1. INTRODUCTION AND ACCEPTANCE OF TERMS
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITE.
By accessing, viewing, or using the Site, you signify that you have read and understand these Terms, that you agree to them and intend to be legally bound by them. If you do not agree to these Terms, or if you are under 18 years of age, you are not granted permission to use this Site and must exit immediately. You agree that these Terms are supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged, including your use of the Site and receipt of data, information and materials available at or through the Site. Special terms may apply to some services or functionality offered on the Site, such as subscription-based services, rules for particular contests or sweepstakes, or other features or activities (“Additional Terms”). Such Additional Terms are posted in connection with the applicable service or functionality. Any Additional Terms are in addition to these Terms, and in the event of a conflict, prevail over these Terms.
2. PROPRIETARY RIGHTS
As between you and Function(X), Function(X) owns or licenses all data, content, graphics, forms, artwork, images, photographs, functional components and any software concepts and documentation and other material on, in or made available through the Site (“Site Materials”), as well as the selection, coordination, arrangement, and organization and enhancement of the Site Materials. All Site Materials are protected pursuant to copyright, trademark, patent and other applicable laws. You agree not to remove or alter any copyright notice or any other proprietary notice on any Site Materials. As between any user and Function(X), all names, trademarks, service marks, certification marks, symbols, slogans or logos appearing on the Site are proprietary to Function(X) or its affiliates, licensors, or suppliers. Use or misuse of these trademarks is expressly prohibited and may violate federal and state trademark law. Under no circumstances will you have any rights of any kind in or to the Site Materials, other than the right to use the Site Materials in accordance with these Terms. We may change the Site or delete any of the Site Materials or features at any time, in any way, for any or no reason. Except as we specifically agree in writing, no Site Materials may be used, reproduced, transmitted, distributed or otherwise exploited in any way other than as part of the Site. In addition, you agree not to frame or utilize any framing techniques to enclose any Site Materials without our express written consent.
All names, nicknames and logos of sports leagues, teams, events and/or athletes included in the Site Materials are the property of their respective owners. The use of such names, nicknames and logos is for informational or factual purpose only and does not signify any endorsement, sponsorship or promotion by or association with their owners.
“Submissions” means any information or materials that you post, upload, submit, communicate or otherwise distribute (“Communicate”) on or through the Site. You hereby grant us and our licensees, distributors, agents, representatives and other authorized users, a worldwide, perpetual, irrevocable, non-exclusive, fully-paid-up, royalty-free, sub-licensable and transferable (in whole or part) license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property and other proprietary rights that you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit any Submissions, in whole or in part, in all media formats and channels now known or hereafter devised for any and all purposes, including entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity.
By Communicating any Submission, you represent and warrant as follows:
a) You own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to Communicate the Submission and to grant us the rights and licenses granted in these Terms;
b) The Submission is not defamatory, abusive, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, sexually explicit or offensive;
c) The Submission does not harm or threaten to harm any person;
d) The Submission does not violate any law, statute, ordinance, regulation, or agreement;
e) The Submission does not encourage or advocate illegal activity or the discussion of illegal activities with the intent to commit them;
f) The Submission does not infringe or violate any right of a third party, including, (i) any copyright, patent, trademark, trade secret or other proprietary or contractual right, (ii) any right of privacy or publicity, or (iii) any confidentiality obligation;
g) The Submission is not commercial or business-related, and it does not advertise or offer to sell any products or services (whether or not for profit) or solicit others (including solicitations for contributions or donations);
h) The Submission does not contain a virus or other harmful component, tamper with, impair or damage the Site or any connected network, or otherwise interfere with any person or entity’s use or enjoyment of the Site; and
i) The Submission generally pertains to the designated topic or theme of the relevant portion of the Site and is not antisocial, disruptive or destructive (e.g., “flaming,” “spamming,” “flooding,” and “trolling” as those terms are commonly understood and used on the Internet).
We reserve the right, but disclaim any obligation or responsibility, to: (i) refuse to post or communicate or remove any Submission from the Site that violates these Terms; and (ii) identify any user to third parties, and/or disclose to third parties any Submission or personally identifiable information, when we believe in good faith that such identification or disclosure will either facilitate compliance with laws, including, for example, compliance with a court order or subpoena or help to enforce these Terms and/or protect the safety or security of any person or property, including the Site. Moreover, we retain all rights to remove Submissions at any time for any reason or no reason whatsoever.
4. UNAUTHORIZED ACTIVITIES
You agree that you will not use the Site for: (a) any illegal or unauthorized purposes that violate any local, national, or international laws (including but not limited to import, export, copyright, and trademark laws); (b) modifying, copying, distributing, displaying, performing, reproducing, publishing, licensing, creating derivative works from, transferring, selling any of the Site Materials, unless otherwise authorized by these Terms or in a separate written agreement with Function(X); (c) attempting to gain unauthorized access to Function(X)’s computer system or engaging in any activity that interferes with the performance of, or impairs the functionality of the Site or any services provided through the Site; (d) any resale or commercial use of the Site; (e) any downloading or copying of the Site Materials for any reason other than your personal use, or any use of data mining, robots or similar data gathering and extraction tools; (f) using the Site to access or collect any personally identifiable information, including any names, email addresses or other such information for any purpose, including, without limitation, commercial purposes; or (g) removing, circumventing, disabling, damaging or otherwise interfering in any way with any security-related features of the Site aimed at preventing or restricting the unauthorized use of the Site or any of the Site Materials. You acknowledge and agree that the unauthorized use of the Site or the Site Materials could cause irreparable harm to Function(X) and that in the event of such unauthorized use, Function(X) shall be entitled to an injunction in addition to any other remedies available at law or in equity. Accessing materials through our Site by certain persons in certain countries may not be lawful, and we make no representation that materials provided through our service are appropriate or available for use in locations outside the United States. If you choose to access our service from outside the United States, you do so at your own risk.
The United States controls the export of any software downloadable from our service. No software or any other materials associated with our service may be downloaded, exported or re-exported to countries or persons prohibited under export control laws, or to anyone on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Table of Deny Orders. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of any such materials. By using and/or downloading any such materials from our service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country to which such import, export, or re-export is prohibited or are not a person or entity to which such export is prohibited.
The Site may allow you to create an account to access certain information, materials, functions and/or features or to secure other benefits. By registering for an account with Function(X), you agree to be legally bound by these Terms. As a part of the registration process, you may be asked to select a user name and password, may also be required to provide Function(X) with certain information about yourself including some types of personally identifying information such as your email and your address. You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by our registration processes (the “Registration Data”). You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name, likeness, voice, image or photograph. You shall promptly notify us at email@example.com, of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to the Site. In addition, you agree to exit from your account at the end of each session. You are entirely responsible for maintaining the confidentiality of your password and account, and you are entirely responsible for any and all activities that occur under your account.
We may suspend or terminate your account and/or your ability to access or use the Site or any portion thereof for failure to comply with these Terms or any special terms related to a particular service, for infringing copyright, or for any other reason whatsoever.
6. PRIVACY AND COLLECTION OF PERSONAL INFORMATION
7. LINKS TO THIRD PARTY SITES
Function(X), its subsidiaries, and affiliates, are not responsible for and do not guarantee the accuracy or completeness of any Site Materials, Submissions, products, data, services, links, advertisements or other items contained within the Site. Function(X) reserves the right to immediately remove any Site Materials or Submissions for any reason or for no reason. Function(X) cannot and does not review all communications or products made available on or through the Site, but, although not obligated to, may review, verify, make changes to or remove any Submissions, Site Materials, the Site or the products or services made available in connection with the Site, including information submitted in connection with the Site Materials or other features at any time, with or without notice in its sole discretion. You agree that you must evaluate and bear all risks associated with the use of Site Materials or Submissions and that you may not rely on such Site Materials or Submissions.
Function(X) uses reasonable efforts to ensure that the Site is generally available. However, there will be occasions when access to the Site will be interrupted or unavailable. Function(X) will use reasonable efforts to minimize such disruption where it is within its reasonable control. You agree that Function(X) shall not be liable to you for any modification, suspension or discontinuance of the Site. You understand that the technical processing and transmission of any Site content 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. Please be advised that we do not guarantee that any information sent from our Site will be secure during transmission, nor can we guarantee the confidentiality of any communication or material transmitted to Function(X) via the Site or the Internet, including, for example, personal information such as your name or address.
THE SITE, ALL CONTENT ON OR OTHERWISE RELATED IN ANY WAY TO SITE, AND ALL PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THE SITE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATIBILITY AND NONINFRINGEMENT. WE DO NOT WARRANT THAT ANY CONTENT WILL BE ERROR-FREE, THAT ACCESS TO THE SITE AND THE CONTENT WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKE THE CONTENT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY CONTENT. YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST US WITH RESPECT TO THE SITE, CONTENT, AND ANY PRODUCTS AND OR SERVICES PROVIDED IN CONNECTION WITH THE SITE.
You hereby agree to indemnify, defend, and hold us, our affiliated companies, including without limitation Function(x) Inc. and wetpaint.com, inc., and all of the foregoing entities’ licensors, licensees, distributors, agents, representatives and other authorized users, and all of the foregoing entities’ respective officers, directors, owners, employees, agents, representatives, successors and assigns (collectively, the “Indemnified Parties”) harmless from and against any and all losses, damages, liabilities, costs and expenses (including settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of these Terms or claims arising from your use of the Site and/or your account(s). You shall cooperate with us in the defense of any claim subject to indemnification hereunder. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any such claim. You may not settle any Claim without the prior written consent of Function(X).
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL WE, ANY OF OUR AFFILIATED COMPANIES AND/OR ANY OF THE FOREGOING COMPANIES’ LICENSORS OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, THE DELAY OR INABILITY TO USE THE SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, CONTENT, SOFTWARE, PRODUCTS, MATERIALS, AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE OR ANY OF OUR LICENSORS OR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF FUNCTION(X) AND ITS LICENSORS SHALL NOT EXCEED TEN DOLLARS ($10). IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP USING THE SITE.
11. JURISDICTION, APPLICABLE LAW AND DISPUTES
We reserve the right to amend these Terms and any Additional Terms (including by modification, deletion and/or addition of any portion thereof) at any time. You are responsible for regularly reviewing these Terms and Additional Terms. Your continued use of the Site following any amendment constitutes your agreement to such amendment.
Unless otherwise specified herein, these Terms constitute the entire agreement between you and us with respect to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect thereto. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including but not limited to the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. No waiver of any provision of these Terms by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. No person or entity not party to this agreement will be deemed to be a third-party beneficiary of these Terms or any provision hereof. In these Terms, the word “including” is used to mean “including without limitation”.
14. CLAIMS OF COPYRIGHT INFRINGEMENT
We respect the rights of copyright holders and have adopted and implemented a policy that provides for the termination, in appropriate circumstances as determined by us in our sole discretion, of users who are infringers of copyright.
It is our policy to respond to clear, legally valid notices of alleged copyright infringement that comply with the requirements of the Digital Millennium Copyright Act of 1998 (“DMCA”). If we are notified of alleged copyright infringement in accordance with these requirements, we will respond expeditiously by removing or disabling access to the material that is claimed to be infringing or to be the subject of infringing activity, provided that the material may be reinstated according to the counter notification procedure described below. If you believe that your work has been copied in a manner that constitutes copyright infringement, please provide a signed (with your physical or electronic signature) statement to our Designated Agent (identified below), as required by 17 U.S.C. § 512(c), that:
• Identifies the copyrighted work claimed to have been infringed (or, if multiple copyrighted works are covered by a single notification, a representative list of such works);
• Identifies the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and includes information reasonably sufficient to permit us to locate the material;
• Includes information reasonably sufficient to allow us to contact you, such as your address, telephone number, and e-mail address;
• Includes a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• Includes a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our Designated Agent is:
902 Broadway, 11th Floor
New York, NY 10010
Attn: Mitchell J. Nelson
We will take reasonable steps to promptly notify you if we have removed or disabled access your Submission in response to a notice of copyright infringement (e.g., by means of a general notice on the Site, electronic mail to you e-mail address in our records, or by written communication sent by first-class mail to you physical address in our records). In such event, you may make a counter notification pursuant to 17 U.S.C. §§ 512(g)(2) and (3). When we receive a counter notification, we may reinstate the material in question.
To file a counter notification with us, you must provide a written communication that includes the following items, as required by 17 U.S.C. § 512(g), to our Designated Agent identified above:
• Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
• A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
• Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if your address is outside of the United States, the Federal District Court for the Northern District of Illinois), and that you will accept service of process from the person who provided the notification of alleged copyright infringement or an agent of such person; and
• Your physical or electronic signature.
Last Updated: September 14, 2016