• Register under different usernames or identities, after your User Account has been suspended or terminated or register under multiple usernames or identities.
• Run any version of the App on a so-called “jailbroken” mobile device.
• Cause or induce any third party to engage in the restricted activities above.

7. INTELLECTUAL PROPERTY RIGHTS; STORAGE OF USER CONTENT

Company retains all right, title, and interest in and to the App, including, without limitation, (i) all text, graphics, typefaces, formatting, graphs, designs, editorial content, HTML, look and feel, software, and data, (ii) all business processes, procedures, methods, and techniques used in the App, (iii) all other materials and content uploaded or incorporated into the App, including, without limitation, all App Content (but excluding (A) User Content, which is owned by the applicable User, but which Company has a license to use pursuant to these Terms of Use, and (B) certain App Content licensed by Company from a third party owner for use within the App, which is owned by the applicable third party owner, subject to the license granted by such third party owner to Company therein), and (iv) all associated trade secret rights and other intellectual property and proprietary rights recognized anywhere in the world (collectively, “App IP”). App IP is protected in all forms, media, and technologies now known or hereinafter developed.  Company also owns the coordination, selection, arrangement, and enhancement of such App IP as a Collective Work under the United States Copyright Act, as amended.  The App IP is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws.

You retain all right, title, and interest in and to any compliant User Content that you upload onto the App; provided, that you hereby grant to Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferrable, assignable, sublicensable (through multiple tiers) license to exercise all copyright, publicity rights, and any other rights you have in such User Content, in any media now known or not currently known in order to operate, perform, promote, advertise, market, and improve upon the App.

You acknowledge and agree that Company may establish general practices and limits concerning use of the App, including without limitation the maximum number of days that User Content posted to the App will be retained by or made available through the App and the maximum disk space that will be allotted on Company’s servers on your behalf.  You agree that Company has no responsibility or liability for the blocking, deletion, or failure to store any User Content maintained or transmitted by the App.  You further acknowledge that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice to you.

The service marks and trademarks of Company, including without limitation Company and Company logos, are service marks and trademarks owned by Company.  Any other trademarks, service marks, logos, and/or trade names appearing via the App are the property of their respective owners.  You may not copy or use any of these marks, logos or trade names without the express prior written consent of Company or the applicable owner thereof.

8. INFRINGEMENT CLAIMS PROCEDURE

Company respects the intellectual property rights of others and expects all Users to do the same.  If you believe, in good faith, that any App Content or User Content is infringing your or any third party’s copyrights or other intellectual property rights, please provide notification of such violation containing the following information (“Infringement Notice”) to Company’s designated copyright agent at [email protected], which Infringement Notice must include:

• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
• A description of the copyrighted work or other intellectual property that you claim has been infringed and an explanation as to why you think an infringement has taken place;
• A description of where the material that you claim is infringing is located on the App;
• Your address, telephone number, and email address;
• A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
• A statement by you, made under penalty of perjury, that the above information in your Infringement Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Company’s contact information contained in this Section 8 is only for suspected copyright infringement.  Contact information for other matters is provided elsewhere in these Terms of Use.  Company will remove any App Content or User Content that infringes upon the copyright of any person under the laws of the United States upon receipt of such a statement (or any statement in conformance with 17 U.S.C. § 512(c)(3)).  United States law imposes substantial penalties for falsely submitting a notice of copyright infringement.

9. THIRD-PARTY CONTENT

The App may include third-party content or links (such as hyperlinks) to third party websites, products, or services (including external websites or services that are framed by the App as well as any advertisements displayed in connection therewith) that are not owned or controlled by Company (collectively, “Third Party Content”).  Inclusion of any Third Party Content on the App does not constitute or indicate Company’s endorsement thereof and Company shall not be responsible for any Third Party Content transmitted through the App.  You may be subject to additional terms and conditions of use, guidelines, or rules applicable to any Third Party Content that you access through the App (“Third Party Terms”).  All such Third Party Terms are hereby incorporated by reference into these Terms of Use, provided, however, that where the Third Party Terms conflict with these Terms of Use the Terms of Use shall prevail.  You acknowledge and agree that Company will not and cannot censor or edit any Third Party Content and that you shall assume the sole responsibility for and risk associated with your use of Third Party Content, including compliance with the Third Party Terms associated therewith. Accordingly, Company encourages you to be aware when you leave the App and to read the Third Party Terms associated with any Third Party Content.

By using the App, you expressly relieve Company from any and all liability arising from your use of any Third Party Content, including any loss or damage incurred as a result of any dealings between you and any third parties, or as the result of the presence of such Third Party Content on the App or the failure of such Third Party Content to function as intended.

10. CONTEST RULES
    (a) You acknowledge and agree that the App enables Users to engage in free-to-enter fantasy and other contests and other gameplay (each, a “Contest”) which may offer either purely virtual awards with no real-world value or, in some cases, may offer prizes with real world value.

(b)        Each Contest will be governed by the Official Rules and specific Contest Rules which apply in addition to these Terms of Use.  In the event of any conflict between the Official Rules and these Terms of Use, the Official Rules of a Contest will govern. In the event of any conflict between the Official Rules and specific Contest Rules, the Contest Rules for an Applicable Contest (defined in the Contest Rules) will govern.

(c)        The App and its Contests are in no way sponsored, endorsed or administered by, or in association with, Facebook, Inc.,  Apple, Inc., Google Inc., Spotify USA Inc., or their respective affiliates (each a “Third Party”, and collectively, the “Third Parties”). Questions and comments regarding the App and its Contests should be directed to the Company and not to the Third Parties.

11. SPOTIFY

The terms in this Paragraph relate only to a User’s access to the App with a Spotify login.

Specifically, the App:

(a) expressly disclaims all implied warranties with respect to the Spotify Platform, Spotify Service, and Spotify Content, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement;

(b) prohibits modifying or creating derivative works based on the Spotify Platform, Spotify Service or Spotify Content;

(c) prohibits Users from decompiling, reverse-engineering, disassembling, and otherwise reducing the Spotify Platform, Spotify Service, and Spotify Content to source code or other human-perceivable form, to the full extent allowed by law; and

(d) states that Spotify is a third party beneficiary of the App’s end user license agreement and privacy policy and is entitled to directly enforce the App’s end user license agreement.

12. TRANSACTIONS AND PAYMENT

The App allows Users to engage in certain economic transactions (e.g., the purchase of certain music artist merchandise) using a credit card, debit card, third-party online payment service such as PayPal, through a mobile device (such as Apple Pay), or other acceptable payment mechanism (“Payment Method”).  When you provide information related to a Payment Method to Company, you represent that you are the owner or authorized user of such Payment Method.  You agree to provide current, complete, and accurate billing information in connection with your User Account and any Payment Method.  You agree that Company and/or a third party may charge your Payment Method for any amounts (including any taxes and late fees, as applicable) as may be accrued by or in connection with your User Account as a result of certain purchases that you agree to make through the App.  Failure to comply with this provision (including without limitation falsification of any information relating to your User Account or Payment Method) may, at Company’s option, result in immediate suspension or termination of your right to use the App. If your Payment Method expires you will remain responsible for any uncollected amounts.

The above referenced transactions may take place through an existing payment mechanism via a Third Party service provider, in which case applicable payment terms and conditions will be those of the applicable third party service provider, including any related privacy policy (“Third Party Payment Terms”).  In completing any such economic transactions (e.g., the purchase of certain music artist merchandise), you agree to be bound by and accept the Third Party Payment Terms, which are deemed incorporated by reference into these Terms of Use and are subject to change from time to time without prior notice to you.

13. TERMINATION

If you do not agree to the terms in these Terms of Use, your sole remedy is to not use the App.  To remove any User Content that you may have posted onto the App, please send an email to [email protected] setting forth the User Account email address you used to post such User Content and explicitly stating your desire to remove such User Content from the App. Company will use commercially reasonable efforts to remove such User Content from the App within five (5) business days from the receipt of your email notice; provided, however, that the license granted to Company hereunder with respect to such User Content shall remain in full force and effect until such time as the applicable User Content is removed from the App; and provided, further, that Company’s failure to remove the applicable User Content from the App within the time period set forth above shall not constitute a breach by Company of these Terms of Use.  All provisions hereof which by their nature should survive, shall continue in full force and effect upon any termination of these Terms of Use.

14. RELEASES; DISCLAIMERS; LIMITATION OF LIABILITY

Neither Company nor its affiliates or licensors is responsible for the conduct, whether online or offline, of any User of the App and you hereby release Company and its affiliates or licensors from any liability related thereto.  Company and its affiliates and licensors will not be liable for any claim, injury, or damage arising in connection with your use of the App.

TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

YOUR USE OF THE APP IS ENTIRELY AT YOUR OWN RISK.  THE APP IS PROVIDED ON AN “AS IS” and “as available” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  COMPANY (OR THE APPLICABLE THIRD PARTY OWNER FROM WHOM COMPANY HAS LICENSED SUCH APP CONTENT FOR USE WITHIN THE APP, AS APPLICABLE) MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE APP CONTENT OR USER CONTENT PROVIDED THROUGH THE APP OR THIRD PARTY CONTENT INCLUDED IN, OR LINKED TO, THE APP AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE APP, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN.  COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY WEBSITE, PRODUCT, OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE APP OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.  AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE APP WILL BE UNINTERRUPTED OR THAT THE APP WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APP, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS, OR CONTENT OF ANY INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE APP.  NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE APP IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED, OR USED BY OTHERS.

YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE APP IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD COMPANY, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE APP, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT, OR OMISSION OF ANY USER, ANY SERVICE PROVIDED BY COMPANY OR ITS AFFILIATES OR LICENSORS, AND ANY DESTRUCTION OF YOUR INFORMATION.

UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, ITS LICENSORS (INCLUDING, WITHOUT LIMITATION, ANY APPLICABLE THIRD PARTY OWNER FROM WHOM COMPANY HAS LICENSED APP CONTENT FOR USE WITHIN THE APP, AS APPLICABLE), OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE APP, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.  IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY OR ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED ONE HUNDRED ($100) DOLLARS. For New Jersey Residents:  Nothing herein restricts your ability to recover damages or attorneys’ fees where mandated by statute.

15. ARBITRATION OF DISPUTES

Please Read The Following Provisions in this Section 14 Carefully – It May Significantly Affect Your Legal Rights, Including Your Right to File a Lawsuit in Court

1. Initial Dispute Resolution.   Both the Company and the User (referred to as the “parties”) shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
2. Agreement to Binding Arbitration.    If a dispute cannot be resolved informally as describe above, then either party may initiate binding arbitration, and all claims arising out of or relating to these Terms of Use (including its formation, performance and breach) and the App shall be finally settled by binding arbitration, 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 of Use, including, but not limited to any claim that all or any part of these Terms of Use is void or voidable. 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 binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the Company will pay the additional cost.  The interpretation and enforcement of these Terms of Use shall be subject to the Federal Arbitration Act.

 

The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial.  The parties 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.

1. 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.  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.
2. Exception – Litigation of Small Claims Court Claims or enforcement actions.  Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction to the extent such claims do not seek equitable relief. Additionally, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in sate or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
3. Thirty 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 this Section by sending written notice of your decision to opt-out to the following address: Fan Label, LLC, 34300 Woodward Ave., Suite 200, Birmingham, MI 48009, Attn:  Arbitration Opt-Out.  The notice must be sent within thirty (30) days of the date you have agreed to the Terms of Use, whether based on your initial use of the App or your continued use after the effective date of these Terms of ;  otherwise you shall be bound to arbitrate disputes in accordance with the terms set forth above.  If you elect to opt-out of these arbitration provisions, the Company also will not be bound by them.

15. INDEMNIFICATION

You hereby agree to indemnify, defend and hold harmless, Company and its directors, officers, employees, affiliates, content partners, vendors, third party licensors, distributors, advertisers, and other contracting parties, together with their respective director, officers, employees, successors, assigns, consultants and other agents, from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim, action, or proceeding brought by a third party based on: (i) your use of, or inability to use, the App; (ii) any breach of any representation, warranty, covenant or obligation of yours under these Terms of Use; (iii) any Registration Data or User Content submitted or uploaded by you onto the App; (iv) your violation of any applicable law or regulation; or (v) your violation of any third party right, including, but not limited to, any intellectual property right. Company shall promptly notify you of any such claim, and you shall assume control of the defense of such claim upon Company’s request. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Company.

16 GOVERNING LAW; VENUE FOR DISPUTES NOT RESOLVED BY ARBITRATION

These Terms of Use and the relationship between you and Company shall be governed by and construed under the internal laws of the State of Michigan without regard to its conflict of law provisions.  All disputes arising out of or related to these Terms of Use or your use of the App not resolved by arbitration (excluding small-claims court disputes) shall be subject to the exclusive jurisdiction of the state and federal courts located in Oakland County, Michigan and you agree to submit to the personal jurisdiction and venue of such courts; provided, that Company reserves the right to bring proceedings against you for breach of these Terms of Use in any other jurisdiction.

17. NOTICE

Except as explicitly stated otherwise, any notices to Company shall be sent by certified mail, return receipt requested, to Fan Label, LLC, 34300 Woodward Ave, Suite 200, Birmingham, MI, USA or via electronic mail to [email protected], including any questions you may have about the terms and conditions of use set forth in these Terms of Use.

18. NOTICE TO CALIFORNIA USERS

Under California Civil Code Section 1789.3, users located in California are entitled to the following consumer rights notice: If a user has a question or complaint regarding the App,  please send an email to [email protected].  Users may also contact us by writing to Fan Label, LLC, 34300 Woodward Ave., Suite 200, Birmingham, MI 48009.  California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

19. MISCELLANEOUS

The failure of Company to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Use remain in full force and effect.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the App or these Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Company may assign these Terms of Use, in whole or in part, at any time without notice to you. You may not assign these Terms of Use or transfer any rights to use the App without the prior written consent of Company. These Terms of Use will inure to the benefit of Company, its successors and assigns.

You acknowledge and agree that any third-party owner of App Content, which has licensed such App Content to Company for use in connection with the App shall be an intended beneficiary of these Terms of Use and shall have the right to enforce these Terms of Use against you.