Table of Contents
This Agreement constitutes a binding legal agreement between you as a user of the Platform and Fandex as the provider of the Platform. Your access to and use of the Platform requires your compliance with this Agreement and the Terms.
ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND Fandex AGREE THAT DISPUTES BETWEEN YOU AND Fandex WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND Fandex WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Subject to your compliance with the Terms, you may download and install one (1) copy of the Application to your supported device, as well as access and use the Platform, solely for your own personal and non-commercial use.
You may not:
1. copy, modify, or distribute the Application or any other element of the Platform for any purpose;
2. transfer, sublicense, lease, lend, rent, or otherwise distribute any aspect or element of the Platform to anyone else;
3. reverse-engineer, decompile, or create derivative works of any aspect or element of the Platform;
4. make the functionality of the Platform available to multiple users through any means;
5. use multiple accounts for any single individual user; or
6. use the Platform in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Terms.
No other licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Fandex or its licensors.
In order to access certain features of the Platform, you must create a file with us (an “Account”). If you register, you will be asked to choose a username and a password. You agree not to disclose your password to anyone else and that you will be solely responsible for any activities or actions taken under your Account, whether or not authorized by you. Please notify us immediately of any unauthorized use of your password or your Account. We are not liable for any loss or damage from your failure to comply with these requirements.
You agree that the information you provide us will be true, accurate, current, and complete. By creating an Account, you consent to the use of: (i) electronic means to complete the Terms and to provide you with any notices given pursuant to the Terms; and (ii) electronic records to store information related to the Terms or your use of the Platform.
You must be at least eighteen (18) years of age to open an Account, participate in the Trading Market, or be eligible to receive profits generated via the Platform. In jurisdictions, territories, and locations where the minimum age for permissible use of the Platform is greater than eighteen (18) years old, you must meet the age requirement in your local jurisdiction or territory.
You may establish only one Account per person to participate in the Platform. In the event Fandex discovers that you have opened more than one Account per person, in addition to any other rights that Fandex may have, Fandex reserves the right to suspend or terminate any or all of your Accounts and terminate, withhold, or revoke any benefits or profits associated with any such Accounts. You are responsible for maintaining the confidentiality of your login names and passwords and you accept responsibility for all activities, charges, and damages that occur under your Account. It shall be a violation of these Terms to allow any other person to use your Account. If you have reason to believe that someone is using your Account without your permission, you should contact Fandex immediately. Fandex will not be responsible for any loss or damage resulting from your failure to notify Fandex of any such unauthorized use. If Fandex requests registration information from you, you must provide Fandex with accurate and complete information and must update the information when it changes.
Professional athletes may not execute any transactions on the Trading Market for the sport in which such athletes compete professionally while the season of such sport is ongoing.
REGISTERING AN ACCOUNT, USE OF THE PLATFORM, OR PARTICIPATION IN A TRADING MARKET FOR WHICH YOU ARE NOT ELIGIBLE WILL PLACE YOU IN BREACH OF THIS AGREEMENT AND THE APPLICABLE RULES AND RESULT IN THE FORFEITURE OF ANY PROFITS EARNED AND SUBJECT YOU TO CIVIL AND POTENTIAL CRIMINAL LIABILITY.
Our goal is to make the Platform as useful and rewarding for you as possible. To do that, we need to collect and process information from you when you use the Platform.
As part of providing you the Platform we may need to provide you with certain infrequent service communications and Push Messages, such as non-advertisement service announcements and administrative messages (“Service Communications”). These Service Communications are considered part of the Services and your Account, and you will not be able to opt-out from receiving them.
5. TRADING MARKET RULES AND MANAGEMENT
Fandex reserves the right to modify the terms of trades on or participation in the Trading Market or the terms of any promotion offered on the Platform at any time with or without notice to you, including without limitation any metrics such as win totals, statistical thresholds, or team compositions utilized by or integrated into the Trade Market. We make no guarantee that the information on the Platform is up to date, accurate, or complete and you should not rely on it for any decision or to take any action. By participating in the Trade Market, you agree to waive any right to claim any ambiguity or error in the rules of the Trade Market itself and agree to be bound by these Terms and by all decisions of Fandex, which are binding and final. In the event of any unanticipated occurrence that was not fully addressed by the applicable rules of the Trade Market or by these Terms, Fandex may modify such rules to address such occurrence. Fandex conveys the information available on the Platform without responsibility for accuracy and you agree that errors contained in such information shall not be made the basis for any claim, demand, or cause of action.
Competitions that end in a tie will count as one half (1/2) of a win toward the respective teams’ win totals. All decisions by Fandex in computing points and win totals, creating awards, or in conducting any and all other aspects of the Trade Market are made by Fandex in its sole discretion, are subject to change from time to time by Fandex in its sole discretion, and are not subject to appeals. Fandex reserves the right to require you from time to time to sell a portion of your holdings in the Trade Market at Fandex’s discretion in some events of shorting. Fandex will communicate with you via the Platform in the event that Fandex elects to exercise the foregoing right.
The use of the Platform is currently made available to users free of charge; however, while it is not currently intended, we reserve the right to charge a fee for using the Platform at any time. If we begin charging a fee for your continued access to the Platform, we will give you at least 15 days prior notice so you can opt out of the Platform.
6. USE OF PLATFORM
You agree not to:
1. submit material that violates anyone else's proprietary rights, including privacy and publicity rights, or can be considered spam or junk mail;
2. knowingly publish false or inaccurate information, including without limitation falsifying personal information required to join the Platform, participate in the Trading Market, or claim profits generated by the foregoing;
3. submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate;
4. post advertisements, "pyramid schemes," chain letters or other solicitations; or
5. engage in any type of financial fraud, including without limitation unauthorized use of credit instruments to enter the Trading Market or claim profits from participation in the Trading Market;
6. collude with any other individual or engage in any type of syndicate play;
7. use a single Account to participate in the Platform on behalf of multiple users or otherwise collaborating with others to participate in the Platform;
8. use automated means, including without limitation scripts and third-party tools, to interact with the Platform in any way;
9. using automated means, including without limitation harvesting bots, robots, parser, spiders, or screen scrapers, to obtain, collect, or access any information on the Platform or of any user for any purpose.
10. tamper with the administration of the Trading Market or any other aspect of the Platform or trying to in any way tamper with the computer programs or any security measure associated with the Trading Market or the Platform;
11. abuse any element of the Platform in any way.
We reserve the right to reclaim Accounts on behalf of users that own a legal claim or trademark on the user’s name.
It is Fandex's policy to terminate your access to the Platform if you infringe the copyright rights of others, upon receipt of proper notification to Fandex by the copyright owner or the copyright owner's legal agent.
7. SUSPENSION AND TERMINATION
You may terminate your Account at any time and for any reason by deleting your account via the Application or the Website.
Upon any termination by you, your Account may no longer be accessible. Any termination request will be handled within 30 days of receipt of such a request by Fandex. Any suspension, termination, or cancellation will not affect your obligations to Fandex under the Terms (including but not limited to ownership, indemnification, and limitation of liability), which by their sense and context are intended to survive such suspension, termination, or cancellation.
We may immediately terminate or suspend your access to the Platform and remove any material generated by you or associated with your Account from the Platform or our servers in the event that you breach the Terms, at our sole discretion and without prior notice to you. We also reserve the right to terminate the Platform or your access at any time and for any reason, including but not limited to the need to conduct maintenance or if we discontinue any portion of the Platform. Upon termination, all licenses and other rights granted to you under the Terms will immediately cease. We will not be liable to you or any other person for termination of the Services or termination of your use of the Services.
Upon any termination or suspension, any information that you have submitted to the Platform may no longer be accessed by you. Furthermore, we will have no obligation to maintain any information stored in our database related to your Account or to forward any information to you or any other person.
The Platform is protected by copyright, trademark, and other laws of the United States and foreign countries. Fandex and its licensors exclusively own all right, title, and interest in and to the Platform, including all associated intellectual property rights. You may not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights or notices incorporated into or accompanying the Services or Application. You may not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, or otherwise exploit any element of the Platform, except as expressly permitted in the Terms. Any feedback, comments, and suggestions you may provide for improvements to the Platform (“Feedback”) will be the sole and exclusive property of Fandex and you hereby irrevocably assign to Fandex all of your right, title, and interest in and to all Feedback.
THIRD PARTY SERVICES, WEBSITES, OR RESOURCES
The Platform may contain content or services provided by third parties and/or links to third party services, websites, or resources. We do not endorse such websites, services, or resources or the content, products, or services on or available from such websites, services, or resources, and we are not responsible or liable for the availability, accuracy, functionality, adherence to third party policies or Fandex policies, or legality of such websites, services, and resources. You are solely responsible for and assume all risk arising from your use of any such websites, services, or resources.
Your use of the Platform is at your sole discretion and risk. We will not be responsible for any harm to your computer or mobile device, loss of data, personal injury, property damage, or other harm that results from your use of the Platform. We do not make any warranties (i) regarding the security, accuracy, reliability, timeliness, and performance of any element of the Platform; or (ii) that the Platform will be error-free or that any errors will be corrected. Fandex will not be liable, and you are solely responsible, for any access or usage charges charged by your wireless carrier related to any device that you use to access or use the Platform.
We are not responsible for;
1. incorrect or inaccurate transcription of information;
2. problems related to any of the equipment or software associated with the Platform or used by you;
3. human error outside our reasonable control;
4. any interruption, deletion, omission, degradation, defect, or line failure of any telephone network or electronic transmission; or
5. problems relating to inability to access the Platform.
We disclaim all liability for any technical failures or errors of, on, or connected to the Platform. We will use reasonable efforts to correct any such failures swiftly upon discovering them or being informed about them.
The Platform, and all materials, information, products, and services included therein, are provided on an “AS IS” and “AS AVAILABLE” basis without warranties of any kind.
WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, RELATING IN ANY WAY TO THE PLATFORM, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
No advice or information, whether oral or written, obtained by you from Fandex will create any warranty not expressly stated in this Agreement.
You agree to defend, indemnify, and hold Fandex and its officers, directors, employees, and agents harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, arising out of or in any way connected with (i) your access to or use of the Platform; (ii) your violation of the Terms; or (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property, or privacy right. Participants in the Trading Market assume all liability for any injury or damages caused or claimed to be caused by his or her participation in the Trading Market and/or the acceptance and/or use of any profit generated by such participation, and release Fandex and each of its parents, subsidiaries, affiliates, agents, assigns, advertising and promotional agencies and their respective officers, directors, and employees from any such liability.
11. LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT Fandex LIMITS ITS LIABILITY IN CONNECTION WITH YOUR USE OF THE WEBSITE AS SET FORTH BELOW: UNDER NO CIRCUMSTANCES SHALL Fandex, ITS PARENTS, SUBSIDIARIES, OR AFFILIATES, OR THE DIRECTORS, OFFICERS, EMPLOYEES, OR OTHER REPRESENTATIVES OF EACH OF THEM (COLLECTIVELY, THE “Fandex ENTITIES AND INDIVIDUALS”), BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE, OR CONSEQUENTIAL DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (1) THE PLATFORM OR YOUR UPLOAD INFORMATION; (2) THE USE OF, INABILITY TO USE, OR PERFORMANCE OF THE PLATFORM; (3) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY Fandex OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE PLATFORM;(4) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OWNERS; OR (5) ANY ERRORS OR OMISSIONS IN THE PLATFORM’S TECHNICAL OPERATION, EVEN IF FORESEEABLE OR EVEN IF THE Fandex ENTITIES AND INDIVIDUALS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR STRICT LIABILITY TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE WEBSITE). IN NO EVENT WILL THE Fandex ENTITIES AND INDIVIDUALS BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE COMPANY ENTITIES AND INDIVIDUALS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED ONE HUNDRED DOLLARS ($100). THE Fandex ENTITIES AND INDIVIDUALS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO ANY USER'S COMPUTER, HARDWARE, COMPUTER SOFTWARE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE, OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION. YOUR ACCESS TO AND USE OF THE PLATFORM IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE PLATFORM, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE PLATFORM. YOU RECOGNIZE AND CONFIRM THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES, OR INJURIES THAT ARISE OUT OF Fandex’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY ASPECT OF THE PLATFORM OR OTHER PROPERTY OWNED OR CONTROLLED BY Fandex AND/OR ITS PARENTS, SUBSIDIARIES, AND/OR AFFILIATES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION, OR EXPLOITATION OF THE PLATFORM OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO. BY ACCESSING THE PLATFORM, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED. ACCORDINGLY, YOU AGREE TO WAIVE THE BENEFIT OF ANY LAW, INCLUDING, TO THE EXTENT APPLICABLE, CALIFORNIA CIVIL CODE SECTION 1542 (OR ANY ANALOGOUS LAW OF ANY OTHER STATE OR PROVINCE), THAT OTHERWISE MIGHT LIMIT YOUR WAIVER OF SUCH CLAIMS.
ARBITRATION, CLASS-ACTION WAIVER, AND JURY WAIVER
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU AND Fandex TO AGREE TO RESOLVE ALL DISPUTES BETWEEN YOU AND Fandex THROUGH BINDING INDIVIDUAL ARBITRATION.
You and Fandex agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to these Terms or the use of the Services that cannot be resolved in small claims court will be resolved by binding arbitration on an individual basis, except that you and Fandex are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. To be clear: The phrase “all claims and disputes” also includes claims and disputes that arose between us before the effective date of these Terms.
The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA Consumer Arbitration Rules, available here (link: https://www.adr.org/ActiveRules) as of the date of these Terms, or by calling the AAA at 1-800-778-7879. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000.00 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000.00 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and Fandex. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and the Terms. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Fandex.
YOU AND Fandex WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Fandex are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Fandex over whether to vacate or enforce an arbitration award, YOU AND Fandex WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth below.
Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
You may opt out of this arbitration agreement. If you do so, neither you nor Fandex can force the other to arbitrate. To opt out, you must notify Fandex in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, your Fandex username and the email address you used to set up your Fandex account (if you have one), and an unequivocal statement that you want to opt out of this arbitration agreement.
This arbitration agreement will survive the termination of your relationship with Fandex.
12. EXCLUSIVE VENUE
To the extent that these Terms allow you or Fandex to initiate litigation in a court, both you and Fandex agree that all claims and disputes (whether contract, tort, or otherwise), including statutory claims and disputes, arising out of or relating to the Terms or the use of the Services will be litigated exclusively in the federal or state courts located in the city of Durham, Durham County, North Carolina, United States, and you consent to personal jurisdiction and waive any objection as to inconvenient forum.
The Terms shall be governed by North Carolina law, without respect to its conflict of laws principles.
The Terms are the entire agreement between you and Fandex concerning the Platform, and supersede all prior or contemporaneous communications between you and Fandex with respect to the Platform. If any provision of the Terms is deemed invalid by a court of competent jurisdiction, the remaining provisions will remain in full force and effect. No waiver of any term of the Terms shall be deemed a further or continuing waiver of such term or any other term, and Fandex’s failure to assert any right or provision under the Terms shall not constitute a waiver of such right or provision.
We reserve the right, in our sole discretion, to modify, discontinue, or terminate any or all of the Platform at any time, or modify the Terms without notice. All modified terms and conditions will be immediately effective as of the date the modified Terms are posted on the Fandex website and will apply to all Accounts and customers enrolled in the Platform. If any modified terms and conditions are not acceptable to you, your sole remedy is to cease using the Services, and if applicable, terminate or cancel your Account. By continuing to access or use the Platform after we have posted the new terms and conditions on the site, you agree to be bound by such changes. Users will be notified by email or in the Application or through other available means if the Platform is suspended or cancelled. Notice of cancellation will also appear on the Fandex website.
If you have any questions about the Terms, please contact us at [email protected]