Terms and Conditions of Use
Before Anything these Terms are Legally Binding
Please note that Sections 22, and 23 contain an arbitration clause and class action waiver. By agreeing to the Terms, you agree to resolve all disputes through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and that you waive your right to participate in class actions, class arbitrations, or representative actions.
FNKTION DOES NOT ACT AS AN AGENT FOR ANY HOST OR TALENT. FNKTION MERELY PROVIDES THE SOFTWARE TOOLS TO ENABLE HOSTS TO FIND AND CONTACT TALENT.
Please feel free to email us at email@example.com for any questions, inquiries or issues.
Fnktion is a facilitator only. Fnktion’s role is to assist you find a position with a suitable Host.
Fnktion does not employ you. Your agreement for the provision of services is with the Host.
You must, at all times, answer all questions honestly, correctly and completely including when you create your account, register the details of your experience on the Fnktion website and when you talk to potential Hosts.
It is your responsibility to negotiate the terms of your engagement with the Host. You are also responsible for making your own inquiries of the Host relating to the event for which the Host needs Talent, including checking the nature of the event and making sure that you are comfortable with providing services at the event and that you consider you have the necessary experience and qualifications to provide the services. Fnktion does not conduct its own inquiry as to any of the information supplied by the Host when they register with Fnktion or the details of any event listed and Fnktion will not be responsible if you do not find the Host or the event suitable when you attend.
You must not agree to provide services at more than one event where the events have overlapping times or where it is unreasonable for you to believe that you can provide services at both events.
You understand that you may have certain legal obligations to the Host or third parties including tax obligations, responsible service of alcohol requirements and compliance with laws relating to working with children. These are your obligations and Fnktion is not liable to you, the Host or any third-party if you do not meet these obligations.
If the date of the event is changed once you have been engaged by the Host Fnktion cannot guarantee a replacement job for that date. You will need to revisit the Fnktion website to see whether there are any other events at which you can provide services.
When you ask Fnktion to transmit an application or a message to a Host, you understand that this is without warranty. Fnktion also does not guarantee that any Host will receive, access, read or respond to any such profile or application material, or that there will be no mistakes in the transmission of the data. However, Fnktion may alert you when any of the above events occur.
In addition, by using Fnktion, you agree that Fnktion is not responsible for the content of the Host’s application form, messages, screener questions, testing assessments or their format or method of delivery and that Fnktion does not guarantee receipt of your application by the Host, or your receipt of messages from the Host. Please note that Fnktion does not choose the questions asked by Hosts or decide the criteria of Hosts.
You must, at all times, answer all questions honestly, correctly and completely including when you create your account, register the details of any event you list on the Fnktion website and when you talk to potential Talent.
When you register an event with Fnktion, you must pay the non-refundable deposit applicable as at the date of registration. This payment will be processed automatically on the credit card or other similar card whose details you supplied to Fnktion at the time you created your account. The fee is not refundable even where the event is cancelled or postponed through no fault of yours.
It is your responsibility to negotiate the terms of your engagement with the Talent you choose. You are also responsible for making your own inquiries of the Talent, checking references and making sure you consider they are suitable for you. Fnktion does not conduct its own inquiry as to any of the information supplied by Talent when they register with Fnktion and Fnktion will not be responsible if you do not find the Talent suitable or if they do not have the qualifications or experience as represented by the Talent on the Fnktion website.
You understand that you may have certain legal obligations to the Talent or third parties including insurance, workers’ compensation, payment of award rates, tax obligations and compliance with laws relating to working with children. These are your obligations and Fnktion is not liable to you, the Talent or any third party if you do not meet these obligations.
If you change the date of your event once you have registered the details on the Fnktion website, you will not need to pay another deposit. However, if you have already entered into a contract with Talent, you may still be liable to pay them cancellation fees if they cannot attend on the new date or if they cannot find a replacement job for the scheduled night of the event.
In the event you provide incorrect contact information, it shall be your responsibility to correct, appropriately respond, or take any steps necessary to protect the privacy of such Talent, and you indemnify Fnktion for any damages resulting therefrom. In addition, Fnktion may, on your behalf, send out reminder emails to Talent you wish to interview. Fnktion may also send emails to Talent on your behalf indicating that your event listing is potentially a match for the Talent’s profile.
Fnktion is not responsible for the content of your emails, screener questions or their format, and Fnktion does not guarantee delivery, your receipt of the Talent’s emails or application materials, or that there will be no mistakes in the transmission of the data. 1.1 You understand that Fnktion may give suggestions or information regarding best-practices, however, you understand that it is ultimately your responsibility to select your Talent. Fnktion is not acting as a job placement agency or Talenting firm.
You are responsible for the contents of any Event listings that you post, and any messages that you send to Talent. You agree that Fnktion may reject or remove any Event listing for any or no reason. You shall indemnify, defend and hold harmless Fnktion, its agents, affiliates, and licensors from any third-party claim or liability (including without limitation reasonable legal fees) arising out of any event listing posted by you, or any message sent by you. To the extent permitted by law, if you have an unpaid account balance for any Fnktion product, Fnktion reserves the right to suspend or terminate your use of that Fnktion product as well as any other Fnktion product, including but not limited to those Fnktion products where you do not have an unpaid invoice or account balance.
AGREEMENT BETWEEN HOST AND TALENT
Although Fnktion is not a party to the agreement between the Host and the Talent, we require that, as part of the agreement, the Host must include at least the following terms into a written agreement (which can be done by exchange of emails):
date of the event for which the Talent are hired.
the nature of the event;
the address at which the event will be held;
what time Talent must arrive at the venue and either the time at which Talent will finish or an approximate time;
the rate at which Talent will be paid which must be at least the amount referred to on the Fnktion website;
how payment will be made and when;
what rights to payment Talent has if the event is cancelled or postponed by the Host; and
depending on the venue of the event, whether transport costs to and from the event or any other reasonable disbursements will be paid by the Host.
Fnktion does not control, manage, or provide any guidance with respect to the determination of independent contractor or employee status, subsequent agreements between Host and Talent, or services performed by or payments made to the Talent pursuant to an independent Contractor Engagement. Fnktion may request from Talent additional documentation, such as an W-9, progress report, statement of work, or provide follow up questions or requests to verify a Talent’s status as an independent contractor and ensure continued compliance with respect to this Agreement.
USER (TALENT & HOST) ACCOUNTS
Registering. You can create a user account by providing your full legal name, valid email address, and any other information that is marked as required. Fnktion reserves the right to reject any new registration or cancel any existing account at any time and for any reason.
You can only register for an account for yourself or for a company or group that you have the authority to represent. If you are registering on behalf of your host or a company or group you represent, then your host, company, or group you represent shall be the account Talent. You also represent and warrant that you have the authority to bind your company, or group to these Terms of Service. We will use the email address you provide as the primary method of communication with you (the “User ID”).
It is your responsibility to choose and maintain a secure password to access the Fnktion service or any third party marketplace. You acknowledge that we are not liable for any breach, loss, or damage from your failure to maintain the security of your account and password.
Misuse of Account. Users shall not:
Select or use a User ID with the intent to impersonate another person;
Use another User ID without appropriate authorization;
Select a User ID that is offensive, vulgar or obscene.
Users are responsible for all activity that occurs on their account. Users must immediately notify us of any unauthorized use of their account, or any other account related security breach of which a User is aware.
User Content. You may upload images, videos, text, comments, graphics, etc. of (collectively, the “User Content”) as part of your use of the Service.
Rights and Licenses. When you upload User Content to the Service, you grant us and our authorized sub-licensees and distributors, a worldwide, non-exclusive, royalty-free, right and license to reproduce, distribute, digitally transmit, stream, display, create derivate works of, communicate to the public, synchronize, and collectively exploit your content and all associated copyrightable works or metadata for the purposes of providing the Service. The foregoing license grant does not affect your ownership or license rights in your Content, including the right to grant additional licenses to the material.
Accuracy. You send, store or receive materials (including Event listings, profiles, and messages) through or using the Service, Fnktion may use such materials for data analysis, quality control, or to refine the Service or any other Fnktion product or service (including to provide better search results and other listings for Talent and Hosts), whether via automated means or otherwise. Fnktion assumes no responsibility, and disclaims all liability, for the content, accuracy, completeness, legality, reliability, or availability of any event listing, profile information, or other content you post, send or receive through the Site. If you see any inaccuracy in any such material, it is your responsibility to correct such information or to contact Fnktion to do so.
Liability. All information and User Content posted or transmitted through the Service is the sole responsibility of the User from which such content originated. Fnktion will not be liable for any errors or omissions in any User Content. We do not endorse or have control over any User Content, nor can we guarantee the authenticity of any information that Users may provide about themselves, including their identity.
No Endorsement. Fnktion does not endorse and is not responsible for any User Content, including any opinion, advice, information, or statement contained therein. You acknowledge that by accessing the Site, you may come into contact with content (including User Content) that you find harmful, offensive, threatening, indecent or objectionable, including, but not limited to, explicit language and other potentially offensive material, and you acknowledge that Fnktion shall have no liability with respect to such content.
Restrictions. must not post any User Content that is unlawful, fraudulent, discriminatory, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or that contains sexual, ethnic, racial or other discriminating slurs, or that contains no relevant or constructive content. You must also not post any User Content that contains proprietary information, trade secrets, confidential information, advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us in writing), or encourages or causes spamming or flooding.
Official Information. You are prohibited from posting any User Content containing official identification information (whether your own or of another person), such as social security number, passport number, national identification number, insurance number, driver’s license number, immigration number, or any other similar number, code, or identifier. Posting such identification information may lead to identity theft and other adverse consequences. Fnktion may remove any such identification information, but does not undertake any obligation to do so, and has no responsibility and disclaims all liability for any posting of such identification information. Fnktion reserves the right to change the display of resume on its Site, including, but not limited to, hiding fields, rearranging its format, and changing visual elements.
Monitoring. Although Fnktion has no obligation to do so, Fnktion may monitor User Content, and reserves the right to delete any User Content or portion thereof that, in Fnktion’s sole discretion, violates the above rules, including any User Content that is unrelated to the specific portion of the Site on which it is posted, or that is an advertisement, recruiting or other commercial message, or that Fnktion deems in its sole discretion to be inappropriate. If you believe that any User Content violates this Agreement or our policies, please contact Fnktion immediately so that we may have the opportunity to consider its removal. For clarity, Fnktion does not have any obligation to remove any User Content, and the interpretation of whether any User Content violates any Fnktion policy will always remain within the sole discretion of Fnktion.
Disclosure. Fnktion reserves the right to disclose all User Content and other relevant information, and the circumstances surrounding their transmission, to any third party in connection with operating the Site; to protect itself, its affiliates, its partners and its visitors; and to comply with legal obligations or governmental requests. This means, for example, that Fnktion may honor subpoenas, search warrants, law enforcement or court-mandated requests to reveal a user’s electronic address and identity, or other properly requested information.
Discrimination. Without limiting the generality of the foregoing, Fnktion reserves the right (but is under no obligation) to remove any Event Listing that directly or indirectly discriminates against Talent. Direct discrimination means, for example, that an Event Listing specifically makes clear that only Talent matching a certain criteria are wanted, thereby excluding others because of, for example, their gender, race, age or disability. Indirect discrimination means, for example, that an Event Listing implicitly excludes certain classes of Talent by making it impossible for them to qualify for the requirements. You understand and agree that it is your responsibility to refrain from posting any Event Listing that directly or indirectly discriminate against Talent or otherwise violate applicable law.
User Warranties. You warrant and represent, and can demonstrate to our full satisfaction upon request, that:
You are at least 18 years of age, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms.
You own or otherwise controls all rights to any uploaded Content or have full authority to act on behalf of any and all Talents of any right, title or interest in and to any Content uploaded to the Service, and have permission to use the name and likeness of each identifiable individual person uploaded to the Service.
By creating an account on our Service or any third party marketplace, you agree to subscribe to newsletters, marketing or promotional materials and other information sent by us or any third party marketplace.
You may opt out of receiving any, or all, of these communications from us or third parties by following the unsubscribe link or instructions provided in any email we send.
THIRD PARTY SERVICES
Way provide to You, or provide Your Content to, certain third party services or third party service providers (collectively, “Third Party Service(s)”) which may provide to You links to sites, job postings, email and telephone correspondence and other offers outside of the Fnktion. Such Third Party Services are provided “AS IS” without indemnification, support, or warranty of any kind, and this Agreement does not apply to your use of any such provided Third Party Services.
You are responsible for evaluating whether you want to access or use such Third Party Services, and, in certain circumstances where required or applicable, may opt-out from such Third Party Services available outside of the Fnktion, or may choose to not utilize such Third Party Services at any time. We reserve the right to suspend Third Party Services at any time. You should review any applicable terms and/or privacy policies of a Third Party Service before using it or sharing any information with it, because you may give the operator permission to use your information outside of what You have agreed to herein. We are not responsible for, nor endorses any features, content, advertising, products or other materials on or available from such Third Party Services.
We reserve the right at any time to change our fees (including to begin charging for services that we are currently providing free of charge) and billing methods, either immediately upon posting on the Site or by email delivery to you.
If you wish to purchase any product or service made available through the Service ("Purchase"), you may be asked to supply certain information relevant to your Purchase including, without limitation, your credit card number, the expiration date of your credit card, and your billing address.
You represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any Purchase; and that (ii) the information you supply is true, correct and complete.
Fnktion reserves the right to refuse or cancel your order at any time for reasons including but not limited to: product or service availability, errors in the description or price of the product or service, error in your order, if fraud or an unauthorized or illegal transaction is suspected, or other reasons.
CONDITIONS OF USE
You agree that it shall only use the Service for legal purposes. You agree that you shall not transmit to Fnktion or upload to or through the Site (whether as User Content or otherwise) any Harmful Code, or use or misappropriate the Site for your own commercial gain. “Harmful Code” shall mean any software (sometimes referred to as “viruses,” “worms,” “Trojan horses,” “time bombs,” “time locks,” “drop dead devices,” “traps,” “access codes,” “cancelbots” or “trap door devices”) that: (a) is designed to damage, disrupt, disable, harm, impair, interfere with, intercept, expropriate or otherwise impede in any manner, any data, storage media, program, system, equipment or communication, based on any event, including for example but not limited to (i) exceeding a number of copies, (ii) exceeding a number of users, (iii) passage of a period of time, (iv) advancement to a particular date or other numeral, or (v) use of a certain feature; or (b) would enable an unauthorized person to cause such result; or (c) would enable an unauthorized person to access another person’s information without such other person’s knowledge and permission. Without limiting the foregoing and by way of example only, you may not and shall NOT:
engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by Fnktion in its discretion.
use the Service in any manner inconsistent with this Agreement;
act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Service or any operating system;
infringe our intellectual property rights or those of any third party in relation to your use of the Service;
transmit any material that is confidential or proprietary;
use the Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users;
collect social security or insurance number, financial account number, drivers’ license number, health information, or other sensitive information required to be secured under applicable local, state, provincial, national, or other law, rule, or regulation, or for which disclosure is required in case of a data breach without first obtaining our prior written consent; and
collect or harvest any information or data from the Service or attempt to decipher any transmissions to or from the servers running any Service;
access the Service in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Service;
use the Service in any manner that may harm minors or that interacts with or targets people under the age of thirteen;
impersonate any person or entity, including, but not limited to, an employee of ours, or falsely state or otherwise misrepresent your affiliation with a person, organization or entity;
use the Services to provide material support or resources (or to conceal or disguise the nature, location, or source of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act or other laws and regulations concerning national security, defense or terrorism;
access, search, or create accounts for the Services by any means other than our publicly supported interfaces (for example, "scraping" or creating accounts in bulk);
send unsolicited communications, promotions or advertisements, or spam;
send altered, deceptive or false source-identifying information, including "spoofing" or "phishing";
sublicense, resell, time share or similarly exploit the Services;
authorize, permit, enable, induce or encourage any third party to do any of the above.
You agree that you will not engage in any activity that interferes with or disrupts the Site (or the servers and networks which are connected to the Site). Unless you have been specifically permitted to do so in a separate, written agreement with Fnktion, you agree that you will not crawl, scrape, reproduce, duplicate, copy, sell, trade or resell the Site for any purpose. You agree that you are solely responsible for (and that Fnktion has no responsibility or liability to you or to any third party for) any breach of your obligations under this Agreement and for any consequences (including any loss or damage which Fnktion may suffer) of any such breach.
ACCESS & USE
We reserve the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Service.
The User may use software, proprietary systems and Intellectual Property owned by Fnktion, or for which Fnktion has appropriate authority to use, and the User agrees that such is protected by copyright, trade marks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not knowingly infringe on any third-party rights through the use of the Service.
The User agrees and accepts that any Intellectual Property generated by the User in connection with the Service is owned absolutely by Fnktion and vests in Fnktion immediately, including:
Fnktion name, trade marks, logo and design; and
any text, images, graphics, source code, usage data, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to the Service.
The User further warrants that by using the Service the User will not:
use any Intellectual Property of Fnktion without express permission;
copy any part of the Service for the User’s own commercial purposes; or
directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in any documentation associated with it.
To the extent that any derivative works cannot be assigned to Fnktion, the User hereby grants Fnktion a perpetual and irrevocable (irrespective of the expiration or termination of this Agreement), non-exclusive, transferable, worldwide, and royalty-free license to reproduce, distribute, perform, and display any derivative works of the Service developed by or for the User, and to use, make, have made, sell, offer to sell, import, export, and otherwise exploit any product based on any such derivative works.
User acknowledges that Fnktion retains Ownership of all Intellectual Property of Fnktion incorporated in the Service (including all improvements, enhancements, updates and corrections) and any Intellectual Property generated by Fnktion in the process of providing the Service.
Some of our Services may be supported by advertising revenue and may display advertisements and promotions. You agree that we may place such advertising and promotions on the Platform, or on, about, or in conjunction with your User Content. The manner, mode, and extent of such advertising and promotions are subject to change without specific notice to you.
You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you. User Content (including any that may have been created by users employed or contracted by Fnktion) does not necessarily reflect the opinion of Fnktion.
You grant us permission to use and send push notifications, emails, alerts, marketing and promotional materials, email campaigns, and other reasonable forms of communications.
You acknowledge that any and all:
Suggestions for correction, change, and modification to our Services, information and reports you provide to us, and other feedback (including but not limited to quotations of written or oral feedback), (collectively “Feedback”); and
Improvements, updates, modifications, or enhancements, whether made, created, or developed by us, or otherwise relating to Feedback (collectively, “Revisions”);
are and will remain our property. All Feedback and Revisions become the sole and exclusive property of Fnktion and we may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you, and without your retention of any proprietary or other right or claim.
You assign to us any and all right, title, and interest (including, but not limited to, any patent, copyright, future copyright, trade secret, trademark, show-how, know-how, and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions.
You agree to waive any moral rights you may have in any and all Feedback and Revisions, and consent to any act which amounts to an infringement of any such moral right, in favour of Fnktion. At our request, you will execute any document, registration or filing required to give effect to these provisions.
THE SITE, AND ALL MATERIALS, INFORMATION, ADVICE, EVENT LISTINGS, USER CONTENT, PRODUCTS AND SERVICES AVAILABLE ON OR THROUGH THE SITE ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER, EITHER EXPRESS OR IMPLIED. FNKTION AND ITS AFFILIATES, AND ITS AND THEIR THIRD-PARTY LICENSORS, EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. FNKTION AND ITS AFFILIATES, AND ITS AND THEIR THIRD-PARTY LICENSORS, DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SITE, AND ALL MATERIALS, INFORMATION, ADVICE, JOB LISTINGS, USER CONTENT, PRODUCTS AND SERVICES AVAILABLE ON OR THROUGH THE SITE. FNKTION AND ITS AFFILIATES, AND ITS AND THEIR THIRD-PARTY LICENSORS, DISCLAIM ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY LINKS MADE AVAILABLE BY FNKTION.
YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM DOWNLOADING OR OBTAINING ANY SUCH MATERIAL OR DATA.
LIABILITY & INDEMNITY
YOU AGREE THAT YOU USE THE SERVICE ENTIRELY AT YOUR OWN RISK. YOU ACKNOWLEDGE THAT WE DO NOT GUARANTEE THE ACCURACY OF DATA CAPTURED THROUGH OUR SERVICE. FNKTION IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING FROM THE CAPTURE, ANALYSIS, OR INTEGRITY OF THE DATA IN ANY CIRCUMSTANCES.
YOU AGREE TO INDEMNIFY US FOR ANY LOSS, DAMAGE, COST OR EXPENSE THAT WE MAY SUFFER OR INCUR AS A RESULT OF OR IN CONNECTION WITH THE YOUR USE OF OR CONDUCT IN CONNECTION WITH THE SERVICE INCLUDING ANY BREACH BY THE YOU OF THIS AGREEMENT.
IN NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, LOSS OR CORRUPTION OF DATA, LOSS OF PROFITS, OR ANY OTHER SIMILAR OR ANALOGOUS LOSS RESULTING FROM THE HOST’S ACCESS TO, OR USE OF, OR INABILITY TO USE THE SERVICES OR THE PROJECT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, IN EQUITY OR ANY OTHER LEGAL THEORY.
TO THE EXTENT PERMITTED BY LAW, OUR LIABILITY FOR BREACH OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH THE SERVICES OR THE PROJECT, INCLUDING ANY IMPLIED WARRANTY OR CONDITION THAT CANNOT BE EXCLUDED, IS RESTRICTED AT OUR OPTION TO THE RE-SUPPLY OF SERVICES, OR PAYMENT OF THE COST OF RE-SUPPLY OF SERVICES (IF APPLICABLE).
Nothing in this Agreement shall limit or exclude our liability for:
death or personal injury resulting from our gross negligence;
fraud or fraudulent misrepresentation; and
any other liability that cannot by law be excluded or limited.
As an inducement to our permitting you to access and use the Services, you hereby agree to release us, and our affiliates and subsidiaries, and each of our and their respective officers, directors, agents, partners, and Workers from all damages (whether direct, indirect, incidental, consequential, or otherwise), losses, liabilities, costs, and expenses of every kind and nature, known and unknown, arising out of or in any way connected with disputes between you and third parties (including other Users) in connection with the Services. In addition, you waive any applicable law or statute, which says, in substance:s
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE RELEASED PARTY."
U.S. Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the “DMCA“) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by Fnktion infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information as required by 17 USC. § 512(c)(3)(A): (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the site are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Fnktion to locate the material on the site; (d) the name, address, telephone number, and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Fnktion a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there are penalties for false claims under the DMCA.
In the event that either Party breaches any portion of this Agreement, the prevailing Party in an action to enforce this Agreement may recover from the other its reasonable attorneys’ fees and costs, if employment of an attorney was necessary.
The User can direct notices, enquiries, complaints and so forth to Fnktion at this address:
A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
If you’re upset with us, let us know, and hopefully we can resolve your issue. But if we can’t, then these rules will govern any legal dispute involving our Services:
Governing Law. The Terms are governed by the laws of the State of California, without regard to its conflict of laws rules, and the laws of the United States of America. These laws will apply no matter where in the world you live, but if you live outside of the United States, you may be entitled to the protection of the mandatory consumer protection provisions of your local consumer protection law.
Jury. You hereby waive any right to a jury trial in connection with any action or litigation in any way arising out of or related to your use of the Site or these terms of service, if you are located in the United States.
Arbitration. You and Fnktion agree that any dispute or claim arising from or relating to the Terms shall be finally settled by final and binding arbitration, using the English language, administered by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules then in effect. Arbitration will be handled by a sole arbitrator in accordance with those rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under the Terms will take place on an individual basis--class arbitrations and class actions are not permitted. You understand that by agreeing to the Terms, you and Fnktion are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, each party shall have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court, and your claim remains on an individual, non-representative, and non-class basis.
Costs of Arbitration. Payment for any and all reasonable AAA filing, administrative, and arbitrator fees will be in accordance with the Consumer Arbitration Rules. If the value of your claim does not exceed $10,000, Fnktion will pay for the reasonable filing, administrative, and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.
Forum. We’re based in California, so any legal action against Fnktion related to our Services must be filed and take place in California. That means the seat of any arbitration shall be California. For any actions not subject to arbitration, you and Fnktion agree to submit to the personal jurisdiction of a state or federal court located in California.
Government Exception. If you are a government agent or entity in the United States using the Services in your official capacity, and you are legally unable to agree to the clauses in this section, then those clauses do not apply to you. In that case, the Terms and any action related to the Terms will be governed by the laws of the United States (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of Delaware.
Modifications. If we make any changes to this “Disputes with Fnktion” section after the date you last accepted the Terms, those changes will not apply to any claims filed in a legal proceeding against Fnktion prior to the date the changes became effective. Fnktion will notify you of substantive changes to the “Disputes with Fnktion” section at least 30 days prior to the date the change will become effective. If you do not agree to the modified terms, you may send Fnktion a written notification (including email) or close your account within those 30 days. By rejecting a modified term or permanently closing your account, you agree to arbitrate any disputes between you and Fnktion in accordance with the provisions of this “Disputes with Fnktion” section as of the date you last accepted the Terms, including any changes made prior to your rejection. If you reopen your closed account or create a new account, you agree to be bound by the current version of the Terms.
CLASS ACTION WAIVER
By using the Site and in return for the services offered by Fnktion, you acknowledge that Fnktion can only offer you these services under the terms and conditions as presented herein. As partial consideration for your use of the Site and these services, you (either a Host or Talent) agree not to sue Fnktion as a class plaintiff or class representative, join as a class member, or participate as an adverse party in any way in a class-action lawsuit against Fnktion regarding your use of the Site. Additionally, as Talent, your use of the Site is at no charge and you acknowledge that part of the price you are paying to use this Site is your acceptance of these terms of service including this Class Action Waiver. If you do not agree to any part of these terms, do not continue your use of the Site. Nothing in this paragraph, however, limits your rights to bring a lawsuit as an individual plaintiff, including in small claims court, subject to section 11 above.
CHANGES TO THE TERMS
We may update these Terms from time to time. If we believe that the changes are material, we’ll definitely let you know by doing one (or more) of the following: (1) posting the changes through the Services or (2) sending you an email or message about the changes. That way you can decide whether you want to continue using the Services. Changes will be effective upon the posting of the changes. You are responsible for reviewing and becoming familiar with any changes. Your use of the Services following the changes constitutes your acceptance of the updated Terms.
Waiver. No failure or delay by either party in exercising any right under the Terms, will constitute a waiver of that right. No waiver under the User Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
Severability. Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
Entire Agreement. The Terms, including any terms incorporated by reference into the Terms, constitute the entire agreement between you and us and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in these Terms and any pages referenced in these Terms, the terms of these Terms will prevail.