Flixster Terms of Service
Last updated on October 10, 2011
Summary of key updates to the Terms of Service:
- Consolidates the Flixster Terms of Service with the terms applicable to our Flixster Collections software.
- Adds terms and conditions and usage rules applicable to your use of "Premium Content," including UltraViolet Digital Copies, purchased or otherwise obtained by you from Flixster or the Flixster Collections software.
- Adds a new dispute resolution procedure, including a mandatory arbitration clause.
- Adds a provision stating that any claims between the parties will be brought on an individual basis and not as a class action.
Previous versions of our Terms of Service:
Welcome to the Internet sites and services of Flixster!
Please read the following terms and conditions ("Terms of Service") carefully. Flixster, Inc. ("Flixster," together with its affiliates, including Rotten Tomatoes and the Warner Bros. Entertainment Inc., collectively "we" or "us" or "our") provides an online community for movie fans where users can setup a profile with all of their movie ratings, favorites, lists and more, connect their profile with friends, meet new people with similar taste and purchase Premium Content (as defined below) through our websites located at www.flixster.com, www.rottentomatoes.com and any other websites owned, operated or controlled by us, as well as our social media networking webpages, mobile applications and the Flixster Collections software (collectively the "Services").
These Terms of Service govern your access to and use of the Services, including any content, information or products therein. This is a legal agreement between you and us and applies to you whether you are a registered user of the Services ("Member") or a non-registered user just browsing (collectively "Users").
YOU UNDERSTAND THAT BY USING THE SERVICES (INCLUDING ANY CONTENT PROVIDED THEREIN), OR YOUR ACCOUNT, YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES.
The Flixster Collections End User License Agreement (the "EULA"), incorporated herein by this reference, and these Terms of Service are legally binding terms that govern your use of the Services and your access to and use of any content or information uploaded, downloaded or appearing on the Services, including but not limited to information you make available through the third-party accounts that you've linked through the Services (such as Netflix® or Facebook®) as well as any communications you send from 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
Please note these Terms of Service may be revised and reissued without notice at any time by updating this posting.Notwithstanding the foregoing, we will notify you of any changes to the provisions of these Terms of Service regarding Arbitration no less than 5 business days prior to the effective date of such change.From time to time, we may also update or change the Services and you hereby consent to such updates or changes.You acknowledge that we may discontinue or restrict the Services or your access to or use of the Services for any reason or no reason with or without notice.
You should visit this page regularly to review the current Terms of Service.Your continued use of the Services will be deemed as your irrevocable acceptance of any revisions.This agreement may not be otherwise amended except in a writing hand signed by you and us. For purposes of this provision, "writing" does not include an e-mail message and a signature does not include an electronic signature.
2. How to Contact Us
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 firstname.lastname@example.org. Please forward any questions regarding privacy to email@example.com.
a. In order to access certain features of the Services, and to provide Invited Submissions (defined below), you will have to become a Member and set up a Flixster account ("Account"), with a corresponding username and password. Registration for some Services may require additional information.Your username and password will permit you to access certain secure areas of the Services only available to Members.
b. You are responsible for safeguarding and maintaining the confidentiality of your username, password and corresponding Account information. You agree not to disclose your password to anyone. You agree that you are entirely and solely responsible for any and all activities or actions that occur under your Account, whether or not you have authorized such activities or actions. You agree to notify Flixster of any unauthorized use of your Account or any other breach of security within (24) twenty-four hours of such use being known to you. In the event that your user name or password is lost or stolen, please notify Flixster immediately so that a new user name or password can be created.
c. If you become a Member, 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) Account is allowed per user.
d. If you become a Member and create an Account, you consent to the use of: (a) electronic means to complete these Terms of Service and to provide you with any notices given pursuant to these Terms of Service; and (b) electronic records.
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 may require you to be over the age of 18 or the age of majority for your state; please see the term and conditions of the relevant offer for more details.
5. Online Privacy Notice
6. Objectionable Material
While using the Services, you may encounter content that may be deemed offensive, indecent, or objectionable . You agree to use the Service at your sole risk and that we shall have no liability to you for the type of content that you may access, including without limitation content that you may find offensive, indecent, or objectionable.
7. Trademarks and Copyrights
The Services and the content and material incorporated in or made available through the Services, including Premium Content, (collectively "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 agree to use the Services and its Content lawfully and agree that you will not infringe the intellectual property rights of the owners of Content made available through the Services.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.
8. Your Use of the Services
You are responsible for your use of the Services and for any consequences thereof, including any information you choose to make available, posts you provide, 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 are responsible for making information provided to the Services available to other users of the Services. You should only make such information available if you have the legal right to post online and if you are comfortable sharing such information with others.
9. Your Use of Content
Your right to make use of the Services and any Content appearing on it is subject to your compliance with these Terms of Service.Modification or use of the Content or any other content on the Services for any purpose not permitted by these Terms of Service may be a violation of the Copyrights and/or Trademarks and is prohibited.
You may access and display Content and all other content displayed on the Services for non-commercial, personal entertainment.The Content on the Services may not otherwise be copied, reproduced, republished, uploaded, posted, transmitted, distributed or used in any way unless specifically authorized by us.Any authorization to copy Content granted by us in any part of the Services for any reason is restricted to making a single copy for non-commercial, personal entertainment use, and is subject to your keeping intact all copyright and other proprietary notices.Using any Content on any other website or networked computer environment is prohibited.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. Additional terms and Usage Rules apply to Premium Content; please see the terms below for details.
10. Digital Rights Management
You agree not to capture or record any Content unless explicitly permitted by the Software or Services.You agree not to bypass, modify, defeat or tamper with or circumvent any of the functions or protections of the Services, Software or Content or mechanisms that protect or limit use or access to the Services, Software or Content, including, but not limited to, any digital rights management functionality.
11. Submissions, Postings and E-mails
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 (hereinafter "Feedback") by writing to firstname.lastname@example.org.We regret that we may not be able to respond to feedback.You agree that we may use in any manner and without limitation the Feedback that you provide.
However, we do not accept or consider unsolicited submissions of any kind (e.g., scripts, treatments, concepts, or any other materials) in any format, by any means of transmission (including email). Any such submissions are either returned to the sender without being reviewed or deleted and discarded without being reviewed.Therefore, please do not send any unsolicited submissions to us.
Certain areas on the Services may expressly request submissions of photographs, images, concepts, stories, commentaries, reviews, audio, visual, public and private messages or other potential content from you ("Invited Submissions").Where this is the case, please carefully read any specific rules or other terms and conditions that appear elsewhere on the Services which govern those submissions, as they will affect your legal rights.If no such terms govern those submissions, then these Terms of Service will apply in full to any Invited Submissions you make.In any event, any material you send to us will not be treated as confidential.
Please act responsibly when using the Services. You may only use the Services for lawful purposes and in accordance with applicable law and you are prohibited from storing, distributing or transmitting any unlawful material through the Services.You may not collect or store personal information regarding other users.You recognize that storing, distributing or transmitting unlawful material could expose you to criminal and/or civil liability. You agree that if a third party claims that material you have contributed to the Service is unlawful, you will bear the burden of establishing that it is lawful.You understand and agree that all materials publicly posted (other than by us) or privately transmitted on or through the Services are the sole responsibility of the sender, not us, and that you are responsible for all material you upload, post or otherwise transmit to or through the Services.
We require that you do not post e-mails or submit, publish, or otherwise make available on the Services any content, or act in a way, which in our opinion:
- Libels, defames, invades privacy, stalks, is obscene, pornographic, racist, abusive, harassing, threatening or offensive, or contains hate propaganda or promotes discrimination or violence against anyone for any reason, including without limitation on account of their race, national origin, religion, age, gender, disability, or sexual orientation;
- Contains the image of any person without their written permission to post the image on the Service;
- Advertises any commercial endeavor (e.g., offering for sale products or services) or otherwise engages in any commercial activity (e.g., conducting raffles or contests, displaying sponsorship banners, and/or soliciting goods or services) except as specifically authorized on the Services;
- Solicits funds, advertisers or sponsors;
- Promotes information that you know is false, misleading, or promotes illegal conduct;
- Is or promotes an illegal or unauthorized copy of another person's copyrighted work, or provides information to circumvent access control or copyright protection technologies;
- Infringes any patent, copyright, trademark, service mark, trade secret, or other proprietary right of any person or entity;
- Violates any contractual or other relationship (e.g., inside information, proprietary or confidential information received in the context of an employment or a non-disclosure agreement);
- May be harmful to minors or seeks to exploit or harm children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
- Impersonates or misrepresents your connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content;
- Disobeys any policy or regulations established from time to time regarding use of the Services or any networks connected to the Services;
- Contains a software virus or any other code files or programs that are designed to or have the ability to interrupt, destroy, compromise, or otherwise limit the functionality of any computer software or hardware or telecommunications equipment whether owned by us or any other party;
- Attempt to probe, scan or test the vulnerability of any of our systems or networks or breach or impair or circumvent any security or authentication measures protecting the Services;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- Involves the transmission of any unsolicited commercial messages or other similar commercial communications (such as spam);
- Improperly solicits or collects usernames, email addresses, passwords, or personal identifying information from other users for any purpose;
- Otherwise violates any local, state, national or other applicable law or regulation; or
- Contains links to other sites that contain the kind of content that falls within the descriptions set out above.
In addition, you may not, in connection with your use of the Services:
- Impersonate any person or entity, including our officers or employees, or falsely misrepresent your affiliation with any other person or entity;
- Disguise the origin of any content posted or transmitted on or through the Services;
- Interfere with or disrupt the Services or network resource;
- Stalk or harass any person; or
- Collect or "harvest" from the Services the names of or information associated with other users.
In addition, you are prohibited from removing any sponsorship banners or other material inserted by us anywhere on the Services (e.g., on any web space made available for your personal use).
12. Our Use of Content
We will consider anything you provide to us and/or contribute to the Services as available for our use free of any obligations to you, except unsolicited submissions (see "Submissions, Postings and E-mails" above).
We do not claim ownership in content you post or upload to the Services (including without limitation audio, video or photographs) or in communications or material provided to us by posting any public or private messages that may be viewable by other users ("User Content").However, by providing, uploading or posting User Content via the Services, you automatically and irrevocably: (a) grant and assign to us a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to any and all rights in the User Content including without limitation all copyright, together with all consents (if any) necessary to enable its reproduction, use, adaptation, distribution, modification, publishing, translation, creation of derivative works and/or other exploitation by the us and/or by any person authorized by us, by any means and in all media now known or hereafter devised, without payment or other reference to you or any other person, and to advertise and promote such exploitation, for the full period of all such rights (together with any extensions and renewals) and insofar as possible in perpetuity and we may sublicense all or part of its rights under this license or assign them to third parties; (b) waive all moral rights in the User Content that may be available to you in any part of the world and confirm that no such rights have been asserted; (c) appoint us as your agent with full power to enter into any document and/or do any act we may consider appropriate to confirm the grant and assignment, consent and waiver set out above; (d) warrant that you are the owner of the User Content or have all required consents to supply the User Content and entitled to enter into these Terms of Service; (e) confirm that no such User Content will be subject to any obligation, of confidence or otherwise, to you or any other person; (f) confirm that your posting of the content on or through the Service does not violate the privacy rights, publicity rights, copyrights or other rights of any other person; (g) 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 Content.We reserve the right (but do not assume the obligation) in our sole discretion to reject, move, edit or remove any User Content that is contributed to the Service. Without limiting the foregoing, we shall have the right to remove any User Content that violates these Terms of Service or is otherwise objectionable as determined in our sole and absolute discretion.You acknowledge that we do not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate, and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content.
13. Third-Party Sites
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 Service or 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.
14. Proprietary Online Services
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 can also use the Service 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.
15. TERMS APPLICABLE TO PREMIUM CONTENT
Our 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 Premium Content or Other Premium Content. All Premium Content is subject to certain terms and conditions, including the following:
(i) License to Premium Content.
When you acquire Premium Content, we grant you a non-exclusive, non-transferable, limited right and license or sublicense to the Premium Content to view, use, and privately display the Premium Content in your Residence (defined below) or for Permitted Non-Residential Use (defined below) subject to the Terms of Service and the applicable including the Usage Rules (defined below).
We are not 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 and for other reasons, and we will not 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 Premium Content if it becomes unavailable for further download or streaming from the Services.
As used herein, (i) "Residence" shall mean a private, residential dwelling unit or a private individual office unit, but excluding hotel rooms, motel rooms, hospital patient rooms, restaurants, bars, prisons, barracks, drilling rigs and all other structures, institutions or places of transient or work-related residence as well as places, areas, structures, rooms or offices that are common areas or open to the public or to occupiers of separate Residences or for which an admission fee is charged; (ii) "Permitted Non-Residential Use" shall mean the private viewing by one or more persons on a video monitor (desktop, television monitor, laptop, hand-held device or otherwise) in a Non-Residential Venue; provided, however, that any such viewing for which an access fee or other admission charge (except a per viewing charge) is imposed (other than any fee related only to access such Non-Residential Venue for other general purposes) or any such viewing that is on a monitor provided by such Non-Residential Venue (or by a third party under any agreement or arrangement with such Non-Residential Venue) for display of programming in a common area shall not constitute a "Permitted Non-Residential Use"; and (iii) "Non-Residential Venue" shall mean any place, area, structure or room other than a Residence.
You may not transfer, copy or display the Premium Content except as permitted in this Agreement. In addition, you may not:
i. Sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any right to the Premium Content to any third party;
ii. Remove any proprietary notices or labels on the Premium Content;
iii. Attempt to disable, bypass, modify, defeat, or otherwise circumvent any of the digital rights management or other security related tools incorporated into the Premium Content; and/or
iv. Use the Services or Premium Content for any commercial or illegal purpose.
b. 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 and our licensors, and we and our licensors do not transfer any right, title or interest in the Services or the Premium Content to you. While you will be the owner of the digital file containing the Premium Content, you do not acquire any ownership rights in the Content as a result of utilizing the Services.
(ii) 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 viewed.
(iii) Additional Terms Regarding Premium Content.
If we change any part of the Services, which we may do in our sole discretion, you acknowledge that you may not be able to access, view, or use the Premium Content in the same manner as prior to such changes, and you agree that we shall have no liability to you in such case. We reserve the right to modify, suspend, or discontinue access to Premium Content at any time without notice to you, and we will not be liable to you should we exercise such rights.
(iv) Flixster Collections.
B. Other Premium Content.
Other Premium Content includes UltraVioletTM Digital Copies and Promotional Content.
UltraVioletTM Digital Copies.
About the Digital Copy Service.Our UltraVioletTM-compatible Digital Copy Service provides a digital copy of a motion picture or television program when you purchase an eligible Blu-rayTM 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 note that not all Digital Copy Content offers are redeemable through this Digital Copy Service.
Getting your Digital Copy Content.To access and view the Digital Copy Content, you will need to type the website address provided on the insert included with your Blu-ray Disc or DVD into your Internet browser and follow the instructions provided on the website.This must be done before the expiration date printed the insert.When prompted, input the Digital Copy authorization code provided in your Blu-Ray Disc or DVD packaging. You will not be eligible for a refund from us of any portion of the purchase price of your Blu-ray Disc or DVD if the Digital Content is unavailable for any reason.
Usage Rules for Digital Copy Content. The Usage Rules applicable to Digital Copy Content will generally be set forth on your Blu-ray Disc or DVD packaging or when you redeem your Digital Copy Content through our Digital Copy Service.
Digital Copy Content Requirements. In order to access your Digital Copy Content, you must reside in the U.S. and use an Authorized Device.Registration for a Flixster Account and an UltraVioletTM account is required. As used herein, an "Authorized Device" means personal computer (Windows or Mac®) or an Android or Apple iOS mobile or tablet device running the Flixster mobile application and meeting minimum system requirements, or any other device that we may authorize in our sole discretion from time to time. You may only view Digital Copy Content on an Authorized Device.In the event we make Other Premium Content available via mobile or tablet applications, such Other Premium Content shall be governed by the agreements, policies and rules established by the mobile or tablet provider or entity controlling the application marketplace or relevant operating system.The support or availability may be limited by those entities at any time. We may change supported Authorized Devices at any time, without notice to you.
From time to time we 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.
C.Paid Premium Content.
Certain Content is made available for purchase or rent (the "Paid Premium Content") via the Flixster Collections software through an arrangement with the RoxioNow content distribution service, which is owned and/or operated by RoxioNow, a division of Sonic Solutions LLC ("RoxioNow") (the "Paid Content Service"). When purchasing or renting Paid Premium Content via the Service, RoxioNow processes your credit card transactions and will show up as the payee for transactions on your credit card statements.
You may not use the Paid Content Service and accept these Terms if you are not of legal age to form a binding contract.Any and all Paid Premium Content made available through the Paid Content Service is the property of RoxioNow or its content suppliers.Access to and use of the Paid Premium Content is governed by these Terms and is only available through the Flixster Collections software.
Roxio, RoxioNow and the RoxioNow logo, and other graphics, logos, icons, service names, product names and designations associated with RoxioNow and appearing in connection with the Paid Content Service are trademarks, registered trademarks or trade dress of RoxioNow in the U.S. and/or other countries.
i. Rights in Paid Content Service.
You are granted a non-exclusive, non-transferable, limited right and license to access and use the Paid Content Service, and view and privately display the Paid Premium Content by way of one or more computers connected to the Paid Content Service via IP networks only, and in strict conformity with these Terms. You may "cache" pages of the Paid Content Service for the sole purpose of increasing the speed and efficiency at which you access the Paid Content Service in the future. However, no other copy or use of any portion of the Paid Premium Content is permissible except as specifically permitted hereunder, and the same shall constitute an act of copyright infringement. By way of example, and not limitation, subject to the other conditions of these Terms, you may not sublicense, alter, adapt, transmit, publicly perform or display, distribute, customize, modify, add to, delete from, create derivative works based upon any portion of the Paid Premium Content, link or forward any web address to the Paid Content Service, copy, counterfeit or paste the Paid Premium Content to any other website or web page. You may not publicly display any portion of the Paid Premium Content Service, or any films or other audiovisual or digital works available at the Paid Content Service, without a written license signed by a party authorized to legally bind us to such a contractual arrangement. Any other use or exploitation of the Services, including the Paid Premium Content, is strictly prohibited. You agree and acknowledge that you shall not acquire any ownership rights by streaming or downloading the Paid Premium Content from the Paid Content Service. You agree that links to the Paid Content Service are only permitted upon express permission from and arrangement with RoxioNow. You acknowledge and agree that modification of the Paid Premium Content or use of the Paid Premium Content for any other purpose is a violation of Our, RoxioNow's and possibly other third parties' copyright and proprietary rights. You agree to use the Paid Premium Content and the Paid Content Service only for purposes which are lawful in every nation and jurisdiction in the world and all subdivisions thereof. If you violate any provision of these Terms, your permission to use the Paid Content Service automatically terminates and you must immediately destroy any copy you may have of any of the Paid Premium Content. Any other use or exploitation of this Paid Content Service, including the Paid Premium Content, is strictly prohibited. You agree not to interrupt, or attempt to interrupt, the operation of the Paid Content Service in any way.
Your license is granted for the limited purpose of personal use, and not for any commercial purpose. No business entity (e.g., corporation, partnership, sole proprietorship) is licensed to use this Paid Content Service. You hereby agree not to use the Paid Content Service, the Paid Premium Content, or any element or portion thereof (including, without limitation, e-mail addresses of users), for any commercial purpose whatsoever.
The Paid Content Service is offered for entertainment purposes only. Neither we nor RoxioNow warrants the truth or validity of the information provided via the Paid Content Service. You acknowledge and understand that, because of the possibility of human and mechanical error, mistakes or omissions in the data or information provided, delays or interruptions of the data or information stream from whatever cause, as well as other factors, neither we nor RoxioNow is responsible for errors in or omissions from the information contained or accessed through the Paid Content Service.
ii. Terms Relating to Paid Premium Content.
Any one or more of the following types of Paid Premium Content may be available via the Paid Content Service: (i) Paid Premium Content offered on a "rental" basis ("Rental Paid Content") in which you must pay a set price to view that one particular piece of Rental Paid Content during a specified time period or (ii) purchased Paid Premium Content ("Purchased Paid Content") in which you must pay a set price to stream that one particular piece of Paid Premium Content and may view said piece of Purchased Paid Content an unlimited number of times during an indefinite time period, all as more fully set forth herein. Not all users of the Paid Content Service (depending upon the user's geographic location, equipment that the user is using and other factors) will have access to all versions of the Paid Premium Content. Given the foregoing, certain of the terms and conditions contained herein may not be applicable to every user.
Rental Paid Content.
Rental Paid Content offerings are available at different price points as set forth on the Paid Content Service. Those prices are subject to change at any time, but will always be clearly marked on the purchase page for the Rental Paid Content prior to your purchase. A valid credit card (VISA, MasterCard or American Express) is required to pay for the Rental Paid Content. The fee for Rental Paid Content will be charged only when you submit the credit card information to RoxioNow. Currently, each piece of Rental Paid Content is available to you for either 24 or 48 hours, depending upon the film, from the time that you start watching the film. If you have not begun playback of Rental Paid Content within 30 days of purchase of the Rental Paid Content, the rental shall expire and you will have to pay the rental fee again if you wish to watch the Rental Paid Content. RoxioNow reserves the right to change the time period with respect to future films but will not change the time period with respect to Rental Paid Content that you have already paid for. You can watch Rental Paid Content whenever you want, as many times as you want during the authorized time period (i.e., 24 or 48 hours). After that time, if you want to watch the Rental Paid Content, you will have to pay the rental fee again if you wish to watch the Rental Paid Content.
Purchased Paid Content.
Our Purchased Paid Content offerings are available at different price points, as indicated on the Paid Content Service. Those prices are subject to change at any time. At any event, whatever the price, it will always be clearly marked on the purchase page of the Purchased Paid Content prior to your purchase. A valid credit card (VISA, MasterCard or American Express) is required to pay for the Purchased Paid Content. The fee for the Purchased Paid Content will be charged only when you submit the credit card information to RoxioNow. Once you pay the fee for the applicable piece of Purchased Paid Content, you will have the right to stream that piece of Purchased Paid Content via the Software an unlimited number of times over an indefinite period of time. If the piece of Purchased Paid Content does not play correctly, please contact Customer Support at email@example.com and we will endeavor to provide you with a working version of that piece of Purchased Paid Content or refund your purchase price. Once you have accessed a working copy of a piece of Purchased Paid Content we will not refund your purchase price or provide another copy of said piece of Purchased Paid Content in the event that your computer crashes, your hard drive fails, the file becomes corrupt or in the event that said piece of Purchased Paid Content does not play, for whatever reason.
iii. Electronic Signatures.
Your use of the Paid Content Service includes 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.
iv. Your Account and Paid Content Service.
You shall hold and secure any Service username or password as strictly confidential. Accordingly, you shall not allow friends, family, business associates or other persons access to or use of such username or password. You shall not post the username or password on any website nor transmit it through unsecured sites. Neither we nor RoxioNow shall be responsible whatsoever in the event that your password is misappropriated by a third party.
You agree to promptly update your Registration Data in the event of any known or suspected unauthorized use of your account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or credit card information. In the event of a breach of security, you will remain liable for any unauthorized use of your account until you update your Registration Data. If your credit card expires, is canceled, is lost or is subject to use without your authorization, or if your account is subject to use without your authorization, follow account help instructions to update your Registration Data.
You agree not to assign, transfer or sublicense your rights as a customer of the Paid Content Services. You agree to be financially responsible for all usage or activity on your Paid Content Services account.
Your exclusive and sole remedy with respect to Paid Premium Content for which you have paid but that you are not able to use will be either replacement (for example, make available for re-steaming) of such Paid Premium Content, or refund of the purchase price paid for such Paid Premium Content, which will be at our and RoxioNow's sole discretion. Neither we nor RoxioNow will replace content or issue refunds if you have not complied with the system requirements and testing obligations set forth herein.
v. Paid Content Availability.
The availability and price for each piece of Paid Premium Content is indicated as such on the Paid Content Service. Depending upon the geographic location of the user, the equipment that the user is using to access the Paid Content Service, the bandwidth available to the user and other factors, certain users may not have access to streams of Paid Premium Content.
vi. Usage Rules for Paid Premium Content.
You understand that any Paid Premium Content purchased through the Paid Content Service may be altered with technology and/or rules that protect digital information from access and may limit or restrict your usage of Paid Premium Content to certain Usage Rules in accordance with these Terms. You agree to comply with such Usage Rules. Usage Rules may be controlled and monitored by us and/or RoxioNow for compliance purposes, and we and RoxioNow reserve the right to enforce the Usage Rules with or without notice to you.
vii. Delivery of Paid Premium Content.
You acknowledge that use of Paid Premium Content may require the use of other hardware and software products and that such hardware and software is your responsibility. Once you rent or purchase a copy of Paid Premium Content and you download it, it is your responsibility not to lose, destroy, or damage the Paid Premium Content, and neither we nor RoxioNow shall be liable to you in the event of any loss, destruction, or damage. In addition to charges for Paid Premium Content, you are responsible for all charges associated with connecting to the Paid Content Service, including without limitation all Internet access fees and computer equipment and any service fees or your bandwidth costs necessary to access the Paid Premium Content.
viii. Refunds for Paid Premium Content.
If you purchase a piece of Paid Premium Content and are unable to view your selected film(s), please contact Customer Service. RoxioNow will work with you to try to solve your problem. If RoxioNow is unable to do so, RoxioNow may refund your purchase.
ix. No Right to Continued Availability of Paid Premium Content.
You acknowledge that RoxioNow licenses some or all of the Paid Premium Content under agreement with third parties, and that RoxioNow is constantly administering the Paid Content Service, including the Usage Rules. RoxioNow may add, delete or disable Paid Premium Content, and/or add, delete, disable or modify some or all of the Paid Content Service, at its sole election, and you acknowledge: (a) that you may no longer be able to use the Paid Content Service to the same extent - or at all - as prior to such change or discontinuation, and (b) that neither we nor RoxioNow shall have any liability to you in such case. In no event will we or RoxioNow be liable for the removal of or disabling of access to any Paid Premium Content, materials or functionality of the Paid Content Service. We or RoxioNow may also impose limits on the use of or access to certain features or portions of the Paid Premium Content or the Paid Content Service, in any case and without notice or liability.
x. Termination of Paid Content Service.
We and RoxioNow reserve the right to restrict, suspend or terminate your access to the Paid Content Service and/or any part of the Paid Content Service, in whole or in part, without notice, in our sole discretion. If we terminate your access to the Paid Content Service based on a breach of any portion of these Terms, we reserve the right to refuse to provide any Paid Content Services or other services to you in the future.
16. System Abuse
Without limitation, you agree not to send, create or reply to so called "mailbombs" (i.e., emailing copies of a single message to many users, or sending large or multiple files or messages to a single user with malicious intent) or engage in "spamming" (i.e., unsolicited emailing for business or other purposes) or undertake any other activity that may adversely affect the operation or enjoyment of the Services by any other person. You may not reproduce, sell, resell or otherwise exploit any resource, or access to any resource, contained on the Services.
Any usernames and passwords used for the Services are for individual use only.You shall be responsible for the security of your username and password.You agree not to use the username or password of another Service user at any time.We shall be entitled to monitor your username and password and, at our discretion, require you to change it.If you use a username and password that we consider insecure, we will be entitled to require this to be changed and/or terminate your account.
You are prohibited from using any services or facilities provided in connection with the Services to compromise security or tamper with system resources and/or accounts.The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) are strictly prohibited.If you become involved in any violation of system security, we 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, INC., WARNER BROS. ENTERTAINMENT INC., THEIR AFFILIATED COMPANIES ("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.
19. Local Regulations
The Services and the Software are intended for use in the United States only.We make no representation that Content in the Service is appropriate or available for use outside the United States, its territories, possessions and protectorates. If you choose to access the Service 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.
20. Disclaimer of Warranties
YOUR USE OF THE SERVICES (INCLUDING PREMIUM CONTENT MADE AVAILABLE BY ROXIONOW) IS AT YOUR OWN RISK.THE SERVICE AND ALL THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICES, CONTENT AND PREMIUM CONTENT IN THE SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE SERVICES, OUR COMPANIES AND ROXIONOW DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.WE AND ROXIONOW DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS THAT MAY MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.WE AND ROXIONOW DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES, CONTENT OR PREMIUM CONTENT IN THE SERVICES OR ANY WEB SITES LINKED TO THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.WE AND ROXIONOW MAKE NO WARRANTIES THAT YOUR USE OF THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE, CONTENT OR PREMIUM CONTENT IN THE SERVICES OR ANY WEB SITE WILL NOT INFRINGE THE RIGHTS OF OTHERS, AND ASSUME NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICES OR CONTENT OF THE SERVICES OR ANY OTHER WEB SITE.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, PREMIUM CONTENT OR UNAVAILABILITY OR INTERRUPTION OF SERVICE 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.
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, CONCERNING 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 SERVICE OR OPERATIONS, HOWEVER CAUSED, ACCURACY, AVAILABILITY, SATISFACTORY QUALITY, AND MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
23. Limitation of Liability
WE AND ROXIONOW 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 OR PREMIUM CONTENT ON THE SERVICES OR ANY WEB SITE, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF ANY OF OUR COMPANIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.WITHOUT LIMITATION, YOU (AND NOT ANY OF OUR COMPANIES) 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 WE NOR ROXIONOW shall be liable for any use OR MISUSE of the Software OR ANY SERVICES USING THE SOFTWARE.You acknowledge the 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 THE OUR COMPANIES' LIABILITY TO YOU FOR ANY AND ALL DAMAGES OF ANY TYPE EXCEED FIVE-HUNDRED DOLLARS (US $500.00).
THE MATERIAL, INFORMATION AND OPINIONS INCLUDED AND/OR EXPRESSED IN OR ON THE SERVICES ARE NOT NECESSARILY THOSE OF OUR COMPANIES OR OTHER CONTENT PROVIDERS.WE MAY REMOVE OR MODIFY ANY CONTENT OR PREMIUM CONTENT WITHOUT NOTICE OR LIABILITY AT ANY TIME IN OUR SOLE DISCRETION.
WE MAY NOT UNDERTAKE MONITORING OR REVIEW OF COMMUNICATIONS OF USERS OF THE SOFTWARE OR THE SERVICES, AND THE CONTENT OF SUCH COMMUNICATIONS IS NOT OUR 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, RoxioNow 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.
25. Jurisdictional Issues
The Services and Content is 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.
26. 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 26.
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.
27. 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.
29. 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 seek to preserve any and all exemptions from liability that may be available under the copyright or other applicable law.