OpenFan Terms of Use – Third Party Partners

Updated: October 16, 2017


OPENFAN THIRD-PARTY PARTNER GENERAL TERMS AND CONDITIONS

OpenFan, Inc.’s (“OpenFan”) mission is to give every business - small, medium and large - the same depth and breadth of customer intelligence that the biggest businesses have about their customers. OpenFan has built a platform where its third-party partner businesses (“Marketers”) can import their customer’s data and data captured from Marketer Campaigns (as defined below) from which Marketers can better target their current and prospective customers to allow them to spend their marketing and advertising budgets more efficiently.  Marketers may sometimes be referred to as “you” or “your”.  

  1. Terms of Use. These terms set forth the legally binding terms, conditions, policies and notices (“Terms”) for your use of the website at www.openfan.com (the “Site”), and the service, APIs and platform owned and operated by OpenFan (together with the Site, the “Service”). By using the Service as a Marketer, you agree to be bound by these Terms.

  1. Privacy.  Any information that you provide to OpenFan is subject to our Privacy Policy, which governs our collection and use of your information. You understand that through your use of the Services you consent to the collection and use (as set forth in the Privacy Policy) of this information for storage, processing and use by OpenFan. As part of providing you the Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services and your account, which you may not be able to opt-out from receiving.

  1. Service/Contests/Raffles/Rewards.

a.          OpenFan is a platform and service where Marketers can create and run campaigns, such as sweepstakes and giveaways (“Marketer Campaign”) and offer rewards of different types and levels to different users directed to registered users of the Site (“Users”).  OpenFan has obtained certain information related to Users that is necessary for the operation of the Marketer Campaign and has obtained consent to provide such User information to Marketer for use in Marketer Campaigns and for Marketer’s general marketing purposes subject to these Terms and the Privacy Policy. Such Marketer Campaign will live on the Marketer owned and operated websites (not on OpenFan’s Site) and be used to incentivize and facilitate marketing to Marketer’s current customers and potential customers relative to Marketers products and/or services to Users.

b.          By creating the Marketer Campaign, Marketers are offering Users the opportunity to enter into a contract with the Marketer.

c.   Marketers are wholly responsible for fulfilling obligations both implied and stated in any Marketer Campaign and are required to fulfill all rewards if achieved. Marketers shall make a good faith attempt to fulfill each reward by its delivery date as noted in the particular Marketer Campaign. For some rewards, the Marketer may need further information from Users (e.g., a mailing address or clothing size) to enable the Marketer to deliver the reward. The Marketer shall request the information directly from the applicable User after the Marketer Campaign reward is achieved. OpenFan does not guarantee the delivery or receipt of rewards.

d.  OpenFan reserves the right to reject, cancel, interrupt, remove, or suspend a particular Marketer Campaign at any time and for any reason, and shall not be liable to Marketer for any damages as a result of any such action. OpenFan may terminate Marketer Campaigns that are single or repeat infringers of intellectual property rights of others.

e.         OpenFan is not liable for any damages or loss incurred by Marketers related to any Marketer Campaign or the associated rewards or any use of the Service. OpenFan is under no obligation to become involved in disputes between Marketers or Users, including, but not limited to, disputes relating to the delivery of rewards. Marketers are solely responsible for the fulfillment of all rewards and other obligations to Users under the Marketer Campaigns. You hereby release OpenFan, its owners, shareholders, members, officers, employees, agents, licensees and successors from any claims, damages, or demands of any kind, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and the Service.

  1. Registration.

a.         Your participation in the Service may require that you supply certain information to OpenFan. If so requested, you shall provide accurate, complete, and updated registration information; failure to do so may constitute a breach of the Terms, which may result in the immediate termination of your account. Additionally, you may be required to provide certain information related to your existing customers (“Customers”) that can be integrated with the User information captured during registration for a Marketer Campaign for use in a Marketer Campaign.  If so requested, you shall have all necessary consent and permission to share such Customers’ information with OpenFan and such Customer information shall be accurate, complete, and updated information; failure to do so may constitute a breach of the Terms, which may result in the immediate termination of your account. It is your responsibility to maintain the currency, completeness and accuracy of your registration data, and any loss caused by your failure to do so is your responsibility. Customers’ personal identifiable information supplied by you shall be subject to OpenFan’s Privacy Policy. OpenFan is not liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. OpenFan shall not be responsible for any losses arising out of the loss or theft of Marketer information transmitted from or stored on a computer or device or from unauthorized or fraudulent transactions associated with the Service.

b.  You may still view Content on the Site without registering, but as a condition of using certain aspects of the Service, you may still be required to register with OpenFan in order to use certain Services. If you elect not to register and provide such information, you may not be able to access certain content or participate in certain features of the Services or any features at all.

c.  Users will register to enter each Marketer Campaign using one of three (3) registration methods: connecting via Facebook, connecting via Gmail, or entering their information manually.

OpenFan will never expose your Customers’ or any Users’ personal identifiable information to any third parties and your Customers or Users will never receive marketing spam in their inbox from OpenFan or a Marketer unless such Customers or Users have consented to receive such marketing material through a Marketer Campaign. For clarity’s sake, by participating in a Marketer Campaign Customers and Users must expressly agree to receive emails directly from the applicable Marketer that is responsible for such Marketer Campaign.

For more information on how OpenFan’s information collection and use practices, please see OpenFan’s Privacy Policy.

  1. Analytics Dashboard.

OpenFan will provide Marketer a higher level of trend insights from Customers and Users relative to Marketer’s products and/or services to assist Marketer in enriching and targeting its advertising and marketing efforts to Consumers and Users.  

OpenFan will integrate with Facebook’s Advertising API so that Marketer may identify a segment of its consumer base that it desires to target with advertising and/or marketing material, which will be synced to Marketer’s Facebook advertising account, which Marketer shall control and manage.

Marketer shall connect OpenFan to its Facebook advertiser account to enable data to be shared between Marketer and OpenFan.  OpenFan will capture the performance data on Marketer’s Facebook advertisements in order to correlate and analyze such data and provide Marketer with the trend insights, in the aggregate form only.  OpenFan will never expose Customers’ or Users’ individual insights to Marketer or any other third parties.            

  1. Rules and Conduct.

a.   As a condition of your use of the Service, you shall not to use the Service for any purpose that is prohibited by the Terms or other applicable law.

b.  You shall not directly or indirectly: (i) take any action that imposes or may impose (as determined by OpenFan in its sole discretion) an unreasonable or disproportionately large load on OpenFan’s or its Marketers infrastructure, or otherwise “floods” or overburdens the Service; (ii) interfere or attempt to interfere with, impair or disable the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures OpenFan may use to prevent or restrict access to the Service (or other accounts, systems or networks connected to the Service); (iv) run any form of auto-responder, spam, software, or device to “crawl” or data-mine the Site or Service, or any automated devise or program that submits postings in bulk, at regular intervals (without being manually entered), or in any way is considered “gaming the system”; (v) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service; (vi) modify, translate or otherwise create derivative works based upon of any part of the Service; (vii) attempt to gain unauthorized access to OpenFan’s computer systems, database and user information not made available or provided through the Site; or (viii) impersonate any person or entity, including but not limited to any Marketer, User, employee or representative of OpenFan, or otherwise employ misleading e-mail addresses or identifiers to disguise your identification.

c.  Each Marketer Campaign is subject to its own set of official rules in addition to these Terms.

  1. Premium Features. While the basic Service is free, you may elect to subscribe to one of OpenFan’s premium plans that include additional features and functionality. Pricing and other details of the subscription plans are available at openfan.com. Subscriptions are paid monthly in advance, and renew automatically on a month-to-month basis unless you provide OpenFan notice of cancellation prior to the beginning of your next billing cycle. Your billing cycle will begin on the date that you subscribe and renew on each monthly anniversary of that date. If you cancel your subscription, your account will revert to the basic Service immediately upon cancellation. By subscribing to a premium plan and providing OpenFan with your payment information, you authorize OpenFan to charge you the monthly subscription fee for as long as your subscription is active. All subscription fees are non-cancellable and non-refundable. Any fees not paid when due will accrue interest at the rate of 1.5% per month or the maximum rate allowed by applicable law, whichever is less. Subscription fees are exclusive of all taxes of any kind, which are your sole responsibility. If you are required to pay any withholding tax, charge or levy in respect of any payments due to OpenFan under these Terms, you agree to gross up payments actually made such that OpenFan will receive sums due hereunder in full and free of any deduction for any such withholding tax, charge or levy.

  1. Third-Party Sites. The Site may link to other websites or resources on the Internet and other websites or resources may contain links to the Site. When you access third-party websites, you do so at your own risk. Those other websites are not under OpenFan’s control, and you acknowledge that OpenFan is not liable for the content, products, services, function, legality or any other aspect and/or materials available via those other websites or resources. You further acknowledge and agree that OpenFan shall not be liable for any damage as a result from or related to the use of any content, goods or services available through any third-party website or resource.

  1. Termination. OpenFan may terminate or suspend your access to the Service without cause or prior notice, which may result in the forfeiture and loss of information associated with your account. If you wish to terminate your account, you may do so by following the instructions on the Site. All provisions of the Terms that by their nature would survive termination shall appropriately survive, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

  1. Warranties and Representations/Disclaimers.

a.   You hereby warrant and represent that: (i) you have the right and power to enter into and fully perform all of your obligations under these Terms; (ii) you have the authority and right to provide OpenFan with the rights granted herein; (iii) OpenFan’s exercise of the rights granted herein will not infringe upon any copyright, trademark, right of publicity, moral right or other proprietary, intellectual property, contractual or other right of any person;

b.   OpenFan has no special relationship with or fiduciary duty to you. You acknowledge that OpenFan has no duty to take any action regarding any of the following: (i) which Users gain access to the Site; (ii) the unauthorized use of any Marketer Campaign; or (iii) the authenticity of any data or information that a User provides about them.

c.   THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND WITHOUT ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

d.  OpenFan makes no warranty or representation that: (i) The Service will be secure or available at any particular time or location; (ii) any defects or errors will be corrected; (iii) any content or software available at or through the Service is free of viruses or other harmful components; or (iv) the results of using the Service will meet your requirements or the results you desire are obtained. Your use of the Service is solely at your own risk, knowing and understanding all such risks.

  1. Limitation of Liability. EXCEPT FOR YOUR INFRINGEMENT, MISAPPROPRIATION OR OTHER VIOLATION OF OPENFAN’S INTELLECTUAL PROPERTY RIGHTS AND YOUR INDEMNIFICATION OBLIGATIONS UNDER THESE TERMS, IN NO EVENT SHALL YOU BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER. IN NO EVENT SHALL OPENFAN, ITS OWNERS, SHAREHOLDERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, LICENSEES, REPRESENTATIVES OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICE FOR (I) ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR (II) ANY BUGS, VIRUSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OPENFAN’S LIABILITY TO YOU FOR ANY CAUSE, REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND YOU SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM OPENFAN.

  1. Indemnification.

a. You shall defend, indemnify, and hold OpenFan, its affiliates, licensees, employees, contractors, agents, and representatives harmless from all liabilities, claims, and expenses (including reasonable attorneys’ fees and other legal costs) that arise from or relate to your use or misuse of, or access to, the Service, your violation of any warranties, representations or agreements made under the Terms, or from any third-party improperly using your account. OpenFan reserves the right to control defense of any claim otherwise subject to indemnification by you, but you shall assist and cooperate with OpenFan in providing any defense.

b.         OpenFan will defend at its expense any action brought against you to the extent that it is based on a claim that the Service, when used in accordance with these Terms, infringes a United States patent, copyright or trade secret of any third party, and OpenFan will pay any costs, damages and reasonable attorneys’ fees finally awarded against you in, or payable in settlement of, such action which are directly attributable to such claim, provided that (a) you notifies OpenFan promptly in writing promptly of the claim, (b) you permit OpenFan to assume sole control of the defense, compromise or settlement of the claim, and (c) you provides to OpenFan reasonable cooperation, information and assistance in connection therewith. If a final injunction is obtained against your use of the Service by reason of infringement, or if in OpenFan’s opinion the Service is likely to become the subject of a successful claim of such infringement, OpenFan may, at its option and expense, (x) procure for you the right to continue using the Service, (y) modify the Service so that it is non-infringing, or (z) replace the Service with other software or services of substantially similar functionality. In the event none of the foregoing options are commercially practicable as determined in OpenFan’s sole discretion, OpenFan may terminate these Terms.

  1. Electronic Delivery/Notice Policy. By using the Services, you consent to receive from OpenFan all communications, including notices, agreements, legally required disclosures, or other information in connection with the Services electronically at the e-mail provided by you. OpenFan may also provide such notices by posting them on the Site or by telephonic communication.

  1. Miscellaneous.

a.   OpenFan shall not be liable for any failure to perform its obligations hereunder where the failure results from any cause beyond OpenFan’s reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation. OpenFan may assign, transfer, or delegate any of its rights and obligations hereunder without your consent. No agency, partnership, joint venture or employment relationship is created as a result of the Terms, and neither party has any authority of any kind to bind the other in any respect.

b.   In any action or proceeding to enforce rights under the Terms, the prevailing party will be entitled to recover court costs and reasonable attorneys’ fees.

c.  No failure by OpenFan to perform any of its material obligations hereunder shall be deemed to be a breach of these Terms until email notice of such failure has been sent to OpenFan support@openfan.com, and such failure has not been corrected within thirty (30) days after OpenFan’s receipt of such email notice.

d.  These Terms (and any further rules, policies, or guidelines incorporated by reference) shall be governed by and construed in accordance with the laws of the State of California and the United States, without giving effect to any principles of conflicts of law, and without application of the Uniform Computer Information Transaction Act or the United Nations Convention of Controls for International Sale of Goods.  You agree that any available claim arising out of or relating to these terms may only be filed only in the state or federal courts located in California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. You hereby irrevocably waive any right you may have to trial by jury in any dispute, action, or proceeding. YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THIS SERVICE AND/OR THESE TERMS, WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION.

e.  The Terms and other referenced material contain the entire agreement between you and OpenFan with respect to the Service, and supersede all prior or contemporaneous communications and proposals (whether verbal, written or electronic). If any provision hereof is found to be unenforceable, unlawful, or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the rest of the Terms will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

f.   This Site is owned and operated by OpenFan. All of the content on the Service, including, but not limited to, text, graphics, photographs, images, videos, trademarks, slogans, product and program names, recordings, illustrations and software (collectively, “Content”) that is provided by OpenFan or its licensors, is owned or controlled by OpenFan or its licensors (“OpenFan Content”). OpenFan Content includes OpenFan, openfan.com, the OpenFan logo(s) and other marks identifying OpenFan products and services, which are trademarks of OpenFan and may not be used without the prior written approval of OpenFan. OpenFan Content is the property of OpenFan and its licensors, and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws. You agree not to download, display or use any OpenFan Content located on the Service for use in any publications, in public performances, on websites other than this Service for any other commercial purpose, in connection with products or services that are not those of OpenFan, in any other manner that is likely to cause confusion among consumers, that disparages or discredits OpenFan and/or its licensors, that dilutes the strength of OpenFan’s or its licensor’s property, or that otherwise infringes OpenFan’s or its licensors’ intellectual property rights. You further agree to in no other way misuse any OpenFan Content or Content that appears on this Service. Except as explicitly permitted under these Terms or by a written agreement with OpenFan, no portion or element of this Site or Service may be copied or retransmitted via any means or format; the Site and all related rights shall remain the exclusive property of OpenFan.

g.        You represent and warrant that you own or have a valid license to all Content or other materials you upload, post, publish or display through the Service. You agree to fully reimburse OpenFan for all fees, fines, losses, claims, or any other costs OpenFan may incur that arise from your publishing illegal Content through the Service, including claims that Content you published infringes the intellectual property, privacy, or other proprietary rights of others. You hereby grant OpenFan a worldwide, non-exclusive, royalty free, fully paid, transferable, sub-licensable, license to copy, modify, display, perform, distribute, create derivative works of and otherwise use your Content solely for the purpose of providing you with the Service. OpenFan reserves the right to remove any Content that OpenFan determines in its sole discretion violates any law or right of any person, infringes the rights of any person, or is otherwise inappropriate for posting on the Service.

  1. Acceptance of Terms.

a.  The Service is offered subject to the acceptance of these Terms, and all other operating rules, policies, and procedures that may be published on the Site by OpenFan, which are incorporated by reference.

b.  OpenFan reserves the right, at its sole discretion, to modify or replace these Terms or other supplementary rules by posting the updated terms on the Site. If we make any material changes to these Terms, we will notify you of such changes via email or by posting a notice on the Site. Your continued use of the Service following any change to these Terms constitutes acceptance of those changes.

c.   OpenFan reserves the right to change, suspend, or discontinue the Service (including, but not limited to, the availability of any feature or database) at any time for any reason. OpenFan may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. You agree that you do not have any rights in this Service and that OpenFan will have no liability to you if this Service is discontinued or your ability to access the Service or any content you may have posted on the Service is terminated.

  1. Digital Millennium Copyright Act.

a.        Anyone who believes that his or her work has been reproduced on the Service in a manner which constitutes copyright infringement may submit a notification to OpenFan’s copyright agent in accordance with the Digital Millennium Copyright Act (the “DMCA”) by providing all of the following information in writing: (1) identification of the copyrighted work that is claimed to be infringed; (2) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service; (3) information for OpenFan’s copyright agent to contact you, such as an address, telephone number, and, if available, e-mail address; (4) a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law; (5) a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and (6) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed. If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, “trademark”) by indicating this in your written notice. You acknowledge that if you fail to comply with all of the requirements for a notice of infringement as specified above, your DMCA notice may not be valid.

b.        Notices of copyright infringement claims should be sent by mail to 5792 West Jefferson Blvd, Los Angeles, CA, 90016, or by email to support@openfan.com. OpenFan will respond expeditiously to claims of copyright infringement that are reported to OpenFan’s copyright agent in the manner explained above. It is OpenFan’s policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.

c.        If you believe that any of your Content that was removed (or to which access was disabled) after OpenFan received a notice of copyright infringement is not actually infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content, you may send a counter-notice containing all of the following information to OpenFan’s copyright agent: (1) your physical or electronic signature (with your full legal name); (2) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (3) a statement that you have a good faith belief, under penalty of perjury, that the content was removed or disabled as a result of mistake or a misidentification of the content; (4) your name, address, telephone number, and email address; and (5) a statement that you will accept service of process from the person who provided the original notification of the alleged infringement.

d.        If a counter-notice is received by OpenFan’s copyright agent, OpenFan may send a copy of the counter-notice to the original complaining party informing that person that OpenFan may replace the removed content or cease disabling it. Unless the original complaining party files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) business days or more after receipt of the counter-notice, at OpenFan’s sole discretion. Please understand that filing a counter-notification may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation by using this process.

e.        Further information on the DMCA can be found in 17 U.S.C. 512 or on the United States Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf.