FLIXSTER VIDEO TERMS OF SERVICE FOR AUSTRALIA
LAST UPDATED ON APRIL 1, 2016
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").
IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES.
Flixster Video ("Flixster Video") is owned and operated byWarner Bros. Entertainment Inc. (together with its affiliates, "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 our website, mobile applications and other applications (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 Video account ("Flixster Video Account") in order to access certain features of the Services.
a. Flixster Video Account Information.
If you elect to set up a Flixster Video Account, you will provide true, accurate and complete registration information and will maintain as current and promptly update relevant personal information provided to Flixster Video. 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 Video Account is allowed per user and is for individual use only.
b. Security of your Flixster Video Account.
You are responsible for safeguarding and maintaining the confidentiality of your Flixster Video 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 Video 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 Video Account or any other breach of security.
c. Assignment / Transfer of Your Account.
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 province; 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.
5. YOUR USE OF THE 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 Video 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 Video 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.
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 and royalty-free, 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; (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; (d) your User Materials will not breach our Code of Conduct; and (e) that you waive in our favour any and all moral rights in and to the User Materials which you submit via the Service. 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, subject to your Australian Consumer Rights (if applicable pursuant to Section 17 below), 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. We do not 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”). Rights to Premium Content may only be purchased or redeemed in Australia and requires a Flixster Video Account.
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.
(2) Availability of Downloaded or Streamed Premium Content.
Subject to your Australian Consumer Rights (if applicable pursuant to Section 17 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 subject to your Australian Consumer Rights (if applicable pursuant to Section 17 below), 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 content if it becomes unavailable for further download or streaming from the Services.
(3) 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 charges associated with connecting to the Services, including without limitation all Internet access fees and computer equipment and any service fees or your bandwidth costs, above and beyond any charges you may have incurred when acquiring rights to Premium 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 operating systems) or an Android or Apple iOS mobile or tablet device running the Flixster Video mobile app and meeting minimum system requirements that we may establish in our sole discretion from time to time, or any other device that we may authorize in our sole discretion from time to time. Click here[linked to supported devices page] 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 the agreements, policies and rules established by the provider or entity controlling the application marketplace or 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.
(4) Future Changes Regarding Premium Content.
We reserve the right to modify, suspend, or discontinue access to Premium Content at any time without notice to you where reasonably necessary to preserve the security of the Services and/or Content or to perform maintenance activities in respect of the Services and/or Content, and we will not be liable to you should we exercise such rights.
The Services in respect of Premium Content are intended to develop, evolve and progress with time. This is a dynamic and innovative service, and we will look to implement improvements in future. For this reason, it may be that from time to time we need to make changes to the Services in respect of Premium Content.
Where such changes do not affect your ability to access and enjoy the Premium Content you have already acquired, or are required by a court or regulator of competent authority or changes to applicable law, we may make such changes at our sole discretion.
Where such changes will affect your ability to access and enjoy the Premium Content you have already acquired, and are not required by a court or regulator of competent authority or changes to applicable law, we will ensure that they are fair and reasonable, with reference to (a) your rights as a consumer; and (b) the nature of a service model in which either no payment at all, or a single initial payment, is made in exchange for the ongoing provision of a service.
Regardless of current intentions, it is not possible for any organization or entity to guarantee that it will be able to continue to provide a service on a perpetual basis either for free or in exchange for a single, up-front fee.
In particular, in certain circumstances: (i) you may not be able to access, view, or use the Premium Content in the same manner as previously; (ii) we may institute a charge for continued access to Premium Content via streaming or downloading; and (iii) we may cease entirely the provision of streaming or downloading access to Premium Content and/or terminate the availability of the Premium Content. You agree that we shall have no liability to you in such circumstances, provided that: (a) we shall continue to provide the Premium Content in materially the same form, and without instituting a charge for access to Premium Content via streaming or downloading, for a minimum period of three (3) years from the date on which you redeem or purchase or otherwise acquire rights to the relevant item of Premium Content; and (b) we will always give you reasonable notice where the availability of Premium Content is to be materially altered in such a manner as to affect your ability to access previously acquired Premium Content via streaming or downloading at no charge, so as to give you an opportunity to download a permanent copy of the relevant Premium Content for future use.
We will not alter the Services in such a manner that would prevent you from being able to access the Premium Content you have already downloaded for no additional charge.
It is, of course, our hope that we will be able to avoid making changes which will materially affect your enjoyment of the Premium Content, or the cost to you of accessing the Premium Content you have acquired. Where we make changes of this type, we will do so in a fair and reasonable manner, and will provide a proper explanation as to why the changes are being made.
(5) 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 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, you do not acquire any ownership rights in the Content as a result of utilizing the Services.
B. Types of Premium Content.
Any one or more of the following types of Premium Content may be available via the Premium Content Service:
(i) UltraViolet Digital Copies.
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.
(ii) Promotional Content.
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 (“Promotional Content”. 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.
(iii) Non-Flixster UltraViolet Content.
We 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 Video (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 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 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 exercise such rights. We also reserve the right to institute a charge in the future for continued access to Non-Flixster UltraViolet Content.
To access certain Premium 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 Video Account to your UltraViolet Account.
In particular, linking your UltraViolet Account is required in order to:
• redeem and access your Digital Copy Content,
• access Non-Flixster UltraViolet Content, or
• acquire and access certain Promotional Content.
When you link your Flixster Video 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 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.
SUBJECT TO YOUR AUSTRALIAN CONSUMER RIGHTS (IF APPLICABLE PURSUANT TO SECTION 17 BELOW), WE DO NOT 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 Facebook. You may also be able to use the Services to access or purchase video content from a variety of sources. Where the content is provided by a third party source, 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 DESKTOP APPLICATION
The Flixster Desktop software enables you to download, locate, organize and view downloads of UltraViolet-enabled Premium Content. If you attempt to download certain UltraViolet-enabled Premium Content from the Flixster Video website to your PC or Mac 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 Video 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 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 WARNER BROS. ENTERTAINMENT INC. AND ITS 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 Australia only. We make no representation that Content in or available through the Services is appropriate or available for use outside Australia, 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. AUSTRALIAN CONSUMER LAW
In the event it is determined that Australian law applies to these Terms of Service and you are a “Consumer” (as defined below), the sections entitled “Disclaimer of Warranties” and “Limitation of Liability” set forth below do not apply to any liability of Our Companies for failure to comply with a “Consumer Guarantee”, nor does any provision noted as “subject to your Australian Consumer Rights” herein. In these Terms of Service: (i) “Australian Consumer Law” or “ACL” means Schedule 2 to the Competition and Consumer Act 2010 (Cth); (ii) “Consumer” has the same meaning as in section 3 of the ACL; and (iii) “Consumer Guarantee” means a guarantee under any of sections 51-59 of the ACL that is applicable to these Terms of Service under the ACL.
18. DISCLAIMER OF WARRANTIES
AS NOTED ABOVE IN SECTION 17, THIS SECTION MAY NOT APPLY IN SOME CIRCUMSTANCES IF IT IS DETERMINED THAT AUSTRALIAN LAW APPLIES.
YOUR USE OF THE SERVICES 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. OUR COMPANIES DO NOT 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. OUR COMPANIES DO NOT 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.
19. LIMITATION OF LIABILITY
AS NOTED ABOVE IN SECTION 17, THIS SECTION MAY NOT APPLY IN SOME CIRCUMSTANCES IF IT IS DETERMINED THAT AUSTRALIAN LAW APPLIES.
OUR COMPANIES 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 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.
OUR COMPANIES SHALL NOT 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’ 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 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.
WE SHALL HAVE NO OBLIGATION TO MONITOR OR REVIEW 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 and our 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. You agree not to sue Our Companiesor our officers, directors, employees, agents, and distributors and affiliates respect of those claims, demands, liabilities, costs or expenses.
21. JURISDICTIONAL ISSUES
These Terms of Service shall be governed by, construed and enforced in accordance with the laws of the State of California. Each party irrevocably submits to the exclusive jurisdiction of the courts of the State of California.
22. 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 email@example.com. 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 Us arising under this Agreement shall be resolved by binding arbitration in, at your election, the State of California or the province/territory in which you reside. Both parties reserve the right to seek an injunction or temporary restraining order or other equitable relief, as appropriate, from a Australian court of competent jurisdiction. However, after such request for equitable 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 this Agreement and/or any other rules and regulations set forth in the Flixster Video Terms of Service, including without limitation the right to block access from a particular Internet address.
Any arbitrator proceeding over a dispute arising under this Agreement shall be a retired judge or justice of any state, province 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 $25,000, 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 a state, provincial 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.
23. CLASS ACTION WAIVER
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, 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 enforce-ability of any remaining provisions. This Agreement represents all of the express terms between the parties relating to the matters contained herein, except in relation to any express warranty (as defined by the Australian Consumer Law, where it applies), and shall not be changed except by a signed writing by an officer of Warner Bros.
25. 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.
Warner Bros. Entertainment Inc.
c/o: Warner Bros. Advanced Digital Services, a division of Warner Bros. Technical Operations Inc.
4000 Warner Blvd.
Burbank, CA 91522
Tel: (818) 977 - 0018
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.”
27. CONTACT INFORMATION
Warner Bros. Entertainment Inc., located at 4000 Warner Blvd., Burbank, CA 91522. Please forward any comments or complaints about the Service to firstname.lastname@example.org. Please forward any questions regarding privacy to email@example.com. Please forward any questions regarding other legal matters to firstname.lastname@example.org.
FLIXSTER VIDEO TERMS OF SERVICE FOR AUSTRALIA