Flixster Terms of Service
Last updated on April 25, 2013
Please read the following terms and conditions ("Terms of Service") carefully. By using the Services or Content (both as defined below), you are agreeing to be bound by these Terms of Service which apply whether you are a registered user of the Services or a non-registered user just browsing (collectively "Users"). When accessing the Service or Content through certain Authorized Devices, you may be subject to additional terms of service for the Authorized Device.
IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES.
Flixster, Inc. ("Flixster"), and its affiliates, including Rotten Tomatoes and Warner Bros. Entertainment Inc. (collectively "we" or "us" or ?our?) provide services and an online community where Users can setup a profile with all of their movie ratings, favorites, lists and more, connect their profile with friends, and discover, purchase and view Premium Content (as defined below) through www.flixster.com, www.rottentomatoes.com, our social media pages and applications, mobile applications, other software applications and any other websites owned, operated or controlled by us (collectively the "Services").
Some areas or features of the Services may be subject to additional terms and conditions, which you should read carefully before making any use of those areas. Such additional terms will not change or replace these Terms of Service regarding use of the Services, unless otherwise expressly stated.
1. MODIFICATIONS TO SERVICES OR TERMS OF SERVICE
We reserve the right to revise these Terms of Service at any time without notice by updating this posting. Notwithstanding the foregoing, we will notify you before making changes to the arbitration provisions of these Terms of Service. Your continued use of the Services will be deemed to be your irrevocable acceptance of any revisions.
We reserve the right to restrict, suspend or terminate the Services or your access to the Services, in whole or in part, without notice, in our sole discretion. If we terminate your access to the Services based on a breach of any portion of these Terms, we reserve the right to refuse to provide any Services or other services to you in the future. If we terminate your access to the Premium Content (defined below) Services, your permission to use the Premium Content Services automatically terminates.
2. ONLINE PRIVACY NOTICE
3. YOUR REGISTRATION.
You may be required to set up a Flixster account ("Flixster Account") in order to access certain features of the Services.
If you elect to set up a Flixster Account, you will provide true, accurate and complete registration information and will maintain as current and promptly update relevant personal information provided to Flixster. You will not use false identities or impersonate any other person or use a name that you are not authorized to use. Only one (1) Flixster Account is allowed per user and is for individual use only.
You are responsible for safeguarding and maintaining the confidentiality of your Flixster Account information and agree not to disclose your password to anyone, including friends, family, and business associates. Accordingly, you shall not allow other persons access to or use of such username or password. You shall not post your username or password on any website nor transmit it through unsecured sites. If we feel your username and password are insecure or otherwise problematic, we may require you to change it and/or terminate your account. You agree that you are entirely and solely responsible for any and all activities or actions that occur under your Flixster Account, whether or not you have authorized such activities or actions. You agree to notify us immediately in the event of any unauthorized use of your Flixster Account or any other breach of security.
You agree not to assign, transfer or sublicense your rights as a user of the Services.
Failure to comply with the obligations in this Section 3 may, at our option, result in immediate suspension or termination of your right to use the Services, including Premium Content.
All users of Services must be 13 years of age or older. The Services are not directed toward children under 13 years of age, and we do not knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to us. Some of our Services, including UltraViolet-enabled Services, may require you to be over the age of 18 or the age of majority for your state; please see the terms and conditions of the relevant offer for more details. Please see Section 10 below for terms applicable to UltraViolet-enabled services.
You are responsible for your use of the Services and for any consequences thereof, including any information or materials you choose to make available, public or private communications transmitted through the Services (including posts), usernames and passwords that you provide to the Services, including those usernames and passwords provided by you for access to various third party services (e.g., social networking and other accounts that you wish to link with your account on the Services).
You will abide by the Flixster Code of Conduct (which may updated from time to time) and all applicable laws in connection with your use of the Services.
You may only use the Services for lawful purposes. You acknowledge that storing, distributing or transmitting unlawful material could expose you to criminal and/or civil liability. You may not download (other than page caching) or modify our Services or any portion of them unless we have provided you with express written consent. You may not make a derivative use of the Services or their contents for any purpose, nor may you download or copy information of Users, or otherwise engage in data mining or similar data gathering.
6. USER-SUBMITTED FEEDBACK, SUBMISSIONS, POSTINGS AND E-MAILS
Certain areas on the Services may allow you to provide us or others with photos and other images, commentaries, reviews, audio and video, Feedback (defined below), posts, public and private messages or other potential content from you (?User Materials?). All User Materials must comply with the Flixster Code of Conduct.
Specific rules or additional terms may apply to the submission of certain User Materials. These terms will be provided in connection with those portions of the Services and, while these Terms of Service will apply to all User Materials, such additional terms shall supplement the Terms of Service unless expressly provided otherwise. In any event, any User Materials you send to us will not be treated as confidential.
We are interested in hearing from you regarding your questions or comments about our Services. You may provide suggestions, comments or other feedback about our Services (collectively "Feedback") by writing to email@example.com. We regret that we may not be able to respond to Feedback.
7. OUR USE OF USER MATERIALS
While we do not claim ownership of User Materials, by providing User Materials to us or others via the Services you are automatically granting us a perpetual, irrevocable, worldwide, paid up, non-exclusive license to use the User Materials or any of its elements for any type of use forever, including promotional and advertising purposes and in any media whether now known or hereafter devised, including the creation of derivative works that may include User Materials you provide. You agree that any User Materials you provide us may be used by us or our affiliates, and you are not entitled to any payment or other compensation for such use.
You hereby confirm: (a) your User Materials will be not be subject to any obligation, of confidence or otherwise, to you or any other person; (b) your posting of the content on or through the Services does not violate the privacy rights, publicity rights, copyrights or other rights of any other person; and (c) your posting is in accordance with this Terms of Service and that we shall not be liable for any use or disclosure of such User Materials. We reserve the right (but do not assume the obligation) in our sole discretion to reject, move, edit or remove any User Materials that are contributed to the Services. You acknowledge that we do not verify, adopt, ratify, or sanction User Materials, and you agree that you must evaluate and bear all risks associated with our use of User Materials or our reliance on the accuracy, completeness, or usefulness of User Materials.
8. YOUR USE OF OUR CONTENT
Your right to make use of the Services and materials incorporated in or made available through the Services, including Premium Content, (collectively ?Content?) is subject to your compliance with these Terms of Service. Modification or use of the Content on the Services for any purpose not permitted by these Terms of Service may be a violation of intellectual property laws.
You are granted a non-exclusive, non-transferable, limited right and license to access and use the Services and Content solely for your private non-commercial viewing. No business entity (e.g., corporation, partnership, sole proprietorship) is licensed to use the Services or Content.
i. Sell, rent, lease, distribute, publicly perform or display, broadcast, sublicense or otherwise assign any right to the Content to any third party;
ii. Reproduce, republish, upload, post, transmit, further distribute, customize, modify, or create derivative works from the Content or any portion of the Content;
iii. Remove any proprietary notices or labels on the Content;
iv. Attempt to disable, bypass, modify, defeat, or otherwise circumvent any of the digital rights management or other security related tools incorporated into the Content; and/or
v. Use the Services or Content for any commercial or illegal purpose.
Any other use or exploitation of the Services, including the Premium Content, is strictly prohibited.
Depending upon your geographic location, the equipment you are using to access Services or Content, your available bandwidth and other factors, you may not have access to portions of the Services or Content.
While using the Services, you may encounter Content that may be deemed offensive, indecent, or objectionable. You agree to use the Services at your sole risk and that neither we nor Rovi shall have any liability to you for the type of Content that you may access, including without limitation Content that you may find offensive, indecent, or objectionable. Neither we nor Rovi warrant the truth or validity of the information provided via the Services.
9. PREMIUM CONTENT
Premium Content Services offer digital access to movies, documentaries, television shows, promotional videos and other video content. Premium Content Services are only available in the United States.
Premium Content may be either Paid Content or Other Premium Content (each as defined below). All Premium Content is subject to certain terms and conditions, including the following:
(1) Usage Rules.
Your use of all Premium Content is subject to the applicable Usage Rules. The Usage Rules provide information regarding your permitted use of Premium Content, including the time period during which you are authorized to view different types of Premium Content and limitations on the number and type of Authorized Devices on which each type of Premium Content may be downloaded, streamed, and/or viewed. Premium Content may contain or use technology that protects digital information from access and enforces the Usage Rules.
Certain Premium Content is made available through an arrangement with the Rovi Entertainment Store, which is owned and/or operated by a subsidiary of Rovi Corporation ("Rovi"). Premium Content made available by Rovi is the property of Rovi or its content suppliers.
(3) Availability of Downloaded or Streamed Premium Content.
Neither we nor Rovi are responsible for replacing the Premium Content that is downloaded (beyond what is provided in the Usage Rules) if you are unable to view it or if you lose the Premium Content, including if the Premium Content becomes damaged or corrupt, your Authorized Device crashes, your hard drive fails or the Premium Content does not play for any other reason. In addition, Premium Content will generally continue to be available to you for download or streaming from the Services, but may become unavailable due to potential content provider licensing restrictions, the Service no longer being available through a particular Authorized Device, and for other reasons, and neither we nor Rovi will be liable to you if Premium Content becomes unavailable for further download or streaming. You may download and store your own copy of Premium Content on an Authorized Device so that you can view that content if it becomes unavailable for further download or streaming from the Services.
(4) Accessing the Services and Authorized Devices.
Use of the Services and Premium Content may require the use of other hardware and software products, which are your responsibility. In addition, you are responsible for all costs and charges associated with connecting to the Services and accessing Paid Content, including without limitation all Internet access fees and computer equipment and any service or other fees or your bandwidth costs, above and beyond any charges payable to us for Paid Content.
In order to access such Premium Content, you must use an Authorized Device. As used herein, an "Authorized Device" means personal computer (Windows or Mac®), approved video game consoles, or an Android or Apple iOS mobile or tablet device running the Flixster mobile app and meeting minimum system requirements that we or Rovi may establish in our sole discretion from time to time, or any other device that we or Rovi may authorize in our sole discretion from time to time. Click here for more information on Authorized Devices. In the event we make such Premium Content available via mobile or tablet applications, or through applications on game consoles, televisions, set-top boxes or other devices, such Premium Content shall be governed by separate agreements, policies and rules established by the provider or entity controlling the application marketplace, relevant operating system or device. The support or availability of the Services or the Premium Content through such devices may be limited by those entities at any time.
(5) Future Changes Regarding Premium Content.
If we or Rovi change any part of the Services, which we or Rovi may do in our sole discretion, you acknowledge that you may not be able to access, view, or use the Premium Content or Authorized Devices in the same manner as prior to such changes, and you agree that neither we nor Rovi have any liability to you in such case. We and Rovi reserve the right to modify, suspend, or discontinue access to Premium Content at any time without notice to you, and neither we nor Rovi will be liable to you should we or Rovi exercise such rights. We and Rovi also reserve the right to institute a charge in the future for continued access to Premium Content, but reasonable notice shall be provided to you prior to instituting such a charge. You may download and store your own copy of Premium Content on an Authorized Device so that you can view that content without additional charge.
(6) Reservation of Rights.
Except for the rights explicitly granted to you in these Terms of Service, all right, title and interest in the Services and Premium Content are reserved and retained by us, Rovi and our collective licensors, and no right, title or interest in the Services or the Premium Content is transferred to you. While you will be the owner of digital files that you download containing the Premium Content (excluding Rental Paid Content), you do not acquire any ownership rights in the Content as a result of utilizing the Services.
B. Types of Premium Content.
Premium Content includes Paid Content and Other Premium Content.
(1) Paid Content.
Certain Premium Content is available in exchange for payment from you (the ?Paid Content?). When purchasing or renting Paid Content via the Services, our payment platform (e.g. Rovi) or another third party through which you are accessing the Service (e.g., Microsoft Corporation for the Xbox 360) will process your credit card transactions and may appear as the payee on your credit card statements. The availability and price for each piece of Paid Content is indicated on the Services. Prices are subject to change at any time, but will always be clearly marked on the purchase page for the Paid Content prior to your purchase. A valid credit card is required to pay for the Paid Content. The fee for Paid Content will be charged only when you submit the credit card information..
Your use of the Paid Content Services requires the ability to enter into agreements and/or to make purchases electronically. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by and to pay for such agreements and purchases. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on the Paid Content Service, including without limitation and to the full extent allowed by law, notices of cancellation, policies, contracts, and applications.
Your exclusive and sole remedy with respect to Paid Content for which you have paid but that you are not able to use will be either replacement of such Paid Content, or refund of the purchase price paid for such Paid Content, which will be at our and/or our payment processor?s sole discretion. Neither we, Rovi, nor our any other payment processor will replace Premium Content or issue refunds if your inability to use the Premium Content is due to your failure to meet the system requirements or if you are not using an Authorized Device, or if you have not otherwise complied with these Terms of Service.
(2) Types of Paid Content.
Any one or more of the following types of Paid Content may be available via the Paid Content Services. Not all users of the Paid Content Services will have access to all versions of the Paid Content, depending upon the user's geographic location, equipment that the user is using and other factors. Given the foregoing, certain of the terms and conditions contained herein may not be applicable to every user.
(i) Rental Paid Content.
Paid Content offered on a "rental" basis in which you must pay a set price to view that one particular piece of Rental Paid Content during a specified time period, as more fully explained in the Usage Rules is ?Rental Paid Content?. Rental Paid Content is not UltraViolet enabled.
(ii) Purchased Paid Content.
Paid Content which requires you to pay a set price to download and/or stream such Paid Content an unlimited number of times during an indefinite time period (as explained in the Usage Rules) is "Purchased Paid Content".
All Purchased Paid Content purchased on or after April 30, 2012 will be UltraViolet-enabled (the ?UltraViolet Paid Content?) and requires that you link your Flixster Account to an existing UltraViolet Account or that you create a new UltraViolet Account and link the two accounts. Please see Section 10 below for terms applicable to UltraViolet.
Purchased Paid Content purchased prior to April 30, 2012 (the ?Pre-UltraViolet Paid Content?) does not require an UltraViolet Account.
Once you pay the fee for the applicable piece of Purchased Paid Content, you will have the right to download and/or stream that piece of Purchased Paid Content. Please see the Usage Rules for more information on your download and streaming rights for both UltraViolet Paid Content and Pre-UltraViolet Paid Content.
(iii) Disc to Digital
Eligible physical Blu-rayTM and DVD discs may be converted into UltraViolet Paid Content by using the Flixster Disc to Digital service. The Disc to Digital offer is only available for Blu-ray and DVD titles that have been legitimately purchased and are presently owned by you. We reserve the right to refuse conversion of any title, or to limit or cancel your access to a previously converted title if we reasonably believe such title does not meet, or no longer meets, the requirements set forth in this paragraph.
(3) Other Premium Content.
Any one or more of the following types of Other Premium Content may be available via the Premium Content Service:
Our UltraViolet?compatible digital copy service provides a digital copy of a motion picture or television program when you purchase an eligible Blu-ray Disc or DVD that includes an offer for a digital copy of the content specified on the packaging of the Blu-ray Disc or DVD (the "Digital Copy Content"). Please see the packaging of your Blu-ray disc or DVD for the terms applicable to that offer, including any expiration date for when you may redeem your Digital Copy Content. Support for Digital Copy Content is subject to our applicable Usage Rules. Please note that not all Digital Copy Content offers are redeemable through this digital copy service.
To access and view the Digital Copy Content, you will need to input the authorization code provided in your Blu-Ray Disc or DVD packaging when prompted to do so. You will not be eligible for a refund from us for any portion of the purchase price of your Blu-ray Disc or DVD if the Digital Copy Content is unavailable for any reason.
From time to time we or Rovi may offer movies, documentaries, television shows, promotional videos and other video content on a promotional basis without charge to you. Such offers will generally be subject to terms and conditions that will be described at the time the offer is made, and your use of the Promotional Content will generally be subject to Usage Rules, the terms applicable to all Premium Content, and any additional terms, conditions and restrictions that will be described at the time you redeem the offer.
We and/or Rovi may permit you to stream or download movies, television shows or other content that you have purchased or otherwise acquired from an UltraViolet service other than Flixster (the ?Non-Flixster Ultra-Violet Content?), and the rights to which have been placed in your UltraViolet locker. Please see Section 10 below for terms applicable to UltraViolet. If we and/or Rovi do provide access to such Non-Flixster UltraViolet Content from our Services, your use of such content shall be governed by and subject to these Terms of Service. We and/or Rovi have no obligation to provide access to such Non-Flixster UltraViolet Content, and reserve the right to discontinue your access to Non-Flixster UltraViolet Content at any time without notice to you and shall not be liable to you should we and/or Rovi exercise such rights. We and/or Rovi also reserve the right to institute a charge in the future for continued access to Non-Flixster UltraViolet Content.
To access certain Premium Content (excluding Rental Paid Content) through our Services, you must register and establish an account (?UltraViolet Account?) with Digital Entertainment Content Ecosystem (DECE) LLC, the licensor and operator of UltraViolet, and then link your Flixster Account to your UltraViolet Account.
In particular, linking your UltraViolet Account is required in order to:
When you link your Flixster Account to your UltraViolet Account, and when you acquire rights to UltraViolet-enabled Premium Content through the Services, you are providing your express consent to allow us and/or Rovi to share information about UltraViolet-enabled Premium Content within the UltraViolet service, including to individuals (e.g., family members) who are ?Members? under your UltraViolet Account and to other participants in the UltraViolet service.
NEITHER WE NOR ROVI GUARANTEES OR REPRESENTS OR WARRANTS THAT YOUR ACCESS TO OR USE OF ULTRAVIOLET WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE ULTRAVIOLET SERVICE WILL NOT BE DISCONTINUED OR YOUR ACCESS TO ULTRAVIOLET WILL NOT BE TERMINATED.
11. OTHER THIRD-PARTY SITES AND SERVICES
The Services may link you to other websites, software or mobile applications. These sites, software or applications may contain information or material that some people may find inappropriate or offensive. These other sites are not under our control, and you acknowledge that (whether or not such sites are affiliated in any way with us) we are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites. The inclusion of such a link does not imply endorsement of any site by us or any association with its operators.
We cannot ensure that you will be satisfied with any products or services that you purchase from any third-party site that links to or from the Services or our software since such other sites are owned and operated by independent retailers. We do not endorse any of the merchandise, nor have we taken any steps to confirm the accuracy or reliability of any of the information contained in such third-party sites. We do not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you irrevocably waive any claim against us with respect to such sites. We strongly encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online transaction with any of these third parties.
Parts of the Services may be provided by third-parties and subject to the rules, policies and guidelines of such third party, including, but not limited to those of Google; Facebook; and Videosurf. You may also use the Services to access or purchase video content from a variety of sources. Where the content is provided by a third party source (such as iTunes®), those services are governed by their respective privacy policies and terms.
Third party applications or features (?Third Party Tools?) provided by the Services are not our responsibility. Your use of Third Party Tools is at your own risk. Our Companies make no warranties or representations, express or implied, whether by statute, common law, custom, usage or otherwise, as to Third Party Tools including, without limitation, non-infringement of third party rights, title, integration, risks of program errors, corruption, viruses, hacking, intrusions, damage to equipment, loss of data, or unavailability or interruption of the Services or operations, however caused, accuracy, availability, satisfactory quality, and merchantability or fitness for any particular purpose.
12. FLIXSTER COLLECTIONS AND FLIXSTER DESKTOP APPLICATIONS
The Flixster Desktop software enables you to download, locate, organize and view downloads of UltraViolet-enabled Premium Content and Rental Paid Content. The Flixster Desktop software is also required to use the Disc to Digital Service. If you attempt to download certain UltraViolet-enabled Premium Content from the Flixster website and have not yet installed the Flixster Desktop Application, you may be prompted to download and install the Flixster Desktop Application on your PC or Mac. Installation and use of Flixster Desktop Application is subject to the End User License Agreement, available here.
13. TRADEMARKS AND COPYRIGHTS
The Services and the Content are protected by copyrights, patents, trade secrets or other proprietary rights (?Copyrights?). Some of the characters, branding, logos or images on the Services are also protected as registered or unregistered trademarks, trade names and/or service marks owned by us or others (?Trademarks?). We respect the intellectual property rights of others and ask users of the Services to do the same. You will not infringe the Copyrights, Trademarks or intellectual property rights of us or the owners of Content. The Content, Copyrights or Trademarks may not be used in connection with any other product or service, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits us or our affiliates.
14. ABUSE OF SERVICES
You agree not to bypass, modify, defeat or tamper with or circumvent any of the functions or protections of the Services, or Content or mechanisms that protect or limit use or access to the Services or Content, including, but not limited to, any digital rights management functionality. You agree that you will not compromise security of the Services, Content and/or Flixster Accounts or tamper with system resources. Also, decompiling, reverse engineering, disassembling, or otherwise using technical means to investigate and/or replicate the functionality of the Services and/or to copy or create other products based (in whole or in part) on the Services, is prohibited. If you become involved in any violation of system security, we and Rovi reserve the right to release your details to system administrators at other sites and to law enforcement agencies in order to assist them in resolving security incidents.
We reserve the right to investigate suspected violations of these Terms of Service, including without limitation any violation arising from any submission, posting or e-mails you make or send to any portion of the Services. We may seek to gather information from the user who is suspected of violating these Terms of Service, and from any other user. We may suspend any users whose conduct or postings are under investigation and may remove such materials from its servers as it deems appropriate and without notice. If we believe, in our sole discretion, that a violation of these Terms of Service has occurred, we may edit or modify any submission, posting or e-mails, remove the material permanently, cancel postings, warn users, suspend users and passwords, terminate accounts or take other corrective action we deem appropriate. We will fully cooperate with any law enforcement authorities or court order requesting or directing Us to disclose the identity of anyone posting any e-mails, or publishing or otherwise making available any materials that are believed to violate these Terms of Service.
BY ACCEPTING THIS AGREEMENT YOU WAIVE AND AGREE TO HOLD HARMLESS FLIXSTER, WARNER BROS. ENTERTAINMENT INC. AND THEIR AFFILIATED COMPANIES (COLLECTIVELY ?OUR COMPANIES?) AND THEIR OFFICERS, EMPLOYEE AND AGENTS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF OUR COMPANIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER ONE OF OUR COMPANIES OR LAW ENFORCEMENT AUTHORITIES.
16. LOCAL REGULATIONS
The Services and our software are intended for use in the United States only. We make no representation that Content in or available through the Services is appropriate or available for use outside the United States, its territories, possessions and protectorates. If you choose to access the Services from other locations you do so on your own initiative and at your own risk.
You are responsible for complying with local laws, if and to the extent local laws are applicable. You specifically agree to comply with all applicable export control laws.
17. DISCLAIMER OF WARRANTIES
Your use of the Services (including Premium Content made available through Rovi) is at your own risk. The Services and all the materials, information, software, facilities, Services, Content and Premium Content in the Services are provided ?as is? and ?as available? without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement. NEITHER Our Companies NOR Rovi warrant that the functions contained in the Services will be available, uninterrupted or error-free, or that the Services are free of viruses or other harmful components. NEITHER Our Companies NOR Rovi warrant or make any representations regarding the use or the results of the use of the Content, software, facilities, Services, or any web sites linked to the services in terms of their correctness, accuracy, reliability, or otherwise.
You assume all risk associated with the quality, performance, installation and use of the Services including, without limitation, risks of errors, corruption, viruses, hacking, intrusions, damage to equipment, loss of data, Content or unavailability or interruption of Services or operations, however caused. If applicable law does not allow the exclusion of some or all of the above implied warranties to apply to you, the above exclusions will apply to you only to the extent permitted by applicable law.
18. LIMITATION OF LIABILITY
Our Companies and Rovi disclaim all liability whether based in contract, tort (including negligence), strict liability or otherwise, and do not accept any liability for any loss or damage (direct, indirect, punitive, actual, consequential, incidental, special, exemplary or otherwise) resulting from any use of, or inability to use, the Services or any web site, or the material, information, software, facilities, services, Content on the Services or any web site, regardless of the basis upon which liability is claimed and even if any of Our Companies or Rovi have been advised of the possibility of such loss or damage. Without limitation, you (and not any of Our Companies or Rovi) assume the entire cost of all necessary servicing, repair, or correction in the event of any such loss or damage arising. If applicable law does not allow all or any part of the above limitation of liability to apply to you, the limitations will apply to you only to the extent permitted by applicable law.
Neither Our Companies nor Rovi shall be liable for any use or misuse of the software or any Services using software. You acknowledge software is being made available in reliance on the exclusions and limitations of liability and disclaimers of warranty set forth herein and that the same form an essential basis of the bargain between the parties. In no event shall Our Companies? or Rovi?s liability to you, whether arising in contract, tort, strict liability or otherwise, exceed the total amounts paid by you to us during the six (6) months immediately prior to the time such claim arose.
The material, information and opinions included and/or expressed in or on the services are not necessarily those of Our Companies, Rovi, or other Content providers. We may remove or modify any Content, including Premium Content, without notice or liability at any time in our sole discretion.
Neither We nor Rovi shall have any obligation to monitor or review communications of users of the software or the Services, and the content of such communications is not our or Rovi?s responsibility. Any use of the features of the software or the Services which allow users to communicate (the ?communication features?) will be at your own risk and will be subject to the disclaimers and limitations on liability set out above.
You agree to indemnify and hold harmless Our Companies, Rovi and our respective officers, directors, employees, agents, and distributors and affiliates from and against any and all claims, demands, liabilities, costs or expenses, including reasonable attorney?s fees and expert witness fees, resulting from your breach of any of the foregoing provisions, representations or warranties, and/or from your placement or transmission of any content onto our servers, and/or from any and all use of the Services or your account.
20. JURISDICTIONAL ISSUES
The Services and Content are presented solely for the purpose of providing entertainment and information and promoting programs, films, music, and other products available in the United States, its territories, possessions, and protectorates. These Terms of Service shall be governed by, construed and enforced in accordance with the laws of the State of California.
21. DISPUTES / ARBITRATION
If a dispute arises between you and us, our preference is to resolve the matter quickly and in the most cost effective manner possible. Before resorting to the methods described below for settling a dispute, we ask that you provide us with notice of the dispute via email to firstname.lastname@example.org. Upon receipt, we shall have no less than ten (10) business days to attempt to resolve the dispute with you before the parties resort to the other alternatives described in this Section 22.
Any dispute of any kind between you and any of our Companies arising under these Terms of Service shall be resolved by binding arbitration in the county in which you reside. Both parties reserve the right to seek an injunction or temporary restraining order from a Federal or State court in the United States. However, after such request for relief has been heard by such court, the remainder of the dispute will be resolved by binding arbitration as otherwise set forth herein. We reserve the right to demand any remedy for violations of these Terms of Service and/or any other rules and regulations set forth on the Services, including without limitation the right to block access from a particular Internet address.
Any arbitrator proceeding over a dispute arising under these Terms of Service shall be a retired judge or justice of any state or federal court with substantial experience in the subject matter relevant to the matter in dispute and shall follow California law in adjudicating the dispute. The parties agree that an arbitrator proceeding over a dispute should seek, whenever practicable, to resolve threshold legal issues by way of motions filed by the parties. The parties also agree that they will follow the JAMS rules in arbitrating their dispute, except to the extent that the JAMS rules are inconsistent with this Agreement or the class action waiver described below.
If the claim you wish to assert against us is less than $10,000, then, at your election, the arbitration may proceed in-person, by telephone, or by written briefs. At your election, you also may bypass arbitration and proceed to assert your claim in small claims court. If either party files a claim in state or federal court that is required by this Agreement to have been brought to arbitration, then the other party shall be entitled to his/her/its reasonable attorneys' fees incurred in successfully filing a motion to compel the claim to arbitration.
22. CLASS ACTION WAIVER
The parties agree that they will resolve their disputes on an individual basis. Any claims brought under this agreement must be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. This agreement also prevents any party from participating in a class action (existing or future) that was brought by any other party. Instead, the parties agree to resolve their disputes under this agreement on an individual basis.
If any provision of these Terms of Service shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable for this agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between the parties relating to the matters contained herein and shall not be changed except by a signed writing by an officer of Flixster.
24. CLAIMS OF INFRINGEMENT
If you believe that any content appearing on the Services infringes your copyright rights, we want to hear from you. Please forward the following information in writing to the Copyright Agent at the address listed below:
(a) your name, address, telephone number, and e-mail address;
(b) a description of the copyrighted work that you claim has been infringed;
(c) a description of each place where alleged infringing material is located;
(d) a statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
(e) your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
(f) a statement by you made under penalty of perjury, that the information in your notice is accurate, that you are the copyright owner or authorized to act on the copyright owner?s behalf.
208 Utah St 4th Floor
San Francisco, CA 94103
We reserve any and all exemptions from liability that may be available under the copyright or other applicable law.
Headings and captions are used herein for convenience only and shall not be used to interpret these Terms of Service.
As used herein, ?including? means ?including, without limitation.?
26. CONTACT INFORMATION
You may contact us at Flixster, 208 Utah St., 4th Floor, San Francisco, CA 94103. Please forward any comments or complaints about the Services to email@example.com. Please forward any questions regarding privacy to firstname.lastname@example.org.