TERMS AND CONDITIONS
Please review the following terms and conditions (“Terms of Service” or “Agreement”) that govern Your use, access or purchase (collectively, “Use”) of our websites, mobile applications and APIs (individually and collectively, the “Site”) and related products and services, including subscription services, developer platforms, premium services, plug-ins or any content or information provided as part of the Site (together with the Site, the “Services”). The Services currently include the mobile application Funmatic (and together with its corporate affiliate AI IT NY, Inc., “we,” “our” or “us”).
Your Use of our Services constitutes Your agreement to follow and be bound by these Terms of Service, without modification, and all applicable laws, and any such Use is undertaken at Your own risk. These Terms of Service are subject to change at any time without prior notice. Any changes will be reflected on the Terms of Service page of the Site.
I. WHO WE ARE
The Services provide a lifestyle management system, functioning as a calendar, event discovery tool and database, event creation tool and messaging platform, with integration of Eventbrite and Ticketmaster APIs to identify nearby events based on user geo-aware location and search preference. Please note that Funmatic is not owned, developed or controlled by Eventbrite or Ticketmaster, and Funmatic complies with Eventbrite’s and Ticketmaster’s policies applicable to it, including Eventbrite’s API TOS and Ticketmaster’s Partner API TOS .
The Services enable You to acquire tickets for events, providing You with entry into venues and other establishments. The Services also enable You and other third parties (collectively, “Event Partners”) to create and/or promote events via the Services. We also make available tickets on behalf of third party Event Partners who are not owned, operated or controlled by Funmatic. When You purchase a ticket, You are purchasing the ticket directly from the Event Partner, and You obtain a right to attend the event as granted by the Event Partner. The third party Event Partners are responsible to You for the relevant events, and we are not liable for the event or any actions or inactions of the Event Partners or anything that occurs at any event as further described in Section XXIII below.
Funmatic does not create, own or organize any events published on the Services. Event Partners may use the Services to create, publish, promote, and sell tickets to events created, owned, organized or otherwise affiliated with the Event Partners. Event Partners are solely responsible for ensuring that any page displaying an event on the Services (and the event itself) meet all applicable local, state, provincial, national and other laws, rules and regulations, and that the goods and services described on the event page are delivered as described and in an accurate satisfactory manner.
The Services will also provide You with event recommendations based on Your preferences, interests, location (if enabled by You) and what events Your friends or people like You are going to. You can also buy tickets, or share events with Your friends on Facebook and other social media. In addition, if we authorized by You can sync Your events to Your calendar. The Services also include a messaging feature, allowing You to message other users.
Tickets purchased through the Services will be subject to the terms and conditions provided to You by the Event Partner(s) and the venue of the event, and You acknowledge and agree that we are not a party to such additional terms and conditions. Entry to an event will be in accordance with the rules and regulations of the Event Partner(s) and venue of the event. At no time does Funmatic act as a promoter or organizer of any event displayed on the Services.
II. Your Agreement to These Terms of Service
You may only use our Services if You agree to be legally bound by these Terms of Service. These Terms of Service are a legal agreement between You and AI IT NY, Inc. d/b/a Funmatic (“Funmatic”) for use of the Services.
"You" or “Your” refers to any individual who registers for any Services, or, if the Services are being used on behalf of an entity by an individual authorized to agree to such terms on behalf of such entity, then "You" or “Your” refers to such entity. If You are accessing the Services on behalf of Your employer, You represent and warrant that You have the authority to agree to these Terms of Service on its behalf. If You do not agree with the terms of this Agreement, do not use the Services.
Funmatic reserves the right to update and change the Agreement from time to time without notice or acceptance by You. The Agreement will also be applicable to the use of the Services on a trial basis. By using the Services, You signify Your irrevocable acceptance of this Agreement. The Site and any downloadable content associated with the Services are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
III. Accessing and Using Our Services
The Services may contain information, data, text, photographs, videos, audio clips, written posts and comments, software, source code, scripts, APIs, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services (collectively, "Content").
a. Our License to You
b. Scope of Use
The Services, and any Content viewed through our Services, is solely for Your personal and non-commercial use. Further, the Services, and any Content viewed through our Services, is provided for entertainment purposes only.
c. Upgrades and Modifications
Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Agreement. In order to use the Services, You must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, You must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem, mobile device or other access device. You also understand and agree that the Services may include certain communications from Funmatic, such as service announcements, administrative messages, etc., and that these communications are considered part of the Services and You will not be able to opt out of receiving them. You agree not to access the Services by any means other than through the interfaces that are provided by Funmatic for use in accessing the Services. Funmatic will provide the Services in accordance with this Agreement. Funmatic may at its sole discretion modify the features of the Services from time to time without prior notice.
d. By using the Services, You agree that Funmatic and those acting on its behalf may send You text (SMS) messages at the cell phone number You provide to us in Your Account. Message and data rates apply. You will only be sent text (SMS) messages for the purpose of verifying Your Account. If you refuse to provide a valid phone number which allows us to verify Your Account via a test (SMS) message, You may be prevented from accessing any or all of the Services.
IV. Your Account
An "Account" referred to herein means a Site provided by Funmatic, where You may view Funmatic Content, register for events, and/or use Funmatic to create, update, share, post and publish information, data, text, images, graphics, messages or other materials or information ("User Content").
In order to use certain of the Services, You must have a valid Account. To acquire an Account for the Services, You must provide Funmatic with an electronic mail address and other information ("Registration Data"). You must provide us with true, accurate and complete information at the time You create Your Account, and update any such information promptly in order to keep it true, accurate and complete. You are responsible for maintaining the confidentiality of the access data for Your Account, and are fully responsible for all activities that occur under Your Account.
Funmatic assumes no duty to verify such information as further detailed in the "Content of the Service" section of these Terms of Service. If You provide any information that is untrue, inaccurate, not current or incomplete, or Funmatic has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Funmatic has the right to suspend or terminate Your Account and refuse any and all current or future use of the Services (or any portion thereof).
By creating an Account, You agree to be contacted by Funmatic through various channels, including by e-mail, phone and otherwise. You may subsequently opt-out of such communications at any time by following the “unsubscribe” instructions contained in such communications or contacting us directly at email@example.com and requesting to opt-out. You may lose the ability to access certain of the Services if You decide to opt-out.
a. Who May Use the Service
By using the Services (and registering an Account on the Services), You represent and warrant that You are at least the Lawful Age of majority where you reside. Lawful Age is defined as: at least 16 years of age (or such greater age if required in Your country) if You are accessing the Services from any Country within the European Economic Area; or at least 13 years of age if You are accessing the Services from countries outside of the European Economic Area (or such greater age if required in Your country). The Services are not targeted at children, and no one under the age of 13 is permitted to use the Services. If You are under the age of 13, do not provide us with any information or attempt to create an Account or use the Services. Funmatic may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to You and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent the offering, sale or provision of the Services conflicts with any applicable law, rule or regulation.
b. Unauthorized Use of Your Account
You agree to immediately notify Funmatic of any unauthorized use of Your Account or any other breach of security. Funmatic cannot and will not be liable for any loss or damage arising from Your failure to comply with this section.
V. Proper Use
Funmatic does not claim ownership over any User Content submitted on or through the Services. Your User Content belongs to You. However, by uploading any User Content to the Services, You grant Funmatic and our users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, save, modify, create derivative works, perform, and distribute Your User Content solely for the purposes of operating, developing, providing, and using the Services. Nothing in these Terms restricts other legal rights Funmatic may have to User Content, for example under other licenses. We reserve the right to remove or modify User Content, or change the way it’s used in the Services, for any reason. This includes User Content that we believe violates these Terms of Service or any other policies.
If You choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Services (“Feedback”), then You hereby grant Funmatic an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose without any restrictions, including to improve the Services and create other products and services.
You understand that all User Content is the sole responsibility of the person from which such User Content originated. This means that You, and not Funmatic, are entirely responsible for all User Content that You upload, post, transmit or otherwise make available via Your Account. Funmatic does not control the User Content posted via the Services and, as such, does not guarantee the accuracy, integrity or quality of such User Content.
You understand that by using the Services, You may be exposed to User Content that is offensive, indecent or objectionable. Under no circumstances will Funmatic be liable in any way for any User Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Services. You acknowledge that Funmatic does not pre-screen User Content, but that Funmatic and its designees shall have the right (but not the obligation) in their sole discretion to refuse, modify or move any Content that is available via the Services. Without limiting the foregoing, Funmatic and its designees shall have the right to remove any User Content that violates the Agreement or is otherwise objectionable. You agree that You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, You acknowledge that You may not reasonably rely on any Content created by Funmatic or submitted to Funmatic. You acknowledge and agree that Funmatic may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
a. comply with legal process;
b. enforce the Agreement;
c. respond to claims that any Content violates the rights of third-parties; or
d. protect the rights, property, or personal safety of Funmatic, its users and the public.
If Funmatic discloses Your User Content to comply with legal process or respond to claims that any of Your User Content violates the rights of third-parties, to the extent permitted by law, regulation or legal process, Funmatic agrees to provide You with prompt notice of any such legal or governmental demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest such required disclosure.
You understand that the technical processing and transmission of the Services, including Your User Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You understand that the Services include services that are available via a mobile device, including (i) the ability to browse the Service and the Site from a mobile device and (ii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
Should User Content be found or reported to be in violation with, but not limited to, the following terms, it will be in Funmatic's sole discretion as to what action should be taken. You agree that You will not:
e. upload, post, transmit or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable;
f. harm minors in any way;
g. impersonate any person or entity, including, but not limited to, a Funmatic employee, official or technical support, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
h. forge or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Service;
i. upload, post or otherwise transmit any User Content that You do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
j. upload, post or otherwise transmit any User Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
k. upload, post, or transmit unsolicited commercial email or "spam". This includes unethical marketing, advertising, or any other practice that is in any way connected with "spam", including but not limited to (a) sending mass email to recipients who haven't requested email from You or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions, or (c) promoting Your site by posting multiple submissions in public forums that are identical;
l. upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
m. interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
n. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
o. "stalk" or otherwise harass another;
p. promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices.
q. offer for sale or sell any item, good or service that (i) violates any applicable federal, state, or local law or regulation, (ii) You do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (iii) Funmatic determines, in its sole discretion, is inappropriate for sale through the Services provided by Funmatic;
r. use the Account or Site as a redirecting/forwarding service to another website;
s. exceed the scope of the Services that You have signed up for.
If any user is reported to be in violation with the letter or spirit of these terms, Funmatic retains the right to terminate such account at any time without further warning.
VI. General Practices – Use and Storage
You agree that You will not:
a. upload, post, email, or otherwise transmit any computer routines, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
c. take any action that imposes an unreasonable or disproportionately large load on our infrastructure; or
d. copy, reproduce, alter, modify, or publicly display any information displayed on the Services (except for Your User Content), or create derivative works from our Site (other than from Your User Content), to the extent that such action(s) would constitute copyright infringement or otherwise violate the intellectual property rights of Funmatic or any other third party, except with the prior written consent of Funmatic or the appropriate third party.
VII. Content of the Service
Funmatic takes no responsibility for any third-party Content or User Content (including, without limitation, any viruses or other disabling features), nor does Funmatic have any obligation to monitor such third-party Content. Funmatic reserves the right at all times to remove or refuse to distribute any Content on the Service, such as Content which violates these Terms of Service. Funmatic also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce these Terms of Service, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of Funmatic, its users and the public. Funmatic will not be responsible or liable for the exercise or non-exercise of its rights under this Agreement.
If Funmatic discloses such information to satisfy any applicable law, regulation, legal process or governmental request or to respond to user support requests, to the extent permitted by law, regulation or legal process, Funmatic agrees to provide You with prompt notice of any such demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest such required disclosure.
VIII. Third Party Links, Sites and Services
Sometimes Funmatic may request additional permissions related to the settings on Your mobile device, such as accessing Your location or enabling push notifications in order to carry out certain actions or allow You to enjoy certain features. If You choose not to give us the necessary permissions then You may not be able to access all the features and functions of the Services.
Your express consent will be required in order to enable the use of the Eventbrite and/or Ticketmaster APIs as part of the Services, which will allow Funmatic to (i) access Your Eventbrite and/or Ticketmaster accounts; (ii) retrieve, store and use Content from such account(s); (iii) to write information to such accounts; and (iv) to store historical data relating to such accounts, i.e. event and purchase history. We will provide You with specific notices seeking consent for each purpose for which we will access, retrieve, store use and write each type of Content. If You revoke Your consent, we will delete the corresponding Content related to the consent.
IX. Paid Services
a. Fees. To the extent the Services or any portion thereof is made available for any fee (“Paid Services”), You will be required to provide payment via the mobile application store You used to originally download Funmatic, i.e. the Apple App Store or Google Play Store (“Mobile Platform”). In order to purchase the Paid Services via a Mobile Platform, you must have an active account with such Mobile Platform and provide a current and valid method of payment, such as a credit card or debit card (a "Payment Method"). Your Payment Method provided to the Mobile Platform will be processed by such Mobile Platform and not through Funmatic. Your Payment Method and any information related thereto will not be shared with Funmatic, nor does Funmatic collect, store or process any financial information from You directly. Any inquiries related to payments through your Mobile Platform should be directed to your Mobile Platform directly. You are responsible for all charges incurred in connection with the Paid Services. By subscribing to the Paid Services, You hereby agree to and consent to all terms of service, privacy policies and any other policies applicable to You as a user of the Mobile Platform You use.
If You select any Paid Services with an auto renewal feature (“Recurring Subscription”), You authorize Funmatic (via the Mobile Platform You use) to charge Your account upon the renewal of the Paid Services You choose with no further action required by You. The payment method You select via the Mobile Platform You use will be automatically and immediately billed each month that you subscribe for any Paid Services (“Subscription Fee”), and You agree that Funmatic may charge to Your selected payment method (via the Mobile Platform You use) all amounts due and owing for Your Account on a monthly basis or upon cancellation.
Funmatic may change prices at any time without prior notice, but will endeavor to provide reasonable advance notice via the Site and/or electronic mail. As long as Your Account remains active and in good standing, You will be charged the Subscription Fee (via the Mobile Platform You use) even if You never use the Paid Services.
If Your Subscription Fee payment is overdue, Funmatic will disable Your access to the features provided by the Paid Services, which may prevent You from continuing to access any of the Services.
You may cancel a Paid Service at any time. However, Funmatic does not offer any refunds. If You cancel a Paid Service, You will continue to have access to that Paid Service through the end of Your then current billing period, but You will not be entitled to a refund or credit for any Subscription Fee already due or paid. Each Mobile Platform reserves the right to offer refunds, discounts or other consideration in select circumstances at its sole discretion. Please note that each circumstance is unique and election to make such an offer in one instance does not create the obligation to do so in another.
If at any time the Mobile Platform is unable to charge your selected Payment Method for the Subscription Fee due to insufficient funds, expired or invalid account details, or otherwise, you remain responsible for the cost of such Subscription Fee.
You agree that in the event Funmatic is unable to collect the fees owed to Funmatic for Your Account through automatically charging Your Subscription Fee, Funmatic may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by Funmatic in connection with such collection activity, including collection fees, court costs and attorneys' fees.
Purchases from the Apple App Store: For Paid Services which are purchased via the Apple App Store, the following policies apply to the Paid Services: (1) payment will be charged to Your iTunes account at confirmation of purchase; (2) the subscription automatically renews unless auto-renew is turned off at least 24-hours before the end of the current period; (3) Your Account will be charged for renewal within 24-hours prior to the end of the current period; (4) subscriptions may be managed by You in your iTunes account settings (see “View, change, or cancel your subscriptions” at Apple Support); (5) any unused portion of a free trial period, if offered, will be forfeited when you purchase a subscription to the Paid Services, as applicable.
Purchases from Google Play Store: For Paid Services which are purchased via the Google Play Store, the following policies apply to the Paid Services: If you cancel a subscription for the Paid Services, you will not receive a refund for the current billing period, but the subscription content will remain available for the remainder of the current billing period. We will not provide any refunds for any purchase made via Google Play more than 48 hours after the purchase.
b. Free Trials
The Services may be made available to you on a free trial basis for a limited time ("Trial Subscription"). The specific duration of the Trial Subscription will be specified in the applicable offer at sign-up. Trial Subscriptions are limited to new Users, unless otherwise specified. Your status as a new User will be determined by the Mobile Platform and Funmatic, each in its sole discretion. These Terms of Service apply to any Trial Subscription, unless otherwise specified. At the time of signing up for a Trial Subscription, you must provide the Mobile Platform with a valid payment method in order to use the Services during the Trial Subscription period. Your payment method will not be charged by the Mobile Platform during the Trial Subscription Period.
UPON THE EXPIRATION OF THE TRIAL SUBSCRIPTION, THE SUBSCRIPTION FEE FOR THE SERVICES WILL BE CHARGED TO YOUR PAYMENT METHOD VIA THE MOBILE PLATFORM, UNLESS YOU TIMELY CANCEL THE TRIAL SUBSCRIPTION. PLEASE NOTE THAT YOU WILL NOT BE NOTIFIED THAT YOUR TRIAL SUBSCRIPTION WILL END OR HAS ENDED.
X. Third Party Mobile Platform Terms
a. iOS Subscribers
Accessing the Services via iOS products must be in accordance with the App Store Terms of Service in addition to the Terms of Service set forth herein. You acknowledge and agree that Apple, Inc., ("Apple") and any subsidiaries of Apple, are third party beneficiaries to these Terms of Service. Upon your acceptance of these Terms of Service, Apple will have the right (and be deemed to have accepted the right) to enforce these Terms as a third party beneficiary.
Funmatic may, at its sole discretion, at any time and for any reason, terminate any or all of the Services, terminate this Agreement, or suspend or terminate Your Account. In the event of suspension or termination, Your account will be disabled and You may not be granted access to Your Account or any files or other Content (including Your User Content) contained in Your Account, and Funmatic may delete Your User Content, although residual copies of information may remain in our system for some time for back-up purposes. In the event of termination, Funmatic may also withdraw and at its discretion reallocate the public web address of Your Account.
If You terminate Your Account, via means provided for cancellation on the Funmatic Site, or via telephone call or electronic mail to Funmatic, and You request that Funmatic delete Your User Content and files contained in Your Account, Funmatic will make all reasonable efforts to do so.
XII. Intellectual Property
Funmatic and/or its licensors, as applicable, retain ownership of all proprietary rights in the Services and in all copyright, trade names, trademarks and service marks associated or displayed with the Services. You will not remove, deface or obscure any of Funmatic's or its licensors' copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Services. You may not reverse engineer, reverse compile or otherwise reduce to human readable form any software associated with the Service.
Funmatic is a registered Trademark of AI IT NY, Inc.
Funmatic also respects the intellectual property rights of others and complies with the provisions of the Digital Millennium Copyright Act (17 U.S.C. §512, as amended). If You have an intellectual property rights-related complaint about material posted on the Services, You may contact us at the following address: firstname.lastname@example.org
Any notice alleging that materials hosted by or distributed through the Services infringes intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that You claim has been infringed;
c. a description of the material that You claim is infringing and where it is located on the Services;
d. Your address, telephone number, and email address;
e. a statement by You that You have a good faith belief that the use of the materials on the Services of which You are complaining is not authorized by the copyright owner, its agent, or the law; and
f. a statement by You that the above information in Your notice is accurate and that, under penalty of perjury, You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Upon receiving a valid and fully completed takedown notice that identifies an infringement of copyright or trademark rights, Funmatic will remove or disable access to the allegedly infringing material and notify the alleged infringing party. If Funmatic has removed Your User Content from the Services, You may only repost the User Content if after You have removed the portions of Your User Content that are allegedly infringing. In most instances, we only allow users to re-post User Content we have removed in response to a takedown notice if the complaining party withdraws their complaint.
XIII. Export Restrictions
You acknowledge that the Services, or portion thereof may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
XVI. Injunctive Relief
You acknowledge that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to Funmatic, its affiliates, suppliers and any other party authorized by Funmatic to resell, distribute, or promote the Service ("Resellers"), and under such circumstances Funmatic, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
XV. International Use
Recognizing the global nature of the Internet, You agree to comply with all local rules regarding online conduct and acceptable User Content. Specifically, You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which You reside.
XVI. No Resale of the Service
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Service without the express written permission of Funmatic.
XVII. Your Representations and Warranties
You represent and warrant that (a) all of the information provided by You to Funmatic to participate in the Services is correct and current; and (b) You have all necessary right, power and authority to enter into these Terms of Service and to perform the acts required of You hereunder.
XVIII. No Representations or Warranties by Funmatic
YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED "AS IS" AND FUNMATIC, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR BAILMENT OF YOUR DATA ON FUNMATIC'S SERVERS. FUNMATIC, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, THE SECURITY OF THE SERVICES, THAT THE SERVICES WILL MEET ANY USER'S REQUIREMENTS, THAT THE SERVICES WILL BE FREE FROM ERRORS, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED. USE OF THE SERVICES IS AT YOUR SOLE RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE, SECURITY OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FUNMATIC OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF FUNMATIC'S OBLIGATIONS.
XIX. Indemnification and Release
To the fullest extent of the law, You agree to indemnify, defend and hold harmless Funmatic, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees as and when incurred) arising from Your use of the Services, Your use of Your Account, Your violation of these Terms of Services or the infringement or violation by You or any other User of Your Account, of any intellectual property relating to the Service (including without limitation Your User Content) or other right of any person or entity.
If You are a California resident, You waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist 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.”
If You are a resident of another jurisdiction, You waive any comparable statute or doctrine.
XXVI. Force Majeure.
Funmatic will not be liable for any failure to perform caused by Your failure to comply with these Terms and Conditions or war, strikes or any other cause whatsoever beyond the control of Funmatic or customary force majeure event.
XXI. Modifications to the Service
Funmatic reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice at any time. You agree that Funmatic shall not be liable to You or to any third party for any modification, suspension, termination or discontinuance of the Services.
XXII. No Agency
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship between You and Funmatic is intended or created by these Terms of Service.
XXIII.Limitation of Liability
IN NO EVENT WILL FUNMATIC OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF FUNMATIC, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, FUNMATIC'S, ITS AFFILIATES', SUPPLIERS' AND RESELLERS' MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE PREVIOUS SIX (6) MONTHS.
ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE APP OR SERVICES (INCLUDING, WITHOUT LIMITATION, ANY EVENT PARTNER, VENUE HOST AND/OR EVENT ATTENDEE), IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE FUNMATIC, ITS AFFILIATES, SUPPLIERS AND RESELLERS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
However, if You are a consumer in the EEA, Funmatic’s liability will be limited to foreseeable damages arising due to a breach of material contractual obligations typical for this type of contract. Funmatic is not liable for damages that result from a non-material breach of any other applicable duty of care. This limitation of liability does not apply to any statutory liability that cannot be limited, to liability for death or personal injury caused by our negligence or willful misconduct, or if and to exclude our responsibility for something we have specifically promised to You.
XXIV. Waiver and Severability
Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
XXV. Dispute Resolution and Binding Arbitration
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising of or related to use of Funmatic Services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
XXVI. Choice of Law and Forum
This Agreement shall be governed by and construed under the laws of the State of New York, USA, as applied to agreements entered into and to be performed in New York by New York residents. Subject to and without waiver of the arbitration provisions below, You agree that any judicial proceedings (other than small claims actions in consumer cases as discussed below) will be brought in and You hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of New York City, New York, or federal court for the Southern District of New York.
However, if You are a consumer in the EAA, this section does not deprive You of any protection You have under the law of the country where You live and access to the courts in that country.
XXVII Dispute Resolution and Binding Arbitration
This Section governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us or the Terms of Service or the Services, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
a.Informal Dispute Resolution. Prior to taking any formal action against Funmatic (including arbitration and court actions), You agree to attempt to resolve any dispute You have with Funmatic informally first, by contacting us directly at email@example.com, and providing a brief description of the dispute, Your requested relief, and Your contact information. You agree to attempt to resolve any and all disputes You may have with Funmatic in good faith informally through this mechanism.
b.Arbitration. All disputes, claims, or controversies arising out of or relating to the Terms of Service, the Services, or to Your relationship with Funmatic as a user of the Services (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Terms of Service) that are not resolved by the procedures identified above shall be resolved by individual (not class) binding arbitration to be conducted before a single arbitrator (“Arbitrator”) administered by the American Arbitration Association (https://www.adr.org or 1-800-778-7879) according to this Section and the applicable arbitration rules for that forum (“Arbitration Agreement”). You and Funmatic agree that the Federal Arbitration Act, 9 U.S.C. §§ 1-16, applies and governs the interpretation and enforcement of this Arbitration Agreement, and that the Federal Rules of Evidence and Federal Rules of Civil Procedure shall apply to the arbitration.
The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms of Service, including but not limited to any claim that all or any part of these Terms of Service are void or voidable, or whether a claim is subject to arbitration. The Arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The Arbitrator's award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
If You are a consumer bringing a claim relating to a transaction intended for a personal, household, or family use, any arbitration hearing will occur within the county where You reside. Otherwise, any arbitration hearing will occur in New York City, New York, or another mutually agreeable location.
Funmatic will reimburse the arbitration fees due to the American Arbitration Association for individual arbitrations brought in accordance with this section for all claims totaling less than $10,000, unless the Arbitrator determines that Your claims were frivolous, in which case Funmatic will not reimburse any portion of Your fees due to the American Arbitration Association, unless otherwise required by the applicable law or rules of the American Arbitration Association.
c.Waiver of Jury Trial. YOU AND FUNMATIC WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Funmatic are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between You and Funmatic over whether to vacate or enforce an arbitration award, YOU AND FUNMATIC WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
d.Class Action Waiver. YOU AND FUNMATIC AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both You and Funmatic agree, no Arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The Arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
e.Exceptions for Intellectual Property Rights and Small Claims Actions. Notwithstanding the above agreement to arbitrate all disputes, You and Funmatic both agree that either Funmatic or You may: (1) bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect intellectual property rights, including patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights; or (2) elect to pursue Your claim in Your local small-claims court rather than through arbitration so long as Your matter remains in small claims court and proceeds only on an individual (non-class or non-representative) basis, and such claim within the applicable jurisdictional requirements.
f.Survival and Severability. This Arbitration Agreement will survive the termination of Your relationship with Funmatic. If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms of Service; and (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement.
g.Changes. Notwithstanding the provisions of Section XXIX, if Funmatic changes this Section XXVII (“Dispute Resolution and Binding Arbitration”) after the date You last accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service), You may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date. By rejecting any change, You are agreeing that You will arbitrate any dispute between You and Funmatic in accordance with Section XXVII hereof as of the date You last accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
YOU UNDERSTAND AND AGREE THAT THE ABOVE DISPUTE PROCEDURES SHALL BE YOUR SOLE REMEDY IN THE EVENT OF DISPUTE BETWEEN YOU AND FUNMATIC REGARDING ANY ASPECT OF THE SERVICES (INCLUDING THE ENROLMENT PROCESS) AND THAT YOU ARE WAIVING YOUR RIGHT TO LEAD OR PARTICIPATE IN A LAWSUIT INVOLVING OTHER PERSONS, SUCH AS A CLASS ACTION.
If You are consumer in the EEA, this Section XXVII does not apply to You.
XXVIII. Entire Agreement
This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter.
XXIX. Modifications to this Agreement
Funmatic may change the terms of this Agreement at any time by posting modified terms on its Site. We will do our best to provide You with advance notice of any modifications, but this may not always be possible or practicable.
You may not assign these Terms of Service or any of Your rights or obligations under these Terms of Service without Funmatic’s express written consent. Any attempted assignment in violation of this provision shall be of no effect. However, if You are consumer in the EEA, either You or Funmatic may assign this agreement, and any rights and licenses granted under it, to a third party. In case of such an assignment by Funmatic, You are entitled to terminate the Agreement with immediate effect by deactivating Your Account. Funmatic will provide You with reasonable notice of any such assignment.
XXXI. General Provisions
This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. Any and all rights and remedies of Funmatic upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on Funmatic, and the exercise of any one remedy will not preclude the exercise of any other. These Terms of Service inure to the benefit of Funmatic’s successors, assigns, affiliates and licensees. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement. Notices to You may be made via email, regular mail or the Site. The Service may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices to You generally on the Services. All notices or other correspondence to Funmatic under this Agreement must be sent to the following electronic mail address for such purpose: firstname.lastname@example.org
XXXII. Contact Us
If You have any questions or concerns about the Services or these Terms of Service, or wish to report a violation of these Terms of Service, please contact us at email@example.com.