Terms of Service
TERMS OF SERVICE
If you want to access or use the INFLUXER Platform, you must first read the entirety of the Terms of Service and agree to the terms and conditions set forth herein. If you don’t understand the entirety of the Terms or Service or you don’t agree to all of its terms and conditions, you may not use our INFLUXER Platform.
This Agreement applies to your access and use of, and all contents and information available within, our mobile messaging program (“Messaging Program”), mobile application (“Mobile App”), and web-based platform (“Web Platform”) which enable users and customers to, among other things, (A) receive updates regarding promotions and their Account (as later defined) and orders, (B) purchase student-athlete merchandise, (C) upload, review, and execute documents, (D) verify user information, (E) access the student-athlete merchandise portal, (F) connect with registered third-parties for engagement opportunities, and (G) obtain insight and information on royalties and other sales data (the Messaging Program, Mobile App, and Web Platform shall collectively be referred to herein as the “INFLUXER Platform”).
We reserve the right to modify these Terms at any time, with such changes becoming effective when posted on the INFLUXER Platform. If you use the INFLUXER Platform after a modification of these Terms, you agree to be bound by the Terms as modified.
These Terms contain important information regarding your rights with respect to the INFLUXER Platform, including your relationship with us. Please read them carefully and review them regularly. The capitalized terms used herein shall have the meanings assigned to them in this Agreement. By using the INFLUXER Platform, you acknowledge that you accept the terms set forth in this Agreement. If you do not accept such terms, you may not access the INFLUXER Platform.
1. Acceptance of Terms
1.1. Eligibility. You must be at least thirteen (13) years old to use the Messaging Program and must be eighteen (18) years or older to use the other services offered on the INFLUXER Platform. By using the INFLUXER Platform, you agree and represent that you are of the proper age, and that your use of the INFLUXER Platform does not violate any applicable laws or regulations.
1.2 Binding Agreement. This Agreement takes effect when you access or use the INFLUXER Platform or click the “I Accept” or similar button when prompted to review our Terms of Service (the “Effective Date”). By accessing or using the Influxer Platform or clicking on the “I Accept” or similar button, you: (A) acknowledge that you have fully read and understood these Terms; (B) represent and warrant that you have the right, power, and authority to enter into this Agreement; and (C) accept the terms, conditions, and obligations of this Agreement and agree that you will be legally bound by its terms.
2.Modification of Services
INFLUXER reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement, suspend, discontinue, or delete any of the terms and conditions of this Agreement and review, improve, modify or discontinue, temporarily or permanently, the INFLUXER Platform or any content or information through the INFLUXER Platform at any time, effective with or without prior notice and without any liability to INFLUXER. INFLUXER may also impose limits on certain features or restrict your access to part or all of the INFLUXER Platform without notice or liability. In the event of any retroactive material change to your rights or our specific obligations to you under this Agreement, we will notify you via your Account and/or the email address on file and provide you the opportunity to reject the modified agreement and discontinue your use of the INFLUXER Platform. Your continued use of the INFLUXER Platform following the update to this Agreement constitutes your acceptance of the updated Agreement.
3. Creation and Ownership of Account
3.1 Registration. Your use of the INFLUXER Platform requires you to register for an account (“Account”). INFLUXER has the right to restrict anyone from completing registration of an Account if INFLUXER determines, in its sole discretion, that such User (as later defined) may threaten the safety and integrity of the INFLUXER Platform or that such restriction is necessary to address any other technical, legal, or business concern that INFLUXER may have.
You may register an account for the INFLUXER Platform as either a student-athlete (“Student-Athlete”) or a Brand (as later defined).
3.2 Credentials. In creating an Account, you will be asked to, among other things, provide an email and password exclusive to the Account (“Login Information”). You are responsible for the safekeeping of your Login Information and shall not provide or disclose your Login Information to any third party other than an individual with express authority to act on your behalf.
3.3 Responsibility. INFLUXER expressly prohibits conduct in violation of NCAA Regulations and encourages all Users (as later defined) to take all appropriate measures to ensure their 3
compliance and the integrity of the INFLUXER Platform. Accordingly, you are solely responsible for any activities occurring under your Account, whether or not you have expressly authorized such activities. It is each Student-Athlete’s responsibility to verify that they are adhering to all NCAA Regulations, including but not limited to the reporting of Opportunities (as later defined), and other rules and regulations of the Student-Athlete’s organization, conference, state, and any governing bodies which may provide oversight of your activities.
Should you believe that any unauthorized party may be using your Account in in violation of any of the aforementioned, or you suspect any other breach of security, you agree to notify us immediately. You expressly authorize INFLUXER to provide true and accurate information about you, your Account, and your activities on the INFLUXER Platform in the event of an investigation by the Student-Athlete’s institution, conference, the NCAA (or similar governing body), or any other appropriate authorities or entities, including federal, state, and local law enforcement.
3.4. Transfers. INFLUXER does not permit or honor the transfer of Accounts. You may not purchase, sell, gift, or trade any Account, or offer to purchase, sell, gift, or trade any Account, and any such attempt shall be null and void.
3.5 No Ownership Interest to the Account. Notwithstanding anything contained in this Agreement to the contrary, you acknowledge and agree that you have no ownership or other property interest in or to the Account. You further acknowledge and agree that all rights in and to the Account (including all versions, modifications, or enhancements thereof) are and shall forever be owned by and inure to the benefit of INFLUXER. If, notwithstanding the foregoing, you for any reason retain any right, title, or interest in or relating to the Account, you agree to assign, in writing and without any requirement of further consideration, all such right, title, and interest to us.
3.6 Accuracy of Account Information. By registering for an Account, you: (A) represent and warrant that all the information you provide and submit (including but not limited to your mailing address, email address, your residential or business telephone number, and/or your mobile telephone number) is current, truthful, and accurate; (B) agree to maintain the accuracy of such information in perpetuity; and (C) represent and warrant that you are the current subscriber or owner of any telephone number and email address that you provide. You are strictly prohibited from providing a phone number or email that is not your own and authorize us to verify any information you provided through any source, including, but not limited to the use of third-party identity verification systems. If we discover that any information provided in connection with your registration is false or inaccurate, we may suspend or deactivate your account.
3.7 Account Deletion/Deactivation. You have the right to deactivate or delete your Account at any time. You understand and agree that, except as expressly provided by law, the deactivation or deletion of your Account is your sole right and remedy with respect to any dispute you may have with INFLUXER.
By agreeing to these Terms, you agree to be bound by Stripe’s Terms, as the same may be modified by Stripe from time to time. As a condition of us enabling payment processing services through Stripe, you agree to provide us with accurate and complete information about you, and you authorize us to share it and the transaction information related to your use of the payment processing services provided by Stripe. You acknowledge and agree that you are solely responsible for the accuracy of the information you have provided and for assuring that the information is the most up to date so payments can be made effectively.
INFLUXER reserves the right, from time to time, to change payment processors and/or other aspects of the payment system it elects to utilize in connection with the INFLUXER Platform. In the event of any such change, you will be required to agree to the terms of service required by any such processors and other third parties.
4.Suspension or Termination of Accounts
4.1 INFLUXER’S RIGHT. INFLUXER RESERVES THE RIGHT TO SUSPEND AND/OR TERMINATE YOUR ACCOUNT AT ANY TIME FOR FAILURE TO ADHERE TO THIS AGREEMENT OR FOR ANY OTHER REASON OR NO REASON AT ALL, WITH NO LIABILITY UNDER ANY THEORY OF LAW, INCLUDING TORT OR CONTRACT, AND WITH NO LIABILITY FOR ANY TYPE OF DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS.
4.2 No Notice Requirement. You acknowledge and agree that INFLUXER is not required to provide you notice before suspending or terminating your Account and/or your access to the INFLUXER Platform. In the event that your Account is suspended, terminated, or cancelled, you will have no further access to your Account or anything associated with it.
4.3 Perpetual Suspension/Termination. If INFLUXER suspends or terminates your Account or access to the INFLUXER Platform, you are thereafter prohibited from registering and creating a new Account under your name or business name, an alias, a fake name, or the name of any third party, even if acting on behalf of the third party. The only way to regain access is by obtaining the written consent of INFLUXER.
4.4 Survival post Termination. Even if your right to use the INFLUXER Platform is suspended or terminated, the terms of this Agreement shall survive and will remain enforceable against you. INFLUXER reserves the right to take appropriate legal action pursuant to the Agreement.
5. Termination of this Agreement
5.1 Notice. Unless both you and INFLUXER expressly agree otherwise in writing, either party may terminate this Agreement in its sole discretion, without explanation, by providing written notice to the other, which will result in the termination of the remainder of the Terms of Service as well, except as otherwise provided in this Agreement. Notwithstanding the aforementioned, INFLUXER must acknowledge its receipt of your termination notice in order for the termination to go into effect. 5
5.2 Manner. To terminate this Agreement, you may send written notice to firstname.lastname@example.org. The termination will not come into effect until you receive an acknowledgment from INFLUXER that this Agreement has been terminated. In the event you properly terminate this Agreement, your right to use the INFLUXER Platform is automatically revoked, and your Account will be closed.
5.3. Obligation to Finish and Perform Opportunities. You may only request to terminate this Agreement only if you have successfully completed any and all open and/or active Opportunities that you entered in and are not in an active dispute with another User.
6. INFLUXER’s Relationship to Student-Athletes and Brands
6.1 Users. Individuals, businesses, and/or nonprofit organizations who are utilizing the INFLUXER platform seeking to obtain certain services (“Opportunities”) from Student-Athletes (collectively, “Brands”) and Student-Athletes are collectively referred to as a “User” or the “Users.” If you agree to the terms of an Opportunity with another User, you and such other User form a contract directly between the two of you as set forth in more detail in herein.
6.2 Credentials. Any reference on the INFLUXER Platform to a User being rated or credentialed in some manner indicates only that the User has completed the relevant Account registration process or met certain criteria and does not represent anything else. Any such description is not an endorsement, certification, or guarantee by INFLUXER of such User’s skills or qualifications or whether they are licensed, insured, trustworthy, safe, or suitable. Instead, any such description is intended to be useful information for other Users to evaluate when they make their own decisions about the identity and suitability of Users whom they select, interact, or contract with via the INFLUXER Platform.
All Users are free to offer and provide their services elsewhere, including through competing platforms. Student-Athletes are free to accept or reject Brands, Opportunities, and contracts. Student-Athletes are not penalized for rejecting Brands, Opportunities, or contracts, though if Student-Athletes accept an Opportunity through the INFLUXER Platform, they are expected to fulfill their contractual obligations to the Brand. Student-Athletes set their own rates for services performed in the INFLUXER Platform, without involvement by INFLUXER.
Without INFLUXER’s prior written consent, however, Brands may not contact, attempt to contact, nor engage (whether directly or indirectly) with any Student-Athlete it identified or connected with through the INFLUXER Platform and no Student-Athlete may contact, attempt to contact, nor engage (whether directly or indirectly) with any Brand it identified or connected with through the INFLUXER Platform other than through us or through the INFLUXER Platform.
7.User Representations and Warranties
In addition to any other representations and warranties contained elsewhere in this Agreement, you represent and warrant that:
- A. You have the right, authority, and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement;
- B. If you are a customer, you are at least thirteen (13) years old, and if you are a User, you are at least eighteen (18) years old;
- C. You have fully read and understood this Agreement, and agree to be fully bound by its terms;
- D. You will respect the privacy, property, and data protection rights of other Users;
- E. You will communicate and act professionally and responsibly with other Users and timely fulfill any obligations to other Users that are related to or connected with your Opportunities, and you will solely make or receive payment through the INFLUXER Platform for services provided or procured through the INFLUXER Platform;
- F. Your actions while using or accessing the INFLUXER Platform are in accordance with all applicable institutional policy, local, state, provincial, national, or international law or custom, all applicable NCAA Regulations, and the principles of good faith; and
- G. You have the unrestricted right to work in the jurisdiction in which you will be performing Opportunities;
- H. You will only offer and provide services for which you have the necessary skills, expertise, and/or credentials and you will provide those services safely and in accordance with all applicable laws;
- I. If you are a Student-Athlete, you have consulted your institution’s athletic department and/or compliance staff with regard to whether your use of the INFLUXER Platform and undertaking of any Opportunities is in compliance with all applicable NCAA Regulations, including but not limited to those that may restrict your eligibility or amateur status; and
- J. If you are a Student-Athlete, you will abide by the NCAA Regulations at all times while using the INFLUXER Platform or performing Opportunities.
8. Contract between Brands and Student-Athletes
You acknowledge and agree that each User creates a legally binding contract when you and the respective Student-Athlete or Brand accept an Opportunity. Such contract is directly between the Users, and INFLUXER is not a party to such contract.
Contracts formed between Users may not conflict with the terms in this Agreement, expand INFLUXER’s obligations, or restrict INFLUXER’s rights under this Agreement. Users do not have authority to enter into written or oral contracts (whether express or implied) on behalf of INFLUXER. INFLUXER is not obligated to compensate Student-Athlete for a Brand’s failure to pay for services.
9.1 Shipping Carrier. INFLUXER ships all of our orders via UPS. We will send you a substitute order in the event of courier errors or damages to the goods sustained during transit. In the event 7
an order is not delivered due to a courier error, or the goods are damaged during transit, please contact us via the contact email@example.com.
9.2 Shipping Rates. Shipping charges for your order will be calculated and displayed at checkout. Overnight delivery is only available for orders with delivery addresses within the continental United States.
9.3 Processing and Delivery Times. All orders are processed within 2-5 business days, but orders are generally not shipped or delivered on weekends or holidays. Standard shipping typically takes between 2-8 business days for deliveries within the United States. If we are experiencing a high volume of orders, shipments may be delayed. Please allow additional days in transit for delivery, as delays can occasionally occur. Additionally, nationwide and global shipping delays (such as those caused by COVID-19, holiday volumes, or inclement weather) may impact your estimated delivery date.
9.4 Track Your Order. Once your order has shipped, you will receive a shipping confirmation email with a tracking number to track your order via UPS. Once you receive your tracking number, please allow up to 48 hours for the tracking portal to update.
9.5 Incorrect Shipping Addresses and Refused Delivery. We make every attempt to validate the shipping address provided at checkout to ensure it’s recognized as a valid address by UPS. If we cannot validate the address, we will try to contact you so that you may provide an updated address. If we cannot update the address or get in contact with you after 30 days, the order will be canceled and refunded. We shall not be held responsible if you provide the wrong shipping address and we cannot recover the package.
9.6 Custom Fees and Import Taxes. Most international orders are subject to Customs Duty and Tax regulations specified by the designated country. You may incur such fees during or after shipping (tariffs, taxes, VAT, etc.), and they are your responsibility. We are not responsible for any customs or import fees applied to your order. You may contact your local customs office for details.
9.7 Refund Policy. INFLUXER does not offer exchanges or accept returns for refunds, unless otherwise required by your jurisdiction.
9.8 Damages and Issues. Please inspect your order upon reception and, within 14 days after delivery of your order, contact us if the item is defective, damaged, or if you receive the wrong item, so that we can evaluate the issue and do our best to remedy the situation.
9.9 Exceptions / Non-Returnable Items. Certain types of items cannot be returned, like perishable goods, custom products, and personal care goods. We also do not accept returns for hazardous materials, flammable liquids, or gases. Please contact us at firstname.lastname@example.org if you have questions or concerns about your specific item. Unfortunately, we cannot accept returns on sale items or gift cards.
9.10 European Union 14-Day Cooling Off Period. Notwithstanding the above, if the merchandise is being shipped into the European Union, you have the right to cancel or return your order within
14 days, for any reason and without justification. As stated above, your item must be in the same condition that you received it, unworn and unused, with tags, and in its original packaging. You’ll also need the receipt or proof of purchase. Contact us for any return question(s) at email@example.com.
10. Messaging Program
10.1 Program Description. Without limiting the scope of the Messaging Program, if you opt into the Messaging Program, you can expect to receive messages related to marketing, promotion, reminders, payment, customer support, delivery (including order confirmations, tracking information, and shipping updated via email), and other messages related to your transaction and the sale of our products.
10.2 Opt In. By opting into the Messaging Program, you agree to receive recurring automated promotional and personalized marketing text (e.g., SMS and MMS) messages (e.g. cart reminders), including text messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other number that you designate. By providing your phone number, you represent and warrant that you are providing your own phone number, and not someone else’s, and that you are a legally-authorized user of the phone number that you provide. The Messaging Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging. Consent to receive automated marketing text messages is not a condition of any purchase. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”).
10.3. Opt Out. If you do not wish to continue participating in the Messaging Program, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from us to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our Messaging Program may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that INFLUXER and its service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
10.4 Message Frequency, Cost and Changes. You agree to receive messages periodically at our discretion. Daily, weekly, and monthly message frequency will vary. We reserve the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of messages sent. We also reserve the right to change the short code or phone number from which our messages are sent. Message and data rates may apply.
10.5 Support Instructions. For support regarding the Messaging Program, text “HELP” to the number you received messages from, visit https://influxermerch.com and submit the form with
details about your problem or your request for support, or email us at firstname.lastname@example.org. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt-outs must be submitted in accordance with the procedures set forth above.
10.6 Supported Devices. The Messaging Program is offered on an “as-is” basis. Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. INFLUXER, its service providers, and the mobile carriers supported by the program are not liable for delayed or undelivered messages.
10.7 Age Restriction. You may not use or engage with the Messaging Platform if you are under thirteen (13) years of age. If you use or engage with the Messaging Platform and are between the ages of thirteen (13) and eighteen (18), you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Messaging Platform, you acknowledge and agree that you are not under the age of thirteen (13) and, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Messaging Platform or are eighteen (18) years or older. By using or engaging with the Messaging Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s applicable law to use and/or engage with the Messaging Platform.
10.8 Disclaimer of Warranty. As stated, the Messaging Program is offered on an “as-is” basis. It may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with the Messaging Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of our control. Carriers are not liable for delayed or undelivered mobile messages.
10.9 State Laws. In addition to the specific state laws set forth below, we endeavor to comply with similar laws of all 50 states.
10.9.1 Florida. We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of you opt-in to the Messaging Program, (A) your shipping address, as provided, is located in Florida; or (B) the area-code for the phone number used to opt-in to the Messaging Program is a Florida area-code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by us in direct response to mobile messages or requests from you (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.
10.9.2 Washington. To the extent the law is relevant and applicable to the Messaging Program, we endeavor to comply with the commercial telephone solicitation requirements pursuant to the Revised Code of Washington (RCW) (including but not limited to sections 80.36.390, 19.158.040, 19.158.110 and 19.158) as applicable to Washington residents. For purposes of compliance, you agree that we may assume that you are a Washington resident if, at the time of opt-in to the Messaging Program, the area-code for the phone number used to opt-in to the Messaging Program is a Washington area-code.
10.9.3 Oklahoma. We endeavor to comply with the Oklahoma Telephone Solicitation Act of 2022 as applicable to Oklahoma residents. For purposes of compliance, you agree that we may assume that you are an Oklahoma resident if, at the time of opt-in to the Messaging Program, the area-code for the phone number used to opt-in to the Messaging Program is an Oklahoma area-code. You agree that the requirements of the Oklahoma Telephone Solicitation Act do not apply to you, and you shall not assert that you are an Oklahoma resident, if you do not meet the criteria or, in the alternative, do not affirmatively advise us in writing that you are an Oklahoma resident by sending written notice to us. Insofar as you are an Oklahoma resident, you agree that mobile messages sent by us in direct response to mobile messages or requests from you (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Oklahoma Statutes Title 15 (including but not limited to sections 775C.1, 775C.2, 775C.3, 775C.4 and 775C.5), to the extent the law is otherwise relevant and applicable.
10.9.4. Updates. Any new features, changes, updates or improvements of the Messaging Program shall be subject to these Terms unless explicitly stated otherwise in writing.
Without limitation, the INFLUXER Platform may not be used for any of the following purposes:
- A. To re-use, copy, reproduce, reverse compile, modify, create derivative works of, disassemble, decode, reverse engineer, or attempt to discern any software, including source code, used by or otherwise relating to the INFLUXER Platform or otherwise reduce to human-perceivable form all or any part of the INFLUXER Platform;
- B. To defame, slander, disparage, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead, or otherwise violate the rights (such as, but not limited to, rights of privacy, confidentiality, reputation, and publicity) of others, including Users and INFLUXER;
- C. To publish, post, upload, distribute, or disseminate any profane, defamatory, hateful, discriminatory, infringing, obscene, or unlawful language, material or information, or any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act or the Health Information Technology for Economic and Clinical Health Act;
- D. To upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any User, third party, or INFLUXER;
- E. To upload files or scripts such as Trojan horses, corrupt files, SQL injections, worms, timebombs, cancelbots, or any other files or software that may damage INFLUXER or its Users’ property;
- F. To rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the INFLUXER Platform, or any features or functionality of the INFLUXER Platform, to any third party for any reason, including by making the INFLUXER Platform available on a network where it is capable of being accessed by more than one device at any time;
- G. To post or complete an Opportunity requiring a User to engage in activity that is illegal, impermissible under applicable rules and regulations, or deemed dangerous, harmful, or otherwise inappropriate by INFLUXER in its sole discretion;
- H. To conduct or forward surveys, contests, pyramid schemes, or chain letters;
- I. To impersonate another person or User, allow any other person or entity to use your Account, or use the INFLUXER Platform on behalf of any other party;
- J. To Post or upload any content which you have not obtained the necessary rights and permissions to use;
- K. To Download any file posted by another User that you know, or reasonably should know, cannot be legally distributed through the INFLUXER Platform;
- L. To Imply or state that any statements you make (whether on or off the INFLUXER Platform) are endorsed by INFLUXER, without the prior written consent of INFLUXER;
- M. To Use a robot, spider, manual, meta tag, “hidden text,” agent, script, and/or automatic processes or devices to data-mine, data-crawl, scrape, collect, mine, republish, redistribute, transmit, sell, license, download, manage, or index the INFLUXER Platform, or the electronic addresses or personal information of others, in any manner;
- N. To Frame or utilize framing techniques to enclose the INFLUXER Platform or any portion thereof;
- O. To Hack or interfere with the INFLUXER Platform, its servers or any connected networks;
- P. To Access or use all or any part of the INFLUXER Platform in order to build a product or service which competes with the INFLUXER Platform;
- Q. To Adapt, alter, license, sublicense, or translate the INFLUXER Platform for your own personal or commercial use;
- R. To Remove, alter, or misuse, visually or otherwise, any copyrights, trademarks, or proprietary marks or rights owned by INFLUXER and Affiliates;
- S. To Upload content to the INFLUXER Platform that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred, or physical harm of any kind against any individual or group of individuals;
- T. To Upload content that provides materials or access to materials that exploit people in an abusive, violent, or sexual manner;
- U. To Solicit for any other business, website, or service, or otherwise contact Users for employment, contracting, or any purpose not related to use of the INFLUXER Platform as set forth herein;
- V. To Collect usernames, email addresses, or other personal information of Users by electronic or other means;
- W. To Use the INFLUXER Platform or the services in violation of this Agreement;
- X. To Use the INFLUXER Platform in a manner that is false or misleading (directly or by omission or failure to update information), or for the purpose of accessing or otherwise obtaining INFLUXER’s trade secret information for public disclosure or other purposes;
- Y. To Register under different usernames or identities after your account has been suspended or terminated, or register under multiple usernames or false identities, or register using a false or disposable email or phone number; or
- Z. To Cause any third party to engage in the restricted activities above.
12.User Generated Content
12.1 “User Generated Content” is defined as any information and/or materials you provide to INFLUXER, its agents, Affiliates, and corporate partners, or other Users in connection with your registration for and use of the INFLUXER Platform and participation in INFLUXER promotional campaigns. You are solely responsible for any and all of your User Generated Content. You acknowledge and agree that INFLUXER is not involved in the creation or development of User Generated Content, disclaims any responsibility for User Generated Content, and cannot be liable for claims arising out of or relating to User Generated Content. Further, you acknowledge and agree that INFLUXER has no obligation to monitor, review, authenticate, or verify User Generated Content but reserves the right to limit or remove User Generated Content if it is not compliant with the terms of this Agreement, without liability to you of any kind.
12.3 When you post User Generated Content, you represent and warrant to us that: (A) you own the User Generated Content; (B) the posting of the User Generated Content does not violate any
rights of any person or entity or goes against our public image, goodwill, or reputation; (C) you have no agreement with or obligations to any third party with respect to the rights granted herein and you have not and will not sell, assign, transfer, or convey any of the rights granted herein in a manner adverse to or in derogation of the rights granted to us; and (D) to the extent any “moral rights” or similar right exist in the User Generated Content and are not exclusively owned by us, you agree not to enforce any such rights as to us or our Affiliates (as later defined). You acknowledge and agree to pay all royalties, fees, and any other monies owing to any person or entity by reason of any User Generated Content posted by you to or through the Services. You acknowledge and agree that you are solely responsible for compliance with any applicable law or regulation relating to advertisement, social media marketing, or endorsement.
12.4 If you believe, in good faith, that any User Generated Content provided on or in connection with the INFLUXER Platform is objectionable or infringes any of its rights or the rights of others, you are encouraged to notify us. If you discover that User Generated Content promotes crimes against humanity, incites hatred and/or violence, or concerns child pornography or other obscenity, you must notify INFLUXER. Such notification can be made via email to email@example.com.
13. Social Media Integration
14.Links to Third-Party Websites
14.1 The INFLUXER Platform may contain links to websites we do not operate, control, or maintain (“Third-Party Websites”). We do not endorse any Third-Party Websites, we make no representation or warranty in any respect regarding the Third-Party Websites, any association, content, or operations therewith, and are not responsible for their availability, accuracy, content, advertising, products, or services. Any links to Third Party Websites on the INFLUXER PLATFORM are provided solely for your convenience and/or reference. If you do access any Third-Party Websites, you do so at your own risk and waive any and all claims against us regarding the Third-Party Websites or our links thereto. You hereby agree to hold INFLUXER harmless
from any liability that may result from the use of links that may appear on the INFLUXER Platform.
You agree and acknowledge that INFLUXER has no obligation to monitor, review, or remove links to Third-Party Websites, but reserves the right to limit or remove links to Third-Party Websites at its sole discretion.
15.Intellectual Property Rights of INFLUXER
15.1 Rights in Proprietary Materials.
The INFLUXER Platform and its contents are protected by United States and international laws, including copyright and trademark laws. The INFLUXER Platform may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved in writing by us. All rights not expressly granted herein are reserved to us and our licensors.
The INFLUXER Platform, and any and all information, files, documents, text, typefaces, graphics photographs, images, data, software, audio, video, and any and other content or material, including INFLUXER designs, and trademarks and that you see or have access to through the INFLUXER Platform are owned by INFLUXER, excluding User Generated Content, which you hereby grant INFLUXER a license to use as set forth in Sections 12 and 17.
INFLUXER’s proprietary material is protected in all forms, media, and technologies now known or hereinafter developed. INFLUXER owns all such proprietary material, as well as the coordination, selection, arrangement and enhancement of such proprietary materials. The proprietary material is protected by laws governing copyright, patents, and other proprietary rights.
15.2 Service Marks and Trademarks. The service marks and trademarks of INFLUXER, including without limitation INFLUXER and associated logos, are service and trademarks owned by INFLUXER. Any other trademarks, service marks, logos and/or trade names appearing via the INFLUXER Platform are the property of their respective owners. Unless otherwise agreed to by INFLUXER, INFLUXER’s proprietary marks and logos are not available for use. You may not copy or use any of these marks, logos, or trade names without the express prior written consent of the owner.
15.3 Limited License. Subject to the terms and conditions herein, INFLUXER grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license and right to download, install, access, and make use of the INFLUXER Platform to the extent intended and permitted by the functionality thereof. The INFLUXER Platform and any part of it may not be used, accessed, reproduced, copied, framed, or otherwise exploited for any commercial purpose without the express prior written consent of INFLUXER. This license is personal to you. You acknowledge that, except as otherwise expressly provided, these Terms are solely between you and INFLUXER.
You acknowledge and agree that the INFLUXER Platform is provided under license, and not sold, to you. You do not acquire any ownership interest in the INFLUXER Platform under these Terms, or any other rights thereto other than to use the INFLUXER Platform in accordance with the license granted, and subject to all terms, conditions, and restrictions under this Agreement. INFLUXER reserves and shall retain its entire right, title, and interest in and to the INFLUXER Platform, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in these Terms.
16.Copyright Complaints and Copyright Agent
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides a complaint procedure for copyright owners who believe that website material infringes their rights under U.S. copyright law. If you believe, in good faith, that any materials provided on or in connection with the INFLUXER Platform infringe upon your copyright or other intellectual property right, please notify us at firstname.lastname@example.org and provide the following information: (A) name, address, telephone number, email address, and an electronic or physical signature of the copyright owner or of the person authorized to act on his/her behalf; (B) a description of the copyrighted work that you claim has been infringed; (C) a description of where on the INFLUXER Platform the material that you claim is infringing is located; (D) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (E) a statement made by you, under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. You should consult your legal advisor before filing a DMCA notice. There can be penalties for false claims under the DMCA.
17.Media and User Generated Content License
17.1 License Grant. In consideration for your use of the INFLUXER Platform, to the fullest extent permitted by law, you hereby grant INFLUXER a non-exclusive, unconditional, worldwide, perpetual, irrevocable, royalty-free, fully-paid, unrestricted, assignable, sublicensable (through multiple tiers), and transferable right and license through all channels to use, reproduce, modify, adapt, publish, translate, create derivative works from, store, distribute, perform, display, make, have made, sell, offer for sale, import and commercialize, and otherwise exercise all intellectual property rights, copyrights, publicity rights, and any other rights you have in: (A) your name, image, likeness, and other indica of identity; (B) your User Generated Content; and (C) any videotape, film, recording, photograph, voice, or any instrumental, musical, or other sound-effects that you provide to INFLUXER (collectively, “Media” ), in any media now known or not currently known, including but not limited to the right to the following:
- A. Use, view, copy, adapt, modify, distribute, license, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such indicia of identity, Media, or User Generated Content;
- B. Use, and permit to be used, your User Generated Content, Media, and indicia of identity in the advertising, marketing, and/or publicizing of the INFLUXER Platform in any media, in any format, and through any distribution channels; and
- C. Otherwise use, and permit to be used, such User’s name and identity in connection with the INFLUXER Platform or any INFLUXER promotional campaigns.
- D. These licenses shall survive termination of this Agreement.
17.2 User Profile. To the extent such Media is attached to a User profile on the INFLUXER Platform, the foregoing license includes a right to reproduce your profile, and any name, likeness or photograph contained in such profile.
17.3 Authority. You warrant and represent that you have the lawful authority to grant the rights set out above, and that such rights do not negatively impact any third-party rights.
17.4 Waiver of moral rights. Further, you hereby agree to waive all claims of moral rights associated with the Media or being the author of User Generated Content, and to consent to INFLUXER doing all acts that would otherwise constitute an infringement of your moral rights, as well as waive the right to inspect or approve the finished video, photograph, sound track, web site, advertising copy, or printed matter that may be used in conjunction therewith or to the eventual use in any media that it might be applied. The rights you grant above are irrevocable during the entire period of the protection of your intellectual property rights associated with such User Generated Content.
17.5 Media Indemnification. In addition to any other indemnification set forth in this Agreement, you hereby indemnify, defend and hold harmless, INFLUXER and its Affiliates from against any claim, liability, or cause of action, whether now known or unknown, including without limitation, for defamation, malicious falsehood, invasion of right to privacy, data protection, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such indicia of identity, User Generated Content, or Media in connection with the INFLUXER Platform.
YOU ARE AN INDEPENDENT INDIVIDUAL OR ENTITY AND ARE NOT AFFILIATED WITH INFLUXER. INFLUXER OPERATES AS A VIRTUAL PLATFORM.
THE INFLUXER PLATFORM IS NOT AN EMPLOYMENT AGENCY AND INFLUXER IS NOT YOUR EMPLOYER. AS SUCH, INFLUXER IS NOT RESPONSIBLE FOR AND WILL NOT BE LIABLE FOR WORKERS’ COMPENSATION OR ANY TAX PAYMENTS OR WITHHOLDING, INCLUDING BUT NOT LIMITED TO UNEMPLOYMENT OR EMPLOYMENT INSURANCE, SOCIAL SECURITY, DISABILITY INSURANCE, OR ANY OTHER APPLICABLE FEDERAL OR STATE WITHHOLDINGS IN CONNECTION WITH YOUR USE OF THE INFLUXER PLATFORM. BASED ON APPLICABLE LEGAL GUIDELINES, BRANDS ASSUME ANY AND ALL LIABILITY FOR PROPER CLASSIFICATION OF THEIR WORKERS RELATED TO THE ENGAGEMENT, AND INFLUXER MAKES NO REPRESENTATION OR WARRANTY AS TO SAME.
18.2 Liability and Release.
WITHOUT LIMITING THE PREVIOUS PARAGRAPH AND TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL INFLUXER AND AFFILIATES BE LIABLE FOR, AND YOU HEREBY RELEASE INFLUXER AND AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, INCLUDING BUT NOT LIMITED TO INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY INFLUXER, THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR ATTORNEYS FEES AND COSTS) ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF OR INABILITY TO USE THE INFLUXER PLATFORM, EVEN IF NOT ADVISED OF THE POSSIBILITY OF THE SAME.
FURTHER, TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542, WHICH READS AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
IF YOU ARE NOT A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS UNDER ANY STATUTE, REGULATION, OR COMMON LAW PRINCIPLE SIMILAR TO CALIFORNIA CIVIL CODE § 1542 THAT GOVERNS YOUR RIGHTS IN THE JURISDICTION OF YOUR RESIDENCE.
NEITHER INFLUXER, NOR ITS PARENTS, SUBSIDIARIES, AGENTS, REPRESENTATIVES, AFFILIATES, OR LICENSORS, INCLUDING ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MANAGERS, MEMBERS, SHAREHOLDERS, AGENTS, INVESTORS, CONSULTANTS, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, “AFFILIATES”) CONTROLS OR IS RESPONSIBLE OR LIABLE FOR YOUR CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, ON, RELATED TO, OR IN
CONNECTION WITH THE INFLUXER PLATFORM, NOR DOES THEY HAVE CONTROL OVER THE QUALITY, TIMING, LEGALITY, PERFORMANCE, OR ANY OTHER ASPECT OF THE OPPORTUNITIES, STUDENT-ATHLETES, OR BRANDS.
THE INFLUXER PLATFORM IS AVAILABLE ON AN AS-IS BASIS. WE DO NOT WARRANT THAT THE INFLUXER PLATFORM WILL OPERATE UNINTERRUPTED, ERROR-FREE, OR THAT THE INFLUXER PLATFORM IS FREE OF COMPUTER VIRUSES AND/OR OTHER HARMFUL MATERIALS. IF YOUR USE OF THE INFLUXER PLATFORM OR THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, INFLUXER AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR ANY SUCH COSTS. WE DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION: (A) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS; (C) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN THE SERVICES OR ON THE INFLUXER PLATFORM; (D) WARRANTIES RELATING TO THE ACCURACY OR CORRECTNESS OF DATA ON THE INFLUXER PLATFORM; AND (E) ANY OTHER WARRANTIES OTHERWISE RELATING TO OUR PERFORMANCE, NONPERFORMANCE, THE INFLUXER PLATFORM, OR OTHER ACTS OR OMISSIONS.
INFLUXER AND AFFILIATES DO NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE INFLUXER PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS, OR CONTENT OF ANY ENGAGEMENT, OPPORTUNITY, SERVICE, INFORMATION, OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE INFLUXER PLATFORM. INFLUXER AND AFFILIATES DO NOT WARRANT, ENDORSE, OR GUARANTEE THAT THE INFLUXER PLATFORM IS FREE FROM COMPUTER VIRUSES, SYSTEM FAILURES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS OR MALFUNCTIONS, INCLUDING DURING HYPERLINK TO OR FROM THIRD-PARTY WEBSITES.
INFLUXER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH THE INFLUXER PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND INFLUXER WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR ANY TRANSACTION BETWEEN YOU AND OTHER USERS, OR YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
18.4 NCAA Regulations.
INFLUXER IS NOT AFFILIATED OR SPONSORED IN ANY WAY BY THE NCAA OR ANY OF ITS CONFERENCES OR MEMBER INSTITUTIONS. NO WARRANTY OR REPRESENTATION IS MADE AS TO COMPLIANCE WITH NCAA (OR SIMILAR GOVERNING BODY), CONFERENCE, OR INSTITUTIONAL RULES OR REGULATIONS, OR WITH RESPECT TO THE STATUS OF LOCAL, STATE, OR FEDERAL LAWS GOVERNING CURRENT COLLEGIATE STUDENT-ATHLETES’ RIGHTS TO BE COMPENSATED EITHER GENERALLY OR FOR THE USE OF THEIR NAME, IMAGE, AND LIKENESS (COLLECTIVELY, “NCAA REGULATIONS”). THE USE OF THE INFLUXER PLATFORM AND PERFORMANCE OF OPPORTUNITIES BY ALL COLLEGIATE STUDENT-ATHLETES ARE NOT SPECIFICALLY AUTHORIZED BY LAW IN ALL STATES, ARE NOT YET PERMITTED WITHOUT RESTRICTION BY NCAA REGULATIONS, AND COULD POTENTIALLY RESULT IN VIOLATIONS OF NCAA REGULATIONS (NOT ONLY AS TO THE STUDENT-ATHLETE, BUT ALSO AS TO THEIR RESPECTIVE INSTITUTION AND TEAM) AND JEOPARDIZE THE STUDENT-ATHLETE’S ELIGIBILITY AND STATUS. STUDENT-ATHLETES AND BRANDS ARE RESPONSIBLE FOR KNOWING AND COMPLYING WITH THE NCAA REGULATIONS AND ARE REQUIRED TO CONSULT WITH THE STUDENT-ATHLETE’S INSTITUTION’S ATHLETIC DEPARTMENT OR COMPLIANCE STAFF PRIOR TO ACCEPTING ANY OPPORTUNITIES.
18.5 Statute of Limitations. ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE INFLUXER PLATFORM MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT GIVING RISE TO SUCH ACTION OCCURRED.
19.Indemnification. You hereby agree to indemnify, defend, and hold harmless INFLUXER and Affiliates from and against any and all losses, damages, obligations, debts, suits, judgments, liabilities, claims, or demands, including but not limited to costs and attorneys’ fees incurred in connection with: (A) your use or inability to use, or your participation on, the INFLUXER Platform; (B) your participation in Opportunities, or your ability or inability to perform or obtain the performance of Opportunities or to receive payment therefore; (C) your breach or violation of this Agreement; (D) your violation of NCAA Regulations, any law, or the rights of any User or third party; (E) your failure to abide by your representations and warranties made in these Terms; (F) any content submitted by you or using your account to the INFLUXER Platform, including but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful; (G) any breach of security or compromise to your Account; and (H) the acts or omissions of any agents acting on your behalf. INFLUXER reserves the right, in its own sole discretion, to participate in, or assume the exclusive defense and control of, any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of INFLUXER.
20.No Rights of Third Parties
The provisions of this Agreement are for the sole benefit of INFLUXER, our Affiliates, and their permitted successors and assigns. The provisions of this Agreement will not be construed as conferring any rights to any third party, except as expressly set forth herein, or to give any person
or entity other than you any interest, remedy, claim, liability, reimbursement, claim of action or any other claim of action with respect to or in connection with any agreement or provision contained herein or contemplated hereby. None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
21.Contests. INFLUXER may from time to time provide certain promotional opportunities and contests. All such promotions will be run at the sole discretion of INFLUXER, and can be implemented, modified, or removed at any time by INFLUXER without advance notification. The liability of INFLUXER and Affiliates, as well as any of INFLUXER’s corporate partners pursuant to such promotional opportunities and contests, shall be subject to the limitations set forth in Section 18 of this Agreement.
22.Dispute Resolution, Arbitration, and Governing Law
22.1. AAA. If a dispute arises between you and INFLUXER or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Unless you opt out as provided below, you agree that, except for injunctive or other immediate equitable relief, any dispute relating to or arising from this Agreement or the breach hereof, the Terms of Service, your relationship with INFLUXER, the termination of your relationship with INFLUXER or the INFLUXER Platform, except for direct disputes between Users (collectively “Claim”) shall, if negotiations and other discussions (as set forth below) first fail, be subject to binding arbitration in accordance with the provisions of the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), and that judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be heard before one (1) arbitrator selected in accordance with the Commercial Arbitration Rules of the AAA then in effect shall be applied. The arbitration shall be conducted in Dallas, Texas, virtually, or at another mutually agreed upon location. All aspects of the proceeding, ruling, decision, or award shall be considered confidential.
By agreeing to arbitrate disputes under this Agreement, YOU ARE HEREBY GIVING UP YOUR RIGHT TO GO TO COURT OR TO HAVE YOUR CASE HEARD BY A JURY AND UNDERSTAND AND ACKNOWLEDGE THAT ARBITRATOR DECISIONS ARE SUBJECT TO VERY LIMITED COURT REVIEW. The parties instead elect to have Claims resolved by arbitration.
22.2 Choice of Law. Unless stated otherwise, the Terms of Service, and any Claim will be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict of law provisions.
22.3 Pre-Arbitration Resolution Attempt. Before serving a demand for arbitration of a Claim, you and INFLUXER agree to first notify each other of the Claim. You agree to notify INFLUXER of the Claim by email to email@example.com, and INFLUXER agrees to provide to you a notice at your email address on file (in each case, a “Claim Notice”). You and INFLUXER will then seek an informal voluntary resolution of the Claim. Any Claim Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or INFLUXER, as applicable, may evaluate the Claim and attempt to informally resolve it. Both you and INFLUXER will have sixty (60) days from the date of the receipt of the Claim Notice to informally resolve the other party’s Claim and avoid the need for further action.
In the unlikely event the parties are unable to resolve a Claim within sixty (60) days of the receipt of the applicable Claim Notice, you, INFLUXER, and our Affiliates agree to resolve the Claim by final and binding individual arbitration as set forth above.
22.4 Scope. This entire Section does not apply to claims for workers compensation, state disability insurance, or unemployment insurance benefits, nor does it apply to litigation between INFLUXER and you that is or was already pending in a state or federal court or arbitration before the expiration of the opt-out period set forth in Section 22.7 below. Notwithstanding any other provision of this Agreement, no amendment to this Section will apply to any matter pending in an arbitration proceeding brought under this Section sunless all parties to that arbitration consent in writing to that amendment.
This Section does not preclude you from bringing issues to the attention of federal, state, provincial or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. Notwithstanding anything to the contrary herein, you may reject any change made to this Section within thirty (30) calendar days of such change, and in the event of such rejection, the terms of the version you accepted immediately prior to such change will apply.
Any Claims must be brought within one (1) year of the date of the event giving rise to such Claim occurred; otherwise, they shall be deemed time-barred and no longer permissible.
22.5 Interpretation and Enforcement. This Section is the full and complete agreement relating to the resolution of Claims. The arbitrator shall have exclusive jurisdiction to decide all disputes arising out of or relating to the arbitrability of a Claim or the interpretation, enforcement, or application of this Section, including the enforceability, revocability, scope, breach, or validity of the terms and conditions in this Section, except as expressly provided below. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that, except as provided by the Class and Collective Waiver section below, the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Section, this Agreement, or any other part of the Terms of Service is void or voidable.
In the event any portion of this Section is deemed unenforceable, the remainder of this Arbitration Section will be enforceable, except as set forth in Section 22.6 below.
22.6 Class and Collective Wavier. Private attorney general representative actions under the California Labor Code are not arbitrable, not within the scope of this Section and may be maintained in a court of law. However, this Section affects your ability to participate in class or collective actions. Both you and INFLUXER agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard, or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the AAA rules, disputes regarding the enforceability, revocability, scope, validity, or breach of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If there is a final judicial determination that all or part of the Class Action Waiver is unenforceable or that an arbitration can proceed on a class basis, then the arbitration provision herein shall be considered null and void in its entirety and the class or collective action to that extent must be litigated in a civil court of competent jurisdiction. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. You and INFLUXER agree that you will not be retaliated against as a result of your filing or participating in a class or collective action in any forum. However, INFLUXER may lawfully seek enforcement of this Section and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims.
22.7 Right to Opt-Out. You may opt out of the arbitration provisions contained in this Section by notifying INFLUXER in writing within thirty (30) days of the date you first access the INFLUXER Platform. To opt out, you must send a written notification to INFLUXER at firstname.lastname@example.org that includes: (A) your Account email; (B) your name; (C) your address; (D) your telephone number; (E) your email address; and (F) a statement indicating that you wish to opt out of the Arbitration Provision. Opting out will not affect any other terms of this Agreement.
If you do not opt out as provided in this Section, continuing your relationship with INFLUXER constitutes mutual acceptance of all of the terms of this Section by you and INFLUXER. You have the right to consult with counsel of your choice concerning this Agreement and the terms and conditions contained herein.
22.8 Enforcement of this Arbitration Provision. This Section replaces all prior agreements regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Section. In the event any portion of this Section is deemed unenforceable or invalid, the unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
23.Mobile App Updates and Upgrades
24.Apple 24.1 The following applies to our Mobile App accessed through or downloaded from the Apple Inc. App Store (“App Store”):
- A. Your use of the Mobile App must comply with the App Store Terms of Service.
- B. Your use of the Mobile App must be through an Apple-branded product that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions.
- C. You acknowledge and agree that: (i) this Agreement is entered into between you and INFLUXER only, and Apple is not a party to this Agreement other than as third-party beneficiary as contemplated below; and (ii) In accordance with the Terms of Service, INFLUXER, not Apple, is solely responsible for the Mobile App and content thereof.
- D. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile App. Except as otherwise stated herein, INFLUXER is solely responsible for providing such maintenance and support.
- E. In the event of any failure of the Mobile App to conform to any applicable warranty to the extent not disclaimed in these Terms, you may notify Apple, and Apple will refund the purchase price, if any, for the Mobile App to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Mobile App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be INFLUXER’s sole responsibility as set forth herein.
- F. You and INFLUXER acknowledge that INFLUXER, not Apple, is responsible for addressing any claims you have or any claims of any third party relating to the Mobile App or your possession and use of the Mobile App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store-Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- G. You and INFLUXER acknowledge that, in the event of any third-party claim that the Mobile App or your possession and use of the Mobile App infringes that third party’s intellectual property rights, INFLUXER, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim, though only to the extent required by this Agreement.
- H. You and INFLUXER acknowledge and agree that Apple and its subsidiaries are third party beneficiaries of this Agreement as related to your license of the Mobile App, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the Mobile App against you as a third party beneficiary thereof.
- I. You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- J. Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the Mobile App.
24.2 Prevailing Language and Location. The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The INFLUXER Platform is controlled and operated from our facilities in the United States.
24.3 Access to INFLUXER Platform Outside of Unites States. INFLUXER makes no representations that the INFLUXER Platform is appropriate or available for use outside of the United States. Those who access or use the INFLUXER Platform from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable laws and regulations, both in the United States and abroad, including export and import regulations (e.g., the Export Administration Regulations maintained by the U.S. Department of Commerce and the sanctions programs maintained by the U.S. Department of the Treasury Office of Foreign Assets Control).
In order to access or use the INFLUXER Platform, you hereby represent that neither you, any company you represent, nor any beneficial owner of you or your company are: (A) a citizen or resident of a geographic area in which access to or use of the INFLUXER Platform is prohibited by applicable law, decree, regulation, treaty, or administrative act; (B) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (C) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation.
You further agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the INFLUXER Platform and your license to use the INFLUXER Platform will be immediately revoked.
25.Telephone Communications and Agreement to be Contacted
You acknowledge and agree that by voluntarily providing your telephone number(s), even if your telephone number(s) is registered on any state or federal Do Not Call list, you expressly agree to receive calls or text messages (which may be automated) from INFLUXER and Affiliates, or from independent contractors (including other Users) related to, among other things, your Account, promotions, registration, upcoming or scheduled Opportunities, changes and updates, follow ups to any push notifications delivered through our mobile application, any transaction with INFLUXER, and/or your relationship with INFLUXER. You agree to receive the same even if you cancel your account or terminate your relationship with INFLUXER, unless you expressly opt-out in the manner provided for herein. You agree that INFLUXER may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, or phone numbers provided by you at any time or obtained through other lawful means, such as skip tracing, caller ID capture, or other means.
Your consent to receive automated calls and texts is completely voluntary and you may opt-out at any time. To opt-out of text messages, text STOP, END, CANCEL, UNSUBSCRIBE, or QUIT
to any text message you receive or email email@example.com and specify that you want to opt out of text messages. You acknowledge and agree to accept a final text message confirming your opt-out request. To opt-out of automated voice calls (not text messages), you must provide INFLUXER with written notice to firstname.lastname@example.org revoking your consent to receiving automated calls. If written notice to opt out of automated calls or text messages is given by email, you must include your full name, mailing address, account number, and the specific phone number(s) for which you wish to stop automated calls or texts. It is your sole responsibility to notify INFLUXER if you no longer want to receive automated calls or text messages. You waive any rights to bring claims for unauthorized or undesired calls or text messages by failing to opt-out immediately or by failing to follow these instructions. Please allow up to thirty (30) days to process any opt-out request. Please note that if you opt out of automated calls or text messages, we reserve the right to make non-automated calls to you.
There is no fee to receive automated telephone calls or text messages from INFLUXER, our agents, Affiliates, and independent contractors (including other Users). However, you may incur a charge for these calls or text messages from your telephone carrier. You represent and warrant that you are authorized to incur such charges and acknowledge that INFLUXER and its agents, Affiliates, and independent contractors (including other Users) are not responsible for such charges.
26.Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically, including without limitation by email, push notification, or by posting Notices on the INFLUXER Platform. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all Notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; upon successful delivery if transmitted by email, push notification, or other form of electronic messaging; or the day it is shown as delivered by the overnight delivery service’s tracking information, if sent for next day delivery by a recognized overnight delivery service.
You acknowledge that telephone calls to or from INFLUXER, together with its agents and Affiliates, may be monitored and recorded for the purposes of quality control and training.
27.Consent to Electronic Signatures
Your use of the INFLUXER Platform may require you to make an electronic signature. You understand, agree, and accept that: (A) an electronic signature has the same legal rights, effects, and obligations as a physical signature; (B) your use of a keypad, mouse, or other device to select an item, button, icon or similar act/action, constitutes your signature as if actually signed by you in writing; and (C) no certification authority or other third party verification is necessary to validate your electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of your electronic signature.
28.No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
29.1 Severability. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
29.2. Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
29.3 No Waiver. Any waiver or failure by INFLUXER to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
29.4 Entire Agreement. This Agreement constitutes the complete and exclusive agreement between you and INFLUXER with respect to its subject matter and supersedes any and all prior agreements or communications except as otherwise specified herein. This Agreement does not supersede other agreements about other subject matter that you may have with INFLUXER.
29.5 Assignment. You may not assign this Agreement or delegate any of its obligations hereunder, without the prior written consent of INFLUXER. Any purported delegation or assignment without such consent shall be void ab initio.
You hereby acknowledge and agree that we may assign or transfer this Agreement without your consent. Upon the effective date of the assignment of the Agreement: (A) INFLUXER shall be relieved of all rights, obligations and/or liabilities to you arising with respect to events postdating the effective date of the assignment and; (B) the assignee entity shall replace INFLUXER for the performance of this Agreement.
29.6 Successors and Assigns. This Agreement will inure to the benefit of INFLUXER, its successors and assigns.
29.7 Survival. All parts of this Agreement which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement or your use of the INFLUXER Platform. How to Contact Us
If you have any questions, comments or notices regarding these Terms or the INFLUXER Platform, please contact us at email@example.com.
THIS USER AGREEMENT, together with any documents or references herein (“Agreement”), contains important information about your legal conditions, rights, remedies, and obligations governing Opportunities (as later defined), Service Contracts (as later defined), and how users interact with each other on INFLUXER’s mobile application and web-based platform (collectively, “INFLUXER Platform”), and is a legally binding agreement between you (“you” or “User”) and Influxer Holdings, LLC (“INFLUXER,” “our,” “we,” or “us”). The capitalized terms used in this Agreement shall have the meanings assigned to them herein.
We reserve the right to modify this Agreement at any time, with such changes becoming effective when posted on the INFLUXER Platform. If you use the INFLUXER Platform after a modification of this Agreement, you agree to be bound as modified.
You must register for an account (“Account”) to have full access to our INFLUXER Platform, and your registration is subject to our approval. We reserve the right to decline a registration to join the INFLUXER Platform for any lawful reason.
A User can sign up for two different categories of accounts on the INFLUXER Platform (“Account Categorization”): (1) a student-athlete Account (“Student-Athlete”), or (2) a brand Account (“Brand”). Once a User chooses an Account Categorization and registers for an Account, INFLUXER will attempt to confirm the User’s identify and categorization, and if confirmed, approve the User’s access to the INFLUXER Platform.
If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts, including the Terms of Service, on behalf of yourself and the company. A Brand or Student-Athlete may only have one active Account at a time, unless otherwise agreed to in writing by INFLUXER.
2. Purpose of the INFLUXER Platform
The INFLUXER Platform is an NIL (as later defined) marketplace where Student-Athletes connect with Brands for paid collaborations (each an “Opportunity” and collectively, “Opportunities”). The INFLUXER Platform enables Users to find one another, enter into engagement relationships, receive and provide services, and make and receive payments.
INFLUXER exists to expand access to name, image, and likeness (“NIL”) opportunities, increase student-athlete access to paid opportunities, and provide Brands with opportunities to grow their brand, promote and market product and/or services, and increase revenue. When a User enters a Service Contract, the User agrees to use the INFLUXER Platform exclusively to, among other things, invoice, receive, and pay any amounts owed under the Service Contract.
3. User Relationship with INFLUXER
INFLUXER is not involved directly in the negotiation, delivery, or performance of an Opportunity and is not a party to any agreements you may make with other Users. You acknowledge and agree that you are solely responsible for your agreements with other Users, including vetting each other and ensuring performance of the Opportunity.
A Brand can upload additional documents for use in each Opportunity. INFLUXER has not and will not in any way review or approve these documents and we make no representation or warranty as to their contents or suitability and each Student-Athlete needs to conduct their own due diligence and obtain independent legal advice before agreeing to them.
You further acknowledge and agree that Users, not INFLUXER, are solely responsible for: (A) evaluating and determining the suitability of any Opportunity; (B) assessing whether to enter into a Service Contract with another User, determining compliance will all relevant policies, rules, and laws, and for verifying any information about another User; and (C) negotiating, agreeing to, and executing any terms or conditions of the contracts and for performing and monitoring performance under them. All Service Contracts are directly between the Users, and INFLUXER is not a party to those contracts.
4. Contractual Relationship Between Student-Athlete and Brand
4.1 Status System
In order for a Student-Athlete and Brand to enter into an Opportunity, either a Brand must request the services of a Student-Athlete or a Student-Athlete must apply to a Brand’s campaign and enter into a Service Contract. Each request will be accompanied by the relevant terms, criteria, and details of the Opportunity and each application will be accompanied by the rates and details of the Student-Athlete’s engagement, including but not limited to, deliverable specifications and timeline, length of the Opportunity, following, and pay. The Student-Athlete’s rate shall not be negotiated or bargained; the rate set by the Student-Athlete must be honored by the Brand for each Opportunity.
A Brand can either choose for a campaign to be “refined”, where a Brand can limit the criteria for requests by Student-Athletes, or “open”, where the Brand can send requests to Student-Athletes and any Student-Athletes can send applications to the Brand.
Once the Brand accepts a Student-Athlete’s application or the Student-Athlete accepts a Brand’s request, the Users will have effectively entered into a binding contract (“Service Contract”). The Users will then collaborate regarding specific expectations surrounding the Opportunity, which will be incorporated into the Service Contract and shall be binding on the Users, as if initially included in the Service Contract. Subsequently, the Student-Athlete will have a predetermined period of time to complete its deliverables and mark in the INFLUXER Platform that it successfully completed its Service Contract obligations. The Brand is then obligated to, solely via the INFLUXER Platform, pay the Fees (as later defined) within fourteen (14) days or it will be automatically charged such fees using its credit card or other payment method specified at Account registration (“Payment Method”). Once payment is received by the Student-Athlete, the Service Contract is completed and the Opportunity is closed.
The Student-Athlete agrees to keep the deliverable posted (on the relevant platform(s) on which it was to be posted per the Service Contract) for a minimum period of sixty (60) days (“Minimum Deliverable Requirement”), unless by the nature of the post it cannot remain live for such time or unless otherwise agreed to between the Users.
Once a Service Contract is entered into between Users, the only way to cancel it is for both parties to agree to mutually terminate the Opportunity.
4.2 Service Contracts
Users, not INFLUXER, are responsible for deciding whether to proceed with an Opportunity, enter into Service Contracts with other Users, and unless as otherwise stated in this Agreement for determining what the terms of those agreements will be.
With respect to any Service Contract, Student-Athletes and Brands may enter into any agreements offered and provided on the INFLUXER Platform that they deem appropriate, provided that those agreements do not conflict with, narrow, or expand INFLUXER’s rights and obligations under the Terms of Service, or conflict with this Agreement.
4.3 Taxes and Payments
Users, not INFLUXER, are responsible for paying and filing their own taxes, obtaining their own insurance, and ensuring they comply with applicable laws and regulations. Additionally, Users will be responsible for all costs and expenses incurred in the performance of a Service Contract.
Each User hereby acknowledges and agrees that it is solely responsible for: (A) all tax liability associated with payments sent or received through the INFLUXER Platform, and that INFLUXER will not withhold any taxes from such payments unless required to under applicable law; and (B) determining and fulfilling its obligations under applicable laws and regulations with respect to reporting or remitting any applicable taxes or charges.
Each Brand agrees and acknowledges that it is obligated to and shall pay the Student-Athlete’s agreed upon rate (“Student-Athlete Fee”) for each and every Opportunity entered into within fourteen (14) days from the Student-Athlete’s completion of deliverables. In addition, each Brand agrees and acknowledges that it is obligated to and shall, at the same time of payment to the Student-Athlete, pay 8.5% (or 3% if the Brand has a subscription) of the Student-Athlete’s rate for each completed Opportunity (“INFLUXER Fee”). Each Brand agrees and acknowledges that if it does not make the required payments within the allotted time period, INFLUXER will, on the fifteenth (15th) day, charge their Payment Method. INFLUXER will accept both the Student-Athlete Fee and INFLUXER Fee from the Brand and then tender the Student-Athlete Fee to the Student-Athlete. The Student-Athlete Fee will stay in the Student-Athlete’s Account until the Student-Athlete withdrawals it to its Payment Method.
ALL SUCH PAYMENTS MUST BE MADE AND RECEIVED THROUGH THE INFLUXER PLATFORM.
4.4 Disputes Among Users
You agree to try to resolve your disputes with other Users amicably and first amongst each other. If that process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that INFLUXER will not and is not obligated to provide any further dispute resolution assistance.
4.5 Confidential Information
To the extent a User provides confidential information to the other, the recipient will protect the secrecy of the discloser’s confidential information with the same degree of care as it uses to protect its own confidential information, but in no event with less than reasonable care, and will: (A) not disclose or permit others to disclose another’s confidential information to anyone without first obtaining the express written consent of the owner of the confidential information; and (B) not use or permit the use of another’s confidential information, except as necessary for the performance of the Opportunity. Users may agree to any terms they deem appropriate with respect to confidentiality. If Users do not agree to their own confidentiality terms, this Section (Confidential Information) applies.
4.6 Non-Payment or Default
If a Brand is in “default”, meaning the Brand fails to pay the INFLUXER Fee or the Student-Athlete Fee (collectively, the “Fees”) or any other amounts when due under the Terms of Service, INFLUXER will be entitled to charge the Fees using the Brand’s Payment Method. The Brand will also be deemed to be in default on the earliest occurrence of any of the following: (A) Brand fails to bring, within a reasonable period of time but no more than fourteen (14) days after accrual of the charge, an account current after a credit or debit card is declined or expires; (B) Brand initiates a chargeback with a bank or other financial institution resulting in a charge for the Fees or such other amount due being reversed to the Brand; or (C) the Brand takes other actions or fails to take any action that results in a negative or past-due balance on the Brand’s account.
If a Brand is in default, INFLUXER may, without notice, temporarily or permanently close the Brand’s Account and revoke the Brand’s access to the INFLUXER Platform, including Brand’s authority to use the INFLUXER Platform to process any additional payments, create campaigns, enter into Service Contracts, or obtain any additional services from other Users through the INFLUXER Platform. However, the Brand will remain responsible for any of the Fees and other amounts that accrue from Opportunities it entered at the time a limitation is put on the Brand’s Account as a result of the default. Without limiting other available remedies, a Brand must pay INFLUXER upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the maximum extent permitted by applicable law.
INFLUXER does not guarantee to Student-Athletes that a Brand is able to pay or will pay the Student-Athlete Fee, and INFLUXER is not liable for the Student-Athlete Fee if a Brand is in default or initiates a chargeback of funds with their financial institution. 31
Student-Athletes may use the dispute process as described above to recover funds from the Brand in the event of a default or may pursue such other remedies against the Brand as Student-Athlete chooses. If INFLUXER recovers funds from a Brand who initiated a chargeback or who is in default pursuant to this Agreement, INFLUXER will disburse any portion attributable to the Student-Athlete Fee to the applicable Student-Athlete to the extent not already paid by the Brand.
4.7 Term and Termination
Unless mutually terminated pursuant to this Agreement, the term of each Service Contract shall last from inception of the Service Contract and shall continue indefinitely thereafter until the Student-Athlete (and INFLUXER) receives payment of the Fee in connection with the Opportunity connected to the Service Contract or the deliverable(s) has been live for the Minimum Deliverable Requirement, whichever comes later.
Users agree that, during the term of the Service Contract and for one (1) year thereafter, no User, including their respective employees, members, managers, representatives, agents, officers, and/or spokesperson(s) (but only when acting in their capacities as spokesperson(s) of such party, and not in any other capacity), will make any statement or take any action that publicly disparages, is derogatory, or is otherwise damaging to the other User, its affiliates, officers or members.
4.9 Entire Agreement
This Agreement together with each Service Contract and, where applicable, the rest of the Terms of Service contains the entire agreement and understanding among the Users with respect to the Opportunities, and supersedes all prior and contemporaneous agreements, understandings, inducements, and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof.
A User may not assign any Service Contract or delegate the performance thereof without the prior written consent of the other party to the Service Contract. Any attempted assignment or delegation thereof without such consent shall be null and void.
4.11 Force Majeure
If the performance of a Service Contract is interfered with by any circumstance beyond the reasonable control of the User affected, the User affected by the force majeure is excused on a day-by-day basis to the extent of the interference, if the User notifies the other party as soon as practicable of the nature and expected duration of the claimed force majeure, uses all commercially reasonable efforts to avoid or remove the causes of nonperformance and resumes performance promptly after the causes have been removed. A “force majeure” under this Section includes (A) acts of God, such as fire, flood, earthquake, pandemics, epidemics, or other natural cause; (B) terrorist events, riots, insurrections, war or national emergency; (C) strikes, boycotts, lockouts, or other labor difficulties; (D) the lack of or inability to obtain permits or approvals, necessary labor,
materials, energy, components, or machinery; and (E) judicial, legal or other action of any governmental authority. Notwithstanding the foregoing, failure to pay any Fees due under a Service Contract, this Agreement, or Terms of Service will not be excused under this paragraph.
4.12 Successors and assigns
All the terms and provisions of each Service Contract shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
5. INFLUXER Fees
As set forth above, Brands must pay the INFLUXER Fee in exchange for INFLUXER providing the INFLUXER Platform and agree that INFLUXER may collect certain taxes in association therewith. The rate at which the Brand is to pay INFLUXER is specified based on the Brand’s subscription status. If a Brand is a non-subscriber, the INFLUXER Fee shall be 8.5% of the compensation payable to the Student-Athlete(s) for each and every Opportunity completed with the Brand. If the Brand is a paid-subscriber, the INFLUXER Fee shall be 3%.
INFLUXER will receive the Fees from the Brands on behalf of itself and the Student-Athlete. INFLUXER will deduct the INFLUXER Fee prior to tendering the Student-Athlete Fee. By accepting this Agreement, each Brand agrees, acknowledges, and consents to INFLUXER charging the Brand’s Payment Method for the Fees if the same are not paid within fourteen (14) days from the Student-Athlete’s completion of deliverables.
INFLUXER’s Fees are exclusive of taxes. INFLUXER does not collect taxes it is not required to collect, but INFLUXER may be required by applicable law to collect certain taxes or levies, including income or sales tax. These collection requirements and rates may change based on changes to the law in your area. Any amounts INFLUXER is required to collect or withhold for the payment of any such taxes shall be collected in addition to the Fees.
For subscriptions added in the iOS app, your account will be charged the subscription fee for renewal each month, bi-annually, or annually, depending on the Brand’s subscription status within 24-hours prior to the end of the current period.
7.1 Payment Method
To use the INFLUXER Platform, Users must provide account information for at least one valid Payment Method. During Account registration, Users agree to and shall designate a Payment Method, and if a Brand, authorize us to charge that Payment Method.
Users hereby expressly authorize INFLUXER to run credit card authorizations on all credit cards provided and to store financial details as that User’s method of payment consistent with our
When a User authorizes a payment using a Payment Method, that User represents that there are and will remain sufficient funds or credit available to complete the payment for any and all Opportunities using the designated Payment Method. To the extent that any amounts owed under this Agreement or the remaining Terms of Service cannot be collected from the User’s Payment Method(s), the User is solely responsible for paying such amounts by other means.
INFLUXER is not liable to any User if INFLUXER does not complete a transaction as a result of any limit by applicable law or your financial institution, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. INFLUXER will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement.
By providing Payment Method information through the INFLUXER Platform or by authorizing payments with the Payment Method, you represent that: (A) you are legally authorized to provide such information; (B) you are legally authorized to make or receive payments using the Payment Method(s); (C) if you are an employee or agent of a company or person that owns the Payment Method, that you are authorized by the company or person to use the Payment Method; and (D) such actions do not violate the terms and conditions applicable to your use of such Payment Method(s) or applicable law.
7.2 No Return of Fees or Chargebacks
Brands agree that, once INFLUXER charges their Payment Method, the charge cannot be refunded except on a condition agreed to in advance and in writing by INFLUXER. Brands agree not to initiate any chargebacks from their credit card companies, banks, or the like, without such prior consent.
Brands acknowledge and agree that INFLUXER or its affiliates may charge or debit the Brand’s Payment Method for the Fees should they be in default for failure to pay within the fourteen (14) day deadline. Once INFLUXER or its affiliates charges or debits the Brand’s Payment Method for any of the Fees, the charge or debit is non-refundable, except as previously agreed to in writing with INFLUXER or as otherwise required by applicable law.
Brands also acknowledge and agree that the Terms of Service provide a dispute resolution process as a way for Users to resolve disputes with INFLUXER. Therefore, to the extent permitted by applicable law, Brands agree not to ask their credit card company, bank, or other Payment Method provider to charge back any of the Fees or other fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of this obligation is a material breach of the Terms of Service. If a Brand initiates a chargeback in violation of the Terms of Service, the Brand agrees that INFLUXER or its affiliates may dispute or appeal the chargeback, institute collection action against the Brand, close the Brand’s account, and take such other action it deems appropriate.
8.1 Fees and Opportunities
You agree to exclusively use the INFLUXER Platform for all Opportunities that arise out of a connection or relationship you made or was introduced through INFLUXER or the INFLUXER Platform. You acknowledge and agree to use the INFLUXER Platform as your exclusive method to request, make payment of, and receive all Fees arising directly or indirectly from the relationship made between Users on the INFLUXER Platform, and not to circumvent the INFLUXER Platform.
For clarity and the avoidance or doubt, you agree that you will not, among other things: (A) offer or solicit Opportunities or accept any offer or solicitation from parties identified through INFLUXER or the INFLUXER Platform to contract, hire, invoice, pay, or receive payment in any manner other than through the INFLUXER Platform; or (B) refer a User you identified on the Platform to a third party for purposes mentioned in (A) above.
Each User must notify us immediately if another User suggests making or receiving payments outside the INFLUXER Platform or if you receive unsolicited contact outside of the INFLUXER Platform. If you are aware of a breach or potential breach of this Section, please submit a confidential report to INFLUXER at firstname.lastname@example.org
Prior to entering into a Service Contract, during an Opportunity, and at all times thereafter, Users agree to communicate with other Users exclusively through the INFLUXER Platform and not to provide your Direct Contact Information (as later defined) to any other User or another person that you identified or were identified by through the INFLUXER Platform.
Further, each User agrees and acknowledges that it: (A) will not use Direct Contact Information of another User to attempt to or to communicate with, solicit, contact, or find the contact information of a User outside of the INFLUXER Platform; (B) will not ask for, provide, or attempt to identify through public means the contact information of another User; and (C) will not include any Direct Contact Information or means by which your contact information could be discovered in any profile, proposal, posting, invitation, or communication through the INFLUXER Platform (including in each case in any attached file), except as otherwise provided on the INFLUXER Platform.
For purposes of this Agreement, “Direct Contact Information” means any information that would allow another person to contact you directly, including, without limitation, phone number, email address, physical address, any link to an applicant management system or means to submit a proposal or application outside of the INFLUXER Platform, or any information that would enable a user to contact you on social media or other platform. Information is considered Direct Contact Information if it would enable another User or third party to identify any of the information above through other sources, such as going to a website that included an email address or identifying you through social media.
After this Agreement terminates, the terms and conditions of the Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates shall survive and continue in full force and effect. Thus, the termination of this Agreement will not release you or INFLUXER from any obligations incurred prior to termination of this Agreement or other parts of the Terms of Service or that may accrue related to any act or omission prior to such termination.
10.1 Entire Agreement
INFLUXER may amend this Agreement and any of the other agreements that comprise the Terms of Service at any time by posting a revised version on the INFLUXER Platform. INFLUXER will provide reasonable advance notice of any amendment that includes a material change, by posting the applicable update on the INFLUXER Platform and providing notice on the INFLUXER Platform or by email. If the material change includes an increase to Fees charged by INFLUXER, INFLUXER will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees, any temporary or promotional Fee change, or changes that do not constitute a material change. Any revisions to the Terms of Service will take effect on the noted effective date.
Any failure by INFLUXER to act with respect to a breach by you on one occasion does not waive our right to act with respect to subsequent or similar breaches.
The Terms of Service and any rights or obligations hereunder may not be transferred or assigned by you without INFLUXER’s prior written consent. Any other attempted transfer or assignment without such consent will be null and void.
In order for a Brand to assign the Terms of Service or its Account to a successor after an acquisition of the company or substantially all of its assets, a merger, or another change in majority ownership of the company, the Brand must provide written notice to INFLUXER via email to email@example.com, and obtain approval.
The email must include the Account username, person’s name making the request and their relationship to the Brand, the Brand’s address and person’s telephone number, a statement indicating the manner in which the company was acquired, the name and contact information of the acquiror, and the effective date of such change in ownership.
If INFLUXER does not object via email within 7 business days of sending of an email, then the assignment is permissible, provided in both cases that such notice is properly addressed.
If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such enforceability or invalidity will not render this agreement as a whole, or said provision, unenforceable or invalid, but rather in such event, such provision will be changed and interpreted so as to accomplish to the greatest extent possible under applicable law the objectives of such unenforceable or invalid provision and the remaining provisions of this Agreement will continue in full force and effect.