Last Updated: February 25, 2012
THESE TERMS CREATE A BINDING LEGAL CONTRACT BETWEEN YOU AND COMPANY. BY USING THE WEBSITE YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST NOT USE – AND ARE NOT AUTHORIZED TO USE – ALL OR ANY PORTION OF THE WEBSITE.
The Website, and all content and services offered through the Website (collectively, the “Service”), excluding content and services provided by third-party web sites (“Third Party Sites”), are offered by Company to enable you to communicate with actors and participants (the “Personalities”) in television and other public-interest programming (collectively, “Television Programming”), fans and other viewers of Television Programming, and other users of the Website (collectively, “Users”). Your communications with Users may occur on or through the Website, via software applications (“Applications”), or through Third Party Sites (e.g., Facebook, Twitter, etc.).
If you are using or opening an account for use of the Services on behalf of a company, entity or organization (each a “Subscribing Entity”), then you represent and warrant that you: (i) are an authorized representative of that Subscribing Entity with the authority to bind such entity to these Terms and (ii) agree to be bound by these Terms on behalf of such Subscribing Entity.
1.1 Consideration. You understand and agree that these Terms are entered into in consideration of your use of the Services and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
1.2 Changes to these Terms. The Services are owned and operated by Company. Company reserves the right to revise these Terms in its sole discretion at any time and without prior notice to you other than by posting the revised Terms on the Website. Any revisions to the Terms are effective upon posting. The Terms will be identified as of the most recent date of revision. You should visit this page regularly to ensure your continued acceptance of these Terms. Your continued use of the Services after any revision to these Terms constitutes your binding acceptance of the revised Terms. Notwithstanding the preceding sentences of this Section 1.2, no revisions to these Terms will apply to any dispute between you and Company that arose prior to the date of such revision.
1.3 Evolving Nature of Services. The Services are new and subject to change at any time. We are continually looking to improve the Services but if you are at any time dissatisfied with the Services, then your sole remedy is to discontinue use of the Services. However, we do want to hear from Users so do not hesitate to send us an e-mail at firstname.lastname@example.org to let us know what you think.
2. USE OF THE SERVICES
By using the Services, you affirm that you are at least 18 years of age. Additionally, the Services are not intended for children under the age of 13. If you are under the age of 13, then you must not use or access the Services.
5. SERVICE SECURITY
5.1 Personal Security. Be smart when using the Services or any Third Party Websites. You should not disclose personal information to strangers that would enable them to locate you offline. This means you should not give out your name, address, place of employment, school, etc., while communicating with others on or through the Services. If you choose to share information about your use of the Services via a Third Party Site such as Facebook, you should be mindful of who may have access to your activities via Facebook.
5.2 Service Security. You are prohibited from violating, or attempting to violate, the security of the Services. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the Services, at Company’s sole discretion. Company reserves the right to investigate any alleged or suspected violations of these Terms and, if a criminal violation is suspected, refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the Services.
6.1 Log In Credentials. In order to use certain functionalities of the Services, such as posting comments in a Forum (defined below), you will have to register for an account on the Service or log in using the credentials of an approved Third Party Site (e.g., Facebook, Google, OpenID, Twitter). You are responsible for maintaining the confidentiality of your log-in credentials in order to use the Services, and are fully responsible for all activities that occur through the use of your credentials. Each registration is for a single user only. Company does not permit you to share your user name and password with any other person nor with multiple Users. You agree to notify Company immediately of any unauthorized use of your log-in credentials or any other breach of security with respect to your account. Company will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Company of such unauthorized use or loss of your credentials.
6.2 Accuracy of Information. You agree to provide true, accurate, current, and complete information about yourself as requested in any registration forms required by Company. You also agree to update the information about yourself promptly, and as necessary, to keep it current and accurate. If messages sent to an e-mail address provided by you are returned as undeliverable, Company reserves the right to terminate or suspend your account immediately, with or without notice to you, and without any liability to you or any third party.
7. MATERIALS SUBMITTED TO THE SERVICES; LICENSE GRANT FROM YOU TO COMPANY
7.1 User Content. This section governs any material that you upload or transmit to or through the Services including, without limitation, comments, messages, photographs, sound recordings, audiovisual works or any other form of material, including, but not limited to, copyrighted materials (collectively, “User Content”). You are solely responsible for all User Content you submit to or through the Services. You agree, represent, and warrant that any User Content you upload or transmit to or through the Services is truthful, accurate, not misleading, and offered in good faith, and that you have all rights, licenses, permissions, consents, and authorizations necessary to upload or transmit the User Content to or through the Services and grant the rights to the User Content as set forth in these Terms. You must not upload or transmit any User Content to or through the Services where the rights have not been cleared for the use of such User Content on the Services.
7.2 Retention of Your Intellectual Property Rights. BY UPLOADING OR OTHERWISE PROVIDING USER CONTENT TO THE SERVICES, YOU ARE NOT SURRENDERING ANY INTELLECTUAL PROPERTY RIGHTS THAT YOU MAY HAVE IN SUCH USER CONTENT. RATHER, YOU ARE MERELY GRANTING COMPANY A LICENSE PURSUANT TO THE PROVISIONS OF THESE TERMS. YOU WILL CONTINUE TO OWN, TO THE EXTENT OF YOUR EXISTING RIGHTS, ALL OF YOUR USER CONTENT.
7.4 Waiver of Rights. By uploading User Content to the Services you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You further waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your use of the Services or any User Content (or any portions thereof) you provide on or through the Services. To the extent any moral rights in or to any User Content are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you upload to the Services. You expressly release Company and all of its agents, partners, subsidiaries, affiliates, licensees, successors, and assigns from any and all claims, demands, liabilities, or causes of action, whether now known or unknown, including, but not limited to, for defamation, copyright infringement, violation of moral rights, and invasion of the rights to privacy, publicity, or personality or any similar matter, or based upon or relating in any way to the Use of your User Content.
7.5 Requirement that You Be an Owner of or Fully Authorized to Grant the Rights to User Content. If you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to upload or transmit to or through the Services, then you must not upload the User Content to the Services.
7.6 Confirmation of Rights. Company reserves the right to demand confirmation from you in writing of all rights, licenses, permissions, consents, and authorizations obtained by you (if any) with respect to any third-party materials embodied in User Content you upload to or transmit through the Services. If you fail to provide us with such confirmation upon request, then we reserve the right to remove any or all of your User Content from the Services and to suspend or terminate your account with Company. We will have no liability to you for any actions taken by us pursuant to this Section 7.6.
7.7 Rights for Third Party Sites; Through-to-the-Audience Rights. Just to be clear, the rights granted by you in these Terms include the right of Company to Use User Content you upload or submit to the Services through the Website and Third Party Sites, and all of the rights granted herein by you are provided on a through-to-the-audience basis, meaning the owners or operators of such Third Party Sites or Applications will not have any separate liability to you or any other third party for User Content uploaded to, transmitted, made available, communicated or publicly performed or publicly displayed through the Services and made available, communicated, retransmitted or publicly performed or publicly displayed through such Third Party Sites or Applications.
7.8 Representations and Warranties with Respect to User Content. By uploading or transmitting User Content to or through the Services, you hereby represent and warrant to Company that (a) you have obtained all necessary rights, licenses, permissions, consents, and authorizations to grant the licenses and rights set forth in these Terms with respect to such User Content and (b) the Use of such User Content in a manner consistent with these Terms will not (i) infringe the rights of any third party, including copyright, trademark, patent and other intellectual property rights or other protected rights, such as the rights of privacy or publicity, or (ii) require Company or any Third Party Site on or through which the Services are made available, to pay any fees of any kind to any third party.
8.1 General. Company provides online chat rooms (“Forums”) in which Users may communicate with one another and Personalities about Television Programming and other topics of interest. Users may join existing Forums or create new Forums. Any violation by you of the following terms and conditions regarding your use of the Forums may result in the termination of your right to post messages to one or all Forums or to use the Services, in Company’s sole discretion and without any liability to you.
8.2 Safety. Please keep in mind when choosing a screen name that whenever you post a message to a Forum, your screen name will automatically appear with your posted message. You should therefore choose your screen name carefully. Company may refuse to grant you, and you may not use, a screen name (or email address) that is already being used by someone else, impersonates another person, belongs to another person, violates the intellectual property or other rights of any person (including, but not limited to, trademark rights), or is vulgar or otherwise offensive in Company’s sole discretion. Company may terminate your use of any Forum screen name at any time in its sole discretion and without any liability to you and assign such name to any other User or deny all Users the use of such screen name.
8.3 Information in Submitted Messages.
(a) Limitations on Postings. You must exercise caution, good sense, and sound judgment in submitting messages to be posted in a Forum. Think before you post anything to a Forum. Once something is posted in a Forum it may live in perpetuity online, and messages posted today could be highly embarrassing or damaging to your credibility or reputation in the future. We make no guarantees that postings you make in a Forum or on or through the Services will be removed from a Forum, the Services or any Third Party Sites, even following your deletion of a posting or the termination of your account. You are responsible for any User Content you include in a post, and assume all liability arising out of a post. You agree, represent, and warrant that any information and User Content you post in a Forum is: truthful, accurate, not misleading and offered in good faith; not invasive of another’s privacy, abusive, threatening or obscene; and not infringing upon the copyright, trademark, patent or other intellectual property rights of others.
(b) No Confidentiality. You must not post any material to a Forum that you consider to be confidential or proprietary. Any messages or User Content that you post in a Forum will be considered non-confidential and non-proprietary, and treated as such by Company, and may be used by Company and others for any purpose with or without notice to you.
8.4 License Grant for Forum Postings. You own and retain any copyright you may have in any message you post to a Forum. Nevertheless, by posting a message to a Forum, you automatically grant Company a royalty free, perpetual, irrevocable, assignable, non-exclusive license throughout the universe to Use your message (or any portion thereof, including an edited version) alone or as part of other works in any form, media, or technology whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicensees, with or without attribution to you. You further grant other Users of the Services a royalty free license to Use your messages solely for personal, non-commercial Uses without the need for attribution. You further grant Company a royalty free, perpetual, irrevocable, assignable, non-exclusive license throughout the universe to any concepts, know-how, ideas, inventions or other creative materials that may be subject to protection under the laws of the United States, including, but not limited to copyright, that you post to a Forum.
8.5 Monitoring and Removal of Forum Postings.
(a) Right of Removal. Company does not control User Content or Forum postings (together, “User Materials”) and does not have any obligation to monitor such User Materials for any purpose. Further, Company has no obligation to permit User Materials to be made available on or through the Services. Company may choose, in its sole discretion, to monitor, review, or otherwise access some or all User Materials, but by doing so Company nonetheless assumes no responsibility for the User Materials, no obligation to modify or remove any inappropriate User Materials, or to monitor, review, or otherwise access other User Materials, and Company assumes no responsibility for the conduct of the third party or user submitting or transmitting any User Materials to or though the Service. You acknowledge that Company may or may not pre-screen User Materials, and that Company and its designees shall have the right (but not the obligation), in their sole discretion, to pre-screen, refuse, or remove any User Materials that are available on or through the Services. Without limiting the foregoing, Company and its designees may, at any time and without prior notice, remove any User Materials that, in the sole judgment of Company, violate these Terms, are otherwise objectionable, or for any other reason, with or without notice and with no liability of any kind. You agree that you will evaluate, and bear all risks associated with the use of any User Materials or other content available on or through the Services, including any reliance on the accuracy, completeness, usefulness or legality of such User Materials or other content. You should exercise good judgment before downloading any User Materials as Company makes no representations or warranties with respect to any User Materials made available on or through the Services.
(b) Reporting of User Materials. If you locate any User Materials on or through the Service that you find offensive or objectionable, you may report such User Materials to Company by sending an email to email@example.com. Company reserves the sole right, but not the obligation, to remove any message that it deems inappropriate in its sole and absolute discretion and without any liability to you. If you believe any User Materials are infringing of your intellectual property rights, please report such User Materials pursuant to Section 18 of these Terms.
8.6 Forum Names. If you choose to create a new Forum on the Website, you may only do so for the purposes of communicating with other Users of the Services as authorized in these Terms and not for any other purposes, including, but not limited to, for the purposes of promoting any product, good or service. You may also not name a Forum in a manner that is false or misleading or improperly uses the protected names owned or controlled by any third party.
8.7 No Endorsement. Company does not endorse, support, represent or guarantee the truthfulness, accuracy, or reliability of any messages posted to a Forum. The opinions expressed in any Forum, including those of Personalities, are to be attributed solely to the person or entity that posted such message. Any reliance you place on material or information set forth in a posted message will be at your own risk.
9. OTHER PROHIBITED ACTIVITIES
9.1 In using the Services, you agree not to:
(a) Upload or otherwise transmit to or through the Services any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in User Materials;
(b) Upload or otherwise transmit to or through the Services, including in any Forums, any unlawful, harmful, harassing, defamatory, threatening, vulgar, sexually explicit, hateful or otherwise objectionable material of any kind, any material that can cause harm or delay to the Services or computers of any kind;
(c) “Stalk” or otherwise harass any Users in any manner;
(d) Upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation (commercial or otherwise);
(e) Create a false identify or impersonate another person or entity in any way;
(f) Restrict, discourage or inhibit any person from using the Services, disclose personal information about a third person on the Services or obtained from the Services without the consent of such person or collect information about Users;
(g) Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Services or any part thereof, or attempt to do any of the foregoing, except and solely to the extent permitted by these Terms, the authorized features of the Services, or by law, or otherwise attempt to use or access any portion of the Services other than as intended by Company;
(h) Gain unauthorized access to the Services, to other Users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Services;
(i) Use the Services in a manner that is misleading, deceptive, or fraudulent, including without limitation, engaging in “phishing” or otherwise obtaining financial or personal information about other Users in a misleading manner or for fraudulent or misleading purposes;
(j) Post, transmit or otherwise make available any virus, worm, spyware, malware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Services or communications equipment and computers connected to the Services;
(k) Remove, disable, damage, circumvent or otherwise interfere with any security-related features of the Services, features that prevent or restrict the use or copying of any part of the Services or any content on the Services, or features that enforce limitations on the use of the Services or any content on the Services;
(l) Use any scraper, spider, robot or other automated means of any kind to access the Services, except and solely to the extent permitted by these Terms and the features of the Services, deep-link to any feature or content on the Services, bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Services;
(m) Interfere with or disrupt the Services, networks or servers connected to the Services or violate the regulations, policies or procedures of such networks or servers;
(n) Post irrelevant content, repeatedly post the same or similar content or otherwise impose an unreasonable or disproportionately large load on Company’s infrastructure or the Services;
(o) Reproduce, distribute, publicly display, publicly perform, sell, trade, resell or exploit any portion of the Services, use of the Services, access to the Services or content obtained through the Services, for any purpose other than expressly permitted by these Terms, including, by way of example and not limitation, by doing or engaging in any of the following without Company’s express written consent:
(i) framing, embedding and/or passing off User Materials obtained from the Services in such a manner as to present them as originating from a source other than the Services;
(ii) copying, caching or reformatting any User Materials for commercial, profit-making or resale purposes in any manner whatsoever, whether by copying to physical or electronic media for purposes of buffering delivery or converting transmissions from the Services to alternative delivery formats;
(iii) altering, defacing, mutilating or otherwise bypassing any approved software through which the Services are made available; and
(iv) using any trademarks, service marks, design marks, logos, photographs or other content belonging to Company or obtained from the Services.
(p) Engage in any activity that could portray Company in a false or misleading light or make Company subject to liability to any third party;
(q) Violate any applicable federal, state or local laws or regulations or these Terms or engage in any activity that could be considered a criminal offense; or
(r) Assist or permit any persons in engaging in any of the activities described above.
10. DISCLAIMER OF USER MATERIALS
YOU UNDERSTAND THAT WHEN USING THE SERVICES, YOU MAY BE EXPOSED TO PRODUCTS, PHOTOGRAPHS, AUDIOVISUAL WORKS, SOUND RECORDINGS, MESSAGES, AND USER MATERIALS FROM A VARIETY OF SOURCES, AND THAT COMPANY IS NOT RESPONSIBLE FOR THE ACCURACY, INTEGRITY, QUALITY, LEGALITY, USEFULNESS, SAFETY OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO SUCH MATERIALS. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO PRODUCTS, PHOTOGRAPHS, AUDIOVISUAL WORKS, SOUND RECORDINGS, MESSAGES, AND OTHER USER MATERIALS THAT ARE INACCURATE, OFFENSIVE, INDECENT, OR OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST COMPANY WITH RESPECT THERETO. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE IN ANY WAY FOR OR IN CONNECTION WITH ANY PRODUCTS, PHOTOGRAPHS, AUDIOVISUAL WORKS, SOUND RECORDINGS, MESSAGES, AND OTHER USER MATERIAL, INCLUDING, BUT NOT LIMITED TO, FOR ANY INACCURACIES, ERRORS OR OMISSIONS IN ANY USER MATERIALS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY PRODUCTS, PHOTOGRAPHS, AUDIOVISUAL WORKS, SOUND RECORDINGS, MESSAGES, AND OTHER USER MATERIALS POSTED, E-MAILED, UPLOADED OR OTHERWISE DISPLAYED, PERFORMED OR TRANSMITTED VIA THE SERVICES. BY ACCESSING OR USING ANY PRODUCTS, PHOTOGRAPHS, AUDIOVISUAL WORKS, SOUND RECORDINGS, MESSAGES, AND OTHER USER MATERIALS TRANSMITTED ON OR THROUGH THE SERVICES, YOU WAIVE ANY AND ALL CLAIMS AGAINST COMPANY THAT YOU MAY HAVE ARISING OUT OF OR RELATING TO SUCH PRODUCTS, PHOTOGRAPHS, AUDIOVISUAL WORKS, SOUND RECORDINGS, MESSAGES, AND OTHER USER MATERIALS.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Generally. The content made available on or through the Services, including, without limitation, any text, software, graphics, photographs, sounds, music, videos and interactive features, but excluding User Materials, may be protected by copyright or other intellectual property rights and owned by Company or third party licensors of Company. No material made available on or through the Services may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without written permission of the copyright owner of such material. Modification of materials obtained from the Services, including, but not limited to, User Materials, for any other purpose, including, without limitation, any commercial purpose, is a violation of the copyrights and other proprietary rights of Company or its licensors, unless you have obtained express written authorization to the contrary. All design rights, databases and compilation and other intellectual property rights, in each case whether registered or unregistered, and related goodwill are proprietary to Company.
11.2 Trademarks. All trademarks, service marks, logos and trade names on the Services, whether registered or unregistered, are proprietary to Company or to other companies where so indicated. You may not reproduce, download or otherwise use any such trademarks, service marks, logos or trade names without the prior written consent of the appropriate owner thereof.
11.3 No Implied Rights. There are no implied licenses granted in these Terms.
12. LINKS TO THIRD PARTY SITES
12.1 As you use the Services you may notice links to Third Party Sites. These links are for convenience only. If you use these links, then you will leave the Services. Certain of these Third Party Sites may make use of Company proprietary intellectual property rights (such as copyrights, trademarks, service marks, logos and trade names) under license from Company. Company is not responsible for the availability or content of these Third Party Sites or for any viruses or other damaging elements encountered in linking to a Third Party Site, whether or not Company is affiliated with the owners of such Third Party Sites. In addition, the provisioning of these links to Third Party Sites is not an endorsement or approval by Company of the organizations sponsoring such Third Party Sites or their products or services. These Terms do not apply to Third Party Sites, and you should review applicable terms and policies, including any relevant privacy policies, associated with any Third Party Sites, applications, software or services.
12.2 YOU AGREE THAT COMPANY WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS YOU MAY HAVE ON OR THROUGH A THIRD PARTY SITE OR AS THE RESULT OF THE PRESENCE OF ANY THIRD PARTY ADVERTISING ON THE SERVICES.
You agree to indemnify, defend, and hold harmless Company and its parent, subsidiaries, affiliates, investors, sublicensees and any related companies, licensors and suppliers, and its and their respective directors, officers, employees, agents, representatives, contractors, and assigns and other Users who access or Use any User Content you upload to or make available on or through the Services, from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, outside attorneys’ fees and court costs) arising from or in any way related to: (1) your use or misuse of the Services; (2) your User Materials, including Company’s or any User’s Use of your User Materials consistent with these Terms; (3) your breach or other violation of these Terms, including any representations, warranties and covenants herein; or (4) your violation of the rights of any other person or entity, including, but not limited to, claims that any User Materials infringe or violate any third-party intellectual property rights or other proprietary rights. Notwithstanding the foregoing, Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company if Company, in its sole discretion, concludes that you are not adequately protecting Company’s interests or are incapable of protecting Company’s interests, and you agree to cooperate with Company’s defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
14.1 THE SERVICES, PRODUCTS, USER MATERIALS, AND ANY THIRD PARTY CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE ON OR THROUGH OR IN RELATION TO THE SERVICES, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
14.2 TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY, AN EMPLOYEE OR REPRESENTATIVE OF COMPANY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. COMPANY AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES OR ANY PART THEREOF, OR ANY PRODUCTS OR CONTENT OFFERED THROUGH THE SERVICES, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICES OR ANY ASSOCIATED SITES OR APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICES) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
15. LIMITATION OF LIABILITY
15.1 IN NO EVENT WILL COMPANY OR ITS OFFICERS, DIRECTORS, LICENSORS OR SUPPLIERS BE LIABLE TO ANY PARTY FOR ANY INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (1) THE USE OR ACCESS OF OR INABILITY TO USE OR ACCESS THE SERVICES; (2) ANY PRODUCTS ADVERTISED, PROMOTED OR DISPLAYED ON THE SERVICES; AND (3) CONTENT (INCLUDING USER CONTENT) MADE AVALIABLE THROUGH THE SERVICES, IN EACH INSTANCE, INCLUDING, WITHOUT LIMITATION, ANY LOST INCOME OR PROFITS, BUSINESS INTERRUPTION, OR OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF COMPANY OR ITS LICENSORS OR SUPPLIERS ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.2 IN NO EVENT SHALL COMPANY OR ITS LICENSORS OR SUPPLIERS BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES INCURRED BY YOU THAT EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID COMPANY IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
16. LIMITATIONS; BASIS OF THE BARGAIN
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND COMPANY, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY, COMPANY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT COMPANY WOULD NOT BE ABLE TO OFFER THE SERVICES TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
17. TERM AND TERMINATION
17.1 Term. These Terms, as amended, will be effective commencing with your first use or registration for the Services and will remain in full force and effect throughout your use of the Services.
17.2 Termination by Company. Company may terminate your use of the Services or any of the features or services of the Services at any time and for any reason, with or without notice, for conduct violating these Terms or upon Company’s sole determination, without liability to you. You hereby agree to Company’s broad right of termination. You agree that if your use of the Services is terminated pursuant to these Terms, you will not attempt to use the Services under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur therefor. Upon Company’s termination of your use of the Services, Company may, but shall not be required to, delete any of your User Materials available on or through the Services and terminate your access to your User Materials if those materials remain on the Services, without any liability to you.
17.3 Termination by You. You are free to terminate your use of the Services at any time. You can simply choose to stop visiting or using any aspect of the Services. If you wish to terminate your account on the Services, you may do so by sending an e-mail to firstname.lastname@example.org or using any other account termination functionality that may be offered through the Services.
18. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENTS
18.1 Company respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Services.
18.2 Company’s intellectual property policy is to (a) remove material that Company believes in good faith, including upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Services, and (b) remove User Materials posted to the Services by “repeat infringers” in appropriate circumstances. Company considers a “repeat infringer” to be any User that has uploaded User Materials to the Services and for whom Company has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such User Materials. Company has discretion, however, to terminate the account of any User after receipt of a single notification of claimed infringement or upon Company’s own determination.
18.3 Procedure for Reporting Claimed Infringement.
(a) If you believe that any content made available on or through the Services has been Used or exploited in a manner that infringes an intellectual property right you own, control or represent, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your communication must include substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
(ii) Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
(iii) Identification of the specific 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 Company to locate the material;
(iv) Information reasonably sufficient to permit Company to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
(v) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
18.4 Designated Agent Contact Information. Company’s Designated Agent for notices of claimed infringement can be contacted at:
Via E-mail: email@example.com
Via U.S. Mail:
1612 Laurel Street
San Carlos, CA 94070
Attn: Phillip Martin
18.5 Counter Notification.
(a) If you receive a notification from Company that material made available by you on or through the Services has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Company with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Company’s Designated Agent through one of the methods identified in Section 18.4, and include substantially the following information:
(i) A physical or electronic signature of the subscriber;
(ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(iii) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(iv) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Company may be found, and that the subscriber will accept service of process from the person who provided notification under Section 18.3 above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
18.6 False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Company] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Company reserves the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law.
For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act and the procedures set forth in this Section 18 should be sent to the Designated Agent at firstname.lastname@example.org or to the postal address identified above. Any other comments, compliments, complaints or suggestions about Company, the operation of the Services or any other matter should be sent to email@example.com.
19. JURISDICTIONAL ISSUES
The Site and the Services are controlled and operated by Company from its offices within the States of California. Company makes no representation that materials on the Services are appropriate or available for use in other locations. Those who choose to access or use the Services from other locations, including from outside the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Services from jurisdictions where the contents or practices of the Services are illegal, unauthorized or penalized is strictly prohibited.
20. DISPUTE RESOLUTION
20.1 Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND COMPANY AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICES. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
(a) Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Company, to you via any other method available to Company, including via e-mail. The Notice to Company should be addressed to:TheTVSpot.com, 1612 Laurel Street, San Carlos, CA 94070 (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and Company do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Company may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (the “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Arbitration Notice Address. If you are required to pay a filing fee to commence an arbitration against Company, then Company will promptly reimburse you for your confirmed payment of the filing fee upon Company’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000, in which case you are solely responsible for the payment of the filing fee.
(b) Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and Company agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(c) No Class Actions. YOU AND COMPANY AGREE THAT YOU AND COMPANY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
(d) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of California in conducting the arbitration. You acknowledge that these terms and your use of the Services evidences a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.
20.2 These Terms and your use of the Service shall be governed by the substantive laws of the State of California without reference to its choice or conflicts of law principles. Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and Company under these Terms shall be subject to the exclusive jurisdiction of the state and federal courts located in or having jurisdiction over San Mateo County, California, and you and Company hereby submit to the personal jurisdiction and venue of these courts.
20.3 Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Company seeks equitable relief of any kind. You acknowledge that, in the event of a breach of these Terms by Company or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Company, including with respect to any User Material, and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in these Terms.
20.4 Claims. You and Company agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms or the Services, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
20.5 Improperly Filed Claims. All claims you bring against Company must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Company may recover outside attorneys’ fees and costs up to $5,000, provided that Company has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
21.1 Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Company to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
21.2 Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
21.3 Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any assignment attempted to be made by you in violation of these Terms shall be void. These Terms will be binding upon and inure to the benefit of the parties hereto, and permitted successors and assigns.
21.4 No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Company as a result of these Terms or use of the Services. You further acknowledge that by submitting User Materials, no confidential, fiduciary, contractually implied or other relationship is created between you and Company other than pursuant to these Terms.
21.5 Survival. The provisions of these Terms that are intended to survive the termination of these Terms by their nature will survive the termination of these Terms, including, but not limited to, Sections 4 (Privacy), 5 (Service Security), 7 (Materials Submitted to the Services; License Grant from You to Company), 8.4 (License Grant for Forum Postings), 9 (Other Prohibited Activities), 10 (Disclaimer of User Materials), 11 (Intellectual Property Rights), 12 (Links to Third Party Sites), 13 (Indemnity), 14 (Disclaimers), 15 (Limitation of Liability), 16 (Limitations; Basis of the Bargain), 20 (Dispute Resolution), and 21 (Miscellaneous).
21.6 Headings. The heading references used in these Terms are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
21.7 Entire Agreement. This is the entire agreement between you and Company relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between you and Company with respect to said subject matter. These Terms shall not be modified except in a writing, signed by both parties, or by a change to these Terms made by Company as authorized in these Terms.
21.8 Disclosures. The services hereunder are offered by Company located at 1612 Laurel Street, San Carlos, CA 94070. You may contact us by sending correspondence to the foregoing address or by e-mailing us at firstname.lastname@example.org. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.