Terms of Service

HiFive ( “we”, “our” or “us”) operates the HiFive platform, which includes the HiFive website and all related social media pages (the foregoing, and all content, features, and materials thereon, will hereinafter be collectively referred to as the “Platform”). The Platform is designed to help advertisers and brands (collectively, “Advertisers”) find college athletes (collectively, “Athletes”) who are interested in executing NIL (Name, Image, Likeness) Deals (hereinafter referred to as “Deal”) for the Advertisers' products and/or services.

These Terms of Use include our policy for acceptable use of the Platform and constitute your agreement with HiFive concerning your use of the Platform. By establishing an Account on the Platform and/or by using the Platform, you are agreeing to these Terms of Use. If you are establishing an Account on behalf of an Advertiser, you hereby represent and warrant that you have the right and authority to bind the Advertiser to these Terms of Use.

These Terms of Use also incorporate, by this reference our Privacy Policy which explains how we collect and use your information and data. The Terms of Use and Privacy Policy collectively will be referred to as the “Agreement” and govern your rights, obligations, and restrictions regarding your use of the Platform.

In order to utilize certain features of the Platform, you may be notified that you are required to agree to additional terms and conditions. Such additional terms are hereby incorporated into this Agreement by this reference but such additional terms will control solely for the applicable service.

We may modify this Agreement from time to time and such modification will be effective upon posting on the Platform. You will be deemed to have agreed to any such modifications by your further use of the Platform after any such modification is posted. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes. If you do not agree with the modifications, please discontinue use of the Platform immediately.

Carefully review these Terms of Use and any incorporated policies or documents and do not utilize the Platform if there is anything herein that you do not understand or agree to. Utilization of the Platform requires agreement to these Terms of Use, which may modify or limit rights you otherwise hold, require you to represent and warrant as to various items, and require you to indemnify, protect, and hold HiFive harmless from certain losses.


Your Account / Password Security / Suspension, Termination
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‍You are able to browse certain portions of the Platform without an account. However, in order to use the services of the Platform, whether you are an Advertiser or a Creator, you will be required to register for an account (each, an "Account"). When creating or updating an Account, you are required to provide us with certain personal or sensitive information, such as your e-mail address or, in the case of Advertisers, your name, billing/shipping address and payment information. This information will be held and used in accordance with our Privacy Policy.

You may never use another's Account without permission or permit another to use your Account. You may not create more than one Account. You are prohibited from registering a new Account if you have previously had an Account terminated.

You are responsible for (a) keeping confidential any password that you created to use any aspect of the Platform requiring registration and (b) restricting access to your computer or mobile device. You agree to accept full responsibility for all activities that occur within your Account. You must notify us immediately of any breach of security or unauthorized use of any part of your Account.

Without limiting anything in this Agreement, we reserve the right, in our sole discretion, to restrict, suspend, or terminate your Account and/or your access to all or any part of the Platform at any time, for any or no reason, with or without prior notice, and without liability, including in the event we stop offering any aspect of the Platform. We expressly reserve the right to restrict, suspend and/or terminate your access to any part of the Platform if we determine, in our sole discretion, that you have violated any of the terms of this Agreement.


NIL Deals
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‍When establishing an Account, each Athlete will set forth details regarding the services they are willing to perform on behalf of HiFive for Advertisers along with information about their rates. This information may be made available to Advertisers who establish Accounts. When an Advertiser is interested in launching a Deal, the Platform will give the Advertiser the ability to engage HiFive to provide the services of the Athlete(s) with whom they would like to execute a Deal. The Platform will allow the Advertiser to provide an offer (a “Proposal”) containing details about the Deal (e.g., platform, type/deliverables, rate(s) offered). Thereafter, the Advertiser and Athlete may engage in direct discussions on the Platform about the Proposal (including rate negotiation(s), Deal deliverables, etc.). Athletes may also initiate direct discussions with Advertisers to solicit Proposals for potential Deals. The Advertiser may update its Proposal at any time prior to acceptance by the Athlete (e.g., to increase the rate(s) or modify the deliverables, based upon Advertiser's conversations on the Platform with the Athlete). Once a Proposal is made, the Athlete will then have the ability to accept (or decline) the Proposal at their discretion.

The acceptance of a Deal by an Athlete creates two agreements: one between the Advertiser and HiFive (pursuant to which HiFive will provide the services of the Athlete requested in the Proposal) and one between the Athlete and HiFive (pursuant to which the Athlete agrees to provide such services to Advertiser on behalf of HiFive); therefore, once accepted, the Athlete will be obligated to fulfill the obligations of that Deal, the Advertiser will be obliged to pay HiFive for such fulfilled obligations, and HiFive will be obligated to pay the Athlete for such fulfilled obligations. If you are a Athlete, you must only accept Proposals for Deals you know you will be able to fulfill (as a reminder, Athletes are not under any obligation to accept any Proposals).

A Proposal may be withdrawn by the Advertiser at any time prior to the Athlete's acceptance of the Proposal. Once a Proposal is accepted by the Athlete, the Proposal cannot be withdrawn and the Deal cannot be canceled by the Athlete, but the Advertiser can request a different Athlete if said Athlete does not meet the Advertiser’s standards. This must occur before the Advertiser approves of the Athlete the Advertiser has been matched with.

Notwithstanding anything to the contrary herein or elsewhere, while the terms of the Deal will govern the Advertiser's and Athlete's obligations with respect to such Deal, you agree that the Terms of Use and all referenced documents will, at all times, supersede and prevail over the terms of the Deal and nothing in the Deal or otherwise can alter, diminish, or impair any obligation created by the Terms of Use and all referenced documents. For the avoidance of doubt, in the event any Deal or related agreements alter or conflict with the Terms of Use and the referenced documents, the Terms of Use will at all times prevail.


Payment For Deals
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‍When a Athlete accepts a Proposal, the Advertiser will make a payment to HiFive through the Platform in the amount set forth in the accepted Proposal (the “Athlete Fee”) plus HiFive Fees (if any) and any applicable taxes (collectively, “Fees”) for HiFive's fulfillment of the specified Athlete obligations under the Proposal for the Deal (the “Deal Obligations”).

Once a Athlete has fulfilled the Deal Obligations on behalf of HiFive, the Athlete will notify the Advertiser and HiFive by following the procedures set forth in the Platform. Once the Advertiser has been notified that the Athlete has fulfilled the Deal Obligations, the Advertiser will have two (2) business days to confirm or deny to HiFive that the Deal Obligations have been fulfilled. If the Advertiser confirms or does not timely deny, HiFive will pay the Athlete Fee to the Athlete, less HiFive Fees (if any) that may be identified on the Platform (as discussed in more detail below). If the Advertiser denies, the Athlete has ten (10) business days to dispute the denial (a “Denial Dispute”) by contacting HiFive about the issue (e.g., via our customer support team). If the Athlete does not contact HiFive about the Denial Dispute within such period, HiFive will not pay any amounts to Athlete for such a Deal and will refund the Athlete Fee to Advertiser within ten (10) business days, subject to HiFive retaining any fees it may be entitled to retain under these Terms of Use. If the Athlete does contact HiFive about the Denial Dispute within such period, the below section regarding disputes over whether Deal Obligations were completed will control.

Advertiser and Athlete hereby agree that HiFive is permitted to satisfy the Athlete Fee in any manner it sees fit and HiFive's sole duty to Advertiser and Athlete with respect to the Athlete Fee is pay to Athlete the Athlete Fee or refund the Athlete Fee to Advertiser (less any applicable HiFive Fees), pursuant to the processes set forth herein. For purposes of clarity, Advertiser and Athlete understand and acknowledge that HiFive in no way acts as a trustee, agent, fiduciary or any position of trust, confidence, or reliance to any party or third party as it relates to the Athlete Fees.

If you are an Advertiser, you acknowledge that if you do not respond to a request to confirm or deny the completion of an Athlete's Deal Obligations within the two (2) business day period described above, or if you confirm the Deal Obligations have been fulfilled, all Fees will thereafter be non-refundable, and HiFive will be deemed to have fully satisfied any and all obligations HiFive may have with respect to the Proposal, Deal, and/or Fees.

Athletes who do not fulfill their Deal Obligations may be suspended or terminated from the Platform.

All transactions are in U.S. dollars (“USD”).

If you are an Advertiser, you hereby authorize us to charge your credit card or other payment method for the Fees. If you are directed to our third-party payment processor(s), you may be subject to terms, conditions and privacy policy governing the use of that third-party's payment processing services. You must provide the third party payment provider with valid payment information. You acknowledge and agree that we do not operate, own, or control the payment provider nor are we a money transmitter. You agree to immediately notify the payment processor(s) of any change in your billing address (or other information) for your payment card. We reserve the right (but are under no obligation) to cancel your Deal Offer if your payment method is declined or if you have previously been banned or removed from the Platform for any reason. We also reserve the right at any time to change our fees and payment procedures, including our payment options and terms, either immediately upon posting on the Platform or by other notice to you.

If you have a question about a purchase made or a charge to your payment card, please contact us at anthony@hifivenil.com. We have the sole discretion to determine how billing disputes between you and us will be resolved.
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Disputes Over Whether Deal Obligations Were Completed

‍The Platform helps facilitate transactions between Advertisers and Athletes. You acknowledge and agree that HiFive is not a broker, manager or agent, or insurer with respect to any transactions that may occur via the Platform. If you are an Advertiser, you also acknowledge and agree that HiFive will use good faith efforts to cause Athletes to fulfill their Deal Obligations but HiFive makes no representations with respect to any such transaction, including any issues relating to pricing, the content comprising any Athlete Post or Posted Content, quality, or completion, and you waive any claims against HiFive with respect thereto, except only that Athletes are bound by the terms and conditions of this Agreement (including, but not limited to, the sections entitled Content, Athlete Posts, and Content). . Accordingly, without limiting the generality of the foregoing, we make no representations regarding the accuracy, completeness, timeliness, reliability or availability of, any of the content or information uploaded, displayed, or distributed on the Platform, or products or services made available thereon. If you are a Athlete and you choose to agree to an Advertiser's Proposal, or you are an Advertiser and choose to make a Proposal, any and all transactions via the Platform are at your own risk. The purchase, payment, warranty, guarantee, delivery, maintenance, and all other matters concerning the products, services or information, opinion or advice ordered or received from Athletes are solely between the Advertiser and such Athlete. We do not endorse, sponsor, or recommend any Athlete on the Platform. Without limiting the foregoing, we make no representations or warranties regarding the services of any Athlete on the Platform, including with respect to the quality of their services, the reasonableness of their rates, or that they will complete their Deal Obligations (except only, as noted above, that Athletes are bound by the terms and conditions of this Agreement). Advertisers are solely responsible for determining the suitability of any Athlete they may find through the Platform.

Without limiting the foregoing, in the event an Advertiser denies that Deal Obligations have been fulfilled and the Athlete timely contacts HiFive about a Denial Dispute, upon HiFive's receipt of the Athlete's Denial Dispute, HiFive will investigate the matter and make a good faith determination as to the validity of the denial. As noted above, Athletes may contact HiFive about Denial Disputes by timely emailing aclead@iu.edu (note to Athletes: when contacting us about a Denial Dispute, please identify the Deal in question and include a brief description of the issue). Each Athlete and each Advertiser establishing an Account hereby agrees (a) that HiFive has full discretion as to how it makes its good faith determination; (b) that HiFive is permitted to resolve the matter for any or no reason in good faith without the obligation to provide either Athlete or Advertiser any reasoning for its determination; (c) to fully cooperate with any reasonable requests of HiFive as it reviews the dispute, the failure to cooperate being a breach of these Terms of Use and sufficient justification alone for HiFive to make a determination on the dispute; and (d) that HiFive's determination will be final and binding and hereby agrees to accept such determination. HiFive expressly disclaims any liability for your dissatisfaction with the resolution of any dispute. You hereby waive and relinquish any rights you may have against HiFive in regard to disputes of this nature and agree to protect, indemnify, and hold HiFive harmless from any losses relating to the same.
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HiFive Fees

‍HiFive will have the right to collect those fees outlined on the Platform and/or set forth within your Account. These fees may include a Deal fee based upon amounts paid per Deal.


Athlete Obligations

‍If you are a Athlete, you are providing your services to Advertisers on behalf of HiFive as an independent contractor of HiFive. You agree that nothing in this Agreement will create an employer-employee relationship between you and HiFive. You further agree that you are solely responsible for the accuracy of all information you provide in your Account. You represent and warrant that your offering of services through the Platform will be in compliance with all applicable laws, rules and regulations and will not breach any existing agreements you may have with third parties. You are solely responsible for paying any and all applicable taxes arising from Deals.


Non-Circumvention

‍By using the Platform, either as an Advertiser or Athlete, you hereby agree not to circumvent the booking process facilitated by the Platform or to otherwise seek to establish a contractual relationship with a party introduced to you through the Platform, unless you can demonstrate with pre-existing writing that you had a pre-existing relationship with that party prior to establishing the Deal. In furtherance of the foregoing, as a material condition to your participation on the Platform, you agree that all bookings with a party introduced to you through the Platform will be performed through the Platform.


Content
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‍Not an Endorsement

Nothing on the Platform is intended to be deemed an endorsement by HiFive of any Athlete or Advertiser.


Proprietary Rights

‍With the exception of content posted to the Platform by Athletes or Advertisers (“Posted Content”) and Your Content (defined below), all materials contained on the Platform, including all content, and the software, graphics, text and look and feel of the Platform, and all intellectual property, including trademarks, logos and service marks (“Marks”), copyrights, patents and other intellectual property rights related thereto (collectively, the “Proprietary Materials”), are owned or controlled by HiFive, and/or our subsidiaries or affiliated companies. You may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any Proprietary Materials, or any other protectable aspects of the Platform, in whole or in part, unless specifically stated otherwise. Subject to your compliance with this Agreement and any other relevant policies related to the Platform, we grant you a non-exclusive, non-transferable, revocable limited license subject to the limitations herein to access and use the Platform and Proprietary Materials for your own purposes consistent with the intended purpose of the Platform. You are not permitted to use the Marks without our prior written consent, and you agree not to use the Platform for any purpose other than as described herein.

For clarity, all Athlete Posts will be owned by the applicable Athlete (as described in more detail below).


Licenses

‍By submitting content or materials (“Your Content”) to us through the Platform including, without limitation, by uploading any materials (including images or video content) (e.g., Posted Content), linking your social media profiles to your Account (with respect to publicly available data, content, and materials on those profiles, such as your follower count and profile handle), choosing a username, submitting your brand, or participation in any communication functionality, you automatically grant us or warrant that the owner of such content has expressly granted us, the royalty-free, irrevocable, sublicensable and transferable, non-exclusive right and license to use, reproduce, publish, translate, prepare derivative works of, copy, perform and distribute Your Content, including all patent, trademark, trade secret, copyright or other proprietary rights in and to such content and your username, actual name, and likeness (if submitted), in whole or in part worldwide, in connection with the Platform. The above licenses granted by you in Your Content are perpetual and will only terminate if you've requested the removal or deletion of Your Content from the Platform (such license will terminate within a commercially reasonable time after your request to remove or delete Your Content). You understand and agree, however, that we may retain, but not display, distribute, or perform, server / internal copies of Your Content and other Account information that has been removed or deleted.

If you are an Athlete, you further grant HiFive and the HiFive Parties, for so long as you hold an active Account on the Platform, the right, and license to use your name, image, and likeness (in the forms submitted by you to the Platform or that are otherwise publicly available through your social media accounts) in order to promote your involvement on the Platform to Advertisers and potential Advertisers. If you are an Advertiser, you further grant HiFive and the HiFive Parties, for so long as you hold an active Account on the Platform, the right and license to use your brands, trademarks and logos in order to promote your involvement on the Platform to Athletes and potential Athletes, provided that you may opt-out of off-Platform promotional uses by contacting us at anthony@hifivenil.com.

Subject to the above grants, you retain any and all rights which may exist in Your Content.
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Athlete Posts‍

‍Ownership

‍Unless otherwise specifically agreed in writing between an Athlete and an Advertiser prior to a Deal, each Advertiser hereby agrees that Athletes will retain all rights in and to any content they post to their social media accounts in connection with a Deal (“Athlete Posts”), subject to a license by the Athlete to Advertiser to use any Athlete Posts to support the Deal, including liking, sharing or commenting on such Athlete Posts on Advertiser's social media channels or reposting such Athlete Posts on Advertiser's website, unless otherwise mutually agreed by the Advertiser and Athlete pursuant to a Proposal.
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Standards

‍Without limiting anything in the Conduct section below, each Athlete agrees that each Athlete Post will not (a) damage the goodwill and/or good reputation of any Advertiser or Advertiser product or service; (b) include any false or misleading statements, including any defamatory statements about any third party products or services that may be competitive with an Advertiser's products or services; (c) include any statement of opinion that you do not truly believe and that is not supported by fact; (d) include promises, representations or predictions that you are not authorized to make; (e) include false statements about your background, motivation or qualifications; or (f) violate Federal Trade Commission's regulations related to advertising and endorsements including, for example: (i) Federal Trade Commission 16 CFR Part 255: Guides Concerning the Use of Endorsements and Testimonials in Advertising ; (ii) The FTC's Endorsement Guides: What People Are Asking | Federal Trade Commission; and (iii) Disclosures 101 for Social Media Influencers (ftc.gov) , which requires, among other criteria, that material connections between advertisers and endorsers be disclosed (including, where appropriate, through the use of hashtags such as #ad or #sponsored).
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Student-Athletes

‍This paragraph applies to all Athletes who are student-athletes. REMINDER: Before you agree to participate in any Deal, please review these Terms of Use and any Deal Obligations (including the Advertiser in question) carefully and check your institution's policies related to the monetization of your name, image, and likeness rights (your “NIL Rights”). It is important to us that you follow all applicable federal, state, or local laws, rules, regulations, orders, and/or other restrictions issued by any relevant authority (such as the NCAA, your institution, or the State in which your institution is located) (“Laws”) that may relate to these Terms of Use, any Deal Obligations, or the types of Advertisers with whom you may provide services. For example, some states and schools may require that you give advance notice to your school (or obtain approval from your school) accepting an agreement relating to your NIL Rights, while other schools may not. If you are not sure what your school's policies related to your NIL Rights are, we strongly encourage you to check with your school's athletic department. You understand and acknowledge that you (and not HiFive) are solely responsible for your compliance with any Laws related to your NIL Rights.

Athletes who violate this Section may have their Accounts suspended or terminated.


Conduct

‍Without limiting Athlete's specific obligations with respect to Athlete Posts, each user of the Platform, whether a Athlete or Advertiser, agrees not to:create or execute a Deal that violates the legal rights of any third party, including, but not limited to any rights in intellectual property, including copyrights, trademarks or other proprietary rights (without limiting the generality of the foregoing, by way of example, if you are a student-athlete, do not use your school's logos, mascot, uniforms, or other copyrights or trademarks unless you have written permission from your school to do so for the Deal);create or execute a Deal that violates the privacy rights of any person;impersonate any other person or create a false identity;create or accept any Deal under false pretenses or with information that is inaccurate, untrue, misleading or incomplete in any way;use the Platform if you have previously been banned;defraud or mislead any person or engage in any fraudulent or illegal activity, including phishing, money laundering or fraud;engage in any transaction or solicitation other than bookings of Deals, including sending advertising or commercial communications or any other unsolicited or unauthorized communications;violate any federal, state, or local law or court order;send unsolicited or spam messages to any other person;transmit any virus or other computer instruction that may disrupt, damage, or interfere with uses of computers or other systems;register for more than one Account or register for an Account on behalf of an individual other than yourself;stalk, harass, or defame another user;use the Platform in order to create, or assist in creating, any service directly competitive to the Platform;circumvent the Platform by engaging an Athlete (if you are an Advertiser) or soliciting an Advertiser for your promotional services (if you are a Athlete) Service, in order to consummate a transaction that otherwise would not have occurred but for the parties' participation on the Platform;share, post, transmit, or other distribute any Content of any kind that (a) infringes or violates any right (including copyright, patent, or trademark rights) of any other person; (b) is, as HiFive may determine in its sole judgment, illegal, abusive, harassing, threatening, pornographic, indecent, profane, obscene, racist, sexist, homophobic, hateful, violent, derogatory or otherwise objectionable in any way; or (c) violates any other term of these Terms of Use;use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, spyware, algorithm or methodology to access, acquire, copy or monitor the Platform without our express prior written permission;disrupt the accessibility or network of the Platform; oradvocate, encourage or assist any third party in doing any of the foregoing.You represent and warrant that neither your actions on the Platform nor Your Content will violate any of the prohibited conduct described above. Any conduct by you in violation of the foregoing prohibitions may result in the suspension or termination of your Account.


Copyright

‍If you believe that any content, such as Posted Content or other materials, posted on the Platform constitutes an infringement of your copyrights, we will respond promptly to any properly submitted notice containing the information detailed below. Pursuant to Title 17, United States Code, Section 512(c)(2), written notifications of claimed copyright infringement should be sent to our Designated Agent at the following contact information: anthony@hifivenil.com.To be effective, the notification must be a written communication that includes the following:A physical or electronic signature of person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;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; andA 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.Disclaimers And Limitation Of LiabilityTHE PLATFORM AND ALL SERVICES OFFERED HEREON ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.WITHOUT LIMITING THE FOREGOING, WE DO NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED: (I) AS TO THE OPERATION OF THE PLATFORM, OR THE INFORMATION, CONTENT, MATERIALS OR SERVICES INCLUDED THEREON; (II) THAT USE OF THE PLATFORM WILL BE 100% SECURE, UNINTERRUPTED OR ERROR-FREE; (III) AS TO THE ACCURACY, RELIABILITY, OR CURRENCY OF ANY INFORMATION, CONTENT, OR SERVICE, PROVIDED THROUGH THE PLATFORM; OR (IV) THAT THE SERVERS, OR EMAILS SENT FROM OR ON BEHALF OF HiFive, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.HiFive EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTIONS OF ITS USERS OR THE CONTENTS OF ANY USER CONTENT.WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OF THE PLATFORM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL HiFive BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID HiFive (IF YOU ARE AN ADVERTISER) OR RECEIVED FROM HiFive (IF YOU ARE A Athlete) IN THE ONE HUNDRED AND EIGHTY (180) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM AND NO AMOUNTS HAVE BEEN PAID OR RECEIVED (AS APPLICABLE) IN THAT PERIOD, YOU ACKNOWLEDGE THAT YOUR SOLE REMEDY WILL BE TO CEASE USING THE PLATFORM AND TERMINATE YOUR ACCOUNT.YOU EXPRESSLY WAIVE, DISCLAIM AND ABANDON ANY RIGHTS YOU MAY HAVE AGAINST HiFive FOR ANY ACTS OR OMISSION RELATING TO ANY DISPUTE THAT MAY ARISE BETWEEN AthleteS AND ADVERTISERS, INCLUDING RELATING TO WHETHER ANY Deal OBLIGATIONS WERE COMPLETED AND YOU AGREE TO INDEMNIFY, PROTECT AND HOLD HiFive AND THE HiFive PARTIES FOR ANY LOSSES INCURRED RELATING TO THE SAME.CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO A USER, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO SUCH USER, AND SUCH USER MAY HAVE ADDITIONAL RIGHTS.
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No Representations Regarding Income Potential

‍HiFive makes no representations and warranties regarding potential income that may result from a Athlete's activities on the Platform and specifically disclaims any and all warranties relative to earning potential from the Athlete's participation in the Platform or any Deal. HiFive also does not make any representations or warranties with respect to the potential for success of any Deal or the reasonableness of any Athlete Fees requested by a particular Athlete and specifically disclaims any and all warranties relative to the reach or success of any Deal.


Legality

‍You are subject to all laws of the state(s) and countries in which you reside and from which you access the Platform and are solely responsible for obeying those laws. You agree we cannot be held liable if laws applicable to you restrict or prohibit your participation. We make no representations or warranties, implicit or explicit, as to your legal right to participate in any Platform or any Deals offered through the Platform nor will any person affiliated, or claiming affiliation with the Platform have authority to make any such representations or warranties.


Applicable Law; Jurisdiction

‍The Platform are created and controlled by us in the State of Indiana. As such, the laws of the State of Indiana will exclusively govern this Agreement to the exclusion of all other laws, without giving effect to any provisions of Indiana law that direct the choice of another state's laws.Subject to the Binding Arbitration section below, you hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of Indiana and of the United States of America located in the State of Indiana for any litigation arising out of or relating to use of or purchase made through the Platform (and agree not to commence any litigation relating thereto except in such courts), waive any objection to the laying of venue of any such litigation in the Indiana Courts and agree not to plead or claim in any Indiana Court that such litigation brought therein has been brought in an inconvenient forum.
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Binding Arbitration

‍Any controversy or claim arising out of or relating to this Agreement or any related agreement, their enforcement or interpretation, or because of an alleged breach, default or misrepresentation in connection with any of their provisions, will be determined by binding arbitration. The arbitration proceedings will be held and conducted by a single arbitrator in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS (the “JAMS Rules”), as modified by this Agreement. Such arbitration will occur exclusively in Indiana, Indiana, and be initiated by any party in accordance with the JAMS Rules. The demand for arbitration will be made by any party hereto within a reasonable time after the claim, dispute or other matter in question has arisen, and in any event will not be made after the date when institution of legal proceeding, based on such claim, dispute or other matter in question, would be barred by the applicable statute of limitations. Discovery issues will be decided by the arbitrator. Post-hearing briefs will be permitted. The arbitrator will render a decision within twenty (20) days after the conclusion of the hearing(s). In reaching a decision, the arbitrator will have no authority to change, extend, modify or suspend any of the terms of this Agreement, or to grant an award or remedy any greater than that which would be available from a court under the statutory or common law theory asserted. The arbitrator will issue a written opinion that includes the factual and legal basis for any decision and award. The arbitrator will apply exclusively the substantive law (and the law of remedies, if applicable) of Indiana or federal law, or any of them, as applicable to the claim(s) asserted. Judgment on the award may be entered in any court of competent jurisdiction. The parties may seek, from a court of competent jurisdiction, provisional remedies or injunctive relief in support of their respective rights and remedies hereunder without waiving any right to arbitration. However, the merits of any action that involves such provisional remedies or injunctive relief, including, without limitation, the terms of any permanent injunction, will be determined by arbitration under this paragraph. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator will allocate all costs and expenses of the arbitration (including legal and accounting fees and expenses of the respective parties) to the parties in the proportions that reflect their relative success on the merits (including the successful assertion of any defenses).You agree to pursue any arbitration in an individual capacity and not as a class representative or class member in any purported class action proceeding.BY AGREEING TO ARBITRATE DISPUTES, THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THEY ARE IRREVOCABLY WAIVING ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIVITIES CONTEMPLATED HEREBY.
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Indemnity

‍You agree to indemnify and hold HiFive, its parents, subsidiaries, and affiliates, and the respective officers, agents, partners, and employees of each (collectively, “HiFive Parties”) harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of (1) your breach of this Agreement and/or any of your representations, warranties, covenants and/or agreements set forth herein; (2) our distribution, exploitation or other use of Your Content; (3) any decision or lack thereof relating to a dispute relating to whether Deal Obligations were satisfied; (4) your failure to complete your Deal Obligations if you are an Athlete or your failure to acknowledge that an Athlete properly satisfied their Deal Obligations; and (5) any issues relating to your making or receiving the Deal Fee set forth in the applicable Deal.


Severability / No Waivers

‍The provisions of this Agreement are intended to be severable. If for any reason any provision of this Agreement will be held invalid or unenforceable in whole or in part in any jurisdiction, the such provision will, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.

Our failure to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.


Electronic Communications

‍When you use the Platform or send emails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email or by posting notices through the Platform. You agree that all agreements, notices, disclosures and other communications that we provide you electronically satisfy any legal requirement that such communications be in writing.


Support

‍Subject to the other provisions of this Agreement, we will attempt to help you with any queries or problems that you may have with the Platform or any of your purchases through the Platform. To reach our customer support team, please e-mail us at anthony@hifivenil.com. It will expedite your request for assistance by providing our representatives with all the information they need to solve your problem as quickly as possible.


Independent Contractor

‍Any agreement established between an Advertiser and HiFive and/or between HiFive and an Athlete is a non-exclusive independent contractor agreement and does not create an employment relationship between (a) Advertiser and Athlete, (b) Advertiser and HiFive or (c) HiFive and Athlete. Athletes are free to work (as an employee, agent, independent contractor, or owner) for any other company or individual. An Athlete's establishment of an Account does not restrict your ability to market for any other company, including a competitor of any Advertiser or Platform, so long as you observe the terms of this Agreement, including the non-disclosure and non-solicitation provisions. Each Athlete acknowledges that: (i) HiFive and each Advertiser may work with other Athletes; (ii) HiFive will in no way be performing services as a manager or agent for you; and (iii) HiFive is not required to (and will not attempt to) obtain, seek or procure any engagements or employment for you.


Force Majeure

‍Each of HiFive, an Advertiser, and an Athlete will be excused from performance under these Terms of Use to the extent that any of them is prevented or delayed from performing any obligation because of any unexpected act beyond its reasonable control, including (without limitation), weather conditions, pandemics, acts of war, acts of terrorism, insurrection, riots, civil disorders, or rebellion; quarantines, power or internet outages, or embargoes.


Third-Party Marketplaces

‍This Agreement is between you and HiFive only, not with Apple, Facebook, Instagram, Google or any other third party through which you may have accessed the Platform (“Marketplaces”). The Marketplaces are not responsible for the Platform. The Marketplaces have no obligation whatsoever to furnish any maintenance and support services with respect to the Platform. To the maximum extent permitted by applicable law, the Marketplaces have no other warranty obligation whatsoever with respect to the Platform. The Marketplaces are not responsible for addressing any claims by you or any third party relating to the Platform or your possession and/or use of the Platform, including, but not limited to: (i) product liability claims; (ii) any claim that the Platform fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation or (iv) claims that the Platform or any content thereon infringes upon a third party's intellectual property rights.


Modification

‍We reserve the right to make changes to the Platform, posted policies, and this Agreement at any time without notice other than the reposting of the modified Agreement so check back frequently.


Please contact us at anthony@hifivenil.com with any questions regarding this Agreement.