Welcome to the The Function XYZ. (“The Function XYZ” or "Us" or "Our" or "We") website and mobile application(“Website” or “Platform”) and thank You for visiting. Our website is a destination for fans, music artists, brands, influencers and creators of social media content (“Creators”). We hope You enjoy the experience!
READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE. USING THIS WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS WEBSITE IF YOU DO NOT ACCEPT THESE TERMS.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND RESPECT TO DISPUTES YOU MAY HAVE WITH THE COMPANY. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS PROVIDED BELOW.
2. GENERAL USE
3. MOBILE APPLICATIONS
4. USING THIS WEBSITE AND THE WEBSITE’S SERVICES5. ACCOUNT AND PASSWORD
6. THE FUNCTION MARKETPLACE
7. PAYMENTS AND REFERRAL PROGRAM
9. LINKS TO THIRD-PARTY SITES
10. CODE OF CONDUCT
11. UNAUTHORIZED ACTIVITIES
12. PROPRIETARY RIGHTS
13. INTELLECTUAL PROPERTY INFRINGEMENT
14. DISCLAIMER OF WARRANTIES
15. LIMITATION OF LIABILITY AND INDEMNIFICATION
16. LOCAL LAWS; EXPORT CONTROL
18. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER19. LANGUAGE
21. CALIFORNIA CONSUMER NOTICE
22. CONTACT US
We may alter the Materials and Services We offer You and/or choose to modify, suspend or discontinue this Website at any time and without notifying You. We may also change, update, add or remove provisions (collectively, “Modifications”) of these Terms from time to time. Because Everyone benefits from clarity, We promise to inform You of any Modifications to these Terms by posting them on this Website. We may also have You electronically agree to theModifications or a new version of these Terms.
If You object to any such Modifications, Your sole recourse shall be to cease using this Website. Your electronicagreement to the Modifications or a new version of these Terms will
be Your continued use of this Website following notice of any such Modifications and indicates You acknowledge and agree to be bound by the Modifications. Also, please know that
these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of thisWebsite. These expressly-designated legal notices or terms are
incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.
2. GENERAL USE.
By using this Website, You promise that You are at least 13 years of age. If You are not yet 18 years old, You must havethe permission of an adult to use this Website and agree to its
Terms, and that adult must be a parent or legal guardian who is willing to be responsible for Your use of this Website. We invite You to use this Website for Your own individual purposes ("Permitted Purposes") — enjoy! In these Terms, We are granting You a limited, personal, non-exclusive and non-transferable license to use and to display the Website and the Materials; Your right to use the Website and the Materials is conditioned on Your compliance with these Terms. You have no other rights in this Website or anyMaterials, and You may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance, or in any way exploit any of this Website or Materials in any manner unless specifically permitted by The Function XYZ or a
Challenge Host (as defined below). If You make copies of any of this Website or the Materials while engaging in PermittedPurposes, then We ask that You be sure to keep on the copies all of Our copyright and other proprietary notices as they appear on this Website. Unfortunately, if You breach any of these Terms, the above license will terminate automatically and You must immediately destroy any downloaded or printed Materials (and any copies thereof).
1. MOBILE APPLICATIONS.
We may make available mobile applications to access the Website via a mobile device (“Mobile Application”). To use theMobile Application You must have a mobile device that is compatible with the mobile service. We do not warrant that the Mobile Application will be compatible with Your mobile device. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer
the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v)delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that We may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that You are using on Your mobile device. You consent to such automatic upgrading on Your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and We and Our third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to Your use of the Mobile Application. The following additional terms and conditions apply with respect to any Mobile Application that We provide to You designed for use on an Apple iOS-powered mobile device (an “iOS App’): You acknowledge that these Terms are between You and Us only, and not with Apple, Inc. (“Apple”).Your use of Our iOS App must comply with Apple's then-current App Store Terms of Service.
We, and not Apple, are solely responsible for Our iOS App and the Services and Content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to Our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to Our iOS App. You agree that We, and not Apple, are responsible for addressing any claims by You or any third-party relating to Our iOS App or Your possession and/or use of Our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to Us as provider of the iOS App. You agree that We, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to Our iOS App or Your possession and use of Our iOS App.
You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, orthat 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.
You agree to comply with all applicable third-party terms of agreement when using Our iOS App (e.g., You must notbe in violation of Your wireless data service terms of
agreement when using the iOS App).
The parties agree that Apple and Apple's subsidiaries are third-party beneficiaries to these Terms as they relate toYour license of Our iOS App. Upon Your acceptance of these
Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against You as they relate to Your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Mobile Application that We provide to Youdesigned for use on an Android-powered mobile device (an
You acknowledge that these Terms are between You and Us only, and not with Google, Inc. (“Google”).Your use of Our Android App must comply with Google's then-current Android Market Terms of Service.
Google is only a provider of the Android Market where You obtained the Android App. We, and not Google, are solelyresponsible for Our Android App and the Services and
Content available thereon. Google has no obligation or liability to You with respect to Our Android App or these Terms.
You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to Our Android App.
USING THIS WEBSITE AND THE WEBSITE’S SERVICES.
We appreciate You visiting this Website and allow You to do just that — stop by and leisurely check it out without even registering with Us!
In order to access certain areas of this Website and to use certain Services and Materials offered on and through thisWebsite, You must successfully register an “Account” (as
defined below) with Us. You may not create or register for an Account if you have previously been removed from theWebsite by Us, unless You have Our express written permission to create a new Account.
1. ACCOUNT AND PASSWORD.
When you register for an Account and for as long as You use the Account, You agree to provide true, accurate, current, and complete information. If You wish to change Your information, You can log into Your Account and make any relevant changes or contact Us using the below contact information and We can make the changes for You. If You forget Your password — no worries as We will happily send a password update to Your provided email address.
You are responsible for complying with these Terms when You access this Website, whether directly or through YourAccount. Because it is Your Account, it is Your job to obtain and
maintain all equipment and services needed for access to and use of this Website as well as paying related charges. It is also Your responsibility to maintain the confidentiality.
Your password(s). Should You believe Your password or security for this Website has been breached in any way, You must immediately notify Us.
Unless expressly permitted in writing by The Function XYZ, You may not sell, rent, lease, share, or provide access to yourAccount to anyone else. The Function XYZ reserves all legal rights and remedies to prevent unauthorized use and/or access to the Platform.
We reserve the right to modify or terminate the Platform, Your Account, or Your access to the Platform for any reason, without notice, at any time and without liability to You. If We terminate Your access to the Platform or You deactivate Your Account, Your data will no longer be accessible through yourAccount, but other materials and information such as Your Content may persist and appear within the Platform. We also may terminate or suspend Your participation in the Platform, at Our sole discretion.
If We decide to suspend, terminate, or otherwise close Your Account, You may not re-activate your Account or register for another Account unless We provide You with Our prior written consent.
We reserve the right to terminate your Account for any reason, at any time, at Our sole discretion. For example, We maysuspend or terminate Your Account if We suspect You do not
meet the eligibility requirements, become aware of any suspicious activity, or We believe the use of Your Account violates these Terms or any applicable law. We may require You to verify Your eligibility at any time. You acknowledge and agree that You will provide such information upon our request in order to continue to use the Platform.
If Your Account is terminated by You or The Function XYZ for any reason, any funds or collectibles that You have earnedbut have not yet transferred to your The Function XYZ Wallet will be forfeited, and these Terms
Closing Your Account
You may deactivate Your Account at any time. To do so, either select the option to do so in the Mobile Application or contact our support team at firstname.lastname@example.org and they will
assist you. If your Account is deactivated by You for any reason, any funds that You have earned but have not yet transferred to your The Function XYZ will be forfeited.
The Function XYZ MARKETPLACE
As part of our Services on the “The Function XYZ Marketplace”, we offer Challenges in which Creators will create content.
Challenges allow Creators (“Challenge Participants”) to create content based on a specific prompt or set of parameters(the “Challenge Content”) and share that Challenge Content to a third-party social media platform (e.g., TikTok, Twitter and/or Instagram). Challenges are made by “Challenge Hosts.”
Challenge Hosts will host Challenges and post a “Challenge Prompt” to encourage Challenge Participants to promote content or products (e.g., musical works, other forms of audio, or products) (the “Challenge Prompt”). Challenge Hosts can post Challenges on Our website through our Self-Service Challenge Option (Self-Service Challenges”) or by email@example.com Challenge Hosts must agree to the Self-
Service Challenges Terms or by concluding an agreement with Us directly. Challenge Participants may receive some benefit as described in the applicable Challenge offer portal, which may include, without limitation, payment based on the number of views received by the Challenge Content. There also may be additional terms (“Challenge Terms”) applicable to each Challenge that may require you to meet certain criteria to enter a Challenge including but not limited to age requirements. For additional information about the Challenges,
visit our FAQs.
All Challenges and any content created in connection with those Challenges (collectively, “Content”; “User Content”, or“User Submissions”) must comply with these Terms and any
associated Challenge Terms and Challenge Prompts. In particular, all Content must comply with the Code of Conduct andUnauthorized Activities sections of these Terms. If It is determined in The Function XYZ sole discretion that any Content does not comply with these Terms or any associated terms, The Function XYZ may ask that the Content be removed from the relevant social media channel and can disqualify the Content from earning any benefit promised by the the Challenge and You shall immediately comply with such request. In addition, The Function XYZ may terminate a Creator’s Account for violating these Terms.
YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT A PARTY TO THE The Function XYZ TRANSACTIONS,INCLUDING WITHOUT LIMITATION ANY CHALLENGE, AND YOU RELEASE US
FROM ANY LIABILITY RELATED THERETO OR RELATED TO CONTENT CREATED, PURCHASED, OBTAINED,SUBMITTED OR SOLD VIA THE The Function XYZ MARKETPLACE, WE DON'T
CONTROL THE ACTIONS OF ANY CREATORS OR CHALLENGE HOSTS, AND CREATORS AREN’T OUR EMPLOYEES.
You represent and warrant that Challenge Content is not, and is not intended to be, covered by any guild, union, collective bargaining, management, agency, or similar agreement and there will be no residual or any other type of payment due from The Function XYZ or any The Function XYZ user to You, to any third party, guild, union, management, or agent, or pursuant to any collective bargaining agreement, in connection with any Challenge Content or our Website.
PAYMENTS AND REFERRAL PROGRAM.
As a Challenge Host, You agree to pay all applicable fees related to Your use of this Website and Our Services which are described fully on Your Brand Dashboard and applicable Challenge Agreement (the “Paid Services”). Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms. With respect to each Challenge that a Challenge Participant participates in and earns a financial payment (the “ChallengeEarnings”), The Function XYZ shall pay You 90% of the final Challenge Earnings actually earned by you pursuant to the particular Challenge and The Function XYZ shall retain 10% of the Challenge Earnings as a platform fee for use of the The Function XYZ.
Marketplace. The Function XYZ is not responsible for, and will not make any deduction to payments made to You for any fees, commissions, costs, expenses, or payments of any kind to or with respect to any third party, including any manager, agent, attorney, representative, or service provider, in connection with any revenue earned by or payments made to you in connection with our Platform; and The Function XYZ is not responsible for any contributions, payments, taxes, or deductions for social security, retirement benefits, unemployment insurance, annuities, or pension or welfare fund payments required by law or any labor union, or any withholding or taxes. You represent and warrant that as between The Function XYZ and You, You assume sole liability for and will pay or cause to be paid all applicable contributions, payments, taxes, and deductions for social security, retirement or other benefits, healthcare insurance, unemployment insurance, annuities, pension and welfare fund payments required by law, regulation, or any labor union, and all withholding and income taxes, and make any reports required as a result of participation on our Website under these Terms. You agree to provide to The Function XYZ any required tax forms, including without limitation, Internal
Revenue Service Form W-9 or W-8BEN, required by The Function XYZ in connection with your use of the Website.
We may suspend or terminate Your account and/or access to Our Services and this Website if Your payment is late and/orYour offered payment method (e.g., credit card or PayPal account) (“Payment Method”) cannot be processed. By providing a Payment Method, You expressly authorize Us to charge the applicable fees on said Payment Method as well as taxes and other charges incurred thereto at regular intervals, all of which depend on Your particular membership and utilized services. You agree to make payment using that
selected Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor (as defined below), do not receive payment from you, you agree to pay all amounts due on your Billing Account (as defined below) upon demand.
We understand that You might cancel Your account, but please know that We will not provide any refund(s) and You will be responsible for paying any balance due on the account.
To make things less complicated, You agree that We may charge any unpaid fees to Your provided Payment Method and/or send You a bill for such unpaid fees.
Payments will be processed by third-party payment processors (the “Payment Processors”) through a payment account linked to Your account on the Services (your “Billing
Account”) for use of the Paid Services, Currently, We use Stripe, Inc., PayPal and Crossmint as Our Payment Processors, and You can access their Terms of Services at their sites: Stripe, Paypal, Hyperwallet and crossmint, respectively. The processing of payments will be subject to the terms, conditions and privacy policies of the applicable Payment Processor in addition to these Terms, and You agree, as a condition to making payments as a Buyer or receiving payments as a Creator, to abide by the terms and conditions of such Payment Processors, as the same may be updated from time to time. Breach of the terms and conditions provided by suchPayment Processors can lead to payments being withheld in addition to any other rights or remedies We may have at law or under these Terms. We are not responsible for any error by, or other acts or omissions of, the Payment Processors. By choosing to use Paid Services, You agree to pay Us, through the Payment Processors, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms, and You authorize us, through the applicable Payment Processor, to charge Your chosenPayment Method. We reserve the right to correct any errors or
mistakes that the Payment Processor makes even if it has already requested or received payment.
YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G.,FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL
BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WEMAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
Any agreement You have with Your payment provider will govern Your use of your Payment Method. You agree that Wemay accumulate charges incurred and submit them as one or
more aggregate charges during or at the end of each billing cycle.
Your non-termination or continued use of a Paid Service reaffirms that We are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and You will be responsible for such charges. This does not waive our right to seek payment directly from You. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when You initially selected to use the Paid Service. For information about our Referral Program, please check out the information set forth on this web page.
Policy”), which explains everything.
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consentbefore they knowingly collect personally identifiable information
online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 13 years of age; if You are a child under 13 years of age, please do not attempt to register for or otherwise use the Services or send Us any personal information. If We learn We have collected personal information from a child under 13 years of age, We will delete that information as quickly as possible. If You believe that a child under13 years of age may have provided Us personal
information, please contact Us at firstname.lastname@example.org
LINKS TO THIRD-PARTY SITES
We think links are convenient, and We sometimes provide links on this Website to third-party websites. If You use theselinks, You will leave this Website. We are not obligated to
review any third-party websites that You link to from this Website, We do not control any of the third-party websites, andWe are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, We do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If You decide to access any of the third-party websites linked to from this Website,
You do this entirely at Your own risk and You must follow the privacy policies and terms and conditions for those third-party websites.
CODE OF CONDUCT
You agree that You are solely responsible for all of Your User Submissions and that any such User Submission is considered both non-confidential and non-proprietary, and You represent and warrant that You have all rights necessary to contribute, in any manner, the User Submission to theServices, in the manner in which You contribute it. Further, We do not guarantee that You will be able to edit or delete any User Submission You have submitted.When you use the Platform, You are promising Us that:You will abide by these Terms.
You are solely responsible for your interaction with anyone on the Platform including while participating in Challenges.You agree that The Function XYZ is not responsible or liable for the
conduct of any other user or Creator. The Function XYZ reserves the right, but has no obligation, to monitor orbecome involved in disputes between You and any other user or Creator.
You are solely responsible for obtaining and maintaining all telephone, computer hardware, software, accessories, and other equipment needed for You to access and to use the
You will treat others with respect (including when communicating with any The Function XYZ representatives or other employees).
You will not impersonate any person or entity; falsely claim an affiliation with any person or entity; access theAccounts of others without permission; forge another person's
digital signature; misrepresent the source, identity or content of information transmitted via the Platform, or perform any other similar fraudulent activity. You will not use the Platform for any harmful, illegal, nefarious, or untoward purpose.
You will not use or attempt to use any cheats, bots, automation software, hacks, or any third party software designed to interfere with the Platform.
You will not solicit, collect, use, or attempt to use the Account login credentials of any other user.
You will not solicit money or any other items of value from another user through the Platform or use the Platform in relation to any fraud, pyramid scheme, or other similar
You will not defame, stalk, bully, spam, abuse, harass, threaten, impersonate, or intimidate anyone (including, without limitation, any Challenge Host) through the Platform, and
You must not stream, broadcast, or post or otherwise use information via the Platform that may lead to violations of data privacy laws or or other harmful violations of personal identity or privacy, including, without limitation, your or any other person's credit card information, non-public phone numbers, or non-public e-mail addresses.
You will not interfere or disrupt the Platform or its servers or networks connected to the Platform including by transmitting any worms, viruses, spyware, malware, malicious code, or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with how any The Function XYZ page is rendered or displayed in a browser or on a device.
You will not crawl, scrape, cache, or otherwise access any content or information on the Platform via automated means.
You will not create an Account through any unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler, or scraper. Should you use any automatic, macro, program, or similar method, or otherwise commit fraud with regard to the Platform, TheFunction XYZ reserves the right to pursue legal action against you.
You will not use the Platform for any illegal purpose, or in violation of any local, state, national or international law or regulation, including without limitation laws governing intellectual property and other proprietary rights, data protection, and privacy.
The Function XYZ reserves the right to refuse access to the Platform to you, for any reason at any time, at our sole discretion.
You are prohibited from uploading, sharing, or creating any content on the Platform or for the The Function XYZMarketplace that does any of the following (“Prohibited Content’): Includes any information or statements that are known by You to be false, inaccurate, or misleading; Fails to comply with the Federal Trade Commission's Endorsement Guides by including any statements about aChallenge Host or a Challenge Host’s content, brand, product, or services that is inaccurate; untruthful; misleading; or does not reflect a Creator's honest views and personal experience; Fails to comply with the Federal Trade Commission's Endorsement Guides by disclosing that there is a material connection between the Creator and the Challenge Host; We may deem to be offensive, or we believe may harass, upset, embarrass, alarm or annoy any other person or Challenge Host; Is violent; threatening; obscene; pornographic or that is otherwise offensive; or that contains nudity (in whole or in part); Is abusive; insulting; threatening; discriminatory; or that promotes or encourages racism, sexism, hatred, or bigotry; Is illegal or encourages or facilitates any illegal activity including, without limitation, terrorism; inciting racial hatred; or the submission of which in itself constitutes committing a criminal offense; Is defamatory, libelous, or untrue; Infringes upon any third party's rights (including, without limitation, intellectual property rights and privacy rights); Includes the image or likeness of another person without that person’s consent (or in the case of a minor, the minor's parent or guardian); Include any email addresses, contact information, or phone numbers (other than Your own);Include any information considered confidential, proprietary, or personal;
Does not contain or constitute an unsolicited or unauthorized advertisement, promotion, junk mail, spam, chain letter, pyramid scheme, or any other form of solicitation; Is inconsistent with the intended use of the Services; or Could harm the reputation of The Function XYZ; Challenge Hosts; or any other The Function XYZ Creators.
We may, but are not obligated to, pre-screen User Submissions or monitor any area of this Website through which UserSubmissions may be submitted. We are not required to host, display, or distribute any User Submissions on or through this Website and may remove at any time or refuse any UserSubmissions for any reason. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, You agree that We may freely disclose Your UserSubmission to any third party absent any obligation of
confidence on the part of the recipient.
We do not tolerate inappropriate content or behavior on our Platform. We encourage You to report any inappropriate content or misconduct by others. You can report any user by contacting Us by using the contact information below.
To the extent permitted by applicable law, The Function XYZ takes no responsibility and assumes no liability for YourContent or for any loss or damage resulting therefrom, nor is The Function XYZ
liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography, or profanity you may encounter when using the Platform. Your use of the Platform at your own risk. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Platform will not contain any content that is prohibited by such rules.
The Function XYZ is not liable for any statements or representations included in Your Content. The Function XYZ does not endorse Your Content or any opinion, recommendation, or advice expressed therein, and The Function XYZ expressly disclaims any and all liability in connection with Your Content. To the fullest extent permitted by applicable law, The Function XYZ reserves the right to remove, screen, or edit any of Your Content posted or stored on the Platform at any time and without notice, including where YourContent violates these Terms or applicable law, and you are solely responsible for creating backup copies of and replacing Your Content you post or store on the Platform at your sole cost and expense. Any use of the Platform in violation of
the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Platform.
The Function XYZ Content
The Function XYZ' is a trademark that belongs to Us. All names, logos, and brands of third parties (e.g., TikTok, Instagram, and their respective logos) displayed on our site are trademarks of
their respective owners. The Function XYZ and its products and services are not endorsed by, sponsored by, or affiliated with these third parties. Our use of these names, logos, and brands is for identification purposes only, and does not imply any endorsement, sponsorship, or affiliation.
Unless otherwise specified in these Terms, all Materials, including the arrangement of them on this Website are Our sole property, Copyright © 2021, The Function XYZ, Inc. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.User Submissions, Content and User Content If you submit, transmit, display, perform, post, or store Your Content, User Content or User Submissions by using thePlatform, You grant The Function XYZ and its sub-licensees, to the furthest extent and for the maximum duration permitted by applicable law (including in perpetuity if permitted under applicable law), an unrestricted, worldwide, irrevocable, fully sub-licensable, nonexclusive, and royalty-free rights to: (1) use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display Your Content, User Content and/or User Submissions (including without limitation for promoting and redistributing part or all of YourContent and derivative works thereof) in any form, format, media, or media channels now known or later developed or discovered; and (2) use the name, identity (including, without limitation, any social media handles), likeness and voice (or other biographical information) that you submit or include in connection with Your Content, User Content, UserSubmissions. Should Your Content contain the name, identify, likeness, or voice (or other biographical information) of third parties, you represent and warrant that you have obtained the appropriate consents and/or licenses for your use of such features and the The Function XYZ and its sub-licensees are allowed to use them to the extent indicated in these Terms.
INTELLECTUAL PROPERTY INFRINGEMENT.
We respect the intellectual property rights of others and encourage You to do the same. Accordingly, We have a policy of removing User Submissions that violate intellectual property rights of others, suspending access to this Website (or any portion thereof) to any user who uses this Website in violation of someone's intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the this Website in violation of someone's intellectual property rights.
Pursuant to Title 17 of the United States Code, Section 512, We have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If You believe Your copyright or other intellectual property right is being infringed by a user of this Website, please provide email notice to Our Agent for notice of claims of infringement: email@example.com
To be sure the matter is handled immediately, Your notice must include:
Contain Your physical or electronic signature; Identify the copyrighted work or other intellectual property alleged to have been infringed; Identify the allegedly infringing material in a sufficiently precise manner to allow Us to locate that material; Contain adequate information by which We can contact You (including postal address, telephone number, and e-mail address);
Contain a statement that You have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner's agent or the law; Contain a statement that the information in the written notice is accurate; and Contain statement, under penalty of perjury, that You are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.
Submitting a DMCA Counter-Notification
We will notify You that We have removed or disabled access to copyright-protected material that You provided, if such removal is pursuant to a validly received DMCA take-down
notice. In response, You may provide Our Agent with a written counter-notification that includes the following information:
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from You under the penalty of perjury, that You have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the
material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that You consent to the jurisdiction of a court for the judicial district in which Your physical address is
located, or if Your physical address is outside of the United States, for any judicial district in which We may be located, and that You will accept service of process from the person
- who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
We reserve the right, in Our sole discretion, to terminate the account or access of any user of this Website or Service whois the subject of repeated DMCA or other infringement
DISCLAIMER OF WARRANTIES.
THIS WEBSITE AND THE SERVICES, INCLUDING WITHOUT LIMITATION THE The Function XYZ MARKETPLACEAND THE CONTENT BOUGHT AND SOLD VIA The Function XYZ MARKETPLACE,
ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS WEBSITE IS WITH YOU.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, The Function XYZ AND ITS SUBSIDIARIES,AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGER,S
EMPLOYEES, AGENTS, AND LICENSEES (THE “ The Function XYZ PARTIES” ) DISCLAIM ALL WARRANTIES OFANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THIS WEBSITE, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND FREEDOM FROM ERRORS, VIRUSES, BUGS,OR OTHER HARMFUL COMPONENTS.
THIS MEANS THAT WE DO NOT PROMISE YOU THAT THE WEBSITE IS FREE OF PROBLEMS. WITHOUT LIMITINGTHE GENERALITY OF THE FOREGOING, THE The Function XYZ PARTIES
MAKE NO REPRESENTATIONS OR WARRANTIES THAT (A) THE SERVICES WILL BE UNINTERRUPTED, TIMELY,SECURE, OR ERROR-FREE; (B) THE SERVICES WILL MEET YOUR REQUIREMENTS; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; (E) YOUR INFORMATION AND CONTENT CREATED THROUGH
THE SERVICE AND POSTED TO THE SERVICE, IN WHATEVER FORM OR MEDIUM, WILL NOT BE LOST; OR (F)ANY ERRORS WILL BE CORRECTED.
The Function XYZ PARTIES SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON ORENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL ,
CONSEQUENTIAL, PUNITIVE, OR OTHERWISE), INJURY, CLAIM, LIABILITY, OR OTHER CAUSE OF ANY KIND BASED UPON OR RESULTING FROM THE SERVICE.
LIMITATION OF LIABILITY AND INDEMNIFICATION
UNDER NO CIRCUMSTANCES WILL THE The Function XYZ PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (A) THE SERVICES; (B) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICES; (C) USER CONTENT; (D) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE The Function XYZ PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUROR ANY OTHER PARTY'S USE OF THE SERVICES; (E) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (F) ANY ERRORS OR OMISSIONS IN THE SERVICE'S OPERATION; OR (G) ANY DAMAGE TO ANY OTHER USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE, OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF FORESEEABLE OR EVEN IF The Function XYZ PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE The Function XYZ PARTIES BE LIABILITY TO YOU OR ANYONE ELSE FOR ANY LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. NOTWITHSTANDING THE FOREGOING, IF THE The Function XYZ PARTIES ARE FOUND TO BE LIABILITY TOYOU FOR ANY DAMAGE OR LOSS ARISING OUT OF OR IN ANY WAY CONNECTED TO YOUR USE OF THE PLATFORM, IN NO EVENT WILL THE The Function XYZ PARTIES TOTAL LIABILITY TO YOUR FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED $100 OR THE AMOUNT YOUR PAY US FOR USE OF, OR IN CONNECTION WITH THE SERVICES.
You agree to defend, indemnify, and hold the The Function XYZ Parties harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation,
reasonable attorneys’ fees and costs, arising out of or in any way connected to your use or misuse of the Services or with any of the following (including as a result of your direct activities on the Service or those conducted on Your behalf): (A) Your breach or alleged breach of these Terms; (B) Your violation of any third party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (C) Your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities, (D) any User Submissions by You; (E) any misrepresentation made by You; or (F) your breach or alleged breach of the representation and warranties set forth in these Terms. The Function XYZ reserves the right to assume the exclusive defense and control of any matter subject to indemnification by You, and You will not in any event settle any claim without the prior written consent of The Function XYZ.
LOCAL LAWS; EXPORT CONTROL
We control and operate this Website from Our headquarters in the United States of America and the entirety of thisWebsite may not be appropriate or available for use in other
locations. If You use this Website outside the United States of America, You are solely responsible for following applicable local laws.
Any submissions by You to Us (e.g., comments, questions, suggestions, materials — collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and We are free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not
patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant Us an exclusive, perpetual, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as We may determine in our sole discretion.Notwithstanding the foregoing, you understand and agree that We are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER
Please Read This Provision (the “Provision’) Carefully. It Affects Your Legal Rights. This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort — including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence — or any other legal or equitable theory, and includes the validity, enforceability or scope of this
Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and Us. Effectively, then, “dispute” is given the broadest
meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to You (such as Our licensors, suppliers, dealers or third-party vendors) whenever You also assert claims against Us in the same proceeding.
This Provision provides that all disputes between You and Us shall be resolved by binding arbitration because acceptance of These Terms constitutes a waiver of Your right to
litigation claims and all opportunity to be heard by a judge or jury. We prefer this because We believe arbitration is less drama-filled than litigation. To be clear, there is no judge or
jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and canaward the same damages and relief as a court (including
attorney's fees). You may, however, opt-out of this Provision which means You would have a right or opportunity to bringclaims in a court, before a judge or jury, and/or to participate
in or be represented in a case filed in court by others (including, but not limited to, class actions).
EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE,WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS
IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATIONRATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all disputes, whether pursued in court or arbitration, You must first give Us an opportunity to resolve the Dispute whichis first done by emailing to Us at firstname.lastname@example.org the
following information: (1) Your name, (2) Your address, (3) A written description of Your Claim, and (4) A description of thespecific relief You seek. If We do not resolve the dispute
within 45 days after receiving Your notification, then You may pursue Your Dispute in arbitration.
You may pursue Your dispute in a court only under the circumstances described below.Exclusions from Arbitration/Right to Opt Out
Not with standing the above, Your or We may choose to pursue a dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-
OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline’).
You may opt-out of this Provision by emailing Us at email@example.com the following information: (1) Your name; (2)Your address; (3) A clear statement that You do not wish to
resolve disputes with Us through arbitration. Either way, We will not take any decision You make personally. In fact, We promise that Your decision to opt-out of this Arbitration
Provision will have no adverse effect on Your relationship with Us. But, We do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-
Out Deadline will not be valid and You must pursue Your dispute in arbitration or small claims court.
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either You orWe may initiate arbitration proceedings. The American
Arbitration Association (“AAA”), www.adr.org, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For Disputes of less than $75,000, the AAA's Supplementary Procedures for Consumer-Related Disputes will apply; forDisputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA's Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules
apply to the arbitration.
Because this Website and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbiter ability of all disputes. However, the arbitrator will apply
applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award - The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration - You or We may initiate arbitration in either California or the federal judicial district that includes Your billing address.
Payment of Arbitration Fees and Costs — So long as You place a request in writing prior to commencement of the arbitration, We will pay all arbitration filing fees and AAA hearing fees and any arbitrator's hearing fees, costs and expenses upon Your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. But, You will still be responsible for all additional fees and costs that You incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and
costs recoverable under applicable law, if You provide notice and negotiate in good faith with Us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that You are the prevailing party in the arbitration, You will be entitled to recover reasonable attorney's fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both You and We specifically agree
to do so in writing following initiation of the arbitration. If You choose to pursue Your Dispute in court by opting out of theArbitration Provision, as specified above, this Class Action
Waiver will not apply to You. Neither You, nor any other user of this Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by accepting this Provision in these Terms, You and We are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, You and We might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g., the
rights to both appeal and certain types of discovery) may be more limited or may also be waived.
Sever ability If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or-unenforceable, that clause will be severed from this Provision whose
remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will
be decided by a court.
This Provision shall survive the termination of Your account with Us or Our affiliates and Your discontinued use of thisWebsite. Notwithstanding any provision in these Terms to the
contrary, We agree that if We make any change to this Provision (other than a change to the Notice Address), You may reject any such change and require Us to adhere to the present language in this Provision if a dispute between Us arises.
The Parties hereto have expressly required that these Terms and all documents and notices relating thereto be drafted inthe English language.
We think direct communication resolves most issues — if We feel that You are not complying with these Terms, We will tellYou. We will even provide You with recommended
necessary corrective action(s) because We value this relationship.
However, certain violations of these Terms, as determined by Us, may require immediate termination of Your access tothis Website without prior notice to You. The Federal
Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply.
Except for disputes subject to arbitration as described above, any disputes relating to these Terms or this Website will beheard in the courts located in Los Angeles County,
California. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforce any of these Terms, We are not waiving Our rights. These Terms are the entire agreement between You and Us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between Everyone about this Website. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Our prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent. The proprietary rights, disclaimer of warranties, representations made byYou, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.CALIFORNIA CONSUMER NOTICE
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: ThisWebsite and Service are provided by The Function XYZ, Inc. If You have purchased anything from the Website or through the Service, a description of what You have purchased and relevant pricing information are posted as part of the ordering process for this Website (please consult Your individual purchase confirmation e-mail for the charges You incurred). If You have a question or complaint regarding the Website or Service,
please contact Customer Service at firstname.lastname@example.org
If You have any questions about these Terms or otherwise need to contact Us for any reason, You can reach Us at email@example.com
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