Terms of Use - CONSUMERS

Updated: March 7, 2017 


OPENFAN GENERAL TERMS AND CONDITIONS

  1. Terms of Use. These Term of Use are for consumers that are participating in a Marketer Campaign (as defined below) and set forth the legally binding terms, conditions, policies and notices (“Terms”) for your participation in a Marketer Campaign and use of the website at www.openfan.com and all other sites and sub-domains owned and operated by OpenFan, Inc. (“OpenFan”) that redirects consumers to www.openfan.com (collectively, 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 registered user of the Site (“User”) and/or by visiting or browsing the Site, you agree to be bound by these Terms. Joining OpenFan is free, and OpenFan does not charge any fees for its Service.

 

  1. Privacy.  Any information that you provide to OpenFan is subject to our Privacy Policy, which governs our collection and use of your information and which is incorporated in these Terms by this reference. You understand that through your participation in a Marketer Campaign and 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 certain third-party partners of OpenFan (“Marketer”) can create and run campaigns, such as sweepstakes and giveaways and offering rewards of different types and levels (“Marketer Campaign”) directed to Users of the Site.  

b. By creating the Marketer Campaign, the applicable Marketer is offering Users the opportunity to enter into a contract with the Marketer. By participating in the Marketer Campaign, the User accepts that offer and a contract between the Marketer and User is formed.

c.   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. To receive the reward, Users agree to provide the requested information to the Marketer within a reasonable amount of time or as otherwise set forth in the Marketer Campaign official rules. OpenFan does not guarantee the delivery or receipt of rewards.

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

e.         OpenFan is not liable for any damages or loss incurred by Users 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. OpenFan does not oversee the performance or punctuality of rights and/or obligations associated with any Marketer Campaign. 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. 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. Personal information supplied by you shall be subject to OpenFan’s Privacy Policy. OpenFan shall have the right to distribute such registration information to Marketers and otherwise in accordance with our 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 User information transmitted from or stored on a computer or device or from unauthorized or fraudulent transactions associated with the Service.

b.  You represent and warrant that you are at least 18 years old (or the required age set forth in the specific Marketer Campaigns terms and conditions and/or Marketer Campaigns details) and that all registration information you submit is accurate and truthful. If you are under the age of 18, you hereby represent that you are using the Service with the consent of your parent or guardian (“Guardian”), and that said Guardian is at least 18 years old, is the legal Guardian of the person listed on the OpenFan account, and that said Guardian has expressly given you permission to access the Service. This Service is not directed at children. OpenFan reserves the right to ask for proof of age from you, and your account may be suspended until satisfactory proof of age is provided. OpenFan may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time.

c.        You shall not use a user name that: (i) is the name of another person, with the intent to impersonate that person; (ii) is subject to any rights of another person; or (iii) is vulgar, offensive, slanderous, libelous, or obscene.

d.  OpenFan reserves the right in its sole discretion to refuse your registration. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your password. You shall never use another person's account without their express permission. You shall immediately notify OpenFan in writing of any unauthorized use of your account or other known account-related security breaches. 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.

e.  Users will register to enter each Marketer Campaign using one of three (3) registration methods:

        i.         Connecting with Facebook; we will ask for a standard set of permissions that give         us access to your publicly available profile, your likes and your activity,         including, but not limited to, email, first and last name, gender, list of Facebook         friends, Facebook tokens for authentication and authorization, current city and         hometown information;

 

ii.         Connecting with Gmail; we will ask for the following permissions: (i) to view your email messages and settings; (ii) to know who you are on Google; and (iii) view your email addresses. These permissions allow us to have view access to your inbox from which we will be able to scan your inbox for purchase receipts from retailers, which will assist the Marketers to know the brands and artists that you use and love, to better understand you and to deliver more relevant products and more personalized messaging to you.

        iii.         Entering your information in manually at the Site (email, first/last name, city/state         and birthday).

OpenFan shall have the right to store data and information and to distribute such data and information to Marketers, subject to OpenFan’s Privacy Policy, these Terms and applicable law.

OpenFan will never expose your personal identifiable information to any third parties other than Marketers and you will never receive marketing spam in your inbox from OpenFan or a Marketer unless you have consented to receive such marketing material through a Marketer Campaign. For clarity’s sake, by participating in a Marketer Campaign you 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. Rules and Conduct.

a.   As a condition of your use of the Service, you shall not 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. Third-Party Sites. The Site may link to other websites or resources on the Internet 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 Marketers set up A Marketer Campaign; (ii) which Users gain access to the Site; (iii) the unauthorized use of any Marketer Campaign; or (iv) 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; and

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. 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. 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.

  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.

  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 at 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 created by OpenFan and featured or displayed on the Site, including, but not limited to, text, graphics, photographs, images, moving images, trademarks, recordings, illustrations and software is owned or controlled by OpenFan. Specifically, OpenFan, openfan.com, the OpenFan logo(s) and other marks identifying OpenFan products and services are trademarks of OpenFan and may not be used without the prior written approval of OpenFan. Content on this Service that is provided by OpenFan or its licensors, including certain graphics, photographs, images, screen shots, text, digitally downloadable files, trademarks, logos, product and program names, slogans, and the compilation of the foregoing (“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.

  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.