Last Updated: December 2nd, 2016
Fawn’s content-sharing platform connects local businesses (“Merchants”) with Consumers (“Consumers”). Any interactions or disputes between you and a Merchant or Consumer are solely between you and that user. Fawn and its licensors shall have no liability, obligation or responsibility for any interaction between you and any other user.
These Terms also provide that all disputes between you and Fawn will be resolved by BINDING ARBITRATION. BY ACCEPTING THESE TERMS, YOU AND FAWN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court, your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the “Dispute Resolution and Arbitration” section below for the details regarding your agreement to arbitrate any disputes with Fawn.
You may use the Services only if you are above the age of 13 and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. If you are accepting these Terms and using the Services on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. You may only use the Service to purchase Goods (defined below) if you are the authorized holder of the credit card used for payment or an authorized user of a corporate account and if you are able to form a binding contract with us.
2. Registration and Use of the App
As a condition to using most parts of the Services, you are required to register with Fawn and create an account (“Account”). When you register for an Account, you may be required to provide us with some information about yourself, such as your name, email address, phone number or other contact information. You agree that the information you provide Fawn is accurate, complete, and up-to-date. Failure to do so shall constitute a breach of these Terms, which may result in immediate termination of your Account. You may not create multiple Accounts. Mass Account creation may result in suspension of all related Accounts. Accounts that are inactive for more than TWELVE months WILL be removed without further notice.
You are solely responsible for safeguarding the password that you use to access the Services and for any activities or actions under your account, including any password for Facebook, Google, or other third party login. Fawn cannot and will not be liable for any loss or damage arising from your failure to comply with the above.
Subject to your compliance with all the terms and conditions set forth in these Terms, Fawn grants you (a) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded directly from Fawn or from a legitimate marketplace (such as Apple’s iTunes store), solely in object code format and solely for your personal use for lawful purposes, on a single compatible device that you own or control; and (b) permission to access and use the Services, only for your personal use, and solely through the use of a licensed copy of the App. You may not reproduce, distribute, publicly display, or publicly perform the App or any part of the Services. Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not (1) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App or any part of the Services, or make or attempt to make any modification to or derivative work of the App or Services; or (2) interfere with or circumvent any feature of the App or Services, including without limitation any security or access control mechanism. You may not use the App or the Services for any purpose other than a purpose for which the App and the Services are expressly designed. The term App, as used herein, includes any update or modification to the App made available to you by Fawn (unless we provide you with separate terms). If you are prohibited under applicable law from using the App or the Services, you may not use them.
4. Purchases through the Fawn Service
(a) Posting Goods for Sale. Fawn may allow certain Merchants to post products and services (“Goods”) for sale to Consumers. When a Merchant posts Goods for sale on the Service, a Consumer may purchase a uniquely identifiable voucher through the Service (“Voucher”), which the Consumer can then exchange for selected Goods at the Merchant’s place of business. If you are a Merchant, you agree to comply with the Sale Terms (www.fawnapp.com/saleterms), which are hereby incorporated by this reference into the Terms, prior to offer Vouchers for sale through the Service.
(b) Purchase of Goods. If you are a Consumer, and you purchase Goods from a Merchant through the Service, you agree to the following terms:
(i) You acknowledge that while Fawn may facilitate the purchase of Goods, Fawn is not conducting the sale itself. Fawn does not own or operate the Merchants or control the businesses that post Goods for sale on the Service.
(ii) Purchases made through the Service require that you redeem your Voucher for the Goods in-person at the Merchant’s place of business. Vouchers are only valid for a limited period of time, which will be indicated when you make a purchase using the Service.
(iii) You acknowledge that you may only redeem a Voucher for Goods during the applicable Merchant’s regular business hours, and you are solely responsible for checking the Merchant’s business hours to ensure that you are able to redeem the Voucher for the Goods before the Voucher expires.
(iv) In the event that you do not redeem a Voucher within the designated time period, we will refund you the amount you paid for the Goods.
(v) If you are dissatisfied with the quality of the Goods, please contact the Merchant directly to inquire about a refund. Some Merchants may offer refunds for Goods purchased through the Service in accordance with their business policies and practices.
(vi) You may be required to present identification when you redeem a Voucher, either to verify your identity or to confirm that you meet any legal requirements that pertain to the sale of Goods at that location. [Some jurisdictions may permit the ordering of alcoholic beverages. In such jurisdictions, if you make a purchase that includes any alcoholic beverage, you acknowledge that you are at least 21 years of age. Upon pickup, you agree to present a government-issued identification card, evidencing your age. If you do not comply with these terms, you agree that the alcoholic beverage(s) will not be released to you, and you shall forfeit the cost of such beverages.]
(vii) Fawn expressly disclaims any liability resulting from your interaction with Merchants or the Goods and related Vouchers purchased through the Service. Any limitations set forth in this section will only be construed as strictly as permitted by applicable law.
(c) Payment. Certain features of the Services may require you to pay fees, for example to purchase broadcast credits or Vouchers. Before you pay any fees, you will have an opportunity to review and accept an estimate of the fees that you will be charged. Except as set forth in Section 4(b),all fees are in U.S. Dollars and are non-refundable. This no refund policy applies at all times regardless of your decision to terminate your usage, our decision to terminate your usage and any disruption caused to our Services for any reason whatsoever. Fawn may change the fees for any feature of the Service, including by adding fees, on a going-forward basis at any time.
To make a purchase via the Services, you may be required to exit the Services and enter the website of a third-party payment processor, such as Stripe or Braintree. The third-party payment processor may have independent terms of service and privacy policies that will govern information collected during the transaction and the transaction itself, and Fawn is not a party to such transactions. Fawn or the third-party payment processor will charge the payment method you specify at the time of purchase or as otherwise specified by you in your account information.
You authorize Fawn or the third-party payment processor to charge all sums as described in these Terms, for the orders that you make and any Service you select, to the payment method specified in your account. If you pay any fees with a credit card, Fawn or the third-party payment processor may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
If you receive any free or promotional broadcast credits from Fawn and you do not use those credits within 30 days of after receiving them, those broadcast credits will automatically expire.
5. Intellectual Property Rights
The Services are owned and operated by Fawn. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Services (“Materials”) provided by Fawn are protected by intellectual property and other laws. All Materials included in the Service are the property of Fawn or our third-party licensors. Except as expressly authorized by Fawn, you may not make use of the Materials. Fawn reserves all rights to the Materials not granted expressly in these Terms.
We may periodically present you with surveys, or solicit your opinion about the Services. You acknowledge that your participation in these types of programs is completely voluntary. By submitting opinions, comments, ideas, suggestions, feedback, images, documents, and/or proposals to us (collectively, “Submissions”), then you hereby grant Fawn an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Submissions in any manner and for any purpose, including to improve the Services and create other products and services.
6. User Content
(a) User Content Generally. Certain features of the Services may permit Merchants and other users to upload content to the Service, including messages, promotions, offers, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Services. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Services.
(b) Limited License Grant to Fawn. By posting or publishing User Content, you grant Fawn a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed. You may remove your User Content from the Services at any time; however you acknowledge that we may retain archived copies of your User Content.
(c) Limited License Grant to Other Users. By posting or sharing User Content with other users of the Services, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
(d) User Content Representations and Warranties. We expressly disclaim any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
· you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Fawn and users of the Services to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Fawn, the Services, and these Terms; and
· your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Fawn to violate any law or regulation.
(e) Offers. If you use the Services to communicate an offer, you are solely responsible for ensuring that your offer complies with these terms and all applicable laws, rules and regulations. Offers are subject to many regulations (such as alcohol discounts and offers marketed to minors) and if you are not certain that your offer complies with applicable law, consult with an expert. You may only run an offer if you are the merchant for or the manufacturer of the product or service you are promoting. You must clearly and prominently disclose any restrictions on your offer (such as expiration date or limitations on redemption). If your offer may be redeemed at a merchant not operated by you, it is your sole responsibility to communicate with the merchant and ensure they honor your offer. You are solely responsible for improper redemption, fraud, disputes or other issues that arise from the distribution and/or redemption of your offer.
(f) Promotions. If you use the Services to communicate or administer a promotion (ex: a contest or sweepstakes), you are solely responsible for the lawful operation of that promotion, including (i) the official rules; (ii) offer terms and eligibility requirements (ex: age and residency restrictions); and (iii) compliance with applicable rules and regulations governing the promotion and all prizes offered (ex: registration and obtaining necessary regulatory approvals). Any promotions on the Services must include a complete release of Fawn by each entrant or participant and an acknowledgement that the promotion is in no way sponsored, endorsed or administered by, or associated with, Fawn. We will not assist you in the administration of your promotion, and you agree that if you use THE SERVICES to administer your promotion, you do so at your own risk.
(g) User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Fawn may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Services you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Fawn with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Fawn does not permit copyright-infringing activities on the Service.
7. DMCA, Copyright, and Other Complaints
We promote respect for the intellectual property rights of others in all of our business endeavors and strictly prohibit users from uploading infringing User Content to the Services. We may, in our sole discretion, remove User Content that appears to infringe on the intellectual property rights of others. It is our policy to respond to and investigate claims of copyright and other intellectual property rights infringement. We have a policy of terminating the access of users who are repeat infringers in appropriate circumstances.
You may notify us of alleged copyright infringement in accordance with the Digital Millennium Copyright Act (the “DMCA”). We will respond expeditiously to notices of alleged infringement sent pursuant to the DMCA.
In order to notify us of a copyright infringement claim pursuant to the DMCA, you must include:
· a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
· identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works;
· a description of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit us to locate the material, including a URL address;
· your address, telephone number, and, email address;
· a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
· a statement made under penalty of perjury by you that the information in the notification is accurate, and that you are authorized to act on behalf of the owner of the copyright involved.
The notice described above should be sent to our designated copyright agent at firstname.lastname@example.org.
Please note that in order to facilitate resolution of the dispute, we may provide your contact information to the user that posted the content that you are reporting; or in the event that you are the alleged infringer and provide a counter-notice, to the user or entity that filed the original claim. We may also provide your information in connection with a claim under this Section to www.lumendatabase.org. Please also note that you may be liable for damages (including costs and attorneys’ fees) if you knowingly and materially misrepresent that material or an activity is infringing your copyright.
8. Third Party Interactions.
PLEASE NOTE THAT YOUR RELATIONSHIPS WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS ARE GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO PROVIDE US WITH CONTENT AVAILABLE TO YOUR THIRD PARTY ACCOUNT. We make no effort to review any Third Party Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and we are not responsible for any Third Party Content.
The Services may contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
(b) Third Party Advertising. The Services may contain third party advertising and marketing. By agreeing to these Terms you agree to receive such advertising and marketing.
(c) Third Party Disputes. Any interactions or disputes between you and a Merchant, Consumer or other user or are solely between you and that user. Fawn and its licensors shall have no liability, obligation or responsibility for any interaction between you and any other user of the Service.
9. Open Source Software. The Services may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute such components (“Open Source Components”). Although the Services are provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining such Open Source Components under the applicable third-party licenses or to limit your use of such Open Source Components thereunder.
10. Use Restrictions
You represent and warrant that you will not use the Services to nor will you encourage anyone to use the Services to:
· Upload, post, email, transmit or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable.
· Abuse, harass, threaten, impersonate stalk or intimidate other users.
· Expressly state or imply that any statements you make are endorsed by us, without our specific prior written consent.
· Use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the presentation of the Services or their contents.
· Interfere with or disrupt the Services or the servers or networks connected to them.
· Solicit personal information from anyone under 13.
· Exploit anyone in a sexual or violent manner.
· Harm minors in any way.
· Forge headers or otherwise manipulate identifiers to disguise the origin of any content transmitted through the Services, or attempt to impersonate another user, person or entity.
· “Frame” or “mirror” any part of the Services without our prior written authorization or use meta tags or code or other devices containing any reference to us or the Services in order to direct any person to any other websites for any purpose.
· Modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Services, or cause others to do so.
· Upload, post, email, transmit or otherwise make available any content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements).
· Provide false, inaccurate or misleading information on the Services (directly or by omission or failure to update information).
· Post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any user.
· Create or send unsolicited email or other electronic communication.
· Upload, post, email, transmit or otherwise make available any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party.
· Upload, post, email, transmit or otherwise make available any material that contains software viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or any other computer code, files or programs designed to interrupt, destroy, detrimentally interfere with, or limit the functionality of any computer software or hardware or telecommunications equipment, or intercept or expropriate any system, data, or personal information.
· Submit stories or comments linking to affiliate programs, multi-level marketing schemes, or websites/blogs repurposing existing stories (source hops).
· Intentionally or unintentionally violate any applicable local, state, national or international law.
You will not take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure, or bypass any measures we may use to prevent or restrict access to the Services.
We reserve the right, but are not obligated to, terminate your participation in or use of the Services if you have misused the Services, or violated any of the restrictions above.
11. No Warranties
THE SERVICES AND ALL GOODS, VOUCHERS, AND OTHER MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. FAWN DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND ALL GOODS, VOUCHERS, AND OTHER MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. FAWN DOES NOT WARRANT THAT THE SERVICES OR ANY PORTION OF OR THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR FAWN OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING Fawn OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICES AND YOUR DEALING WITH ANY OTHER USER. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICES, AND ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICES AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE(S) USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF THE MATERIALS OR CONTENT.
FAWN RELIES UPON MERCHANTS TO PROVIDE ACCURATE INFORMATION ABOUT THEIR GOODS, INCLUDING WITHOUT LIMITATION ANY ALLERGEN AND DIETARY INFORMATION. FAWN DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICES IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK.
FAWN DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY GOOD, PRODUCT, VOUCHER, OR SERVICE ADVERTISED OR OFFERED BY A MERCHANT, OR OTHER THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICES.
Notwithstanding the forgoing, Fawn does not disclaim any warranty or other right that Fawn is prohibited from disclaiming under applicable law.
12. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL FAWN BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY FAWN HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL FAWN BE LIABLE FOR LOSS OF YOUR DATA, INFORMATION, CONTENT, OR OTHER INFORMATION IN CONNECTION WITH THE USE OF THE SERVICES.
FAWN WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES, BETWEEN YOU AND ANY MERCHANT, CONSUMER OR OTHER USER. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING GOODS OFFERED VIA THE SERVICES (WITH ALL THEIR IMPLICATIONS) RESTS SOLELY WITH YOU. YOU EXPRESSLY WAIVE AND RELEASE FAWN FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES IN ANY WAY RELATED TO MERCHANTS OR CONSUMERS INTRODUCED TO YOU BY THE SERVICE. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
EXCEPT AS PROVIDED IN SECTION 15, AND TO THE FULLEST EXTENT PERMITTED BY LAW, FAWN’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE SERVICES WILL BE LIMITED TO THE LESSER OF $100 OR THE AMOUNT PAID BY YOU IN THE 12 MONTHS PRIOR TO THE CLAIM FOR THE SERVICES THAT CAUSED SUCH DAMAGE. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL AND CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree that you are and will be responsible for your use of the Services, and you agree to defend and indemnify Fawn and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Services; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations), and in that case, you agree to cooperate with our defense of that claim.
14. Alpha and Beta Release Versions
In the event that all or any portion of the Services are identified as an alpha or beta release version (“Alpha Version” or “Beta Version”), the terms of this paragraph will apply in addition to the other terms of these Terms. The Alpha Version or Beta Version may contain more, fewer, or different features than are contained in the commercial release corresponding to the Alpha Version or Beta Version that we intend to or do distribute. We reserve the right at any time not to release a commercial version corresponding to the Alpha Version or Beta Version, or if we do release such a commercial version, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability, or other characteristics of such commercial release. You acknowledge and understand that the Alpha Version and Beta Version may contain errors affecting its proper operation and is provided to you “AS IS”. A primary purpose of an Alpha Version or Beta Version is to obtain feedback on the Product’s performance and the identification of defects. As such, any communications from you regarding an Alpha Version or Beta Version are subject to the Submissions terms in Section 5 above.
15. Arbitration Agreement and Waiver of Class Remedies
(a) Generally. In the interest of resolving disputes between you and Fawn in the most expedient and cost effective manner, you and Fawn agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND FAWN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) Exceptions. Despite the provisions above, you and Fawn both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
(c) Arbitrator. Any arbitration between you and Fawn will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting us.
(d) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). Fawn’s address for Notice is: 7447 River Nine Drive, Modesto, CA 95356. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Fawn may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Fawn must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, we will pay you the highest of the following: (1) the amount awarded by the arbitrator, if any; (2) the last written settlement amount offered by us in settlement of the dispute prior to the arbitrator’s award; or (3) $1,000.
(e) Fees. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Fawn for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(f) No Class Actions. YOU AND FAWN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Fawn agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(g) Modifications. If Fawn makes any future change to this arbitration provision (other than a change to Our address for Notice), you may reject the change by sending us written notice within 30 days of the change to our address for Notice, in which case your account with us will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, will survive.
(h) Enforceability. If the subsection entitled “No Class Action” is found to be unenforceable or if the entirety of this Arbitration section is found to be unenforceable, then the entirety of this arbitration section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in the above sub-section (Notice; Process) will govern any action arising out of or related to these Terms.
16. Term, Termination and Modification of the Services
(a) Term. These Terms are effective beginning when you accept the Terms or download, install, access or use the Services, and end when terminated as set forth in this Section 16.
(b) Termination. If you violate any provision of these Terms, your account and these Terms automatically terminate. In addition, Fawn may, at its sole discretion, terminate these Terms, your account on the Service or suspend or terminate your access to the Services at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by emailing us at email@example.com.
(c) Effect of Termination. Upon termination of these Terms: your license rights will terminate and you must immediately cease all use of the Services and you will no longer have access to your account. Sections 5, 6, 7, 8, 9, 11, 12, 13, and 15 through 25, as well as the Sale Terms [www.fawnapp.com/saleterms], will survive expiration or termination.
(d) Modification of the Service. Fawn reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Services or any suspension or termination of your access to or use of the Service.
(e) Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 16, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
18. Force Majeure
We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation (including “line-noise” interference).
19. Governing Law.
These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Fawn submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Services from our offices in California, and we make no representation that Materials included in the Services are appropriate or available for use in other locations.
21. Additional Terms
Your use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from the Services (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
22. Consent to Electronic Communications
23. Contact Information
The Services are offered by Fawn Technologies, Inc., located at 7446 River Nine Drive Modesto, CA. You may contact us by sending correspondence to that address or by emailing us at. You may receive a copy of these Terms by emailing us at firstname.lastname@example.org.
24. Notice to California Residents
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Service.
25. Notice Regarding Apple
This Section 25 only applies to the extent you are using our mobile application(s) on an iOS device. You acknowledge that these Terms are between you and Fawn only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Services to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Service, including: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Services and/or your possession and use of the Services infringe third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and 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 a third party beneficiary of these Terms. You hereby represent and warrant that (1) 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
Fawn Sale Terms
Last Updated: December 2, 2016
1. Voucher Authorization
You acknowledge that when one of our Consumers purchases Goods that you have posted for sale via the Service, we will issue the Consumer a Voucher. The Consumer will then redeem the Voucher at your place of business when the Consumer picks up the Goods. You authorize us to offer, sell and distribute Vouchers in accordance with the parameters you specified when creating a broadcast, including the maximum number of Vouchers corresponding with a given Good that we may market, the minimum price for such Vouchers, and the time period during which such Vouchers will be available, including an effective date and an expiration date. We may offer and sell up to the maximum number of Vouchers you specify via the Service, but we are not under any obligation to do so.
2. Acceptance and Redemption of Vouchers
You agree to redeem Vouchers presented by Consumers for the applicable Goods, without imposing additional restrictions or fees. You acknowledge that the Vouchers themselves or the documentation we provide may specify that the Vouchers expire on a given date or time. However, applicable laws and regulations may require either cash redemption or non-expiration of such Vouchers. You agree to comply with such applicable laws and regulations and to only enforce such Voucher expiration date when permitted by applicable law and regulations. In addition, if a Consumer redeems a Voucher for less than its face value, you agree to issue credit or cash for the difference between the face value and the amount redeemed if so required by applicable law.
In consideration for the Services and our assistance with the marketing and sale of the Goods, we will be entitled to a commission, in an amount that is described when you post Goods for sale via the Service (“Commission”). For all Vouchers that are redeemed for Goods, we will pay you an amount equal to the sale price of the Goods minus our Commission (“Sales Proceeds”). In order to register and sell Goods via the Service, you may be required to sign up for an account with a third-party payment processor, such as Stripe or Braintree. In order to set up an account with such third-party payment processor, or receive Sales Proceeds, you may be required to exit the Service and enter the website of such third-party payment processor. The third-party payment processor may have independent terms of service and privacy policies that will govern information collected during the transaction and the transaction itself, and Fawn is not a party to such transactions. We will make commercially reasonable efforts to pay you every day or as set forth in your account with the third-party payment processor. You are solely responsible for collection and payment of sales, use, or value added taxes accrued in connection with the sale or redemption of Vouchers and Goods.
4. Failure to Redeem Vouchers
If a Consumer does not redeem a Voucher within the specified time period, we will refund the Consumer, and you will not be entitled to any Sales Proceeds for that transaction. You are solely responsible for ensuring that you only transfer Goods to a Consumer when a Voucher has been validly redeemed. If you transfer Goods but fail to confirm the redemption of an applicable Voucher, we are not responsible for payment for such Goods.
5. Consumer Refunds
We strive to provide quality customer service. In the event that a Consumer is dissatisfied with the Goods, and you want to provide a refund or store credit, we will strive to cooperate, provided that, in all circumstances, we are entitled to retain our Commission. Please contact us at email@example.com if you need our help issuing a refund.
6. Prohibited Goods
The Service prohibits, and you agree not to post, offer, advertise, or sell the following items on or via the Service: weapons; guns and gun accessories; alcohol living animals; tobacco; any goods or services that, as used or sold hereunder, might be considered immoral or illegal or otherwise violate applicable law; any dangerous items; and any other items that are indicated in the Service as being ineligible for sale through the Service (“Prohibited Goods”). You represent and warrant that the Goods you post for sale on the Service will not include any Prohibited Goods.
7. Representations and Warranties
You represents and warrant that: (i) you have the authority and no other party’s approval is necessary to agree to these Sale Terms and comply with the terms set forth herein; (ii) these Sale Terms and the Terms as a whole do not conflict with your agreements with or obligations with regard to any third parties or any applicable laws or regulations; (ii) you will provide Consumers with Goods in accordance with reasonable professional and industry standards, using qualified personnel; (iii) you will use commercially reasonable efforts to ensure that all information you provide regarding Goods will be accurate and up to date; (iv) you are registered for sales and use tax collection purposes in all states in which you will provide Goods in exchange for a Voucher; and (v) you will comply with all applicable laws and regulations, including those relating to your provision of and Consumer’s use of Vouchers. Such laws and regulations include, but are not limited to those relating to: (a) expiration of gift cards; (b) consumer protection and the prohibition of deceptive trade practice; (c) unclaimed property; (d) alcohol-related services; and (e) discounting.