Terms of Service - FanCompass, Inc.
Last updated February 1, 2023
By registering an account with FanCompass, you are agreeing to be bound by the following terms and conditions (the “Terms of Service”). These Terms of Service establish the terms and conditions by which FanCompass will perform certain Services and by which you (“CLIENT”) will pay FanCompass for the performance of such Services. FanCompass reserves the right to update and change the Terms of Service by posting updates and changes to the FanCompass website. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you, and if you do not accept such updates and changes, you must cease using the services and promptly notify FanCompass.
You must read and agree with and accept all of the terms and conditions contained or expressly referenced in these Terms of Service.
1.0 SERVICES
FanCompass shall perform the Services for CLIENT. “Services” means the items described in sub-Sections 1.1 through 1.7 herein and in the Pricing Summary associated with CLIENT’s account.
CLIENT shall provide such information and input requested by FanCompass to enable FanCompass to perform its obligations, and FanCompass’s obligations are conditioned upon its timely receipt of such items. The parties may execute additional addenda for work beyond that specified herein, provided that such addenda shall be signed by both parties and be governed by these Terms of Service.
1.1 PRODUCT DEPLOYMENT
FanCompass will develop single Platforms, each to be administered through their own centralized database to publish campaign activations. CLIENT shall have the ability to directly access each Platform, copy or download information relating to the campaigns and its fan base, including the Data, at any time.
1.2 INSTALLATION & SETUP
FanCompass shall perform project management and implementation of the Platform setup. FanCompass shall recommend, design, and prepare up to four (4) launch activations, provided that CLIENT approves final content within the 30 day installation period. Such final content may include brand design style guidelines, graphic assets, and images necessary to build the Platform template and activations. CLIENT is solely responsible for any and all content, rules, promotion and prize assets, and fulfillment for all activations executed on the Platform.
1.3 ADMINISTRATION
FanCompass will host a web-based administrative interface through which CLIENT will have the ability to administer the Platform
1.4 SERVICE MANAGEMENT
Product Availability
FanCompass guarantees 99% availability of the service over a trailing 365 day period.Service Availability
FanCompass will provide:
Telephone Support: 6:00 A.M. to 6:00 P.M. Monday – Friday, USA Pacific Time
Email / Slack Support: Monitored 24/7/365 with response within 24 hours
CLIENT’s sole remedy for any availability failure under this Section 1.4 shall be a pro-rated refund of amounts paid for such unavailable product or service.
1.5 SPONSORSHIP ACTIVATIONS
FanCompass will assist CLIENT in execution of sponsored activations on the Platform.
1.6 COMMERCE ACTIVATION TOOL (Optional, Fee-Based)
CLIENT may agree to purchase the Commerce activation tool (“Commerce”) for an additional fee. If CLIENT opts to purchase the FanCompass sponsored activation program, FanCompass will, in concert with CLIENT, execute activations and manage the program. To activate Commerce, CLIENT must set up an official account with FanCompass’s payment processing vendor (for reference, current vendor is Stripe as of August 1, 2021) for invoicing, reporting and reconciliation.
1.7 FC CORE+ (Optional, Fee-Based)
CLIENT may agree to purchase the FC CORE+ full service plan (“FC CORE+”) for an additional fee. With FC CORE+, FanCompass will provide ongoing account management, including unlimited access to best practices, activation libraries, activations setup with graphic design support, performance reporting, platform training, and unlimited digital media valuations for CLIENT using proprietary Nielsen Sports Digital Valuation Calculator.
2.0 GENERAL CONDITIONS
2.1 Term
The term of these Terms of Service (the “TERM”) shall commence upon date CLIENT first accepts the Terms of Service and continues for twelve (12) months thereafter. The Terms of Service will automatically renew with no action required by either party for subsequent twelve (12) month terms unless sooner terminated per the termination provisions set forth in Section 2.3. CLIENT may cancel specific Service(s) or order new Services at any time by giving Notice to FanCompass. Such changes will take effect upon the next billing cycle.
2.2 Payment Terms
CLIENT shall pay to FanCompass all fees specified in the selected Pricing Plan specified in the Pricing Summary associated with CLIENT’s account. In the event the parties have executed additional addenda for work beyond that specified herein, CLIENT shall pay to FanCompass all fees specified in the executed addenda. During the Term, FanCompass agrees to send CLIENT billing statements. CLIENT is responsible for providing complete and accurate billing and contact information to FanCompass and notifying FanCompass of any changes to such information. FanCompass requires receipt of first payment prior to launch of CLIENT Platform. CLIENT's term starts on the Purchase Date, not the date of launch of CLIENT Platform. All payments after the first payment are due on the first day of CLIENT's subsequent billing period.
In the event CLIENT sets up an official account for Commerce, CLIENT shall incur the following fees on all transactions processed through Commerce: 10% transaction fee plus payment processing fee equal to 2.9% + 30¢ per transaction (payment processing fees subject to change based on provider; for reference, as of August 1 2021, FanCompass is integrated with Stripe for payment processing). Fees are automatically processed at time of transaction.
If any charge owing by CLIENT under this or any other agreement for services is 30 days or more overdue, FanCompass may, without limiting its other rights and remedies, (1) charge a finance charge at the rate of 2% per month of the total outstanding balance or the highest amount allowed by law, whichever is lower, owed, and (2) suspend Services until such amounts are paid in full and assess a one-time reactivation fee of $500 for each occurrence.
2.3 Termination
(a) The Parties may terminate the Terms of Service if one of the following applies:
(i) For Cause. In the event of a breach of or default under these Terms of Service by either Party, the non-defaulting Party may terminate these Terms of Service by giving the defaulting Party written notice of the breach or default and the non-defaulting Party’s intention to terminate. Where the breach is capable of cure, the Terms of Service shall automatically terminate thirty (30) days after the date of the notice unless the defaulting Party cures the breach or default in all material respects before the expiration of the thirty (30) day period. If the breach is incapable of cure, the Terms of Service shall automatically terminate on the date of the notice.
(ii) Insolvency. In the event that a Party goes into liquidation (except for the purposes of amalgamation or reconstruction) or receivership including administrative receivership or an administrator appointed or the Party makes any arrangement or composition in satisfaction of its debts with all of its creditors, the other Party may terminate these Terms of Service immediately upon written notice.
(iii) Without Cause. CLIENT shall have the right to terminate at their discretion, taking effect upon the subsequent billing cycle.
(b) In the event of termination for any cause, all sums properly owed to FanCompass for Services provided until the effective date of termination, will be paid by CLIENT within thirty (30) days of termination.
2.4 Indemnification and Insurance
(a) Indemnification
(i) CLIENT promises to indemnify, defend and hold FanCompass (and all officers, directors, employees, agents and affiliates thereof) harmless from and against any and all claims, demands, actions, losses, damages, assessments, charges, liabilities, costs and expenses (including without limitation, interest, penalties, attorney's fees and disbursements) which may at any time be suffered or incurred by, or be asserted against, any and all of them, directly or indirectly, on account of or in connection with CLIENT's default under any provision herein, breach of any warranty or representation herein or failure in any way to perform any obligation hereunder.
(ii) The foregoing indemnity is in addition to any rights the parties may have under these Terms of Service.
(b) Insurance
Each party shall have and maintain, during the term hereof, liability insurance with appropriate policy limits and coverage reasonably adequate to cover all perils customarily protected against in performing its obligations hereunder. Each party shall provide the other party with a certificate of insurance on request.
2.5 Notices
Notices required to be given hereunder shall be given in writing and may be sent by mail, email, express mail service, or personally delivered to the respective addresses of CLIENT and FanCompass as set forth on the last page of this Agreement (or such other address as a Party may designate from time to time by written notice to the other Party). Notwithstanding the above, CLIENT agrees that FanCompass may give CLIENT notice of updates and changes to these Terms of Service solely by posting such changes on FanCompass’s website in a manner accessible to CLIENT.
2.6 Governing Law and Jurisdiction
These Terms of Service shall in all respects be governed by and construed in accordance with the laws of the State of California. All disputes between the parties arising out of or relating to the subject matter of these Terms of Service shall be settled by binding arbitration in Marin County, California pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator may award any legal or equitable remedy and may, in his or her own discretion, require one party to pay the costs of the arbitration as well as the arbitrator's fees and expenses, including reasonable attorney's fees, of the other party.
2.7 Assignment
The Parties may not assign these Terms of Service or any right or obligation arising under these Terms of Service without the prior written consent of the other, except as part of a merger or acquisition or sale of all or substantially all of the assets of the assigning Party, provided the surviving or acquiring entity agrees in writing to be bound by these Terms of Service.
2.8 Force Majeure; Failure of Delivery for Other Reasons
Neither party will be liable for delays, failures to perform, damages, losses, or destruction, or malfunction of any equipment, or any consequence thereof, caused by fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control.
2.9 Severability
Whenever possible, each provision of these Terms of Service will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of these Terms of Service is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of these Terms of Service.
2.10 Entire AgreemenT
The Terms of Service constitute the entire understanding between the parties with respect to the subject matter hereof, supersedes all previous written or verbal agreements between the parties, including, but not limited to all representations, warranties, statements, correspondence, purchase orders, and understandings previously made by FanCompass or CLIENT with respect to the subject matter of these Terms of Service, and may not be modified except by a written agreement signed by both parties. Any waiver of any provision of these Terms of Service must be in writing and signed by the party alleged to have waived such provision, and any single waiver shall not operate to waive subsequent or other defaults.
2.11 Limitation of Damages
Neither Party shall be liable for loss of profits, interruption of business, or for any other indirect, special, consequential, punitive, or incidental damages, however caused, whether for breach of warranty, contract, tort, negligence, strict liability or otherwise, even if a party has been advised of the possibility of such loss or damages. FanCompass’s total liability to CLIENT for any liability under these Terms of Service shall be limited to an amount equal to the total amount paid by CLIENT to FanCompass under these Terms of Service.
2.12 Relationship of Parties
Nothing herein shall be deemed to create an agency, partnership, joint venture or any other legal relationship between the parties.
2.13 No Third Party Beneficiary
These Terms of Service are intended for the benefit of the parties and their respective permitted assigns and no other persons shall be entitled to rely upon these Terms of Service or be entitled to any benefits hereunder.
3.0 DATA AND PRIVACY RIGHTS
3.1 Data
“Data” is defined as any third party information collected, stored and/or analyzed on the CLIENT’s Platform. This includes but is not limited to, all demographics, opt-ins, and additional questions / surveys as it is stored in the database. Data shall be owned by CLIENT. To the extent that any Data is collected by FanCompass, such Data will be only in aggregate form, without specifically identifying the source of Data; and shall be removed from FanCompass server(s) and control when practicable. CLIENT will ensure that no use or treatment of the Data under these Terms of Service violates any applicable law or the right of any third party, and according to the indemnification terms of these Terms of Service, agrees to indemnify FanCompass against any third party claims or legal liability related to the use or treatment of the Data.
3.2 Confidentiality
CLIENT and FanCompass (“the parties”) agree that during the Term and for a period of three (3) years thereafter, they shall take all necessary actions to protect the Confidential Information, exercising at least the same degree of care used to protect its own most confidential information against unauthorized use or disclosure, but in no case less than reasonable care. .
The parties understand that “Confidential Information” means any information of any kind or nature, including without limitation, proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customer lists and customers, inventions, processes, formulas, technology, designs, drawings, engineering, marketing, finances or other business information disclosed to the parties either directly or indirectly.
The parties further understand that Confidential Information does not include any of the foregoing items which have become publicly known and made generally available through no wrongful act of the parties or of others who were under confidentiality obligations as to the item or items involved or improvements or new versions thereof, were required to be disclosed by law or judicial order, or were known by the parties at the time of disclosure as shown by said parties records in existence at the time of disclosure.
3.3 Proprietary Rights
These Terms of Service shall not be construed to grant to either Party any right, title, or interest in intellectual property rights embodied in or associated with or used in the products or services offered hereunder.
3.4 Representations and Warranties
(a) The Parties represent and warrant to the other that they have the right to enter into these Terms of Service and to perform all of its obligations under these Terms of Service.
(b) FanCompass represents and warrants to the CLIENT that the use by the CLIENT of the Services in accordance with these Terms of Service will not infringe the intellectual property rights of any third party.
(c) The CLIENT represents and warrants to the FanCompass that the use by the FanCompass of the CLIENT’s intellectual property rights in accordance with these Terms of Service will not infringe the intellectual property rights of any third party.
(d) Except as expressly stated herein, FanCompass hereby disclaims any express or implied warranties, including but not limited to any implied warranty of merchantability or fitness for any particular purpose. FanCompass shall not be responsible for any defect caused by misuse of the Services.
3.5 Right to Use Trademarks
(a) Each party is authorized by the other party to use the trademarks and/or service marks of the other party solely in connection with the marketing, advertising, and/or promotion of the Products and/or Services. Use of any trademarks and/or service marks by either party must be in a manner consistent with how the owner of such trademarks and/or service marks uses their own marks.
(b) Each party will retain sole and exclusive right, title, and/or interest in and to their marks, and nothing contained in these Terms of Service will give either party right, title, and/or interest in the other party’s marks.
(c) Notwithstanding the foregoing, FanCompass may use CLIENT’s trademarks and name for the limited purpose of identifying CLIENT to potential business partners.