Effective Date: 2017-12-08
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.
This Terms of Service Agreement (“Terms”), including the BINDING ARBITRATION AND CLASS ACTION WAIVER CONTAINED HEREIN govern your access to, use of, and participation in the websites, applications software, processes, and any other services (collectively “Platform”) provided by or through U-MVPindex, LLC. (“MVPindex,” “we,” “our,” or “us”). PLEASE READ THE TERMS THOROUGHLY AND CAREFULLY. BY USING THE PLATFORM, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MAY NOT ACCESS OR USE THE PLATFORM.
All references to “you” or “your,” as applicable, mean the person who accesses, uses, and/or participates in the Platform in any manner, including users that create a password-protected account (”Account”) and pay for access to certain features of the Platform (“Subscribers”), and non-paying users that access the free portions of the Platform (‘Users”), and each of your heirs, assigns, and successors. If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
MVPindex reserves the right, in its sole discretion, to modify these Terms, and any other documents incorporated by reference herein, at any time and without prior notice. MVPindex will notify you of changes by posting on the Platform, sending you a message, or otherwise notifying you in accordance with applicable law when you are logged into your Account.
To use the Platform, you must be, and represent and warrant that you are, of legal age (18 years of age or older or otherwise of legal age in your jurisdiction, or, if you have parental consent, between 13-18 years of age) and competent to agree to these Terms. By accessing or using the Platform, you represent and warrant that you are eligible. If MVPindex has previously prohibited you from accessing or using the Platform, you are not permitted to access or use the Platform.
MVPindex, as permitted by applicable laws, obtains publicly available information regarding athletes, teams, leagues, entertainers, bands and other entities (collectively, “Influencers”). We may limit, block, suspend, deactivate, or cancel a listing in the index at any time in our sole discretion. MVPindex uses a proprietary algorithm and ranking system that enables comparisons across the parties based on criteria solely established by MVPindex. The rankings are based on reach of audience (“Reach”), engagement with individuals (“Engagement”), and a conversation score where the Platform seeks to associate positive and negative sentiment with individuals and apply a proprietary algorithm to allow comparisons within or across categories (“Conversation Score”). A consistent criterion is used to establish the scores and rankings for each Influencer in a category unless otherwise noted. In establishing Conversation Scores MVPindex may adjust scoring based on its interpretation of the data for accuracy purposes for some Influencers on a case by case basis. Users of the website acknowledge that by accessing the data, they are viewing the result of these collective algorithms that are solely based on MVPindex’s subjective discretion. By using the Platform, you agree to not hold MVPindex liable and MVPindex accepts no legal responsibility for losses sustained by any party as a result of use of its data. MVPindex accepts no responsibility for inaccuracies of data provided by or collected from third parties.
You may access the Platform without registering for an account. To access and participate in certain features of the Platform, you may have to register for an Account and pay subscription fees in accordance with the level of access granted to the Platform. Subscribers are granted access to the data based on the level of subscription that is paid for. You are solely responsible for safeguarding your Account password and, if applicable, any third-party site password used to connect to the Platform. You are solely responsible for all activity that occurs on your Account, and you will notify MVPindex immediately of any unauthorized use using the contact information below. MVPindex is not liable for any losses by any party caused by an unauthorized use of your Account. Notwithstanding the foregoing, you may be liable for the losses of MVPindex or others due to such unauthorized use.
Subject to your compliance with these Terms, MVPindex grants you a limited, non-exclusive, revocable, nontransferable, and non-sublicensable license to reproduce and display information and materials MVPindex makes available on or through the Platform (“Content”), including any Content licensed from a third party, and excluding any software source code, solely for the following purposes:
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or Content, except as expressly permitted in these Terms. The Platform and Content are provided to you AS IS. If you download or print a copy of Content for personal use, you must retain all copyright and other proprietary notices contained thereon. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by MVPindex or its licensors, except for the licenses and rights expressly granted in these Terms.
In accessing and using the Platform, you may not:
In connection with use of the Platform and access to certain Platform features and/or Content, MVPindex may charge certain fees (“Fees”). An explanation of Fees for products or services, including Subscriptions, will be provided to you before you use such products or services. MVPindex reserves the right to implement Fees or change Fees at any time by providing you notice on the Platform or otherwise. When you subscribe to any paid services, you authorize MVPindex or its third party payment processors to bill all applicable Fees for your purchase in U.S. dollars, including all applicable taxes, per the applicable terms provided to you.
You agree to pay all applicable Fees or charges based on the Fee and billing terms then in effect, regardless of whether you have an active Account. Charges shall be made to your credit card, PayPal or other payment method designated at the time you make a purchase or register for a Subscription. If you do not pay on time or if MVPindex cannot charge a credit card, PayPal or other payment method for any reason, MVPindex reserves all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys’ fees, in our pursuit of payment. You explicitly agree that all communication in relation to delinquent accounts or Fees due may be made by electronic mail or by phone. Such communication may be made by MVPindex or by anyone on its behalf, including but not limited to a third-party collection agent. If you cancel your Subscription at any time, you will not receive any refund. If you have a balance due on any Subscription, you agree that MVPindex may charge such unpaid Fees to your chosen payment method or otherwise bill you for such unpaid Fees. All sales on MVPindex are final and non-refundable, except as otherwise specified herein. All cancellation and refund requests will be subject to MVPindex’s review and absolute discretion. You may request a cancellation by emailing your request to MVPindex support at firstname.lastname@example.org. We will normally process your valid written request within thirty (30) days of receiving it, unless a shorter period is required by law. If you cancel your Subscription at any time, you will not receive any refund.
Content on the Platform is protected by copyright, trademark, and other laws of the United States, foreign countries, and international conventions. Except as expressly provided in these Terms, MVPindex and its licensors exclusively own all right, title, and interest in and to the Platform and Content, including all associated intellectual property rights. All trademarks, service marks, logos, trade names and any other proprietary designations of MVPindex used herein are trademarks or registered trademarks of MVPindex. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective owners. In appropriate circumstances we will terminate the Account of any user who repeatedly infringes or is believed to be repeatedly infringing the rights of copyright holders.
By sending us any feedback, comments, questions, or suggestions concerning MVPindex or our Platform (collectively, “Feedback”) you represent and warrant that (a) you have the right to disclose the Feedback, (b) the Feedback does not violate the rights of any other person or entity, and (c) your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and (iv) irrevocably waive, and cause to be waived, against MVPindex and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your Account, Subscription, or the Platform.
MVPindex does not endorse any Influencer. Any reference to an Influencer’s Reach, Engagement, or Conversation Score is a description based on MVP’s research into publically available databases and proprietary algorithm. Any such description is not an endorsement, certification or guarantee by MVPindex. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions relating to Influencers listed on the Platform. MVPindex is not responsible for any damage, loss, or harm resulting from your use of the Platform or your reliance on information obtained through the Platform.
No agency, partnership, joint venture, or employment is created as a result of the Terms or any User’s or Subscriber’s use of any part of the Platform. Neither MVPindex nor any Influencers, Subscribers, or Users of the Platform may direct or control the day-to-day activities of the other, nor create nor assume any obligation on behalf of the other. By using the Platform, you understand and agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users or other third parties will be limited to a claim against those particular users or other third parties. You agree not to attempt to impose liability on or seek any legal remedy from MVPindex with respect to such actions or omissions.
Without limiting any other rights reserved herein, we may, in our sole discretion, with or without prior notice and at any time, take any action permitted by law for any violation of these Terms or any other policy or agreement between you and MVPindex, including but not limited to limiting your access to the Platform, blocking, suspending, deactivating or cancelling your Account and/or Subscription in whole or in part, and/or requiring you to forfeit certain funds or paid Fees, assessing monetary penalties or costs. We may cooperate with law enforcement agencies in investigation or prosecution of you. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your Account and/or Subscription will be deactivated or suspended, your password will be disabled, and/or you will not be able to access the Content.
You may cancel your use of the Platform and/or terminate your Account at any time using the “Account Settings” under “My Account.” Upon termination, we will delete any private data that you provided directly to us. If you are using the Platform through the account of a brand/company (e.g., one of your corporate sponsors) or another company that is a customer of MVPindex, you should contact your account administrator or MVPindex account executive for information about terminating your account.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and MVPindex agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
This section is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before your agreement to these Terms, or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of your Account, Subscription, or the Platform. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to these Terms, you agree to resolve any and all disputes with MVPindex as follows:
Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. You can reach MVPindex’s support department at email@example.com. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the MVPindex support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, MVPindex will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, MVPindex will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in the State of Texas, United States of America, and you and MVPindex agree to submit to the personal jurisdiction of any federal or state court in Travis County, Texas, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that the 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 MVPINDEX 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 provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending (from the email address you use on MVPindex) written notice of your decision to opt out to firstname.lastname@example.org with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of your first use of the Platform or your agreement with these terms, whichever occurs later; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, MVPindex also will not be bound by them.
Changes to This Section: MVPindex will provide thirty (30) days’ notice of any changes to this section by posting on the MVPindex Terms of Service website, sending you a message, or otherwise notifying you when you are logged into your account. Amendments will become effective thirty (30) days after they are posted on the MVPindex Terms of Service website or sent to you.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first “Arbitration and Class Action Waiver” section in existence after you began using the Platform.
Survival: This Arbitration and Class Action Waiver section shall survive any termination of your Account, Subscription, or the Platform.
The Terms and the relationship between you and MVPindex shall be governed in all respects by the laws of the State of Delaware, without regard to its conflict of law provisions. You agree that any claim or dispute you may have against MVPindex that is not subject to arbitration must be resolved by a state or federal court located in Delaware. You hereby waive any and all jurisdictional and venue defenses otherwise available.
YOUR USE OF THE PLATFORM SHALL BE SOLELY AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT MVPINDEX DOES NOT HAVE AN OBLIGATION, BUT RESERVES THE RIGHT FOR ANY REASON, TO MONITOR OR REVIEW ANY CONTENT OR INFORMATION TRANSMITTED THROUGH THE PLATFORM. THE PLATFORM IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, MVPINDEX AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF OR IN TRADE; ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THIS PLATFORM; AND ANY WARRANTIES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS PLATFORM. MVPINDEX MAKES NO WARRANTY THAT THE PLATFORM OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. MVPINDEX ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE PLATFORM. MVPINDEX SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA, INFORMATION, MATERIALS, SUBSTANCE, OR CONTENT POSTED, TRANSMITTED, OR MADE AVAILABLE VIA THE PLATFORM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MVPINDEX OR THROUGH THE PLATFORM, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS, SUBSCRIBERS, OR INFLUENCERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM. MVPINDEX MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE PLATFORM OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM. MVPINDEX EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OR THIRD PARTIES.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM REMAINS WITH YOU. NEITHER MVPINDEX NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM WILL BE LIABLE (WHETHER BASED ON WARRANTY, CONTRACT, TORT, PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MVPINDEX HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE) FOR: (A) ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL; (B) SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE; (C) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; (D) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS; OR (E) THE USE OF OR INABILITY TO USE THE PLATFORM OR CONTENT.
IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF MVPINDEX AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING FROM OR RELATING TO THE TERMS, PLATFORM, CONTENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO MVPINDEX BY YOU HEREUNDER, OR ONE HUNDRED US DOLLARS ($100) IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE.
THE LIMITATION OF LIABILITY DESCRIBED ABOVE MAY NOT BE APPLICABLE IN SOME JURISDICTIONS, BUT SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY AND RESIDENTS OF OTHER STATES THAT PERMIT THE EXCLUSION OF THESE WARRANTIES AND LIABILITIES.
You agree to release, defend, indemnify, and hold MVPindex and its affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Platform or your violation of these Terms; (b) your Account and Subscription; and (c) your interaction with any Subscriber, User, or Influencer, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with the Platform.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold MVPindex and its affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms.
If you are a California resident, you waive California Civil Code Section 1542, which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
Force Majeure: Other than payment obligations, neither MVPindex nor you shall be liable to the other for any delay or failure in performance under the Terms arising out of a cause beyond its control and without its fault or negligence. Such causes may include but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of declared or undeclared war, acts of regulatory agencies, or national disasters.
No Third-Party Beneficiaries: You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
Contacting You: You agree that MVPindex may provide you with notices, including those regarding changes to the Terms, by email, regular mail, with your consent, SMS messages, or postings on the Platform and that all such notices shall have the same effect as if they were in writing.
Waiver: No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such term or any other term, and MVPindex’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
Statute of Limitations: You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Platform must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
Section Headings: The section headings in these Terms are for convenience only and have no legal or contractual effect.
Contact Information: If you have any questions about these Terms or the Platform, please contact us by sending an email to email@example.com, or by writing to MVPindex, Inc., 100 Congress Avenue Suite 2000, Austin, Texas, 78701..