This DIGITAL CHANNEL AGREEMENT (the “Agreement”) is between you, the customer, as stated and executed in the first Order Form referring this Agreement (“Customer” or “You”) and the FanHero entity that owns the FanHero Platform that you are accessing, using, or licensing (“Company” or “We”). If you are agreeing to this Agreement not as an individual but on behalf of your company, government, or other entity for which you are acting (for example, as an employee or governmental official), then “you” means your entity and you are binding your entity to this Agreement. Company may modify this Agreement from time to time, subject to the terms in Section 22 (Changes to this Agreement) below. The FanHero Platform is not intended for and should not be used by anyone under the age of 16. You must ensure that all Authorized Users are at least 16 years old. Each party may be individually referred to as a “Party” or collective referred to as the “Parties”. The “Effective Date” of this Agreement is the date of the effective date of the first Order Form referencing this Agreement.
WHEREAS, Company is in the business of providing digital media channels for the purposes of enabling Customer to stream and distribute content through its platforms;
WHEREAS, Company is the developer of FanHero Platform and desires to provide Customer with a Digital Channel;
WHEREAS, Customer desires to enter into an agreement with Company for the purpose of enabling the distribution, streaming, and monetization of Customer Content;
NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:
1. DEFINED TERMS. The following capitalized terms as used in this Agreement, including the preliminary statements, preamble or recitals hereto shall have the meaning set forth below. Other terms are defined throughout this Agreement shall have the meanings respectively ascribed to them.
“Additional Services” means any work provided by Company to Customer above and beyond the scope of this Agreement. Additional Services may include, but are not limited to, custom programming work, consulting, and related services to be provided at the request of Customer as agreed upon between the parties.
“Affiliate” means any entity which (i) controls, (ii) is controlled by, or (iii) is under common control with another entity. An entity shall be deemed to control another entity if it has the power to direct or cause the direction of the management or policies of such company, whether through the ownership of voting securities, by contract, or otherwise.
“Audience” means the global addressable market in terms of reachable people that are potential consumers of Customer Content. “Audience” may include users from an existing user base, members, general users, members, social media followers, fans, and any other generic audience from nature. “Audience” may also include people, leads, prospects, and customers generated in connection to Customer’s marketing efforts.
“Cloud Server(s)” means one or multiple, physical, virtual, clustered, dedicated, shared, in software or other format, or any other form of server or server infrastructure including, but not limited to, web, API, cloud, application, database, routing, gateway, service, orchestration, video, streaming, analytics, business intelligence, machine learning, versioning, testing, SaaS, PaaS, BaaS, continuous integration, or any other related server or server technology comprising the cloud infrastructure utilized for the purpose of running the Digital Channel and FanHero Platform.
“Cloud Server Fee” means the monthly fee charged by Company to Customer in connection to Cloud Server
“Cloud Storage” means the total amount of cloud storage, calculated in terms of gigabyte (GB), for every GB of cloud, data, file, or digital storage utilized in connection to White Label Application.
“Cloud Storage Fee” means the fee charged by Company to Customer in connection to Data Storage
“Customer” includes the individual, agent or entity executing this Agreement on behalf of Customer, or authorized by Customer, as appropriate, to engage in the transactions contemplated herein on Customer’s behalf, including accessing the FanHero Platform and posting, editing or deleting any Customer Content.
“Customer Content” means the content (digital or otherwise) that may be described in the Order Form including, but not limited to, games, videos, images, photos, text, audio, live matches, news coverage, second screen, raw footage, generic Customer Content, or any other media content for which Customer is the authorized legal representative, owner, or rights holder with full rights to license, sub-license, trade, and otherwise distribute, stream, and monetize, and for which Customer desires to enter into this Agreement with Company for the purposes of distributing, streaming, or monetizing through Distribution Channels.
“CTAC” means the Customer Terms and Conditions which are the legal terms under which the Customer accesses and uses Digital Channel the FanHero Platform, and which are incorporated herein by reference. The CTAC is available on FanHero’s Website at www.fanhero.com, and may be changed, amended or updated from time to time, in FanHero’s sole discretion.
“Data Transfer” means the utilization of consumption of inbound or outbound data, data traffic, or bandwidth, calculated in terms of gigabyte (GB), for every GB of data transferred in connection to Digital Channel.
“Data Transfer Fee” means the fee charged by Company to Customer in connection to Data Transfer.
“Digital Channel” means a standard or branded channel provided by Company for Customer, utilizing the FanHero Platform, for the purpose of streaming and distributing Customer Content.
“Digital Channel Fee” means the monthly Digital Channel access fee charged by Company to Customer.
“Distribution Channels” means any and all channels through which Customer Content may be distributed or commercialized to End Users and consumers including (a) Digital Channel, and (b) FanHero Platform.
“Distribution Network” means any and all networks or channels through which Digital Channel and FanHero Platform may be offered globally to End Users and consumers, including, but not limited to (a) the world wide web, (b) third-party network infrastructure and cloud hosting services companies, (c) any internet service providers or other intermediaries or governing authorities, and (d) application marketplaces such Apple’s App Store or Google’s Play Store.
“Encoding Hours” or “Live Streaming Hours” means the total number of video encoding or transcoding hours utilized in connection to Digital Channel.
“Encoding Hours Fee” or “Live Streaming Hours Fee” means the usage, calculated in terms of hours, for every hour of encoding utilized in connection to Digital Channel.
“End User(s)” means any of the Audience or any other person or entity that has registered, purchased, downloaded or otherwise acquired access to or accessed Digital Channel or the FanHero Platform.
“FanHero Platform” means the Company’s digital streaming platform and all applications and modules that encompass such platform including ability of deploying a Digital Channel. “FanHero Platform” also means the platform developed, integrated, hosted, managed, or maintained by Company including, but not limited to, services, source code, object code, third-party modules, software based upon, and technology infrastructure relating to or otherwise incorporating the video streaming platform. The “FanHero Platform” definition also includes any intellectual property and third-party modules, including any existing or planned web applications, or any other software application, and all revisions, corrections, enhancements, modifications, and updates thereto. “FanHero Platform” also means the solution containing a series of unique instance(s), module(s), or channels developed, integrated, hosted, and otherwise managed by Company that may be uniquely branded in a manner associated with Customer for the purposes of incorporating the Customer Content to be delivered to End Users, and any and all revisions, corrections, enhancements, modifications, and updates thereto.
“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the FanHero Platform or Digital Channel.
“Intellectual Property Rights” means any unpatented inventions, patented applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property, derivatives thereof, and forms of forms of protection of a similar nature anywhere in the world.
“Managed” means that the Digital Channel shall be hosted, maintained, and managed by Company without the need to release any source code or object code to Customer.
“Marketplace” means utilizing the FanHero Platform in a form that is consistent with a virtual marketplace, or by (a) enabling or providing access to third parties, (b) engaging in the distributing or monetization of third-party information, content, or material directly or indirectly including through licensing or partnership, or (c) engaging in revenue-sharing activities with third-parties for the purpose of distributing or monetizing such content.
“Monthly Active User(s)” or “MAU” means any user or person, whether identifiable or not, that accesses the Digital Channel or FanHero Platform, licensed to Customer, at a minimum of one time during a period of 30 days for any duration of time without minimums.
“Monthly Active User Fee” means the monthly fee charged by Company to Customer associated with the number of Monthly Active Users utilizing the Digital Channel.
“Monthly Paying User(s)” or “MPU” means the total number of paying customers or paying End Users for a given calendar month.
“Monthly Paying User Fee” means the monthly fee charged by Company to Customer associated with the number of Monthly Paying Users of Digital Channel.
“OTT” refers to the industry term “Over-the-top” and means a technology platform that delivers content via the internet and/or mobile devices, such as smart phones. The FanHero Platform is an OTT.
“Order Form” means a document or a series of documents executed by Customer containing the deliverables associated with this Agreement, a job, task, or project to be completed by Company that is accepted by Company and jointly agreed upon between the parties.
2. PURPOSE; AUTHORIZATION; USERS; ADMINISTRATIVE USERS; USAGE;
2.1. General. This Agreement provides the terms and conditions pursuant to which (a) Company shall provide the Digital Channel to be accessed through the Distribution Network, and (b) Customer Content will be accessed via Distribution Channels to End Users.
2.2. Authorized Representative of Digital Channel. Customer hereby authorizes Company to deploy and oversee the Digital Channel in the Distribution Network. Customer acknowledges and agrees that it is subject to and shall abide by any agreements that are necessary for the placement of the Digital Channel in the Distribution Network. The violation of the terms of any such agreements by Customer will be deemed to be a violation of this Agreement. Customer further agrees to be bound to Company in the same manner and to the same extent that Company is bound by the terms of any agreements in place with the Distribution Network.
2.3. Authorized Representative of Customer Content. Customer hereby authorizes Company to distribute Customer Content in Distribution Channels. Customer acknowledges and agrees that it is subject to and shall abide by any agreements that are necessary for the placement and distribution of the Customer Content in the Distribution Channels. The violation of the terms of any such agreements by Customer will be deemed to be a violation of this Agreement. Customer further agrees to be bound to Company in the same manner and to the same extent that Company is bound by the terms of any agreements in place with the Distribution Channels.
2.4. Users. Subject to the terms and conditions of this Agreement, Customer may grant its End Users access to the Digital Channel. Customer may not permit End Users to use the Digital Channel for purposes unrelated to supporting Customer’s own offerings.
2.5. Administrative Users. “Administrative Users” means Customer-authorized users who have been granted special privileges for the purpose of performing management and administrative duties by accessing the Digital Channel administrative tools or applications (“Administrative Tools”). Only Administrative Users may access and use the Administrative Tools provided as part of the Digital Channel for purposes of performing management or administrative tasks including management of End Users, management of Customer Content or performing similar administrative duties. Some modules of Digital Channel may allow Customer to designate different types of Administrative Users. Customer is responsible for compliance with this Agreement by all Administrative Users, including what Administrative Users do with the Customer Content and any User Data available to Customer.
3. USE OF DIGITAL CHANNEL; UPGRADES;
3.1. Customer Access Rights. Subject to the terms and conditions of this Agreement, Company grants Customer access to a Managed, non-exclusive, non-sublicensable, and non-transferable instance of the Digital Channel during the Term for the purposes set forth herein, in accordance with this Agreement and all applicable laws, rules and regulations.
3.2. Restrictions. Except as otherwise expressly permitted in this Agreement, Customer will not: (a) reproduce, modify, adapt or create derivative works of any part of the Digital Channel; (b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the Digital Channel to a third party; (c) use the Digital Channel for the benefit of any third party; (d) incorporate the Digital Channel into a product or service Customer provides to a third party; (e) interfere with any license key mechanism in the Digital Channel or otherwise circumvent mechanisms in the Digital Channel intended to limit Customer’s use; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Digital Channel, except to the extent expressly permitted by applicable law (and then only upon advance notice to the Company); (g) remove or obscure any proprietary or other notices contained in the Digital Channel; (h) use the Digital Channel or FanHero Platform for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Digital Channel or FanHero Platform; or (j) encourage or assist any third party to do any of the foregoing.
3.3. Number of Instances. Company agrees to deploy Digital Channel according to the terms set forth in the Order Form referring this Agreement.
3.4. No Marketplace Policy. Digital Channel usage shall be limited to the distribution and monetization of Customer Content. Customer understands, acknowledges, and agrees not to use Digital Channel as a Marketplace.
3.5. Platform Upgrades. Customer understands, acknowledges, and agrees that the FanHero Platform is a technology solution that will continue to be extended, enhanced, improved and that from time to time Company will perform software changes and upgrades affecting the FanHero Platform. Company reserves the right to make changes to the FanHero Platform from time to time including but not limited to improvements, enhancements, and upgrades.
4.1. Responsibilities of Company.
4.1.1. Deployment of Digital Channel. Customer hereby engages Company to manage, maintain, perform integrations or development, customize, and host the Digital Channel to the specifications set forth in the Order Form referencing this Agreement. Company shall use its commercially reasonable efforts to deploy Digital Channel in accordance with the timeline and specifications set forth in the Order Form.
4.1.2. Hosting. Following completion of the customization and deployment of Digital Channel and throughout the Term, Company will host and manage Digital Channel through various third-party service providers, which are part of the Distribution Network.
4.1.3. Maintenance of the Digital Channel. During the Term, Company shall monitor and manage the performance of Digital Channel, providing maintenance and upgrades as such are published or deployed as part of FanHero Platform.
4.1.4. Distribution of Customer Content via Distribution Channels. During the Term, Company agrees to distribute and commercialize Customer Content through Distribution Channels in accordance to the terms of this Agreement and the terms set forth in the Order Form.
4.1.5. Delivery of Digital Channel. The timeline for Digital Channel through the Distribution Network timeline may be impacted by the timing of the receipt of all required content from Customer by the Company development team, including but not limited to (i) Customer Content, including logos and key design elements, (ii) critical development integrations between the FanHero Platform the Customer’s systems, (iii) the approval by Customer of the Digital Channel screens, and (iv) Customer’s branding and marketing assets.
Company will work diligently with Customer in order to deliver the Digital Channel for submission to the Distribution Network within the average time frame set forth above. Customer acknowledges and agrees that Company’s performance shall be limited to that of submitting the Digital Channel for approval by each member of the Distribution Network and that such approval process is subjective, unique to each Distribution Network, and outside of Company’s control. The Distribution Network can accept or reject any such submissions. Company will work diligently with Customer and make every reasonable effort to facilitate the approval of the White Label Applications by the Distribution Network.
4.2. Responsibilities of Customer.
4.2.1. Consultation and Review. During the development process, Customer will consult with Company and provide all required assistance to communicate clearly and promptly concerning all input needed for the development of the Digital Channel.
4.2.2. Customer Content. During the development process and throughout the Term, Customer shall provide all necessary Customer Content in accordance with this Agreement. All Customer Content shall be provided promptly and in formats requested by Company. Customer represents, warrants, and agrees that Customer possesses all licenses, rights, releases and other necessary and supporting documentation required to publish, display, explore, and monetize, directly or indirectly, all Customer Content via Distribution Channels in accordance with the terms of this Agreement and as required by law. Customer understands, acknowledges, and agrees that any and all claims in connection to Customer Content including but not limited to copyright, wrongful distribution, breach of license, defamation, wrongful doing, infringement are the sole responsibility of Customer. Customer further acknowledges and agrees to release Company from any and all claims arising from or in direct or indirect connection to the Customer Content.
4.2.3. Use of the Digital Channel by Customer; Conduct of Customer. Following release of the Digital Channels via the Distribution Network, the Customer shall be responsible for using the Digital Channels for its designed purposes by posting Customer Content through the Digital Channel or by submitting Customer Content to Company for the purposes of uploading it to Digital Channel. Customer agrees to releases Company from any and all claims associated to the success, revenue, or any expected results, monetary or otherwise, in connection to Digital Channel.
4.2.4. Customer Systems and Cooperation. During the Term, Customer shall be responsible for providing and maintaining its own hardware, systems and other technology necessary to perform its obligations pursuant to this Agreement and shall provide Company with access to its hardware, systems and other technology (including internet access service) as necessary for Company to support the Digital Channel; and provide all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations in connection with this Agreement.
5. TERM. This Agreement shall be effective as of the Effective Date and shall remain in effect for the period stated in the Order Form unless terminated earlier in accordance with this Agreement (the “Initial Term”). This Agreement shall automatically extend for additional one-year periods (each a “Renewal Term”), unless terminated as set forth in Section 5, below. The Initial Term and any Renewal Terms are collectively referred to as the “Term”.
5.1. Termination. This Agreement may be terminated:
5.1.1. By either party upon giving written notice to the other party, if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of such notice.
5.1.2. Immediately by Company upon the uncured material breach by Customer of the terms of this Agreement or the CTAC.
5.2. Effect of Termination. Upon termination of this Agreement: (i) Company shall immediately cease hosting of the Digital Channel; and (ii) any access to the Digital Channel granted pursuant to this Agreement shall be terminated. Customer shall have the right to download, keep and use copy of the Electronic Records (as defined in Section 8, below), for 30 days following termination. Company shall have no responsibility to maintain, segregate or provide any Electronic Records longer than 30 days following termination.
6. FEES & COMPENSATION.
6.1. Fees and Revenue Sharing. Company and Customer shall be compensated for any fees and revenue sharing at the rates and according to the schedule set forth in the Order Form referencing this Agreement.
6.2. Payment and Taxes. All payments between the parties required to be made in accordance with this Agreement shall be made in U.S. Dollars. Any taxes of any kind or nature due to any taxing authority (including, but not limited to, local, state, federal or foreign taxing authority) shall be the sole and exclusive responsibility of the party receiving such payment. The paying party shall not deduct or withhold any such taxes from any payment due to the receiving party unless such withholding is mandated by a taxing authority of competent jurisdiction and after notice to the other party. All accounting for transactions pursuant to this Agreement shall be done in U.S. Dollars and Company shall not be responsible for foreign exchange rate fluctuations.
6.3. Additional Services. Subject to this Agreement, Customer may purchase Additional Services from Company from time to time, which Company will provide to Customer pursuant to the applicable Order Form. Additional Services may be subject to additional cost, policies, and terms as specified by Company, as agreed to by the parties.
6.3.1. Company Deliverables. Company will retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments that Company provides in connection with any Additional Services (“Company Deliverables”). Customer may use any Company Deliverables provided or made available to Customer only in connection with the Digital Channel, subject to the rights and restrictions set forth herein. For clarity, Company Deliverables are not considered Digital Channel, and any Digital Channel (including any new version) are not considered a Company Deliverable.
6.3.2. Customer Materials. Customer agrees to provide Company with reasonable access to Customer’s materials, systems, personnel or other resources (including Customer’s instances of Digital Channel) as reasonably necessary for Company’s provision of Additional Services (“Customer Materials”). If Customer does not provide Company with timely access to Customer Materials, Company’s performance of Additional Services will be tolled until Customer provides all access as necessary for the Company to perform the Additional Services. Customer retains its rights to Customer Materials, subject to Company’s ownership of Digital Channel, Company Deliverables or the Digital Channel and related technology. Company will use Customer Materials solely for purposes of performing the Additional Services. Customer represents and warrants to have all necessary rights in the Customer Materials to provide them to Company for such purposes.
7. INTELLECTUAL PROPERTY.
7.1. Company is and shall at all times remain the owner of the FanHero Platform and all Intellectual Property Rights related thereto.
7.2. Customer is, and shall at all times remain, the owner of all Customer Content and Intellectual Property Rights related thereto.
7.3. Ownership and Feedback. The Digital Channel is made available on a limited access basis, and no ownership right to any software or technology related to or arising from the Digital Channel, or owned, leased, or licensed by Company is conveyed to Customer, irrespective of the use of terms such as “purchase” or “sale”. Company and its Customers have and retain all right, title, and interest, including all Intellectual Property Rights, in and to Digital Channel. From time to time, you may choose to submit Feedback to Company. By submitting the Feedback to Company, Customer grants Company a non-exclusive, perpetual, royalty-free license to use the Feedback and Company may, in connection with any of its products or services, freely use, copy, disclose, license, distribute, and exploit any Feedback in any manner without any obligation, royalty, or restriction based on any Intellectual Property Rights or otherwise. No Feedback will be considered confidential, and nothing in this Agreement limits Company’s ability to independently use, develop, evaluate, or market products or services, that are based upon or in any way incorporate Feedback.
8. DATA AND SPONSORSHIP CONTENT. Customer acknowledges that Company will capture certain data, metrics and information from Customer and the End Users of the Digital Channel, in the course of selling, hosting and maintaining the Digital Channel on its systems or via the Distribution Network (the “Electronic Records”). Company will provide Customer with access to the Electronic Records related to the Digital Channel, including analysis thereof (“User Data”) for use by Customer. Subject to all applicable rules and regulations, User Data may be exported by Customer and shall be the property of Customer or provided to Customer by Company upon request.
9. PLATFORM UPGRADES. Customer understands, acknowledges, and agrees that the FanHero Platform is a technology solution that will continue to be extended, enhanced, improved and that from time to time Company will perform software changes and upgrades affecting the FanHero Platform. Company reserves the right to make changes to the FanHero Platform from time to time including but not limited to improvements, enhancements, and upgrades.
10. CONFIDENTIALITY. Except as necessary to further the purposes set forth herein, the parties agree to keep the details of this Agreement confidential and all the information, User Data and details obtained as result of this Agreement confidential and to, at all times, adhere to applicable laws, rules and regulations.
11. WARRANTY AND LIMITATIONS; INCORPORATION OF TERMS AND CONDITIONS.
11.1. Customer represents and warrants to Company that it has full rights, power and authority to represent Customer for all matters hereunder and to bind Customer to the terms and conditions of this Agreement, where applicable.
11.2. Customer represents and warrants to Company that it is authorized by Customer to negotiate all economic terms herein and to receive payments hereunder.
11.3. Company and Customer each represent and warrant to the other that: (i) such party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound; and (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
11.4. This Agreement incorporates by reference all terms and conditions of (a) any agreements necessary to access the Distribution Network, and (b) any agreements necessary to Distribution Channels, and (c) the CTAC necessary to access the FanHero Platform and utilize the Digital Channel.
12.1. Company Indemnity. Company shall indemnify, defend, and hold harmless Customer Indemnitees against any claim (“Customer Claim”) that the technology underlying the Digital Channel (excluding third party software) infringes a United States copyright, trademark, issued and valid patent, or other intellectual property right of a third party (except for those claims for which Customer is required to indemnify Company, below); with further details contained in the CTAC. Company shall not indemnify Customer or Celebrity or be liable for any claims hereunder if the finding of infringement is based on: (i) any misrepresentation by Customer or Celebrity; (ii) the Customer Content, (iii) the combination, operation, or use of Digital Channel with hardware, data, software, or technology not in conformance with this Agreement if the claim would have been avoided by use of other technology that conforms with this Agreement; or (iv) modifications to Digital Channel if such modifications were not made by Company or were not in accordance with Company’ directions or instructions. “Customer Indemnitee” as used herein, means Customer, any Affiliate of Customer, and any officers, directors, employees, agents, successors, and assigns of the foregoing. THIS PARAGRAPH STATES THE ENTIRE OBLIGATIONS OF COMPANY FOR COPYRIGHTS, TRADEMARKS, PATENTS, OR OTHER INTELLECTUAL PROPERTY RIGHTS.
12.2. Customer Indemnity. Customer shall indemnify, defend, and hold harmless Company Indemnitees against any claim or action brought against a Company Indemnitee by or on behalf of any of Customer or Celebrity or the End Users or by or on behalf of any other person or third party if such claim or action arises for any reason whatsoever, out of the use of Digital Channel, the Customer Content (including any claims regarding a copyright infringement arising from or related to the Customer Content), User Data (to the extent that the use or handling thereof is in violation of any applicable laws, rules and regulations) and the Digital Channel, to the extent such use is not in accordance with the terms of this Agreement, with further details contained in the CTAC. “Company Indemnitee,” as used herein, means Company and any of its third party providers with respect to Digital Channel, any Affiliate of Company or such third party provider, and any officers, directors, members, employees, agents, successors, and assigns of the foregoing.
13. LIMITATION OF LIABILITY. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT OR THE CTAC. LOSS OF DATA, OR ANY PERFORMANCE UNDER THE AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE TOTAL LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNT PAID BY CUSTOMER TO COMPANY WITHIN 90 DAYS PRIOR TO THE CLAIM. COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES. “EXCLUDED CLAIMS” MEANS (1) AMOUNTS OWED BY YOU UNDER ANY ORDER FORM, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, (3) CUSTOMER’S BREACH OF SUBSECTION 4.2.2 (CUSTOMER CONTENT), OR (4) EITHER PARTY’S BREACH OF THIS AGREEMENT IN CONNECTION TO CLAIMS REGARDING COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT.
14. NOTICE. Any notice required to be given by either party to the other under this Agreement shall be in writing and shall be deemed to have been delivered if sent electronically via email with an electronic response confirmation by the receiving party or by certified mail return receipt requested or overnight courier service and addressed to the other party at the address shown in this Agreement, or such other address as either party may from time to time provide in writing to the other party.
15. FORCE MAJEURE. If either Party to this Agreement shall be prevented, hindered or delayed in the performance or observance of any of its obligations hereunder by reason of any act of God, natural disaster, war, riot, act of terrorism, civil commotion, explosion, fire, government action, epidemic, or other circumstance beyond its reasonable control, and such delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the Party through the use of alternative sources or means, then such Party shall be excused from further performance or observance of the obligation so affected for as long as such circumstances shall prevail and such Party uses its diligent efforts to recommence performance or observance whenever and to whatever extent possible. The Party so delayed shall immediately notify the other Party and describe the circumstances causing such delay. Notwithstanding the foregoing, any of Company’s monetary obligations under this Agreement and any Order Form shall remain in effect.
16. ASSIGNMENT. Neither Party may assign this Agreement without the prior written consent of the other Party, provided that either Party may assign without such consent to: (i) an Affiliate; or (ii) to a successor pursuant to a merger or a sale of all or substantially all of its assets to which this Agreement relates. This Agreement shall be binding upon and inure to the benefit of each Party’s successors or assigns.
17. GOVERNING LAW; VENUE AND SUBMISSION TO JURISDICTION. All questions concerning the construction, validity and interpretation of this Agreement will be governed by and construed in accordance with the laws of the State of Florida without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Florida. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in Orange County, Florida, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.
18. CONFLICT RESOLUTION. Customer and Company agree that any disputes between the parties shall be resolved first through mediation and then through litigation in Orange County, Florida, United States. Both parties waive any right to a jury trial. The specific process governing this section is detailed in the CTAC.
19. COUNTERPARTS AND GOVERNING LANGUAGE. The parties may execute this Agreement in multiple counterparts, each of which constitutes and original as against the party that signed it, and all of which together constitute one agreement. The signatures of both parties need not appear on the same counterpart. The delivery of signed counterparts by facsimile or e-mail transmission that includes a copy of the sending party’s signature is as effective as signing and delivering counterpart in person. This Agreement may be translated into a language other than English for the convenience of Customer. In such case, only the English language Agreement shall govern.
20. SEVERABILITY. The unenforceability or invalidity of any clause in this Agreement shall not have an impact on the enforceability or validity of any other clause. Any unenforceable or invalid clause shall be regarded as removed from this Agreement to the extent of its unenforceability and invalidity. Therefore, this Agreement shall be interpreted and enforced as if it did not contain the said clause to the extent of its unenforceability and invalidity.
21. WAIVER. The waiver of compliance at any time with respect to any of the provisions, terms, or conditions of this Agreement shall not be considered a waiver of such provision, term, or condition itself or of any of the other provisions, terms, or conditions hereof or bar its enforcement at any time thereafter.
22. CHANGES TO THIS AGREEMENT. We may modify the terms and conditions of this Agreement from time to time, with notice given to Customer by email, through the FanHero Platform or through Company’s website. Together with notice, we will specify the effective date of the modifications.
23. ENTIRE AGREEMENT. This Agreement and related agreements incorporated by reference collectively represent the only Agreement governing the relationship between the parties hereto and supersedes any and all other agreements, written or oral.
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