SERVICE TERMS AND CONDITIONS
This FANCHATTER APPLICATION AGREEMENT (the "Agreement") shall set forth the terms and conditions pursuant to which FanChatter Inc. ("FC") has agreed to make available on a remote, web accessible basis the ChatterBox application further described in this Agreement. The individual or company to whom such application shall be made available is listed on the FC website Customer registration form (the individual or company shall be referred to as the "Customer" and FC website registration form shall be referred to as the "Registration Form"). BY CLICKING ON THE "I ACCEPT" BUTTON OR USING THE APPLICATION CUSTOMER HAS AGREED TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1.Term; Termination; Survival of Provisions
1.1 FC has developed an on-line based web application called the ChatterBox (the "Application") that will let Customer create via iFrame technology a communications center on the Customer website identified on the Registration Form ("Your Website"). The Application will aggregate filtered content from Facebook, Twitter, Instagram and those other data sources noted on the Registration Form; such content shall be tagged with those Customer words and phrases identified on the Registration Form, as well as Customer approved Facebook and Twitter user accounts and content from select RSS/Atom feeds. All content appearing in the Application may be organized under tabs identified and curated by the Customer on the Registration Form. Visitors to the Customer Website(s) will be invited to use the Application to authenticate with their Facebook and/or Twitter accounts, which will enable them to post content from the Application back to Facebook and/or Twitter. Content posted from the Application back to Twitter and Facebook indicates FC as the source of the content and contains a direct link back to the Customer Website. The Customer has the ability to apply a language decency filter to any tab to prevent the appearance of content containing foul language. The Customer also has the ability to block any users who are determined to be abusing their right to post content to the Application.
1.2 The Application shall be made available on a pay-basis as set forth on the Registration Form. The Registration Form shall include an approximate Application start date, the term during which the Application shall be made available by FC to Customer and the fee or charge for the Application. The Application shall be provided by FC to Customer during the term set forth in the Registration Form (the "Term").
1.3 This Agreement may be terminated by a party immediately and without further notice if the other party defaults in the performance of any of its material obligations under this Agreement and does not cure the default within thirty (30) days after receipt of notice in writing from the non-defaulting party. In addition, FC shall have the right to terminate this Agreement for convenience on sixty (60) days prior written notice to the Customer.
1.4 The following sections of this Agreement shall survive termination of this Agreement or expiration of the Term: 3.5, 4, 5, 6 and 8.4. Upon termination for breach or expiration of the Term, the Customer’s access to or use of the Application shall immediately cease.
2.1. Subject to the provisions of this Agreement, FC grants to Customer a non-exclusive, non-transferable, limited license during the term to (a) access and use the Application; and (b) display the Application (and Customer Data, as defined below) on the Customer Website. Except for the license granted in this Section 2.1, the Customer acknowledges that it acquires no other rights to the Application and that all right, title and interest in and to the Application shall remain with FC. Customer shall not decompile, copy, disassemble, modify or reverse engineer the Application.
2.2. Customer shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application; (b) modify or make derivative works based upon the Application; (c) interfere with or disrupt the integrity or performance of the Application; or (d) attempt to gain unauthorized access to the Application.
3. Use of Application, Support and Customer Data
3.1. FC shall provide Customer with a User ID and Customer shall select a password that will permit Customer to access and use the Application. Customer is solely responsible for the security and use of the user ID and password. If the security of the user ID and/or password is comprised, Customer shall promptly contact FC.
3.2. FC does not own any video, data, text, information, trademarks, service marks, logos, graphics or other materials that the Customer submits to FC, that Customer posts to the Application, that a Customer Website user posts to the Application or that FC collects in the course of providing the Application to the Customer (collectively the "Customer Data"). Customer, not FC, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer grants FC during the Term the royalty-free, worldwide, non-exclusive right and license to use, reproduce, modify, publish, distribute and display the Customer Data solely for the purpose of providing the Application. Except as necessary to provide the Application, FC shall not provide, disclose or make the Customer Data available to any third party.
3.3. Customer represents and warrants to FC that Customer Data: (a) is original to the Customer or that the Customer has secured the rights to provide and use such Customer Data; (b) does not contain any content that is unlawful, threatening, harassing, profane, tortuous, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity, or (c) does not contain a virus or other harmful component.
3.4. Customer acknowledges that FC may compile certain general information related to the use of the Application. Notwithstanding the restrictions set forth in Section 3.3 above, the Customer agrees that FC is authorized to use, reproduce and generally make such information available to third parties in the aggregate, provided that the Customer‘s information shall not include personally identifiable information about those that use the Application or be attributable to Customer.
3.5. FC shall have the right during the Term of this Agreement to list and name the Customer as a user of the Application
3.6. FC shall provide email-based support concerning use of the Application Monday through Friday (excluding United States Federal holidays) from 9:00 AM to 5:00 PM (Central Time). All inquiries concerning support and use of the Application shall be sent by one named representative selected by Customer.
4. Payment and Billing.
4.1 The Application shall be provided at the fee set forth on Registration Form (this fee, along with all applicable sales, use, excise, value added or other taxes shall be collectively referred to as the "Application Fee"). The Application Fee shall be paid by the Customer using the payment method selected by Customer on the Registration Form (the "Payment Method"). IF THE CUSTOMER SELECTS PAYPAL, A CREDIT CARD OR DEBIT CARD AS THE PAYMENT METHOD, THIS AGREEMENT SHALL AUTHORIZE FC TO ACCESS, DEBIT OR CREDIT, AS APPLICABLE, SUCH PAYMENT METHOD FOR PAYMENT OF THE APPLICATION FEE. In addition to any other rights granted to FC herein, FC reserves the right to suspend or terminate this Agreement and Customer access to the Application if Customer fails to pay any amount due within thirty (30) days of the payment due date. Delinquent payments are subject to interest of one and one half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all reasonable expenses of collection. The Application Fee shall be paid by CUSTOMER to FC in United States dollars.
5. Limitation of Liability.
5.1 EXCEPT FOR THE OBLIGATIONS SET FORTH IN SECTION 6 (INDEMNIFICATION), IN NO EVENT WILL (A) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR DATA, OR THE INABILITY TO UTILIZE THE APPLICATION; OR (B) EITHER. PARTY'S AGGREGATE LIABILITY EXCEED THE APPLICATION FEES ACTUALLY PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
6.1. Customer shall indemnify and hold FC, and its officers, directors, employees and agents, harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (a) a claim alleging that use of Customer Data infringes the rights of (including, but not limited to, the rights of privacy or publicity), or has caused harm to, a third party; (b) a claim, which if true, would constitute a violation by Customer of the warranties set forth in Section 7.2 below; (c) Customer’s breach of Sections 2, 3.4 or 4 above or (d) any claim related to Customer products or services offered, promoted, distributed, performed and/or subsequently sold by Customer.
6.2 FC shall indemnify and hold Customer, and its officers, directors, employees and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (a) a claim alleging that the Application directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; or (b) a claim, which if true, would constitute a violation by FC of its warranties set forth in Section 7.1 below.
6.3 The party seeking indemnification shall (a) promptly give written notice of the claim to the other party; (b) give the other party sole control of the defense and settlement of the claim (provided that the party providing indemnifications may not settle or defend any claim unless it unconditionally releases the other party of all liability); and (c) provide the other party all available information and assistance.
7. Representations and Warranties
7.1. FC warrants that: (a) it has the right, power and authority to enter into this Agreement and to perform all of its obligations hereunder; (b) the performance of such obligations will not conflict with or result in a breach of any agreement to which FC is a party or is otherwise bound; (c) its performance under this Agreement shall comply with all applicable laws, rules and regulations; and (d) it is the owner or authorized licensee of the Application.
7.2. Customer warrants that: (a) it has the right, power and authority to enter into this Agreement and to perform all of its obligations hereunder; (b) the performance of such obligations will not conflict with or result in a breach of any agreement to which Customer is a party or is otherwise bound, including, but not limited to, its website and/or corporate privacy policies; (c) its performance under this Agreement shall comply with all applicable laws, rules and regulations; and (d) it has all permissions for all Customer Data used by FC on behalf of Customer under this Agreement.
7.3. FC warrants to Customer that the Application shall perform in substantial accordance with the functional descriptions of the Application found on the Registration Form. If the Application fails to so conform to that description of the Application, then FC shall make a commercially reasonable effort to correct the Application. All warranty claims related to the Application must be made within the then current Term for such Application.
7.4. OTHER THAN AS SET FORTH IN THIS SECTION 7, FC SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FC DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE APPLICATION WILL BE UNINTURUPTED OR ERROR-FREE; OR (B) THE APPLICATION WILL MEET ALL OF THE CUSTOMER’S REQUIREMENTS.
8. Other Provisions
8.1. Neither party may assign its rights, duties, or obligations under this Agreement to any person or entity without the prior written permission of the other party. However, either party may assign this Agreement in whole or in part, without the other party’s consent in the case of a merger, acquisition, divestiture, consolidation, or corporate reorganization (whether or not the assigning party is the surviving entity).
8.2. This Agreement, along with the information provided by Customer on the Registration Form, which is hereby incorporated by reference, constitutes the entire understanding of the parties and supersedes all prior discussions, negotiations, agreements and understandings, whether oral or written, with respect to its subject matter. This Agreement may be amended only by written instrument signed by both parties. Nothing in this Agreement shall be construed to create a partnership or joint venture relationship between the parties or to authorize either party to act as the agent for the other party.
8.3. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of FC to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by FC in writing.
8.4 This Agreement shall be governed by the laws of the State of Minnesota, excluding its choice of law rules. The exclusive venue for all disputes under this Agreement shall be the state or Federal courts in Hennepin County, Minnesota. The parties hereby disclaim the application of the 1980 U.N. Convention on Contracts for the International Sale of Goods. The English language version of this Agreement will be controlling in the interpretation or application of the terms of this Agreement. Les parties aux présentes ont exigé que le présent contrat soit rédigé en langue anglaise.
8.5. Either party may give notice by written communication sent by first class mail or pre-paid post to the other party’s address set forth in the Registration Form or, in the case of FC, at the address set forth in the "Contact Us" section of the FC website. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post).
These Terms and Conditions are effective as of Novemeber 15, 2011.