1. Acceptance of Terms of Service. These terms of service (“Terms of Service”) are entered into by and between you and Field Day Community Investments, Inc. (“Field Day,” “we,” “us” or “our”) and govern your access to and use of the Field Day website (and the service(s) provided through Field Day’s website), https://www.heyfieldday.com/ (the “Site”), the Field Day online platform accessible via the Site (the “Field Day Platform”), and all other non-downloadable software, web applications, and other online and offline services referencing these Terms of Service, and all content and functionality associated therewith (collectively, the “Service”).
Please read these Terms of Service carefully before you start to use the Service. By using the Service or by clicking to accept or agree to these Terms of Service when this option is made available to you, you accept and agree to be bound and abide by these Terms of Service and our Privacy Notice. If you do not want to agree to these Terms of Service or the Privacy Notice, you must not access or use the Service.
Unless we expressly state otherwise, the Service is offered and available to users who are eighteen (18) years of age or older. Except as otherwise authorized by us, if you are not at least eighteen (18), you must not access or use the Service.
2. Service Features, Functionality and Availability. You may use the Service when and as available. Although we generally intend for the Service to be available on an uninterrupted basis, it will not always be available (e.g., during maintenance, changes, outages and for other reasons). We further reserve the right to change, modify, eliminate and/or restrict or block access to all or any part of the Service, including any features or content displayed or made available through the Service, from time to time with or without notice to you, in our discretion. We will not be liable to you if for any reason all or any part of the Service is unavailable at any time for any period.
3. Accessing the Service and Account Security.
(a) You are responsible for: (i) making all arrangements necessary for you to have access to the Service, including without limitation, your Internet connection; and (ii) ensuring that all persons who access the Service through your Internet connection and/or your User Account are aware of these Terms of Service and comply with them.
(b) You may use or browse certain functions, pages and/or content of the Service without first registering as a user (a “User”). However, for complete access to the Service, including the Field Day Platform, you will be required to register as a User. It is a condition of your use of the Service that all the information you provide as part of registering as a User or in connection with your use of the Service is accurate, current and complete.
(c) If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and you agree not to provide any other person with access to the Service or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your User account at the end of each session. You should use particular caution when accessing your User account from a public or shared computer so that others are not able to view or record your password or other personal information. We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason.
4. Privacy Notice; Additional Terms.
(a) Privacy Notice. You agree that all personal information you provide to register with the Service or otherwise, including but not limited to through the use of any interactive features on the Service, is governed by our Privacy Notice, and you consent to all actions we take with respect to your personal information consistent with our Privacy Notice.
(b) Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules or guidelines applicable to the Service or certain features of the Service that we may post on or link to the Service (the “Additional Terms”). All such Additional Terms are hereby incorporated into, and made a part of, these Terms of Service.
5. No Reliance. Field Day makes no representation or warranty that the information on the Service is accurate, reliable, up-to-date or complete. Neither Field Day nor any third party can guarantee the accuracy of the information, and you agree not to rely on any such information.
6. Intellectual Property Rights.
(a) Field Day Content. The Service and all data, products, content, features and functionality (including but not limited to, all information, user interfaces, software, text, displays, images, and the design, selection and arrangement thereof) (“Field Day Content”) thereof, are owned by Field Day, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. You may not commercially exploit or make the Service available to any third party. You must not reproduce, distribute, modify, create derivative works of, re-engineer, publicly display, publicly perform, republish, download, store or transmit any of the material on the Service, except as authorized by these Terms of Service. No right, title or interest in or to the Service or any content on the Service is transferred to you, and all rights not expressly granted are reserved by Field Day. Some Field Day Content may also be subject to further terms and conditions provided in connection with the particular Field Day Content and you agree to comply with any such further terms and conditions. Any use of the Field Day Content other than as set forth in these Terms of Service may result in the immediate suspension or termination of your access to all or part of the Service.
(b) Your Content.
(1) Certain features or functions of the Service may permit the uploading, posting, storage, viewing or transmittal of text, information, video, images and content (collectively, “Your Content”). You retain ownership of any of Your Content posted or transmitted to or through the Service, but in order for us to provide you the Service, you must grant certain rights to Field Day to use Your Content. Accordingly, subject to any restrictions or limitations set forth in these Terms of Service, you hereby grant to Field Day and its designees, a royalty-free, fully paid, sublicensable (as further set forth in Section 7(d) below), non-exclusive license to post, store, use and transmit any and all of Your Content in connection with: (i) Field Day’s maintenance, operation, and provision of the Service; (ii) the operation of Field Day’s business, including its development and design of any products or services; and (iii) the creation of Systems Data. You are solely responsible for any and all of Your Content uploaded and/or transmitted in and/or through the Service.
(2) You represent and warrant to Field Day that: (i) you own Your Content or otherwise have sufficient rights in Your Content to grant the license rights granted to Field Day in this Section; (ii) Your Content does not, and its use by Field Day as contemplated in these Terms of Service will not, violate, infringe, or misappropriate the intellectual property rights, publicity or privacy rights, or other proprietary rights of any third party, or breach or violate any obligation of confidentiality owed to any third party; (iii) your uploading, posting, storage, viewing or transmittal of Your Content to or through the Service will not violate applicable Laws; and (iv) there are no claims currently pending or threatened, and you have not engaged in any acts or omissions likely to result in any such claims, as to: (a) your ownership of, use of, or rights in Your Content; (b) your violation, infringement or misappropriation of any third party intellectual property rights, publicity or privacy rights, or other proprietary rights with respect to Your Content; (c) your violation or breach of any obligation of confidentiality owed to any third party with respect to Your Content; or (d) the violation of Your Content of applicable Laws.
(3) Field Day reserves the right to refuse to post or transmit any of Your Content. Furthermore, in the event that Field Day discovers or has reason to believe that Your Content is in violation of these Terms of Service, including without limitation, this Section 6(b) and/or Section 9 below, Field Day may, without limiting its rights or creating any liability therefor, immediately remove Your Content from the Service, and may further block and/or restrict your access thereto pending resolution of any such violation.
(4) You are responsible for keeping appropriate copies and records of Your Content. Field Day has no obligation to back-up or maintain Your Content, and Field Day takes no responsibility and assumes no liability for Your Content, including without limitation any loss or damage thereto.
(c) Systems Data. You acknowledge and agree that all Systems Data is and shall remain the sole and exclusive property of Field Day. For purposes of clarity, Field Day may make any legal use of the Systems Data without notifying you or sharing such Systems Data with you. Specifically, by way of illustration and not by way of limitation, Field Day may use, publish and/or share Systems Data with others for any lawful purpose, including without limitation, to promote the Service and/or Field Day’s products or services, for evaluating the efficiency, utility and functionality of the Service and/or Field Day’s other products or services, and for enhancing and improving the Service and Field Day’s other products or services. For purposes of these Terms of Service, “Systems Data” means all data, content and information regarding your use of the Service in the nature of de-identified or aggregate systems administrative data, statistical and demographical data, operational information, and data generated by or characterizing the use of the Service, including without limitation, any de-identified or aggregated Your Content.
(d) Feedback. Any comments, feedback, suggestions, or ideas (“Feedback”) you provide through or about the Service may be used by Field Day. While you may continue to own all such Feedback, you hereby grant to Field Day a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit such Feedback.
7. Field Day Platform Terms and Conditions. The Field Day Platform is an online platform that makes it easy for individuals and organizations to discover and engage with local nonprofits through group volunteer events. Users of the Field Day Platform may include individuals who are accessing and using the Field Day Platform in their individual capacity (“Individual User(s)”) and/or users who are accessing and using the Field Day Platform on behalf of a company or entity, such as their employer (“Company User(s)”). The following terms and conditions specifically apply to your access to and use of the Field Day Platform:
(a) Field Day hereby grants to you, subject to the Usage Rights you or your company or entity have purchased or obtained from Field Day, a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Field Day Platform in accordance with your Usage Rights solely for your internal, non-commercial use.
(b) You may only access and/or use the Field Day Platform within the scope of your Usage Rights. For example, certain Usage Rights may be limited to the use of the Field Day Platform by a single user or multiple single users, or impose other prohibitions or restrictions on your use of the Usage Rights. It is your obligation to know and understand the scope and extent of your Usage Rights. If you exceed the scope of your Usage Rights, you agree: (i) that Field Day may invoice you for the additional fees commensurate with any such unauthorized use; (ii) that you will pay such invoice within thirty (30) days of your receipt of the invoice; and (iii) that such remedy is not exclusive of the other remedies available to Field Day in connection with such unauthorized use.
(c) Field Day may further grant you Usage Rights for a temporary or limited period of time so as to permit you, at no cost, to evaluate and test the Field Day Platform or otherwise use the Field Day Platform for evaluation purposes (“Evaluation Rights”). In the event that Field Day grants you such Evaluation Rights, you agree that your rights to access and/or use the Field Day Platform will: (i) be limited to the testing and/or evaluation of the Field Day Platform; and (ii) unless earlier terminated by Field Day, automatically expire upon the expiration of the temporary or limited period of time for which you have been granted Evaluation Rights. With respect to such Evaluation Rights, you acknowledge and agree that:
(1) Field Day is not obligated to provide technical support or service levels in connection with the Evaluation Rights.
(2) Any risk associated with the Evaluation Rights is solely with you.
(3) The Evaluation Rights shall be limited to the evaluation period authorized by Field Day, and Field Day reserves the right to terminate such Evaluation Rights at any time upon written notice to you.
(4) IN NO EVENT SHALL FIELD DAY BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER IN CONNECTION WITH SUCH EVALUATION RIGHTS, WHETHER OR NOT SUCH DAMAGES ARE DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE. IF NOTWITHSTANDING THE PRECEDING SENTENCE, FIELD DAY IS LIABLE TO YOU IN CONNECTION WITH ANY SUCH EVALUATION RIGHTS, FIELD DAY’S TOTAL AGGREGATE LIABILITY TO YOU IN CONNECTION WITH SUCH EVALUATION RIGHTS SHALL NOT EXCEED $100 USD.
(d) If you are a Company User, you acknowledge and agree that Field Day may, without your permission or prior consent, grant certain sublicense rights to the company or entity on whose behalf you are using the Field Day Platform to use certain of Your Content for the company’s or entity’s internal and external marketing and promotional purposes. The portion of Your Content that may be sublicensed to such company or entity may include, without limitation, pictures or images that you transmit or upload by or through the Field Day Platform (“Image(s)”). To the extent your name, likeness, biographical information, testimonials or other similar information (“Publicity Rights”) are included as part of Your Content, including any Images, you agree that the license rights granted by you to Field Day in Your Content include any and all Publicity Rights, and you agree that Field Day, and any company or entity being granted sublicense rights from Field Day in accordance with this subsection (d), will have the right to use your Publicity Rights in connection with the use of Your Content, including any Images, in perpetuity.
(e) If you are a company or entity who has purchased Usage Rights from Field Day, you acknowledge and agree that the User accounts for any Company Users are and will be personal to the particular Company User. Accordingly, the Company User may access and/or use their User account following the cessation of their employment (assuming they have acquired or obtained Usage Rights from Field Day), and that the Company User’s volunteer history (including any volunteer events in which the Company User has previously participated) will continue to be accessible by the Company User as part of their User account.
(f) Certain functionality provided by the Field Day Platform may allow you to connect with charities and/or non-profit organizations (collectively, “Nonprofit(s)”) for purposes of participating in the Nonprofit’s volunteer events. You acknowledge and agree that:
(1) You agree to register to attend the Nonprofit’s volunteer events, and to communicate with the Nonprofit regarding the volunteer event, solely by and through the Field Day Platform and not through any other means.
(2) You may be asked to agree to certain waivers, agreements and/or other terms and conditions in order to participate in a Nonprofit’s volunteer events. Any waivers, agreements and/or other terms and conditions entered into between you and a Nonprofit are solely between you and the Nonprofit, and do not involve or implicate Field Day. Accordingly, any dispute between you and/or the Nonprofit with respect to any such waivers, agreements and/or other terms and conditions are solely between you and the Nonprofit.
(3) Field Day does not, and will have no obligation to, research, assess or verify the credentials, qualifications or backgrounds of any Nonprofit, or the safety, location or other activities associated with a Nonprofit’s volunteer activities. Accordingly, you acknowledge and agree that it is your obligation to undertake the necessary research and due diligence and/or have the proper knowledge and experience to evaluate a particular Nonprofit or a particular volunteer event.
(4) IF YOU HAVE A DISPUTE WITH A NONPROFIT OR IF YOU SUFFER ANY LOSS, DAMAGE OR INJURY AS A RESULT OF PARTICIPATING IN A PARTICULAR VOLUNTEER ACTIVITY, INCLUDING WITHOUT LIMITATION, A LEGAL CLAIM OR LAWSUIT (COLLECTIVELY, “DISPUTE(S)”), YOU HEREBY RELEASE AND FOREVER DISCHARGE FIELD DAY AND ITS OFFICERS, DIRECTORS, VENDORS, AGENTS, SUBSIDIARIES, JOINT VENTURERS AND EMPLOYEES (COLLECTIVELY, THE “FIELD DAY PARTIES”) FOR, FROM AND AGAINST ANY AND ALL CLAIMS (ACTUAL OR ALLEGED), DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE AND HEREBY COVENANT NOT TO SUE OR OTHERWISE BRING ANY LEGAL ACTION WHATSOEVER AGAINST THE FIELD DAY PARTIES ARISING FROM OR RELATED TO SUCH DISPUTE.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
If you are not a California resident, you waive your rights under any statute similar to Section 1542 that governs your rights in the jurisdiction of your residence.
8. Your Conduct. You may use the Service only for lawful purposes in accordance with the terms and conditions of these Terms of Service. Except as expressly permitted in these Terms of Service, you agree not to:
(a) License, sublicense, lease, rent, timeshare, distribute, disclose, permit access to, or transfer to any third party, any portion of the Service and/or any Field Day Content, whether for profit or without charge;
(b) Store, reproduce, distribute, transmit, modify, adapt, perform, display (including by “framing”), publish or sell the Service and/or any Field Day Content;
(c) Translate, reverse engineer, re-engineer, disassemble, decompile, discover, or modify the Service, any Field Day Content, or any Field Day software;
(d) Remove any copyright and other proprietary notices placed upon the Service and/or any Field Day Content accessible via the Service;
(e) Circumvent any use-limitation or protection device contained in or placed upon the Service and/or any Field Day Content, or access or attempt to access any portion of the Service and/or any Field Day Content that you are not authorized to access;
(f) Use the Service to execute denial of service attacks;
(g) Perform automated searches against Field Day’s systems (except for non-burdensome federated search services), including automated “bots”, link checkers or other scripts, without prior written permission from Field Day;
(h) Use the Service or any Field Day Content to create products or perform services which compete with or interfere with the Service, any Field Day Content, or any other products or services of Field Day or its licensors;
(i) Text mine, data mine or harvest metadata from the Service;
(j) Impair or overburden the Service or any servers or systems associated with the Service;
(k) Impersonate any person or entity or otherwise misrepresent your affiliation with any person or entity;
(l) Violate any Laws or cause Field Day to violate any Laws. For purposes of these Terms of Service, “Laws” means applicable federal, international, state and local laws, statutes, rules, regulations and ordinances, including any judgment or order of any court or governmental authority, and specifically includes, without limitation, the Federal Family Educational Rights and Privacy Act and all applicable anti-bribery and anti-corruption laws and regulations, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010, and all applicable privacy and data protection laws;
(m) Use the Service and/or any Field Day Content in any manner that violates, infringes, or misappropriates the intellectual property rights, publicity or privacy rights, or other proprietary rights of any third party;
(n) Introduce to the Service or any other Field Day systems or software any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
(o) Download all or parts of the Service and/or any Field Day Content in a systematic or regular manner or so as to create a collection of materials comprising all or a material subset of the Service and/or the Field Day Content, in any form;
(p) Use the Service or any Field Day Content to create or develop any competing product or service, or any other product or service that emulates the features and/or functions of the Service and/or the Field Day Content; or
(q) Use the Service and/or the Field Day Content in connection with life support systems, medical devices, or any application or other high risk activities where failure or malfunction could lead to possible loss of life.
9. Payments.
(a) Field Day may provide certain paid or free services associated with the use of the Service, in its sole discretion. All fees charged by Field Day may be modified or changed at any time in its sole discretion. When your use of the Service requires the payment of a fee, you will have the opportunity to review and accept the fees that you will be charged. If you do not agree to pay the fee, do not proceed with your transaction. Unless otherwise stated, all fees are quoted in U.S. Dollars.
(b) You are responsible for paying all fees and applicable taxes associated with your use of the Service in a timely manner with a valid payment method. You agree at all times to keep your payment information current and complete. Except as otherwise set forth in these Terms of Service, Field Day does not provide refunds.
(c) If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. This includes charging other payment methods on file with us, or retaining collection agencies and legal counsel, in our discretion.
10. Third Party Websites, Materials and Content.
(a) The Service may link to other websites. These links may be provided by Field Day as a convenience to you. If you deal with a linked site, your transaction is not with Field Day so you should review the linked site’s “terms of use,” other contract(s) and/or privacy notice before completing your transaction.
(b) Field Day may further use third party services, software or applications in making available the Service to you. You agree to comply with any and all third party license terms, terms of use, or terms of service applicable to any such third party service, software or applications, and shall not take or fail to take any act that would cause Field Day to be in breach or violation of any such third party license terms, terms of use, or terms of service. You further acknowledge and agree that Field Day shall not be responsible for, and shall have no liability to you in connection with, the unavailability, failure of, or your inability to use, any such third party service, software or applications.
(c) The Service may display or make available, and the Field Day Content may include, third party content (including data, information, and/or materials) (collectively, “Third Party Materials”). You acknowledge and agree that Field Day is not responsible for the Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Field Day does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials.
(d) You acknowledge and agree that Field Day’s: (i) linking to any third party website; (ii) using any third party services, software or applications; or (iii) providing any Third Party Materials, does not constitute or imply an endorsement by Field Day of the third party provider. The providers of any third party services, software or applications or Third Party Materials may be third party beneficiaries of these Terms of Service having the right to enforce these Terms of Service in accordance with its terms.
11. Monitoring and Enforcement.
(a) Field Day may: (i) disclose your identity or other information about you to any third party who claims that Your Content or any other material posted by you by or through the Service violates their rights, including their intellectual property rights, publicity rights, or their right to privacy; or (ii) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Service. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities, third parties or court order requesting or directing us to disclose the identity or other information (including Your Content) of any User posting any materials on or through the Service.
(b) We do not commit to reviewing any of Your Content or any other user content or materials before it is posted or transmitted through the Service, and cannot ensure prompt removal of objectionable or unlawful material after it has been posted or transmitted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content, including any of Your Content, provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this Section.
12. No Commercial Use; Authorization. You may use the Service for your internal, non-commercial (except as otherwise set forth herein) use solely for lawful purposes in compliance with these Terms of Service. If you are using the Service on behalf of any entity, you represent and warrant that you are authorized to accept these Terms of Service on such entity’s behalf, and that such entity agrees to indemnify Field Day pursuant to Section 19 below.
13. NO WARRANTIES. YOU AGREE THAT THE SERVICE AND ALL FIELD DAY CONTENT IS PROVIDED BY US OR ANY OF OUR EXISTING OR FUTURE VENDORS, AFFILIATES OR AGENTS “AS IS” AND “WITH ALL FAULTS,” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. FIELD DAY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AND DISCLAIMS ALL SUCH REPRESENTATIONS, WARRANTIES, CONDITIONS AND DUTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, RESULTS, ACCURACY, COMPLETENESS, PRIVACY OR SECURITY AND ANY IMPLIED WARRANTIES CREATED BY TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. WE FURTHER DISCLAIM ALL DUTIES TO YOU, IF ANY SUCH DUTIES EXIST, INCLUDING BUT NOT LIMITED TO GOOD FAITH AND FAIR DEALING, REASONABLE CARE, WORKMANLIKE EFFORT, AND LACK OF NEGLIGENCE. IF A DUTY CANNOT BE DISCLAIMED, YOU AGREE THAT THE STANDARD USED TO MEASURE FIELD DAY’S PERFORMANCE OF THAT DUTY WILL BE INTENTIONAL MISCONDUCT. ALSO, THERE IS NO WARRANTY OF TITLE OR AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF ANY ASPECT OF THE SERVICE OR AGAINST INFRINGEMENT. YOU EXPRESSLY WAIVE ALL DUTIES, CONDITIONS AND ALL WARRANTIES THAT MIGHT EXIST BUT FOR THIS SECTION. ALL RISK IN CONNECTION WITH THE USE OF THE SERVICE AND/OR ANY FIELD DAY CONTENT IS WITH YOU.
14. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT ALLOWED BY LAW, YOU AGREE THAT NEITHER FIELD DAY NOR ANY OF ITS EXISTING OR FUTURE AFFILIATES, LICENSORS, SUPPLIERS OR AGENTS WILL BE LIABLE TO YOU AND/OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES, OR FOR DAMAGES FOR LOST PROFITS, FOR LOSS OR IMPAIRMENT OF PRIVACY, SECURITY OR DATA, FOR FAILURE TO MEET ANY DUTY (INCLUDING BUT NOT LIMITED TO ANY DUTY OF GOOD FAITH, WORKMANLIKE EFFORT OR OF LACK OF NEGLIGENCE), OR FOR ANY OTHER SIMILAR DAMAGES WHATSOEVER THAT ARISE OUT OF OR ARE RELATED TO ANY BREACH OR OTHER ASPECT OF THESE TERMS OF SERVICE OR THE SERVICE, EVEN IF FIELD DAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY OR MISREPRESENTATION.
15. EXCLUSIVE REMEDY. IF FOR ANY REASON FIELD DAY IS FOUND LIABLE HEREUNDER, FIELD DAY’S TOTAL LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF: (i) THE FEES YOU HAVE PAID TO FIELD DAY IF ANY, IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE CAUSE OF ACTION GIVING RISE TO LIABILITY; OR (ii) $100 USD. YOU AGREE THAT ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATED TO YOUR RELATIONSHIP WITH FIELD DAY MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, YOUR CLAIM IS PERMANENTLY BARRED. THE DAMAGE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THESE TERMS OF SERVICE SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Termination or Cancellation. As noted above, these Terms of Service are a legally binding agreement between you and Field Day with respect to your use of the Service. Either we or you may terminate this agreement with or without cause or prior notice. You will still be liable for payment of any amounts due or other obligations incurred prior to termination, and if you use the Service after such termination, that use will constitute your new agreement to these Terms of Service. If applicable Laws require that we provide notice of termination or cancellation, we may give prior or subsequent notice by posting it on the Service or by sending a communication to any address (email or otherwise) that we have for you in our records. Field Day’s rights under these Terms of Service that by their terms, nature, sense or context are intended to survive the termination of these Terms of Service shall survive such termination. Without terminating your right to use the Service pursuant to these Terms of Service, we may suspend or block your access to the Service whenever it appears to us that you might be breaching or violating these Terms of Service or otherwise about to cause harm or damage to us or others. No breach of these Terms of Service by Field Day shall be deemed a material breach unless Field Day is first given not less than fifteen (15) business days to cure the breach.
17. Applicable Law and Exclusive Forum. The Service is controlled by us from our offices within the United States and is intended for United States users only. If you choose to access the Service from locations outside the United States, you do so at your own risk and are responsible for compliance with applicable local laws. You may not use or export anything from the Service in violation of U.S. export laws and regulations or these Terms of Service. You agree that these Terms of Service, and all claims of every nature (including without limitation, contract, tort and strict liability) relating to any aspect of the Service, shall be governed by the laws of the State of Oregon, U.S.A., without regard to its conflicts of laws provisions and without regard to where performance is made. THESE TERMS OF SERVICE WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. You agree that any disputes shall be heard exclusively in an appropriate forum located in Multnomah County, Oregon. You also consent to jurisdiction in a state or federal court sitting in Multnomah County, Oregon and waive any claim or defense that such forum is not convenient or proper, and consent to service of process by any means authorized by Oregon or U.S. federal law.
18. Indemnity. You agree to indemnify, defend and hold harmless Field Day, its licensors, affiliates, successors and assigns, and each of the officers, directors, members, employees, agents, and representatives of the foregoing, for, from and against any and all losses, liabilities, damages, fees, penalties, claims and demands (actual or alleged), and costs and expenses (including reasonable attorneys’ fees and legal costs), arising out of or related to your breach of these Terms of Service, your violation of any Laws or any act or omission that causes Field Day to violate any Laws, your infringement of any third party intellectual property rights, or the use of your User account by a third party. Field Day reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you agree to reasonably assist and cooperate with Field Day in the defense thereof.
19. Notices, Including Our Address for Legal Notices.
(a) We may give you notice by any lawful method, including (without limitation) legal notices and notices of subpoenas. We may provide the notices by posting them on the Service or by giving them by email or postal mail to any address that we have for you. You agree to update your address as appropriate and to check for notices posted on the Service.
(b) You agree to send us notice by mailing it to “Our Address for Legal Notices” which is 319 SW Washington St Suite 800, Portland, OR 97204, or by emailing it to us at legal@heyfieldday.com.
20. Amendments. We may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Service thereafter. Your continued use of the Service following the posting of revised Terms of Service means that you accept and agree to the changes. We encourage you to check these Terms of Service often for updates.
21. Agreement; Miscellaneous. These Terms of Service, which incorporate by reference any: (i) additional terms on the Service or otherwise provided by us for particular activities, including the Additional Terms; and (ii) disclosures provided by us and consents provided by you on the Service, constitute the entire agreement between us and neither party has relied on any representations made by the other that are not expressly set forth in these Terms of Service. If any part of these Terms of Service is found by a court of competent jurisdiction to be invalid, then that part will be deemed superseded by an enforceable provision that most closely matches the intent of the original and honors the allocation of risks in these Terms of Service and the remainder of these Terms of Service will continue in effect. Our failure to act with respect to a breach does not waive our right to act as to subsequent or similar breaches. Time is of the essence in connection with your performance under these Terms of Service. Except as set forth in Sections 11 and 19 above, there are no third party beneficiaries of any part of these Terms of Service. These Terms of Service are personal to you, and are not assignable, transferable, or sublicensable by you except with Field Day’s prior written consent, which Field Day may withhold for any reason or no reason. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under these Terms of Service, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
22. Further Information. If you would like to receive our legal name and address by email or request any additional information from Field Day, please provide us your email address by sending your request, in writing, to Our Address for Legal Notices. If you have a complaint, you may contact us at the address(es) set forth in Section 20.
23. Notice of Copyright Agent. Field Day respects the intellectual property rights of others and requests that you do the same. Anyone who believes that their work has been reproduced in the Service in a way constituting copyright infringement may provide a notice to the designated Copyright Agent for the Service containing the following: (i) an electronic or physical signature of a person authorized to act on behalf of the owner of the copyright interest; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material; (iv) the address, telephone number, and, if available, an email address at which the complaining party may be contacted; (v) a representation 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 (vi) a representation that the information in the notice 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.
Copyright infringement claims and notices (but not other notices) should be sent to the attention of our Copyright Agent, in the following manner:
by mail: Field Day Legal, 319 SW Washington St Suite 800, Portland, OR 97204
by email: legal@heyfieldday.com
Please use the same procedure for any claimed infringement of any trademark rights or infringements or misappropriations of other intellectual property or third party rights.
24. Notice About Trademarks. FIELD DAY™ and any associated logos or designs are trademarks of Field Day Community Investments, Inc. All other trademarks and logos on the Service and/or in the Field Day Content are the property of their respective owners. All rights are reserved.
