Terms & Conditions
Updated: January 14, 2022
Site Terms of Service
Last Updated: June 1st, 2021
This Site Terms of Service Agreement (“Terms”) governs your use of the FanShark (“we”, “us”, or “FanShark”), including our website (FanShark.Com) mobile application (“App”), and services we provide through them (collectively, the website, App, and services referred to as our “Site” or “FanShark site”). “You” refers to you as a user of the Site.
These Terms apply to users of, including visitors to, our Site. Your use of our Site as a Talent User (defined below) is governed by the Talent Terms of Service. (“Talent Terms”).
ARBITRATION NOTICE: Section 23 of these Terms contains provisions governing how claims that you and FanShark have against each other are resolved, including any claims that arose or were asserted prior to the “Last Updated” date at the top of these Terms. It contains an arbitration agreement that will, with limited exceptions, require disputes between you and FanShark to be submitted to binding and final arbitration. Unless you opt out of the arbitration agreement as described in Section 23: (1) you may pursue claims and seek relief against us only on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and (2) you waive your right to seek relief in a court of law and to have a jury trial on your claims.
2. Additional Terms
Some products or services offered through the FanShark Site may have additional terms and conditions (“Additional Terms”). If Additional Terms apply, we will make them available to you in connection with that product or service. By using that product or service, you agree to the Additional Terms. To the extent that the Additional Terms conflict with any of these Terms, these Terms will govern, unless the Additional Terms say that some, or all of these Terms don’t apply.
3. FanShark Personalized Messages
a. Through the FanShark Site, you may obtain personalized handwritten messages (“Message”) from celebrities, including athletes, actors, performers, artists, influencers, and others (each, a “Talent User”). You may submit a message request to a Talent User that is personalized for you or a third party that you identify as a recipient (“Recipient”).
You acknowledge and agree that:
a. A Talent User and FanShark, have the right to reject any request in our sole discretion, and that we may not follow your message request exactly.
b. FanShark will not be liable or responsible for any Message or other offering requested by you or any submission you make;
c. You have no expectation of privacy with respect to any FanShark Message requested by you or any Submission you make, and that you will not make any request or Submission that infringes on the privacy or other rights of a third party;
5. Use of the FanShark Site
6. Unauthorized Use.
- Copying, modifying, displaying, performing, distributing, republishing, or retransmitting any content or material (including, by way of example, images and text), in whole or in part, from/on the FanShark site without our prior written consent;
- Collecting usernames and/or email addresses of users for the purpose of sending unsolicited email;
- Using a framing or similar technique without our prior written permission;
- Creating or maintaining any link from another website to any page on the FanShark site without our prior written permission;
- Criminal or tortious activity, including fraud, spamming, spimming (spam by instant message), sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
- Covering or obscuring the banner advertisements on the FanShark site, if any, via HTML/CSS or any other means;
- Any automated use of any system, such as using scripts to alter content;
- Interfering with, disrupting, or burdening the FanShark site or the networks, systems or services connected to the FanShark site;
- Using any automated system or software to extract data from the FanShark site for commercial purposes (including “screen scraping”);
- Attempting to impersonate another user or person at checkout or otherwise;
- Using the account, username, or password of another user or disclosing your password, as applicable, to any third party or permitting any third party to access your account;
- Displaying an advertisement, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity on or through the FanShark site on behalf of that person, such as placing commercial content on the FanShark site;
- Using the FanShark site for any harassing, threatening, libelous, abusive, obscene or privacy-invading purposes;
- Using the FanShark site in a manner inconsistent with any applicable law, rule or regulation.
7. Links to Third Party Sites; Advertisers.
9. Products, Content and Specifications.
The inclusion of any products or services on FanShark does not imply or warrant that these products or services will be available at any particular time or that the listed attributes are accurate or complete. The actual color of products you see will depend in part on your computer system, and we cannot guarantee any color or texture or detail of actual products will be accurate. We do not endorse and have not verified the accuracy or reliability of any opinion or statement made on FanShark by any third party, including but not limited to customers, manufacturers, distributors or suppliers of products and services sold through the FanShark site, and product packaging and material may contain additional or different information. Always read labels, warnings, directions or other materials provided with the product before using. In addition, we may make changes to information about price, availability or other product attributes without notice. In the event a product is listed at an incorrect price due to typographical error or error in pricing or other information, we will have the right to cancel orders of any such product, whether or not the order has been confirmed and/or your credit card or other payment method has been charged. If your credit card has already been charged for the purchase and your order is cancelled, we will refund any such charges within a commercially reasonable period of time after cancellation (the time it takes for your financial institution to process the refund may vary and is governed by your agreement with them).
10. Placing an Order; Limitations; Order Acceptance.
By placing an order, you agree that the products ordered are legal to possess and use where you intend to possess and use them and will be possessed or used only in a lawful manner, in accordance with all applicable laws, rules and regulations, including copyright law and that you have the right to use any payment method that you provide to use.
We reserve the right, without prior notice, to limit the order quantity on any product or service, to refuse service to any customer, or to cancel any order, for any reason including after it is submitted. We also may require additional verifications or other information prior to the acceptance and/or shipment of any order. Your receipt of an order confirmation from us does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We accept your order only upon shipment of the product. With respect to the shipment of products and services sold through the FanShark site, risk of loss and title for items purchased from the FanShark site pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments. It also is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession or use of any item purchased on the FanShark site.
11. Property; Intellectual Property.
All content on the FanShark site (including, without limitation, text, graphics, icons, images, clips and software) is protected by copyright, trademark, and other laws. Names, logos, taglines, icons and marks of FanShark are the exclusive property of FanShark, Inc., all rights reserved, and may not be used by you without our prior written permission. Unless otherwise indicated, all other intellectual property appearing on the FanShark site is the property of its respective owner. We reserve all rights not expressly granted in and to on the FanShark site’s content and services.
12. User-Generated Content.
13. Digital Millennium Copyright Act (DMCA) Notice.
Materials (including User Content) may be made available via the FanShark site by users and other third parties not within our control. We are under no obligation to, and do not, scan content posted on the FanShark site for the inclusion of illegal or impermissible content. However, we respect the copyright interests of others. It is our policy not to permit materials known by us to infringe another party’s copyright to remain on the FanShark site.
If you believe your material has been copied in a way that constitutes copyright infringement, you must forward the following information to the email address set forth below:
- your address telephone number, and email address;
- a description of the work that you claim is infringed;
- a description of the material that you claim is infringing and are requesting be removed along with information about where it is located;
- a statement that you have 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”:
- an electronic or physical signature of the copyright owner (or a person authorized to act for the copyright owner);
- a statement by you, made under the penalty of perjury, that the information you are providing is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
If you do not follow these requirements, your notice may not be valid. Please note, notices of copyright infringement must be sent to [email protected]
14. No Ideas Accepted.
FanShark does not accept any unsolicited ideas to the FanShark site from outside FanShark, including without limitation, suggestions about advertising or promotions, or merchandising of any products, additions to our services, or changes in methods of doing business. We may already be working on or may in the future work on a similar idea. If, notwithstanding this policy, you submit an unsolicited idea to this Website, you understand and acknowledge that such idea is not submitted in confidence and we assume no obligation, expressed or implied, by considering it. You hereby grant us an irrevocable, perpetual, world-wide license to use the idea and any associated intellectual property in any manner, in any medium now known or hereafter developed, without compensation to you.
15. Termination of Access and/or Account.
You agree to indemnify, defend, and hold harmless FanShark and its affiliates, officers, employees, directors, shareholders, agents, partners, vendors, talent users, and licensors (each, a “FanShark Party,” and collectively, “FanShark Parties”) from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including reasonable attorneys’ fees and costs) of any kind or nature arising from, out of, in connection with, or relating to: (a) these Terms; or (b) use of the FanShark site. FanShark may select counsel for and control the defense of any claim that you are indemnifying. You will reasonably cooperate with us in connection with any claim.
18. DISCLAIMER OF WARRANTIES.
19. LIMITATION ON LIABILITY.
IN NO EVENT SHALL FANSHARK BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF GOODWILL, LOSS OF REPUTATION, COST OF COVER DAMAGES OR INTANGIBLE LOSSES OF ANY KIND ARISING FROM YOUR USE OF THE FANSHARK SITE, YOUR INABILITY TO USE THE FANSHARK SITE, OR THE PRODUCTS OR SERVICES AVAILABLE THROUGH THE FANSHARK SITE, EVEN IF THE FANSHARK PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE FANSHARK PARTIES BE LIABLE FOR ANY DIRECT DAMAGES EXCEEDING THE GREATER OF THE FEES YOU PAID TO US FOR PRODUCTS AND SERVICES THAT ARE THE SUBJECT OF THE CLAIM AT ISSUE IN THE TWELVE MONTHS PRECEEDING THE CLAIM OR ONE THOUSAND DOLLARS.
20. Third Party Content and Interactions
Our site may contain features and functionalities that link to or provide you with access to third party content, that is completely independent of FanShark, including websites, platforms, directories, servers, networks, systems, information, databases, applications, software, programs, products or services, and the Internet in general. Your interactions with third parties, including users and Talent Users found on or through our Site are solely between you and the third party. You should make whatever investigation you feel necessary or appropriate before proceeding with any contact or interaction, in connection with the FanShark site or otherwise. However, you agree not to contact or interact with any Talent User except as expressly permitted through our Site. You also agree that FanShark may, in its sole discretion, intercede in any dispute and you will reasonably cooperate with FanShark if it does so. You acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities of any kind or nature incurred as the result of any such interaction. You hereby release each FanShark Party from claims, demands, and damages (actual and consequential) of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes of the FanShark site. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (AND ANY OTHER SIMILAR APPLICABLE STATUTE), WHICH PROVIDES: “A GENERAL RELEASE DOES NO EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXSIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY”.
21. U.S. Export Controls.
Software made available to you by the FanShark site, if any, is subject to U.S. export controls. No Software may be downloaded from the FanShark site or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the FanShark site is at your sole risk.
22. Governing Law.
23. Arbitration; No Class Action.
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. Use or accessing the Properties or Offers constitutes your acceptance of this Arbitration provision.
As a condition of using the FanShark site, you and we agree that any and all disputes, claims and causes of action (collectively, “Claims”) arising out of or connected with the FanShark site (except for small claims court Claims, if applicable) shall be resolved exclusively by binding arbitration under the rules of the American Arbitration Association (“AAA”), including the Supplementary Procedures for Consumer-Related Disputes, for full and final settlement of such Claim applying the Federal Arbitration Act and other federal arbitration laws. YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO SUE OR GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT. YOU AND WE ALSO AGREE THAT (A) ANY CLAIMS WILL BE RESOLVED INDIVIDUALLY NOT AS A PLAINTIFF OR CLASS REPRESENTATIVE, MEMBER OF OTHERWISE ON BEHALF OF OTHERS IN ANY PURPOSED CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING AND NOT THROUGH ANY CLASS ACTION, (B) IF A CLAIM PROCEEDS IN COURT ANYWAY, WE BOTH WAIVE ANY RIGHT TO A JURY TRIAL; AND (C) EITHER YOU OR WE MAY SEEK A COURT INJUNCTION REGARDING INTELLECTUAL PROPERTY INFRINGEMENT. ARBITRATION DOES NOT INVOLVE A JUDGE OR JURY. Although court review of an arbitration award may be limited, an arbitrator is empowered to award the same damages and relief as a court, including injunctive relief or statutory damages. Notwithstanding the foregoing, either party may seek temporary or emergency equitable relief to enforce its rights in any court of competent jurisdiction.
You may seek arbitration of a Claim by emailing us at [email protected] The arbitration may be conducted via telephone, written submissions or in person in a mutually agreed location. Payment of all filing, administration, arbitrator and/or mediator fees (“Fees”) will be governed by AAA’s rules. The AAA’s rules are available at: www.adr.org or call 800-778-7879 (toll-free) for instructions on how to obtain a copy. Unless the AAA arbitrator determines that your Claim was frivolous, we will (i) reimburse you for the Fees paid by you, and (ii) will not seek reimbursement from you for our attorneys’ fees and costs associated with the arbitration. You and we further agree that an award and any judgment confirming it only applies to the arbitration in which it was awarded and cannot be used in any other proceeding except to enforce the award itself and any post-arbitration action seeking to enforce an arbitration award or action seeking equitable or injunctive relief shall be brought exclusively in the courts of the State of Delaware, or the United States District Court for the District of Delaware. For any Claims that are not subject to arbitration, if any: (a) the exclusive jurisdiction and venue for proceedings involving Claims shall be the courts of competent jurisdiction sitting within the State of Delaware (the “Forum”), and the parties hereby waive any argument that any such court does not have personal jurisdiction or that the Forum is not appropriate or convenient; (b) you and we waive any and all rights to trial by jury with respect to any Claims.
Talent Terms of Service
Last Updated: June 1st, 2021
This Talent Terms of Service Agreement (“Terms”) governs your use as a talent user of the FanShark™ marketplace platform offered by FanShark, Inc., including FanShark’s website (FanShark.com) and services FanShark provides (collectively, the website and services referred to as “FanShark’s Site”). “You” and “Talent User” refer to you as a talent user of the Site.
These Terms apply solely to Talent Users of the FanShark Site. Use of the FanShark Site is also subject to FanShark’s current Acceptable Use Policy. Any use by you of the FanShark Site other than as a Talent User is governed by the Site Terms of Service. (“Site Terms”).
PLEASE READ THESE TERMS CAREFULLY. By agreeing to be on the FanShark Site as a Talent User or otherwise indicating your acceptance, you represent and warrant that you have read, understand, and agree to be bound by these Terms.
ARBITRATION NOTICE: Section 14 of these Terms contains provisions governing how claims that you and FanShark have against each other are resolved, including any claims that arose or were asserted prior to the “Last Updated” date at the top of these Terms. It contains an arbitration agreement that will, with limited exceptions, require disputes between you and FanShark to be submitted to binding and final arbitration. Unless you opt out of the arbitration agreement in Section14: (1) you may pursue claims and seek releif against us only on an individual basis, not as a plantiff or class member in any class or representative action or proceeding; and (2) you waive your rights to seek relief in a court of law and to have a jury trial on your claims.
1. Participation on the FanShark Site
a. Registration: In order to participate on the FanShark site, you must execute an Independent Contract Agreement with FanShark. By executing an Independent Contract Agreement, you agree to provide true, accurate, current, and complete information about yourself as prompted by FanShark’s welcome aboard form, as well as any other information reasonably requested by FanShark (collectively, “Registration Data”). If you do not do so, or FanShark reasonably believes that you have not done so, FanShark has the right to suspend or terminate your campaign on the FanShark site.
b. Promotional Materials: At no cost to FanShark, you will provide to FanShark the following promotional materials (“Promotional Materials”) within 72 hours of beginning the talent on-boarding process on the FanShark Site: (i) three high resolution images of yourself per FanShark’s specifications; (ii) your Site profile bio; and (iii) if FanShark is using your custom artwork to be featured on FanShark products, you agree to provide FanShark such artwork in formats acceptable to FanShark. FanShark may request additional Promotional Materials from you for FanShark’s use to promote you on or in connection with the FanShark Site or on any social media platform or third party website. Any other materials or photos of or concerning you that you approve for FanShark’s use will also consitute Promotional Materials under these Terms.
c. Signing the Personalized Messages: You agree to personally handwrite all of the personalized messages sent to you by FanShark within 7 days receipt of the FanShark package (“Package”). You represent and warrant that you and only you will handwrite the personalized messages using the pen(s) provided by FanShark within the Package and that you will never designate, under any circusmstances, another individual or Corporation to fullfill such duties on your behalf. To do so would constitute a material breach of this agreement and you further agree to idemnify FanShark according to section 18 for any loss, damage or expense, including but not limited to reasonable attorney’s fees incurred by FanShark as a result of your breach of this subparagraph 1 c. FanShark will make a best effort to eliminate any personalized message request that it deems offensive or contains within it, obscene language. You can refuse to sign any personalized message contained within the Package that you deem inappropriate or offensive for any reason at your sole discretion. Your refusal shall be communicated to FanShark via email, within 24 hours or your receipt of the personalized message request.
d. Campaign Length: You solely determine how long your Campaign is active on the FanShark site. If you would like to increase or decrease the length of time of your Campaign and it has not yet started or is still active, email [email protected]
e. Return of the Personalized Messages: You agree within 3 days of executing all of the personalized messages, in your own handwritting, to return them to FanShark in the self-addressed Fedex return envelope or hand them to a third party delivery service arranged by FanShark.
2. Selling Price and Payment
a. Selling Price: Both you and FanShark shall mutually agree upon the Selling Price for each item offered, in your campaign, for sale on the FanShark Site. After your Campaign begins, FanShark may suggest an adjustment, either raising or lowering the current Selling Price(s), based on current product performance(s). FanShark will not unilaterally change the Selling Prices of your Campaign without your written agreement. Email shall be an acceptable format to confirm your agreement to such changes.
b. Payments: You will be paid in accordance with the terms agreed upon by you and FanShark specified in the Independent Contract Agreement.
c. Payment Representations and Warranties: You represent and warrant that: (i) your services on FanShark are not, and are not intended to be covered by any guild, union, collective bargaining, management, agency or similar agreement and there will be no residual or any other type of payment due from FanShark to you, to any third party, guild, union, management, or agent, or pursuant to any collective bargaining agreement, in connection with any FanShark product, payment from FanShark to you, or the FanShark Site; (ii) FanShark is not responsible for, and will not make any deduction to payments made to you for any fees, commissions, costs, expenses, or payments of any kind to or with respect to any third party, including any manager, agent, attorney, representative, or service provider, in connection with any revenue earned by or payments made to you in connection with the FanShark site; and (iii) FanShark is not responsible for any contributions, payments, payroll or any other taxes, or deductions for Social Security, retirement benefits, unemployment insurance, annuities, or pension or welfare fund payments required by law or any labor union, or any withholding or income taxes.
d. Payment: You agree to register with the third party payment provider selected by FanShark, which FanShark may change in its sole discretion. You may not use a payment provider other that the one selected by FanShark. You will provide the payment provider any information required in order to receive payments via the payment provider. Any payments due to you from FanShark will be made via the payment provider unless specified otherwise in the Independent Contractor’s Agreement. If you do not provide the payment provider with all required information, you may not be able to receive the payments due to you. FanShark will not be responsible for any damages, delays, losses, costs, expenses, or liabilities arising out of or in connection with your inability to receive payments, as a result of your failure to provide such information. Subject to the payment provider’s terms, payments will be made in accordance with the terms of the Independent Contract Agreement. You acknowledge and agree that FanShark does not operate, own, or control the payment provider; and your use of any payment provider is subject to the terms and privacy policies of that payment provider. You agree that FanShark is not responsible for any delay, failure, damage, or liability caused by a payment provider, any other third party, a force majeure, or your failure to timely or properly set up an account with the payment provider or otherwise provide requested information for payment. Other than with respect to any payment to or deduction by the application platform, FanShark will be responsible for fees, costs, and expenses incurred in connection with the payment provider selected by FanShark. Unless otherwise agreed by FanShark in writing, you acknowledge and agree that you are solely responsible for any other fees, costs, and expenses, including with respect to your bank account and foreign exchange fees. Notwithstanding anything to the contrary contained in these Terms, if FanShark, in its sole discretion, believes that any fraud, m oney laundering, or other violation of law or regulation is taking place on or in connection with the FanShark Site, you acknowledge and agree that FanShark may withhold, delay, or seek repayment of any payments FanShark believes, in FanShark’s sole discretion, are related to the violation.
e. Currency: Payments via the payment provider are in U.S. dollars, unless the payment provider permits you to choose another currency and you do so.
f. Fundraising: If you identify any entity on your Campaign page or elsewhere on the FanShark Site as a charitable organization or a recipient of any funds that you are raising (each, a “Charity”), you: (i) represent and warrant that you will comply with all applicable laws and regulations relating to that identification of the Charity, including making disclosures, registering, or entering into any agreement, such as a commercial co-venturer agreement; (ii) acknowledge and agree that FanShark has the right, in its sole discretion, to reject your identification or the Charity; (iii) represent and warrant that the Charity is and will remain in good standing at all times the identification is used, that within 48 hours of your receipt of FanShark’s request, you will provide FanShark with written evidence of the Charity’s good standing and charitable status in all applicable jurisdictions, and that FanShark will promptly remove the identification, if the Charity ceases to be in good standing; (iv) represent and warrant that you will be responsible for making any payment to the Charity (unless FanShark expressly agrees in writing, in advance to do so on your behalf and in satisfaction of FanShark’s payment obligations to you under these Terms); (v) represent and warrant that you have all rights necessary to authorize use of the Charity’s name and logo, in connection with (and on) the FanShark Site, in the identification, and in any social and other media. You further acknowledge and agree that FanShark may add a statement to your Campaign page, disclaiming a connection between FanShark and the Charity, as FanShark determines in its sole discretion.
3. Talent Content Representations and Warranties
a. Talent Content Represenations and Warranties: You represent and warrant that:
(i). you own all rights provided in the Registration Data, including but not limited to any artwork provided by you to FanShark and that you have the right to grant the rights described in these tems.
(ii). you have paid and will pay in full any fees, royalties, or other payments that are due or may become due in connection with any us of your Registration Data, Users, or third parties (including Recipients) as described in these Terms;
(iii). your agreement to, and provision of services under, these Terms does not violate any agreement that you may have with any third party; and
(iv). you will not permit, assign or designate any individual or entity the right to compose and/or sign any personalized messages for your Campaign.
b. Treatment of Talent Content: Any Talent Campaign is non-confidential, non-proprietary, and must not contain or include any information which you do not have the right to disclose or that you do not wish to be disclosed. FanShark will not be responsible or liable for any use or disclosure of Talent Campaign Content, including any personal information included in that Talent Campaign Content. You acknowledge and agree that your relationship with FanShark is not a confidential, fiduciary, joint-venture, employer/employee, agency, or other type of special relationship, and that your relationship with FanShark is that of an Independent Contractor and that your decision to participate in the FanShark Site does not place FanShark in a position that is any different from the position held by members of the general public, including with regard to your Talent Campaign Content. None of your Talent Campaign Content will be subject to any obligation of confidence by FanShark, Users, or third parties (including Recipients), and FanShark will not be liable or responsible for any use or disclosure or any Talent Campaign Content.
c. Refusal and Removal of Talent Content: FanShark may edit, refuse to accept or remove your Talent Campaign Content from the FanShark site for any reason without notice to you.
d. Cancellation of Site Account: You may cancel your Campaign on the FanShark site with at least three business days’ advance written notice to FanShark and request that FanShark no longer include your FanShark Campaign on the FanShark site. Emails must be sent to [email protected]
a. FanShark owns all right, title, and interest in and to: (i) the FanShark Site and the “look and feel” of the FanShark Site, including all software, ideas, processes, data, text, media, and other content available on the FanShark Site (individually, and collectively, “FanShark Content”); and (ii) FanShark’s trademarks, logos, and brand elements (“Marks”). The FanShark Site, FanShark Content, and Marks are each protected under U.S. and international laws. You may not duplicate, copy, or reuse any portion of the FanShark Campaign Content or use the Marks without FanShark’s prior express written consent. You acknowledge and agree that each request or message from a User is a Submission (as defined in the Site Terms) owned by FanShark. (iii) any FanShark original product designs.
b. FanShark desires to avoid the possibility of misunderstandings if a project developed by FanShark, FanShark’s employees, or FanShark’s contractors might seem similar to material submitted to FanShark by you or a third party. To the extent you submit any ideas, suggestions, proposals, plans, or other materials related to FanShark (individually, and collectively, “Feedback”), you acknowledge and agree that you are submitting that Feedback at your own risk and that FanShark has no obligation (including of confidentiality or privacy) with respect to your Feedback, and you grant to FanShark a non-exclusive, royalty-free, fully paid, unlimited, universal, sublicensable (through multiple tiers of sublicenses), perpetual, and irrevocable license, in any and all manner and media, whether now known or hereinafter invented or devised, to reproduce, license, distribute, modify, adapt, publicly perform, publicly display, create derivative works of (for example, translations, adaptations, or other changes), and otherwise use and exploit in any manner (including commercially), any and all Feedback.
c. You hereby waive any and all moral rights or “droit moral” that you may have in the Talent Content or Feedback, and you represent and warrant that no third party has any moral, “droit moral” or other rights in the Talent Content or Feedback.
5. Additional Terms
Some products or services offered through the FanShark Site may have additional terms and conditions (“Additional Terms”). If Additional Terms apply, FanShark will make them available for you to read in connection with that product or service. By using that product or service, you agree to the Additional Terms. To the extent that the Additional Terms conflict with any of these Terms, these Terms will govern unless the Additional Terms say that all or some of these Terms don’t apply.
a. Age: You must be at least 18 years old to use the FanShark Site. If you are a minor or under the age of majority in your state of residence, your parent or legal guardian must agree to these Terms on your behalf and you may access and use the FanShark Site only with permission from your parent or legal guardian.
b. National College Athletic Association (“NCAA”) and Other Amateur Organizations: If you are or may become subject to NCAA rules and regulations or those of any other association, group, authority or organization, you represent and warrant that you have checked the rules and regulations to verify and confirm that your participation on the FanShark Site does not or will not affect your current or future eligibility with respect to any such association, group, authority or organization.
c. Eligibility Representations and Warranties: You represent and warrant that:
i. you have not been prohibited from using or accessing any aspect of the FanShark Site by FanShark or pursuant to any applicable law or regulation;
ii. you will comply with all applicable terms of any third party payment provider FanShark selects, and you are not on a prohibited list of that payment provider; and
iii. you are not a convicted sex offender.
7. Copyright and Intellectual Property Policy
a. Digital Millennium Copyright Act Notice: FanShark responds to notices of alleged copyright infringement and terminates access to the FanShark Site for repeat infringers. If you believe that your material has been copied in a way that constitutes copyright infringement, you must forward the following information to the email address set forth below:
i. your address, telephone number, and email address;
ii. a description of the work that you claim is being infringed;
iii. a description of the material that you claim is infringing and are requesting be removed along with information about where it is located;
iv. a statement that you have “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”;
v. an electronic or physical signature of the copyright owner (or a person authorized to act for the copyright owner); and
vi. a statement by you, made under penalty of perjury, that the information you are providing is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
If you do not follow these requirements, your notice may not be valid. Please note, notices of alleged copyright infringement must be sent to the [email protected].
b. Termination Policy: If FanShark determines that you are a repeat infringer, FanShark may terminate your access and your Campaign on the FanShark Site, remove or ban you (and any Site account you created or control), and take other appropriate action in FanShark’s sole discretion.
9. Business Relationship with FanShark
a. You and FanShark agree and declare you and FanShark are in a direct business relationship and the relationship between the parties, including these Terms, is solely an independent contractor relationship. It is the parties’ express intent that their relationship be interpreted and held to be that of independent contractor for all purposes. You acknowledge and agree that you are not a joint venturer, franchisee, partner, agent, or employee of FanShark, and will not represent yourself as such. You also retain the option to accept, decline, or ignore any User request. You represent and warrant that you are customarily engaged in an independently established trade, occupation, or business and that you shall have no right or authority, either express or implied, to assume or create, on behalf of FanShark, any obligation or responsibility of any kind or nature.
b. You represent and warrant that as between FanShark and you (whether a Talent User, parent or legal guardian of a Talent User, an Organization, Affiliated Talent), you assume sole liability for and will pay or cause to be paid all applicable contributions, payments, taxes, and deductions for Social Security, retirement or other benefits, healthcare insurance, unemployment insurance, annuities, pension and welfare fund payments required by law, regulation, or any labor union, and all withholding and income taxes, and make any reports required as a result of participation on the FanShark Site under these Terms.
c. You are solely responsible for making any disclosure required by any applicable law, regulation, court order or any agreement you may have with any third parties to any person or entity regarding your performance under these Terms.
d. Your relationship with FanShark is non-exclusive, meaning that you may provide similar services to third parties, including FanShark’s competitors, and you may engage in other business or employment activities. Similarly, FanShark can and does engage third parties to provide services similar to those that you may provide under these Terms.
e. FanShark does not make any representation or guarantee any sales for your Campaign and will undertake such marketing and sales efforts as FanShark deems appropriate and at its sole discretion.
10. Changes to our Site
You acknowledge and agree that FanShark may change or discontinue any aspect of the FanShark Site at any time, without notice to you.
11. Termination and Reservation of Rights
You may cancel your Campaign at any time by contacting a member of the FanShark team at [email protected]. FanShark reserves the right to terminate access to the FanShark Site to any person, including you, at any time, for any reason, in FanShark’s sole discretion. If you violate any of these Terms, your permission to use the FanShark Site automatically terminates.
If this agreement is terminated for any reason, then all further rights of Independent Contractor to compensation from FanShark, under this agreement will cease, except that Independent Contractor shall be entitled to receive and FanShark shall be obligated to pay Independent Contractor only those unpaid fees (if any) earned by Independent Contractor through the effective date of termination of this agreement.
12. Disclaimers and Limitations on our Liability
a. You acknowledge and agree that the FanShark Site is provided on an “as is” and “as available” basis. To the extent permitted by applicable law, the FanShark Parties disclaim all warranties, conditions, and representations of any kind, whether express, implied, statutory, or otherwise, including those related to merchantability, fitness for a particular purpose, non-infringement, and arising out of course of dealing or usage of trade.
b. In particular, FanShark makes no representations or warranties about the accuracy or completeness of content available on or through the FanShark Site or the content of any social media platform or third party website linked to or integrated with the FanShark Site. You acknowledge and agree that FanShark will have no liability for any: (i) errors, mistakes, or inaccuracies of content; (ii) personal injury, property damage, or other harm resulting from your access to or use of the FanShark Site; (iii) any unauthorized access to or use of FanShark’s servers, any personal information, or user data; (iv) any interruption of transmission to or from the FanShark Site; (v) any bugs, viruses, trojan horses, or the like that may be transmitted on or through the FanShark Site; or (vi) any damages, losses, costs, expenses, or liabilities of any kind incurred as a result of any content or the use of any content posted or shared through the FanShark Site.
c. You acknowledge and agree that any material or information obtained through the FanShark Site, including a User request, is done at your own risk and that you will be solely responsible for any damages, losses, costs, expenses, or liabilities arising from or in connection with doing so. No advice or information, whether oral or written, obtained by you from FanShark or through the FanShark Site, will create any warranty not expressly made by FanShark.
d. To the fullest extent permitted by applicable law, you acknowledge and agree that in no event will FanShark be liable to you or to any third party for any indirect, special, incidental, punitive, or consequential damages (including for loss of profits, revenue, or data) or for the cost of obtaining substitute products, arising out of or in connection with these Terms, however caused, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not FanShark has been advised of the possibility of such damages.
e. To the maximum extent permitted by applicable law, FanShark’s total cumulative liability to you or any third party under these Terms, including from all causes of action and all theories of liability, will be limited to and will not exceed the net sales revenue, actually received, by FanShark from your Campaign(s) during the 12 months preceding the claim giving rise to such liability.
f. Certain jurisdictions do not allow the exclusion or limitation of certain damages. If those laws apply to you, some or all of the above exclusions or limitations may not apply to you, and you might have additional rights.
g. You agree that the limitations of damages set forth above are fundamental elements of the basis of the bargain between FanShark and you.
You agree to indemnify, defend, and hold harmless FanShark and its officers, employees, directors, shareholders, agents, partners, and licensors (each, a “FanShark Party, “ and collectively, “FanShark Parties”) from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including reasonable attorneys’ fees and costs) of any kind or nature, arising from, out of, in connection with, or relating to: (a) these Terms; (b) use of the FanShark Site; (c) your negligence, misconduct, or fraud; (d) any action or inaction by you or anyone acting on your behalf; (e) any Organization or Affiliated Talent; (f) any Charity; (g) your status as a parent or legal guardian of a Talent User; (h) Talent Content; (i) Feedback; (j) your eligibility with the NCAA or any other association, group, authority, or organization referenced in Section 9.b; FanShark may select counsel and control the defense of any claim that you are indemnifying. You will reasonably cooperate with FanShark Parties in connection with any claim.
14. Arbitration Agreement and Waiver of Certain Rights
a. Arbitration: You and FanShark agree that in the event of any dispute between You and FanShark, either party shall first contact the other directly and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution. If after 30 days, You and FanShark cannot formally resolve your dispute, then You and FanShark agree to resolve any disputes between you and FanShark through binding and final arbitration instead of through court proceedings. You and FanShark each hereby waive any right to a jury trial of any controversy, claim, counterclaim, or other dispute arising between you and FanShark relating to these Terms or the FanShark Site (each a “Claim,” and collectively, “Claims”). Any Claim will be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision will be in writing, will include the arbitrator’s reasons for the decision, will be final and binding upon the parties, and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions, and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
b. Costs and Fees: If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, FanShark may at its sole discretion, pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
c. No Preclusions: This arbitration agreement does not preclude you or FanShark from seeking action by federal, state, or local government agencies. You and FanShark each also have the right to bring any qualifying Claim in small claims court. In addition, you and FanShark each retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request will not be deemed to be either incompatible with these Terms or a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
d. No Class Representative or Private Attorney General: Each of you and FanShark agree that with respect to any Claim, neither may: (i) act as a class representative or private attorney general; or (ii) participate as a member of a class of claimants. You agree that no Claim may be arbitrated on a class or representative basis. The arbitrator can decide only individual Claims (whether brought by you or FanShark). The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
e. Severability/No Waiver/Survival: If any provision of this agreement is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed and the remainder of this agreement will continue in full force and effect. No waiver of any provision of this agreement will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver will not waive or affect any other provision of these Terms. This agreement will survive the termination of your relationship with FanShark.
LIMITATIONS: This Section 14 limits certain rights, including the right to maintain certain court actions, the right to a jury trial, the right to participate in any form of class or representative claim, the right to engage in discovery except as provided in AAA rules, and the right to certain remedies and forms of relief. In addition, other rights that you or FanShark would have in court may not be available in arbitration.
15. Other Provisions
a. Force Majeure: Under no circumstances will FanShark be liable for any delay or failure in performance due in whole or in part to any acts of God (such as earthquakes, storms, floods, etc.), unavoidable accidents, laws, rules, regulations or orders of government authorities, acts of war (declared or not), terrorism, hostilities, blockades, civil disturbances, embargoes, strikes, or any other event or cause beyond the reasonable control of FanShark.
b. Choice of Law and Jurisdiction: These Terms will be governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflict of laws rules or provisions. You agree that any action of whatever nature arising from or relating to these Terms or our Site will be filed only in the state or federal courts located in New York, New York. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
c. Severability: If any provision of these Terms is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed from these Terms and will not affect the enforceability of any other provision.
d. No Waiver or Amendment: The failure by FanShark to enforce any right or provision of these Terms will not prevent FanShark from enforcing such right or provision in the future and will not be deemed to modify these Terms.
e. Assignment: FanShark may, at any time, assign its rights and obligations under these Terms, including but not limited to an affiliated entity or in connection with a sale of assets, merger, acquisition, reorganization, bankruptcy, other transaction, or by operation of law.
f. Authority: You and FanShark represent, that each party has the full power and authority to enter and perform this Agreement and the Independent Contractor’s Agreement: and, each party acknowledges that it has read this Agreement and the Independent Contractor’s Agreement, understands it, and agrees to be bound by it.
g. Counterparts: The Independent Contractor’s agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
h. Miscellaneous: The term “including” in these Terms will be interpreted broadly and will mean “including, without limitation.” Titles are for convenience only and will not be considered when interpreting these Terms.
16. Changes to these Terms
FanShark may change these Terms. If FanShark does, FanShark will post the revised Terms on the FanShark Site and update the “Last Updated” date at the top of these Terms. The revised Terms will be effective immediately if you accept them (for example, by agreeing when you have an active campaign on our site or login to an existing account, or using or continuing to use the FanShark Site after the revised Terms have been posted); otherwise, they will be effective 30 days after posting.