These Terms of Service set forth the terms and conditions of the agreement between you, an individual user, (a "User") and Fantazzle, Inc. ("Fantazzle") governing your use of the Fantazzle website located at www.fantazzle.com (the "Fantazzle Site") and the services provided to you by Fantazzle (together, the "Fantazzle Service"). When using the Fantazzle Service, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time, which shall include any rules related to the Fantazzle Service as provided by Fantazzle, including the Operating Rules (the "Guidelines"). All such Guidelines are hereby incorporated by reference into the Terms.
AS A CONDITION OF YOUR USE OF THE FANTAZZLE SERVICE, YOU MUST ACCEPT THESE TERMS IN THEIR ENTIRETY; THEREFORE, BEFORE USING THE FANTAZZLE SERVICE, PLEASE READ CAREFULLY THE FOLLOWING CONDITIONS AND TERMS OF SERVICE. BY REGISTERING FOR AND/OR ACCESSING, BROWSING, AND USING THE FANTAZZLE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS, INCLUDING THE GUIDELINES (WHICH INCLUDES THE OPERATING RULES), AND ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE "TERMS"). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE FANTAZZLE SERVICE.
In order to use the Fantazzle Service, you must meet the following eligibility requirements. Fantazzle may require you to provide Fantazzle with proof that you meet these eligibility requirements prior to receiving a prize, which will be provided in U.S. Dollars if in cash, unless otherwise stated (a "Prize"). In addition to any other rights that Fantazzle may have in law or equity, Fantazzle reserves the right to suspend or terminate the account (and terminate, withhold or revoke any Prizes associated with such account) of any purported user of the Fantazzle Service who does not meet the following requirements.
You hereby represent and warrant that:
i) you are a natural person (corporate entities and similar organizations are not eligible to use the Fantazzle Service for any purpose) at least the age of majority in your jurisdiction of residence (generally 18 years of age or older; 19 if you reside in Nebraska or Alabama) and are fully able and competent to enter into the Rules, conditions, obligations, affirmations, representations and warranties set forth in these Rules and to abide by and comply with these Rules;
ii) you are a citizen or lawful permanent resident of the United States of America or Canada and that you have an address in the United States of America or Canada;
iii) you are physically located in the United States of America or Canada and reside in a jurisdiction in which use of the Fantazzle Service is not prohibited by applicable law;
iv) if you are entering any Fantazzle Game in which you must pay to play and a Prize is awarded YOU ARE NOT A RESIDENT OF ANY of the following states: Arizona, Iowa, Louisiana, Montana, Vermont, and Puerto Rico and you will not access the Fantazzle Service from any of those states in order to participate in a Game in which a Prize is awarded; if you are a resident of Canada YOU ARE NOT A RESIDENT OF Quebec. Residents may still play the Games at Fantazzle, but will not be awarded a cash prize.
v) you will abide at all times by these Rules; and
vi) if you are playing any Game in which a Prize is awarded you are not an employee, officer, or director (or such person's Immediate Family Member, as defined herein) of Fantazzle, its parent companies, subsidiaries, and affiliates; or any other person with access to non-public information regarding the operation of the Fantazzle Service. "Immediate Family Member" as used herein includes parents, siblings, spouses, children, or any other person permanently residing in the same household with such employee, officer, or director.
In order to use the Fantazzle Service, you must be the age of majority in your jurisdiction (18 years of age or older in most states, 19 or older in Nebraska or Alabama) and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms.
2.Use of the Fantazzle Service:
Fantazzle grants you permission to use the Fantazzle Service as set forth in these Terms, provided that (i) except as expressly permitted in these Terms, you do not download, reproduce, redistribute, retransmit, publish, resell, publicly display or otherwise commercially exploit any portion of the Fantazzle Site; (ii) you do not alter or modify any part of the Fantazzle Site other than as may be reasonably necessary to use the Fantazzle Site for its intended purposes; (iii) you do not engage in any of the prohibited uses described in these Terms (including Section 14 herein); and (iv) you will otherwise fully comply with these Terms and applicable law. The Fantazzle Site is controlled and offered by Fantazzle from its facilities in the United States. Fantazzle makes no representations that the Fantazzle Service is appropriate or available for use in all locations. You are solely responsible for compliance with local law.
3.Modifications to the Terms:
Fantazzle reserves the right, at our discretion, and without notice to you, to change these Terms. All changes shall be effective immediately. In the event of a material change, we will notify you via e-mail according to your account preferences. Please check these Terms periodically for changes. Your continued use of the Fantazzle Service after the posting of changes constitutes your binding acceptance of such changes.
4.Availability of Fantazzle Service:
Fantazzle may make changes to or discontinue any of the features or services made available through the Fantazzle Service at any time, and without notice. Fantazzle may also in its sole discretion and at any time discontinue providing access to the Fantazzle Site, or any part thereof, with or without notice.
5.1. Accuracy of Information. In order to access some features of the Fantazzle Site, you may have to create an account. You hereby represent and warrant that the information you provide to Fantazzle upon registration and, at all other times, will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times. Knowingly submitting incomplete or inaccurate information may result in immediate termination of your account and may be a violation of law.
5.2 Usage by Fantazzle. You acknowledge, consent and agree that Fantazzle may access, preserve and disclose your account information and User Submissions (as defined herein) or other information you have provided to Fantazzle if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to a claim that any User Submission or any other material you have provided violates the rights of third parties; (d) provide certain customized features of the Fantazzle Site to you, if any, or respond to your requests for customer service; or (e) protect the rights, property or personal safety of Fantazzle, its users and the public.
5.3 Password. If you register, you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you must immediately notify Fantazzle. YOU WILL BE LIABLE FOR THE LOSSES INCURRED BY FANTAZZLE OR OTHERS DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT.
6.Dealings with Merchants and Advertisers:
Your correspondence or business dealings with, or participation in promotions of, merchants and/or advertisers found on or through the Fantazzle Site are solely between you and such merchant and/or advertiser. YOU AGREE THAT FANTAZZLE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH MERCHANTS OR ADVERTISERS ON THE FANTAZZLE SITE.
7.Links and Third-Party Websites:
Fantazzle or third parties may provide links through the Fantazzle Site to other websites, including the content therein ("Third-Party Sites"). Our terms and policies do not govern your use of any online services other than the Fantazzle Site. You should review applicable terms and policies, including the privacy policies, of any Third-Party Sites. Fantazzle expressly disclaims responsibility for the accuracy, quality, legality, nature, availability or reliability of Third-Party Sites or content linked to THROUGH the Fantazzle SITE. ACCESS AND USE OF THIRD-PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD-PARTY SITES OR AVAILABLE THROUGH THIRD-PARTY SITES, IS SOLELY AT YOUR OWN RISK.
8.Ownership and Proprietary Rights:
As between the parties, the Fantazzle Service, including the content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, and all other elements of the Fantazzle Service that are provided by Fantazzle ("Fantazzle Materials") are owned and operated by Fantazzle. Fantazzle Materials do not include User Submissions (as defined below) or any Non-Fantazzle Content (as defined below). Except as expressly authorized by Fantazzle, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Fantazzle Materials.
9.1 General. The Fantazzle Service may now or in the future permit the submission and posting or linking of text, pictures, photos, audio and video recordings, or any other content submitted by you to the Fantazzle Site ("User Submissions"), and the hosting, sharing, and/or publishing of such User Submissions. Fantazzle may or may not use your User Submissions in its sole discretion. You understand that whether or not such User Submissions are published, Fantazzle does not guarantee any confidentiality with respect to any User Submissions.
9.2 Grant of Rights. By submitting User Submissions to Fantazzle, you hereby grant Fantazzle and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicenseable, and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit your User Submissions in connection with the Fantazzle Service and Fantazzle's (and its successor's) business, including without limitation for promoting and redistributing part or all of the Fantazzle Service (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered. You also hereby grant to each user of the Fantazzle Service a non-exclusive license to access your User Submissions through the Fantazzle Service, and to use, reproduce, distribute, prepare derivative works of, display, and perform such User Submissions as permitted by the functionality of the Fantazzle Service and these Terms. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions.
9.3 Your Representations and Warranties Regarding User Submissions. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to User Submissions to enable inclusion and use of User Submissions in the manner contemplated by Fantazzle and these Terms, and to grant the rights and license set forth in this Section 9, and (ii) your User Submissions, Fantazzle's use of such User Submissions pursuant to these Terms of Service, and Fantazzle's exercise of the license rights set forth in this Section 9, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) violate any applicable law or regulation.
10.4 Prohibited User Submissions. In connection with your User Submissions, you further agree that you will not publish, post, submit, transmit through or otherwise make available to the Fantazzle Site: (i) any material which violates or infringes any third-party proprietary right; (ii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, racist, threatening, harassing, harmful, hateful, racially or ethnically offensive, or otherwise objectionable or which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iii) any advertising or any solicitation with respect to any business, products or services; or (iv) any material that would be harmful to minors in any manner.
10.Non-Fantazzle Content Disclaimer:
You understand that when using the Fantazzle Site, you will be exposed to User Submissions and other third-party content (together, the "Non-Fantazzle Content") from a variety of sources, and that you may be exposed to Non-Fantazzle Content that is inaccurate, or otherwise objectionable. Fantazzle does not endorse any Non-Fantazzle Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will Fantazzle be liable in any way for or in connection with the Non-Fantazzle Content, including, but not limited to, for any inaccuracies, errors or omissions in any Non-Fantazzle Content, any intellectual property infringement with regard to any Non-Fantazzle Content, or for any loss or damage of any kind incurred as a result of the use of any Non-Fantazzle Content posted, emailed or otherwise displayed or transmitted through the Fantazzle Site.
11.Non-Monitoring of Users and Non-Fantazzle Content:
You understand that all Non-Fantazzle Content is the sole responsibility of the user who submitted such Content. This means that you, and not Fantazzle, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit or otherwise make available through the Fantazzle Site. Fantazzle does not control the Non-Fantazzle Content posted by users or otherwise made available by other persons and does not have any obligation to monitor such Non-Fantazzle Content for any purpose. If at any time, Fantazzle chooses, in its sole discretion, to monitor the Non-Fantazzle Content, Fantazzle nonetheless assumes no responsibility for the Non-Fantazzle Content, no obligation to modify or remove any inappropriate Non-Fantazzle Content, and no responsibility for the conduct of the person submitting any such Non-Fantazzle Content. You agree that you must evaluate and bear all risks associated with the use of any Non-Fantazzle Content, including any reliance on the accuracy, completeness, usefulness or legality of such Non-Fantazzle Content.
12.Removal of Non-Fantazzle Content:
Fantazzle and its designees shall have the right (but not the obligation) in their sole discretion to refuse to post or remove any Non-Fantazzle Content that is available through the Fantazzle Site in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.
13.Prohibited Uses of the Fantazzle Service:
13.1 As a condition of your use of the Fantazzle Service, you hereby represent and warrant that you will not use the Fantazzle Service for any purpose that is unlawful or prohibited (including, without limitation, the prohibitions in this Section 14) by these Terms.
13.2 You agree not to use the Fantazzle Service if you do not meet the eligibility requirements of Section 1.
13.3 You agree not to defame, harass, abuse, threaten, stalk or defraud users of the Fantazzle Service, or collect, or attempt to collect, personal information about users of the Fantazzle Service or third parties without their consent.
13.4 You agree not to intentionally interfere with or damage, impair or disable the operation of the Fantazzle Site or any user's enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code.
13.5 You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Fantazzle Site, features that prevent or restrict the use or copying of any part of the Fantazzle Site, or features that enforce limitations on the use of the Fantazzle Site.
13.6 You agree not to attempt to gain unauthorized access to the Fantazzle Site, or any part of it, other accounts, computer systems or networks connected to the Fantazzle Site, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Fantazzle Site or any activities conducted through the Fantazzle Site.
13.7 You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Fantazzle Site. You agree neither to modify the Fantazzle Site in any manner or form, nor to use modified versions of the Fantazzle Site, including (without limitation) for the purpose of obtaining unauthorized access to the Fantazzle Site.
13.8 You agree that you will not use any robot, spider, scraper, or other automated means to access the Fantazzle Site for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Fantazzle Site.
13.9 You agree not to utilize framing techniques to enclose any trademark, logo, or other Fantazzle Materials without our express written consent. You agree not to use any meta tags or any other "hidden text" utilizing Fantazzle's name or trademarks without our express written consent.
13.10 You agree not to deep-link to the Fantazzle Site and will promptly remove any links that Fantazzle finds objectionable in its sole discretion. You agree not to use any Fantazzle logos, graphics, or trademarks as part of the link without our express written consent.
13.11 You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the Fantazzle Site. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
13.12 You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Fantazzle Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
13.13 You agree not to modify, adapt, translate or create derivative works based upon the Fantazzle Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
13.14 You agree not to impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity.
You are solely responsible for your involvement with other users of the Fantazzle Service. Fantazzle reserves the right, but has no obligation to monitor disagreements between you and other users. FANTAZZLE DISCLAIMS ALL LIABILITY RELATED TO ANY USER DISAGREEMENT.
15.Terms of Service Violations; Termination:
15.1 Fantazzle. You agree that Fantazzle, in its sole discretion and for any or no reason, may terminate any account (or any part thereof) you may have through the Fantazzle Service or your use of the Fantazzle Site, and remove and discard all or any part of your account or any User Submission, at any time, with or without notice. Fantazzle does not tolerate unlawful, infringing, fraudulent or otherwise illegitimate activities through the Fantazzle Service and reserves the right to terminate access to the Fantazzle Site. You agree that your access to the Fantazzle Site or any account you may have, or portion thereof, may be terminated without prior notice, and you agree that Fantazzle shall not be liable to you or any third-party for any such termination. These remedies are in addition to any other remedies Fantazzle may have at law or in equity.
15.2 User. If you are dissatisfied with the Fantazzle Service, please send us an email. Your input is valuable to us. Your only remedy with respect to any dissatisfaction with (i) the Fantazzle Service, (ii) any term of these Terms, (iii) any policy or practice of Fantazzle in operating the Fantazzle Service, or (iv) any content or information transmitted through the Fantazzle Service, is to terminate these Terms and your account. You may terminate these Terms at any time by closing your account, discontinuing your use of any and all parts of the Fantazzle Site, and providing Fantazzle notice of termination on our contact us page.
16.Indemnification; Hold Harmless:
YOU AGREE TO HOLD HARMLESS Fantazzle, AND ITS PARENT, SUBSIDIARIES, AFFILIATES OR ANY RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP), AND THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF ANY OF THEM FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY'S FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE Fantazzle SERVICE; (II) YOUR USER SUBMISSIONS, INCLUDING Fantazzle'S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO YOUR USER SUBMISSIONS; (III) YOUR VIOLATION OF THESE TERMS; (IV) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER SUBMISSION INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (V) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; AND (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY Fantazzle. Fantazzle RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER WITHOUT THE PRIOR WRITTEN CONSENT OF Fantazzle. Fantazzle WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
17.Disclaimers; No Warranties:
17.1 Acknowledgement. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 17, THE TERM FANTAZZLE INCLUDES FANTAZZLE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, AFFILIATES AND SUBCONTRACTORS.
17.2 No Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FANTAZZLE DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FANTAZZLE OR THROUGH THE FANTAZZLE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
17.3 "As is" and "As available" and "With All Faults." YOU EXPRESSLY AGREE THAT THE USE OF THE FANTAZZLE SERVICE IS AT YOUR SOLE RISK. THE FANTAZZLE SERVICE, USER SUBMISSIONS, ANY NON-FANTAZZLE CONTENT, AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE FANTAZZLE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
17.4 Website Operation and Non-Fantazzle Content. FANTAZZLE DOES NOT WARRANT THAT THE FANTAZZLE MATERIALS, USER SUBMISSIONS, FANTAZZLE SERVICE, NON-FANTAZZLE CONTENT OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE FANTAZZLE SERVICE OR ANY THIRD-PARTY SITES WILL BE UNINTERRUPTED OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
17.5 Accuracy. FANTAZZLE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE FANTAZZLE SERVICE OR ANY THIRD-PARTY SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
17.6 Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE FANTAZZLE SERVICE (INCLUDING RSS FEEDS) OR ANY THIRD-PARTY SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
18.Limitation of Liability and Damages:
18.1 Limitation of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL FANTAZZLE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE FANTAZZLE MATERIALS, USER SUBMISSIONS AND NON-FANTAZZLE CONTENT ON THE FANTAZZLE SERVICE OR ANY THIRD-PARTY SITES, THE FANTAZZLE SERVICE ITSELF, OR ANY OTHER INTERACTIONS WITH FANTAZZLE, EVEN IF FANTAZZLE OR A FANTAZZLE AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18.2 Limitation of Damages. IN NO EVENT SHALL FANTAZZLE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE FANTAZZLE SERVICE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID FANTAZZLE FOR THE SERVICE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
18.3 Third-Party Sites. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD-PARTY SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN FANTAZZLE AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE FANTAZZLE SITE OR RECEIVED BY YOU THROUGH ANY THIRD-PARTY SITES.
19.Limitations by Applicable Law; Basis of the Bargain:
19.1 Limitations by Applicable Law. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS OF SERVICE APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
19.2 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT FANTAZZLE HAS OFFERED ITS SERVICES, SET ITS FEES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND FANTAZZLE, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND FANTAZZLE. YOU ACKNOWLEDGE AND AGREE THAT FANTAZZLE WOULD NOT BE ABLE TO PROVIDE THE FANTAZZLE SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
20.Digital Millennium Copyright Act Compliance:
If you are a copyright owner or an agent thereof, and believe that any User Submission or other Non-Fantazzle Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C ? 512(c)(3) for further detail):
(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) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Fantazzle Site are covered by a single notification, a representative list of such works from the Fantazzle Site;
(iii) Identification of 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 information reasonably sufficient to permit Fantazzle to locate the material;
(iv) Information reasonably sufficient to permit Fantazzle to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(v) 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, its agent, or the law; and
(vi) 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 infringed.
Fantazzle may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on the Fantazzle Site. If notice is by e-mail or mail, it will be provided to the email or regular mailing address provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty-four hours after email is sent, unless Fantazzle is notified that the email address is invalid and if through postal mail, three days after the date of mailing. You may provide Fantazzle with notices only by mail to the address indicated in subsection 21.11.
21.2 Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law.
21.3 Dispute Resolution
(a) Generally. If a dispute arises between Fantazzle and you, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Fantazzle agree that the parties will resolve any claim, dispute or controversy at law or equity in connection with, that arises out of or relates in any way whatsoever to these Terms or the Fantazzle Service (a "Claim") in accordance with one of the subsections below or as you and we otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
(b) Choice of Law; Forum. You agree that any Claim you may have against Fantazzle must be resolved exclusively by a court located in New York County, New York, except as otherwise agreed by the parties in writing or as described in Section 21.3(c). You agree to submit to the personal jurisdiction and venue of the courts located within New York County, New York for the purpose of litigating all such Claims.
(c) Arbitration Option. For any Claim (excluding claims for injunctive or other equitable relief) you may have against Fantazzle when the total amount of the award sought is less than $10,000, such dispute must be resolved through binding non-appearance-based arbitration (the "Dispute"). The Dispute must be resolved under the then current rules of the American Arbitration Association by one (1) arbitrator appointed in accordance with such rules. The arbitrator may grant injunctive or other relief in the Dispute. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, they will not request and the arbitrator shall have no authority to award, punitive or exemplary damages against either party.
(d) Improperly Filed Claims. Any Claim you bring against Fantazzle must be resolved in accordance with this Section 21.3 (Dispute Resolution). Any Claim asserted or filed contrary to this Section 21.3 (Dispute Resolution) shall be considered improperly filed. If you file a Claim contrary to this Section 21.3 (Dispute Resolution), Fantazzle shall be entitled to recover its attorneys' fees and costs incurred in defending against the Claim to the maximum extent permitted by law, provided that Fantazzle has notified you in writing of the improperly filed claim, and you have failed to withdraw the Claim within five business days of your receipt of such notice.
21.4 Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Fantazzle to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
21.5 Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
21.6 Assignment. The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Fantazzle without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
21.7 No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Fantazzle as a result of these Terms or use of the Fantazzle Service. You further acknowledge that by submitting User Submissions or other Non-Fantazzle Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Fantazzle other than pursuant to these Terms.
21.8 Survival. Sections 9, 16, 17, 18, 19, 20, and 21, will survive the termination of these Terms or your account, whether by you or by Fantazzle.
21.9 Headings. The heading references herein are for convenience purposes only, and shall not be deemed to limit or affect any of the provisions hereof.
21.10 Limit on Statute of Limitations. YOU AGREE THAT ANY CLAIM AS DEFINED IN SECTION 25.3(a) ABOVE MUST BE FILED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR IT WILL BE PERMANENTLY BARRED.
21.11 Notice to California Users. As required by California Civil Code Section 1789.3, this notice is to advise you of the following: a) The Fantazzle Service is a service provided by Fantazzle, Inc. Inc.; b) The fees associated with the Fantazzle Service may change at any time; c) If you have a complaint regarding the Fantazzle Service or desire further information on use of the Fantazzle Service, contact us at any time. For complaints, you may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 "R" Street, Sacramento, California 95814 or by telephone at 1-916-445-1254.
Last updated August 1st, 2008
Tags: Fantasy Sports Games | Fantasy Games | Fantasy Terms Of Service