The Fairs App Terms and Conditions
Last Update 3/6/2016
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. THIS AGREEMENT IS MADE BY AND BETWEEN YOU (OR, IF YOU ARE PURCHASING SERVICES ON BEHALF OF YOUR COMPANY OR ORGANIZATION, YOUR COMPANY OR ORGANIZATION) (“YOU” OR “SUBSCRIBER”) AND THE FAIRS APP, LLC. (“FA”). BY CLICKING “I ACCEPT” OR ACCESSING OR USING ANY APPLICATION (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE PURCHASING SERVICES ON BEHALF OF YOUR COMPANY OR ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY OR ORGANIZATION TO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE ANY APPLICATION.
In consideration of the mutual promises and covenants contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the parties agree as follows:
- “Application” means any application owned by FA whether or not bearing the FA name.
- “Authorized Users” means persons affiliated with Subscriber as employees, consultants, students, onsite contractors or temporary employees to whom Subscriber grants access to the Services.
- “End Users” means persons who are not a party to this Agreement that are accessing the Application pursuant to Subscriber’s use of the Services.
- “Fair” means the compilation of Subscriber Data entered by Subscriber for a single event scheduled on a specified date and time.
- “Published Fair” means a Fair created by Subscriber using the Services that has been purchased and published for use by End Users.
- “Pricing Page” means the invoice prompt contained within the Application outlining current FA costs for publishing a Fair.
- “Registration Form” means the online web form contained on https://thefairsapp.com/sign_up and used by Subscriber to create a FA account.
- “Services” means the services to be provided by FA pursuant to this Agreement, including those services to be provided upon Subscriber’s purchase of a Published Fair. Services include, but are not limited to: access to the Fair Production Tool, data hosting on the FA platform, search capabilities, online payment processing through a third party provider, and customer support.
- “Subscriber” means the individual, company, organization, business entity or group purchasing the Services and Authorized Users accessing an Application pursuant to this Agreement.
- “Subscriber Data” means any and all information entered or inputted by Subscriber and its Authorized Users in the course of accessing and utilizing the Services.
- Fees. As consideration for the rights granted and Services provided by FA pursuant to this Agreement, the following is the fee arrangement: Subscriber may have access to www.thefairsapp.com and may utilize certain Services free of charge. Subscriber’s duty to pay arises at the point Subscriber chooses to publish a Fair. Specifically, Subscriber shall pay FA the applicable fees for each Fair as set forth on the Pricing Page, prior to FA publishing each Fair. Unpaid fees for any Fair will result in such Fair remaining unpublished until payment is received in full. (FA in its sole discretion reserves the right to remove unpublished Subscriber Data to the extent such Data remains unpublished for an unreasonable time and Subscriber is prohibited from otherwise distributing unpublished Data to End Users). Payment shall be in the currency designated in the Application and in accordance with the terms set forth therein. FA reserves the right to require online payment and use a third party vendor to collect payment information and process such payment.
- Taxes. Any and all amounts payable hereunder are exclusive of any goods and services, value added, sales, use, excise or other similar taxes (collectively, “Taxes”). Subscriber is solely responsible for paying any applicable Taxes. If FA has the legal obligation to collect any Taxes, Subscriber shall reimburse FA upon invoice by FA. This section 3(b) shall not apply to Subscribers that hold tax exempt status under applicable law. Subscriber must provide proof of such exempt status at the time an invoice for tax would otherwise be issued.
- Refund Policy. Refunds or credits may be granted only at the discretion of The Fairs App. If you would like to request a refund or a credit, please contact firstname.lastname@example.org.
- License Grant. Subject to Subscriber’s compliance with the terms and conditions of this Agreement, FA grants Subscriber a non-exclusive, non-transferable, non-sublicensable, limited license to use the Application and Services solely for the purpose contemplated by the parties in making this Agreement.
- Restrictions. Except as expressly permitted under this Agreement, Subscriber shall not itself or permit any other party to: (1) translate, download, reproduce, modify, adapt or create derivative works based upon any Application or Services; (2) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework for any Application or Services; (3) access any Application or Services for purposes of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to any Application or Services; (4) use any Application or Services in any way that does not comply with applicable laws and regulations; (5) use any Application or Materials in any way that could damage the reputation of FA or the goodwill or other rights associated with any Application or Services; (6) modify or remove any copyright or other proprietary notices on the Application or Services, or (7) use any part of the Application or Services in a manner that violates FA’s Broadcast Standards and Practices. FA has the right to remove from the platform any and all Subscriber Data that violates the terms of this Agreement without notice to Subscriber.
- Usage Statistics. FA may collect and analyze anonymous usage statistics (e.g., number of records and page views), but not the contents of any Subscriber Data, relating to use of Applications for purposes of benchmarking, troubleshooting or improving the performance and functionality of Applications.
- Browsers Supported. FA supports only the most recent public release and the immediately preceding version of Firefox, Chrome, Internet Explorer, and Safari.
- New Versions. New versions of Applications released by FA to its customers at large will be made available to Subscriber free of charge; provided, however, that custom configurations may make automated upgrade impossible and may require the engagement of Additional Services from FA at Subscriber’s expense to migrate to new versions.
Intellectual Property Rights and Confidentiality
Subscriber acknowledges and agrees that FA and its licensors own all rights, title and interest (including, but not limited to, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Application and Services. FA acknowledges and agrees that Subscriber and its licensors own all rights, title and interest (including, but not limited to, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the contents of Subscriber Data entered by Subscriber and its Authorized Users in its access and use of the Application. To the extent either party has access to the confidential information of any other party, each party agrees to treat such information with at least the same degree of care it would use to protect its own confidential information. Any disclosure (mandatory, inadvertent or otherwise) of confidential information must be immediately disclosed to the party owning such information.
Subscriber’s rights under this Agreement will automatically terminate without notice from FA if Subscriber fails to comply with its terms. In case of such termination, Subscriber must cease all use of the FA Services and FA may immediately revoke your access to the FA Services without notice to Subscriber and without refund of any purchases. FA’s failure to insist upon or enforce Subscriber’s strict compliance with this Agreement will not constitute a waiver of any of FA’s rights.
Representations and Warranties
FA and Subscriber each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this Agreement; (b) the execution and performance of this Agreement has been authorized by all necessary corporate or institutional action; (c) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of the party or conflict with any condition of any contract to which it is a party; (d) no action by any governmental organization is necessary to make this Agreement valid and binding upon the party; and (e) it possesses all governmental approvals and licenses necessary to perform its obligations under this Agreement.
- Subscriber Indemnification. Subscriber agrees that FA shall have no liability and Subscriber shall indemnify, defend and hold FA harmless against any Losses arising from any: (1) infringement of a third party’s copyright attributable to any Subscriber Data provided by Subscriber or any Authorized User or (2) Subscriber’s violation of the FA Broadcast Standards and Practices in accessing and utilizing the Services.
- Procedure. The indemnified party shall: (1) give the indemnifying party prompt written notice of any Loss or threat of Loss; (2) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any Loss or threat of Loss; and (3) give the indemnifying party sole and complete control over the defense or settlement of any Loss or threat of Loss; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.
Disclaimer of Warranties
THE APPLICATION AND SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” FA, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL GUARANTEES, WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 7), EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION: (A) CONSUMER GUARANTEES RELATING TO, AND IMPLIED WARRANTIES OF, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND DUE CARE AND SKILL; AND (B) ANY CONSUMER GUARANTEE AND ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE APPLICATION OR SERVICES, OR THAT SUBSCRIBER’S USE OF THE APPLICATION OR SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET SUBSCRIBER’S REQUIREMENTS.
Limitation of Damages
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS (INCLUDING LOSS OF DATA) OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE APPLICATION OR SERVICES, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
FA undertakes no responsibility for, and disclaims all liability arising from, any defects or failures in any communication lines, the internet or internet service provider, Subscriber’s computer hardware or software, mobile phone hardware, software or service, or any other product or service used to access the application. Subscriber acknowledges and agrees that FA is not responsible for the accuracy of any information or data contained in the application, and FA shall not be liable for any losses or damages resulting from reliance on any such information or data under any circumstances.
Limitation of Liability.
EXCEPT FOR A PARTY’S DUTY TO INDEMNIFY THE OTHER AS DESCRIBED ABOVE AND IN ADDITION TO SUBSCRIBER’S DUTY TO PAY ALL FEES DUE, THE TOTAL LIABILITY OF EITHER PARTY FOR ANY CLAIM UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID BY SUBSCRIBER TO FA UNDER THIS AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE.
- Notice. Notices given under this Agreement shall be in writing and may be delivered by hand or sent by internationally-recognized courier service, e-mail or fax to the physical address, e-mail address or fax number for each party set forth in the most current Registration Form, or through notifications posted by FA onto the Website or Application itself. Any such notice shall be deemed successfully given: (1) if delivered personally, at the time of delivery; (2) in the case of an internationally-recognized courier service, the date of delivery confirmation; or (3) in the case of e-mail, fax, or web post, at the time of successful transmission.
- Assignment. Subscriber may not assign this Agreement, or sublicense, assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the prior written consent of FA; provided, however, that no consent shall be required with respect to an assignment as part of any transfer by merger, acquisition, stock transfer or other consolidation of a Subscriber with another entity, or sale of all or substantially all of Subscriber’s assets. The terms of this Agreement shall be binding upon Subscriber with respect to an assignment by FA made pursuant to a transfer, merger, acquisition, stock transfer or other consolidation of FA with another entity, or sale of all or substantially all of FA’s assets. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Amendment. FA may, in its sole discretion, change the terms of this Agreement without notice to Subscriber by posting the revised terms on the FA Application. SUBSCRIBER’S CONTINUED USE OF THE SERVICES AFTER THE EFFECTIVE DATE OF THE REVISED AGREEMENT SHALL CONSTITUTE AN ACCEPTANCE OF THOSE TERMS.
- Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
- Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Colorado, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
- Dispute Resolution. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in the United States District Court for the District of Colorado in Fort Collins or, if federal jurisdiction is not available, in any state court of competent jurisdiction in Fort Collins, Colorado. Each party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.
- Non-Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
- Survival. The provisions of this Agreement that should by their nature survive termination of this Agreement shall survive such termination, including, but not limited to, sections, 3(b), 4(b), 4(c), 5, 7, 8, 9, 10 and 11.