Field Day Terms of Service

Last Updated on October 20, 2017 Local Store Identity, Inc. d/b/a Field Day, a Delaware Corporation ( “Field Day”, “us” or “we”), owns and operates this website located at www.fielddayapp.io, the related mobile Site and mobile applications, and selected other domains (collectively, the “Site”). These terms of service (“Terms”) constitute a legally binding agreement (the “Agreement”) made by and between Field Day and the user of the Site (personally and, if applicable, on behalf of the entity for whom you are using the Site; collectively “you”, “your” or “User”). These Terms govern your use of the services we make available on the Site (“Services”). BY REGISTERING FOR AND USING THE FIELD DAY SITE, YOU CERTIFY THAT (1) YOU ARE AT LEAST 18 YEARS OLD; (2) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND YOURSELF OR THE COMPANY YOU REPRESENT; AND (3) YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE ARBITRATION PROVISION, A WAIVER OF CLASS-ACTION RIGHTS, AND LIMITATIONS OF LIABILITY. YOU ALSO AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE PRIVACY POLICY, WHICH DESCRIBES HOW WE COLLECT, USE AND DISCLOSE YOUR DATA AND WHICH IS INCORPORATED INTO THIS AGREEMENT BY REFERENCE. IF YOU DO NOT AGREE TO BE SO BOUND, YOU MAY NOT ACCESS OR USE THE SITE OR ANY OF ITS SERVICES. IN ADDITION, IF YOU HAVE BEEN PREVIOUSLY PROHIBITED FROM ACCESSING THE SITE OR THE WEBSITE OF ANY OF OUR AFFILIATES, YOU ARE NOT PERMITTED TO ACCESS THIS SITE. This Agreement consists of the Terms including all policies, procedures and/or guidelines that appear on the Site from time to time (collectively, the "Policies" which are hereby incorporated by this reference into, and made part of, this Agreement).
1. Field Day's Role a. Field Day provides an online and mobile application service to allow Clients (defined below) and Brand Ambassadors (defined below) to enter into and complete transactions for certain marketing campaigns. “Client" means you, if you use the Site to request that a Brand Ambassador perform Services, "Brand Ambassador" means you, if you use the Site to perform Services for a Client, and “Services” shall mean any service that you sell, offer to sell, request, purchase, and/or provide on or through the Site in accordance with this Agreement. Field Day and its affiliates act strictly as a service provider to Clients and Brand Ambassadors. As a result, we have no control over the quality, safety or legality of the Services, the ability of Brand Ambassadors to provide the Services to Clients' satisfaction, or the ability of Clients to pay for Services. We are not responsible for the actions of any Client or Brand Ambassador, including, but not limited to, the manner in which a Client operates, and is not involved in the hiring, firing, discipline or working conditions of the Brand Ambassador. All rights and obligations for the purchase and sale of Services or any deliverables are solely between a Client and a Brand Ambassador. Clients shall furnish all permits, consents, licenses, and supplies, if any, necessary to perform the Services, at Client’s sole cost. Clients and Brand Ambassadors must look solely to the other for enforcement and performance of all the rights and obligations arising from Services and any other terms, conditions, representations, or warranties associated with such dealings. b. WE DO NOT CONDUCT ANY SCREENING OR OTHER VERIFICATION WITH RESPECT TO CLIENTS OR BRAND AMBASSADORS, NOR DO WE PROVIDE ANY RECOMMENDATIONS. AS A CLIENT OR A BRAND AMBASSADOR, YOU USE THE SITE AT YOUR OWN RISK. c. BRAND AMBASSADORS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OF FIELD DAY. d. Subject to your compliance with these Terms, we grant you a personal, limited, non-exclusive, non-transferable, and revocable right to access the Site and use the Services for your use as we intend by these Terms during the Term of this Agreement. Field Day reserves the right to monitor the Site for the purpose of determining that your usage complies with these Terms. e. You may not use the Site or Services other than as expressly permitted by the Terms. Without limitation, you will not, directly or indirectly, or permit a third-party to: (a) copy, reproduce, modify, distribute, display, create derivative works of or transmit any content on the Site; (b) reverse engineer, decompile, tamper with or disassemble the technology used to provide the Services or Site (except as and only to the extent any foregoing restriction is prohibited by a non-waivable provision of applicable law); (c) interfere with or damage the Services, Site, or any underlying technology; (d) impersonate or misrepresent your identity or affiliation; (e) attempt to obtain unauthorized access to the Services or Site; (f) collect information about Users of the Site or the Services without the Users’ written approval except as provided herein; (g) violate, misappropriate or infringe a third-party’s intellectual property or any other right; (h) violate any law, rule, or regulation, or (i) interfere with any third-party’s ability to use or enjoy, or our ability to provide, the Services or Site.
2. Your Registration and Your Account a. When you register with the Site, you will be asked to provide us with, at a minimum, your name and a valid email address in order to access certain content and Services on the Site. You agree to provide us with true and accurate information, and to update that information to the extent it changes in any way. When registering or updating your information, you will not impersonate any person or use a name that you are not legally authorized to use. Brand Ambassadors may also be asked to provide demographic information and certain tax information upon request. b. You consent to us sending you notifications (if any), approvals (if any), and other communications relating to the Services and this Agreement to the email address then-currently associated with your User account. You will be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your User account is no longer current. c. You are solely responsible for maintaining the secrecy and security of your password. You may not disclose your password to any third-party (other than third parties authorized by you to use your User account) and are solely responsible for any use of or action taken under your User account on the Site. We may remove or reclaim your username if we believe it is appropriate (such as in a response to a trademark claim). d. You agree to notify Field Day promptly of any suspected or actual unauthorized use of your User account or any other breach of security. We will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or User account, either with or without your knowledge to the fullest extent permitted by applicable law. We reserve the right to suspend or terminate your use of this Site if we believe that your password is being used without your permission or otherwise in a manner that may disrupt the Site. e. Field Day has no obligation to retain a record of your account or any data or information that you may have stored for your convenience by means of your User account, or the Services.
3. Your Use of the Site a. Clients must pay Brand Ambassadors for their Services in accordance with the “Payments” section below. b. You agree that you will only accept Services from Brand Ambassadors that have been submitted through the Site. c. You may only register once as a Brand Ambassador with Field Day. Further, you may only access your Brand Ambassador account from one device at any given time. d. You specifically agree to the following: (a) you will not use robots, scripts or other automated methods to complete the Services; (b) you will provide Clients for whom you perform Services with any information reasonably requested by them in connection with your performance of such Services; (c) you are responsible for, and will, comply with all applicable laws and registration requirements; (d) this Agreement does not create an association, joint venture, partnership or franchise, employer/employee relationship between Client and Field Day, Brand Ambassador and Client, or Brand Ambassadors and Field Day; (e) further or promote ant criminal activity or provide instructional information about illegal activities; and (f) you will not represent yourself as an employee of a Client or Field Day. If you have any questions about your obligations to comply with local laws and regulations pursuant to this Section, you should seek independent legal advice. e. As a Client or Brand Ambassador, you may not sell, offer for sale, request, purchase, or provide any Services that violates applicable law or otherwise prohibited by the Policies. f. Client and Brand Ambassador each covenants to act with good faith and fair dealing in performance of their respective obligations relating to the Services. Your use of the Site is at your own risk. Because Field Day acts as a liaison between Clients and Brand Ambassadors, Field Day will not be involved in resolving any disputes related to or arising out of the Services or any transaction, except and only to the extent deemed necessary and appropriate by Field Day.
4. Content a. Any message, posting or listing made in any public area of the Site or through a Field Day feedback feature, including, but not limited to, submission of any information, feedback, content, data or other materials are hereinafter referred to collectively as the “Public Content”. Any user provided content, including, but not limited to, any communications, images, sounds, videos, and all the material, data, and information that you may upload, publish, display or otherwise transmit through the Site or Services (“User Content”) are hereinafter together with the Public Content, referred to as the “Content”. b. By posting any Content while using our Services, you agree, represent, and warrant as follows: (a) you have all rights, licenses, consents and releases necessary to grant Field Day the required rights to disseminate any Content; and (b) neither your Content nor your posting, uploading, publication, submission or transmittal of this Content or Field Day’s use of your uploaded Content (or any portion thereof) on, through or by the means of the Site, will infringe, misappropriate or violate a third-party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights or rights of publicity or privacy or result in the violation of any applicable law or regulation. You further agree to not provide Content that is defamatory, libelous, hateful, obscene, pornographic, unlawful, or otherwise objectionable. c. By sharing, submitting or uploading any Content, you grant Field Day a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sublicensable and transferable license to use, copy, distribute, display and publish your Content (including, but not limited to, prepare any derivatives thereof, or incorporate into any other works, and otherwise exploit such Content in any current or future manner or medium) for the purpose of (a) providing the Services, (b) using the Content in an aggregated, anonymous form for statistics and analytics purposes, provided that we will ensure that a reasonable person will not be able to identify you as the source of data, and/or (c) providing, advertising and publicizing the Site and the Services. If you provide any suggestions, input or other feedback relating to the Site or the Services we provide, we shall have the right to freely and fully exercise and exploit such Content, without notice to, approval by or compensation to you. Subject to the license above, you retain all ownership of your Content. You irrevocably waive and agree not to assert any rights, including any “moral rights,” that you have to prevent us from exploiting the rights granted herein. d. You grant us the right to use and display for the purpose of providing the Services, the name, photograph and any other biographical information that you submit with any Content or in connection with such Content. e. Field Day, upon approval by Client, may use Client’s name, trademark and logo on our Site or any other advertising materials and press releases. The Client’s name, trademark and logo are and shall remain the property of the Client. f. Opinions, advice, offers, or other information or content made available on or through the Site, but not directly by Field Day, are those of their respective authors. Such authors are solely responsible for such content. You may not use any third-party intellectual property without such express authorization. Under no circumstances will Field Day be responsible for any loss or damage resulting from your reliance on information or content posted by third parties, whether on the Site or otherwise. We reserve the right to remove any content for any reason, but we have no obligation, to monitor and remove any comments or materials posted on the Site.
5. Payments a. In order to utilize the Services, you understand the use of such Services will result in charges to you for the Services and use of our Site (“Fees”). We will receive and enable your payment for the applicable Fees in accordance with the terms and conditions detailed here. b. We may assess certain User charges and any applicable Service Fees for use of our platform and certain functionality and features, including, but not limited to, any additional charges if you elect to increase your features or services levels. c. The Fees for the Services will be stated in the applicable order (“Order”) or otherwise on the Site. d. Each Client must prepay for the Services by credit card, check, or any other form authorized by us on the relevant Order Form or as otherwise provided on the relevant Site. You authorize us, or a third-party payment processor that works on our behalf, to charge your chosen payment method for Services in accordance with these Terms, including any other additional terms set forth in the specific Order. If you pay by credit card, Client must provide complete and accurate account information for a valid credit card. Client agrees that if we already have your credit card on file, as a result of prior purchases you have made, we may charge that credit card for the additional Services you purchase. You represent and warrant to us that such payment information is true and that you are authorized to use the selected form of payment. You will promptly update your payment information with any changes that may occur. e. No refunds of fees already paid will be given. If we exercise our right to cancel your account as provided under these Terms, we will not refund any fees already paid. f. Field Day will facilitate the processing of all payments for Services made by Clients to Brand Ambassadors. Field Day has no obligation to make payments to Brand Ambassadors if it has not received payment from the applicable Client(s). g. We will process payments through a third-party payment processor (e.g., Stripe). We may replace the third-party payment processing services at our sole discretion. Upon registration to the Site, Brand Ambassadors may establish a Stripe account in conjunction with their User account for the payment of their Services. In addition to these Terms, all such transactions will be subject to the terms and conditions set forth by our designated third-party payment processor, currently Stripe. You acknowledge that transactions processed by a third-party payment processor are governed by the terms and conditions therein, and not by Field Day’s Terms of Service and Privacy Policy. h. We will be entitled to rely on the instructions of Clients and Brand Ambassadors with regard to payment for Services without any further inquiry or liability whatsoever. We will not be liable if we are not able to complete a transaction for any reason, including, but not limited to, the following: i. If any system or equipment was not working properly and you knew or had been advised about the breakdown before you initiated the transaction; ii. If the Client has insufficient funds in its monthly retainer; iii. If circumstances beyond our control (such as, but not limited to, power outages, fire, flood, mechanical or systems failure) prevent the proper execution of the transaction, despite reasonable precautions we have taken; iv. If your transaction is intercepted by legal process or other encumbrances restricting transfer, or your participation in the Site has been terminated or suspended for security purposes; v. If we are unable to confirm your identity or have reason to believe that the transfer requested is unauthorized; or vi. If you have not provided us with correct, current and complete payment information. i. If you dispute any fees or charges you must inform us within sixty (60) days after the date of payment. j. Clients agree to use the Site to make all payments to Brand Ambassadors, whether first-time, repeat, or follow-on. You also agree not to take any action directly or indirectly to circumvent the payment through the Site or any associated fees. As a Brand Ambassador, you agree to use the Site to receive all payments from Clients identified through the Site, whether first-time, repeat, or follow-on. Additionally, you agree not to circumvent payment through the Site or any associated fees.
6. Intellectual Property a. All content other than Client and Brand Ambassador Content on the Site, or otherwise made available via the Site, including the text, notes, graphics, photos, sounds, music, videos, interactivities and the like (“Field Day Content”), the trademarks, service marks and logos contained therein (“Marks”), the design of the Site and/or Services (“Site Design”), and all software and other technology used to provide the Site and/or Services (“Technology”), are owned by or licensed to Field Day and/or its affiliates. Field Day Content is provided to you “as is” for your information and personal use only and may not be used, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever, without our express written consent. We reserve all rights not expressly granted in and to the Site, Content, Marks, Site Design and Technology. Using the Site and/or Services does not give you any ownership of or right in or to any Field Day Content, Marks, Site Design or Technology.
7. Copyright Policy a. Field Day respects the intellectual property of others, and we ask all of our Users to do the same. If you believe that your copyrighted work has been copied and is accessible on the Site or a website through which our Services may be accessed in a way that constitutes copyright infringement, please provide Field Day's Copyright Agent (as set forth below) with notification containing the following information: i. A physical or electronic signature of a person authorized to act on behalf of the copyright owner of the work that allegedly has been infringed; ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works allegedly have been infringed, then a representative list of such copyrighted works; iii. Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the allegedly infringing material, e.g., the specific web page address on the Site; iv. Information reasonably sufficient to permit us to contact the party alleging infringement, including an email address; v. A statement that the party alleging infringement has a good-faith belief that use of the copyrighted work in the manner complained of is not authorized by the copyright owner, its agent, or the law; and vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the party alleging infringement is authorized to act on behalf of the copyright owner of the work that allegedly has been infringed. b. Please send this notification to our copyright agent at: i. Copyright Agent 4052 Del Rey Ave #102 Marina Del Rey CA 90292
8. Taxes; Compliance with Law a. You agree that it is your responsibility to determine any and all taxes and duties, including without limitation, sales, use, transfer, value added, withholding and other taxes and/or duties assessed, incurred or required to be collected, paid or withheld for any reason in connection with any request for, or performance of Services, or your use of the Site ("Taxes") and to collect, withhold, report, and remit correct taxes to the appropriate tax authority, and to otherwise be responsible for the collection and payment of any and all Taxes, as applicable. You agree to provide Field Day and its affiliates with certain tax information upon request. YOU ALSO AGREE THAT FIELD DAY AND ITS AFFILIATES ARE NOT RESPONSIBLE TO COLLECT, REPORT, OR REMIT ANY TAXES ARISING FROM ANY TRANSACTION HEREUNDER. b. You agree that it is your responsibility to determine whether and to what extent any permits, licenses, consents, registrations, authorization or filings are required by any governmental agency in any jurisdiction in which you have requested or are performing Services ("Permits"). YOU ALSO AGREE THAT FIELD DAY AND ITS AFFILIATES ARE NOT OBLIGATED TO DETERMINE WHETHER ANY SUCH PERMITS, LICENSES, CONSENTS, AUTHORIZATIONS APPLY TO ANY TRANSACTION OR IN CONNECTION WITH ANY SERVICES TO BE PERFORMED PURSUANT TO AN AGREEMENT BETWEEN CLIENT AND BRAND AMBASSADOR. c. You are responsible for compliance with all applicable local, state, and federal laws of the United States and international laws, regulation and treaties, keeping in mind that access to the contents of this Site may not be legal for or by certain persons or in certain countries. The Site are controlled and offered by Field Day from the United States of America. Field Day makes no representations that the Site is appropriate for use in other locations. Those who access or use the Site from other locations do so at their own risk and are responsible for compliance with local law. You consent to the processing in the United States of America of information you provide to us.
9. Disclosure of Information; Confidentiality; Privacy a. In addition to the disclosures described in our Privacy Policy, we may disclose to Field Day affiliates your name, address, and data on jobs you have completed for tax purposes. "Brand Ambassador Tax Information" means tax identification information of Brand Ambassadors, such as a Social Security Number or Employer Identification Number, may be required if requested by Field Day or its Affiliates. Brand Ambassador Tax Information is used to fill out an IRS Form 1099 to send to applicable Brand Ambassadors. You hereby consent to disclosure of Brand Ambassador Tax Information, Client Tax Information, and other data as described in this Section and our Privacy Policy. b. You may use information or other data acquired from your use of the Site solely to the extent necessary for you to use the Site and for no other purpose, including but not limited to, for purposes of solicitation, advertising, marketing, unsolicited e-mail or spamming, harassment, invasion of privacy, or otherwise objectionable conduct. c. You may generally publicize your use of the Site; however, you may not issue any press release with respect to Field Day Site or Service, without Field Day's express prior written consent.
10. Third-Party Services and Third-Party Content a. The Services may be made available or accessed in connection with third-party services and content that Field Day does not control. Such third-party website are owned and operated by the respective third-parties and/or their licensors. You acknowledge that different terms of use and privacy policies may apply to your use of such third-party services and content, and you will comply with the same. You acknowledge that Field Day is not responsible or liable for: (a) the availability or accuracy of third-party website; (b) the content, advertising, or products on or available from third-party website; or (c) offensive or illegal conduct of any third-party. You are responsible for deciding if you want to access third-party website by clicking on a link or installing an application. The inclusion of any link or application on the Site does not imply that we endorse the linked Site. You agree that your use of a third-party link, application or third-party website via the Site is on an “as is” and “as available” basis without any warranty for any purpose. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.
11. NO WARRANTIES a. THE SITE, AND SERVICES ARE PROVIDED “AS AVAILABLE” AND “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND. FIELD DAY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THIS PROVISION IS NOT INTENDED TO DISCLAIM LIABILITY THAT WE MAY NOT DISCLAIM UNDER APPLICABLE LAW. b. USE OF THE SITE AND SERVICES ARE AT YOUR OWN RISK. FIELD DAY DOES NOT REPRESENT OR WARRANT THAT THE SITE, THE PAYMENT SERVICES, EMAILS SENT TO YOU OR ANY OTHER SITE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, FREE OF VIRUSES OR OTHER HARMFUL CODE, OR THAT ALL INFORMATION WILL BE ACCURATE OR COMPLETE. YOU AGREE THAT YOUR USE OF THE SITE AND SERVICES SHALL BE AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR HARDWARE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF MATERIAL OR DATA. FIELD DAY MAKES NO REPRESENTATION, WARRANTY, GUARANTEE OR PROMISE THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY PARTICULAR RESULTS. FIELD DAY DOES NOT GUARANTEE THAT THE INFORMATION, CONTENT, OR MATERIALS INCLUDED ON THE SITE WILL BE AS REPRESENTED BY CLIENTS OR BRAND AMBASSADORS, THAT THE SERVICES ARE LAWFUL, OR THAT CLIENTS OR BRAND AMBASSADORS WILL PERFORM AS PROMISED (INCLUDING, WITHOUT LIMITATION, THE QUALITY, SUITABILITY, AVAILABILITY, SAFETY OR AVAILABILITY OF THE CLIENTS OR BRAND AMBASSADORS WILL BE PERFORMED AS EXPECTED). FIELD DAY MAKES ALL DISCLAIMERS IN THIS PARAGRAPH ON BEHALF OF ITSELF, ITS AFFILIATES, AND ITS LICENSORS AND SUPPLIERS. YOU AGREE THE RISK ARISING OUT OF YOUR USE OF THE SERVICES OR GOODS REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. c. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE OR IN OTHER JURISDICTIONS.
12. General Release a. You agree to release us and our parents, subsidiaries, affiliates, officers, directors, employees, attorneys, representatives and agents claims, costs, damages, losses, liabilities, and expenses (including attorneys' fees and costs), actions and damages of all kinds based on, arising out of or in connection with your use of the Site and the Services.
13. Indemnity a. You agree to defend, indemnify and hold harmless Field Day, its affiliates and their respective directors, officers, employees and agents (the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities and expenses (including attorneys’ fees) incurred in connection with any third-party claim brought or asserted against any of the Indemnified Parties: (a) alleging facts or circumstances that would, if true, constitute a violation of any provision of these Terms by you; (b) alleging bodily injury, death, property damage or other damages arising from your or a third-party’s use or misuse of any Services purchased by you on the Site; (c) arising from or related to any other party’s access and use of the Services with your unique username, password or other appropriate security code (if such codes are required to access Services in the future); (d) arising from or related to our use of your Content in the context of the Services; (e) your failure to comply with applicable law; (g) defamation, libel, or infringement of any intellectual property right by you; (f) arising from, related to, or connected with your use or misuse of the Site or Services, including, but not limited to, any payment obligations incurred through your use of the Site; (g) arising from a claim that the Brand Ambassador has been misclassified and is or may be an employee of Client or Field Day; or (h) your violation of the rights of any third-party, including third-party providers. We may, in our sole and absolute discretion, control the disposition of any such claim at your sole cost and expense. You may not settle any such claim without our express written consent. This defense and indemnification obligation is intended to extend to the fullest extent permitted by law and will survive these Terms and your use of the Site.
14. LIMITATION OF LIABILITY a. IN NO EVENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WILL FIELD DAY, ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES OR ITS THIRD-PARTY SERVICE PROVIDERS (COLLECTIVELY “FIELD DAY” FOR PURPOSES OF THIS SECTION) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM THE PERFORMANCE, USE OF OR THE INABILITY TO USE THE SITE OR THE SERVICES, EVEN IF FIELD DAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF STATUTE OR OTHERWISE. FIELD DAY WILL NOT BE LIABLE FOR THE COST OF SERVICES, LOSS OF REVENUE OR LOSS OF GOOD WILL. b. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AGGREGATE AMOUNT ACTUALLY COLLECTED BY US FROM YOU FOR THE SERVICES TO WHICH THE CLAIM RELATES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF SUCH CLAIM OR, IF THE CLAIM DOES NOT RELATE TO THE SERVICES, $100. THIS PROVISION IS NOT INTENDED TO EXCLUDE LIABILITY THAT WE MAY NOT EXCLUDE UNDER APPLICABLE LAW. c. BECAUSE SOME STATES OR JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, OR LIMITATIONS ON OR EXCLUSIONS OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU DEPENDING ON YOUR STATE OR NATION OF RESIDENCE. d. Notice to New Jersey Residents. Your rights are protected under the Truth-in-Consumer Contract, Warranty and Notice Act and New Jersey law generally. The following provisions in this Agreement do not apply to you and are not intended to vary, diminish or alter your rights under New Jersey law: specifically, nothing in these Terms limits, varies, diminishes, affects, or otherwise voids or alters your rights under New Jersey law as they relate to limitations of liability or exculpation (such as limitations on indirect, incidental, special, exemplary, consequential or similar damages); dispute resolution; indemnification; venue or jurisdiction; statutes of limitation or repose periods for bringing claims; plain language requirements; and warranties. Your rights regarding these specific provisions will be governed by New Jersey law. In the event of any conflict between these Terms and New Jersey law, New Jersey law shall govern.
15. Applicable Law; Arbitration a. You and Field Day agree that any dispute that has arisen or may arise between us relating in any way to your use of or access to the Site, any breach, enforcement, or termination of this Agreement, or otherwise relating to Field Day in any way (collectively, “Covered Matters”) will be resolved in accordance with the provisions set forth herein: i. If you have any dispute with us, you agree that before taking any formal action, you will contact us at support@fielddayapp.io, provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account) and allow sixty (60) days to pass, during which we will attempt to reach an amicable resolution of any issue. ii. This Agreement and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of, or the Covered Matters, shall be governed by, and enforced in accordance with United States federal law, and (to the extent not inconsistent with or pre-empted by federal law) the laws of the State of California, without regard to conflict of laws principles. iii. This Agreement and each of its parts evidence a transaction involving interstate commerce, and the Federal Arbitration Act applies in all cases and governs the interpretation and enforcement of the arbitration rules and arbitration proceedings. Any Covered Matter must be asserted individually in binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Terms and the AAA Supplementary Procedures for Consumer-Related Disputes (including, without limitation, utilizing desk, phone or video conference proceedings where appropriate and permitted to mitigate costs of travel). The arbitrator shall not conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, including, any claim that all or any part of this Agreement is void or voidable or a particular claim is subject to arbitration. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. iv. For matters where the relief sought is over $5,000, the arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator’s award of damages must be consistent with the terms of this Agreement as to the types and the amounts of damages for which a party may be held liable. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Field Day user to the extent required by applicable law. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. v. Any claim of $500 or less may, at the option of the claiming party, be resolved in small claims court in Los Angeles County, California, if the claim and the parties are within the jurisdiction of the small claims court and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. vi. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this agreement to arbitrate. If the value of the relief sought is $5,000 or less, at your request, Field Day will reimburse you for all filing, administration, and arbitrator fees associated with the arbitration following the earlier of the arbitrator’s decision or settlement. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous or without merit, Field Day is relieved of its obligation to reimburse you for any fees associated with the arbitration. b. Notwithstanding any provision in the Agreement to the contrary, you and we agree that if we make any amendment to this agreement to arbitrate in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Field Day prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the agreement to arbitrate that have arisen or may arise between you and Field Day. If you do not agree to these amended terms, you may close your account within thirty (30) days of the posting or notification and you will not be bound by the amended terms. c. Unless you and we agree otherwise, in the event that the agreement to arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the agreement to arbitrate, as a result of a decision by the arbitrator or a court order or because you have chosen to file an eligible lawsuit in small claims court, you agree that any claim or dispute that has arisen or may arise between you and Field Day must be resolved exclusively by a state, federal, or small claims court located in Los Angeles, California. You and Field Day agree to submit to the exclusive personal jurisdiction of the courts located within Los Angeles County, California for the purpose of litigating all such claims or disputes. d. IF YOU ARE A NEW FIELD DAY USER, YOU CAN CHOOSE TO REJECT THE AGREEMENT TO ARBITRATE PROVISION ("OPT-OUT") BY EMAILING US AN OPT-OUT NOTICE TO SUPPORT@FIELDDAYAPP.IO ("OPT-OUT NOTICE") OR VIA US MAIL TO: 4052 DEL REY AVE #102 MARINA DEL REY CA 90292. THE OPT-OUT NOTICE MUST BE RECEIVED NO LATER THAN THIRTY (30) DAYS AFTER THE DATE YOU ACCEPT THESE TERMS FOR THE FIRST TIME. IF YOU ARE NOT A NEW FIELD DAY USER, YOU HAVE UNTIL THIRTY (30) DAYS AFTER THE POSTING OF THE NEW TERMS TO SUBMIT AN ARBITRATION OPT-OUT NOTICE. e. In order to opt-out, you must email your name, address (including street address, city, state, and zip code), and email address(es) associated with your account(s) to which the opt-out applies and an unaltered digital image of a valid driver’s license which matches the name on your account to: support@fielddayapp.io This procedure is the only way you can opt out of the agreement to arbitrate. If you opt out of the agreement to arbitrate, all other parts of this Agreement and this Disputes section will continue to apply to you. Opting out of this agreement to arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us. f. BY AGREEING TO THESE TERMS, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO A COURT TRIAL (OTHER THAN SMALL CLAIMS COURT AS PROVIDED ABOVE) OR TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST US AND/OR RELATED THIRD-PARTIES.
16. Apple App Store Additional Terms and Conditions a. The following additional terms and conditions apply to you if you are using the App from the Apple App Store. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 16, the more restrictive or conflicting terms and conditions in this Section 16 apply, but solely with respect to the App from the Apple App Store: i. Acknowledgement. Field Day and you acknowledge that this Agreement is concluded between Field Day and you only, and not with Apple, and that Field Day, not Apple, is solely responsible for the App and the content thereof. To the extent this Agreement provides for usage rules for the App that are less restrictive than the usage rules set forth for the App, or otherwise is in conflict with, the Apple App Store Terms of Service, the more restrictive or conflicting Apple term applies. ii. Scope of License. The license granted to you for the App is limited to a non-transferable license to use the App on an iOS product that you own or control and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service. iii. Maintenance and Support. Field Day is solely responsible for providing any maintenance and support services with respect to the App, as specified in this Agreement (if any), or as required under applicable law. Field Day and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. iv. Warranty. Field Day is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Field Day’s sole responsibility. v. Product Claims. Field Day and you acknowledge that Field Day, not Apple, is responsible for addressing any claims of you or any third-party relating to the App or your possession and/or use of the App, including: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Field Day’s liability to you beyond what is permitted by applicable law. vi. Intellectual Property Rights. Field Day and you acknowledge that, in the event of any third-party claim that the App or your possession and use of the App infringes that third-party’s intellectual property rights, Field Day, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. vii. Legal Compliance. 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. viii. Developer Email. Field Day’s contact information for any end-user questions, complaints or claims with respect to the App is: support@fielddayapp.io. ix. Third-Party Terms of Agreement. You must comply with applicable third-party terms of agreement when using the App. x. Third-Party Beneficiary. Field Day and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
17. Term and Termination a. As between Field Day and Brand Ambassadors only, Brand Ambassadors may at any time elect to stop using the Site, provided that in discontinuing any Site activities, Brand Ambassadors must use Field Day's standard functionality to terminate and further must abide by all Terms of this Agreement. Field Day, in its sole discretion, may terminate this Agreement, suspend access to the Site, or remove any Service listings immediately without notice for any reason, unless as otherwise stated herein. b. As between Field Day and Clients only, the term of this Agreement will be as stated in your order. Thereafter, the term will automatically renew on a month-to-month basis, provided either party may terminate these Terms without cause during such period upon 30 days' written notice. The term of any “Early Adopter” or similar trial program will not automatically renew. Field Day may terminate these Terms if you do not cure a material breach of these Terms within 10 days of notice. Upon termination, Field Day, at its sole discretion, may enable you to export your data for 30 business days; thereafter, Field Day may delete your data. Nothing contained in the preceding sentence, will be construed as an obligation by Field Day to retain a record of any data or information that you may have stored for your convenience by means of your account or the Services. The Services are not intended for data storage. You are solely responsible for backing up your data. All outstanding payment obligations prior to the effective termination date will survive the termination of this Agreement. c. The following provisions will survive termination: 1(e), 2, 5, 6, and 8 through 15.
18. Force Majeure a. Field Day will not be liable for failing to perform resulting directly or indirectly by the occurrence of any event beyond our reasonable control, including, without limitation, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider to perform, fire, acts of terrorism, natural disaster or war.
19. General Terms a. This Agreement (including the documents referenced herein) contains the entire understanding between you and us regarding the Site, and supersedes all prior and contemporaneous agreements and understandings regarding its subject matter. In the event there is a conflict between this Agreement and any applicable Order, the terms of this Agreement shall control. This Agreement will be binding upon each party and its successors and permitted assigns. This Agreement and all of your rights and obligations under them will not be assignable or transferable by you without the prior written consent of Field Day. Clients will not assign your rights or delegate your obligations in these Terms, except that Client affiliates may use the Service, and Client will be responsible for Client affiliates' compliance with these Terms. Field Day may freely assign this Agreement, in whole or in part. Any waiver by Field Day of any provision of this Agreement must be in a writing signed by Field Day. Field Day's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Field Day's right to subsequently enforce such provision or any other provisions of this Agreement. If any portion of this Agreement is found to be void, invalid or otherwise unenforceable, then that portion shall be deemed to be superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible. The remainder of this Agreement shall continue to be enforceable and valid according to terms contained herein. This Agreement will not be construed against the drafter. You hereby consent to electronic contracting, notices, and transactions. All notices relating to this Agreement will be sent by e-mail or will be posted on the Site. We will send notices to you at the e-mail address maintained in our records for you. You must send notices to us at our current e-mail address published on the Site. E-mail notices are deemed received the business day after transmission if properly addressed to the intended recipient.