Terms of Service
Topic.com Terms of Service
Last updated July 21, 2020:
These Terms of Service (“Terms”) set forth a legally binding agreement between you and First Look Productions, Inc. (“First Look”, “we”, “our”, or “us”), and govern your use of our websites, mobile applications, and online service locations that post a link to these Terms as well as all features, content, and other services that we own, control, and make available through such online service locations (collectively, the “Services”). By using the Services, you accept these Terms and consent to the collection, use, and sharing of your data and other activities as described in our Privacy Policy, the terms of which are incorporated herein. Please read these Terms and our Privacy Policy carefully before using the Services. Importantly, please read the section below titled Agreement to Arbitrate Disputes and Choice of Law, as that section describes how disputes between us shall be resolved through binding arbitration and your waiving the ability to bring or participate in a class action lawsuit in court. If you don’t agree to these Terms, you may not use the Services.
Our Services are continually evolving and additional terms may apply to your use of particular Services (“Additional Terms”), along with these Terms. We will post Additional Terms (or a link to Additional Terms) on any Services to which they apply and such Additional Terms are incorporated by reference into these Terms. To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless they expressly state otherwise. Print or save these Terms for your reference.
We may need to make changes to these Terms and any Additional Terms from time to time for many reasons. If we make a material change to these Terms or any Additional Terms, we will notify you by posting a notice on our website. If you have registered to use the Services, then we will also send an email registered to your account about the changes to these Terms prior to the material change taking effect. Any material change to these Terms will be effective automatically 30 days after the revised Terms are first posted or, for users who register or otherwise provide opt-in consent during this 30-day period, at the time of registration or consent, as applicable.
GENERAL PROVISIONS
We reserve the right to deny access to the Services, without notice, to anyone who violates these Terms or violated any law, rule, or regulation, engaged in inappropriate conduct, or who, in our judgment, interferes with the ability of others to enjoy this service or violates the rights of others. We may change, restrict access to, suspend, or discontinue the Services and Content (as defined below), or any portion of the Services or Content, to any individual user or all users, for any reason, in our sole discretion, and without advance notice or liability, at any time. Upon suspension or termination of your access to the Services, or upon notice from First Look, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Services. The provisions of these Terms and any applicable Additional Terms, which by their nature should survive your suspension or termination, including sections on Services Use, Accounts, Our Content (except for the limited license), Submissions, Notice of Copyright Infringement, Customer Support, Services Features, Disclaimers, Limitations of Liability, Indemnification, Agreement to Arbitrate Disputes and Choice of Law, Waiver of Injunctive or Other Equitable Relief, Miscellaneous, California Consumer Rights and Notices, and Terms Applicable for Apple iOS, will survive.
Please bring to our attention any material on our Services that you believe to be inaccurate. Please forward a copy of the material to us here.
Services Use
If you are under the age of majority in the jurisdiction in which you reside, then you are not permitted to use the Services or Content. You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the Services and Content. You further agree that you will not: (i) use the Services or Content for any commercial purpose; (ii) engage in any activity in connection with the Services or Content that is unlawful, harmful, offensive, obscene, violent, threatening, harassing, abusive, or otherwise objectionable to First Look; (iii) harvest any information from the Services; (iv) reverse engineer or modify the Services; (v) interfere with the proper operation of or any security measure used by the Services; (vi) infringe any intellectual property or other right of any third party; (vii) use the Content in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; (viii) use the Services in a manner that removes, modifies, disables, blocks, obscures, or otherwise impairs any advertising in connection with the Services; (ix) advertise or promote services that are not expressly approved in advance by First Look; (x) collect any information about other users for the purpose of sending, facilitating, or encouraging unsolicited bulk or other communications; (xi) interfere with any other party’s use or enjoyment of the Services; or (xii) otherwise violate these Terms or any applicable Additional Terms.
ACCOUNTS
Certain features of the Services may require you to register an account. For example, you may need to register an account to access video content on the Services or if you sign up for Subscriptions, as defined below. When you register an account, you agree: (i) to these Terms and consent to our collection, use and disclosure practices, and other activities as described in our Privacy Policy; (ii) you will provide and keep accurate, current, and complete information about yourself; (iii) you will not use an email address that violates the intellectual property or other right of any third party, or is offensive; (iv) you are solely responsible for all activities that occur under your account– whether or not you authorized the activity; (v) you will abide by the Services and Content use restrictions set out in these Terms; (vi) you are solely responsible for maintaining the confidentiality of any username and password you provide and will not transfer or share your username or password with any third party; (vii) you will immediately notify us if your username or password is lost or stolen, of any unauthorized use of your account, or of any other breach of security; and (viii) we will not be liable for any loss or damage to you or any third party arising from your failure to comply with any of the foregoing obligations.
If you would like to receive our email newsletters, you will need to provide us your email address.
OUR CONTENT
The Services contain: (i) materials and other items relating to First Look and its products and services, and similar items from our licensors and other third parties, including all layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Services, and the compilation, assembly, and arrangement of the materials of the Services and any and all copyrightable material; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of First Look; and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”). The Services are made available for your personal, noncommercial use only. Unless otherwise identified on the Services, all right, title, and interest in and to the Content and the Services is the property of First Look or its licensors or certain third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws, and international conventions, to the fullest extent possible. Except as explicitly provided in these Terms, you may not reproduce, distribute, display, perform, create derivative works from, or otherwise exploit any of the Content or the Services.
Subject to your strict compliance with these Terms and the Additional Terms, First Look grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download, display, view, use, and play the Content on a personal computer, browser, laptop, tablet, mobile phone, or other Internet-enabled device (each, a “Device”) and/or occasionally print a single copy of the Content as it is displayed to you, in each case for your personal, non-commercial use only, provided that you keep intact all credits and copyright and other proprietary notices. You may not otherwise reproduce, store, or distribute copies of any Content, in any form (including electronic form), or exploit any of the Content you find here for any commercial purpose, without prior written permission from First Look and/or its licensors or other third-party copyright owners. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in First Look’s sole discretion, and without advance notice or liability. Your unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.
If you are viewing our video Content, we use various technologies to provide you with an optimal viewing experience. However, the quality of video Content, such as resolution, may be affected by various factors, such as the format of the video, your location, the speed and bandwidth of your Internet services, and the Device you use to view the video Content, among other factors. The time it takes to begin watching the video Content will vary based on a number of factors, such as your location, available bandwidth at the time, the Content and configuration you have selected, and the configuration of the device you are using. We make no representations or warranties regarding the quality of your watching experience on your display. You are responsible for any costs associated with your Internet service used to access the Services and video Content.
You may view video Content primarily within the country in which you have established your account and only in geographic locations where offer our Services and video Content. The availability of video Content will vary by geographic location and will change from time to time. The number of devices on which you may simultaneously watch varies depending on the Subscriptions you choose and may require device and account verification.
To request permission to reproduce or distribute our material found on the Services, please contact us here.
You are free to establish links to our Services so long as those links do not state or imply that we sponsor, endorse, or are affiliated with you or your website or service. However, unless otherwise provided on the Services or without prior written permission, you may not frame or inline link any of the Content, or incorporate into another website or other service any of the Content without prior written permission.
All rights not expressly granted to you are reserved by First Look and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of any Content or the Services for any purpose is prohibited.
Submissions
Certain areas of the Services may allow you to post content viewable by the First Look community, such as through message boards, reviews, comments, or content submitted directly to us, such as feedback (collectively, “Submissions”). You agree that your Submissions will not: (i) promote any political or commercial purpose; (ii) defame, abuse, harass, stalk, or threaten others; (iii) use racially or ethnically offensive language; (iv) discuss or incite illegal activity; or (v) infringe any intellectual property or other right of any third party. We have the right to moderate and remove any of the content you post. Please note that if you post Submissions on our site using a third-party service, such as a social media network or email provider, your first and last name or other user ID may appear to the public each time you post. We advise that you do not, and you should also be careful if you decide to, post additional personal information, such as your email address, telephone number, or street address.
You grant us a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your Submissions and derivative works thereof, for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You also irrevocably consent to our use and association of your name in connection with your Submissions and derivatives thereof. You agree to waive any moral rights that you may have in any Submissions, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section. Our receipt of your Submissions is not an admission of their novelty, priority, or originality, and it does not impair our right to contest existing or future intellectual property rights relating to your Submissions. Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your Submissions and you remain ultimately responsible for it.
While we have these restrictions, please be aware that some Submissions may be objectionable, inaccurate, or inappropriate. First Look does not endorse any Submissions, and Submissions that are posted on our site do not reflect First Look’s policies or opinions. We reserve the right, but have no obligation, to monitor Submissions and to restrict or remove Submissions that we determine, in our sole discretion, are inappropriate or for any other business reasons, as permitted by law. First Look does not assume any responsibility or liability for any Submissions, and you agree to waive any legal or equitable rights or remedies you may have against First Look with respect to such Submissions.
Unsolicited Materials
First Look does not accept any unsolicited materials or submissions, such as scripts, story lines, articles, or similar materials. First Look’s policy is to delete any such submission without reading it. Should you send any unsolicited materials or ideas, you do so with the understanding that no additional consideration of any sort will be provided to you, and you are waiving any claim against First Look and its affiliates regarding the use of such materials and ideas, even if material or an idea is used that is substantially similar to the material or idea you sent.
NOTICE OF COPYRIGHT INFRINGEMENT
First Look respects the intellectual property rights of others and expects those who use the Services to do the same. If you are a copyright owner who believes your copyright protected material has been copied on the Services in a way that constitutes copyright infringement in the U.S.A., please notify First Look of your claim of infringement by sending the following written information to our Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(c)(2), named below:
(1) a detailed description of the copyrighted work that is allegedly infringed; (2) a description of the location of the allegedly infringing material on the Services; (3) your contact information, including your address, telephone number, and email address; (4) a statement by you indicating that you have a good-faith belief that the allegedly infringing use is not authorized by the copyright owner, its agent, or the law; (5) a statement by you, made under penalty of perjury, affirming that the information in your notice is accurate and that you are authorized to act on the copyright owner’s behalf; and (6) an electronic or physical signature of the copyright owner or someone authorized on the owner’s behalf to assert infringement of copyright and to submit the statement.
We will respond to notices of claimed copyright infringement in accordance with the DMCA. It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers. Our designated Copyright Agent to receive DMCA Notices is:
SVP, Business and Legal Affairs First Look Productions, Inc. 114 Fifth Avenue, New York, New York 10011 917.477.6500 DMCA@firstlook.media
(This address is to be used only to notify us of claimed copyright infringement on the Services. Please direct any other comments or inquiries to the Customer Support address below.)
Please note that we may access and disclose your personally identifiable information in order to address any infringement claim.
SUBSCRIPTIONS AND PRODUCTS
Certain Services require payment on a recurring, subscription basis before you can access them (“Subscriptions”). For example, you may need to subscribe in order to access certain video content on our Services. Subscriptions can be purchased by providing a credit card, debit card, bank account or other payment method accepted by First Look (“Payment Method”) and paying the Subscription fee each month.
By purchasing a Subscription, you authorize us to automatically charge your credit or debit card, or electronically debit the bank account, that you designated as your Payment Method, on a recurring basis starting on the date of your purchase and each month thereafter, for the amount of your Subscription fee (plus any applicable taxes) as shown during checkout (and, if necessary, to credit your Payment Method to correct any erroneous debits). We will email you a copy of your authorization to the email address we have on file for you.
Your Subscription will automatically renew at the end of each Subscription period, unless you cancel your Subscription by logging into your subscription page and cancelling the Subscription before the last day of the current Subscription period. SUBSCRIPTIONS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND FIRST LOOK WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID FOR THAT SUBSCRIPTION PERIOD. Following any cancellation, we will withdraw your authorization to charge your Payment Method, however, you will continue to have access to the Services through the end of your current billing period. The cancellation will take effect the day after the last day of the current subscription period.
You are responsible for keeping your Payment Method up to date. You agree to notify us of any changes in your Payment Method information (including any replacement Payment Method) as soon as possible by logging into your registered account and viewing your account details. If your bank or credit card company notifies us that your Payment Method information has changed, you authorize us to automatically update your Payment Method to reflect such change and continue charging the updated Payment Method.
You are solely responsible for any and all fees charged to your Payment Method and any uncollected amounts. If your payment is not successfully settled, due to insufficient funds, expiration of your Payment Method, or otherwise, and you do not cancel your account, we may suspend your access to the Services until we have successfully charged a valid Payment Method. We also reserve the right to pursue any amounts you fail to pay in connection with your Subscriptions, including collection costs, bank overdraft fees, collection agency fees, reasonable attorneys’ fees, and arbitration or court costs. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Check with your Payment Method service provider for details.
First Look may change the price for the Subscriptions, from time to time, by posting the new price on its Services. Price changes for Subscriptions will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the Services after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by cancelling your Subscription prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully.
We may offer free trials for certain Subscriptions, subject to Additional Terms provided to you when you sign up. You can view the details of your free trial when you log into your account. First Look reserves the right to determine your eligibility for a free trial in order to prevent free trial abuse, which may vary based on several factors, including, but not limited to, the Services or Subscriptions you select and how recently you redeemed a free trial. We will charge the fee for the applicable Subscription period to your Payment Method at the end of the free trial period and your membership will automatically renew unless you cancel your membership prior to the end of the free trial period.
If we offer you a promotion, such as a promotional price or bundled Subscriptions, the specific terms of the promotion will be disclosed during your sign-up or in other materials, such as Additional Terms, provided to you. We will charge your Payment Method for your Subscriptions at the then-current, non-promotional price after your promotion ends unless you cancel prior to the end of your promotional period or as otherwise disclosed.
We do our best to describe every product or service offered on our Services as accurately as possible. However, we do not warrant that product specifications, pricing, or other content on the Services is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications, First Look shall have the right to refuse or cancel any orders in its sole discretion. If we charged your Payment Method prior to our cancellation, we will issue a credit to your Payment Method in the amount of the charge. If a product or service you purchased from First Look is not available or otherwise not as described, your sole remedy is to cancel the purchase and receive a credit for the purchase price. Our licensors and content providers are not liable to you for unavailability of content or for your dissatisfaction with the Services.
For any purchases made through third-party platform providers, such as Apple, Amazon, Roku, or Google, please contact their customer support. Their terms, conditions and policies, and not ours, apply and we do not handle returns or refund requests for purchases through those third-party platform providers.
Customer Support
If you have any questions, please send an email to us here. You acknowledge that the provision of support is at First Look’s sole discretion and that we have no obligation to provide you with customer support of any kind. All legal notices to us must be mailed to: First Look Productions, Inc., 114 Fifth Ave, New York, NY 10011. When you communicate with us electronically, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Services Features
Wireless Features. The Services may offer features that are available to you via your wireless Device including the ability to access the Services’ features and upload content to the Services, and receive messages from the Services (collectively, “Wireless Features”). By using the Services, you agree that First Look may collect information related to your use of the Wireless Features as described in our Privacy Policy, and may change, alter, or modify the settings or configurations on your Device in order to allow for or optimize your use of the Services. Data rates and other carrier fees may apply.
Communications. By providing your mobile phone number and using the Services, you hereby affirmatively consent to us sending you ongoing text messages (including prerecorded and/or by automatic telephone dialing systems) for marketing purposes, including related to our video content and subscriptions. First Look will not assess any charges for text messages, but standard message charges or other charges from your wireless carrier may apply. You can learn how to opt-out of receiving certain promotional communications (emails, text messages, and push notifications) from us at any time by visiting our Privacy Policy.
Location-Based Features. If you have location-based features on your wireless Device, you acknowledge that your Device location will be tracked and shared consistent with the Privacy Policy. You can terminate location tracking by us by adjusting the permissions in your mobile device or uninstalling our mobile app. Location-based features are used at your own risk and location data may not be accurate.
DISCLAIMERS
Third Parties. Throughout our Services, we provide links to websites and other services maintained by third parties. Our linking to such third-party services does not imply that we endorse such services, or the information, products or services offered on or through those services. The Services may also contain or may interact with third-party content that is not owned, controlled or operated by First Look (collectively, “Third-Party Services”). We may also host our content on Third-Party Services. First Look neither endorses nor controls such Third-Party Services, and you acknowledge and agree that we are not responsible or liable for the information, content, products, or services on or available from such Third-Party Services, or for the results to be obtained from using them. If you choose to access any such Third-Party Services, you do so at your own risk.
Any interactions, transactions, and other dealings that you have with any third parties found on or through the Services are solely between you and the third party. You hereby agree to indemnify First Look against all claims, injury, damages, and costs, including attorneys’ fees that arise out of your use of any Third-Party Service.
Third Party Advertising. There may be third-party advertisements available or posted on the Services or the Content. We may offer some Content at no cost to the Subscriber because it includes additional third-party advertisements. First Look does not take any responsibility for any third-party advertisements, nor do we take any responsibility for the products or services provided by advertisers. Any dealings you have with advertisers while using the Services, such as when you engage with interactive advertisements, are between you and the advertiser, and you agree that First Look is not liable for any loss or claim that you may have against an advertiser. If you provide any personal information or other confidential information or engage in a transaction through an advertisement, First Look will not be involved or responsible for such transaction. We encourage you to read the terms of use or privacy policy of the advertiser or other party collecting your information or engaging in such transaction.
As Is. The Services are provided “as is,” and “as available,” with all faults, and without warranties of any kind, either express or implied. To the fullest extent permitted by applicable law, we disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. We do not warrant that the Services or any of the functions therein will be uninterrupted or error-free, that defects will be corrected, or that any part of the Services, or the servers that make the Services available, are free of viruses or other harmful components. Any Content downloaded from or otherwise accessed through the Services is accessed at your own risk; you alone will be responsible for any damage to your person or property, including your computer system and any other Device you use to access the Services, which results from accessing such content. NOTWITHSTANDING THE FOREGOING, THE DISCLAIMERS HEREIN DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, OR DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
If you are dissatisfied with the Services or Content, your sole and exclusive remedy is to discontinue using the Services.
LIMITATIONS OF LIABILITY; RELEASE
Under no circumstances, including, but not limited to, negligence, will we be liable for any damages arising out of your use of the Services or of any information or Content made available on or through the Services, including indirect, incidental, special, punitive, exemplary, or consequential damages, even if we are advised beforehand of the possibility of such damages. Because some states do not allow the exclusion or limitation of certain categories of damages, the above limitation may not apply to you. In such states, our liability is limited to the fullest extent permitted by state law.
You hereby release First Look and its affiliates (and their respective directors, officers, employees, agents, representatives, licensors, successors and assigns) from any and all claims, demands, losses, damages, rights, and actions of any kind, including personal injury, death, and property damage, that is related to or arises from your misuse of the Services, including, but not limited to, any interactions with or conduct of other users or third-party websites or services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states that “[a] general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY HEREIN DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, OR DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE
INDEMNIFICATION
You agree to indemnify and hold harmless First Look, our affiliates, and each of our and their respective directors, officers, employees, agents, representatives, licensors, successors and assigns from and against any and all losses, expenses, damages and costs, including reasonable attorneys’ fees, that arise out of your misuse of the Services, violation of these Terms by you, or your violation of any rights of another. We reserve the right to control the defense of any claim for which we are entitled to indemnification under this Section. In such event, you agree to provide us with such cooperation as is reasonably requested by us. We will make reasonable efforts to provide you with notice of any such claim, but our failure to provide such notice will not relieve you of the indemnification obligations. This provision does not require you to indemnify First Look for any unconscionable commercial practice or for First Look’s fraud; deception; false promise; misrepresentation; or concealment, suppression, or omission of any material fact in connection with the Services.
Agreement to Arbitrate Disputes and Choice of Law
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
· WE BOTH AGREE TO ARBITRATE: You and First Look agree to resolve any claims relating to these Terms through final and binding arbitration, except that, to the extent you have in any manner violated or threatened to violate First Look’s intellectual property rights (for example, trademark, trade secret, copyright, or patent rights). Under such circumstances First Look may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
· WHAT IS ARBITRATION: Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
· ARBITRATION PROCEDURES: The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any dispute, controversy, or claim arising out of or relating to these Terms shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures in front of one arbitrator. If there is a conflict between JAMS Rules and the rules set forth in these Terms, the rules set forth in this Terms will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267. To initiate arbitration, you or First Look must do the following things:
· (1) Write a Demand for Arbitration. The demand must include a description of the claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com.
· (2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to your local JAMS office or to: JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111
· (3) Send one copy of the Demand for Arbitration to the other party.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If travelling to New York is a burden, you may participate in the arbitration by phone or via document submission to the fullest extent allowable by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). Arbitration under this agreement shall be held in the United States in New York, NY under New York law without regard to its conflict of laws provisions. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
· AUTHORITY OF ARBITRATOR: The arbitrator will decide the rights and liabilities, if any, of you and First Look, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitration rules, and these Terms (and any applicable Additional Terms). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and First Look.
· NO CLASS ACTIONS: You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
· WAIVER OF JURY TRIAL: THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and First Look in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND FIRST LOOK WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
· OPT-OUT OF AGREEMENT TO ARBITRATE: You can decline this agreement to arbitrate by emailing First Look here with the Subject Line “Arbitration Opt Out” and providing the requested information as follows: (1) your Name; (2) the URL of these Terms; (3) your Address; (4) your Phone Number; (5) and clear statement that you wish to opt out of this arbitration provision in these Terms. The opt-out notice must be emailed no later than 30 days after the date you first accept the Terms by using the Services.
Waiver of Injunctive or Other Equitable Relief.
YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY FIRST LOOK OR A LICENSOR OF FIRST LOOK.
MISCELLANEOUS
These Terms (inclusive of the Privacy Policy, any Additional Terms, and any other terms or policies incorporated here) constitute the entire agreement between us and you with respect to this subject matter and supersedes all previous and contemporaneous agreements and communications on this subject, whether written or oral. The agreement under these Terms is personal to you, is not intended to benefit any third party, and does not create any third-party beneficiaries. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms or the Additional Terms, as applicable, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the applicable Additional Terms. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. First Look may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. You may not assign these Terms or any applicable Additional Terms to anyone, and you may not delegate your duties under them, without the prior written consent of an officer of First Look. No First Look consent or approval may be deemed to have been granted by First Look without being in writing and signed by an officer of First Look. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or First Look in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
Our agreement under these Terms will be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law. You agree that regardless of any statute or law to the contrary, any claim or cause of action that you may have arising out of or related to use of the Services or these Terms must be filed by you within one year after such claim or cause of action arose or be forever barred.
First Look controls and operates the Services from the U.S.A., and First Look makes no representation that the Services are appropriate or available for use beyond the U.S.A. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. Software related to or made available by the Services may be subject to export controls of the U.S.A., and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
First Look reserves the right to investigate and prosecute any suspected breaches of these Terms or the Services. First Look may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
The sections on Indemnification, Limitation of Liability; Release, and Disclaimers do not apply to New Jersey residents.
California Consumer Rights and Notices.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.
Terms Applicable for Apple iOS.
If you are using the Services through an Apple Device, the following additional terms apply:
(i) To the extent that you are accessing the Services through an Apple Device, you acknowledge that these Terms are entered into between you and First Look and, that Apple, Inc. (“Apple”) is not a party to these Terms other than as third-party beneficiary as contemplated below.
(ii) The license granted to you in these Terms is subject to the permitted Usage Rules set forth in the App Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third-party terms of agreement applicable to the Services.
(iii) You acknowledge that First Look, and not Apple, is responsible for providing the Services and Content thereof.
(iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Services.
(v) To the maximum extent not prohibited by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services.
(vi) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and First Look, First Look, and not Apple is responsible for addressing any claims you may have relating to the Services, or your possession and/or use thereof, including but not limited to: (a) product liability claims; (b) any claim that the Services fail to confirm to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
(vii) Further, you agree that if the Services, or your possession and use of the Services, infringe on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
(ix) When using the Services, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Services.