Welcome to FilmStruck!
FIRST, AN IMPORTANT MESSAGE: PLEASE READ THESE TERMS AND CONDITIONS OF USE ("Terms" or "Agreement") CAREFULLY BEFORE USING THIS ONLINE ENTERTAINMENT SERVICE, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS, INCLUDING, BUT NOT LIMITED TO, WAIVERS OF RIGHTS, LIMITATION OF LIABILITY, AND YOUR INDEMNITY TO US. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURTS OR JURY TRIALS, AND LIMITS THE REMEDIES AVAILABLE IN THE EVENT OF A DISPUTE.
This Agreement is a legally binding agreement between Filmstruck, LLC and its affiliates, and its licensors (collectively, "FILMSTRUCK," "Us" or "We") and you concerning access to and use of the user interface and the website(s) or mobile applications associated with FILMSTRUCK (such as FilmStruck.com) (collectively, the "Site") and access to and use of the FILMSTRUCK subscription service ("Service") including its features, content, software, functionality.
Use of the Service by visitors to the Site (“Visitors”), by those who create a Registered Account (defined below) and subscribe to the Service (“Subscribers”), or by any person using your Registered Account (collectively, “you”) is provided by FILMSTRUCK subject to the following terms. These Terms also apply to any interactive features or downloads that are, or may be, available through the Service or Site or that interact with the Service and post these Terms. If you do not agree to these Terms, do not click the “Create Account & Continue” button and do not use the Site.
The Service provides Subscribers with access to FILMSTRUCK’s library of motion pictures and related content all streamed over the Internet to your device. BY CLICKING THE ‘CREATE ACCOUNT & CONTINUE” BUTTON IN THE REGISTRATION PATH, OR BY USING THE SERVICE, SUBSCRIBERS AGREE TO ADDITIONAL TERMS AS DESCRIBED BELOW.
To be eligible to subscribe to the Service, you must meet the following criteria (the "Eligibility Criteria"):
(a) You must reside within the fifty states of the United States of America ("U.S."), the District of Columbia, and certain US territories (collectively, the "Service Area") and have reached the age of 18, or the age of legal majority in your state or territory of residence;
(b) You must establish a registered account (“Registered Account”) with FILMSTRUCK; and
(c) Have activated your subscription to the Service (“Subscription”) through FILMSTRUCK or an authorized subscription provider of the Service (“Subscription Provider”), as detailed in Paragraph 6.
2. CHANGES TO TERMS:
To the extent any change materially impacts the availability of the Service or Site, such as a change to your Subscription, in addition to posting the revised document on the Site or Service, we will communicate such a change directly to Subscribers via the email address or other contact information associated with the Subscriber’s Registered Account. Your continued use of the Service and/or the Site after the changes come into effect and, in the case of any Subscription, your failure to cancel the same within the relevant notice period, will mean you accept and agree to be bound to the changes.
3. CONSENT TO ELECTRONIC COMMUNICATIONS:
FILMSTRUCK grants Visitors a limited, non-exclusive, non-transferable license to access and use the Site on your personal Internet-connected devices solely as provided in this Agreement and for the Visitor’s personal use.
FILMSTRUCK grants Subscribers a limited, non-exclusive, non-transferable, royalty-free license to access, use, and privately display the Service and/or the Site on your personal Internet-connected devices, solely as provided in this Agreement for your personal use and only as long as you continue to meet all of the Eligibility Criteria and are not otherwise in breach of this Agreement.
Please note that in order to access the Service and/or the Site as a Subscriber, your device must be connected to the Internet, and you will be solely responsible for the cost and maintenance of any such Internet connection, and any data plans impacted by your use of the Site and/or Service. Additionally, the Service will only operate on certain hardware and software platforms. It is your sole responsibility to ensure that you have access to the appropriate platforms required to access the Service. Please check the requirements periodically, as FILMSTRUCK reserves the right to change or cease support of any hardware or software platforms at any time.
This Subscription license will enable you to view, preview, select, stream and access video, audio, graphics, photos, text, special features, and/or messages (collectively "Content") via the Service and/or the Site in accordance with the terms of this Agreement during the timeframe in which your account is active and for the duration of the access window for each individual Content item. Any unauthorized copy of the Service, the Site, Content, underlying software, or any portion thereof will constitute a violation of copyright. Violation of this Agreement in any manner automatically terminates the license granted to you herein and obligates you to cease all use of the Service and the Site.
FILMSTRUCK may control the maximum number of simultaneous streams per account (across all Content on the Service) regardless of the number of devices on which the Service is available. FILMSTRUCK may change the maximum number of simultaneous streams and/or registered devices per account that you may use at any time, in its sole discretion.
6. REGISTRATION FOR SERVICE:
To access the Service, you may purchase a Subscription in one of two ways: (i) directly from FILMSTRUCK at the Site; or (ii) through an authorized Subscription Provider of the Service, such as, for example and without limitation, iTunes, Google Play, Apple TV, and Amazon Fire, . Your Subscription together with your Registered Account with FILMSTRUCK enables access to the Service. Subscription Providers may require you to set up a separate account with them to purchase a Subscription to FILMSTRUCK.
When you create a Registered Account with FILMSTRUCK, you will be required to provide information including a valid email address, and a password.("Required Information").
Subscription Directly with FILMSTRUCK
In order to purchase a Subscription through FILMSTRUCK, you must provide a current and valid method of payment, such as a credit card or debit card, Paypal account, or other methods authorized by FILMSTRUCK and related information such as name, address, zip code, credit card number, expiration date, and security code (each, together, a "Payment Method"). You are responsible for all charges incurred in connection with your FILMSTRUCK Subscription.
It is a condition of use of the Service that all the details you provide, including Required Information and Payment Method, will be correct, current, and complete and will not violate any law. If FILMSTRUCK or a Subscription Provider believes the details are not correct, current or complete, do not meet the Eligibility Criteria, or that you have otherwise violated this Agreement or any law, we each have the right at our sole discretion to suspend, terminate or refuse you access to the Service, your Registered Account and/or the Site and any of its resources.
Subscription Initiated with Subscription Provider
In order to purchase a Subscription through a Subscription Provider, you must provide a current and valid Payment Method. Your Payment Method provided to the Subscription Provider will be processed by such Subscription Provider and not through FILMSTRUCK. Any inquiries related to payments through your Subscription Provider should be directed to your Subscription Provider directly. You are responsible for all charges incurred in connection with your Subscription.
You are responsible for all activity occurring under your Registered Account, including maintaining the confidentiality of your email address and password, and you agree that any authorized user will not permit the disclosure of both your email address and password to any person. You agree that you will immediately notify FILMSTRUCK of any unauthorized use of your email and password by contacting FILMSTRUCK by sending us an email at firstname.lastname@example.org. FILMSTRUCK and its Subscription Providers shall not be liable for any loss or damage arising from your use or misuse of your Registered Account or failure to comply with the registration requirements.
7. PAYMENT FOR SERVICE AND BILLING:
In the event you purchase a Subscription, as a Subscriber you agree to pay FILMSTRUCK or the Subscription Provider a subscription fee and any applicable taxes and service fees on a designated cycle for the Service (collectively, the "Subscription Fee"). Subject to Paragraph 8 ("Free Trials and Promotional Offers"), the first Subscription Fee will be charged to your Payment Method on the date FILMSTRUCK or the Subscription Provider confirms your Subscription purchase. Thereafter, the Subscription Fee will be charged to your Payment Method by FILMSTRUCK or your Subscription Provider on a recurring basis in accordance with your designated cycle.
For Subscriptions obtained through FILMSTRUCK, your billing will be processed by FILMSTRUCK or its authorized vendor(s). For Subscriptions obtained through a Subscription Provider other than FILMSTRUCK, your billing will be processed by such Subscription Provider or its authorized vendor(s). The Subscription Fee will be billed at the time you establish your Subscription and on an ongoing, regular basis unless you cancel your Subscription. Please note that billing cycles may vary. Note that the timing of your billing may change (i.e. in the event of a problem with your Payment Method, such as an expired credit card). You should confirm the applicable billing policies prior to establishing your Subscription.
Subscription Price Changes
FILMSTRUCK and Subscription Provider reserve the right to change the price for a Subscription to the Service in their sole discretion and will be responsible for communicating any price changes to you in accordance with the law.
Updating Payment Method
As a Subscriber, you may update your Payment Method at any time by accessing your account with FILMSTRUCK or your Subscription Provider. If at any time FILMSTRUCK or the Subscription Provider is unable to charge your Payment Method for the Subscription Fee due to insufficient funds, expired or invalid account details, or otherwise, you remain responsible for the cost of such Subscription Fee. A change in your Payment Method may result in changes to your prior billing cycle. It is your responsibility to update and maintain the Payment Method associated with your Subscription Fee. In the event your Payment Method is unable to cover the Subscription Fee, each of Subscription Provider and FILMSTRUCK reserve the right to suspend your respective accounts and access to the Service, until such time as the Payment Method has been updated to permit the Subscription Provider to charge the Subscription Fee.
As a Subscriber, you can cancel your Subscription at any time. Please note that you must cancel your Subscription before it renews for a subsequent month in order to avoid being charged for the next month’s Subscription Fee. If you cancel your Subscription, the cancellation will become effective at the end of the then-current monthly Subscription period. If FILMSTRUCK is your Subscription Provider, you will need to cancel your Subscription through FILMSTRUCK. If you obtained your Subscription through a Subscription Provider other than FILMSTRUCK, you may need to cancel your Subscription directly with such Subscription Provider.
YOU HAVE NO RIGHT TO A REFUND, AND IT IS FILMSTRUCK’S POLICY NOT TO PROVIDE REFUNDS FOR ANY SUBSCRIPTION, OR TO PROVIDE CREDIT, OR PRORATED BILLING FOR SUBSCRIPTIONS THAT ARE CANCELLED MID-MONTH. FOR SUBSCRIPTIONS THROUGH A SUBSCRIPTION PROVIDER, PLEASE REVIEW THEIR POLICY ON REFUNDS. In such a circumstance, you will continue to have access to your Subscription until the end of theapplicable billing cycle. FILMSTRUCK and Subscription Provider reserve the right to offer refunds, discounts or other consideration in select circumstances at their sole discretion. Please note that each circumstance is unique and election to make such an offer in one instance does not create the obligation to do so in another.
8. FREE TRIALS AND PROMOTIONAL OFFERS:
The Service may be made available to Subscribers on a free trial basis for a limited time ("Trial Subscription"). The specific duration of the Trial Subscription will be specified in the applicable offer at sign-up. Trial Subscriptions are limited to new Service Subscribers, unless otherwise specified. Your status as a new Subscriber to the Service will be determined by the Subscription Provider or FILMSTRUCK, each in its sole discretion. These Terms apply to any Trial Subscription, unless otherwise specified.
At the time of signing up for a Trial Subscription, as a Subscriber you must provide FILMSTRUCK or the Subscription Provider with a valid Payment Method in order to use the Service during the Trial Subscription period. Your Payment Method will not be charged by FILMSTRUCK or the Subscription Provider during the Trial Subscription Period.
UNLESS YOU HAVE CANCELLED DURING THE TRIAL SUBSCRIPTION, UPON THE EXPIRATION OF THE TRIAL SUBSCRIPTION, THE SUBSCRIPTION FEE FOR THE SERVICE WILL BE CHARGED TO YOUR PAYMENT METHOD. PLEASE NOTE THAT YOU WILL NOT BE NOTIFIED THAT YOUR TRIAL SUBSCRIPTION WILL END OR HAS ENDED.
No refunds, adjustments or price protection will be applied to your Subscription Fee in the event of a new/subsequent discount or promotional offering after you sign up for the Service. New customers may take advantage of any "new customer" promotion only once. Requirements for a special promotion will be stated at the time each offer is presented. As a condition of these Terms, you agree not to register multiple times for the same promotional offer using multiple names, addresses, email addresses or other means. Any such action shall constitute a violation of these Terms and may result in the termination of your Registered Account.
9. MATURE CONTENT
THE SERVICE AND/OR THE SITE CONTAINS MATURE CONTENT, WHICH MAY NOT BE APPROPRIATE FOR PEOPLE UNDER 18 YEARS OF AGE. WHERE POSSIBLE, CONTENT IS RATED ACCORDING TO GUIDELINES ESTABLISHED BY THE MOTION PICTURE ASSOCIATION OF AMERICA OR TELEVISION RATINGS/CONTENT ADVISORIES, OR RATING ASSOCIATIONS IN THE COUNTRY WHERE THE FILMS WERE INITIALLY RELEASED, HOWEVER, SOME CONTENT MAY NOT BE RATED AND/OR MAY CONTAIN VIOLENCE, SEXUAL CONTENT AND MATURE THEMES BEYOND VIEWER EXPECTATIONS. THERE ARE NO PARENTAL CONTROLS FOR THIS SERVICE, SO BE CAREFUL WITH WHOM YOU VIEW THE SERVICE.
10. COPYRIGHTS AND TRADEMARKS:
The Service and the Site, and all materials incorporated in the Service and the Site (including, but not limited to text, photographs, graphics, video and audio) are protected by copyrights, patents, trademarks, trade secrets or other proprietary rights under laws of the United States and other countries. The copyright proprietors have licensed this Content for private use only and not for public exhibition. Unauthorized copying, editing, exhibition, broadcast or distribution of a copyrighted program can result in severe criminal and civil penalties under U.S. laws. In particular, as of the date of publication of these Terms, criminal copyright infringement, including without monetary gain, is investigated by the FBI and is punishable by up to 5 years in prison and a fine of $250,000.
Some of the characters, logos or other images incorporated by FILMSTRUCK on the Service and the Site are also protected as registered or unregistered trademarks, trade names and/or service marks owned by FILMSTRUCK ("Trademarks"). All other trademarks are the property of their respective owners. Use of the Trademarks of FILMSTRUCK or of any other party is not authorized in any manner other than as incorporated into the Service and the Site.
11. COPYRIGHT NOTICE:
If you believe that any content appearing on the Service and/or the Site has been copied in a way that constitutes copyright infringement under the laws of the United States, please forward the following information to the Copyright Agent named below:
• Your name, address, telephone number, and email address;
• A description of the copyrighted work that you claim has been infringed;
• The exact URL or a description of where the alleged infringing material is located;
• A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Filmstruck Copyright Agent
One CNN Center
Atlanta, GA 30348
Phone: (404) 878-2276
Fax: (404) 827-1995
Please note that while FILMSTRUCK seeks to preserve any and all exemptions from liability that may be available under the copyright law, this is not a stipulation that FILMSTRUCK is a service provider as defined in 17 U.S.C. section 512c or elsewhere in the law.
12. RESTRICTIONS ON USE OF MATERIALS:
(a) You may not copy, reproduce, distribute, transfer, sell, license, publish, enter into a database, display, perform publicly, modify, create derivative works, upload, edit, post, link to, frame, transmit, rent, lease, lend or sublicense or in any way exploit any part of the Service and/or the Site, or attempt to interfere with the operation of the Service in any way, except that you may access and display material and all other Content displayed on the Service for non-commercial, personal, entertainment use for a limited time only as strictly authorized herein. You may not use any data mining, robots, virus, worms, bugs, or similar data gathering and extraction tools on the Service or on any portion of the Service and/or the Site, or frame any portion of the Service and/or the Site, or attempt to tamper, hack, corrupt, or impair the administration and/or security of the Service and/or the Site. Without limiting the generality of the foregoing, you may not distribute any part of the Service over any network, including a local area network, nor sell or offer it for sale. You may not assign, sublicense, pledge or transfer any of your rights or obligations under this Agreement to any person or entity without FILMSTRUCK's prior written consent which may be withheld in FILMSTRUCK's sole discretion (and any such purposed assignment, pledge or transfer without such prior written consent shall be void ab initio). In addition, these files may not be used to construct any kind of database. You acknowledge that your use of the Service and your Registered Account is non-transferable. Any authorization to copy material granted by FILMSTRUCK in any part of the Service and/or the Site for any reason is restricted to viewing a single copy for non-commercial, personal, entertainment use only, and is subject to your keeping intact all copyright, trademark and other proprietary notices. Using any material on any other service or networked computer environment is prohibited. Also prohibited are: decompiling, reverse engineering, disassembling, or otherwise reducing the code used in any software or digital rights management feature on the Service and/or the Site into a readable form in order to examine the construction of such software and/or to copy or create other products based (in whole or in part) on such software or any feature of the Service and/or the Site, or intercepting and/or recording network communications transmitted between the Service and/or the Site and FILMSTRUCK.
(b) FILMSTRUCK respects the intellectual property rights of others and asks users of the Service and the Site to do the same. FILMSTRUCK and its licensees and other Content partners reserve the right, at any time, to prosecute any violation of copyright or other intellectual property laws to the fullest extent of the law, including both civil and criminal penalties.
13. CONTENT AND CONTENT LIMITATIONS:
Content, including but not limited to video, audio, graphics, photos, text, special features, software and messages may be streamed to you or otherwise made available to you in connection with your use of the Service and/or Site. Please note that some Content items may specify an access window in which you will be able to view the Content. During the applicable access window, you will be able to view the Content as many times as you want, BUT ONCE THE ACCESS WINDOW FOR A PARTICULAR CONTENT ITEM TERMINATES, YOU WILL NO LONGER HAVE THE ABILITY TO ACCESS THAT PIECE OF CONTENT. It is your responsibility to monitor the access window for each piece of Content available via the Service and/or the Site, and FILMSTRUCK and its partners and affiliates accept no liability for any access windows or the expiration thereof. FILMSTRUCK reserves the right, in its sole discretion, to disable access to any Content at any time, regardless of the posted access windows or its programming schedules. Please note that not all Content will be available for all purposes. Access to certain Content may depend upon your geographic location (i.e. you will not be able to access content from outside the Service Area), whether you are able to maintain an Internet connection, whether you are a Subscriber, or available bandwidth and equipment used to access the Service. You should be sure to read the detailed description near each piece of Content to determine options and requirements for viewing or accessing that Content. While we do our best to keep the Content descriptions up-to-date, FILMSTRUCK does not warrant that such descriptions will always be complete, current, or accurate. No transfer of ownership to any portion of the Content shall be made as a result of any access you are granted to the Service as a result of your Subscription or Registered Account. FILMSTRUCK does not make any representations or warranties with respect to the accessibility of any particular Content at any time.
14. SERVICE UPDATES AND SOFTWARE:
At various times, FILMSTRUCK may choose to make available updates, bug fixes, or other changes or enhancements to the Service and/or the Site (collectively, "Service Updates"). Service Updates may be:
(a) Automatic, such as in connection with general website changes and additional features or updates to data required by the Service;
(b) At your election, in which instance as a Subscriber you will receive information and instructions for how to authorize optional Service Updates; and
(c) Mandatory, in which case as a Subscriber you will be required to consent to the Service Update or install or upgrade a third-party plug-in if you wish to maintain continued access to the Service.
Please note that the Service and/or the Site may be unavailable during a Service Update.
15. SUSPENSION AND TERMINATION:
FILMSTRUCK and any Subscription Provider may suspend or terminate Subscriptions and access to the Service, Site, and/or your Registered Account immediately for any reason or for no reason whatsoever, including if FILMSTRUCK reasonably determines that you are in violation of this Agreement or receives information that you no longer meet the Eligibility Criteria. In such event, you must cease all use of the Service and the Site. The suspension or termination of a Subscriber’s Subscription is in addition to, and not in lieu of, any rights and remedies available to FILMSTRUCK, its partners and affiliates and/or any Subscription Provider under this Agreement or under applicable laws.
Additionally, if you are a Subscriber you may terminate your account at any time by following the cancellation process set forth in Paragraph 7 above. Please note you shall still be responsible for all Subscription Fees incurred prior to the effective date of termination.
This Agreement is effective until terminated; however, your past and any future use of the Service and/or Site shall be governed by the terms of this Agreement. Your rights under this Agreement will terminate automatically without notice from FILMSTRUCK if you fail to comply with any term(s) of this Agreement.
16. CUSTOMER SERVICE:
(a) For Customer Service inquires related to the Service, the Site, or your Subscription through FILMSTRUCK (including Subscription Fee and Payment Method), please visit our Help Center for our FAQs. If you are unable to resolve your question using the Help Center, please contact FILMSTRUCK Customer Support via email at email@example.com
(b) For Customer Service matters related to your Subscription through a Subscription Provider other than FILMSTRUCK (including Subscription Fee and Payment Method) or other matters relating to billing through your Subscription Provider, please contact your Subscription Provider directly.
(c) If you have specific concerns with the closed caption feature, please contact:
Kathleen Rodriguez, Corporate Legal Manager
Turner Broadcasting System, Inc.
1050 Techwood Drive, NW
Atlanta, GA 30318-5604
Tel: 404-827- 3111
(d) We take security very seriously. We have imposed security measures to ensure the protection of our subscribers. Please see the Help Center for details. If you have reason to believe that your Registered Account credentials have been compromised or misappropriated in some way, you should contact us immediately at firstname.lastname@example.org
The “Shop” or storefront section of the Site that allows you to order merchandise (the “Shop”), if any, is operated and managed by an independent merchandise vendor (the “Shop Operator”). The Shop Operator is the seller of the merchandise available in the Shop, and is responsible for all aspects of the Shop and the related services. Additional terms and conditions will apply to the use of the Shop and the purchase of merchandise and/or the use of any other services provided by the Shop Operator, and you should read those terms and conditions when they are presented to you. By accessing the Shop section of the Site you acknowledge that the Shop Operator identified in the Shop terms and conditions is exclusively responsible for the services offered thereon, including, without limitation, the processing, fulfillment and shipment of any merchandise ordered.
17. DISCLAIMER OF WARRANTIES:
(A) YOU EXPRESSLY AGREE THAT USE OF THE SITE IS AT YOUR SOLE RISK. NEITHER FILMSTRUCK, ITS PARENT, SUBSIDIARIES, ITS OTHER AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE SITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE SITE.
18. LIMITATION OF LIABILITY:
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL FILMSTRUCK, OR ITS PRESENT OR FUTURE PARENTS OR AFFILIATED COMPANIES, BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION OR FOR ANY FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BASED ON ANY CAUSES OF ACTION ARISING OUT OF USE OF THE SITE, THE SERVICE, OR ANY ALLEGED FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, OR DELAY IN SERVICE, OPERATION, OR TRANSMISSION OF THE SITE OR SERVICE, OR ANY ALLEGED COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OF PROPERTY, AND/OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF OR POSTING OF ANY RECORD, CONTENT, OR TECHNOLOGY, PERTAINING TO OR ON THE SITE OR WITHIN THE SERVICE. YOU AGREE THAT THIS LIMITATION OF LIABILITY APPLIES WHEHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FALL UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF TURNER OR ITS PRESENT OR FUTURE PARENTS OR AFFILIATED COMPANIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. WITHOUT LIMITING THE GENERALITY OF THE FORGEOING, YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT FILMSTRUCK, AND/OR ITS PRESENT OR FUTURE PARENTS AND AFFILIATED COMPANIES ARE NOT LIABLE FOR ANY ACTUAL OR ALLEGED DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OF THE SITES OR ANY OTHER THIRD PARTIES.
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. THIS LIMITATION OF LIABILITY PROVISION APPLIES TO NEW JERSEY RESIDENTS.
Filmstruck disclaims any and all liability of any kind for any unauthorized access to or use of your personally identifiable information. By accessing the Site, you acknowledge and agree to our disclaimer of any such liability. If you do not agree, you should not access or use the Site or the Service.
19. FEEDBACK AND POSTINGS:
(a) Portions of the Service and/or the Site may invite you to provide us with feedback. Please be aware that FILMSTRUCK does not accept unsolicited submissions of concepts, creative ideas, suggestions, stories, or other potential content. This is to avoid the possibility of future misunderstanding when projects developed by FILMSTRUCK staff or representatives might seem to others to be similar to the submitted concepts, creative ideas, suggestions, stories or other potential content. Therefore, please do not send FILMSTRUCK any unsolicited submissions. In any event, no material you send to us will be treated as confidential.
(b) Please also be aware that your feedback may not be acknowledged and does not create a confidential, fiduciary or other special relationship between you and FILMSTRUCK, or any of its Subscription Providers, affiliates or any of its licensees, successors or assigns or place FILMSTRUCK or any of its Subscription Providers, affiliates, licensees, successors or assigns in a position that is any different from the position held by members of the general public. You acknowledge and agree that neither FILMSTRUCK nor any of its Subscription Providers, affiliates, licensees, successors or assigns has now, or shall have in the future, any duty or liability, direct or indirect, vicarious, contributory or otherwise, with respect to the infringement or protection of any copyright in and to your feedback, and that FILMSTRUCK and its licensees, successors or assigns are not responsible for the loss, deletion, failure to store or misdelivery of any feedback submitted.
(c) To the extent that use of the Service and/or the Site provides you or other users an opportunity to post and exchange information, content, ideas and opinions ("Postings"), be advised that FILMSTRUCK does not screen, edit, or review Postings prior to their appearance on the Service or the Site or elsewhere, and Postings do not necessarily reflect the views of FILMSTRUCK. To the fullest extent permitted by applicable laws, FILMSTRUCK excludes all responsibility and liability for the Postings or for any losses or expenses resulting from their use and/or appearance on the Service or the Site or elsewhere. FILMSTRUCK reserves the right to monitor all Postings and to remove any which it considers in its absolute discretion to be offensive or otherwise in breach of this Agreement or in violation of general community standards and notions of decency. You hereby represent and warrant that you have all necessary rights in and to all Postings you provide and all material, content and information they contain and that such Postings shall not infringe any proprietary right, intellectual property right or other rights of third parties.
(d) Please act responsibly when using the Service and/or the Site. You may only use the Service and/or the Site and its contents for lawful purposes and in accordance with applicable law and you are prohibited from storing, distributing or transmitting any unlawful material through the Service and/or the Site. 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 any third party claims that material you have contributed to the Service and/or the Site is unlawful, you will bear the burden of establishing that it is lawful.
20. HYPERLINKS TO AND FROM THIRD PARTY SITES:
(a) You are not permitted to link to the Service and/or the Site from any third-party site without the prior written permission of FILMSTRUCK. However, the Service and/or the Site may link you to other sites on the Internet including, without limitation, sites owned or controlled by our Subscription Providers. These sites may contain information or material that some people may find inappropriate or offensive. These other sites are not under the control of FILMSTRUCK, and you acknowledge that (whether or not such sites are affiliated in any way with FILMSTRUCK or its Subscription Providers) FILMSTRUCK is 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 FILMSTRUCK or any association with its operators.
(b) FILMSTRUCK 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 and/or the Site. FILMSTRUCK does not endorse any of the merchandise, nor has FILMSTRUCK taken any steps to confirm the accuracy or reliability of any of the information contained in such third-party sites. We have no duty to pre-screen information, products and services of third parties (collectively "Third-Party Content"), but we have the right to refuse to post or to edit submitted Third-Party Content. We reserve the right to remove Third-Party Content for any reason, but we are not responsible for any failure or delay in removing such material. FILMSTRUCK does 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.
(c) Any area of the Service and/or the Site that is accessed through any third party proprietary online service is subject to the rules, policies and guidelines of such third party proprietary online service.
21. SYSTEM ABUSE:
(a) You may not reproduce, sell, resell or otherwise exploit any resource, or access to any resource, contained on the Service and/or the Site.
(b) You are prohibited from using any services or facilities provided in connection with the Service and/or the Site 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) is strictly prohibited.
(c) If FILMSTRUCK believes that you have engaged in any fraudulent activity in connection with your use of the Service and/or the Site, we reserve the right to take any action to remedy such activity, including without limitation, termination of your Registered Account.
FILMSTRUCK along with its respective Subscription Providers and affiliates reserve the right to investigate suspected violations of this Agreement, and may seek to gather information from the user, Visitor, or Subscriber who is suspected of violating the terms of this Agreement, and from any other user. We may suspend any users whose conduct is under investigation and may remove such material from its servers as we deem appropriate and without notice. If we believe, in our sole discretion, that a violation of these terms of this Agreement has occurred, we may warn users including Visitors or Subscribers, suspend usernames and passwords, terminate Registered Accounts or take other corrective action deemed appropriate. We may also provide personally identifiable information in response to legal process, for example, in response to a court order or a subpoena. We also may disclose such information in response to a law enforcement agency's request.
BY ACCEPTING THIS AGREEMENT YOU WAIVE AND HOLD HARMLESS FILMSTRUCK AND ITS SUBSCRIPTION PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY FILMSTRUCK DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER FILMSTRUCK OR LAW ENFORCEMENT AUTHORITIES.
23. THIRD PARTY SUBSCRIPTION PROVIDER TERMS:
Accessing the Service via iOS products must be in accordance with the App Store terms in addition to the Terms set forth herein. You acknowledge and agree that Apple, Inc., ("Apple") and any subsidiaries of Apple, are third party beneficiaries to these Terms. Upon your acceptance of these Terms, Apple will have the right (and be deemed to have accepted the right) to enforce these Terms as a third party beneficiary.
24. USE IN U.S. ONLY:
The Service and/or Site are intended for viewing solely within the Service Area. Use of technology to mask your location or hinder FILMSTRUCK's ability to ascertain your location is prohibited. Please note FILMSTRUCK may use technologies to verify your geographic location. FILMSTRUCK makes no representation that materials or other Content in the Service and/or Site are appropriate or available for use outside of the Service Area. By using the Service and/or submitting personally identifiable information to the Service, either during the registration process or subsequently, you consent to have your information transferred to and processed and maintained in the United States, subject to applicable U.S. laws.
You agree to indemnify and hold harmless FILMSTRUCK, its film licensors, the Subscription Provider(s), and their respective directors, officers, shareholders, parents, future parents, subsidiaries, affiliates, partners, agents, and licensors (collectively, the "Indemnified Parties"), from and against all losses, expenses, damages and costs, including reasonable attorney 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 the Service's servers, and/or from any and all use of your Registered Account in violation of this Agreement or the failure to fulfill any obligations relating to your Registered Account incurred by you or any other person using your Registered Account. We reserve the right to take over the exclusive defense of any claim for which we are entitled to indemnification under this Section. In such event, you shall provide us with such cooperation as is reasonably requested by us.
26. Disputes/Arbitration. PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
FILMSTRUCK and you agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
In the event of a dispute, claim, or controversy arising out of or in connection with your access to, and/or use of the Site, and/or the provision of content, services, and/or technology on or through the Site, FILMSTRUCK or you must give the other notice of the dispute, claim, or controversy which notice will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, claim, or controversy and the relief requested. You must send any such notice to FILMSTRUCK by email to email@example.com AND by U.S. Mail to Copyright Agent, Legal Department, One CNN Center, Box 105573 Atlanta, GA 30303-2762. To the extent that FILMSTRUCK has your contact information, it will send any such notice to you by U.S. Mail, or otherwise to your email address. FILMSTRUCK and you will attempt to resolve any dispute, claim, or controversy through informal negotiation within thirty (30) days from the date that any notice of dispute, claim, or controversy is sent. FILMSTRUCK and you shall use reasonable, good faith, efforts to settle any dispute, claim, or controversy through consultation and good faith negotiations. After 30 days, FILMSTRUCK or you may resort to the other alternatives described in this Section. Notwithstanding the foregoing, the notice and 30 day negotiation period required by this paragraph shall not apply, however, to disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Sites.
Except as otherwise specifically set forth below, any dispute, claim, or controversy of any kind between FILMSTRUCK and you arising under this Agreement or in connection with your access to, and/or use of the Site, and/or the provision of content, services, and/or technology on or through the Site, if unresolved through informal discussions within thirty (30) days of receipt of notice, shall be resolved by binding arbitration to be held in the state in which you reside. Notwithstanding the foregoing, disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Site shall not be subject to arbitration.
For residents outside the United States, arbitration shall be initiated in New York, New York, and Filmstruck and you agree to submit to the personal jurisdiction of any state or federal court in New York, New York to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
The arbitration shall be conducted by a single arbitrator, governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement and administered by the AAA. The AAA Rules and fee information are available at “www.adr.org,”.
FILMSTRUCK shall bear the cost of any arbitration filing fees and arbitration fees for claims of up to $75,000, unless the arbitrator finds the arbitration to be frivolous. You are responsible for all other additional costs that you may incur in the arbitration including, but not limited to attorney’s fees and expert witness costs unless FILMSTRUCK is otherwise specifically required to pay such fees under applicable law. For claims that total more than $75,000, the AAA Rules will govern payment of filing fees and arbitration fees. The decision of the arbitrator will be in writing and binding and conclusive on FILMSTRUCK and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction. FILMSTRUCK and you agree that dispositive motions, including without limitation, motions to dismiss and motions for summary judgment will be allowed in the arbitration. The arbitrator must follow this Agreement and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees. Notwithstanding the foregoing, FILMSTRUCK and you agree not to seek any attorney’s fees and expert witness costs unless the arbitrator finds that a claim or defense was frivolous or asserted for an improper purpose. FILMSTRUCK and you understand that, absent this mandatory arbitration provision, FILMSTRUCK and you would have the right to sue in court and have a jury trial. FILMSTRUCK and you further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If your claim is solely for monetary relief of $10,000 or less, and does not include a request for any type of equitable remedy, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the AAA Rules.
You may choose to pursue your claim in small claims court where jurisdiction and venue over FILMSTRUCK and you otherwise qualifies for such small claims court and where your claim does not include a request for any type of equitable relief.
You have the right to opt-out and not be bound by these arbitration provisions by sending written notice of your decision to opt-out to the following Email address firstname.lastname@example.org AND by U.S. Mail to Copyright Agent, Legal Department, One CNN Center, Box 105573 Atlanta, GA 30348. The notice must be sent within the later of 30 days of your first use of the Site or within 30 days of changes to this section being announced on the Site, otherwise you shall be bound to arbitrate any disputes, claims, or controversies in accordance with the terms of these paragraphs. If you opt-out of these arbitration provisions, FILMSTRUCK also will not be bound by them. If you do not affirmatively elect to opt out as described above, your use of the Site will be deemed to be your irrevocable acceptance of these Terms and any changes/updates to this section or otherwise.
If any clause within these arbitration provisions is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect. In the event some or all of these arbitration provisions are determined to be unenforceable for any reason, or if a claim, dispute or controversy is brought that is found by a court to be excluded from the scope of these arbitration provisions, FILMSTRUCK and you agree to waive, to the fullest extent allowed by law, any trial by jury.
The terms of these arbitration provisions will also apply to any claims asserted by you against any present or future parent or affiliated company of FILMSTRUCK to the extent that any such claims arise out of your access to, and/or use of the Site, and/or the provision of content, services, and/or technology on or through the Site.
27. Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
FILMSTRUCK and you agree that FILMSTRUCK and you will resolve any disputes, claims or controversies on an individual basis, and that any claims brought under this Agreement in connection with the Site will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. FILMSTRUCK and you further agree that FILMSTRUCK and you shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising under these Terms or in connection with the Site.
If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in federal court located in New York, New York.
The terms of this provision will also apply to any claims asserted by you against any parent or affiliated company of FILMSTRUCK to the extent that any such claims arise out of your access to, and/or use of the Site, and/or the provision of content, services, and/or technology on or through the Site.
If any provision of this Agreement 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. FORCE MAJEURE:
FILMSTRUCK shall not have any liability to you by reason of any delay or failure to perform any obligation hereunder if the delay or failure to perform is occasioned by force majeure, which shall refer to any act of God, storm, fire, casualty, unanticipated work stoppage, power outage, satellite failure, strike, lockout, labor dispute, civil disturbance, riot, war, national emergency, Governmental action, or other cause beyond its control.
30. EXPORT CONTROL:
You may not use or otherwise export or re-export the software except as authorized by United States law and the laws of the jurisdiction in which the software was obtained. In particular, but without limitation, the software may not be exported or re-exported into any U.S. embargoed countries or to any persons listed as prohibited under applicable law or regulation. By downloading or using the software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
31. Governing Law.
The content, data, video, and all other material and features on the Site, and the Service, are presented for the purpose of providing entertainment, news and/or information and/or promoting programs, films, music, games, and other products and/or services that are or may become available in the United States, its territories, possessions, and protectorates.
Any and all disputes, claims and controversies arising out of or in connection with your access to, and/or use of the Sites, and/or the provision of content, services, and/or technology on or through the Sites shall be governed by and construed exclusively in accordance with the laws and decisions of the State of New York applicable to contracts made, entered into and performed entirely therein, without giving effect to its conflict of laws provisions.
IF YOU DO NOT AGREE TO BE LEGALLY BOUND BY ALL OF THE FOREGOING TERMS PLEASE DO NOT ACCESS AND/OR USE THE SERVICE.
Last updated: May 1, 2018 (second amendment)