Terms of use
EFFECTIVE Date: 2019
Welcome to Filmdab, Inc. ("dba Filmocracy," "Filmocracy," "we," or "us"). Please read these Terms of Use (the “Terms”) and our Privacy Policy available at Filmocracy.com/static/privacy (“Privacy Policy”) carefully because they govern your use of our video streaming service offering a selection of television shows, movies, clips, and other content (collectively, the "Content") accessible via our website located at www.filmocracy.com (the “Filmocracy Site”), our mobile device applications (“Apps”) and our player for viewing the Content (the "Video Player"), in addition to any other features, tools, applications, materials, or other services offered from time to time by Filmocracy in connection with its business, however accessed. To make These Terms easier to read, the Filmocracy Site, Apps, Video Player, and our services are referred to collectively as the "Filmocracy Services."
By visiting, accessing, or using any of the Filmocracy Services, you agree to be bound by these Terms. It is important that you carefully read through these Terms whenever we update them or you use the Filmocracy Services. If you have any questions or comments about these Terms, please contact us at: legal@filmocracy.com.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND CLIENT THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 10 “DISPUTE RESOLUTION AND ARBITRATION OF CLAIMS” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
1. CHANGES TO THE TERMS OF USE BY FILMOCRACY
Filmocracy may amend these Terms of Use at any time by posting the amended Terms of Use on the Filmocracy Site at Filmocracy.com/static/terms. Any amendment to these Terms of Use will be effective immediately. Your continued use of the Filmocracy Services after such amendments are posted constitutes an acknowledgement and acceptance of such amendments. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in Section 10(f) “Effect of Changes on Arbitration,” you may not use the Filmocracy Services anymore. Because Filmocracy Services are evolving over time we may change or discontinue all or any part of the Filmocracy Services, at any time and without notice, at our sole discretion.
2. ACCESS AND USE OF THE FILMOCRACY SERVICES
a. Age Limitations and Restrictions. The Filmocracy Services are not intended to be used by children without involvement and approval of a parent or guardian. If you are under the age of 13, you are not permitted to register with Filmocracy or provide your personal information to Filmocracy. If you are at least 13 and under 18 years of age, you may register with Filmocracy only if you have the consent of your parent or guardian, in which case your parent or guardian consents to these terms on your behalf. Access to Content may be restricted due to age appropriateness. Accessing the Filmocracy Services and/or the Content from territories where Filmocracy does not offer the Filmocracy Services is prohibited.
b. Registration and Your Information.
i. If you want to use certain features of the Filmocracy Services you’ll have to create an account (“Account”). You can do this via the Filmocracy Site or through your account with certain third-party social networking services such as Facebook (each, an “SNS Account”). If you choose the SNS Account option we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
ii. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all inaccuracies in your Account information and all activities that occur under your Account, whether or not you know about them.
c. Your License. Subject to your compliance with these Terms, Filmocracy grants you a limited, non-exclusive, non-transferable license, with no right to sublicense, to use the Filmocracy Services on the Properties, including accessing and viewing the Content on a streaming-only basis through the Video Player, solely in connection with your permitted use of the Filmocracy Services and solely for personal, non-commercial purposes as set forth in these Terms.
d. The Content. The Content is available for permissible viewing on or through the following (collectively, the "Properties"):
i. the Filmocracy Site;
ii. Filmocracy's affiliate and distributor websites; and
iii. Filmocracy authorized applications, features or devices or websites, including the Apps.
You may only access and view the Content personally and for a non-commercial purpose in compliance with these Terms. You may not either directly or through the use of any device, software, internet site, web-based service, or other means remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices marked on the Content or any digital rights management mechanism, device, or other content protection or access control measure associated with the Content including geo-filtering mechanisms. You may not use technologies to access the Content from territories where Filmocracy does not have rights or does not offer services. You may not either directly or through the use of any device, software, internet site, web-based service, or other means copy, download, stream capture, reproduce, duplicate, archive, distribute, make available, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit the Content unless expressly permitted by Filmocracy in writing. You may not incorporate the Content into, or stream or retransmit the Content via, any hardware or software application or make it available via frames or in-line links unless expressly permitted by Filmocracy in writing. Furthermore, you may not create, recreate, distribute or advertise an index of any significant portion of the Content unless authorized by Filmocracy. You may not build a business utilizing the Content, whether or not for profit. The Content covered by these restrictions includes without limitation any text, graphics, layout, interface, logos, photographs, audio and video materials, and stills. In addition, you are strictly prohibited from creating derivative works or materials that otherwise are derived from or based on in any way the Content, including without limitation montages, mash-ups and similar videos, wallpaper, desktop themes, greeting cards, and merchandise, unless it is expressly permitted by Filmocracy in writing. This prohibition applies even if you intend to give away the derivative materials free of charge.
• The Video Player. You may not modify, enhance, remove, interfere with, or otherwise alter in any way any portion of the Video Player, its underlying technology, any digital rights management mechanism, device, or other content protection or access control measure incorporated into the Video Player. This restriction includes, without limitation, disabling, reverse engineering, modifying, interfering with or otherwise circumventing the Video Player in any manner that enables users to view the Content without: (i) displaying visibly both the Video Player and all surrounding elements (including the graphical user interface, any advertising, copyright notices, and trademarks) of the webpage where the Video Player is located; and (ii) having full access to all functionality of the Video Player, including, without limitation, all video quality and display functionality and all interactive, elective, or click-through advertising functionality.
• The Apps.
i. Subject to your compliance with these Terms, Filmocracy grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the Apps on a mobile device or computer that you own or control and to run such copy solely for your own personal non-commercial purposes on such mobile device.
ii. You may not copy an App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the Apps; (ii) distribute, transfer, sublicense, lease, lend or rent the Apps to any third party; (iii) reverse engineer, decompile or disassemble the Apps; or (iv) make the functionality of the Apps available to multiple users through any means. Filmocracy reserves all rights in and to the Apps not expressly granted to you under these Terms.
ii. Accessing Apps from App Store.The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:
i. These Terms are concluded between you and Filmocracy, and not with the App Provider, and Filmocracy (not the App Provider), is solely responsible for the App.
ii. The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
iii. In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Filmocracy.
iv. The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
v. In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Filmocracy will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
vi. The App Provider, and its subsidiaries, are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
vii. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
viii. You must also comply with all applicable third party terms of service when using the App.
• Ownership. Filmocracy and Filmocracy’s licensors exclusively own, control and retain all right, title and interest in and to the Filmocracy Services, including the Content, including all associated intellectual property rights. You acknowledge that the Filmocracy Services, including without limitation the Content, are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Filmocracy Services, including without limitation the Content.
• Your Responsibilities and Filmocracy’s Enforcement Rights. You can use the Filmocracy Services for lawful, non-commercial, and appropriate purposes only. You agree not to engage in any conduct that that:
i. (a) violates the rights of others, including patent, trademark, trade secret, copyright, moral rights or other intellectual property rights, or rights of privacy, publicity, or other proprietary rights, harasses or harms another individual, impersonates any person or entity, or otherwise misrepresents yourself or your affiliation with any person or entity; or (b) is fraudulent, false, misleading or deceptive;
ii. uses technology or other means to access, index, frame, search or link to the Filmocracy Services (including the Content) that is not authorized by Filmocracy; remove, avoid, deactivate, descramble disable, bypass, or circumvent any technological measure implemented by Filmocracy or any of Filmocracy’s providers or any other third party (including another user) to protect Filmocracy Services, including without limitation content protection or access control mechanisms intended to prevent the unauthorized download, stream capture, linking, framing, reproduction, access to, or distribution of the Filmocracy Services;
iii. accesses, tampers with, or uses non-public areas of the Filmocracy Services, Filmocracy’s computer systems, or the technical delivery systems of Filmocracy’s providers;
iv. involves accessing the Filmocracy Services (including the Content) through any automated means, including "robots," "spiders," or "offline readers" (other than by individually performed searches on publicly accessible search engines for the sole purpose of, and solely to the extent necessary for, creating publicly available search indices - but not caches or archives - of the Filmocracy Services, excluding those search engines or indices that host, promote, or link primarily to infringing or unauthorized content);
v. uses any meta tags or other hidden text or metadata utilizing a Filmocracy trademark, logo URL or product name without Filmocracy’s express written consent
vi. access the Filmocracy Services, including without limitation Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
vii. deciphers, decompiles, disassembles or reverse engineers any of the software used to provide the Filmocracy Services;
viii. interferes with the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Filmocracy Services;
ix. introduces viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
x. damages, disables, overburdens, impairs, or gains unauthorized access to the Filmocracy Services, including Filmocracy's servers, computer network, or user accounts;
xi. removes, modifies, disables, blocks, obscures or otherwise impairs any advertising in connection with the Filmocracy Services (including the Content);
xii. uses the Filmocracy Services to advertise or promote services that are not expressly approved in advance in writing by Filmocracy;
xiii. probe, scan or test the vulnerability of any Filmocracy system or network or breach any security or authentication measures;
xiv. collects or stores personally identifiable information from Filmocracy Services without Filmocracy’s authorization;
xv. violates, or encourages conduct that would violate, any applicable law or regulation, constitute a criminal offense or give rise to civil liability;
xvi. violates these Terms or any guidelines or policies posted by Filmocracy;
xvii. interferes with any other party's use and enjoyment of the Filmocracy Services; or
xviii. encourages or enables any other individual to do any of the foregoing or attempts to do any of the foregoing.
We have the right to investigate violations of these Terms or conduct that affects the Filmocracy Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
If Filmocracy determines in its sole discretion that you are violating any of these Terms, we may (i) notify you, (ii) use technical measures to block or restrict your access or use of the Filmocracy Services, and/or (iii) use any other available legal or equitable remedy. In either case, you agree to immediately stop accessing or using in any way (or attempting to access or use) the Filmocracy Services, and you agree not to circumvent, avoid, or bypass such restrictions, or otherwise restore or attempt to restore such access or use.
• No Spam/Unsolicited Communications. We know how annoying and upsetting it can be to receive unwanted email or instant messages from people you do not know. Therefore, no one may use the Filmocracy Services to collect information about users for the purpose of sending, or to facilitate or encourage the sending of, unsolicited bulk or other communications. You understand that we may take any technical remedies to prevent spam or unsolicited bulk or other communications from entering, utilizing, or remaining within our computer or communications networks. If you Post (as defined below in Section 5) or otherwise send spam, advertising, or other unsolicited communications of any kind through the Filmocracy Services, you acknowledge that you will have caused substantial harm to Filmocracy and that the amount of such harm would be extremely difficult to measure. As a reasonable estimation of such harm, you agree to pay Filmocracy $50 for each such unsolicited communication you send through the Filmocracy Services.
• Downloads. In order to participate in certain Filmocracy Services or access certain Content, you may be notified that it is necessary to download software or other materials or agree to additional terms and conditions. Unless otherwise provided by these additional terms and conditions, they are hereby incorporated into these Terms.
• Suspension/Discontinuation. We hope not to, but we may change, suspend, or discontinue - temporarily or permanently - some or all of the Filmocracy Services (including the Content and the devices through which the Filmocracy Services are accessed), with respect to any or all users, at any time without notice. You acknowledge that Filmocracy may do so in Filmocracy's sole discretion. You also agree that Filmocracy will not be liable to you for any modification, suspension, or discontinuance of the Filmocracy Services.
• Internet Access Charges. You are responsible for any costs you incur to access the internet.
• Customer Service. If we can be of help to you, please do not hesitate to contact our customer service department by visiting our customer service web page on Filmocracy.com.
3. PRIVACY POLICY For information about Filmocracy's policies and practices regarding the collection and use of your personally identifiable information, please read Filmocracy's Privacy Policy available at Filmocracy.com/static/privacy. You acknowledge and agree that your presence on the Filmocracy Site and use of the Filmocracy Services is subject to our Privacy Policy.
4. USER MATERIAL Your Posts. Any licenses you have previously granted to Filmocracy and/or Filmocracy’s users to the reviews, comments, or other materials (collectively, "User Material") you may have published, transmitted, submitted, or posted (collectively, "Post") to Filmocracy Services continue under these Terms. Further, any representations and warranties that you own the User Material or otherwise have the right to grant Filmocracy the license provided below and that the Posting of your User Material does not violate any right of any party, including privacy rights, publicity rights, and intellectual property rights, continue to be valid and have full effect. In addition, you agree to pay for all royalties, fees, and other payments owed to any party by reason of your Posting User Material. Filmocracy continues to disclaim any guarantees of confidentiality with respect to any User Material. Third Party Posts. You agree to waive any legal or equitable rights or remedies you may have against Filmocracy with respect to User Material provided by other users.
5. LINKED DESTINATIONS AND ADVERTISING Third Party Destinations . Filmocracy Services (including the Apps) may contain links to third-party websites or resources, or destinations. You will not infer or assume that Filmocracy endorses, operates, controls, is responsible for or is connected with these or other third-party websites, resources or destinations, even if they link to Filmocracy Services and even if such websites, resources, or destinations are operated by a person (including legal entity) affiliated or otherwise connected with Filmocracy. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites, resources, and destinations or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites, resources, and destimations, and release Filmocracy from any responsibility and liability to you for any content or other materials hosted and served from any such websites, resources, or destination. These Terms do not govern your use of any other websites, resources, or destinations.Advertisements . Filmocracy takes no responsibility for advertisements or any third party material Posted on any of the Properties, nor does it take any responsibility for the products or services provided by advertisers. Any dealings you have with advertisers found while using the Filmocracy Services are between you and the advertiser, and you agree that Filmocracy is not liable for any loss or claim that you may have against an advertiser.
6. TRADEMARKS Filmocracy, the Filmocracy logo, www.Filmocracy.com, and other Filmocracy marks, graphics, logos, scripts, and sounds are trademarks of Filmocracy. You may not copy, download or exploit any of the Filmocracy trademarks.
7. FEEDBACK It is Filmocracy's policy not to accept unsolicited submissions, including scripts, story lines, articles, fan fiction, characters, drawings, information, suggestions, ideas, or concepts ("Unsolicited Submissions"). Filmocracy's policy is to delete any such submission without reading it. Therefore, any similarity between an Unsolicited Submission and any elements in any Filmocracy creative work, including a film, series, story, title, or concept, would be purely coincidental. We welcome feedback, comments and suggestions for improvements to the Filmocracy Services (“Feedback”). You can submit Feedback by emailing us at feedback@filmocracy.com (subject line: "Feedback"). You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
8. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNITY YOU AGREE THAT USE OF THE FILMOCRACY SERVICES IS AT YOUR OWN RISK. THE FILMOCRACY SERVICES, INCLUDING THE FILMOCRACY SITE AND THE OTHER PROPERTIES, THE CONTENT, THE VIDEO PLAYER, USER MATERIAL, AND ANY OTHER MATERIALS CONTAINED ON OR PROVIDED THROUGH THE PROPERTIES, ARE PROVIDED "AS IS" AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, FILMOCRACY DOES NOT MAKE ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATIBILITY, QUIET ENJOYMENT, NONINFRINGEMENT OR ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE; OR THAT THE FILMOCRACY SERVICES WILL BE UNINTERRUPTED, SECURE, FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, ACCURATE, TIMELY, TRUTHFUL, ERROR FREE, OR RELIABLE. IN NO EVENT SHALL FILMOCRACY OR ITS AFFILIATES, SUCCESSORS, AND ASSIGNS, AND EACH OF THEIR RESPECTIVE INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND SUPPLIERS (INCLUDING DISTRIBUTORS AND CONTENT LICENSORS) (COLLECTIVELY, THE "FILMOCRACY PARTIES"), BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN ANY WAY RELATED TO THE THESE TERMS OR THE USE OF THE FILMOCRACY SERVICES (INCLUDING ANY INFORMATION, PRODUCTS, OR SERVICES ADVERTISED IN, OBTAINED ON, OR PROVIDED THROUGH THE PROPERTIES ), WHETHER BASED IN WARRANTY, CONTRACT, TORT, STRICT LIABILITY, OR OTHER THEORY, EVEN IF THE FILMOCRACY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU TO US, IF ANY, FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TO USE OF THE FILMOCRACY SERVICE OR $50 (WHICHEVER IS LESS). THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FILMOCRACY AND YOU. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD THE FILMOCRACY PARTIES HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS), AND OTHER LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OR ALLEGED BREACH OF THESE TERMS OR YOUR ACCESS TO OR USE OF THE FILMOCRACY SERVICES (INCLUDING YOUR USE OF THE CONTENT). FILMOCRACY RESERVES THE RIGHT, AT OUR OWN EXPENSE, TO EMPLOY SEPARATE COUNSEL AND ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
NOTICE AND PROCEDURE FOR CLAIMS OF COPYRIGHT INFRINGEMENT We respect copyright law and expect our users to do the same. It is our policy to terminate in appropriate circumstances subscribers or account holders who have been adjudicated as repeat infringers on Filmocracy Services. We accept proper notifications of claimed copyright infringements that comply with the appropriate subsection of 17 U.S.C. § 512 regarding material or information location tools residing on our Filmocracy Services. Please direct notifications of claimed copyright infringements to Filmocracy's copyright agent at dmca@filmocracy.com (subject line: "DMCA Takedown Request"). You may also contact us by mail at:
Attention: Copyright Agent
Filmocracy, 315 Montgomery St
San Francisco, CA 94104
+1 (415) 504-3505
DISPUTE RESOLUTION AND ARBITRATION OF CLAIMS
a. Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Filmocracy Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Filmocracy agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Filmocracy are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive termination of these Terms.
b. Exceptions and Opt-out. As limited exceptions to Section 10(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at legal@filmocracy.com or by regular mail at Filmocracy, 315 Montgomery St, San Francisco, CA 94104 within thirty (30) days following the date you first agree to these Terms.
c. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available atwww.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
d. If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator will have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
e. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
f. Class Action Waiver. YOU AND CLIENT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section will be null and void.
g. Effect of Changes on Arbitration. Notwithstanding the provisions of Section 1 “Changes to Terms of Use by Filmocracy” above, if Filmocracy changes any of the terms of this Section 10 “Dispute Resolution and Arbitration of Claims” after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to legal@filmocracy.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Filmocracy’s email to you notifying you of such change, as applicable. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Filmocracy in accordance with the terms of this Section 10 “Dispute Resolution and Arbitration of Claims” as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
h. Severability. With the exception of any of the provisions in Section 10(e) of these Terms ("Class Action Waiver"), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
11. TERMINATION We may terminate your access to and use of the Filmocracy Services, at our sole discretion, at any time and without notice to you. Without limiting the forgoing, we may, at our sole discretion, without notice to you, terminate or restrict your Account or your use of the Filmocracy Services, including the Content, or any portion thereof, at any time, without liability, if Filmocracy determines in its sole discretion that you have breached these Terms of Use, violated any law, rule, or regulation, engaged in other inappropriate conduct, place an undue burden on our networks or servers or for any other business reason or no reason. We may further use technology to limit activities, such as the number of calls to the Filmocracy servers being made, and you agree to respect these limitations and not take any steps to circumvent, avoid, or bypass them.
You may cancel your Account via the functionality provided in Filmocracy Services.
Upon any termination, discontinuation or cancellation of the Filmocracy Services or your Account, the following Sections will survive 2(b)(ii), 2(f)(ii), 2(h), 2(g), 6, 8, 10, 11, and 12.
12. GENERAL INFORMATION
Export Controls. Software and the transmission of applicable technical data, if any, in connection with the Filmocracy Services are subject to export controls. You agree to comply with all applicable laws regarding software and the transmission of technical data exported from the United States or the country in which you reside.
Choice of Law and Forum. These Terms and any action related thereto will be governed by, and construed in accordance with, the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 10 “Dispute Resolution and Arbitration of Claims,” the exclusive jurisdiction for all Disputes (defined below) that you and Client are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and Client each waive any objection to jurisdiction and venue in such courts.
No Waiver/Reliance. If you see other parties violating these Terms, you may let us know at feedback@filmocracy.com (subject line: "TOU Violation"). You may not rely upon Filmocracy's response with respect to one party or one situation as any indication of what Filmocracy might do with respect to another party or another situation, even if the parties or situations appear to you to be similar. Similarly, if we fail to act in response to a violation of these Terms of Use, you should not assume that we do not object to the violation or even that we are aware of it. In addition, you may not construe a waiver of any provision of these Terms of Use with respect to any party as a waiver of that provision (or any other provision) with respect to either that party or any other party. Further, Filmocracy's decision to delay exercising or enforcing any right or remedy under these Terms of Use will not constitute a waiver of such right or remedy. Even if Filmocracy acts in a way that appears to you to be inconsistent with these Terms of Use, Filmocracy's action will not be deemed a waiver or constructive amendment of these Terms. Filmocracy’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Filmocracy. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Integration, Amendment, and Severability. Please note that these Terms of Use, including any end user license agreement that might accompany Filmocracy authorized applications, features and devices, constitute the entire legal agreement between you and Filmocracy and govern your use of the Filmocracy Services (including your use of the Content) (but excludes any services, if any, that Filmocracy may provide to you under a separate signed written agreement), and completely replace any prior oral or written understandings or agreements between you and Filmocracy in relation to the Filmocracy Services, including Content. Except as set forth in Section 1 above, these Terms may not be amended or varied except in a writing signed by Filmocracy. Although we understand that electronic or digital signatures are frequently viewed as the equivalent of traditional written signatures these days, for these purposes, a signature or "signed" writing or written agreement may not include an electronic or digital signature. These Terms of Use operate to the fullest extent permissible by law. If any provision of these Terms is held to be unlawful, void, or unenforceable, you and we agree that the provision will be enforced to the maximum extent permissible and and the other provisions of these Terms will remain in full force and effect.
Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without Filmocracy’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Filmocracy may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns
Notices. Any notices or other communications provided by Filmocracy under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Contact. If you have any questions about these Terms or the Filmocracy Services, please contact legal@filmocracy.com
Welcome to Filmdab, Inc. ("dba Filmocracy," "Filmocracy," "we," or "us"). Please read these Terms of Use (the “Terms”) and our Privacy Policy available at Filmocracy.com/static/privacy (“Privacy Policy”) carefully because they govern your use of our video streaming service offering a selection of television shows, movies, clips, and other content (collectively, the "Content") accessible via our website located at www.filmocracy.com (the “Filmocracy Site”), our mobile device applications (“Apps”) and our player for viewing the Content (the "Video Player"), in addition to any other features, tools, applications, materials, or other services offered from time to time by Filmocracy in connection with its business, however accessed. To make These Terms easier to read, the Filmocracy Site, Apps, Video Player, and our services are referred to collectively as the "Filmocracy Services."
By visiting, accessing, or using any of the Filmocracy Services, you agree to be bound by these Terms. It is important that you carefully read through these Terms whenever we update them or you use the Filmocracy Services. If you have any questions or comments about these Terms, please contact us at: legal@filmocracy.com.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND CLIENT THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 10 “DISPUTE RESOLUTION AND ARBITRATION OF CLAIMS” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
1. CHANGES TO THE TERMS OF USE BY FILMOCRACY
Filmocracy may amend these Terms of Use at any time by posting the amended Terms of Use on the Filmocracy Site at Filmocracy.com/static/terms. Any amendment to these Terms of Use will be effective immediately. Your continued use of the Filmocracy Services after such amendments are posted constitutes an acknowledgement and acceptance of such amendments. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in Section 10(f) “Effect of Changes on Arbitration,” you may not use the Filmocracy Services anymore. Because Filmocracy Services are evolving over time we may change or discontinue all or any part of the Filmocracy Services, at any time and without notice, at our sole discretion.
2. ACCESS AND USE OF THE FILMOCRACY SERVICES
a. Age Limitations and Restrictions. The Filmocracy Services are not intended to be used by children without involvement and approval of a parent or guardian. If you are under the age of 13, you are not permitted to register with Filmocracy or provide your personal information to Filmocracy. If you are at least 13 and under 18 years of age, you may register with Filmocracy only if you have the consent of your parent or guardian, in which case your parent or guardian consents to these terms on your behalf. Access to Content may be restricted due to age appropriateness. Accessing the Filmocracy Services and/or the Content from territories where Filmocracy does not offer the Filmocracy Services is prohibited.
b. Registration and Your Information.
i. If you want to use certain features of the Filmocracy Services you’ll have to create an account (“Account”). You can do this via the Filmocracy Site or through your account with certain third-party social networking services such as Facebook (each, an “SNS Account”). If you choose the SNS Account option we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
ii. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all inaccuracies in your Account information and all activities that occur under your Account, whether or not you know about them.
c. Your License. Subject to your compliance with these Terms, Filmocracy grants you a limited, non-exclusive, non-transferable license, with no right to sublicense, to use the Filmocracy Services on the Properties, including accessing and viewing the Content on a streaming-only basis through the Video Player, solely in connection with your permitted use of the Filmocracy Services and solely for personal, non-commercial purposes as set forth in these Terms.
d. The Content. The Content is available for permissible viewing on or through the following (collectively, the "Properties"):
i. the Filmocracy Site;
ii. Filmocracy's affiliate and distributor websites; and
iii. Filmocracy authorized applications, features or devices or websites, including the Apps.
You may only access and view the Content personally and for a non-commercial purpose in compliance with these Terms. You may not either directly or through the use of any device, software, internet site, web-based service, or other means remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices marked on the Content or any digital rights management mechanism, device, or other content protection or access control measure associated with the Content including geo-filtering mechanisms. You may not use technologies to access the Content from territories where Filmocracy does not have rights or does not offer services. You may not either directly or through the use of any device, software, internet site, web-based service, or other means copy, download, stream capture, reproduce, duplicate, archive, distribute, make available, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit the Content unless expressly permitted by Filmocracy in writing. You may not incorporate the Content into, or stream or retransmit the Content via, any hardware or software application or make it available via frames or in-line links unless expressly permitted by Filmocracy in writing. Furthermore, you may not create, recreate, distribute or advertise an index of any significant portion of the Content unless authorized by Filmocracy. You may not build a business utilizing the Content, whether or not for profit. The Content covered by these restrictions includes without limitation any text, graphics, layout, interface, logos, photographs, audio and video materials, and stills. In addition, you are strictly prohibited from creating derivative works or materials that otherwise are derived from or based on in any way the Content, including without limitation montages, mash-ups and similar videos, wallpaper, desktop themes, greeting cards, and merchandise, unless it is expressly permitted by Filmocracy in writing. This prohibition applies even if you intend to give away the derivative materials free of charge.
• The Video Player. You may not modify, enhance, remove, interfere with, or otherwise alter in any way any portion of the Video Player, its underlying technology, any digital rights management mechanism, device, or other content protection or access control measure incorporated into the Video Player. This restriction includes, without limitation, disabling, reverse engineering, modifying, interfering with or otherwise circumventing the Video Player in any manner that enables users to view the Content without: (i) displaying visibly both the Video Player and all surrounding elements (including the graphical user interface, any advertising, copyright notices, and trademarks) of the webpage where the Video Player is located; and (ii) having full access to all functionality of the Video Player, including, without limitation, all video quality and display functionality and all interactive, elective, or click-through advertising functionality.
• The Apps.
i. Subject to your compliance with these Terms, Filmocracy grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the Apps on a mobile device or computer that you own or control and to run such copy solely for your own personal non-commercial purposes on such mobile device.
ii. You may not copy an App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the Apps; (ii) distribute, transfer, sublicense, lease, lend or rent the Apps to any third party; (iii) reverse engineer, decompile or disassemble the Apps; or (iv) make the functionality of the Apps available to multiple users through any means. Filmocracy reserves all rights in and to the Apps not expressly granted to you under these Terms.
ii. Accessing Apps from App Store.The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:
i. These Terms are concluded between you and Filmocracy, and not with the App Provider, and Filmocracy (not the App Provider), is solely responsible for the App.
ii. The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
iii. In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Filmocracy.
iv. The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
v. In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Filmocracy will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
vi. The App Provider, and its subsidiaries, are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
vii. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
viii. You must also comply with all applicable third party terms of service when using the App.
• Ownership. Filmocracy and Filmocracy’s licensors exclusively own, control and retain all right, title and interest in and to the Filmocracy Services, including the Content, including all associated intellectual property rights. You acknowledge that the Filmocracy Services, including without limitation the Content, are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Filmocracy Services, including without limitation the Content.
• Your Responsibilities and Filmocracy’s Enforcement Rights. You can use the Filmocracy Services for lawful, non-commercial, and appropriate purposes only. You agree not to engage in any conduct that that:
i. (a) violates the rights of others, including patent, trademark, trade secret, copyright, moral rights or other intellectual property rights, or rights of privacy, publicity, or other proprietary rights, harasses or harms another individual, impersonates any person or entity, or otherwise misrepresents yourself or your affiliation with any person or entity; or (b) is fraudulent, false, misleading or deceptive;
ii. uses technology or other means to access, index, frame, search or link to the Filmocracy Services (including the Content) that is not authorized by Filmocracy; remove, avoid, deactivate, descramble disable, bypass, or circumvent any technological measure implemented by Filmocracy or any of Filmocracy’s providers or any other third party (including another user) to protect Filmocracy Services, including without limitation content protection or access control mechanisms intended to prevent the unauthorized download, stream capture, linking, framing, reproduction, access to, or distribution of the Filmocracy Services;
iii. accesses, tampers with, or uses non-public areas of the Filmocracy Services, Filmocracy’s computer systems, or the technical delivery systems of Filmocracy’s providers;
iv. involves accessing the Filmocracy Services (including the Content) through any automated means, including "robots," "spiders," or "offline readers" (other than by individually performed searches on publicly accessible search engines for the sole purpose of, and solely to the extent necessary for, creating publicly available search indices - but not caches or archives - of the Filmocracy Services, excluding those search engines or indices that host, promote, or link primarily to infringing or unauthorized content);
v. uses any meta tags or other hidden text or metadata utilizing a Filmocracy trademark, logo URL or product name without Filmocracy’s express written consent
vi. access the Filmocracy Services, including without limitation Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
vii. deciphers, decompiles, disassembles or reverse engineers any of the software used to provide the Filmocracy Services;
viii. interferes with the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Filmocracy Services;
ix. introduces viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
x. damages, disables, overburdens, impairs, or gains unauthorized access to the Filmocracy Services, including Filmocracy's servers, computer network, or user accounts;
xi. removes, modifies, disables, blocks, obscures or otherwise impairs any advertising in connection with the Filmocracy Services (including the Content);
xii. uses the Filmocracy Services to advertise or promote services that are not expressly approved in advance in writing by Filmocracy;
xiii. probe, scan or test the vulnerability of any Filmocracy system or network or breach any security or authentication measures;
xiv. collects or stores personally identifiable information from Filmocracy Services without Filmocracy’s authorization;
xv. violates, or encourages conduct that would violate, any applicable law or regulation, constitute a criminal offense or give rise to civil liability;
xvi. violates these Terms or any guidelines or policies posted by Filmocracy;
xvii. interferes with any other party's use and enjoyment of the Filmocracy Services; or
xviii. encourages or enables any other individual to do any of the foregoing or attempts to do any of the foregoing.
We have the right to investigate violations of these Terms or conduct that affects the Filmocracy Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
If Filmocracy determines in its sole discretion that you are violating any of these Terms, we may (i) notify you, (ii) use technical measures to block or restrict your access or use of the Filmocracy Services, and/or (iii) use any other available legal or equitable remedy. In either case, you agree to immediately stop accessing or using in any way (or attempting to access or use) the Filmocracy Services, and you agree not to circumvent, avoid, or bypass such restrictions, or otherwise restore or attempt to restore such access or use.
• No Spam/Unsolicited Communications. We know how annoying and upsetting it can be to receive unwanted email or instant messages from people you do not know. Therefore, no one may use the Filmocracy Services to collect information about users for the purpose of sending, or to facilitate or encourage the sending of, unsolicited bulk or other communications. You understand that we may take any technical remedies to prevent spam or unsolicited bulk or other communications from entering, utilizing, or remaining within our computer or communications networks. If you Post (as defined below in Section 5) or otherwise send spam, advertising, or other unsolicited communications of any kind through the Filmocracy Services, you acknowledge that you will have caused substantial harm to Filmocracy and that the amount of such harm would be extremely difficult to measure. As a reasonable estimation of such harm, you agree to pay Filmocracy $50 for each such unsolicited communication you send through the Filmocracy Services.
• Downloads. In order to participate in certain Filmocracy Services or access certain Content, you may be notified that it is necessary to download software or other materials or agree to additional terms and conditions. Unless otherwise provided by these additional terms and conditions, they are hereby incorporated into these Terms.
• Suspension/Discontinuation. We hope not to, but we may change, suspend, or discontinue - temporarily or permanently - some or all of the Filmocracy Services (including the Content and the devices through which the Filmocracy Services are accessed), with respect to any or all users, at any time without notice. You acknowledge that Filmocracy may do so in Filmocracy's sole discretion. You also agree that Filmocracy will not be liable to you for any modification, suspension, or discontinuance of the Filmocracy Services.
• Internet Access Charges. You are responsible for any costs you incur to access the internet.
• Customer Service. If we can be of help to you, please do not hesitate to contact our customer service department by visiting our customer service web page on Filmocracy.com.
3. PRIVACY POLICY For information about Filmocracy's policies and practices regarding the collection and use of your personally identifiable information, please read Filmocracy's Privacy Policy available at Filmocracy.com/static/privacy. You acknowledge and agree that your presence on the Filmocracy Site and use of the Filmocracy Services is subject to our Privacy Policy.
4. USER MATERIAL Your Posts. Any licenses you have previously granted to Filmocracy and/or Filmocracy’s users to the reviews, comments, or other materials (collectively, "User Material") you may have published, transmitted, submitted, or posted (collectively, "Post") to Filmocracy Services continue under these Terms. Further, any representations and warranties that you own the User Material or otherwise have the right to grant Filmocracy the license provided below and that the Posting of your User Material does not violate any right of any party, including privacy rights, publicity rights, and intellectual property rights, continue to be valid and have full effect. In addition, you agree to pay for all royalties, fees, and other payments owed to any party by reason of your Posting User Material. Filmocracy continues to disclaim any guarantees of confidentiality with respect to any User Material. Third Party Posts. You agree to waive any legal or equitable rights or remedies you may have against Filmocracy with respect to User Material provided by other users.
5. LINKED DESTINATIONS AND ADVERTISING Third Party Destinations . Filmocracy Services (including the Apps) may contain links to third-party websites or resources, or destinations. You will not infer or assume that Filmocracy endorses, operates, controls, is responsible for or is connected with these or other third-party websites, resources or destinations, even if they link to Filmocracy Services and even if such websites, resources, or destinations are operated by a person (including legal entity) affiliated or otherwise connected with Filmocracy. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites, resources, and destinations or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites, resources, and destimations, and release Filmocracy from any responsibility and liability to you for any content or other materials hosted and served from any such websites, resources, or destination. These Terms do not govern your use of any other websites, resources, or destinations.Advertisements . Filmocracy takes no responsibility for advertisements or any third party material Posted on any of the Properties, nor does it take any responsibility for the products or services provided by advertisers. Any dealings you have with advertisers found while using the Filmocracy Services are between you and the advertiser, and you agree that Filmocracy is not liable for any loss or claim that you may have against an advertiser.
6. TRADEMARKS Filmocracy, the Filmocracy logo, www.Filmocracy.com, and other Filmocracy marks, graphics, logos, scripts, and sounds are trademarks of Filmocracy. You may not copy, download or exploit any of the Filmocracy trademarks.
7. FEEDBACK It is Filmocracy's policy not to accept unsolicited submissions, including scripts, story lines, articles, fan fiction, characters, drawings, information, suggestions, ideas, or concepts ("Unsolicited Submissions"). Filmocracy's policy is to delete any such submission without reading it. Therefore, any similarity between an Unsolicited Submission and any elements in any Filmocracy creative work, including a film, series, story, title, or concept, would be purely coincidental. We welcome feedback, comments and suggestions for improvements to the Filmocracy Services (“Feedback”). You can submit Feedback by emailing us at feedback@filmocracy.com (subject line: "Feedback"). You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
8. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNITY YOU AGREE THAT USE OF THE FILMOCRACY SERVICES IS AT YOUR OWN RISK. THE FILMOCRACY SERVICES, INCLUDING THE FILMOCRACY SITE AND THE OTHER PROPERTIES, THE CONTENT, THE VIDEO PLAYER, USER MATERIAL, AND ANY OTHER MATERIALS CONTAINED ON OR PROVIDED THROUGH THE PROPERTIES, ARE PROVIDED "AS IS" AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, FILMOCRACY DOES NOT MAKE ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATIBILITY, QUIET ENJOYMENT, NONINFRINGEMENT OR ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE; OR THAT THE FILMOCRACY SERVICES WILL BE UNINTERRUPTED, SECURE, FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, ACCURATE, TIMELY, TRUTHFUL, ERROR FREE, OR RELIABLE. IN NO EVENT SHALL FILMOCRACY OR ITS AFFILIATES, SUCCESSORS, AND ASSIGNS, AND EACH OF THEIR RESPECTIVE INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND SUPPLIERS (INCLUDING DISTRIBUTORS AND CONTENT LICENSORS) (COLLECTIVELY, THE "FILMOCRACY PARTIES"), BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN ANY WAY RELATED TO THE THESE TERMS OR THE USE OF THE FILMOCRACY SERVICES (INCLUDING ANY INFORMATION, PRODUCTS, OR SERVICES ADVERTISED IN, OBTAINED ON, OR PROVIDED THROUGH THE PROPERTIES ), WHETHER BASED IN WARRANTY, CONTRACT, TORT, STRICT LIABILITY, OR OTHER THEORY, EVEN IF THE FILMOCRACY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU TO US, IF ANY, FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TO USE OF THE FILMOCRACY SERVICE OR $50 (WHICHEVER IS LESS). THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FILMOCRACY AND YOU. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD THE FILMOCRACY PARTIES HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS), AND OTHER LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OR ALLEGED BREACH OF THESE TERMS OR YOUR ACCESS TO OR USE OF THE FILMOCRACY SERVICES (INCLUDING YOUR USE OF THE CONTENT). FILMOCRACY RESERVES THE RIGHT, AT OUR OWN EXPENSE, TO EMPLOY SEPARATE COUNSEL AND ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
NOTICE AND PROCEDURE FOR CLAIMS OF COPYRIGHT INFRINGEMENT We respect copyright law and expect our users to do the same. It is our policy to terminate in appropriate circumstances subscribers or account holders who have been adjudicated as repeat infringers on Filmocracy Services. We accept proper notifications of claimed copyright infringements that comply with the appropriate subsection of 17 U.S.C. § 512 regarding material or information location tools residing on our Filmocracy Services. Please direct notifications of claimed copyright infringements to Filmocracy's copyright agent at dmca@filmocracy.com (subject line: "DMCA Takedown Request"). You may also contact us by mail at:
Attention: Copyright Agent
Filmocracy, 315 Montgomery St
San Francisco, CA 94104
+1 (415) 504-3505
DISPUTE RESOLUTION AND ARBITRATION OF CLAIMS
a. Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Filmocracy Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Filmocracy agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Filmocracy are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive termination of these Terms.
b. Exceptions and Opt-out. As limited exceptions to Section 10(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at legal@filmocracy.com or by regular mail at Filmocracy, 315 Montgomery St, San Francisco, CA 94104 within thirty (30) days following the date you first agree to these Terms.
c. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available atwww.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
d. If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator will have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
e. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
f. Class Action Waiver. YOU AND CLIENT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section will be null and void.
g. Effect of Changes on Arbitration. Notwithstanding the provisions of Section 1 “Changes to Terms of Use by Filmocracy” above, if Filmocracy changes any of the terms of this Section 10 “Dispute Resolution and Arbitration of Claims” after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to legal@filmocracy.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Filmocracy’s email to you notifying you of such change, as applicable. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Filmocracy in accordance with the terms of this Section 10 “Dispute Resolution and Arbitration of Claims” as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
h. Severability. With the exception of any of the provisions in Section 10(e) of these Terms ("Class Action Waiver"), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
11. TERMINATION We may terminate your access to and use of the Filmocracy Services, at our sole discretion, at any time and without notice to you. Without limiting the forgoing, we may, at our sole discretion, without notice to you, terminate or restrict your Account or your use of the Filmocracy Services, including the Content, or any portion thereof, at any time, without liability, if Filmocracy determines in its sole discretion that you have breached these Terms of Use, violated any law, rule, or regulation, engaged in other inappropriate conduct, place an undue burden on our networks or servers or for any other business reason or no reason. We may further use technology to limit activities, such as the number of calls to the Filmocracy servers being made, and you agree to respect these limitations and not take any steps to circumvent, avoid, or bypass them.
You may cancel your Account via the functionality provided in Filmocracy Services.
Upon any termination, discontinuation or cancellation of the Filmocracy Services or your Account, the following Sections will survive 2(b)(ii), 2(f)(ii), 2(h), 2(g), 6, 8, 10, 11, and 12.
12. GENERAL INFORMATION
Export Controls. Software and the transmission of applicable technical data, if any, in connection with the Filmocracy Services are subject to export controls. You agree to comply with all applicable laws regarding software and the transmission of technical data exported from the United States or the country in which you reside.
Choice of Law and Forum. These Terms and any action related thereto will be governed by, and construed in accordance with, the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 10 “Dispute Resolution and Arbitration of Claims,” the exclusive jurisdiction for all Disputes (defined below) that you and Client are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and Client each waive any objection to jurisdiction and venue in such courts.
No Waiver/Reliance. If you see other parties violating these Terms, you may let us know at feedback@filmocracy.com (subject line: "TOU Violation"). You may not rely upon Filmocracy's response with respect to one party or one situation as any indication of what Filmocracy might do with respect to another party or another situation, even if the parties or situations appear to you to be similar. Similarly, if we fail to act in response to a violation of these Terms of Use, you should not assume that we do not object to the violation or even that we are aware of it. In addition, you may not construe a waiver of any provision of these Terms of Use with respect to any party as a waiver of that provision (or any other provision) with respect to either that party or any other party. Further, Filmocracy's decision to delay exercising or enforcing any right or remedy under these Terms of Use will not constitute a waiver of such right or remedy. Even if Filmocracy acts in a way that appears to you to be inconsistent with these Terms of Use, Filmocracy's action will not be deemed a waiver or constructive amendment of these Terms. Filmocracy’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Filmocracy. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Integration, Amendment, and Severability. Please note that these Terms of Use, including any end user license agreement that might accompany Filmocracy authorized applications, features and devices, constitute the entire legal agreement between you and Filmocracy and govern your use of the Filmocracy Services (including your use of the Content) (but excludes any services, if any, that Filmocracy may provide to you under a separate signed written agreement), and completely replace any prior oral or written understandings or agreements between you and Filmocracy in relation to the Filmocracy Services, including Content. Except as set forth in Section 1 above, these Terms may not be amended or varied except in a writing signed by Filmocracy. Although we understand that electronic or digital signatures are frequently viewed as the equivalent of traditional written signatures these days, for these purposes, a signature or "signed" writing or written agreement may not include an electronic or digital signature. These Terms of Use operate to the fullest extent permissible by law. If any provision of these Terms is held to be unlawful, void, or unenforceable, you and we agree that the provision will be enforced to the maximum extent permissible and and the other provisions of these Terms will remain in full force and effect.
Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without Filmocracy’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Filmocracy may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns
Notices. Any notices or other communications provided by Filmocracy under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Contact. If you have any questions about these Terms or the Filmocracy Services, please contact legal@filmocracy.com