Please read these terms carefully, as they contain an agreement to arbitrate and other important information regarding your legal rights, remedies, and obligations. the agreement to arbitrate requires (with limited exception) that you submit claims you have against us to binding and final arbitration, and further (1) you will only be permitted to pursue claims against company on an individual basis, not as 4.2 plaintiff or class member in any class or representative action or proceeding, and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
The Websites and Services are intended solely and only available to individuals who are at least eighteen (18) years of age. You may be asked to verify that you are over the applicable age limit during your use of the Websites or Services and you hereby agree that you shall not misrepresent your age. You further represent that any party you invite to participate in any of the Services or related functions with you is also of legal age as described above.
2 USER ACCOUNT
For purposes of these Terms, (a) “Content” means all text, images, photos, audio, video, graphics, reviews, location data, and all other forms of data, communication, or media, (b) “User Content” means Content that users submit or transmit to, through, or in connection with the Websites or Services, such as reviews, favorites, photos, videos, media, messages, social media posts or Services, comments, and information that such user publicly display or displayed in its User Profile, and including any electronic data or information with respect to a User’s customers, (c) “Content” means Content that we create or is otherwise owned by us that we make available in connection with the Websites or Services, (d) “Third Party Content” means Content that originates from parties other than or users of any of the Websites or Services, which is made available in connection with the Websites or Services and not otherwise owned by us, and (e) “Website Content” means all of the Content that is made available in connection with the Websites and/or related mobile applications or Services, including User Content, Third Party Content (and Third Party Material (as defined below)), and Content.
In order to use certain features of the Site (e.g., to use the Services), you must register for an account with RALLY FANS (“RALLY FANS Account”) and provide certain information about yourself as prompted by the Site registration form. You represent and warrant that: (a) all required registration information you submit is truth and accurate; and (b) you will maintain the accuracy of such information at all times. You may not create more than one RALLY FANS Account. RALLY FANS may suspend or terminate your RALLY FANS Account in accordance with Sections 6.4 and 11.
2.1 ACCOUNT DELETION. You may delete your RALLY FANS Account at any time, for any reason, by sending an email to firstname.lastname@example.org which includes your RALLY FANS Account Username and your request to delete your account.
2.2 ACCOUNT RESPONSIBILITIES. You are responsible for maintaining the confidentiality of your RALLY FANS Account login information and are fully responsible for all activities that occur under your RALLY FANS Account. You agree to immediately notify RALLY FANS of any unauthorized use, or suspected unauthorized use, of your RALLY FANS Account or any other breach of security. RALLY FANS cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3 SITE AND MOBILE APP
3.1 LICENSE. Subject to the terms of this Agreement, RALLY FANS grants you a non-transferable, non-exclusive license to use the Site and Services for your personal, noncommercial use. Subject to the terms of this Agreement, RALLY FANS grants you a non-transferable, non-exclusive license to install and use the software RALLY FANS makes available for mobile devices (“Mobile App”), in executable object code format only, solely on your own handheld mobile device and for your personal, noncommercial use. As used in this Agreement, the term “Services” includes the Mobile App.
3.2 RESTRICTIONS. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof.
3.3 MODIFICATION. RALLY FANS reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that RALLY FANS will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
3.4 OWNERSHIP. Excluding User Content, you acknowledge that all the intellectual property rights in the Site and Services are owned by RALLY FANS or RALLY FANS’ licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. RALLY FANS and its suppliers reserve all rights not granted in this Agreement.
3.5 APP PLATFORMS. You acknowledge that this Agreement is between you and RALLY FANS and not with the App Platform; the Apple App Store® or the Google Play® Store (“App Platform”). RALLY FANS is solely responsible for the content, maintenance, support services of the App. You agree to pay all fees charged by the App Platform in connection with the Mobile App. Each App Platform may have its own terms and conditions to which you must agree before downloading the Mobile App from it. You agree to comply with, and your license to use the Mobile App is conditioned upon your compliance with, all applicable agreements, terms, and conditions of use/service, and other policies of the applicable App Platform. You acknowledge that the App Platform (and its subsidiaries) is a third-party beneficiary of this Agreement and will have the right to enforce this Agreement. See Accessing and Downloading the Application from Apple® below for additional terms and conditions if you access or download the Mobile App from the Apple App Store.
4.1 PUSH NOTIFICATIONS. When you install our Mobile App on your mobile device you agree to receive push notifications, which are messages an app sends you on your mobile device even when the Mobile App is not on. You can turn off notifications by visiting your mobile device’s \”settings\” page.
4.2 EMAIL. You agree that we may send you emails concerning our services, as well as those of third parties. You may opt-out of promotional emails by following the unsubscribe instructions in a promotional email.
5 USER CONTENT
You understand and agree that you are solely responsible for compliance with any and all laws, rules and regulations that may apply to your use of the Websites or Services. You acknowledge and agree that RALLY FANS is not responsible for any User Content, including its accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. RALLY FANS does not assume and will not have any liability or responsibility to you or any other person or user for your use or misuse of any User Content.
By submitting User Content, you represent, warrant, and covenant:
That you own, or have the necessary licenses, rights, consents, and/or permissions, and authorize RALLY FANS , its applicable affiliates, the Websites, the Services, and all users thereof, to use such User Content as necessary to exercise the licenses granted by you hereunder (including with respect to all patent, trademark, trade secret, copyright, or other intellectual property or proprietary rights to your User Content, and to any other works that you incorporate into your User Content);
That the creation, distribution, transmission, public display and performance, accessing, downloading, and copying of your User Content does not and will not infringe the proprietary rights or otherwise cause injury to any other person or entity, including any such person or entity using the Websites, Services, or otherwise, and that is under no obligation to post any User Content that you provide and reserves the right to post our own versions of your User Content as Content in our sole discretion;
You may not and will not: Upload, post, transmit, broadcast or otherwise make available any Offensive Content, including any User Content that is unlawful, libelous, defamatory or otherwise objectionable; breach any laws, third-party rights or our systems, policies, or determinations of your account status; review the information and data on our Websites, and/or utilize our Services if you are not able to form legally binding contracts or are temporarily or permanently suspended from using our Websites or Services; upload, post, transmit, broadcast, sell, transfer or otherwise make available any User or Website Content that is false, counterfeit, or that you do not have a right to make available under any law or under contractual or fiduciary relationships ; register for more than one User Profile on any of the Websites, or register for a User Profile on behalf of an individual other than yourself, or a company that you are not authorized to represent or legally bind to a contract; manipulate the price of any item or interfere with any other user’s listings, reviews, and products; take any action that may undermine the feedback or ratings systems of the Websites or Services; transfer your User Profile to another individual or entity without our prior written consent; distribute, promote, advertise, or post spam, unsolicited or bulk electronic communications, chain letters, pyramid schemes or any related content; interfere with any Website processes, servers or networks supporting the Websites and/or RALLY FANS; impair or harm any of our computer or related systems or transmit software viruses, worms, or other damaging files; use any robot, spider, scraper, survey, monitor or other automated or similar means to access any web page or other asset contained in the Websites, Services or Website Content for any purpose; bypass our robot exclusion headers, interfere with the working of our Services, features or tools, or impose an unreasonable or disproportionately large load on our infrastructure; export or re-export any RALLY FANS’ application or tool except in compliance with the export control laws of any relevant jurisdictions and in accordance with all relevant posted rules and restrictions; insult, threaten, stalk, harass, mislead or deceive other users of the Websites or Services, or in any way promote the discrimination or defamation of other users, or create any other objectionable material; intentionally or unintentionally violate any applicable local, state, national or international law, rule or ordinance, including, but not limited to, regulations promulgated by the U.S. Copyright Office, U.S. Patent and Trademark Office, U.S. Securities and Exchange Commission, the Internal Revenue Service, the European Enforcement Directive of 2004, or 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 other regulations and/or guidelines having the force of law; provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the United States Immigration and Nationality Act; refuse to acknowledge that RALLY FANS may establish general practices and limitations concerning use of the Websites and Services, including without limitation restrictions concerning User Content provided by You for use on the Websites and Services, the type and quantity of transactional data stored and presented in connection with your account, the maximum disk space that will be allotted on RALLY FANS’ servers on Your behalf, and the maximum number of times (and the maximum duration for which) You may access the Websites and Services in any given period of time; export any Website Content out of the jurisdiction in which it is intended or displayed; access the Websites or Services in order to build a similar or competitive Website or Service; send electronic transmissions (including but not limited to interactive monetary offers, audio-video communications, email, search queries, chat and other Internet activities) as interstate communications; circumvent any technical measures we use to provide Services; or assist any third party with any of the foregoing: You fully understand, acknowledge and agree that RALLY FANS may, under certain circumstances and without prior notice, immediately terminate your RALLY FANS User Profile and access to the Websites, Services and any other related or affiliated applications, functions and tools. Cause for account termination or suspension shall include, but not be limited to: (1) breaches or violations of these Terms or other incorporated agreements, guidelines, or rules; (2) requests by law enforcement or other local, state or federal government agencies or divisions; (3) any attempts to breach our security, private accounts or other protected content on the Websites; (4) discontinuance or significant modification to the Websites or Services, or any related or affiliated website owned and/or operated by RALLY FANS (or any part thereof); (5) unforeseen technical, electronic, mechanical or any other difficulties or security issues; (6) prolonged inactivity of Your account, which shall be determined by RALLY FANS; (7) knowing, willing and/or negligent engagement by you in any form of deceitful, fraudulent, counterfeit or illegal activities; and/or (8) failure by you, or by your representatives, to pay, in full, any fees owed by you in connection with the Websites or any related or affiliated Service, business or website. Termination of a User Profile will deny you access to our Services, delay or remove User Content that you submitted or commented on, remove any special status associated with your account(s), remove and demote listings, reduce or eliminate any discounts or special offers, and take technical and/or legal steps to prevent you from using our Websites and Services in the future. RALLY FANS has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.
5.1 LICENSE. You hereby grant, and you represent and warrant that you have the right to grant, to RALLY FANS an irrevocable, nonexclusive, royalty-free and fully-paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
If you provide RALLY FANS any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to RALLY FANS all rights in the Feedback and agree that RALLY FANS shall have the right to use such Feedback and related information in any manner it deems appropriate. RALLY FANS will treat any Feedback you provide to RALLY FANS as non-confidential and non-proprietary. You agree that you will not submit to RALLY FANS any information or ideas that you consider to be confidential or proprietary.
7 ACCEPTABLE USE POLICY. The following sets forth RALLY FANS’ “Acceptable Use Policy”:
7.1 REVIEWS, COMMENTS AND USE OF OTHER INTERACTIVE AREAS.
You must have a valid account and email address to leave a review on RALLY FANS . Prior to posting a review, you will need to verify your email address associated with your RALLY FANS account. You agree not to post reviews on the Site, Services, or any of RALLY FANS’ social media pages or channels that are not based upon your personal experience or are otherwise designed for any purpose other than providing other users on the Site with an accurate description of your personal experience. Reviews based on secondhand, non-personal experience are not allowed. In addition to the other restrictions contained in the Acceptable Use Policy, reviews posted on the Site, Services, or any of RALLY FANS ’ social media pages or channels must not: (a) be written exclusively in capital letters; (b) be plagiarized; (c) contain spam, advertisements, and/or links to external websites; (d) contain disparaging information about any Dispensary employees or any other person, (e) contain overly detailed or sexual descriptions of an individual’s physical appearance, or lewd personal attacks against a specific individual or group of individuals affiliated with the Dispensary, (f) contain references to Dispensaries or competitors other than the product or Dispensary being reviewed, or (g) contain unrelated personal grievances. If you are an owner, volunteer, or employee of a Dispensary you may not post reviews about your Dispensary or products or about your competitors’ Dispensary or products.
If it is determined that you retain moral rights (including rights of attribution or integrity) in your Content, you hereby declare that, to the extent permitted by applicable law, (a) you do not require that any personally identifying information be used in connection with the Content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of your Content by the RALLY FANS Companies or their licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of your Content; and (d) you forever release the RALLY FANS Companies and their licensees, successors and assigns, from any claims that you could otherwise assert against the RALLY FANS Companies by virtue of any such moral rights.
Note that any feedback and other suggestions you provide may be used at any time and we are under no obligation to keep them confidential.
The Services may contain discussion forums, bulletin boards, review services, travel feeds or other forums in which you may post your Content, such as reviews of travel experiences, messages, materials or other items (“Interactive Areas”). If RALLY FANS provides such Interactive Areas on the websites, you are solely responsible for your use of such Interactive Areas and use them at your own risk. The RALLY FANS Companies do not guarantee any confidentiality with respect to any of your Content you provide to the Services or in any Interactive Area. To the extent that any entity that is one of the RALLY FANS Companies provides any form of private communication channel between Account Holders, you agree that such entity(ies) may monitor the substance of such communications in order to help safeguard our community and the Services. You understand that the RALLY FANS Companies do not edit or control the user messages posted to or distributed through the Services, including through any chat rooms, bulletin boards or other communications forums, and will not be in any way responsible or liable for such messaging. In particular, RALLY FANS does not edit or control users’ Content that appears on the websites. The RALLY FANS Companies nevertheless reserve the right to remove without notice any such messaging or other Content from the Services, where they believe in good faith that such Content breaches this Agreement or otherwise believe the removal is reasonably necessary to safeguard the rights of the RALLY FANS Companies and/or other users of the Services. Should you disagree with the removal of your Content from the websites, you may contact RALLY FANS using the Customer Services to make your objections. By using any Interactive Areas, you expressly agree only to submit Content of yours that complies with RALLY FANS ’ published guidelines, as are in force at the time of submission and made available to you by RALLY FANS . You expressly agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Services any Content of yours that:
Is false, unlawful, misleading, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing (or advocates harassment of another person), threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
Is patently offensive to the online community, such as that which promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
Would constitute, encourage, promote or provide instructions for conduct of an illegal activity, a criminal offense, give rise to civil liability, violate the rights of any party in any country of the world, or that would otherwise create liability or violate any local, state, national or international law, including, without limitation, the regulations of the U.S. Securities and Exchange Commission (SEC) or any rules of any securities exchange, including but not limited to, the New York Stock Exchange (NYSE), the NASDAQ or the London Stock Exchange;
Provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. In particular, content that promotes an illegal or unauthorized copy of another’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music or links to pirated music files;
Constitutes mass mailings or “spamming”, “junk mail”, “chain letters” or “pyramid schemes”;
Impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity, including the RALLY FANS Companies;
Is private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers. Note that an individual’s surname (family name) may be posted to our websites, but only where express permission of the identified individual has been secured beforehand;
Contains restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page);
Include or are intended to facilitate viruses, corrupted data or other harmful, disruptive or destructive files;
Is unrelated to the topic of the Interactive Area(s) in which such Content is posted; or
In the sole judgment of RALLY FANS , (a) violates the previous subsections herein, (b) violates RALLY FANS ’s related guidelines as made available to you by RALLY FANS , (c) is objectionable, (d) restricts or inhibits any other person from using or enjoying the Interactive Areas or any other aspect of the Services, or (e) may expose any of the RALLY FANS Companies or their users to any harm or liability of any type.
The RALLY FANS Companies take no responsibility and assume no liability for any Content posted, stored, transmitted or uploaded to the Services by you (in the case of your Content) or any third party (in the case of any and all Content more generally), or for any loss or damage thereto, nor are the RALLY FANS Companies liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of interactive services, the RALLY FANS is not liable for any statements, representations or any other Content provided by its users (including you as to your Content) in the websites or any other forum. Although the RALLY FANS has no obligation to screen, edit or monitor any of the Content posted to or distributed through any Interactive Area, RALLY FANS reserves the right, and has absolute discretion, to remove, screen, translate or edit without notice any Content posted or stored on the Services at any time and for any reason, or to have such actions performed by third parties on their behalf, and you are solely responsible for creating backup copies of and replacing any Content you post or otherwise submit to us or store on the Services at your sole cost and expense.
Any use of the Interactive Areas or other aspects of the Services in violation of the foregoing violates the terms of this Agreement and may result in, among other things, termination or suspension of your rights to use the Interactive Areas and/or the Services more generally.
Restricting RALLY FANS’ License Rights.
You may elect on a going forward basis to limit the RALLY FANS Companies’ use of your Content under this Agreement (as described above) by opting to provide the RALLY FANS Companies with a more limited license as described further below (such limited license to be referred to herein as a “Restricted License”). You may make this election by selecting such Restricted License grant here (note that to do so you shall need to be logged into your account). If you make this election, the rights you grant the RALLY FANS Companies to your Content pursuant to the license terms set forth above (referred to as the “Standard License”) shall be limited in some important ways described in paragraphs 1 through 6 directly below, such that the RALLY FANS Companies shall not hold a Standard License to any of your Content other than the text-based reviews and associated bubble ratings you post (as to which the RALLY FANS Companies shall continue to be granted a Standard License), but shall be granted a “Restricted License” as to the balance of your Content as defined below:
When you post your Content to the Services, the license you grant the RALLY FANS Companies in Your Content shall be limited to a nonexclusive, royalty-free, transferable, sublicensable, and worldwide license to host, use, distribute, modify, run, reproduce, publicly display or perform, translate, and create derivative works of your Content for purposes of displaying such on the Services, as well as using your name and/or trademark in connection with that Content. Subject to Paragraph 6 below, the Restricted License applies to any of your Content (again, other than text-based reviews and associated bubble ratings) you or another on your behalf (e.g., a third party that contributes to or otherwise manages your account) make available on or in connection with the Services.
As to any individual item of your Content that is subject to the Restricted License, you can terminate the RALLY FANS Companies’ license rights hereunder to such by deleting such post from the Services. Correspondingly, you may terminate the RALLY FANS Companies’ license rights in all of your Content that is subject to the Restricted License by terminating your account (a description of how to do so is available here). Notwithstanding anything to the contrary, your Content (a) shall remain on the Services to the extent you shared it with others and they copied it or stored it prior to you deleting it or terminating your account, (b) may continue to be displayed upon the Services for a reasonable amount of time after you delete it or terminate your account as we seek to remove it, and/or (c) may be retained (but not publicly displayed) for technical, fraud moderation, regulatory or legal reasons in backup copy form for a period of time.
The RALLY FANS Companies will not use your Content in advertisements for the products and services of third parties to others without your separate consent (including sponsored Content), although you agree and understand that the RALLY FANS Companies may place advertising and promotions on the Services alongside, near, adjacent, or otherwise in close proximity to your Content (including, for video or other dynamic content, before, during or after its presentation), as well as the Content of others. In all instances in which your Content is displayed on the Services, we shall provide attribution by using the name and/or trademark that you submit in connection with your Content.
The RALLY FANS Companies will not give third parties the right to publish your Content beyond the Services. However, sharing your Content on the Services (save for our “Trips” feature, which can be made private) shall result in your Content being made “public” and we will enable a feature that allows other users to share (by way of embedding that public post or otherwise) such Content of yours (save, as noted, Trips you configure to be private) onto third-party services, and we will enable search engines to make that public Content of yours findable through their services.
Except as modified by paragraphs 1 through 6 of this section of this Agreement, your and our rights and obligations shall remain subject to the balance of the terms of this Agreement. The license you grant the RALLY FANS Companies as modified by these paragraphs 1-6 shall be referred to as a “Restricted License”.
For the sake of clarity, the Content you submit to the Services in connection with other RALLY FANS Companies services or programs is not subject to the Restricted License, but shall instead be governed by the terms and conditions associated with that specific RALLY FANS service or program.
7.2 IMAGES AND PHOTOS. Image files must exclusively feature the products they illustrate and must not include body parts, messy or cluttered backgrounds, product wrapping, currency, paraphernalia, brand names, or other any objects other than the product itself. Image files must be clear and must not be blurry, fuzzy, or contain any flash reflections. Products should be centered in the image file. Image files must contain an accurate depiction of the product they illustrate. Image files cannot contain pornography or other graphic images and must otherwise abide by the guidelines set forth in this Section 6.
7.3 TECHNOLOGICAL RESTRICTIONS. In addition, you agree not to use the Site or Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including email addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (e) attempt to or impersonate another user or RALLY FANS or gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; (f) harass or interfere with another user’s use and enjoyment of the Site or Services; or (g) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services.
7.4 MONITORING, SUSPENSION, AND TERMINATION. We reserve the right (but have no obligation) to review any User Content (including any image files or reviews), investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your RALLY FANS Account in accordance with Section 11, and/or reporting you to law enforcement authorities) if we in our sole discretion suspect that you have violated the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
You agree to indemnify and hold RALLY FANS (and its officers, employees, and agents) harmless from any and all losses, damages, liabilities, claims, actions, judgments, awards, penalties, fines, costs and/or expenses (including reasonable attorneys’ fees) arising from or relating to any claim or demand made by any third party due to or arising out of (i) your use or misuse of the Site or Services, (ii) your User Content, (iii) your violation of this Agreement; or (iv) your violation of applicable laws or regulations. RALLY FANS reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of RALLY FANS . RALLY FANS will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
THIRD-PARTY INTERACTIONS; THIRD-PARTY MATERIALS; DEALS; MENUS; OTHER USERS; RELEASE.
9 THIRD-PARTY INTERACTIONS; THIRD-PARTY MATERIALS; DEALS; MENUS; OTHER USERS; RELEASE.
9.1 THIRD-PARTY INTERACTIONS. During use of the Site or Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third-party service providers, advertisers, or sponsors showing their goods and/or services through the Service. In particular, RALLY FANS is not a party to any transaction that you may enter into with a third-party. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between you and the applicable third-party. The RALLY FANS shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction, or promotion between you and any such third-party. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third party you interact with through the Service.
9.2 THIRD-PARTY MATERIALS.
The Site or Services might display, include, or make available third-party content (including data, information, articles applications or other products, services and/or materials) or contain links to third party websites, services, and advertisements for third parties such as Deals and Menus, including pricing, product names, and product descriptions each Menu (defined below) (collectively, “Third-Party Materials”). You acknowledge and agree that RALLY FANS is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. RALLY FANS does not assume and will not have any liability or responsibility to you or any other person or user for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk. When you link to a Third-Party Material, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Material.
9.3 DEALS. The Site or Services might display, include, or make available coupons, promotional codes, giveaways, samples, and other offers from listed Rally Competitions (collectively, “Deals”). Deals constitute “Third Party Materials” under this Agreement. RALLY FANS displays these Deals on the Site and Services as a form of advertisement for the listing Rally Competitions (the “Offeror”) only. All Deals are offered directly by the applicable Offeror, and may be subject to additional terms, conditions, or restrictions of the Offeror or under applicable law, whether or not such additional terms, conditions, or restrictions are expressly included on the Site or Services. The Offeror, and not RALLY FANS , is solely responsible for: (a) redemption of the Deal; (b) compliance of all aspects of the Deal with applicable law (including without limit, the advertisement, redemption, and terms, conditions and restrictions related thereto); (c) all goods and services it provides to you in connection with the Deal; and (d) all injuries, illnesses, damages, claims, liabilities and costs it may cause you to suffer, directly or indirectly, in full or in part, whether related to the use or redemption of a Deal or not.
9.4 OTHER USERS. Each user of the Site or Services is solely responsible for any and all of its User Content and Third-Party Materials. Because we do not control User Content and/or Third-Party Materials, you acknowledge and agree that we are not responsible for any User Content and/or Third-Party Materials, we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content and/or Third-Party Materials, and we assume no responsibility for any User Content and/or Third-Party Materials. Your interactions with other Site or Service users are solely between you and such user. You agree that RALLY FANS will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site or Service user, we are under no obligation to become involved.
INFORMATIONAL PURPOSES ONLY: CONTENT POSTED BY RALLY FANS ON ANY WEBSITE, MOBILE APPLICATION, SOCIAL MEDIA CHANNEL, THIRD-PARTY CONTENT SERVICE, OR ADVERTISEMENT IS FOR INFORMATIONAL PURPOSES ONLY. RALLY FANS DOES NOT ENDORSE, AND IS NOT RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF, ANY OPINION, ADVICE, STATEMENT, OR OTHER INFORMATION MADE ON THE SITE OR SERVICES, INCLUDING USER CONTENT AND THIRD-PARTY MATERIALS (EACH AS DEFINED BELOW). RALLY FANS IS NOT RESPONSIBLE FOR YOUR RELATIONSHIP WITH OTHER USERS OF THE SITE OR SERVICES. RALLY FANS IS NOT OBLIGATED TO SCREEN RALLY COMPETITIONS, OR THEIR MENUS, CONTENT, OR DEALS TO DETERMINE WHETHER THEY ARE QUALIFIED OR AUTHORIZED BY LAW TO PROVIDE THEIR SERVICES OR TO DETERMINE THE ACCURACY OF THEIR MENUS OR OTHER INFORMATION THEY PROVIDE.
YOU HEREBY RELEASE AND FOREVER DISCHARGE RALLY FANS (AND OUR OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, AND ASSIGNS) FROM, AND HEREBY WAIVE AND RELINQUISH YOUR RIGHTS WITH RESPECT TO, EACH AND EVERY PAST, PRESENT AND FUTURE DISPUTE, CLAIM, CONTROVERSY, DEMAND, RIGHT, OBLIGATION, LIABILITY, ACTION AND CAUSE OF ACTION OF EVERY KIND AND NATURE (INCLUDING PERSONAL INJURIES, DEATH, AND PROPERTY DAMAGE), THAT HAS ARISEN OR ARISES DIRECTLY OR INDIRECTLY OUT OF, OR RELATES DIRECTLY OR INDIRECTLY TO, ANY INTERACTIONS WITH, OR ACT OR OMISSION OF, OTHER SITE OR SERVICE USERS, THIRD-PARTY INTERACTIONS, OR THIRD-PARTY MATERIALS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
THE SITE AND SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, RALLY FANS (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
11 LIMITATION ON LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL RALLY FANS (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, RALLY FANS’ (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID RALLY FANS IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services (including your RALLY FANS Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of this Agreement. Upon termination of this Agreement, your RALLY FANS Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your RALLY FANS Account involves deletion of your User Content associated therewith from our Site, Services, and live databases. RALLY FANS will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your RALLY FANS Account or deletion of your User Content.
13 COPYRIGHT INFRINGEMENT
RALLY FANS will, in appropriate circumstances and at its discretion, disable, eliminate access and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights of others.
In accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”), the text of which can be found on the U.S. Copyright Office website, RALLY FANS will respond appropriately to claims and reports of copyright infringement taking place on or through the Websites.
If you are a copyright owner, an authorized representative of a copyright owner, or an authorized representative permitted to act under an exclusive right per an applicable copyright, please report alleged copyright infringements taking place on or through the Websites by completing the following DMCA Notice of Alleged Infringement and delivering it to RALLY FANS in accordance with the DMCA and these Terms. Upon receipt of a properly completed and delivered DMCA Notice of Alleged Infringement, RALLY FANS will take whatever action it deems appropriate in its sole discretion, but subject to its obligations under the DMCA, including removal of the challenged material from the Websites.
DMCA Notice of Alleged Infringement (“Notice”)
Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – provide a comprehensive list of the copyrighted works that you claim have been infringed.
Identify the material that you claim is infringing (i.e. the material you want removed, or material that you want all access disabled to) and provide information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Websites where such material may be found.
Provide your mailing address, telephone number, and, if available, email address.
Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent or the law.”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all above items completed, to RALLY FANS:
NANO NINO INC. – RALLY FANS
C/Doctor Sapena 54, 5
03013 Alicante, Spain
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a Notice automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the Notice and allegation of copyright infringement.
14 ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE.
Except for disputes brought in small claims court, all disputes between you and RALLY FANS arising out of, relating to or in connection with the Site or Services shall be exclusively settled through binding arbitration pursuant to the then-current rules of the American Arbitration Association (“AAA”) for commercial arbitration. There is no judge or jury in arbitration. Arbitration procedures are simpler and more limited than rules applicable in court and review by a court is limited. YOU AND RALLY FANS AGREE THAT ANY SUCH ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Notwithstanding any provision in this Agreement to the contrary, if the class-action waiver in the prior sentence is deemed invalid or unenforceable, however, neither you nor we are entitled to arbitration. This arbitration agreement is subject to the Federal Arbitration Act. The arbitrator’s award may be entered in any court of competent jurisdiction. Notwithstanding any provision in this Agreement to the contrary, we agree that if RALLY FANS makes any future change to this dispute resolution provision, it will not apply to any individual claim(s) that you had already provided notice of to RALLY FANS . Information on AAA and how to start arbitration can be found at www.adr.org or by calling 800-778-7879. If the arbitration in this Section provision is found unenforceable or to not apply for a given dispute, then the proceeding must be brought exclusively in a court of competent jurisdiction in California. You hereby accept the exclusive jurisdiction of such court for this purpose. This Agreement is governed by the laws of the State of Washington without regard to conflict of law provisions.
14.1 PRE-ARBITRATION DISPUTE RESOLUTION. We are always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”).
14.2 CONFIDENTIALITY. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
14.3 CHANGES TO ARBITRATION AGREEMENT. Notwithstanding any provision in these Terms to the contrary, we agree that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Notice Address provided in Section below. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
15 SUPPORT OR MAINTENANCE.
You acknowledge and agree that RALLY FANS will have no obligation to provide you with any support or maintenance in connection with the Site or Services.
We may amend these Terms at any time in our sole discretion. If we do so, we will post the modified Terms on the Service. The modifications will be effective immediately. You agree to review these Terms periodically so that you are aware of any modifications. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
17 INTELLECTUAL PROPERTY RIGHTS RALLY FANS name; the RALLY FANS logo; the RALLY FANS colors combination; and the RALLY FANS tile designs (collectively, the “Marks”) are used trademarks of RALLY FANS and Nano Nino Inc., Apple®, App Store®, and iTunes® are registered trademarks of Apple, Inc. (“Apple”). Google Play™ is a trademark of Google, LLC. You acknowledge and agree that You are not permitted to use RALLY FANS ’s Marks or any third-party marks displayed on our site without prior written consent from, respectively, Nano Nino, Inc., Apple, or the owners of such third-party marks.
18 ACCESSING AND DOWNLOADING THE APPLICATION FROM APPLE.
The following additional terms apply to any Mobile App accessed through or downloaded from the iTunes® or the App Store® (“App Store Sourced Mobile App”):
(a) You acknowledge and agree that (i) this Agreement is concluded between you and RALLY FANS only, and not Apple, and (ii) that RALLY FANS , not Apple, is solely responsible for the App Store Sourced Mobile App and content thereof. The license granted to you in the Agreement to use the App Store Sourced Mobile App and Service is a non-transferable right to use the App Store Sourced Mobile App on any Apple Device that you own or control, and only as permitted by the Usage Rules set forth in the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Mobile App.
(c) In the event of any failure of the App Store Sourced Mobile App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Mobile App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Mobile App. As between RALLY FANS and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of RALLY FANS .
(d) You and RALLY FANS acknowledge that, as between RALLY FANS and Apple, Apple is not responsible for addressing any claims you have or any claims of any third-party relating to the App Store Sourced Mobile App or your possession and use of the App Store Sourced Mobile App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and RALLY FANS acknowledge that, in the event of any third-party claim that the App Store Sourced Mobile App or your possession and use of that App Store Sourced Mobile App infringes that third-party’s intellectual property rights, as between RALLY FANS and Apple, RALLY FANS , not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(f) You and RALLY FANS acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Mobile App, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Mobile App against you as a third-party beneficiary thereof.
(g) You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
(h) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Mobile App.
This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision, nor shall any single or partial exercise by RALLY FANS of any right or power hereunder preclude further exercise of that or any other right hereunder. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Nothing contained herein shall be construed to establish an employment, partnership, or joint venture relationship between you and RALLY FANS . This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without RALLY FANS ’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
20 CONTACT US:
For questions about the Websites or related mobile applications or any of the Services we provide, please feel free to contact our Customer Service department at
NANO NINO INC. – RALLY FANS
C/Doctor Sapena 54, 5
03013 Alicante, Spain