Use Agreement - FanThreeSixty Content Services

Updated on 6/11/2017

The terms of this Use Agreement (“Use Agreement”) shall govern Client’s use of the products, services and content provided through the FANTHREESIXTY Content Services. By accessing and using the FANTHREESIXTY Content Services, Client accepts this Use Agreement and agrees to comply with the terms herein.


This Use Agreement may be revised from time to time. Client is responsible for monitoring FanThreeSixty’s website for changes. Client’s continued use of the FANTHREESIXTY Content Services after changes to this Use Agreement that are posted on the website will constitute Client’s acceptance of any new or additional terms of this Use Agreement that result from those changes. If any change to this Use Agreement is not acceptable to Client, Client’s sole remedy is to not use the FANTHREESIXTY Content Services.

I. Scope and Service: FANTHREESIXTY Content Services Scope (Essential Package)
Scope
FANTHREESIXTY Content Services (Essential Package) contain the following features: (features or services may be subject to change over time)

  1. FanCam
    1. The service provides the ability for fans to capture user content and share content socially or with the Client through the Uphoria application.
    2. Overlays enable the ability for fans to select different brand or event overlays that can be associated to a piece of fan content.
      1. Built-in overlays. Client can provide 1-2 overlays to be preloaded within the application per contract year and will require an application update to make such changes.
      2. Configurable Overlays. Client will have the ability to upload up to five (5) overlays through the service without requiring an app update, in addition to any overlays built into the application.
    3. FanCam will be available during an event for a specified period of time as determined by FanThreeSixty. Standard duration may be subject to change from time to time.
  2. MyEvents
    MyEvents provides a historical view of a fans engagement and memorializes their event experience within the Uphoria application. Fans may choose to share or delete their content from within the MyEvents section. Photos from MyEvents section will be available to Client if the fan/end user chooses to share such content through the application.
  3. Content Management System and User Account
    The Content Management Tool is the backend interface that enables Client to manage the Shared Content shared with the Client within Client’s account. Within the tool, Client will be able to see, comment, approve, and use content shared by fans and transfer approved content to other digital systems.
  4. Event Content Feed (RSS)
    The Event Content Feed provides a standardized content stream of all the approved Shared Content for the current event. 
Services
Client hereby engages FanThreeSixty to perform the following Services related to the delivery of the FANTHREESIXTY Content Services:
  1. FanThreeSixty Cloud Hosting. FanThreeSixty will provide Client a multitenant cloud hosting solution via the FanThreeSixty’s Cloud (such platform, the “SI Cloud”). Client will receive 250 Gigabytes of storage for all content, including but not limited to Shared Content (defined below), through the use of this service. Any additional storage required by Client may be subject to additional fees.
  2. Setup and Deployment Services. FanThreeSixty will deploy the FANTHREESIXTY Content Services in accordance with the Scope, including configuration within the SI Cloud environment, configuration requirements, deployment and performance testing.
  3. Training Services. FanThreeSixty will assist Client by providing training on how to use the FanThreeSixty Content Services. The FanThreeSixty Client Success team will schedule a training session with all Client stakeholders. The training session will provide up to three (3) initial hours of remote training at no additional charge. Additionally training hours beyond the initial onboarding may be subject to additional hourly training fees.
  4. Standard Support Services. FanThreeSixty will provide maintenance and support for all SI Solutions and Services during the Service Term. The maintenance and support obligation will include providing regular system updates, upkeep, and technical support in accordance with the FanThreeSixty standard Service Level Agreement. Client shall provide Level 1 support which shall consist of Client providing initial Customer-facing support services to Customers at an event, including, basic user questions and connectivity troubleshooting.
  5. Professional Services. Upon Client’s written request, FanThreeSixty may provide additional services beyond the standard scope of the Essential Package, including but not limited technical assistance, modification, customization or additional training. Additional professional services may be subject to the Professional Service fee set forth in the Payment Terms.
II. Client Use of FANTHREESIXTY Content Services

Unless otherwise specified in this Use Agreement or in a separate writing signed by both Client and FanThreeSixty, Client shall be solely responsible for compliance with the terms and conditions of use as set forth in this Use Agreement for FANTHREESIXTY Content Services.  Breach of any of the following obligations shall constitute a material breach of the Agreement between the parties.

Client agrees to release FanThreeSixty, its members, managers, officers, employees, vendors, partners and agents, from any and all liability and obligations whatsoever in connection with or arising from Client’s use or misuse of the FANTHREESIXTY Content Services, Shared Content and the Client User Account.  If at any time Client is not satisfied with the FANTHREESIXTY Content Services or objects to any material within the FANTHREESIXTY Content Services or the User Account, Client’s sole remedy is cessation of use thereof. Client agrees to defend, indemnify and hold harmless FanThreeSixty, its officers, members, directors, employees, vendors, partners and agents from and against any and all claims, liabilities, damages, losses or expenses, including attorneys’ fees and costs and expenses, arising out of or in any way connected with (1) Client access to or use of the FANTHREESIXTY Content Services or any part thereof; (2) any Shared Content that Client posts, shares, stores, or otherwise uses, during or after the expiration of the Term; (3) a breach or alleged breach of Client’s representations, warranties, covenants or obligations under this Use Agreement; (4) infringement or misappropriation of any intellectual property or other rights of FanThreeSixty or third parties by Client; or (5) any negligence or willful misconduct by Client.

  1. Definitions
    Through the FANTHREESIXTY Content Services, an end user creates audio/visual content and information and licenses such content and information to FanThreeSixty through the Uphoria Application (together “Fan Generated Content”).

    The end user may elect to share Fan Generated Content with Client through the Uphoria Application. When an end user elects to share Fan Generated Content with Client, FanThreeSixty provides such Fan Generated Content shared by the end user (“Shared Content”) to Client.

    Client shall from time to time review the Shared Content in Client’s FANTHREESIXTY management system and user account (“User Account”) and approve select Shared Content to use for display on the videoboard, broadcast feed, and for other lawful purposes.
  2. Shared Content
    By using the FANTHREESIXTY Content Services, FanThreeSixty hereby grants to Client a limited, revocable, worldwide, non-exclusive, royalty-free license to use the Shared Content for Client’s own commercial purposes and internal use as  permitted by the agreements between the parties and in accordance with all applicable local, state and federal laws.
    In connection with providing Client the FANTHREESIXTY Content Services, FanThreeSixty may modify or adapt Shared Content in order to transmit, display or distribute over networks and make changes to Shared Content as may be necessary to conform and adapt the Shared Content to any requirements or limitations of any networks, devices, services or media.  Notwithstanding the foregoing, FanThreeSixty shall retain an irrevocable, worldwide, non-exclusive, royalty-free license to the Shared Content for legal archival/preservation purposes which shall continue indefinitely.  
    1. Approved Shared Content
      Client acknowledges that by approving Shared Content, it has made the approved Shared Content available for public viewing and further Client accepts responsibility for such public display of Shared Content. Client shall be responsible for monitoring Shared Content and approving certain Shared Content that Client desires to use for internal purposes and publicly display on the videoboard, broadcast, Client’s social media sites, Client’s website and for any other promotional materials, whether in digital or print, during or after the expiration of the Term.

      Client shall be solely responsible for the review, selection and approval of Shared Content to achieve Client’s intended results.  Client shall be solely responsible for evaluation of the Shared Content relating to Client’s specific business requirements and technical environment.

      Client shall be solely responsible for the selection and approval of the Shared Content in compliance with Client or venue agreements with third parties, including but not limited to sponsorship and corporate partner agreements.  Client shall be solely responsible for selecting, displaying, and approving select Shared Content in compliance with all local, state, and federal laws and in accordance with all rules, requirements and guidelines of the venue, team, league, and other applicable stakeholders/parties.

      Client shall be responsible for identifying, training and granting authority to individual(s) to access and approve the Shared Content.  Such individual(s) will be responsible for the monitoring, selection and approval of Shared Content in compliance with this Use Agreement. 
    2. Content Creation; Delivery of Client Materials. 
      Client will provide certain resources for creation, formatting, configuration, specification and administration of content to support functionality of the FANTHREESIXTY Content Services, as well as programs within the FANTHREESIXTY Platform (“Client Materials”).  Such resources may include certain graphic files and other materials, which may include, without limitation, art assets and Client account information for certain third-party vendors.  Client shall retain all right, title and interest (including all Intellectual Property rights) in and to all such Client Materials (and any modifications thereto). 
    3. Shared Content Storage
      Client shall be responsible for maintaining and protecting Shared Content.  FanThreeSixty shall not be liable for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any Shared Content or other data that is submitted or used in connection with Client’s User Account.

      Client shall retain duplicates of content and shall routinely backup and archive Shared Content.  Client shall maintain appropriate security, protection and back up of Shared Content, including using encryption technology to protect Shared Content from unauthorized access and routinely archiving Shared Content.

      Upon termination, Client shall be responsible for all Shared Content or copies thereof that were saved, stored or backed-up on Client’s systems.
    4. Deleted Shared Content
      Client may delete Shared Content at any time.  Client acknowledges that deleting Shared Content may permanently delete the Shared Content from the User Account, the end users’ “My Events Page” and “Events Album” and adversely affect the end users’ experience with the FANTHREESIXTY Content Services and application.  Client cannot recover content once it has permanently deleted it.  FanThreeSixty shall not be responsible or liable to the end user or Client for any accidental or intentional deletion and removal of Shared Content by Client.

      Client acknowledges that upon termination of the FANTHREESIXTY Content Services, all Shared Content will be permanently deleted from the end users’ Event Album.  FanThreeSixty shall have no liability to the end user for loss of deleted Shared Content.
  3. User Account
    Only Client may use the User Account.  Client must keep its account and passwords secure and confidential and not authorize others to third parties to use the User Account.  If Client becomes aware of any breach of security or unauthorized access to the User Account, Client must notify FanThreeSixty immediately.  FanThreeSixty is not liable for any loss or damage arising from any unauthorized access to the User Account.

    Client shall be responsible for identifying, training and granting authority to individual(s) to access the User Account and to monitor, select and approve Shared Content in compliance with this Use Agreements.
  4. Client Environment
    Client agrees to provide the following resources and support as reasonably needed in connection with FanThreeSixty’ provision of the FANTHREESIXTY Content Services:
    1. Stadium Technology Services.
      Subject to the integration and configuration services to be provided by FanThreeSixty (if any), Client will be responsible for acquiring, installing, updating and maintaining its own technology environment and equipment necessary to properly install, access, operate, and monetize the FANTHREESIXTY Content Services.  This may include maintaining the optimal performance of Client’s currently operating Wi-Fi and DAS solutions.  Failure of Client to maintain an adequate environment, including connectivity, may affect the performance and functionality of the FANTHREESIXTY Content Services.
    2. Third Party System Updates and Upgrades. 
      During the Service Term, Client will notify FanThreeSixty of any updates and/or upgrades being performed to any third party systems in the Designated Location or Venue that may affect the performance of the FANTHREESIXTY Content Services (and will use reasonable efforts to provide such notice at least four weeks in advance). Client will provide such notification, in writing, to the SI representative assigned to the Client. Failure to provide notification to FanThreeSixty may lead to interruptions in service.
    3. Third Party Supplier Coordination and Cooperation. 
      Client is responsible for ensuring coordination and cooperation with all third party system vendors for Client. This includes, but is not limited to all necessary documentation, including API documentation, system availability, and project timeline compliance relating to systems operated or serviced by such third party system vendors. FanThreeSixty shall not be liable for any failure of third party systems that may impact the performance and delivery of the SI Services as described herein.
    4. Updates
      During the Service Term, Client may receive updates to the FANTHREESIXTY Content Services. Some updates may require changes, modifications, or additions to the Clients onsite and cloud environments. FanThreeSixty will notify Client of any changes caused by future updates to FANTHREESIXTY Content Services. Client will work with FanThreeSixty to help implement the required modifications.

      Client acknowledges that by providing the FANTHREESIXTY Content Services, FanThreeSixty has provided the system and User Account to Client in order to access and approve Shared Content.  If Client makes changes to its environment, the FANTHREESIXTY Content Services folders or files, and/or changes the location of Shared Content, such changes may affect the functionality of the FANTHREESIXTY Content Services and end users experience.   Any modifications to pre-set configurations by Client may affect the functionality of the FANTHREESIXTY Content Services.
  5. Shared Content Restrictions
    Client represents and warrants to FanThreeSixty that Client has all the right, power and authority necessary to grant the rights granted herein to Shared Content, including all necessary rights to upload Shared Content in accordance with this Use Agreement and in compliance with all venue, team, partner, sponsor, league or other third party agreements with Client.

    Client represents and warrants that Client owns or has acquired rights to all proprietary interests in the graphics, trademarks, wordmarks, logos or other marks necessary to utilize in the photo overlays.

    The following content restrictions apply to any and all Shared Content Client receives or uploads.  The following actions are not exhaustive and are provided solely as guidance. Client may not use or encourage, promote, facilitate, or instruct others to use Shared Content or the FANTHREESIXTY Content Services for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful or offensive.

    Prohibited activities or content include:

    Providing content that infringes or misappropriates the intellectual property rights of FanThreeSixty or others;
    1. Providing content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable;
    2. Providing content that violates any applicable law, regulation, treaty or tariff, or promotes any illegal activity;
    3. Providing content that may be harmful to others including deceptive online marketing practices, including but not limited to practices that violate the United States Trade Commissions’ guidelines for proper online marketing schemes; and
    4. Providing content that violates the acceptable use policies or websites of any networks, machines, or services which are accessed through the FANTHREESIXTY Content Services.

      Client acknowledges that FanThreeSixty does not review, screen, edit, censor or take responsibility for any Fan Generated Content or Shared Content that the end users may create and share.  However FanThreeSixty reserves the right to investigate any violation of this Use Agreement or misuse of the FANTHREESIXTY Content Services.  If FanThreeSixty becomes aware of any harmful content or activity, or is notified or becomes aware of actual or potential violations of this Use Agreement, FanThreeSixty may take any action to stop the harmful activity, including but not limited to: denying access to the User Account, suspending or terminating such access, and/or taking any other actions deemed appropriate by FanThreeSixty in its sole discretion.
  6. Client Liability
    If Client violates this Use Agreement or authorizes or helps others to do so, FanThreeSixty may suspend or terminate Client’s User Account or take other necessary actions.

    Clients who violate this Use Agreement may incur criminal or civil liability.  FanThreeSixty may refer violators to civil or criminal authorities for prosecution, and will cooperate fully with applicable government authorities in connection with the civil or criminal investigations of such violations.

    If FanThreeSixty reasonably believes that (a) Shared Content violates any law, (b) Shared Content infringes on the rights of any third party or (c) Client’s use of the FANTHREESIXTY Content Services or any Shared Content is in an adverse matter that may affect FanThreeSixty or other FanThreeSixty’s clients, FanThreeSixty may request that Client remove such Shared Content.  In addition, FanThreeSixty may, in its sole discretion, remove such content, disable Client’s access to such content or Client’s User Account or terminate Client’s use of the FANTHREESIXTY Content Services.
  7. Liability for Shared Content
    Client is responsible for any and all Shared Content it chooses to approve and display, whether in print, videoboard, social media, advertising, or any other form or medium, and for any purpose, whether public or private, during or after the expiration of the Term.  Client shall be solely responsible for all interactions with, communications with and responsibility to the end user(s) for Client’s use of Shared Content. 

    FanThreeSixty reserves the right, but is not obligated to reject/remove any content that FanThreeSixty believes, in its sole discretion, violates these provisions.  Client understands that if Client does not have the right to upload or utilize Shared Content, doing so may subject Client to liability.
  8. Liability for misuse of FANTHREESIXTY Content Services
    Client shall be solely responsible for all activity that occurs under the use of the FANTHREESIXTY Content Services and in accordance with the Master Agreement.  Client is responsible for the management of the FANTHREESIXTY Content, the User Account, and review and approval of Shared Content.  Client’s inability to review, approve and use Shared Content as contemplated by this Use Agreement may affect the FANTHREESIXTY Content Services, may cause the service to not function at the appropriate service level and may negatively impact the end users’ experience with the service.

    Client shall be responsible for using the FANTHREESIXTY Content Services in accordance with the training provided by FanThreeSixty.  Should Client have any additional questions and/or require additional training, Client shall contact its FanThreeSixty representative. 

III. Term
The term of service for the FANTHREESIXTY Content Services shall remain in effect from the date set forth in the Purchase Schedule 1 and continue for the Service Term set forth in Purchase Schedule 1, unless earlier terminated as set forth herein. “Service Term”). 

  1. Contract Year. As used herein, “Contract Year” shall mean each consecutive twelve (12) month period of the Service Term commencing on the Effective Date.

IV. Termination of Services

  1. FanThreeSixty may terminate the FANTHREESIXTY Content Services for any or no reason by providing thirty (30) days’ written notice to Client. FanThreeSixty may terminate the FANTHREESIXTY Content Services for cause after giving Client five (5) days’ written notice if FanThreeSixty reasonably determines that:
    1. Client’s use of the FANTHREESIXTY Content Services poses a security threat, may harm FanThreeSixty’s hardware/systems, subject FanThreeSixty or any third party to liability;
    2. Client is using FANTHREESIXTY Content Services or Shared Content for fraudulent or illegal activities;
    3. Client is using FANTHREESIXTY Content Services or Shared Content in breach of this Use Agreement;
    4. Client has failed to pay FanThreeSixty for the FANTHREESIXTY Content Services in accordance with the payment terms; and/or
    5. FanThreeSixty’ continued provision of the FANTHREESIXTY Content Services to Client is prohibited by applicable law.
  2. Upon termination of FANTHREESIXTY Content Services, Client shall remain liable for all unpaid fees, charges and other payment obligations that have been incurred through the date of termination with respect to Client’s use of the FANTHREESIXTY Content Services.
  3. Upon termination of the FANTHREESIXTY Content Services for any reason, Client’s User Account will be deactivated. Client will lose all access to Shared Content that was stored on FanThreeSixty’ server. All Shared Content will be deleted, and all shared links will be turned off. FanThreeSixty shall have no obligation to maintain any Shared Content stored in Client’s User Account in the event that the FANTHREESIXTY Content Services are terminated.  FanThreeSixty shall have no liability to the end user for any loss of Shared Content due to termination of the FANTHREESIXTY Content Services for any reason.
  4. Upon termination, Client shall remain liable for all uses by Client of Shared Content that was saved, stored or backed-up on any Client systems.
  5. Client acknowledges that upon termination of the FANTHREESIXTY Content Services, all content, including Shared Content will be permanently deleted from the end users’ Event Album. FanThreeSixty shall have no liability to the end user for loss of deleted Shared Content.