FANFAIRE PLATFORM

TERMS OF SERVICE

Last Updated: July 13, 2023

EffyCX, Inc. d/b/a Fanfaire offers a proprietary e-commerce platform known as the “Fanfaire Platform” and related services, technologies and websites (as more fully defined below, the “Services”) that enable businesses and service providers to create, operate and manage their digital storefronts.  These Terms of Service set forth legal terms and conditions applicable to a Customer’s access to and use of the Fanfaire Platform and the Company’s Services, and all access to and use of the Services by a Customer is subject to these Terms of Service. Capitalized terms used in these Terms of Service are set forth in Section 1 below or as otherwise defined in the text of these Terms of Service.  

THE INDIVIDUAL ACCEPTING THESE TERMS OF SERVICE ON BEHALF OF CUSTOMER REPRESENTS AND EXPRESSLY AGREES THAT HE OR SHE IS AUTHORIZED ON BEHALF OF CUSTOMER, AS AN OFFICER, EXECUTIVE OR OTHER AUTHORIZED AGENT, TO AGREE TO AND ACCEPT THESE TERMS OF SERVICE AND SUCH INDIVIDUAL FURTHER REPRESENTS THAT HE OR SHE HAS AUTHORITY TO BIND CUSTOMER TO THE TERMS HEREOF. 

BY REGISTERING FOR, SUBSCRIBING TO, PURCHASING OR ACCESSING OR USING, ANY OF THE  SERVICES OR (INCLUDING BY CLICKING “I AGREE” TO THESE TERMS WHEN PRESENTED DURING OUR ACCOUNT REGISTRATION PROCESS), CUSTOMER ACKNOWLEDGES THAT IT HAS READ ALL OF THESE TERMS AND CONDITIONS AND AGREES TO COMPLY WITH THEM AND OUR RELATED SERVICE POLICIES, EACH OF WHICH IS INCORPORATED HEREIN BY REFERENCE. IF CUSTOMER DOES NOT AGREE WITH THESE TERMS OF SERVICE, CUSTOMER MAY NOT PURCHASE, ACCESS OR OTHERWISE USE ANY SERVICES AND MUST DISCONTINUE ALL USE THEREOF.  CUSTOMER’S ACCESS TO AND USE OF THE ANY OF THE SERVICES INDICATES CUSTOMER’S FULL UNDERSTANDING AND ACCEPTANCE OF THESE TERMS OF SERVICE.  

THESE TERMS OF SERVICE CONTAIN AN ARBITRATION PROVISION, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE CUSTOMER TO SUBMIT CLAIMS CUSTOMER HAS AGAINST THE COMPANY TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION PROVISION, (1) CUSTOMER WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST THE COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) CUSTOMER WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.  THESE TERMS OF SERVICE ALSO CONTAIN OTHER LIMITATIONS ON CUSTOMER, INCLUDING LIMITATIONS ON THE COMPANY’S LIABILITY AND DISCLAIMERS OF WARRANTY, AND CUSTOMER SHOULD READ THESE TERMS CAREFULLY.  

1. Definitions.  For purposes of these Terms of Service, capitalized terms used herein shall have the meanings set forth in this Section or the meanings otherwise given to them in the main body of these Terms of Service:

“Additional Services” means any professional, technical or other services provided by the Company as set forth in an Order.

“Affiliate” means the Company’s owners, officers, directors, affiliated companies, suppliers, partners, vendors, contractors, sponsors, employees, and agents and representatives, and includes (without limitation) all parties involved in creating, producing, providing, hosting and/or delivering any of the Services.

“Applicable Laws” means any applicable law, rule, regulation or other government requirement.

 “Company”, “Fanfaire”, “we”, “us”, “our” and other similar terms means EffyCX, Inc. d/b/a Fanfaire.

“Company IP” means Company’s proprietary Intellectual Property, regardless of when first created, developed or arising.  For the avoidance of doubt, the Platform and Services are and shall be Company IP.   

“Customer” “you” “your” and other similar terms means the entity, company, organization, individual or party that is accepting and agreeing to, or is otherwise bound by, these Terms of Service as set forth herein.

“Customer Dashboard” means the backend dashboard made available via the Platform for purposes of enabling Customer Representatives to create, manage and operate Customer’s Digital Storefront. 

“Customer Materials” means any data, information, results, reports, communications, content, images, designs, documents, instructions, files, software or other materials that Customer or its Customer Representatives directly or indirectly upload, provide, input, transmit or otherwise make available to the Company or the Platform for use in connection with the Customer’s Digital Storefront or other Services received by Customer.

“Customer Representatives” means Customer’s employees, representatives and agents.  

“Digital Storefront” means Customer’s online shop and e-commerce storefront created, operated and managed by Customer via the Services.

“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by the Company for any of the Services. 

“Evaluation Term” means the period of time that may be offered by Company as set forth in an Order (e.g. on a pricing page where you sign up for Services) during which a Customer may evaluate any Services, which unless a different period of time is set forth in an Order, shall be 30 days.

“Feedback” means any feedback from Customer or any Customer Representatives related to their respective access to and use of the Services, including without limitation, feedback on features or functionality, usability, specifications, architectural diagrams, APIs, software or hardware compatibility, interoperability, performance, reports, results and documentation requirements, and may also include suggestions or ideas for improvements or enhancements to the Services.

“Intellectual Property” means any technology, processes, methodologies, software, tools, data analysis tools, designs, forms, methods, systems, procedures, frameworks, algorithms, applications, know-how, trade secrets, ideas, content, layouts, prototypes, techniques, user interface designs, technical data, models, architecture, applications, class libraries, documentation (both printed and electronic), works of authorship, records, reports, and other intellectual property, including any derivatives, improvements, enhancements or extensions of any the foregoing.

“Order” means (i) an online order page or similar website page on a Company website or other related site or page that allows Customer to select any of the Services (e.g. selecting a specific service or offering level or pricing plan offered by the Company, etc.), or (ii) any order form, statement of work, or other written agreement that is signed by the Parties or electronically agreed to by the Parties and which sets forth the particular Services to be provided to Customer and that incorporates these Terms of Service by reference (and any Customer terms on such document shall be void and not apply). 

“Party” means the Company or Customer individually and “Parties” means the Company and Customer collectively.

“Permitted Use” means use of the Platform solely for purposes of creating, operating and managing Customer’s digital storefront and related business, and/or otherwise accessing, using and receiving the Services consistent with their intended use.  

“Platform” means (i) Company’s online e-commerce platform known as the “Fanfaire Platform”, which is made available on a platform-as-a-service basis for the purpose of enabling businesses and service providers to create, operate, and manage their digital storefronts, (ii) any related websites offered by the Company for its Customers in connection with the Platform, including the Customer Dashboard, and (iii) any related data, APIs, software, technology, programs and/or software and platform specific related services or functions that the Company may provide or make available to Customer from time-to-time pursuant to the terms of these Terms of Service.   

“Services” means, collectively, (a) access to and use of the Platform as described in these Terms of Service, (b) any Additional Services, (c) any additional services or offerings that may be provided by the Company related to the Fanfaire Platform (whether pursuant to an Order or otherwise), including without limitation any custom services agreed upon by the Parties in an Order and all Premium Features from time to time made available by the Company, and (d) any support services and related technologies, software, APIs and/or Documentation that may be provided by the Company in its sole discretion for facilitating, maintaining and monitoring Customer’s use of the foregoing. 

“Terms of Service” or “Agreement” means these Fanfaire Platform Terms of Service and any related policies or agreements incorporated by reference.

2. Organizational Use. The individual entering into these Terms of Service on behalf of Customer hereby represents that he or she has the authority to bind Customer, its affiliates and all Customer Representatives who access any of the Services through Customer’s account to these Terms of Service.  ANY INDIVIDUAL WHO DOES NOT HAVE SUCH AUTHORITY, OR WHO DOES NOT AGREE WITH THESE TERMS OF SERVICE, MUST NOT ACCEPT THESE TERMS OF SERVICE AND MAY NOT ACCESS NOR USE ANY OF THE SERVICES.   

3. Services.  

a. Evaluation.  We may offer you a free evaluation of the Services (or portions thereof) as set forth in and for the Evaluation Term set forth in an Order (e.g. on the pricing page where you sign up). During the Evaluation Term, and subject to the terms and provisions of these Terms of Service, Company hereby grants to Customer a non-exclusive, non-transferable right to permit Customer Representatives to access and use the Platform on a platform-as-a-service basis solely for the Permitted Use for evaluation purposes only and subject to any limitations or requirements of Company related to evaluations and trials.  Company reserves the right to limit the Services or provide only certain functionality or support with respect to the Services during an Evaluation Term.  

b. Platform Right to Access and Use.  During the Term and subject to the terms and provisions of these Terms of Service, the Company hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right to, and to permit Customer Representatives to, access and use the Platform on a platform-as-s-service basis solely for the Permitted Use (subject to any particular access plan Customer has selected and subject to any feature or other use restrictions based on the plan or Premium Features (if any) Customer is paying for, in each case as agreed in an Order).  

c. Additional Services. The Company will use commercially reasonable efforts to provide Customer any Additional Services agreed to by the Parties in an Order, and Customer shall pay the Company the fees set forth in such Order for such Additional Services (which are in addition to any other Fees previously agreed upon by the Parties with respect to Services already being made available to Customer).  

d. Orders.  Each Order shall also set forth any assumptions, dependencies and requirements related to the Services being ordered therein. The Parties may mutually agree from time to time to make changes to the scope of work set forth in an Order and any such change shall be effective only when mutually agreed to in writing by the Parties (a “Change Order”).  A Change Order constitutes an amendment to the applicable Order and the services set forth in the Change Order shall be deemed to be Services that are part of such Order.  

e. Compliance with Agreement and Additional Policies.  The Company provides all of the Services subject to Customer’s and each of its Customer Representative’s compliance with all the terms, conditions, guidelines, policies and notices contained or referenced in these Terms of Service, as well as any other written or electronic Order or other agreement between the Company and Customer.  In addition, when using the Services, Customer and its Customer Representatives shall be subject to any guidelines, policies, rules or documentation (if any) applicable to such services or materials that may contain terms and conditions in addition to those in these Terms of Service (e.g. an Authorized Use Policy) (each, a “Policy” and collectively the “Policies”). All such Policies shall be provided via email or posted on the Platform prior to taking effect, and once effective, shall be and hereby are automatically incorporated by reference into these Terms of Service.  

f. Customer Representatives.  Customer Representatives shall be granted access to the Platform for the Permitted Use through issue of user names and passwords provided that such issuance shall only be for up to a reasonable number of individuals as determined by the Company (unless a specific seat number is otherwise agreed to by the Parties in writing).  Customer shall be responsible for verifying the status of Customer Representatives, updating such lists on a regular basis and providing any such lists to the Company upon request.  The Company shall have the right to monitor use of the Platform and user credentials.  Customer and each Customer Representative are responsible for maintaining the confidentiality of usernames and passwords. Customer agrees to immediately notify the Company of any unauthorized use of the Platform of which Customer becomes aware. Customer shall be fully liable and responsible for each Customer Representative’s compliance with the terms and provisions of these Terms of Service and any of their acts or omissions in relation to the Services.  

g. Effective Date; Right to Modify; Binding Effect of Continued Use.  These Terms of Service are effective as of the date that Customer first uses any of the Services, clicks “I Agree” when these terms are first presented in connection with the Service registration process, or as otherwise specified in an Order (the “Effective Date”).  The Company reserves the right to change these Terms of Service from time to time without notice to the Customer or its Customer Representatives and any modifications or changes to these Terms of Service shall be effective upon such modification or amendment being posted to the  Company website, the Platform or otherwise communicated (via email or otherwise) to Customer.  Customer acknowledges and agrees that it is Customer’s and its Customer Representatives’ responsibility to review these Terms of Service periodically and to be aware of any modifications. Customer’s continued use of the Services after such modifications will constitute Customer’s acknowledgement of the modified Terms of Service and agreement to abide and be bound by the modified Terms of Service.

h. Customer Technology Resources.  Customer and its Customer Representatives may be allowed to or may elect to link their Services account to a third party account or site or network in order to provide, submit or upload Customer Materials or other information to the Services (e.g. Google Accounts, Google APIs, Facebook, etc.).  Likewise, Customer and its Customer Representatives may be allowed to or may elect to provide Company with direct access to, and to link Customer’s Services account to, Customer’s online accounts, domain provider, platforms, networks and/or technology resources (either internal or third party) for purposes of facilitating Company’s provision of the Services (e.g., domains, social authentication options, calendar integrations). All such internal and third party accounts, sites, networks, platforms and technology resources are collectively referred to herein as the “Customer Technology Resources”. Customer hereby expressly acknowledges and agrees and grants Company all necessary rights and licenses to access and use the Customer Technology Resources for purposes of providing the Services consistent with these Terms of Service and each applicable Order.  Customer and its Customer Representatives (and not Company) are solely responsible for complying with all Customer Technology Terms and ensuring that they have all necessary rights and permissions to use the Customer Technology Resources in connection with the Services and to permit the Company to access and use the Customer Technology Resources for purposes of providing the Services.  Company is not and shall not be responsible for any of the foregoing and Company assumes no responsibility for compliance with any Customer Technology Terms as related to the Services and Customer’s Services account, and Customer is solely responsible therefor and for obtaining all third party permissions and consents required by any third party platforms or technology resources to link, integrate and use the Customer Technology Resources with the Services.  Customer is responsible for payment of all Customer Technology Resources directly with the applicable providers and Customer acknowledges that the Fanfaire Platform may not work as intended without such resources (e.g. if Customer brings a custom domain to the Fanfaire Platform, it must pay for and maintain such domain and connect it as required, if a domain expires, the Digital Storefront may not work, etc.). Customer provides any Customer Technology Terms to Company and any Company service providers AT ITS OWN RISK AND LIABILITY.    

i. Modifications.  Customer acknowledges and agrees that, from time-to-time, portions of, or functionality included in, the Services may be added to, modified, or deleted by Company and that the Services may change over time.  Company may (but is not required to) expand or enhance the Services by providing additional features in the general course of Company’s standard development model and offering road map (“Premium Features”). Customer acknowledges and agrees that certain Premium Features may be priced separately in Company’s sole discretion and Customer may be required to pay additional amounts if Customer desires to access and use such Premium Features (in addition to Fees previously agreed upon by the Parties).  Customer understands that certain functionality and portions of the Services may only be available to certain customers and that not all functionality and portions of the Services may be available to all customers and all users. Any Premium Features made available by Customer shall be considered Services and shall be subject to these Terms of Service.  

4. Support and SLAs.  During the Term and subject to the terms and provisions of these Terms of Service, Company shall use commercially reasonable efforts to provide Customer with reasonable support for the Services according to Company’s then-current standard support practices. Support services shall not include any services related to any errors, bugs or issues resulting from: (a) any alteration or modification to the Services made by any person other than Company; (b) minor defects in the Services which do not materially affect or impair the use of the Services; (c) any incorrect or improper use of the Services; (d) failure to implement Company recommendations in respect of any solutions or workarounds to errors previously advised by Company; (e) errors or problems caused, at least in part, by Customer Data or any Customer Representative, Device User or Device inputs; and (f) the use of the Services for any purpose for which it was not designed (collectively “Exclusions”). Additional fees may apply to any services that Company elects to provide related to the foregoing exclusions. Customer acknowledges that the Services may be down due to: Exclusions, scheduled down-time for upgrades, repair and regular network maintenance, or other reason outside of Company's control. Customer acknowledges and agrees that additional service fees shall apply in the event that Customer modifies or otherwise changes any of its Third Party Technology (as defined below) or Customer Technology Resources during the Term in a manner that requires Company to provide any technical or consulting services in order to facilitate use of the Services with any new Third Party Technology or Customer Technology Resources.  

5. Customer Agreements.  

a. Requirements and Restrictions.  Except as expressly set forth herein, Customer and its Customer Representatives shall not: (a) copy the Services; (b) loan, rent, or lease the Services or otherwise transfer, assign the right to use or commercialize any of the Services, including but not limited to posting or otherwise making the Services available on the Internet including as a service bureau or application service provider; (c) itself, nor permit or encourage others to, reverse engineer, decompile, decipher, disassemble, translate or otherwise decrypt or discover the source code of all or any portion of the Services; (d) modify, adapt or write or develop any derivative works based on the Services or use the Services in any manner except as expressly provided in these Terms of Service; (e) interfere with or disrupt the integrity or the operation of the Services; (f) copy any features, functions, screens, interfaces or graphics of the Services; (g) violate any Applicable Laws, third party rights or Policies while using or receiving the Services or conducting business transactions via Customer’s Digital Storefront; (h) use the Services or submit any the Company forms if temporarily or indefinitely suspended from using the Services by the Company; (i) manipulate any of the Services, email responses or interfere with any other the Company client’s or user’s use of the Services; (j) provide false, inaccurate, misleading, defamatory, or libelous information or content; (k) spoof or create any emails, content, correspondence or other information from the Company, including fake or fraudulent acceptances or offers; (l) create any competitive service or feature (or otherwise establish a competitive business) based on, in whole or in part, any of the Company’s Services or business ideas;  (m) distribute in or through the Services any viruses, malware harmful code or any other technologies that may harm the Company or the interests or property of the Company’s other clients and users; (n) harvest or otherwise collect information about the Company’s clients and users, including email addresses, without their consent; (o) use the Services to gain unauthorized access to the Company’s or any third parties network(s) or server(s); (p) interfere with any of the Company’s other client’s and user’s use and enjoyment of the  Services; (q) violate the intellectual property rights, including but not limited to, copyrights, trademark rights, trade secrets or patents of any person or entity; and/or (r) transmit or store in or through the Services (or any portion thereof) any viruses, malware or other harmful code, any infringing, libelous, or otherwise unlawful or tortious material, or material in violation of third party privacy rights or in a manner that violates Applicable Law.  With the exception of third party access to and use of Customer’s Digital Storefront consistent with its intended use (i.e., purchasing Customer services or products), under no circumstances shall Customer allow other commercial entities (including, without limitation, Customer’s affiliates, customers, clients or business partners) to access or use the Services without the Company’s prior written consent. Customer covenants and agrees that it shall: (i) perform those tasks and assume those responsibilities required of it by the Company to provide the Services, including, without limitation, providing Customer Representatives with equipment and/or Internet access to access and use the Services; (ii) comply with all Applicable Laws when using the Services and conducting business transactions via the Digital Storefront or otherwise using the Services; (iii) ensure that only Customer Representatives use the Customer Dashboard and only as intended and in accordance with the terms of these Terms of Service and any provided documentation; (iv) cooperate with Company in all matters relating to the Services; and/or (v) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the receipt and use by it of the Services and the conduct of the Company business (including selling and offering Offerings via the Customer’s Digital Storefront).  This description of prohibited conduct is not intended to be exhaustive, and the Company has sole discretion to determine what constitutes prohibited conduct for Customer and its Customer Representatives.  Anyone who violates the Company’s system or network security may incur criminal or civil liability. 

b. Third Party Technology.  Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, Internet access, desktop or laptop computers or other compatible devices, web browsers, browser extensions, etc. (collectively, “Third Party Technology”). Customer shall also be responsible for maintaining the security of the Third Party Technology, Customer accounts, passwords (including but not limited to administrative and user passwords) and files, and for all uses of any of the Customer accounts or the Third Party Technology (with or without Customer’s knowledge or consent) in relation to the Services.  In order for Customer to make full use of the Services, it may be necessary for Customer to use particular Third Party Technology and Customer shall be responsible for procuring and maintaining such Third Party Technology and complying with any requirements related thereto.  If Customer is unable to access all or part of the Services because it does not have access to any necessary Third Party Technology, this shall not constitute a breach of these Terms of Service by the Company and the Company shall not be liable for any loss, damage or expense which may result from Customer’s inability to access the Services.   

c. Customer Offerings.  The Company assumes no responsibility for Customer’s products, services, offerings, operations and other business activities (the “Offerings”), including, without limitation, business transactions conducted by Customer and its Customer Representatives via the Digital Storefront.  Customer is solely responsible for providing and delivering the Offerings to its clients, customers and user base, and resolving all disputes with such clients, customers and user base. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE COMPANY SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY OF CUSTOMER’S OFFERINGS AND ANY CLAIMS, ISSUES, MATTERS OR OTHER INTERACTIONS WITH ANY OF CUSTOMER’S CLIENTS, CUSTOMERS OR USER BASE, INCLUDING IF RELATED TO THE SERVICES.  

d. Customer Responsibilities.  Customer agrees that, at all times during the Term, it shall: (i) perform those tasks and assume those responsibilities required by Company related to the Services; (ii) upon the Company’s request, make available to the Company Customer personnel familiar with Customer’s business requirements related to the Services; (ii) reasonably cooperate with the Company regarding the Services: (iv) provide true, accurate, current and complete information about Customer as prompted by the Company’s forms and in any other related document or agreement; (v) maintain and update Customer’s information to keep it true, accurate, current, and complete (collectively, the “Customer Responsibilities”).  Each Order shall also contain any assumptions of Customer for providing the Services and/or additional responsibilities required of Customer for the Company’s performance of the Services.  Customer understands that the Company’s performance is dependent on Customer’s timely and effective satisfaction of Customer Responsibilities hereunder and timely decisions and approvals by Customer. Customer acknowledges that, if any information provided by Customer is untrue, inaccurate, not current, or incomplete, the Company reserves the right to terminate Customer’s use of the Services and withdraw any offer or agreement.  Customer agrees to keep Customer’s account information, including login and password information, secure and not to share it with any third party.  Customer is solely responsible for maintaining the security of Customer’s account.  We reserve the right to provide our Services to your competitors and make no promise of exclusivity.

e. Age for Use of the Services. All Customer Representatives must be 18 years of age or older to visit or use any of the Services in any manner. By, using or receiving any of the Services or otherwise accepting these Terms of Service, Customer represents and warrants to the Company that all of its Customer Representatives are at least 18 years of age or older, and that each such Customer Representative has the right, authority and capacity to agree to and abide by these Terms of Service.  Customer also represents and warrants to the Company that Customer will cause all of its Customer Representatives to use the Services in a manner consistent with any and all applicable laws and regulations, and that Customer shall cause all of its Customer Representatives to comply with these Terms of Service. 

f. Customer Materials Restrictions.  Customer is and shall be solely responsible for all Customer Materials that Customer or any of its Customer Representatives submit, provide, make available or upload to the Company or Services, including the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all such Customer Materials.   The Company assumes no responsibility for any Customer Materials and the Company has no obligation to and is not required to review or approve any Customer Materials.  Without limiting the foregoing, Customer shall not, and shall permit any Customer Representative to, submit, provide, make available or upload any Customer Materials to the Company or Services that: (a) include offensive, harmful, fraudulent, false and/or abusive language or content, including without limitation: obscenities, harassment, vulgarities, pornography, sexually explicit language and hate speech (e.g., racist/discriminatory speech.); (b) are determined by the Company, in its sole discretion, to be illegal, or to violate any Applicable Laws or the rights of any other person or entity (including intellectual property rights or privacy rights); or (c) that are encrypted or that contain viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept or appropriate any system, data or personal information. Customer acknowledges and agrees that if Customer or any of its Customer Representatives submits, provides, makes available or uploads any Customer Materials to the Company or Services that the Company in its sole discretion believes violate the foregoing or any other applicable the Company guidelines or policies, or for which the Company has received a third party complaint that such Customer Materials may violate any of the foregoing or any other applicable the Company guidelines or policies, then the Company may: (i) remove or delete without notice all or a portion of the applicable Customer Materials from the Platform or other Company networks or systems, and/or (ii) suspend Customer’s or a particular Customer Representative’s continued access to or use of the Services pending removal of such Customer Materials or permanently terminate Customer’s or a particular Customer Representative’s continued access to and use of the Services.  Customer hereby grants, and represents and warrants that the Customer and each Customer Representative has the right to grant, to the Company an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify, and distribute Customer Materials within the Platform and in connection with the Company’s other Services.  

g. Customer Representations. Customer represents and warrants: (a) these Terms of Service: (i) have been authorized by all necessary corporate action, (ii) do not violate the terms of any Applicable Law or court order to which Customer is subject or the terms of any material agreement to which Customer or any of its assets may be subject, and (iii) will not breach any contractual right of, or obligation to, any third party and are not subject to the consent or approval of any third party; and (b) these Terms of Service are the valid and binding obligation of Customer, enforceable against Customer in accordance with its terms.

h. Digital Storefront Transactions.  The Platform enables you and your customers and buyers to negotiate and complete transactions for the purchase and sale of products and services via your Digital Storefront.  All such transactions are strictly between you and your customers and buyers, and Company is not a party to those transactions.  You are responsible for the goods and services you sell through your Digital Storefront, including compliance with any applicable laws or regulations applying to those transactions.  You are the seller of record for all transactions occurring through your Digital Storefront, and Company does not provide, endorse, recommend or guarantee any of your products or services that you elect to advertise or present through the Services.  Company shall not in any way be liable for the quality and delivery of products or services that your customers and buyers purchase from you.  It is solely your responsibility to fulfill all product and service orders submitted via your Digital Storefront and any disputes arising between you, on the one hand, and your customers and buyers, on the other hand, with respect to your products and services are solely between you and those customers and buyers. You are responsible for any legal terms, privacy policies, terms of service and other agreements or policies with your customers and not the Company (collectively, “Storefront Terms”).  Without limiting the foregoing, you are responsible for creating any Storefront Terms and the content thereof.  You are required to have Storefront Terms consisting of terms of service and privacy policies on the Fanfaire Platform prior to launching your Digital Storefront and you should seek the counsel of an attorney or an applicable service provide or terms generator as needed for such terms and policies.  The Company assumes no responsibility and disclaims all liability for transactions occurring via your Digital Storefront and any of your Storefront Terms.  

i. Stripe; Payment Processing.  The Services may offer you the ability to accept payments from customers and buyers via your Digital Storefront using payment processing functionality (“Payment Processing”) powered by Stripe or another payment processing partner (each a “Payment Processor”).  To utilize the Payment Processing, it may be necessary for you to establish a separate account with such Payment Processor (initially we offer Stripe), and it is solely your responsibility to activate and maintain that Payment Processor account. Customer is fully responsible for Customer’s (and its customers’ and clients’) compliance with all Payment Processor legal terms and conditions applicable to any Payment Processing services at any time, and Company assumes no responsibility or liability therefor. Customer’s breach of or failure to comply with any Payment Processor legal terms and conditions shall also constitute a breach of these Terms of Service, and we may suspend or deactivate your Services account if you violate any Payment Processor terms and conditions.  Please note that you are not required to use the Payment Processing services and may sell your products and services using other means acceptable to you and your customers (cash or check payment, online money transfer, etc.)  You are responsible for obtaining all necessary permissions and consents from any payment processors you utilize (Stripe, PayPal, etc.), and Company assumes no responsibility or liability therefor.  Please note that we do not process payments directly and do not handle or process credit card information related to purchases in your stores. 

6. Company Rights.  

a. License.  Customer acknowledges and agrees and hereby grants the Company any and all rights and licenses to: (i) access, use, process, display and manipulate any Customer Materials, Customer equipment, Customer Technology Resources, and/or Third Party Technology as necessary to provide, improve, analyze and monitor the Services; and (ii) display or use, in advertising or otherwise, Customer’s name, logo and trademarks, to provide the Services and to indicate that Customer is or was a customer of the Company.   

b. Remote Monitoring. The Company shall have the right and ability to monitor Customer’s and each Customer Representative’s use of the Services remotely and/or electronically to verify their respective compliance with the terms and provisions of these Terms of Service.  

c. Telemetry and Remote Collection.  Customer acknowledges and agrees that certain Services may transmit to the Company (and the Company may collect and use) certain data and information related to the Services, including as related to its operation and use. 

d. Termination & Remote Disablement.  In the event that Customer or a Customer Representative breaches any of the terms or provisions of these Terms of Service, Customer acknowledges and agrees that the Company may remotely disable or terminate Customer’s and/or the applicable Customer Representative’s use of the Platform and otherwise terminate and cease providing the Services.  

e. Usage Data. Customer acknowledges and agrees that Company may generate and shall own certain analytics, analysis, data, results, summaries, content, information or other data related to Customer’s and the Customer Representatives’ use of the Services (collectively, the “Usage Data”).  Company may use the Usage Data for internal or commercial purposes, including without limitation, for purposes of providing general customer and industry reporting, and for use in and on the Platform, and in connection with Company’s research and development activities, developing improvements to the Platform, and other future products or services developed by the Company.  Notwithstanding the foregoing, Company agrees that: (i) the Usage Data shall not include any personal information, Customer Materials or Confidential Information of Customer; and (ii) it shall not sell any Usage Data in raw form and will only share the Usage Data with third parties on an anonymized and/or aggregated basis. 

7. Intellectual Property Matters; Customer Materials.  

a. Company IP.  Customer agrees that  all of the Services, all Company IP and all Feedback are owned by the Company or its licensors, and are protected by U.S. and international intellectual property laws, and that the Company shall solely own and retain all right, title and interest to, including all intellectual property rights in, the Services, Company IP and Feedback.  Customer agrees to assign and hereby does fully and irrevocably assign to the Company all of its right, title and interest in and to the Feedback, including all intellectual property rights therein. The Services, Company IP and all Feedback shall be deemed the Confidential Information of the Company.  The parties acknowledge and agree that Company IP (and the term “Company IP”) includes any Intellectual Property that is developed, created or provided by Company in performance of the Services.  Neither the Company nor the Company’s Affiliates warrant or represent that Customer’s and its Customer Representatives’ use of any Services or Company IP will not and does not infringe the rights of third parties.  

b. Customer IP.  The Company agrees that the Customer Materials are owned by Customer or its customers and clients, and is protected by U.S. and international intellectual property laws, and that Customer or its clients or customers shall solely own and retain all right, title and interest to, including all intellectual property rights in, the Customer Materials subject to the Company’s license and use rights set forth in these Terms of Service.  

c. Customer Materials.  Customer is solely responsible for all Customer Materials submitted, uploaded, provided, input, transmitted or otherwise made available to or shared with the Company or the Services and any activity that occurs under Customer’s account.  Without limiting the foregoing, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all Customer Materials, and the Company assumes no responsibility for the deletion, correction, destruction, loss, infringement or failure of the Company or the Services to store any Customer Materials  The Company reserves the right to establish a maximum amount of memory or other computer storage and a maximum amount of Customer Materials that Customer (or its Customer Representatives) may store, post, collect or transmit on or through the Services. The Company shall not be required to maintain a backup or copy of any Customer Materials and the Company shall have no liability for any loss of Customer Materials, whether caused by the Company, Customer, any third party service the Company or any third party. IT IS SOLELY YOUR DUTY AND RESPONSIBILITY TO BACKUP SEPARATELY YOUR CUSTOMER MATERIALS THAT MAY RESIDE ON OUR PLATFORM. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL WE BE LIABLE TO YOU, YOUR USERS, OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, FOR LOSS OF FILES AND/OR DATA ON OUR PLATFORM. Customer shall comply with local, national and international laws and regulations applicable to the transmission or storage of data through or in connection with the Services.  Customer shall be solely responsible for its actions while using the Services and the contents of its transmissions through the Platform or otherwise in relation to the Services.  Customer is solely responsible for ensuring that it (and each Customer Representative) has all rights necessary to provide the Customer Materials to the Company and the Services.  Customer warrants that it has the right to disclose any Customer Confidential Information and the Client Materials to the Company and to authorize Company to use it for the purpose of providing the Services.  The Company shall not be responsible for any data, information or material that Customer authorizes the Company to retrieve or that the Customer submits, uploads, provides, inputs, transmits or otherwise makes available to the Company or the Services in the course of using the Services.  The Company does not pre-screen, verify, confirm or otherwise authorize any Customer Materials. However, the Company and its designee(s) have the right (but not the obligation) in their sole discretion to refuse or remove any Customer Materials that is processed by or provided to the Company or the Platform.  The Company may, but has no obligation to, remove content and accounts containing content that the Company determines in its sole discretion are illegal, threatening or otherwise objectionable or violates any party's intellectual property or these Terms of Service.   The Company does not endorse and is not responsible or liable for any Customer Materials posted or provided by Customer or any Customer Representative.  The statements, information, advice and opinions contained in any Customer Materials solely reflect the view of the Customer or Customer Representative that submitted or provided such Customer Materials and do not reflect the opinion of the Company or any of its Affiliates.  Customer acknowledges and agrees that no transmission or hosting of data is 100% secure and there remains a possibility that Customer Materials may be subject to unauthorized access by hacking, malware, systems breach or other unauthorized method and the Company shall have no liability relating to any such breach or access.  

d. Reservation of Rights.  Customer acknowledges and agrees that the Services are provided under license, and no Company IP is being sold to Customer or its Customer Representatives.  Customer and its Customer Representatives do not acquire any ownership interest in any Company IP under these Terms of Service, or any other rights thereto other than the right to use the Services in accordance with the limited license right to access and use Company IP in accordance with Section 3(a), and in each case subject to all terms, conditions, and restrictions, under these Terms of Service and each applicable Order.  The Company and its licensors and service providers reserve and shall respectively retain their entire right, title, and interest in and to the Company IP including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to Customer in these Terms of Service.

e. Third Party Materials.  Portions of the Services may link the Company and Customer Representatives to other sites on the Internet or otherwise include or facilitate access to information, documents, software, materials, content, applications and/or services provided or submitted by third parties (“Third Party Materials”) or references to such Third Party Materials. These Third Party Materials may contain information or material that some people may find inappropriate or offensive. These Third Party Materials (and the third parties responsible therefor) are not under the Company’s control, and Customer acknowledges that the Company is not responsible for the accuracy, completeness, appropriateness, validity, copyright compliance, legality, decency, or any other aspect of such Third Party Materials, nor is the Company responsible for errors or omissions in any references to other parties or their products and services. The inclusion of Third Party Materials, including any reference or link thereto, is provided merely as a convenience and does not imply endorsement of, or association with, the Services, the Company or any the Company Affiliates, or any warranty of any kind, either express or implied.  Customer accesses and uses all such Third Party Materials entirely at Customer’s own risk and subject to such third parties’ terms and conditions.  

f. Suspected Copyright Violations. The Company respects the intellectual property of others, and the Company asks Customer to do the same. If Customer believes it’s or a Customer Representative’s copyright, trademark or other property rights have been infringed by the Services, Customer should send notification to the Company, via the contact information described herein, immediately. To be effective, the notification must include: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) information reasonably sufficient to permit the Company to contact the complaining party, such as address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted; (iii) identification of the material that is claimed to be infringing or to be subject to infringing activity and that is to be removed and information reasonably sufficient to permit the Company to locate the materials; (iv) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, agent, or the law; and (v) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringing.

h. Network Limitations.  Customer understands and agrees that temporary interruptions of the Services may occur as normal events. The Company may use third party providers to store, manage, and authenticate accounts and content, and to provide the necessary hardware, software, networking, storage, and related technology required to run and/or provide the Services. The Company is not responsible for possible issues caused by third party faults or discontinued services. The Company does not guarantee or warrant that any Customer Materials that a Customer Representative saves, stores or accesses through the Services or otherwise submits or provides to the Company or the Services will not be subject to inadvertent damage, corruption, or loss.  Customer is encouraged to back up the files that it and its Customer Representatives store or access via the Services or otherwise submit or provide to the Company. While the Company takes data security and privacy seriously, Customer understands and agrees that the technical processing and transmission of the Services, including Customer Materials, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.  Additionally, Customer further understands and agrees that the Company has no control over third party networks that Customer or other Customer Representatives may access or attempt to access in the course of the use of the Services, and therefore, delays and disruption of network transmissions and inaccuracies in results may be completely beyond the Company’s control and the Company assumes no responsibility for such delays, disruptions or inaccuracies.  Without limiting the foregoing, the Company expressly disclaims responsibility for any lost revenues, lost profits, lost sales or billing errors, glitches or delays experienced by Customer or a Customer Representative to the extent caused by Service outages or network or infrastructure interruptions. Customer understands and agrees that the Services are provided “AS IS” and that the Company assumes no responsibility for the timeliness, deletion, misdelivery or failure to store any Customer Materials, or any other communications or personalization settings.  Without limiting any of the foregoing, Customer acknowledges and agrees that Customer (and not the Company) bears sole responsibility for adequate security, protection and backup of Customer Materials and personal information when in Customer’s or its representatives’ or agents’ possession or control, and the Company is not responsible for what Customer’s Customer Representatives, any Third Party Technology, any Customer Technology Resources or any network or infrastructure providers do with Customer Materials or personal information.

8. Fees.  

a. Free Evaluation.  During an Evaluation Term, there shall be no fees for use of the Services.

b. Services Fees and Payment Terms.   Except during an Evaluation Term, the Services are a fee-based subscription service.  The particular amounts charged for Services shall be as set forth in or as governed by an Order.  For example, you may be presented with pricing when you sign up for the Services or a certain tier or offering, and the fees may be presented to you on the product pricing or support page which shall be considered the Order for purposes of these Terms of Services.  In certain cases with certain customers, we may enter into a written Order that will contain the fees and pricing for the Services (and if we do not enter into a written Order, our standard pricing page rates shall apply). Customer agrees to pay the Company the Platform fees, transaction fees, pass-through costs, expenses and other amounts specified in each applicable Order for the Services (the “Fees”).  Please note that we may charge transaction fees in addition to Platform fees – for example we may take a percentage of each sale on the Platform as more fully set forth in an Order. Payment of Fees may also be required in order for Customer to access and use Premium Features.  All Fees are non-cancelable and non-refundable, except as otherwise provided for herein. Customer will pay all Fees in U.S. Dollars or such other local currency as accepted from time-to-time by Company in its sole discretion (and subject to any additional fees or exchange rate practices as may be applicable).  

c. Changes to Fees.  Company may change Fees due with respect to any recurring Services (e.g.  ongoing/continuous Fanfaire Platform Services) upon ninety (90) days’ prior notice (which may be posted on our website, posted in the Services or sent via email to your email address on record).  Additionally, the Company reserves the right to more frequently change, on a pass-through basis, any third-party fees at any point during the Term (e.g., flow-through of any pass-through fees for Third Party Technology being provided by the Company in connection with the Services).  Customer’s continued use of the Services subsequent to any change in Fees will be deemed acceptance of such changes unless Customer closes its Company account or provides notice of Customer’s intent to terminate the particular Order prior to the effective date of such change and ceases all access to and use of the applicable Services. If the Company does not accept such Fee change, then Customer may terminate these Terms of Service by providing the Company written notice prior to the effective date of such Fee change, and Customer shall only be liable to the Company for the payment of Fees for Services provided through the effective date of termination.   

d. Payment Authorization; Billing.  Our Services require that you provide a valid credit card or other payment method that is acceptable to us in our sole discretion.  Customer acknowledges and agrees that at the end of any Evaluation Term Company will automatically commence charging Customer’s credit card on file without any further action required by Customer. The Company will bill Customer in accordance with Company’s standard billing practices or, if applicable, as set forth in an Order or on any applicable pricing schedule set forth on the Company’s website. Company may charge Customer’s payment method in accordance with Company’s standard practices for the Services.  Such practices may include, and Customer hereby consents and agrees to, automatic billing and charging by Company to Customer’s payment method on file based on Services usage.  Alternatively, and if applicable, Company may charge Customer’s credit card or Stripe account on file for Services to be provided during the upcoming payment period if Customer is on a tiered, monthly or annual plan. Customer acknowledges and agrees that the Company may automatically commence charging Customer’s credit card on file or otherwise processing payments (e.g. ACH, Stripe) without any further action required by Customer. There will be no refunds or credits for partial portions of paid Services or for any pre-paid Services (e.g. if you pay for a year of Services in advance and cease using the Services or request a termination, we do not have to refund you any of the pre-paid fees).  In addition, if you purchase an annual plan and we allow you to pay on any basis other than upfront (e.g. monthly billing for an annual plan) you understand that you are responsible for the full annual commitment and you will be charged or otherwise be responsible for payment for all remaining amounts related to such annual commitment, even if you terminate prior to the end of such period. All fees will be exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based on the Company’s income. Customer shall pay for any taxes that might be applicable to Customer’s use of such paid Services. Customer is also responsible for all taxes, fees or charges owing with respect to sale transactions occurring via Customer’s Digital Storefront.  Customer agrees to be billed monthly, annually or at such other installments as set forth in an Order or as applicable to the Company’s standard Services, and hereby grants the Company the right to charge Customer’s credit card (or otherwise facilitate payment – e.g. ACH, Stripe) with the payment information Customer has provided, including in advance and on a recurring basis.  Customer will reimburse the Company for any fees that the Company may be charged related to declined payments, and Customer will keep the Company informed of all changes to the Customer’s billing information.  All amounts invoiced hereunder are due and payable as specified in the applicable Order. Unpaid Fees that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by applicable law, whichever is lower, plus all reasonable expenses of collection. 

e. Automatic Renewals. By enrolling in a subscription, you authorize us to automatically charge the then-applicable fees for each subsequent subscription period (whether monthly or annually) until your subscription is canceled. If you received a Promotion, your subscription will automatically renew for the full price of the subscription at the end of the applicable discount period. Thus unless you cancel a subscription within the time requirements below, your subscription will automatically renew and we will charge your payment method(s). For annual subscriptions, you must cancel at least one month before the scheduled end date of any annual subscription.  For monthly subscriptions, you must cancel at least three days before the end of your current month. The date for the automatic renewal is based on the date of the original purchase and cannot be changed. 

f. Audit.  In the event that the Company has a reasonable belief that Customer is not in compliance with the terms or provisions of these Terms of Service or an Order, then the Company shall have the right to audit Customer's business, records and systems to ensure compliance with the terms and provisions of these Terms of Service and/or the applicable Order.  The Company shall provide ten days’ notice to Customer and such audit shall not unreasonably interfere with Customer's operations.  In the event that a violation of these Terms of Service or Order is found by the Company and such violation relates to an underpayment of fees, then, in addition to any other rights it may have, the Company shall invoice and Customer shall pay all underpaid fees plus interest at the rate of 1% per month plus the fees of such audit.  Without limiting the foregoing, the Company shall also have the right and authority to monitor Customer's use of the Platform electronically to ensure compliance with the terms and provisions of these Terms of Service.    

g. Online Transactions.  Customer is solely responsible for determining, collecting, withholding, reporting, and remitting applicable taxes, duties, fees, surcharges and additional charges that arise from or as a result of any sale on your Digital Storefront or other customer transaction conducted via Services. The Services are not a marketplace. Any contract of sale made through your Digital Storefront is directly between you and the end customer.  Without limiting the foregoing, the Company is not responsible for providing any refunds for transactions involving your Digital Storefront.  

h. Promotional Codes.  We may from time-to-time offer certain discounts, promotion codes or other promotions (collectively “Promotions”).  All Promotions are at the sole discretion of the Company and may be terminated or rejected by us for any reason. You agree not to share Promotions with other parties.  Promotions may be subject to additional terms and conditions which may be found on our website or with/on the Promotion (e.g. in an email with the Promotion).  Relevant Services, time periods and rates will vary depending on promotions occurring at the time and may not be available to all customers.  Additional terms and conditions may apply to any promotions so please review any promotion offers for terms or contact us if you have any questions.

i. No Refunds.  We do not offer any refunds unless required by Applicable Law.  If you terminate your subscription or plan during the middle of your Term, you will not be entitled to a refund or credit, unless required by Applicable Law.  

9. Term; Termination.  

a. Evaluation Term.  Company may, in its sole discretion and on a customer-by-customer basis, offer Customer an Evaluation Term to evaluate the Services. All use of the Services during an Evaluation Term shall be subject to the terms of this Agreement. Upon the expiration of the Evaluation Term, the right to access and use the applicable Services specified in the Order shall automatically convert to a paid subscription without the necessity of any further action by either party unless Customer terminates the evaluation prior to the end of the Evaluation Term.  The date on which Customer’s Evaluation Term converts to a paid subscription is referred to herein as the “Conversion Date”

b. Term. The Company offers paid monthly and annual subscription terms. Accordingly, unless a different term is specified in an Order, these Terms of Service shall continue with respect to the Services being provided via the Order for an initial period of time equal to either one month or one year from Customer’s Effective Date or Conversion Date (as applicable) for those Services (as specified in Customer’s Order) (the “Initial Subscription Term”). Following the Initial Subscription Term, these Terms of Service shall automatically renew for successive terms of either one (1) year or one (1) month each (as based on the particular subscription term selected by Customer) with respect to the Services (each, a “Renewal Subscription Term”, and together with the Initial Subscription Term, the “Subscription Term”), unless either Party provides the other Party with notice of its intention not to renew prior to the end of the then-current term. The Evaluation Term (if any) and the Subscription Term are together referred to herein as the “Term”.  For annual subscriptions, you must cancel at least one month before the scheduled end date of any annual subscription.  For monthly subscriptions, you must cancel at least three days before the end of your current month.  If you do not cancel in accordance with these timelines, you will be obligated to the next monthly or annual term.  The date for the automatic renewal is based on the date of the original purchase and cannot be changed.

c. Termination.  During the Evaluation Term (if any), either Party may terminate these Terms of Service at any time for any or no reason upon written notice (email being sufficient) to the other Party.  Customer agrees that the Company may at any time during the Term, and at the Company’s sole discretion, terminate or suspend Customer’s (or any Customer Representative’s) access to, and Company’s provision of, any portion or all of the Services without prior notice to Customer for violating these Terms of Service or an Order, including, without limitation, breach of any specific provision of these Terms of Service or an Order.  Any suspected fraudulent, abusive or illegal activity may be grounds for terminating Customer’s relationship with the Company and may be referred to appropriate law enforcement authorities. In addition to the foregoing, either Party shall have the right to terminate these Terms of Service and any Order if the other Party terminates its business activities or becomes insolvent, files for bankruptcy, admits in writing its inability to pay debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.  Upon termination or suspension, regardless of the reasons therefore, Customer’s right to use and/or receive, and Company’s obligation to provide, the Services immediately ceases, and Customer acknowledges and agrees that the Company may immediately deactivate or delete Customer’s account and all related information and files in Customer’s account and/or bar any further access to such files and the other Services. This means Customer’s Digital Storefront may be taken offline and Customer may no longer have access to the Customer Dashboard.  Customer shall immediately pay any and all undisputed payment obligations that have accrued for Service(s) provided but remain unpaid at the time of expiration or termination.  The Company shall not be liable to Customer or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by the Company in connection therewith. Sections 5 through 18 shall survive any expiration or termination of this Terms of Service as well as any other applicable provisions of these Terms of Service that are intended to survive based on their terms.  

10. Confidentiality.   

a. “Confidential Information” means any information disclosed previously or in the future by a party (in such capacity, the “Disclosing Party”) to the other Party (in such capacity, the “Receiving Party”), either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, business plans, source code, software, documentation, specifications, mock ups, financial analyses, marketing plans, customer names, customer lists, product plans, products, services, inventions, processes, designs, drawings, engineering or hardware configuration information, know-how, trade secrets, or any other proprietary or business information), which is designated as “Confidential,” “Proprietary” or some similar designation, or other information, the confidential or proprietary nature of which is reasonably apparent under the circumstances. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession.  Moreover, it shall not be a breach of these Terms of Service for the Receiving Party to disclose to a court or other governmental body Confidential Information of the Disclosing Party which the Receiving Party is required by law to disclose to such entity, provided that the Receiving Party shall give the Disclosing Party written notice of such requirement prior to disclosure so that the Disclosing Party may seek a protective order or other appropriate relief.  The Services and Company IP shall all be considered the Confidential Information of the Company without any further requirement of marking or designation.  For the avoidance of doubt, the Parties acknowledge that any Customer Materials published and made publicly accessible to third parties via Customer’s Digital Storefront shall not be considered Confidential Information of Customer.

b. Non-Disclosure and Non-Use.  The Receiving Party shall not disclose any Confidential Information of the Disclosing Party to third parties or to the Receiving Party’s employees, except those employees who require the information to perform obligations or exercise rights under these Terms of Service and who have signed a confidentiality agreement at least as protective of the Confidential Information of the Disclosing Party as these Terms of Service.  The Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose other than for the purposes contemplated by these Terms of Service.  Subject to Section 10(a) and as otherwise set forth in this Agreement, the Receiving Party shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the Disclosing Party.  Without limiting the foregoing, and subject to Section 10(a) and as otherwise set forth in this Agreement, the Receiving Party shall exercise the same degree of care to protect Confidential Information of the Disclosing Party as it does to protect its own highly confidential information of like nature, which shall in no event be less than reasonable care.  The Receiving Party shall immediately notify the Disclosing Party in the event of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information.  

11. Indemnity.  Customer shall indemnify, defend and hold harmless the Company and its Affiliates from and against all liabilities, amounts, damages, claims, alleged claims, costs and expenses, including attorney’s fees (collectively, “Claims”) relating to, or arising out of, (i) Customer’s or one of its Customer Representative’s use or misuse of any of the Services; (ii) any misrepresentation, fraud or other act or omission that is inconsistent with the requirements of the Services or any Policy; (iii) any breach or alleged breach of these Terms of Service or any Order; (iv) any violation of Applicable Laws by Customer or a Customer Representative; (v) any violation or infringement of any intellectual property rights by Customer or a Customer Representative, whether the Company’s rights or those of any third party; (vi) any Customer Materials that Customer or a Customer Representative submits, imports, uploads or otherwise provides to the Service or the Company, including, without limitation any claims that the Customer Materials violate or infringe the intellectual property rights of any third party; (vii) the Customer Offerings, including any transactions occurring via Customer’s Digital Storefront; (viii) your Storefront Terms or the lack of any Storefront Term; and/or (ix) any claims by third parties (including Customer’s customers) arising from or as related to Customer’s use of the Services.  The Company reserves the right, at the Customer’s expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer will cooperate with the Company in asserting any available defenses.  Customer agrees not to settle any matter without our prior written consent. We will use reasonable efforts to notify Customer of any such claim, action or proceeding upon becoming aware of it. These Terms of Service shall not create any third-party beneficiary rights.   

12. Limitation of Liability. THE COMPANY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF SOURCE MEDIA AND/OR CUSTOMER MATERIALS, OR COSTS OF RECREATING LOST SOURCE MEDIA AND/OR CUSTOMER MATERIALS) ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE TOTAL AGGREGATE AND CUMULATIVE LIABILITY OF THE COMPANY ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE SHALL NOT EXCEED THOSE AMOUNTS ACTUALLY PAID BY CUSTOMER TO COMPANY FOR THE SERVICES IN THE THREE MONTHS PRIOR TO THE CLAIM IN QUESTION.  CUSTOMER AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR THESE TERMS OF SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES AND OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.  

13. Disclaimer of Warranties.  THE SERVICES AND ALL COMPANY IP ARE PROVIDED TO CUSTOMER “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND.  THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET-ENJOYMENT, ACCURACY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE.  THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS OF SERVICE.  NO USE OR DISTRIBUTION OF THE SERVICES AND/OR COMPANY IP IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.  NO WARRANTIES ARE CREATED BY ANY COURSE OF DEALING BETWEEN THE PARTIES, TRADE USAGE OR INDUSTRY CUSTOM. COMPANY SPECIFICALLY DISCLAIMS ANY REPRESENTATION AND WARRANTY THAT THE SERVICES AND/OR COMPANY IP WILL BE ERROR FREE OR WILL FUNCTION UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES OR COMPANY IP CAN OR WILL BE CORRECTED, THAT ANY SUCH CORRECTION CAN OR WILL BE MADE IN A TIMELY MANNER, THAT THE SERVICES AND COMPANY IP WILL OPERATE IN THE COMBINATIONS WHICH MAY BE REQUIRED OR WILL PRODUCE THE RESULTS REQUIRED. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO PERFORMANCE OF THE SERVICES. COMPANY SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF THE SERVICES AND COMPANY IP.  COMPANY DOES NOT WARRANT THAT THE SERVICES OR COMPANY IP WILL MEET CUSTOMER'S SPECIFIC REQUIREMENTS OR EXPECTATIONS, AND COMPANY RECOMMENDS THAT CUSTOMER CHECK AND CONFIRM THE ACCURACY OF ANY INFORMATION OR RESULTS THAT CUSTOMER OBTAIN FROM THE SERVICES OR COMPANY IP PRIOR TO USING IT OR RELYING ON IT IN WHATEVER FORM.  

14. International Use.  Although the Services may be accessible worldwide, the Company makes no representation that (i) use of the Services is appropriate or available for use in locations outside the United States, and (ii) use of the Services is compliant with foreign law.  If Customer chooses to access the Services from other locations, Customer does so on Customer’s own initiative and is responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with the Services is void where prohibited.

15. Electronic Contracting and User Notices.  Customer’s affirmative act of accessing or using any portion of the Services or other acceptance of these Terms of Service as described above constitutes Customer’s electronic signature to these Terms of Service and Customer’s consent to enter into agreements with the Company electronically.  Customer also agrees that the Company may, but has no obligation to, send to Customer in electronic form any privacy or other notices, disclosures, reports, documents, communications or other records regarding the Services (collectively, “Notices”).  The Company can send Customer electronic Notices (i) to the e-mail address that Customer provided to the Company (if any), or (ii) by posting the Notice through the Services.  The delivery of any Notice from the Company is effective when sent or posted by the Company, regardless of whether Customer reads or views the Notice when Customer receives it or whether Customer actually receives the delivery.  Customer can withdraw Customer’s consent to receive Notices electronically by discontinuing Customer’s use of the Services.  Customer can retrieve an electronic copy of this contract by clicking on the “Fanfaire Platform Terms of Service” link on the Platform or Company website or as set forth in the Services.  All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing.  

All questions, complaints, claims or other notices to the Company shall be in writing and shall be made either via email or conventional mail to the addresses set forth below, or using any contact functions made available via the Services. 

Email:  support@fanfaire.io 

Any notices or communication under these Terms of Service will be deemed delivered to the Company on the delivery date.

16. Law; Venue.  Customer agrees that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern these Terms of Service and any claim or dispute that has arisen or may arise between Customer and the Company, except as otherwise stated in these Terms of Service. All actions related to these Terms of Service shall take place in Los Angeles, California, including any arbitration as contemplated below.  

17. Arbitration.

a. Agreement to Arbitrate. This Section is referred to as the “Arbitration Agreement.” Customer agrees that any and all disputes or claims that have arisen or may arise between Customer and the Company, whether arising out of or relating to these Terms of Service, an Order or in connection with Customers use of the Services, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Customer may assert individual claims in small claims court, if Customer’s claims qualify. Customer agrees that, by agreeing to these Terms of Service, Customer and the Company are each waiving the right to a trial by jury or to participate in a class action. Customer’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either Party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.

b. Prohibition of Class and Representative Actions and Non-Individualized Relief. Customer and the Company agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both Customer and the Company agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).

c. Pre-Arbitration Dispute Resolution. The Company is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly and to the participant’s satisfaction by emailing The Company’ support team at support@fanfaire.io. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to the Company should be sent to the Company at PO Box 1022 Redondo Beach, CA 90277 Attn: Legal Dept (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If the Company and Customer do not resolve the claim within sixty (60) calendar days after the Notice is received, Customer or the Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by the Company or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or the Company is entitled.

d. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless the Company and Customer agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If Customer’s claim is for $10,000 or less, the Company agrees that Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If Customer’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

e. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.

f. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

g. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause (b) above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of clause (b) is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of these Terms of Service will continue to apply.

18. General.

a. Assignment. Customer may not assign Customer’s rights and obligations under these Terms of Service to any third party, and any purported attempt to do so shall be null and void. The Company may freely assign the Company’s rights and obligations under these Terms of Service and transfer, assign or novate these Terms of Service.  

b. Force Majeure.  In addition to any excuse provided by applicable law or under these Terms of Service, the Company shall be excused from liability for non-delivery or delay in delivery of products and services available through the Services arising from any event beyond the Company’s reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, fire, accident, adverse weather, epidemic, inability to secure transportation, governmental act or regulation, and other causes or events beyond the Company’s reasonable control, whether or not similar to those which are enumerated above.

c. Enforceability; Severability. If any part of these Terms of Service are held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. 

d. No Waiver.  Any failure by the Company to enforce or exercise any provision of these Terms of Service or related rights shall not constitute a waiver of that right or provision or a waiver of the Company’s right to enforce or exercise any such provision of these Terms of Service in the future. 

e. Intended Beneficiaries.  These Terms of Service are strictly between the Company and Customer.  There are no intended third party beneficiaries of these Terms of Service.

f. Government Sales.  If Customer is a branch or agency of the United States Government or a contractor thereto, the following provision applies. As defined in FAR section 2.101, the Platform and related documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of these Terms of Service and will be prohibited except to the extent expressly permitted by the terms of these Terms of Service.

g. Use of Words.  The term “including” as used in these Terms of Service shall mean “including, without limitation,” unless the context otherwise requires.

h. Entire Agreement.  These Terms of Services, any Orders entered into in connection with these Terms of Service and the Policies (if any) collectively constitute the entire agreement and understanding between the Company and Customer concerning the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect thereto. These Terms of Service may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for products or services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by Customer and the Company. 

i. Independent Contractors.  In performing these Terms of Service, the Parties act and shall act at all times as independent contractors, and nothing contained in these Terms of Service shall be construed or implied to create an agency, partnership or employer and employee relationship between the Parties.  Except as expressly set forth in these Terms of Service, at no time shall either Party make commitments or incur any charges or expenses for, or in the name of, the other Party.

BY USING THE COMPANY’S SERVICES AND/OR ACCEPTING THESE TERMS OF SERVICE (OR OTHERWISE BEING BOUND AS DESCRIBED ABOVE), CUSTOMER AGREES TO BE BOUND BY THESE TERMS OF SERVICE.  IF CUSTOMER DOES NOT WISH TO BE BOUND BY THE THESE TERMS OF SERVICE, PLEASE CEASE ALL FURTHER USE OF THE SERVICES.