Fanbank is the owner and operator of Fanbank®, a technology enablement platform that uses a variety of strategies to provide marketing, loyalty and commerce programs to participating businesses. Fanbank’s technology platform and program is designed to leverage social media, promotions, automated communications, data and incentives to elevate awareness of participating businesses and motivate consumers to purchase goods and services at participating businesses (collectively, the “Fanbank Services”).
a) As used in this Agreement, “we,” “us,”“party” or “Fanbank” means Fanbank, Inc. and “you,” “your," “party,”“Partner” or “Reseller,” means you as the partner participating in this Program. “Reseller Site” individually and collectively means your website(s), your services, e-mail communications, and/or software applications. Taken collectively, Fanbank and Reseller may be referred to as “parties.” This Agreement is an electronic contract that establishes the legally binding terms between Fanbank, Inc. and you (“Agreement”). Fanbank is a corporation established in Delaware, United States of America, with headquarters in Santa Monica, California, United States of America.
c) By accessing the Website, you accept this Agreement and agree to the terms, conditions and notices contained or referenced herein and consent to have this Agreement and all notices provided to you in electronic form. This Agreement may be modified by the Company from time to time, such modifications to be effective upon posting by the Company on the Website.
d) To withdraw this consent, you must cease using the Service and terminate your Partner Agreement in writing.
e) Fanbank will make the Fanbank Services available to you for resale under this Agreement. Fanbank will provide you a promotion code for you to distribute to your clients to enroll in the Fanbank Service at such price as agreed to by the Parties. Your clients will be required to enroll directly in the Fanbank Services and provide payment directly to Fanbank. If required, Fanbank and Partner will enter into separate agreements regarding any special arrangements on pricing, payment and/or services.
f) Subject to the terms and conditions of this Agreement, we grant you the non-exclusive and non-transferable right to market, promote, and resell the Fanbank Services to your Clients. For clarity, any reference to the resale of the Fanbank Services or reselling the Fanbank Services means reselling the right to access and use the Fanbank Services as provided by Fanbank and not the actual sale or transfer of any software, technology, or documentation associated with the Fanbank Services. You are only permitted to resell the Fanbank Services to parties who are not current Fanbank subscribers.
a) Each party must comply with all data privacy laws that apply in connection with this Agreement and the provision of Fanbank Services. This may include entering into a separate data protection agreement.
b) Fanbank may provide you, from time to time, a non-exclusive, non-transferable and revocable license during the Term to use certain Fanbank trademarks, logos, marketing materials and URLs provided by Fanbank (“Licensed Marks”). Reseller expressly agrees to comply with all the terms herein in using the Licensed Marks and in creating Reseller Site and Reseller Branded materials. Fanbank shall provide specifications and other instructions from time to time as to Reseller’s permissible use of the Licensed Marks and Reseller agrees to comply with any such specifications and instructions. Reseller shall ensure that all Licensed Marks appearing on its Reseller Site and Reseller Branded materials are in the form approved by Fanbank and shall not modify any Licensed Marks or otherwise substantially modify any Reseller Site or Reseller Branded materials without the prior written consent of Fanbank. Upon termination of this Agreement for any reason whatsoever, or upon written request by Fanbank, the licenses granted herein shall expire and Contractor shall immediately cease all use of the Licensed Marks.
3) Restricted Activities
a) Reseller will conduct its business and activities in a manner that promotes a good, positive image and reputation for Fanbank and the Fanbank Services. Without limiting the generality of the foregoing, Reseller will not:
i) use any inappropriate form of promotional, marketing, or advertising activity for the Fanbank Services or for any services of Reseller in which the Fanbank Services are incorporated, which includes use of any misleading hyperlinks and making any false, misleading, or disparaging representations or statements with regard to Fanbank or the Fanbank Services;
ii) engage in any unfair or deceptive trade practice involving the Fanbank Services;
iii) participate in any promotion, advertising, marketing, or sale of any imitation of the Fanbank Services;
iv) copy, use, or distribute any Fanbank trademarks or materials other than as permitted under this Agreement;
v) include or provide for in any Reseller Site any page, screen, or social media platform that contains content that: advocates discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promotes or engages in illegal activities; violates intellectual property rights of third parties; or contains or promotes deceptive information;
vi) hold yourself out to be an Fanbank employee or use any Fanbank materials to mislead potential new Clients into believing you are endorsed or employed by Fanbank;
vii) use the string “Fanbank” for any website domain name;
viii) use any profane, vulgar, discriminatory, or objectionable words or phrases in domains used in connection with the Fanbank Services;
ix) send spam or send bulk-emails to market and promote the Fanbank Services;
x) directly or indirectly convert or attempt to convert current active Fanbank subscribers to Reseller Clients without our prior written approval; or
xi) make or authorize any proposal, representation, warranty, guarantee, or communication relating to the Fanbank Services that is inconsistent with Fanbank’s standard terms and policies, or that has not been approved or otherwise authorized by Fanbank in writing.
4) Term, Termination, and Cancellation
a) The term of this Agreement (the “Term”) will begin upon the Effective Date of this Agreement and will continue for the Term until terminated by either Party for convenience with thirty (30) days prior written notice. In the event that Reseller violates any of the Fanbank Terms, Fanbank will provide Reseller with written notice of said violation in conjunction with a ten (10) day cure period. If, after the cure period expires, and Reseller has not rectified the issue, Fanbank may immediately terminate this Agreement in writing and your participation in the Reseller Program.
5) Representations and Warranties
a) Each of us hereby represents and warrants to the other that:
i) it has full power and authority to enter into this Agreement and to perform its obligations hereunder;
ii) it has obtained all licenses and other governmental authorizations and approvals required for its performance under or activities pursuant to this Agreement;
iii) it will perform its obligations in compliance with all laws, rules, and regulations applicable to its activities pursuant to this Agreement; and
iv) it has the right to disclose any Confidential Information disclosed under this Agreement and that such disclosure does not violate the rights of any third parties.
6) DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
a) Fanbank will remain solely responsible for the operation of the Fanbank website, the Fanbank Services and you will remain solely responsible for the operation of the Reseller Site. Each party acknowledges that (i) their respective sites may be subject to temporary downtime due to causes beyond their reasonable control, and (ii) it retains sole right and control over the programming, content, and conduct of transactions over its respective site or service.
b) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES PROVIDED IN THIS AGREEMENT, THE FANBANK SERVICES AND RESELLER PROGRAM ARE PROVIDED “AS IS,” AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FANBANK EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR THROUGH COURSE OF DEALING, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, OR ANY WARRANTY REGARDING (I)THE AMOUNT OF FEES A RESELLER MAY GENERATE DURING THE TERM, (II) RESELLER’S CONTINUED PARTICIPATION IN THE RESELLER PROGRAM, AND (III) ANY ECONOMIC OR OTHER BENEFIT THAT RESELLER MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THE RESELLER PROGRAM.
c) UNDER NO CIRCUMSTANCES WILL FANBANK BE LIABLE TO RESELLER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING ANY CLAIMS FOR LOST PROFITS, LOST BUSINESS, OR LOST DATA) ARISING OUT OF THIS AGREEMENT, EVEN IF FANBANK HAS BEEN ADVISED OFTHE POSSIBILITY OF ANY SUCH DAMAGES. FANBANK’S ENTIRE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE),OR OTHER CAUSE OF ACTION WILL NOT EXCEED THE AMOUNTS COLLECTED FROM RESELLER UNDER THIS AGREEMENT IN THE THREE-MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
a) Reseller will indemnify, defend, and hold harmless Fanbank and our affiliates, directors, officers, employees, and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) resulting from (a) the operation of any Reseller Site; (b) a breach of your obligations under this Agreement,; or (c) the violation of any third party intellectual property rights in arising out of the Reseller Site and activities under this Agreement.
b) Fanbank will indemnify, defend, and hold harmless Reseller and Reseller’s affiliates, directors, officers, employees, and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) relating from (a) the operation of the Fanbank Services; (b) a breach of our obligations under this Agreement; or (c) the violation of any third party intellectual property rights arising out of the Fanbank Services and activities under this Agreement.
a) Either party may, during the term of this Agreement, disclose to the other certain non-public, confidential or proprietary information with respect to this Agreement, whether or not designated as such at the time of disclosure, including, without limitation, any and all information or data, whether in oral, audio, visual, written, electronic, or other form, communicated by one party to the other which is: related to scheduled releases and new and improved products and features of Fanbank, the parties’ proprietary technology, processes, business proposals, systems, networks, operations, policies, procedures, concepts, reports, pricing, products, marketing, trade names, trade secrets, correspondence, and financial information of any kind (“Confidential Information”). You agree to hold all Confidential Information, which is provided“AS IS,” in strict confidence and not disclose Confidential Information to third parties without the prior written consent of the disclosing party. Confidential Information cannot be utilized for any purpose whatsoever other than specifically required under this Agreement. The parties shall keep all Confidential Information secret and confidential, taking security precautions at least as great as those taken by each party to protect their own confidential information, but not less than a reasonable standard of care. All materials containing Confidential Information are and remain the discloser’s property, and upon written request, the recipient will promptly return or destroy them at the discloser’s option. A party receiving Confidential Information shall promptly notify the party disclosing such Confidential Information of any unauthorized use or disclosure of such Confidential Information of which the receiving party becomes aware. Obligations of confidentiality and the destruction of Confidential Information as outlined above, shall survive this Agreement unless otherwise agreed to in writing by the parties or until such time as information becomes publicly available through no wrongful act. Each party’s obligations hereunder with respect to any trade secret (which trade secret shall be identified by the disclosing party as a trade secret or, if not so identified, a reasonable person would understand it to be a trade secret) shall continue for so long as such trade secret remains a trade secret.
9) General Provisions
a) You and Fanbank are entering this Agreement as independent contractors, and nothing will be construed to create a partnership, agency, joint venture, or employment relationship between you and us.
b) Neither you or we will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond our respective reasonable control. If any force majeure event occurs, the affected party will give prompt written notice to the other and will use commercially reasonable efforts to minimize the impact of the event.
c) This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions or your actual state of residence. Any claims, legal proceeding, or litigation arising in connection with this Agreement will be brought solely in LosAngeles, California, and you consent to the exclusive jurisdiction of such courts. You shall commence an action in relation to an alleged breach of this Agreement or otherwise arising under this Agreement within one (1) year from the date Reseller becomes aware of the breach. Any action not brought within that one (1) year time period shall be barred, without regard to any other limitations period set forth by law or statute.
d) Any notices under this Agreement will be given in writing. Notices may be given by electronic mail and will be deemed delivered and given for all purposes on the sent date, but only if the receiving party has confirmed its receipt by return electronic mail. Notices sent via traditional means will be sent via postal mail or certified mail, return receipt requested. Notices to Fanbank will be sent to: Fanbank, Inc., 1351 Third Street Promenade, Santa Monica, CA 90401.
e) Neither party may assign thisAgreement, in whole or in part, without our prior written consent of the other. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
f) The failure of either you or Fanbank to enforce any provision of this Agreement will not constitute a waiver of the right to subsequently enforce the provision. Any remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.
g) If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, unlawful, void, or unenforceable to any extent, such provision will be interpreted to best reflect the parties’ intent, and the remainder of this Agreement will not be affected and will continue to be valid and enforceable to the fullest extent permitted by law.
h) This Agreement including all attachments hereto, constitutes the entire agreement between the parties, and supersedes all prior agreements, whether written or oral, regarding the subject matter of this Agreement.