Feb. 1, 2021
The following Terms and Conditions (hereinafter referred to as the “Terms”) between you (referred to as “you”, “your”, “Customer”, or “User”) and FanUp, Inc. (referred to as “FanUp”, “we”, or “our”) describe the specifications on which you may participate in our Contests available through our web app or the FanUp IOS mobile application (the “App”) available for download in the Apple App Store (together the “App Store”) including all information, tools, and services available to you, conditioned upon your acceptance of all the terms, conditions, policies, and notices stated herein.
FanUp is an interactive skill-based sports and esports fantasy gaming app that lets Users compete for cash, rewards, and brand prizes through fun and easy-to-enter Contests with friends and influencers (referred to as a “Contest(s)”) by using social technology and engaging content to personalize every User’s experience. The App is available directly to Users through the App Store. By downloading the App, making purchases in the App, entering into a Contest, or utilizing any of our products and/or services (together referred to as our “Services”) you agree to be bound by the following Terms including our additional rules, sponsorships, and Contest systems. These Terms apply to each User, including, without limitation, browsers, developers, merchants, vendors, and/or content contributors.
FanUp may issue additional terms and rules for Contests in compliance with various state rules and regulations. You agree to be subject to those additional rules if applicable when participating in such Contests.
DO NOT USE OUR SERVICES OR PARTICIPATE IN ANY CONTEST IF YOU (A) DO NOT AGREE TO THESE TERMS; OR (B) ARE PROHIBITED FROM ACCESSING OR USING THE APP OR ANY ITS CONTENTS, GOODS, OR SERVICES BY APPLICABLE LAW.
BY USING ANY OF OUR SERVICES OR PARTICIPATING IN ANY CONTEST, YOU AGREE TO BE BOUND BY THESE TERMS AND ANY ADDITIONAL TERMS, RULES, AND CONDITIONS OR PARTICIPATION IN PARTICULAR CONTESTS ISSUED BY FANUP FROM TIME TO TIME. IF YOU DO NOT AGREE TO ALL THE TERMS HEREIN, THEN YOU MAY NOT USE ANY OF OUR SERVICES.
Any new features, tools, and terms, rules, and conditions of Contest participation which are added to the current App, shall also be subject to the Terms outlined herein. You can review the most current version of the Terms at any time on this page. FanUp, reserves the right to update, change, or replace any part of these Terms at any time by posting updates and/or changes to the App at our sole discretion. It is your responsibility to check this page periodically for changes. Your continued use of or access to our Services following the posting of any changes to these Terms constitutes acceptance of those changes.
Users will be able to visit the App and view the Contests available for entry. Each individual Contest that is not a Free-To-Play points-based Contest has an entry fee listed in US Dollars. FanUp determines the entry fee based on the total amount of points each user will have at the start of a Contest, which applies to all individuals in the U.S. Users can purchase packages to join multiple unique Contests. Users can also earn points by regularly using the FanUp App, and use points earned in exchange for entry to Free-To-Play points-based Contests. Users may also purchase points needed to enter a Free-To-Play points-based Contest based on the difference between total current points in their user account and the number of points needed to enter a Free-To-Play points-based Contest.
FanUp reserves the right not to award a prize to an individual it believes did not submit an entry fee. Contest prizes offered to Users will be established and disclosed to Users in advance of user payment of the entry fee. When you select to participate and register for a Contest, the entry amount listed will be debited from your FanUp Account in US dollars. To learn more about the prize structures users can click into any Contest page in the App for a summary of prizes, number of active entries, total number of possible entries, entry fees, and all Contest rules.
In order to participate in any Contest available through our App, user must abide by the following terms, rules, and conditions (the “Contest Terms”).
Users are limited to a maximum of ten (10) entries for each Contest, and any User that exceeds that amount may automatically be disqualified subject to FanUp’s discretion.
By agreeing to these Terms, or by using any of our Services, you represent that you are at least the age of majority in your state or province and reside in the United States or its territories.
Our Services are not designed or intended for use by individuals under the age of 18 for our “free to play” option or Contests. Pursuant to 47 U.S.C. Section 230(d), as amended, FanUp hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors.
Users must be at least eighteen (18) years of age to open an account, participate in Contests, or win prizes offered by FanUp. In jurisdictions, territories, and locations where the minimum age for permissible use of the app is greater than eighteen (18) years old, you must meet the age requirement in your local jurisdiction or territory. You must be at least nineteen (19) years of age at time of account creation if you are a legal resident of Nebraska or Alabama or twenty-one (21) years of age if you are a legal resident of Iowa or Massachusetts. Legal residents physically located in any of the fifty (50) states and Washington, DC, are eligible to open an account and participate in Free-To-Play points-based Contests offered by the App. Legal residents physically located in Alaska, Arkansas, California, Colorado, DC, Florida, Georgia, Illinois, Kansas, Kentucky, Maryland, Massachusetts, Minnesota, Nebraska, New Mexico, New Jersey, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, Wyoming are eligible to open an account and participate in fantasy gaming Contests offered by the App. Legal residents physically located in Arizona, Hawaii, Idaho, Louisiana, Montana, Nevada and Washington (the “Excluded States”) are not eligible to open an account and participate in fantasy gaming Contests offered by the App.
All Users must be in good standing and cannot be an individual that has been previously barred from receiving FanUp’s Services under the laws of any applicable jurisdiction. You may not use our Services for any illegal or unauthorized purpose nor may you, in using the Services, violate any laws, rules, or regulations in your jurisdiction (including, but not limited to, copyright laws).
You represent and warrant that you are using the App for your own personal use only, and not for resale, export, re-use or any other similarly unauthorized use. A breach or violation of any of the Terms will result in an immediate termination of the Services.
You agree that FanUp may, without any prior notice, immediately suspend, terminate, discontinue and/or limit your use of or access to any of our Services at our sole discretion, for any reason, including but not limited to:
Furthermore, you herein agree that any and all terminations, suspensions, discontinuances, and or limitations of access for cause shall be made at our sole discretion and that we shall not be liable to you or any other third party with regard to the termination of your account, revocation of any Contest prize, or access to our Services.
FanUp reserves the right to refuse Services to anyone, for any reason, at any time at our own discretion. FanUp also reserves the right, but does not have the obligation, to pre-screen, refuse and/or delete any content currently available through our App. In addition, we reserve the right to remove and/or delete any such content that would violate these Terms or which would otherwise be considered offensive to Users. You agree that it is your responsibility to monitor our App for any changes that may occur.
We grant you a limited revocable license to use our Services for your own personal, non-commercial use, subject to certain rules and limitations. You acknowledge and agree not to reproduce, export, publish, assign, duplicate, copy, sell, resell, lease, license or exploit the Services, or any portion thereof.
Wireless carrier charges may apply to your use of our Services via wireless networks or devices and geo-location details.
FanUp shall not be held responsible if information made available on its App is not accurate, complete, or current. For clarity, you are relying on any information at your own risk.
You consent to receiving communications from us, including but not limited to, push notifications, e-mails, text messages, and/or calls regarding your orders, Contests, purchases, updates to our Services, marketing, advertisement, and any other relevant information.
As a User, you acknowledge, understand, and agree that all information, text, data, photographs, messages, tags or any other content, whether it is publicly or privately posted and/or transmitted, is your expressed sole responsibility. Furthermore, you may not use our Services for any illegal or unauthorized purpose, nor may you, in the use of the Services, violate any laws, rules, or regulations in your jurisdiction. You agree not to make use of our Services for the purpose of any harmful or deceitful conduct, including, but not limited to, the following:
When using our “free to play” Services or entering into a Contest, you must represent and warrant that you are at least 18 years of age or older.
When depositing money to enter into a fantasy gaming Contest, you must represent and warrant that:
If at any time, FanUp determines that you do not meet the eligibility requirements of this Section, you will not be authorized to use the Services or participate in any Contest available to you. FanUp reserves the right, at its sole discretion, to prohibit “Prohibited Users” to participate in Contests. “Prohibited Participant" means an individual who has access to non-public confidential information about fantasy sports activities, any athlete whose performance may be used to determine the outcome of a fantasy sports activity in the sport with which the athlete is associated, any team employee, referee, or league official in a fantasy sports activity in the sport with which that person is associated, and any sports agent associated with any sport used for fantasy sports activities.
FanUp makes no representation that participation in paid entry fantasy sports Contests is lawful under Texas state law. FanUp may require you to complete registration to determine whether you are eligible to receive a prize. If FanUp determines that you are not eligible for any reason, FanUp has the right to terminate your account, withhold, or revoke the awarding of any prizes, and limit your ability to withdraw from your account in its sole discretion. FanUp may withhold revoked prizes in furtherance or fraud prevention or anti-money laundering efforts; however FanUp shall not be held liable for prizes not withheld or revoked for such purposes.
You may establish only one account per person or per group to participate in the Services offered on the App. In the event FanUp discovers that you have opened more than one account per person, in addition to any other rights that FanUp may have, FanUp reserves the right to suspend or terminate any or all of your accounts and withhold or revoke the awarding of any prizes. You are responsible for maintaining the confidentiality of your login names and passwords and you accept responsibility for all activities, charges, and damages that occur under your account. It shall be a violation of these Terms to allow any other person to use your account to participate in any Contest. If you have reason to believe that someone is using your account without your permission, you should contact us immediately. We will not be responsible for any loss or damage resulting from your failure to notify us of unauthorized use.
FanUp employees using the Services may not withdraw money or prizes except when playing in a private team. Relatives of FanUp employees with whom they share a household are not eligible to participate in paid Contests unless they are private Contests with other FanUp employees or household members. FanUp consultants or promoters of the Service may play in Contests without such limitation, but only if (i) their arrangement with FanUp does not permit them to have any access to non-public Service data or any other data not made available to all players on the Service and (ii) they do not receive any other advantages in their play on the Service.
Athletes, coaches and other team management, team support personnel (e.g. without limitation, team physicians) and team owners may not participate in any FanUp Contests in the sport or sports with which they are associated. Team owners, referees, league employees, sports commissioners and other individuals who through an ownership interest or game-related employment can influence the gameplay are likewise ineligible.
In order to participate in a Contest, you must register for an account. When registering as a user on the Service, you agree to provide accurate, current, and complete information about yourself and maintain and promptly update the Registration Data to keep it accurate, current, and complete. If at any time, FanUp has reasonable grounds to suspect that any information entered is inaccurate, incomplete, or not current, FanUp, at its sole discretion, may deny you access to areas requiring registration, or terminate your account. Users have the right to their account and play history at all times.
User may cancel or deactivate their account anytime, for any reason.
Users may cancel any purchase made through the App Store; however, you will not receive a refund. FanUp is not responsible for errors made by the User during the ordering process. Users can cancel and close their account at any time and for any reason.
Reviews, responses, profile entries, posts or questions may not be able to be deleted once uploaded. For some features of our Services, other Users may be able to request e-mail notifications of your new public content or publish their own comments to your comments. We may use the public content to develop aggregate ratings, personalize site views, market products, or identify or feature popular members.
FanUp reserves the right to cancel Contests, disqualify individuals from Contests, refuse to award prizes, require individuals to return prizes, or suspend, limit, or terminate your account or any of the Services in its sole discretion without any restrictions. If FanUp deems your use of the Services to be improper, unfair, fraudulent, unlawful, or otherwise detrimental to any Users, you acknowledge that the forfeiture of or return of any prizes shall in no way prevent FanUp from informing the relevant authorities, and/or pursuing criminal or civil proceedings in connection with such conduct.
If for any reason the Services are not running as originally planned (e.g., if the App becomes corrupted or if infection by a computer virus, bug, tampering, unauthorized intervention, actions by entrants, fraud, technical failures, or any other causes of any kind, in the sole opinion of FanUp corrupts or affects the administration, security, fairness, integrity or proper conduct of the Service), FanUp reserves the right, in its sole discretion, to disqualify any individual implicated in or relating to the cause and/or to cancel, terminate, extend, modify or suspend the Services. If such cancellation, termination, modification or suspension occurs, notification may be posted on the App.
By depositing funds or entering paid Contests, you agree to provide us with a valid mailing address, date of birth, and social security number and any other information or documentation we may require in order verify your identity and run appropriate checks (including anti-fraud checks) in compliance with applicable rules and regulations. While your account is pending verification, you may be able to deposit funds into your account and participate in Contests, but you will not be able to withdraw any funds from your account until verification is complete. If we are unable to verify you, we reserve the right to suspend your account and withhold any funds until such time as we have been able to successfully verify you.
FanUp may limit the amount a User can deposit into his or her account in accordance with state-imposed deposit limits.
Users can withdraw the funds maintained in his/her individual accounts within five (5) days of the request being made.
All taxes associated with the receipt of any prize are the sole responsibility of the winner. All winners must provide updated address and social security details to FanUp. These details will be used to allow FanUp to comply with tax regulations and may be shared with appropriate tax authorities. FanUp does not provide tax advice, nor should any statements in this agreement or on the Service be construed as tax advice.
Prizes won by a user are deposited into the individual accounts of the user within twenty-four (24) hours of winning the prize.
FanUp holds all your funds as a participant in a Contest and user of the Services in a separate and segregated account from FanUp’s operational funds. Funds deposited or withdrawn from your account are not property of FanUp and are not available to FanUp’s creditors. Unauthorized withdrawals from your accounts by FanUp or others are prevented and will not occur.
Beginning in 2021, FanUp Customer Deposits and Player winnings are now held in a separate, segregated bank account held by FanUp Players, LLC, the special purpose entity for FanUp. This Special Purpose Entity was created in compliance with various states’ fantasy sports legislation to ensure protection of consumer funds. The segregated account is established and held in trust for the benefit and protection of authorized FanUp players. Withdrawals will be made from this segregated account, and checks issued may bear the name FanUp Players, LLC. FanUp Players, LLC funds do not belong to FanUp, nor are the funds available to creditors, except for players whose funds are held in such account. FanUp and FanUp Players, LLC are forbidden to commingle funds and will function as two separate legal entities.
Pursuant to N.J.S.A. 5:20-1 et seq., all businesses seeking to conduct “fantasy sports activities” (as defined by N.J.S.A. 5:20-2) in the State of New Jersey, must apply to the Division of Consumer Affairs (Division) for the issuance of a permit. FanUp has applied for and is in the process of obtaining a New Jersey Fantasy Sports Operator Permit.
FanUp’s network servers, equipment, together with all required software and/or related components necessary for interconnection are located at Continent8’s (“C8”) data room located at ACY3 (1 Convention Boulevard, Suite 800, Atlantic City, NJ 09401, USA. The purpose is to have interactive computer telecommunication, and outsourced internet services with reliable and resilient bandwidth in a reliable data center.
Contests entered into by Users on the App are Contests of skill. Winners are determined by the objective criteria described in the Contest deadline, rules, scoring, and other applicable documentation associated with the Contest. Winners are determined by the individuals who use their skill and knowledge of relevant sports information and fantasy sport rules. The App and Contests may not be used for any form of illicit gambling.
The outcome of any Contest will be determined by statistics generated based upon the performance of actual individuals participating in real competition or athletic events. Each Contest is not based solely on the performance of an individual athlete, or on the score, point spread, or any performance of a single real team or combination of real teams. FanUp does not and will not share third party(s) statistical information that could affect a fantasy sports activity until that information is publicly available. Contests on FanUp do not include High School sports.
If there is a security incident or breach of customer data, FanUp shall notify the User within 72 hours. C8 provides 24/7 security incident monitoring and escalation of any incident. Alters include intrusion-detection, intrusion-prevention, firewalls, and file-integrity monitoring systems. C8 has a Corrective and Preventative action (CAPA) process which provides a formal method by which it identifies and implements corrective and preventative actions.
YOU REPRESENT THAT YOU ARE ENTERING INTO A CONTEST AND USING OUR SERVICES AT YOUR OWN RISK. ALL SERVICES OFFERED ON THE APP ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY: (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
IN NO EVENT SHALL FANUP BE LIABLE TO YOU, THE CUSTOMER, OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR FANUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT YOU PAID FOR THE SERVICES.
The limitation of liability set forth above shall: (i) only apply to the extent permitted by law; and (ii) not apply to: (a) liability resulting from our gross negligence or willful misconduct, or (b) death or bodily injury resulting from our acts or omissions.
If a controversy or claim should arise, the parties will first attempt in good faith to resolve such controversy or claim by negotiation. If the matter has not been resolved within thirty (30) days by negotiation, the parties will attempt in good faith to resolve the controversy or claim in accordance with mediation, with mutually agreeable rules. If the matter has not been resolved by mediation within sixty (60) days of the commencement of mediation, or if either party will not participate in mediation, then the controversy shall be settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding rules or procedures governing or permitting class actions. The written decision of the arbitrator shall be binding and conclusive on the parties. The parties agree that there shall be no pre-arbitration discovery and the arbitrator shall not award punitive damages to either of the parties. Judgment may be entered in any court having jurisdiction.
If you are based in California, this Section does not apply to you. You may bring claims under this agreement in small claims court in the State of California or in Pennsylvania for any dispute not within the jurisdiction of a small claims court in California or Pennsylvania. You and FanUp agree to submit to personal and exclusive jurisdiction of venue and the federal state courts location in Pennsylvania. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND FANUP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
You agree to release and to indemnify, defend and hold harmless FanUp and its parents, subsidiaries, affiliates and agencies, as well as the officers, directors, employees, shareholders and representatives of any of the foregoing entities, from and against any and all losses, liabilities, expenses, damages, costs (including attorneys’ fees and court costs) claims or actions of any kind whatsoever arising or resulting from your use of the Service, your violation of these Terms, your receipt, ownership, use or misuse of any prize, and any of your acts or omissions that implicate publicity rights, defamation or invasion of privacy. FanUp reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with FanUp in the defense of such matter.
FanUp may provide any notice to you under these Terms by: (i) sending a message to an e-mail address that you provide; or (ii) by posting to the App. Notices sent by e-mail will be effective on the date the e-mail is sent, and notices that are posted on the App will be effective upon posting. It is your responsibility to keep your e-mail address current and review any new notices that are posted.
To provide us notice under these Terms, you must contact us by: e-mail; personal delivery; overnight courier; or certified mail. Notice by e-mail shall be effective on the date the e-mail is sent. Notice provided by personal delivery shall be effective immediately. Notice provided by overnight courier shall be effective one business day after it is sent. Notice provided by certified mail shall be effective three business days after it is sent.
Third Party Content. The Services shall contain links, advertisements, and references to other third party service providers (“Third Party Content”). FanUp is not responsible for any Third Party Content or the actions of those that provide such content. Any information regarding a Third Party found on our App does not express and/or imply that FanUp endorses or accepts any responsibility or liability for the Third Party, or vice versa.
Governing Law and Jurisdiction. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. For the avoidance of doubt, FanUp Players, LLC shall be governed by the laws of the State of New Jersey.
Severability. If any provision of these Terms is invalid, illegal, void, or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
Waiver. The failure by FanUp to enforce any right or provision of these Terms will not constitute as a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of FanUp.
Force Majeure. FanUp will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Service or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
If you have any questions, please feel free to contact FanUp directly: