TERMS AND CONDITIONS
Welcome to I’d Watch That, a service provided by Big Picture, Inc. (“we” “our” or “us”). These terms and conditions (“Terms”) govern your use of our website located at idwt.com (the “Site”), and all related players, widgets, tools, applications, data, software, and other services provided by us (the “Services”).
Acceptance of Terms
By using the Sites and/or the Services, you are representing you are 18 years or older and are legally capable to enter into contracts. If you are under 18, you may use the Sites and/or the Services only with the involvement of a parent or guardian. We will not be liable for any damages that may result from misrepresentation of age by a user of our Sites and/or Services.
Description of Our Site and Services
I’d Watch That is a video hosting service whereby users can access on a streaming only basis Content created by registered users (hereinafter “Video Uploaders”). Video Uploaders may submit, upload and post audio, video, text, photos, pictures, graphics, comments, and other content, data or information (hereinafter “Content”).
You are not required to register to use and access the Site and Services. However, in order to use certain features of the Site and Services, such as uploading content and/or voting, you will be required to register and create a user profile or account (an “Account”).
You are solely responsible for maintaining the confidentiality and security of your username and password, and you will remain responsible for all use of your username and password, and all activity emanating from your account, whether or not such activity was authorized by you. If your username or password is lost or stolen, or if you believe that your account has been accessed by unauthorized third parties, you are advised to notify us in writing via email to email@example.com, and should change your password at the earliest possible opportunity.
We reserve the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your account if activities occur on that account which, in our sole discretion, would or might constitute a violation of these Terms, or an infringement or violation of the rights of any third party, or of any applicable laws or regulations.
You may terminate your account at any time as described in the Termination section below. Furthermore, we reserve the right to terminate or restrict your use of the Site and/or Services, without notice, for any or no reason whatsoever.
All text, designs, graphics, logos, page headers, button icons, scripts, information, opinions, service names, service marks, domain names, technical documentation, product information, visual interfaces, images, photographs, trademarks, sounds, music, and other videos, applications, software and artwork (excluding Content/Your Content) (collectively, “IP”), including but not limited to the design, structure, selection, coordination, expression, “look and feel,” and arrangement thereof, contained on the Site and/or Services is owned by us, controlled by us, or licensed to us, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws. All other intellectual property not owned by us that appears on the Site and/or Services is the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. We retain ownership of all right, title and interest in the Site and Services and all IP, including without limitation all features available on or through the Site and Services.
Except as expressly permitted in these Terms, YOU MAY NOT copy, use, republish, download, upload, post, publically display, transmit, stream, encode, translate, reproduce, create derivative works of, or distribute in any way, the Site or Services, the IP, the Content (except Your Content) or any portion thereof, in any manner without our prior express written permission. Nothing on the Site or Services should be construed as granting, by implication, or otherwise, any license or right to use the Site, Services, IP or any Content (except Your Content) displayed on or available through the Site or Services, without the prior written permission of us and/or the Content owner. Any unauthorized attempt to copy or modify the IP or Content, or to circumvent or defeat any of the security features design to protect the IP or Content, is strictly prohibited, and we enforce our intellectual property rights to the fullest extent permitted by law. Nothing herein is intended to prevent you from linking to and/or promoting content on the Site via normal social media channels.
Your Use of the Site and Services
Subject to your strict compliance with these Terms,we grant you a limited, personal, non-exclusive, revocable, non-assignable and non-transferable right and license to make personal, non-commercial use of the Site and Services and to receive all IP and Content available on the Site and/or Services. Any software application that is used to access the Site and/or Services is licensed, not sold, to you including all intellectual property rights related to the software. You acknowledge and agree that you may use and access the Site and Services and the IP and Content (except Your Content) only as expressly permitted herein. Nothing in these terms should be construed as granting you any ownership rights in the Site or Services, the IP or the Content (except Your Content) or any portion thereof.
In addition, if you create an Account, and subject to your strict compliance with these Terms, we grant you a limited, personal, non-exclusive, revocable, non-assignable and non-transferable right and license to:
(a) submit, upload or post Content to the Site and/or Services strictly as permitted in accordance with these Terms and any other applicable terms posted on the Site and/or Services or otherwise made available to you from time to time;
(b) participate in the community areas, vote, and communicate with other members of the I’d Watch That community strictly in accordance with these Terms; and
(c) use and access our Services strictly as permitted in accordance with these Terms and any other terms applicable to those Services from time to time.
The above license is conditional upon your strict compliance with these Terms, including, without limitation, the following:
(a) You must not copy, rip or capture, or attempt to copy, rip or capture any IP or any Content from the Site or Services.
(b) You must not adapt, copy, republish, make available or otherwise communicate to the public, display, perform, transfer, share, distribute or otherwise use or exploit any IP or Content on or from the Site or Services, except (i) where such Content is Your Content, or (ii) as permitted under these Terms, and within the parameters set by the Site and/or Services.
(c) You must not use any IP or Content (other than Your Content) in any way that is designed to create a separate content service or that replicates any part of the Site or Services offering.
(d) You must not employ scraping or similar techniques to aggregate, repurpose, republish or otherwise make use of any IP or Content.
(e) You must not employ any techniques or make use of any services, automated or otherwise, designed to misrepresent the popularity of Your Content on the Site and/or Services, or to misrepresent your activity on the Site and/or Services, including without limitation by the use of bots, botnets, scripts, apps, plugins, extensions or other automated means to register accounts, log in, add votes to Your Content, play Content, send messages, post comments, or otherwise to act on your behalf, particularly where such activity occurs in a multiple or repetitive fashion. You must not offer or promote the availability of any such techniques or services to any other users of the Site and/or Services.
(f) You must not alter or remove, attempt to alter or remove, any trademark, copyright or other proprietary or legal notices contained in, or appearing on, the Site or Services or any IP or Content appearing on the Site or Services (other than Your Content).
(g) You must not, and must not permit any third party to, copy or adapt the object code of the Site or Services, or reverse engineer, reverse assemble, decompile, modify or attempt to discover any source or object code of any part of the Site or Services, or circumvent or attempt to circumvent or copy any copy protection mechanism or access any rights management information pertaining to any IP or Content other than Your Content.
(h) You must not use the Site or Services to upload, post, store, host, transmit, display, copy, distribute, promote, make available or otherwise communicate to the public:
a. any Content that is offensive, abusive, libelous, defamatory, obscene, racist, sexually explicit, ethnically or culturally offensive, indecent, that promotes violence, terrorism, or illegal acts, incites hatred on grounds of race, gender, religion or sexual orientation, or is otherwise objectionable in our reasonable discretion;
b. any information, Content or other material that violates, plagiarizes, misappropriates or infringes the rights of third parties including, without limitation, copyright, trademark rights, rights of privacy or publicity, confidential information or any other right;
c. any Content that violates, breaches or is contrary to any law, rule, regulation, court order or is otherwise is illegal or unlawful in our reasonable opinion;
d. any material of any kind that contains any virus, Trojan horse, spyware, adware, malware, bot, time bomb, worm, or other harmful or malicious component, which or might overburden, impair or disrupt the Site, Services or servers or networks forming part of, or connected to, the Site or Services, or which does or might restrict or inhibit any other user’s use and enjoyment of the Site or Services; or
e. any unsolicited or unauthorized advertising, promotional messages, spam or any other form of solicitation.
(i) You must not commit or engage in, or encourage, induce, solicit or promote, any conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any law or regulation.
(j) You must not rent, sell or lease access to the Site or Services, or any IP or Content on the Site or Services.
(k) You must not deliberately impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity, for example, by registering an account in the name of another person or company, or sending messages or making comments using the name of another person.
(l) You must not stalk, exploit, threaten, abuse or otherwise harass another person, including but not limited to any user, or any of our employees.
(m) You must not use or attempt to use another person's account, password, or other information, unless you have express permission from that other person.
(n) You must not sell or transfer, or offer to sell or transfer, any Account to any third party without our prior written approval.
(o) You must not collect or attempt to collect personal data, or any other kind of information about other users, including without limitation, through spidering or any form of scraping.
(p) You must not violate, circumvent or attempt to violate or circumvent any data security measures employed by us or any Content owner; access or attempt to access data or materials which are not intended for your use; log into, or attempt to log into, a server or account which you are not authorized to access; attempt to scan or test the vulnerability of our servers, system or network or attempt to breach our data security or authentication procedures; attempt to interfere with the Site or Services by any means including, without limitation, hacking our servers or systems, submitting a virus, overloading, mail-bombing or crashing. Without limitation to any of our other rights or remedies under these Terms, we reserve the right to investigate any situation that appears to involve any of the above, and may report such matters to, and co-operate with, appropriate law enforcement authorities in prosecuting any users who have participated in any such violations.
You agree to comply with the above conditions, and acknowledge and agree that we have the right, in its sole discretion, to terminate your Account or take such other action as we see fit if you breach any of the above conditions or any of the other terms of these Terms. This may include taking court action and/or reporting offending users to the relevant authorities.
Any and all audio, video, text, photos, pictures, graphics, comments, and other content, data or information that you upload, store, transmit, submit, exchange or make available to or via the Site or Services (“Your Content”) is generated, owned and controlled solely by you, and not by us. We do not claim any ownership rights in Your Content, and you hereby expressly acknowledge and agree that Your Content remains your sole responsibility and liability.
Without prejudice to the conditions set forth in these Terms, you must not upload, store, host, distribute, send, transmit, display, perform, make available or otherwise communicate to the public any Content to which you do not hold the necessary rights. In particular, any unauthorized use of copyright protected material within Your Content (including by way of reproduction, distribution, modification, adaptation, public display, public performance, preparation of derivative works, making available or otherwise communicating to the public via the application) without full ownership and/or control, or written and valid permission to do so, may constitute an infringement of third party rights and is strictly prohibited. Any such infringements will result in termination of your access to the Site and Services as described in these Terms, and may also result in civil litigation or criminal prosecution by or on behalf of the relevant rights holder.
We may, from time to time, invite or provide you with means to provide feedback regarding the Site and/or Services, and in such circumstances, any feedback you provide will be deemed non-confidential and we shall have the right, but not the obligation, to use such feedback on an unrestricted basis.
Grant of License
By uploading or posting Your Content to the Platform, you initiate an automated process to transcode any audio Content and direct us to store Your Content on our servers, from where you may control and authorize the use, reproduction, transmission, distribution, public display, public performance, making available and other communication to the public of Your Content on the Site and/or Services. To the extent it is necessary in order for us to provide you with any of the aforementioned hosting services, to undertake any of the tasks set forth in these Terms and/or to enable your use of the Site and/or Services, and in consideration of the opportunity to have Your Content reach others and the promotional value received therefrom, you hereby grant such licenses to us on a limited, worldwide, non-exclusive, royalty-free and fully paid basis.
By uploading Your Content to the Platform, you also grant a limited, worldwide, non-exclusive, royalty-free, fully paid up, license to other users of the Site and/or Services, and to operators and users of any other websites, apps and/or platforms to which Your Content has been shared or embedded using the Services (“Linked Services”), to use, copy, repost, transmit or otherwise distribute, publicly display, publicly perform, adapt, prepare derivative works of, compile, make available and otherwise communicate to the public, Your Content utilizing the features of the Site and/or Services from time to time; provided in no event may such operators or users acquire any ownership or other rights in Your Content.
The licenses granted hereunder are granted separately with respect to each item of Your Content that you upload to the Site and/or Services. Licenses with respect to Your Content, and any images or text within your Account, will, subject to the following paragraph, terminate automatically when you remove such content from your Account. Licenses with respect to comments or other contributions that you make on the Site and/or Services will be perpetual and irrevocable, and will continue notwithstanding any termination of your Account.
However, notwithstanding the foregoing, you hereby acknowledge and agree that once Your Content is distributed to a Linked Service, we are not obligated to ensure the deletion of Your Content from any servers or systems operated by the operators of any Linked Service, or to require that any user of the Platform or any Linked Service deletes any item of Your Content.
Any Content other than Your Content is the property of the relevant user who uploaded it, is or may be subject to copyright, trademark rights or other intellectual property or proprietary rights. Such Content may not be downloaded, reproduced, distributed, transmitted, re-uploaded, republished, displayed, sold, licensed, made available or otherwise communicated to the public or exploited for any purposes except via the features of the Site and/or Services from time to time or with the express written consent of the user who uploaded it. When you vote, comment or share another user’s Content, you acquire no ownership rights whatsoever in that Content. Subject to the rights expressly granted in this section, all rights in Content are reserved to the relevant user who uploaded it.
The Site and/or Services is a talent discovery and development platform through which users may upload Sizzles (video pitches between 90 and 120 seconds in length that show the high-level concept and look and feel of a proposed episodic TV show), which may then be considered and/or reviewed by registered users for development opportunities. Videos or other Content uploaded to the Site or Service by users (including you) may be reviewed by our registered users and ranked using our proprietary process (“Competitions”).
If you upload a Sizzle to the Site, you may be automatically entered into one or more Competitions at any time.
You agree that once you are entered into a Competition, we will have the exclusive option, exercisable by notice (via email) to you within 90 days after the end of any Competition in which you are included, to (i) produce or co-produce with you a so-called “Pilot” based on the Sizzle, which we will finance (with a budget of $25,000) and which we will exclusively own (a “Pilot”), and (ii) shop the Pilot and/or the Sizzle to third parties. If we exercise our option, our exclusive rights will continue for 12 months after we send such notice or after you deliver the Pilot, whichever comes later.
If we successfully secure a third-party agreement, you will (among other terms to be negotiated in good faith consistent with industry norms) receive customary credit, a per-episode royalty, and a percentage of net profits. You agree to enter into any reasonably requested written agreement(s) consistent with these Terms.
The algorithms used to select winners of the Competition are proprietary to us and you understand and agree that no guarantees have been made or will be made as to the probabilities of your winning any prize or development deal.
Copyright Infringement and DMCA Takedown
If you discover any Content on the Site or Services that you believe infringes your copyright, please provide written notification to us at firstname.lastname@example.org which includes the following information: (1) a statement that you have identified the Content on the Site or Services that infringes your copyright or the copyright of a third party on whose behalf you are entitled to act; (2) a description of the copyrighted work(s) that you claim have been infringed, (3) a description of the Content that you claim is infringing and a description of where such Content can be located on the Site or Services, (4) your full name, address and telephone number, a valid email address at which you can be contacted, and your user name, if any, (5) a statement by you that you have a good faith belief that the disputed use of the material is not authorized by the copyright owner, its agent, or the law, and (6) a statement by you that the information in your notice is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed. In addition, if you wish for your notice to be considered as a notice pursuant to the United States Digital Millennium Copyright Act 17 U.S.C. §512(c), please also include the following: (1) with respect to your statement that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed, confirmation that such statement is made under penalty of perjury; and (2) your electronic or physical signature (which may be a scanned copy).
Upon notification, we will remove or disable access to the infringing material and notify the content provider that it has removed or disabled access to the material.
If the content provider believes in good faith that the material that was removed is either not infringing, or that it has the right to post and use such material from the copyright owner or pursuant to the law, the user must send a counter-notification containing the following information to email address listed below:
(i) A physical or electronic signature of the content provider;
(ii) Identification of the material that has been removed or to which access to has been disabled and the location at which the material appeared before it was removed or disabled;
(iii) A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and
(iv) The content provider’s name, address, telephone number, and, if available, e-mail address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the user’s address is located, or if the user’s address is located outside the United States, for any judicial district in which we are located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If we receive a counter-notification, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, the removed material may be replaced or access to it restored in 14 business days or more after receipt of the counter-notice, solely at our discretion.
It is our policy to terminate repeat infringement offenders’ access to the Site and Services, and we reserve the right to do so.
Your notice should be sent to us by email to email@example.com.
The foregoing process applies to copyright only. If you discover any Content that you believe to be in violation of your trademark rights, please report this to us by email at firstname.lastname@example.org.
Blocking and Removal of Content
Notwithstanding the fact that we have no legal obligation to monitor the Content on the Site and Services, we reserve the right to block, remove or delete any Content at any time at its sole discretion, and to limit or restrict access to any Content, for any reason and without liability, including without limitation, if we have reason to believe that such Content does or might infringe the rights of any third party, has been uploaded or posted in breach of these Terms or applicable law, or is otherwise unacceptable to us.
Please also note that individual users have control over the Content that they upload to their Account from time to time, and may remove any or all Content without notice. You have no right of continued access to any particular item of Content and we shall have no liability in the event that you are unable to access an item of Content due to its removal from the Site and/or Services, whether by us or the relevant user.
Third Party Websites, Applications and Services
The Site and/or Services may provide you with access to third party websites, databases, networks, servers, information, software, programs, systems, directories, applications, or products or services (hereinafter “External Services”).
We do not have or maintain any control over External Services, and are not and cannot be responsible for their content, operation or use. By linking or otherwise displaying information from or providing access to any External Services, we do not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of content, information or services provided by such External Services.
You are solely responsible for taking the precautions necessary to protect yourself from fraud when using External Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any External Services. We disclaim any and all responsibility or liability for any harm resulting from your use of External Services, and you hereby irrevocably waive any claim against us with respect to the content or operation of any External Services.
Unless you have been entered into and/or have won a Competition, you may terminate these Terms at any time by giving thirty (30) days written notice to us via email to email@example.com confirming such termination, by removing all of Your Content from your Account, by deleting your Account and thereafter by ceasing to use the Site and/or the Services. Simply deleting our application from your mobile device will not effectively terminate your Account.
We may suspend your access to the Site and/or Services and/or terminate these Terms at any time if (i) you are deemed to be a repeat copyright infringer as described above; (ii) you are in breach of any of the material provision of these Terms; (iii) we elect at our discretion to cease providing access to the Site and/or Services in the jurisdiction where you reside or from where you are attempting to access the Site and/or Services; or (iv) in other reasonable circumstances as determined by us at our discretion (e.g., if you are deemed to have ‘gamed’ the Competition process, etc.)
Once your Account has been terminated, any and all Content residing in your Account, or pertaining to activity from your Account (for example, data relating to the distribution or consumption of your sounds), may be irretrievably deleted by us, except to the extent that we are obliged or permitted to retain such Content, data or information for a certain period of time in accordance with applicable laws and regulations and/or to protect our legitimate business interests. You are advised to save or back up any material that you have uploaded to your Account before terminating your account, as we assume no liability for any material that is irretrievably deleted following any termination of your Account.
The provisions of these Terms that are intended by their nature to survive the termination or cancellation of these Terms will survive the termination of these Terms.
Disclaimers of Warranties and Limitations on Liability
OUR SITE AND SERVICES, INCLUDING THE WEBSITE, APPLICATION AND USER INTERFACES, AND ALL CONTENT AND SOFTWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE SITE AND/OR SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SITE AND/OR SERVICES, THE WEBSITE, APPLICATION AND USER INTERFACES, AND ALL CONTENT AND SOFTWARE ASSOCIATED THEREWITH. WE DO NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF SITE AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT WE MAY ELIMINATE OR OTHERWISE MODIFY ANY OR ALL ASPECTS OF THE SITE AND/OR SERVICES, INCLUDING FEATURES, WITHOUT COMPENSATION OR NOTICE TO YOU.
Without limiting the foregoing, we and our licensors assume no liability or responsibility for any of the following: (i) errors or omissions in the Content delivered by the Site and/or Services; (ii) recommendations or advice of our customer service representatives; (iii) any failure or interruption in the availability of the Site and/or Services, (iv) delivery and or display of any Content contained on the Site and/or Services; and (v) any losses or damages arising from the use of the Content provided on the Site and/or Services, including any losses or damages arising from downloading of related software, downloading and/or use of any other software, offered by us, or any conduct by users of the Site and/or Services.
TO THE EXTENT ALLOWABLE BY LAW, WE AND OUR LICENSORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, FOR EXAMPLE, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
In addition, we do not represent or warrant that the information accessible via the Site and/or the Services is accurate, complete or current. We do not make any representations with respect to the Content contained in the videos uploaded to the Site and/or Services or the descriptions of such Content. We do not represent or guarantee that your use of the Site and/or Services will be free from interruption, loss, corruption, attack, viruses, interference, hacking, or other security intrusion and we disclaim any liability with respect thereto. No oral or written information or advice given by us or our authorized representative shall create a warranty or otherwise constitute a representation binding upon us or our affiliated parties.
IN NO EVENT SHALL OUR, OR OUR SUBSIDIARIES OR ANY OF OUR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR LICENSORS BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER RESULTING FROM:
(a) LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF DAMAGE, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE AND/OR SERVICES, AND ALL CONTENTS AND SOFTWARE ASSOCIATED THEREWITH, OR OTHERWISE RELATED TO THE SITE AND/OR SERVICES, INCLUDING ANY FEATURES OR FUNCTIONALITIES ASSOCIATED THEREWITH.
(b) YOUR INABILITY TO ACCESS OR USE THE SITE AND/OR SERVICES OR ANY PART THEREOF OR TO ACCESS ANY CONTENT VIA THE SITE AND/OR SERVICES.
(c) ANY CHANGES THAT WE MAY MAKE TO THE SITE AND/OR SERVICES OR ANY PART THEREOF, OR ANY TEMPORARY OR PERMENANT SUSPENSION OR CESSATION OF ACCESS TO THE SITE AND/OR SERVICES OR ANY CONTENT IN OR FROM ANY OR ALL TERRITORIES.
(d) ANY ACTION TAKEN AGAINST YOU BY THIRD PARTY RIGHTSHOLDERS WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF SUCH THIRD PARTY’S RIGHTS RELATING TO YOUR CONTENT OR YOUR USE OF THE SITE AND/OR SERVICES, OR ANY ACTION TAKEN AS PART OF AN INVESTIGATION BY US OR RELEVANT LAW ENFORCEMENT AUTHORITY REGARDING YOUR USE OF THE SITE AND/OR SERVICES.
(e) ANY ERRORS OR OMISSIONS IN THE SITE AND/OR SERVICES’ TECHNICAL OPERATION OR FROM ANY INACCURACY OR DEFECT IN ANY CONTENT OR ANY INFORMATION RELATING TO CONTENT.
IN NO EVENT SHALL WE, OUR SUBSIDIARIES OR ANY OF OUR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR LICENSORS BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR:
(a) ANY LOSS OR DAMAGE TO ANY COMPUTER HARDWARE OR SOFTWARE, ANY LOSS OF DATA (INCLUDING YOUR CONTENT), OR ANY LOSS OR DAMAGE FROM ANY SECURITY BREACH; AND/OR
(b) ANY LOSS OF PROFITS, OR ANY LOSS YOU SUFFER WHICH IS NOT A FORESEEABLE CONSEQUENCE OF US BREACHING THESE TERMS. LOSSES ARE FORESEEABLE WHERE THEY COULD BE CONTEMPLATED BY YOU AND US AT THE TIME YOU AGREE TO THESE TERMS, AND THEREFORE DO NOT INCLUDE ANY INDIRECT LOSSES, SUCH AS LOSS OF OPPORTUNITY.
Representations and Warranties
You hereby represent and warrant to us as follows:
(a) Your Content, and each and every part thereof, is an original work by you, or you have obtained all rights, licenses consents and permissions necessary in order to use, and (if and where relevant) to authorize us to use, Your Content pursuant to these Terms, including, without limitation, the right to upload, reproduce, store, transmit, distribute, share, publicly display, publicly perform, make available and otherwise communicate to the public Your Content, and each and every part thereof, on, through or via the Site and/or Services.
(b) Your Content and the availability thereof on the Site and/or Services does not and will not infringe or violate the rights of any third party, including, without limitation, any intellectual property rights, performers’ rights, rights of privacy or publicity, or rights in confidential information.
(c) You have obtained any and all necessary consents, permissions and/or releases from any and all persons appearing in Your Content in order to include their name, voice, performance or likeness in Your Content and to publish the same on the Site and/or Services.
(d) Your Content, including any comments that you may post on the Site and/or Services, is not and will not be unlawful, offensive, abusive, libelous, defamatory, obscene, racist, sexually explicit, ethnically or culturally offensive, indecent, will not promote violence, terrorism, or illegal acts, or incite hatred on grounds of race, gender, religion or sexual orientation.
(e) Your Content does not and will not create any liability on the part of us, our subsidiaries, affiliates, successors, and assigns, and their respective employees, agents, directors, officers and/or shareholders.
You hereby agree to indemnify, defend and hold harmless us, our successors, assigns, affiliates, agents, directors, officers, employees and shareholders from and against any and all claims, obligations, damages, losses, expenses, and costs, including reasonable attorneys’ fees and court costs, resulting from: (1) any violation by you of these Terms; (2) any claim of infringement of copyright or other intellectual property rights or invasion of privacy arising from the hosting of Your Content on the Site and/or Services, and/or your making available thereof to other users of the Site and/or Services and/or the actual use of Your Content by other users in accordance with these Terms; and (3) any activity related to your Account, be it by you or by any other person accessing your account with or without your consent unless such activity was caused by the act or default of us.
Assignment to Third Parties
We may assign, license, or sub-license its rights and (where permissible by law) its obligations under these Terms, in whole or in part, to any third party at any time without notice, including without limitation, to any person or entity acquiring all or substantially all of our assets or business. You may not assign these Terms or the rights and duties hereunder, in whole or in part, to any third party without the prior written consent of us.
Third Party Rights
These Terms are not intended to give rights to anyone except you and us. This does not affect our right to transfer our rights or obligations to a third party as described herein.
Should one or more provisions of these Terms be found to be unlawful, void or unenforceable, such provision(s) shall be deemed severable and will not affect the validity and/or enforceability of the remaining provisions of the Terms, which will remain in full force and effect.
You and us agree that any dispute, claim or controversy arising out of or relating in any way to the Site and/or Services, and these Terms, shall be determined by binding arbitration instead of in courts of general jurisdiction. 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. You agree that, by agreeing to these Terms, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and us are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and the termination of your use of the Site and/or Services.
If you elect to seek arbitration, you must first send to us, by certified mail, a written Notice of your claim (“Notice”). If we elect to seek arbitration, it will send a written Notice to the email address used for your Account. A Notice, whether sent by you or by us, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If we and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or us may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration at www.adr.org. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to us. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Unless we and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including the AAA rules regarding the selection of an arbitrator). If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of our last written settlement offer made before an arbitrator was selected (or if we did not make a settlement offer before an arbitrator was selected), then we will pay you the amount of the award or US$1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
These Terms shall be governed by and construed in accordance with the laws of the State of California, U.S.A. without regard to conflict of laws provisions. The exclusive jurisdiction and venue for any action, suit or proceeding based upon any matter arising hereunder or relating hereto shall be in the state or federal courts located in the State of California and San Mateo County. If any provision or provisions of these terms shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and shall remain in full force and effect.
Changes to Terms
Effective Date: August 1, 2015