Effective Date: May 9, 2023
Please review these Terms carefully before using the Services because they affect your rights.
By using any of the Services, you accept these Terms and agree to be legally bound by them. These Terms are effective as of the Effective Date above or, if required by law, 30 days after notice to you. If you do not agree with these Terms, your sole remedy is to not use our Services, and you may receive a pro-rated refund for any of your pre-paid fees for our Services (if any are fee-based) you do not use by contacting us at email@example.com within 30 days of the Effective Date of these Terms.
1. Terms; Changes
2. Dispute Resolution; Arbitration Agreement
IF YOU OR WE HAVE ANY DISPUTE WITH OR CLAIM AGAINST THE OTHER (A "CLAIM") ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES OR THESE TERMS, AND THE CLAIM IS NOT RESOLVED BY CONTACTING OUR CUSTOMER SERVICE DEPARTMENT AT INFORMATION@VIACOM.COM AND BY FOLLOWING THE INFORMAL DISPUTE RESOLUTION PROCEDURE SET FORTH BELOW, YOU AND WE EACH AGREE TO RESOLVE SUCH DISPUTES THROUGH AN INDIVIDUAL BINDING ARBITRATION OR AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT. Class arbitrations and class actions are not permitted, and a Claim may not be consolidated with any other person's claim. You and we agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and we are each waiving the right to a trial by jury or to participate in a class action. You and we agree that any arbitrations between you and us will be subject to this Section 2 and not to any prior arbitration agreement you had with us. This Section 2 shall survive termination of these Terms or any subscription or registration that you may have to any of the Services.
2.1 Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure. Before a party commences an arbitration or files a small claims court action with respect to a Claim, the party must first send to the other a written notice of dispute ("Notice"). A Notice from you to us must: (1) be sent by certified mail; (2) be addressed to: Viacom International Inc., 1515 Broadway, New York, NY 10036 Attn: General Counsel (the "Notice Address"); (3) contain your name, address, and email address; (4) describe the nature and basis of your Claim; (5) if you are submitting the Notice, include any relevant facts regarding your use of the Services, including without limitation whether you have created an account; (6) specify the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation of them; and (7) include a personally signed statement from you (and not your agent, attorney, or anyone else purporting to act on your behalf) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person's dispute.
After the other party's receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the dispute for a period of 60 days (which can be extended by agreement). You and we agree that, after receipt of the completed Notice, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually convenient time and to seek to reach a resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).
Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this Section 2.1. All of the requirements of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure are essential so that you and we have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure. If the arbitration is already pending prior to the completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure, the arbitration shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure in arbitration.
2.2 Arbitration Procedure. Any such arbitration shall be governed by applicable rules of National Arbitration & Mediation ("NAM") (including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable) ("NAM Rules"), as modified by this Section 2 (the "Arbitration Agreement,") and will be administered by NAM. (If NAM is unavailable or unwilling to do so, another arbitration provider shall be selected by the parties that will do so, or if the parties are unable to agree on an alternative administrator, by the court pursuant to 9 U.S.C. §5.) The NAM Rules are available online at www.NAMADR.com, by calling NAM at 1-800-358-2550, or by requesting them in writing at the Notice Address. You may obtain a form to initiate arbitration at: https://www.namadr.com/content/uploads/2020/09/Comprehensive-Demand-for-Arb-revised-9.18.19.pdf or by contacting NAM.
You and we agree that the party initiating arbitration must submit a certification that it has complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures requirements referenced in Section 2.1 above and that it is a party to the Arbitration Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented).
All issues, including the scope and enforceability of this Arbitration Agreement, are for the arbitrator to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator's decision is binding only between you and us and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator's award that has been fully satisfied shall not be entered in any court.
As in court, you and we agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions under the NAM Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.
Except as expressly provided in this Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys' fees and costs, in accordance with applicable law. Unless otherwise provided by applicable law, the parties shall bear their own attorneys' fees and costs in arbitration unless the arbitrator awards sanctions or finds that either the substance of the claim, the defense, or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
The payment of arbitration fees (the fees imposed by the arbitration administrator including filing, arbitrator, and hearing fees) will be governed by the applicable NAM Rules, unless you qualify for a fee waiver under applicable law.
In circumstances in which the NAM Rules provide for an in-person hearing, such hearing will take place in the U.S. county (or parish) of your residence, or otherwise in New York, New York. If the Mass Filing process described in Section 2.6 below is triggered, then the location of any hearing will be determined by the arbitrator.
2.3 Discovery During Arbitration. The parties shall each be limited to a maximum of one (1) fact witness deposition per side, unless the arbitrator determines that more depositions are warranted based on the totality of circumstances, including the amount in controversy, the complexity of the factual issues, the number of parties and the diversity of their interests, and whether any or all of the claims appear, on the basis of the pleadings, to have sufficient merit to justify the time and expense associated with the requested discovery. Document requests shall be limited to documents that are directly relevant to the matter(s) in dispute or to its outcome; shall be reasonably restricted in terms of time frame, subject matter and persons or entities to which the requests pertain; shall not include broad phraseology such as "all documents directly or indirectly related to"; and shall not be encumbered with extensive "definitions" or "instructions." The arbitrator may edit or limit the number of document requests based on the totality of circumstances, including the factors listed above.
Electronic discovery, if any, shall be limited as follows. Absent a showing of compelling need: (a) electronic documents shall only be produced from sources used in the ordinary course of business, and not from backup servers, tapes or other media; (b) the production of electronic documents shall normally be made on the basis of generally available technology in a searchable format that is usable by the requesting party and convenient and economical for the producing party; (c) the parties need not produce metadata, with the exception of header fields for email correspondence; (d) the description of custodians from whom electronic documents may be collected should be narrowly tailored to include only those individuals whose electronic documents may reasonably be expected to contain evidence that is material to the dispute; and (e) where the costs and burdens of e-discovery are disproportionate to the nature of the dispute or to the amount in controversy, or to the relevance of the materials requested, the arbitrator may either deny such requests or order disclosure on the condition that the requesting party advance the reasonable cost of production to the other side, subject to the allocation of costs in the final award.
2.4 Confidentiality. Upon either party's request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.
2.5 Offer of Settlement. In any arbitration between you and us, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the Claim. If the award is issued in the other party's favor and is less than the defending party's settlement offer or if the award is in the defending party's favor, the other party must pay the defending party's costs incurred after the offer was made, including any attorney's fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the Claim may be entitled for the cause of action under which it is suing.
2.6 Mass Filing. If, at any time, 25 or more claimants (including you) submit Notices or seek to file demands for arbitration raising similar claims against the other party or related parties by the same or coordinated counsel or entities, consistent with the definition and criteria of Mass Filings ("Mass Filing") set forth in NAM's Mass Filing Supplemental Dispute Resolution Rules and Procedures ("NAM's Mass Filing Rules," available at https://www.namadr.com/resources/rules-fees-forms/), you and we agree that the additional procedures set forth below shall apply. The parties agree that throughout this process, their counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing. The parties acknowledge and agree that by electing to participate in a Mass Filing, the adjudication of their dispute might be delayed. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled beginning when the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are initiated, so long as the pre-arbitration Notice complies with the requirements in Section 2.1 above, until your Claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.
Stage One: Counsel for the claimants and counsel for us shall each select 25 claims per side (50 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and we shall pay the mediator's fee.
Stage Two: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for us shall each select 50 claims per side (100 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge, and we shall pay the mediator's fee.
Stage Three: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for us shall each select 100 claims per side (200 claims total) to be filed and to proceed in individual arbitrations as part of a third staged process, subject to any procedural changes the parties agreed to in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. Following this third set of staged proceedings, counsel for claimants may elect to have the parties participate in a global mediation session of all remaining claims with a retired federal or state court judge.
If your Claim is not resolved as part of the staged process identified above, either:
Option One: You and we may separately or by agreement, opt out of arbitration and elect to have your Claim heard in court consistent with these Terms. You may opt out of arbitration by sending us your individual, personally signed notice of your intention to opt out by certified mail addressed to Viacom International Inc., 1515 Broadway, New York, New York 10036, Attn: General Counsel. Such an opt-out notice must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to opt out of arbitration within 30 days after the conclusion of Stage 3 or the elective mediation associated with Stage 3. We may opt your Claim out of arbitration by sending an individual, personally signed notice of our intention to opt out to your counsel within 14 days after the expiration of your 30-day opt out period. Counsel for the parties may agree to adjust these deadlines.
Option Two: If neither you nor we elect to have your Claim heard in court consistent with Option One, then you agree that your Claim will be resolved as part of continuing, staged individual arbitration proceedings as set forth below. Assuming the number of remaining claims exceeds 200, then 200 claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining claims is fewer than 200, then all of those claims shall be filed and proceed in individual arbitrations. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of 200 claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and with NAM (including through a Procedural Arbitrator, as such term is used in the NAM Rules) to explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining claims.
A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees. If these additional procedures apply to your Claim, and a court of competent jurisdiction determines that they are not enforceable as to your Claim, then your Claim shall proceed in a court of competent jurisdiction consistent with these Terms.
You and we agree that each party values the integrity and efficiency of arbitration and wishes to employ the process for the fair resolution of genuine and sincere disputes between the parties. You and we acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of such cases.
2.7 Severability. If any portion of this Arbitration Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The other portions of this Arbitration Agreement shall continue to be enforceable and valid according to the terms contained herein.
3. Additional Terms
Additional and/or supplemental terms may apply to your use of certain Services ("Additional Terms"), which may include terms and conditions relating to paid content, subscriptions, contests, sweepstakes, or other promotions or activities (e.g., voting rules, etc.). Such Additional Terms may also have certain age or geographic restrictions. There may be certain areas on the Services for which you must be a certain age to access. By using or attempting to use those areas and/or Services, you certify that you are at least the required age for the areas and meet all other eligibility requirements of the Services and agree to all of the terms and conditions of these Terms. If you are not yet the required age for such areas, you do not meet any other eligibility requirements of the Services or, for any reason, you do not agree with all of the terms and conditions contained in these Terms, please discontinue using those areas and/or Services (as applicable) immediately. You are responsible for complying with any such Additional Terms. We will provide any such Additional Terms, including for or related to features of our Services that are provided by third parties, to you or post them on the Services to which they apply, and they are incorporated by reference into these Terms. If there is a conflict between these Terms and any such Additional Terms, the Additional Terms will control solely for such particular use.
4. Registration and Access Controls
5. Intellectual Property; License
5.1 Any audio and video materials, photographs, text, graphics, logos, layouts, designs, interfaces, software, data and other content associated with the Services ("Content") are protected by intellectual property and other laws in the U.S. and in other countries. You must comply with all such laws and applicable copyright, trademark or other legal notices or restrictions. You shall not remove or alter any copyright, trademark, or other legal notices marked on the Content. As between you and us, we will retain all right, title and interest in and to the Services and the Content. No transfer of ownership to any portion of the Content shall be made as a result of any access you are granted. Except as specifically provided below, we reserve all rights in and to the Services and Content.
5.2 You are only permitted to access and view the Content for personal, non-commercial, non-exclusive, non-assignable, non-transferable and limited purposes in accordance with these Terms and may not build a business or other enterprise utilizing any of the Content, whether for profit or not. Except as provided in Section 5.5 below or otherwise expressly authorized by us in writing, you may not either directly or through the use of any software, device, internet site, web-based service or other means, or encourage others to: (a) download, stream capture, store in a database, archive or otherwise copy any part of the Services or Content; (b) upload, sell, rent, lease, lend, broadcast, transmit or otherwise disseminate, distribute, display or perform any part of the Services or Content; (c) license or sublicense any part of the Services or Content; or (d) in any way exploit any part of the Services or Content. In addition, except as provided in Section 5.5 below or otherwise expressly authorized by us in writing, you are strictly prohibited from: (i) modifying Content; (ii) creating, distributing or advertising an index of any significant portion of the Content; or (iii) otherwise creating derivative works or materials that otherwise are derived from or based in any way on the Content, including, without limitation, mash-ups and similar videos, montages, translations, desktop themes, fonts, icons, wallpaper, greeting cards and merchandise. This prohibition from creating derivative works is applicable even if you intend to give away the derivative material free of charge.
5.3 Without limiting the foregoing, you may not modify, interfere with, enhance, remove or otherwise alter in any way: (a) any portion of any video player ("Video Player") made available within the Services; (b) any of the applicable Video Player's underlying technology; or (c) any digital rights management mechanism, device or other content protection or access control measure incorporated into the applicable Video Player. This restriction includes, without limitation, disabling, modifying, reverse engineering, interfering with or otherwise circumventing the applicable Video Player in any manner.
5.4 We take protection of copyrights, both our own and others, very seriously. We therefore employ multiple measures to prevent copyright infringement over the Services and to promptly end any infringement that might occur. If you believe that the Services contain elements that infringe your copyrights in your work, please follow the procedures set forth in our Copyright Compliance Policy.
5.5 Viral Distribution
b. You may only manipulate Content (e.g., combining Content with any User Submissions, etc.) if a Service expressly permits you to do so, and in such case, only as permitted by the applicable Service for personal, non-commercial purposes. Any such manipulation of Content is subject to any Additional Terms (e.g., usage or attribution guidelines, etc.) that the applicable Service may make available. We may revoke permission to use the designated Content at any time. As between you and us, we own all compilation rights in any materials resulting from your manipulation of the Content; we may make perpetual and unrestricted use of such materials; and you will only retain the prior rights you had in your User Submissions.
6. User Submissions
6.1 Some of the Services may allow you to submit or transmit audio, video, images, text or other materials, including so-called "user generated content" and comments, suggestions or other feedback (collectively, "User Submissions") to or through the Services. When you provide User Submissions, you grant to us and our partners a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, fully sublicensable license to use, reproduce, archive, edit, translate, create derivative works of, make available, distribute, sell, display, perform, transmit, broadcast and in any other way exploit those User Submissions, and any names, voices, likenesses and other identifying information of persons that is part of those User Submissions, in any form, media, software, or technology of any kind now known or developed in the future, including, without limitation, for developing, manufacturing, and marketing products. You hereby waive any moral rights you may have in your User Submissions. If a Service includes a link to Additional Terms that govern submission and use of User Submissions (e.g., User Content Submission Agreement, content rules, etc.), then your User Submissions are further subject to such Additional Terms.
6.2 We respect your ownership of User Submissions. Except for the licenses, authorizations, consents, and rights granted hereunder (including, without limitation, as described in any Additional Terms that may be posted to a Service), we acquire no title or ownership rights in or to any User Submissions you submit, and nothing in these Terms conveys to us any ownership rights in your User Submissions. If you owned a User Submission before providing it to us, you will continue owning it after providing it to us, subject to any rights granted in these Terms and any access granted to others. Please note that if you delete a User Submission from the Services:
* The User Submission may still exist in our backup copies, which are not publicly available.
* If your User Submission was shared with third parties, those third parties may have retained copies of your User Submissions, and neither we nor our Affiliates (as defined below) have any responsibility for any uses of your User Submission that they might make.
* We retain the license specified above. Thus, for example, if we or one of our sublicensees obtained your User Submission for use in creating a derivative work before you deleted it, we or our sublicensee would remain free to complete the creation of that derivative work and thereafter exploit that derivative work for all purposes and at all times.
* We may refuse or remove a User Submission without notice to you. However, we have no obligation to monitor User Submissions, and you agree that neither we nor our Affiliates will be liable for User Submissions or any loss or damage resulting from User Submissions.
* We do not guarantee that User Submissions will be private, even if the User Submission is in a password-protected area. Accordingly, you should not provide User Submissions that you want protected from others.
"Affiliates" refers to Viacom International Inc.'s parent company, Paramount Global, and all affiliates that Paramount Global directly or indirectly owns or controls (such as Paramount Pictures Corporation and the other affiliates of Paramount Global, as described at www.paramount.com/brands).
6.3 You bear all responsibility for your User Submissions. You represent and warrant that:
Your User Submissions:
* are original to you and/or fully cleared for use as contemplated herein;
* will comply with the Acceptable Use Policy set forth in Section 9 below;
* do not and will not, in any way, violate or breach any of the provisions of these Terms;
* do not contain libelous, tortious, obscene or otherwise unlawful material or information;
* will not infringe upon, misappropriate or otherwise violate any copyright or other intellectual property, privacy, publicity or other rights of any party, or otherwise violate any other applicable law, rule or regulation; and
* will not be injurious to the health of any user.
We shall not be required to pay or incur any sums to any person or entity as a result of our permitted use or exploitation of your User Submissions.
All of the information provided by you associated with your User Submissions is complete and accurate.
7. Third-Party Content
The Services may integrate, be integrated into, or be provided in connection with third party websites, platforms, services, applications, platforms and/or content (each, a "Third Party Platform") or contain third party content (including advertisements). Unless expressly indicated otherwise, we do not endorse or evaluate third party content, products, services or websites; we do not assume responsibility for third parties' products, services, actions or omissions; and we have no liability whatsoever for goods and services you may obtain from or through other services even if you were directed or linked to such a service through the Services. If you connect to the Services through a Third Party Platform (e.g., social media) or navigate to a Third Party Platform from the Services, the Third Party Platform will collect your information separately from us. You should review the applicable Third Party Platform's privacy policies before using their services to understand how they are using your information and your rights in relation to such information.
From time to time, you may communicate with, receive communications from, be re-directed to, interact with or participate in or use the services or obtain goods and services of or from, third parties, such as our advertisers, sponsors or promotional partners (collectively, the "Advertisers") as a result of your use of the Services. All such communication, interaction and participation is strictly and solely between you and such Advertisers and, to the fullest extent permissible by law, we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertiser or any goods or services you may purchase or obtain from any Advertiser).
8. RSS; Podcasts; Mobile Features
8.1 RSS Feeds and Podcasts. The Services may provide RSS Feeds ("RSS Feeds") consisting of selected text, audio, video and photographic Content from the Services that is provided over the Internet using an XML feed. Certain RSS Feeds may be podcasts ("Podcasts"), which may include as part of the Content an associated audio, video and/or photographic file where the audio and/or video file may be downloaded and played from your device or (if permitted) transferred to another device. Certain software and hardware may be required for users to download and view and/or play Content through RSS Feeds.
Content made available via RSS Feeds is subject to all of the provisions of these Terms, even though you may download, copy and/or transfer to a device, or through a device to another device, the RSS Feeds and associated Content.
By your access to and use of RSS Feeds, you understand, acknowledge and agree that we do not warrant that such RSS Feeds will operate on all devices.
8.2 Mobile Application Services
If we offer products and/or services through applications available on your wireless or other mobile device (such as a mobile phone) ("Mobile Application Services"), such as applications you download or text messaging services, these Mobile Application Services are governed by these Terms and the Additional Terms presented in connection with the applicable Mobile Application Service. These Mobile Application Services may be provided at no charge to you or may be available for a fee, as provided in any such Additional Terms, including, without limitation, the terms presented to you in connection with your download of such applicable Mobile Application Service. In addition, your wireless carrier's standard messaging rates and other messaging, data and other rates and charges will apply to certain Mobile Application Services. You should check with your carrier to find out what plans your carrier offers and how much the plans cost. In addition, the use or availability of certain Mobile Application Services may be prohibited or restricted by your wireless carrier, and not all Mobile Application Services may work with all wireless carriers or devices. Therefore, you should check with your wireless carrier to find out if the Mobile Application Services are available for your wireless device and wireless carrier, and what restrictions, if any, may be applicable to your use of such Mobile Application Services. If you change or deactivate your wireless telephone number, you agree to promptly update your Mobile Application Services information in your account with us, or otherwise notify us that the wireless telephone number is no longer associated with you and identify such wireless phone number, to ensure that future messages directed to you are not sent to the person to whom your old number has been or will be assigned.
Under no circumstances will we be responsible for any wireless service charges incurred by you or by a person that has access to your wireless device, telephone number, or email address using any Mobile Application Services. Any software that we provide you may automatically download and install upgrades, updates, or other new features. You may be able to adjust these automatic downloads through your device's settings.
9. Acceptable Use
Without limiting any other provision in these Terms, you agree not to do, or assist others to do, the following:
* Access the Services using any interface other than ours;
* Maintain any link to the Services that we ask you to remove, in our sole discretion;
* Frame the Services or Content, make the Services or Content available via in-line links, otherwise display the Services or Content in connection with an unauthorized logo or mark, or do anything that could falsely suggest a relationship between us and any third party or potentially deprive us of revenue (including, without limitation, revenue from advertising, branding, or promotional activities);
* Threaten, defame, stalk, abuse, or harass other persons or engage in illegal activities, or encourage conduct that would constitute a criminal offense or give rise to civil liability;
* Transmit any material that is inappropriate, profane, vulgar, offensive, false, disparaging, defamatory, obscene, illegal, sexually explicit, racist, that promotes violence, racial hatred, or terrorism, or that we deem, in our sole discretion, to be otherwise objectionable;
* Violate any person's or entity's legal rights (including, without limitation, intellectual property, privacy, and publicity rights), transmit material that violates or circumvents such rights, or remove or alter intellectual property or other legal notices;
* Transmit files that contain viruses, spyware, adware, or other harmful code;
* Advertise or promote goods or services without our permission (including, without limitation, by sending unsolicited email);
* Interfere with others using the Services or otherwise disrupt the Services;
* Disassemble, decompile or otherwise reverse engineer any software or other technology included in the Content or used to provide the Services;
* Transmit, collect, or access personal information about other users without the consent of those users and us;
* Engage in unauthorized spidering, "scraping," data mining or harvesting of Content, or use any other unauthorized automated means to gather data from or about the Services;
* Impersonate any person or entity or otherwise misrepresent your affiliation or the origin of materials you transmit;
* Remove, avoid, interfere with, or otherwise circumvent any access control measures for the Services or Content, including password-protected areas and geo-filtering mechanisms, or any digital rights management measures used in connection with Content; or
* Access any portion of the Services that we have not authorized you to access (including password-protected areas), link to password-protected areas, attempt to access or use another user's account or information, or allow anyone else to use your account or access credentials except as set forth in Section 4 above.
If you violate this Section 9, we may terminate your access to the Services without notice and take any other actions or seek any remedies permitted by law and/or these Terms.
10. Access to Services and Accounts
We may take any of the following actions in our sole discretion at any time, and without giving you prior notice:
* Change or discontinue the Services, including, without limitation, any Mobile Application Services or other features;
* Change how we offer and/or operate the Services (e.g., to begin charging a fee to access features or Content that we previously made available without charge);
* Remove Content from the Services;
* Restrict, suspend or terminate your access to one or more Services or features thereof; and/or
* Deactivate any accounts that you may have established on the applicable Service and delete all related information and files in such accounts.
* We will not be liable to you or any third party for taking any of these actions and we will not be limited to the remedies above if you violate these Terms. If we terminate your access to any of the Services, you must immediately stop using such Service.
11. Unsolicited Submissions
We do not accept unsolicited submissions, including, without limitation, scripts, story lines, articles, fan fiction, characters, drawings, suggestions, ideas or concepts. We receive numerous submissions of similar or identical concepts from many parties and/or may have already developed and/or considered similar or identical concepts to unsolicited materials and our review of such materials is not an admission of novelty, priority or originality. The adoption by us of any alternative submission developed internally or by a third party (as opposed to the unsolicited material) may be due to market conditions at the time at which such alternative submission is received and/or the positioning of the concept suggested by the party making the submission as well as of any inherent merit of the concept. It is our policy to delete any such unsolicited submission without reading it. Any similarity between an unsolicited submission and any elements in any of our creative work would be purely coincidental. Any feedback, comments or suggestions you may provide regarding the Services is provided voluntarily, and we will be free to use such feedback, comments or suggestions in our discretion without any obligation to you.
12. Subscriptions (applicable to Noggin only)
If you purchase a subscription to the Noggin subscription service ("Noggin Service"), then in addition to the remainder of these Terms and any applicable Additional Terms, this Section 12 will apply.
12.1. Noggin Account Information. You can access and edit specific details regarding your subscription to the Noggin Service, including information concerning your credit card or other available payment method ("Payment Method"), by visiting noggin.com and visiting your account information. Note, if you obtained your subscription to the Noggin Service through a third-party distributor or service (e.g., an app store) that maintains your subscriber account, access to and editing of specific details regarding your subscription are subject to the third party's terms as further described herein.
12.2. Payment & Fees. YOUR SUBSCRIPTION TO THE NOGGIN SERVICE AUTOMATICALLY RENEWS AT THE END OF EACH BILLING PERIOD (E.G., RENEWS ON A MONTHLY BASIS IF A MONTHLY PLAN IS SELECTED, RENEWS ON AN ANNUAL BASIS IF AN ANNUAL PLAN IS SELECTED, ETC.) UNTIL CANCELLED. When you subscribe to the Noggin Service and provide a Payment Method, you authorize us to charge the applicable subscription fee (plus any taxes or transaction fees which may apply to your use of the Noggin Service) to your Payment Method, at the start of each billing period. AFTER ANY APPLICABLE FREE TRIAL, YOUR PAYMENT METHOD WILL AUTOMATICALLY BE CHARGED AND YOUR PAYMENT METHOD WILL CONTINUE TO BE CHARGED THE APPLICABLE SUBCRIPTION FEE (PLUS TAXES AND TRANSACTIONAL FEES) ON AN ON-GOING RECURRING BASIS AT THE START OF EACH BILLING PERIOD, UNLESS YOU CANCEL YOUR SUBSCRIPTION AS DESCRIBED BELOW OR THE NOGGIN SERVICE IS TERMINATED. To see your next recurring billing date, log in to your account and view your account details. You acknowledge that the timing of when you are billed and your subscription period may vary, for example if your subscription began on a day not contained in a given month (e.g., if you have a monthly subscription and became a paying subscriber on January 31, your payment method may be billed next on February 28). The amount charged to your Payment Method may vary from billing period to billing period due to changes in your subscription plan, subscription pricing, or applicable taxes or transaction fees. We reserve the right to change the subscription fee for the Noggin Service at any time following notice to you (either through the Service or by sending an email to the address you have registered for your account). If you do not wish to accept a change to the subscription fee, you may cancel your subscription as described below. If you do not timely cancel your subscription, your subscription will be renewed at the subscription price in effect at the time of the renewal, without any additional action by you, and you authorize us to charge your Payment Method for the updated subscription fee (plus any other taxes or transaction fees). If there are any discrepancies in billing, to the extent not prohibited by applicable law, you hereby waive your right to dispute such discrepancies if you do not notify us within 60 days after they first appear on an account statement. YOU ARE RESPONSIBLE FOR ALL INTERNET ACCESS CHARGES. PLEASE CHECK WITH YOUR INTERNET PROVIDER FOR INFORMATION ON POSSIBLE INTERNET DATA USAGE CHARGES.
12.3. No Refunds. ALL SUBSCRIPTION FEES (PLUS TAXES AND TRANSACTIONAL FEES) ARE NON-REFUNDABLE. As described further below, even if you cancel your subscription to the Noggin Service before the end of your active subscription period, you will not receive a refund for any portion of the fees for the remainder of that subscription period. In rare circumstances, we may provide a credit, refund, discount, or other consideration to some or all our subscribers ("Credits"). The amount and form of such Credits, and the decision to provide them, are at our sole discretion. The provision of Credits in one instance does not entitle you to Credits in the future for similar instances, nor does it obligate us to provide Credits in the future.
12.4. Cancellation. You can cancel your subscription to the Noggin Service at any time through your account settings at noggin.com; however, if you obtained your subscription to the Noggin Service through a third-party distributor or service you must follow the instructions for cancellation provided by such third party. If you cancel your subscription, the cancellation will go into effect at the end of your current subscription period. You will have continued access to the Noggin Service for the remainder of your paid subscription period (unless your access is terminated for another reason under these Terms), but YOU WILL NOT RECEIVE A REFUND OF ANY FEES PAID. You must cancel your subscription before it renews to avoid paying the fees for the next subscription period. You acknowledge and agree that, to the extent not prohibited by applicable law, cancellation of your subscription is your sole recourse if you have any dissatisfaction, issue, or concern related to the Noggin Service, its content, or features, including fees or billing methods; the selection of content available to you through the Noggin Service; the Terms or any changes thereto; or any other policies or practices that apply to the Noggin Service.
12.5. Unpaid Amounts and Payment Method Changes. If your Payment Method is declined and we are unable to process your payment for your current subscription period, (1) you will remain liable for all such amounts, as well as any costs that we incur in collecting any amounts you fail to pay for access to the Noggin Service, including attorneys' and collections' fees; (2) you authorize us to continue charging your Payment Method, as your Payment Method information may be updated as described in the "Noggin Account Information" section; and (3) we may suspend or terminate your subscription. Where your Payment Method details change or are due to expire (for example, if you get a new credit card that is linked to your old credit card), we may obtain or receive from your payment provider updated payment details for your Payment Method and use that updated information to charge you.
12.6. Promotional Offers. From time to time, promotions (e.g., free trials or introductory discounted pricing) may be available in our sole discretion. Promotions may only be redeemed as described in the specifics of the promotion. Promotions can only be used once, cannot be redeemed for cash and, unless approved by us, may not be combined with other offers. All promotions are subject to other restrictions as determined by us in our sole discretion. We may end any promotion at any time in our sole discretion. If you received a promotion through an offer by a third party, additional terms and conditions may apply.
12.7. Promotional Periods. As part of a promotion, we may offer, in our sole discretion, a free trial ("Free Trial") or temporary discounted pricing ("Discounted Pricing") for your subscription to the Noggin Service. The availability and terms of any Free Trial or any Discounted Pricing are determined in our sole discretion. The terms and conditions of Free Trials and Discounted Pricing will be disclosed during your subscription sign-up. If we provide you with a Free Trial or Discounted Pricing, you must provide valid Payment Method information to us in order to use the Noggin Service during the time of your Free Trial or Discounted Pricing ("Promotional Period"). For Free Trials, we will not charge you in connection with the Promotional Period; however, we may place a temporary charge in a nominal amount, or an authorization hold on your Payment Method to ensure the validity of the Payment Method, but the temporary charge will be removed promptly. During the Promotional Period for Discounted Pricing, we will bill your Payment Method on a recurring basis (if applicable) for your subscription pursuant to the Discounted Pricing terms.
IF YOU DO NOT CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR FREE TRIAL, AT THE END OF YOUR FREE TRIAL WE WILL BEGIN BILLING YOUR PAYMENT METHOD ON A RECURRING BASIS FOR YOUR SUBSCRIPTION AT THE THEN-CURRENT, NON-PROMOTIONAL PRICE. IF YOU DO NOT CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR DISCOUNTED PRICING, AT THE END OF YOUR DISCOUNTED PRICING WE WILL BILL YOUR PAYMENT METHOD ON A RECURRING BASIS FOR YOUR SUBSCRIPTION AT THE THEN-CURRENT, NON-PROMOTIONAL PRICE.
We provide notice of the terms of the Free Trial or Discounted Pricing at the time you subscribe and you may not receive a separate notice that your Free Trial or Discounted Pricing is about to end or has ended, unless required by law.
You will defend, indemnify and hold harmless VII, our Affiliates and their respective directors, officers, employees, shareholders, vendors, partners, contractors, agents, licensors and other representatives and all of their successors and assigns (collectively, the "Paramount Parties") with respect to all third party claims, costs (including attorney's fees and costs), damages, liabilities and expenses or obligations of any kind, arising out of or in connection with your use or misuse of the Services (including, without limitation use of your account, whether or not authorized by you, and claims arising from User Submissions) or breach of these Terms. We retain the right to assume the exclusive defense and control of any claim subject to indemnification, and in such cases, you agree to cooperate with us to defend such claim. You may not settle any claim covered by this Section 13 without our prior written approval.
14. Disclaimers; Limitation of Liability
THE PARAMOUNT PARTIES DO NOT REPRESENT OR WARRANT THAT: (A) THE SERVICES, ANY OF THE SERVICES' FUNCTIONS OR ANY CONTENT WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OMISSIONS; (B) DEFECTS WILL BE CORRECTED; (C) THE SERVICES OR THE SERVERS HOSTING THEM ARE FREE OF VIRUSES OR OTHER HARMFUL CODE; OR (D) THE SERVICES OR INFORMATION AVAILABLE THROUGH THE SERVICES WILL CONTINUE TO BE AVAILABLE. THE PARAMOUNT PARTIES SHALL HAVE NO LIABILITY FOR ANY SUCH ISSUES. THE PARAMOUNT PARTIES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND AS TO QUALITY, AVAILABILITY AND SUBJECT MATTER OF CONTENT. THE SERVICES, INCLUDING ALL CONTENT AND FUNCTIONS MADE AVAILABLE ON OR ACCESSED THROUGH OR SENT FROM THE SERVICES, ARE PROVIDED "AS IS," "AS AVAILABLE" AND "WITH ALL FAULTS." IN NO EVENT WILL THE PARAMOUNT PARTIES' AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES EXCEED THE GREATER OF $100 OR THE AMOUNT YOU PAID US IN CONNECTION WITH THE SERVICES IN THE 12 MONTHS PRECEDING THE DATE OF THE ACTIVITY GIVING RISE TO THE CLAIM.
YOUR ACCESS TO AND USE OF THE SERVICES (INCLUDING THEIR FUNCTIONS AND CONTENT) IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SERVICES.
THE PARAMOUNT PARTIES WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN THEIR PERFORMANCE DUE TO ANY CAUSE BEYOND THEIR REASONABLE CONTROL, INCLUDING ACTS OF WAR, ACTS OF GOD, ACTS OF THIRD PARTIES, EARTHQUAKE, FLOOD, EMBARGO, RIOT, SABOTAGE, LABOR SHORTAGE OR DISPUTE, GOVERNMENTAL ACT, POWER FAILURE OR FAILURE OF THE INTERNET OR COMPUTER EQUIPMENT.
YOU ACKNOWLEDGE AND AGREE THAT IF YOU INCUR ANY DAMAGES THAT ARISE OUT OF THE PARAMOUNT PARTIES' ACTS OR OMISSIONS, THE DAMAGES, IF ANY, ARE NOT IRREPARABLE AND ARE NOT SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING OPERATION OF THE SERVICES OR ANY OTHER SERVICE, PROPERTY, PRODUCT, PROGRAM, TELEVISION SHOW, MOTION PICTURE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE PARAMOUNT PARTIES.
We take great care and pride in creating our Services. We are always on the lookout for technical glitches that affect how the Services work. Unfortunately, your device may cause some glitches that affect how you see our Services, which is beyond our control.
If you experience any unusual behavior, content, or ads on the Services, it may be the result of Malware on your device. Malware (short for malicious software) is a term used to broadly classify a form of software which is installed in a computer system with malicious intentions, usually without the owner's knowledge or permission. Malware includes computer viruses, key loggers, malicious active content, rogue programs, and dialers, among others. While we continuously work closely with our partners to ensure that everything on the Services is working properly, sometimes Malware programs on your device may interfere with your experience on our Services and on other sites that you visit.
Please note that we cannot be responsible for the effects of any third-party software including Malware on your device. If you do discover any Malware on your device, we also suggest you speak with a qualified technician for your device.
16. Governing Law, Venue, and Jurisdiction
These Terms and all claims arising from or related to your use of the Services will be governed by and construed in accordance with the laws of the State of New York, except New York's conflict of law rules. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, if applicable.
With respect to any disputes or claims not subject to arbitration or small claims court (as set forth in Section 2 above), you agree to jurisdiction in the state and federal courts in New York County, New York.
Regardless of any statute or law to the contrary, you must file any claim related to use of the Services or these Terms within one (1) year of the events first giving rise to such claim. Otherwise, you will waive the claim.
17. Closed Captioning of Internet Protocol-Delivered Video Programming
In accordance with the Twenty-First Century Communications and Video Accessibility Act of 2010, all video programming distributors that make video programming available directly to end users through a distribution method that uses the internet protocol are required to provide contact information to end users for the receipt and handling of written closed captioning complaints.
If you have a complaint regarding the Services' compliance with the closed captioning requirements of the Twenty-First Century Communications and Video Accessibility Act of 2010, please go to https://privacy.paramount.com/closed-captioning.
We may be required by state or federal law to notify you of certain events. You hereby acknowledge and agree that such notices will be effective upon our posting them in the relevant Service or delivering them to you via email. You may update your email address by visiting the Services where you have provided contact information. If you do not provide us with accurate information, we will not be responsible for failure to notify you. Our failure to exercise or enforce any right or provision in these Terms will not constitute a waiver of such right or provision. These Terms, including all additional terms, conditions, and policies on the Services, constitute the entire agreement between you and us and supersede all prior agreements with respect to the subject matter hereof. Nothing in these Terms affects any non-waivable statutory rights that apply to you. If any portion of these Terms are found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The other portions of these Terms shall continue to be enforceable and valid according to the terms contained herein.
If you want to delete your account on a Service, please use the instructions posted to the Service where you obtained the account or as otherwise indicated.
Any provision of these Terms that must survive in order to allow us to enforce its meaning will survive any termination of your access to the Services, whether we terminate your access or you voluntarily discontinue your use.
Please contact us with any questions regarding these Terms through the contact or support feature of the relevant Service or by contacting our Customer Service department at firstname.lastname@example.org.