January 23, 2014
Your access to and use of certain FSD Services may require you to accept additional terms and conditions applicable to such FSD Services, including any future modifications (collectively, "Additional Terms") in addition to this Agreement, and may require you to download software or Content (as defined below). The Additional Terms are made a part of this Agreement by this reference. In the event of a conflict, between any such Additional Terms and this Agreement, such Additional Terms will prevail over this Agreement with respect to your use of that specific FSD Service.
Use of the FSD Services is limited to users aged 13 years and above.
PLEASE NOTE THAT THE “ARBITRATION AGREEMENT” SECTION BELOW CONTAINS PROVISIONS THAT REQUIRE (i) WITH LIMITED EXCEPTIONS, ALL DISPUTES ARISING BETWEEN YOU AND FSD UNDER THIS AGREEMENT BE HANDLED BY ARBITRATION, AND (ii) YOU AND FSD WAIVE THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN CONNECTION WITH SUCH DISPUTES. PLEASE CLICK HERE TO REVIEW THE ARBITRATION AGREEMENT.
FSD furnishes the FSD Services (as defined below) for your personal enjoyment and entertainment. By using any FSD Service (whether or not you have an account or subscription) or by clicking a box that states that you accept and agree to this Agreement, you signify your agreement to be bound by this Agreement, including any future modifications, and any Additional Terms and to abide by all applicable laws, rules and regulations ("Applicable Law"). Please read through this Agreement carefully. If you do not agree to be bound by this Agreement and to abide by all Applicable Law, you may not use the FSD Services and must discontinue use of the FSD Services immediately. FSD may modify this Agreement at any time, and each such modification will be effective upon posting on or to the FSD Service. All material modifications will apply prospectively only. Your continued use of the FSD Services following any modification constitutes your acceptance of and agreement to be bound by this Agreement as so modified. It is therefore important that you review this Agreement regularly. FSD may also use third-party service providers, such as vendors, contractors, agents or sponsors, to operate, develop or help FSD manage and provide the FSD Services.
FSD Account Registration and Security
Some FSD Services require you to create an account (including setting up a Fox Sports Digital credential and password) to participate in or to secure additional FSD Services, such as viewing and commenting on FSD Content (defined below), purchasing FSD Site Products, creating an FSD Site profile and signing up for specific FSD Site newsletters. To make it easier for you to create an account and interact with participating FSD Services without having to maintain multiple sign-in credentials, FSD has created the universal Fox Sports Digital credential. The Fox Sports Digital credential allows you to sign into participating FSD Services with one email and password. In addition to your Fox Sports Digital credential, you will have the ability to create an FSD Site specific profile, which may include an FSD Site username and profile, as part of your account.
All registration information you submit directly to us or through a Third-Party Service (defined below) to create an account must be accurate and must be kept updated by you. It is your responsibility to notify us of any changes in such information, including, but not limited to your contact information. You are responsible for maintaining the confidentiality of all your passwords, and are responsible for all use of your account. It is therefore critical that you do not share your account information with anyone. You may be held liable for losses incurred by FSD, FSD Affiliates (defined below) or any other FSD user or visitor in the event someone else uses your account as a result of your failure to keep your account information secure and confidential and you agree to indemnify FSD and all FSD Affiliates from any third-party claims arising from such actions. You agree not to use the account, username, email address or password of another member or subscriber at any time and not to allow any other person to use your account. You agree to notify FSD immediately if you suspect any unauthorized use of, or access to, your account or password. FSD shall retain the right to change your username, but no obligation, for any reason, including, without limitation, if the username you have selected violates this Agreement. FSD shall also retain the right, but no obligation, to review any profile pictures provided by you.
Unless terminated by FSD in its sole discretion, this Agreement remains in full force and effect while you use the FSD Services. You may terminate your account at any time, for any reason, in the following ways: (i) to terminate your account please send an email to the applicable FSD Site's feedback account listed here, Subject: Terminate FSD Account. Please list the specific FSD Site account you wish to terminate; (ii) to terminate a specific FSD Site newsletter subscription please log on to the specific FSD Site account profile page and select your newsletter preferences or click the unsubscribe link on the bottom of the FSD Site newsletter.
FSD may terminate your account, any subscription (both free and paid) and/or access to all (or any portion of) the FSD Services at any time, for any or no reason, with or without prior notice or any explanation, and without liability. Furthermore, even after your account subscription and/or access to the FSD Services is terminated by you or FSD, this Agreement will remain in full force and effect with respect to your past and future use of the FSD Services. If we terminate your user account, subscription and/or access to the FSD Services (or any portion of the FSD Services) you may not create a new account, purchase a new subscription or try to access the FSD Services without FSD's prior written approval. You agree that your account and/or subscription is non-transferable. Any rights to your account and/or FSD Services terminate upon your death.
You acknowledge that FSD reserves the right to charge a fee for any portion of the FSD Services. FSD will provide you with advance notice of any such fees, including any change in the amount of such fees, and a way to cancel your account and/or subscription in the event you do not wish to pay the modified fee. If you continue to use the FSD Services after the applicable fee has been imposed or increased, you are expressly agreeing to the subscription fee or increase thereto and you will be responsible for paying such fee for the balance of your subscription service. You will not be entitled to a refund of any unused portion of such fees or other payments if FSD suspends or terminates your account, and/or access to an FSD Site (or any portion of the FSD Site), due to your breach of this Agreement or violation of Applicable Law, as determined by FSD, in its sole discretion.
Purchasing FSD Site Products
If you purchase certain subscription based FSD Site Products, your subscription will be automatically renewed and the credit card you provided to the Processor for such FSD Site Product will be charged per the billing cycle of your subscription (e.g., monthly, 3-month, 6-month, annual), unless you cancel the subscription prior to the automatic renewal date of the subscription. The renewal charge for your subscription shall be the same as the original purchase price, unless you are otherwise notified in advance. You acknowledge and agree that the authorization to charge your credit card for the subscription shall automatically transfer to any successors or assigns of FSD or the Processor, for a substantially similar subscription. Some subscription options include a free trial period. You are allowed only one free trial period. Subsequent subscriptions or upgrades do not qualify for additional free trials.
FSD makes no warranty and accepts no liability for any loss or damages whatsoever, relating to, or in connection with, your placement of an order for an FSD Site Product with the Processor. FSD provides no refunds for, makes no warranty for and accepts no liability, regarding purchases you make on or through any FSD Service. You are solely responsible for any and all transactions utilizing your Personal Financial Information, including, but not limited to, any and all charges. You acknowledge and agree that in the event the Processor experiences a data breach that affects any of your information, FSD will in no way be responsible or liable to you for any such data breach.
If you have any questions regarding your purchases or transactions or believe that there is an error or unauthorized transaction or activity associated with transactions utilizing your information, you must contact the Processor.
The FSD Services contain information, text, files, images, video, sounds, musical works, works of authorship, materials, applications, software, product names, company names, trade names, logos, designs, and any other materials or content (collectively, "Content") of FSD and FSD Affiliates and their licensors and assignors ("FSD Content"), as well as materials and Content provided by users (“User Content”) or other third-parties. FSD Content contained in the FSD Services is protected by copyright, trademark, patent, trade secret and other laws and, as between you and FSD, FSD, its licensors, or its assignors, own and retain all rights in the FSD Content and FSD Services. FSD hereby grants you a limited, revocable, nonsublicensable, nontransferable license, to access and display or perform the FSD Content (excluding any software code) solely for your personal, non-commercial use, in connection with using the FSD Services. The FSD Services may also contain User Content. Except as provided in this Agreement or as explicitly allowed in the Additional Terms on the applicable FSD Service, you may not copy, download, stream capture, reproduce, duplicate, archive, upload, modify, translate, publish, broadcast, transmit, retransmit, distribute, perform, display, sell, frame or deep-link, make available or otherwise use any Content contained in or through the FSD Services.
Except as explicitly and expressly permitted by FSD or by the limited license set forth above, you are strictly prohibited from creating works or materials (including but not limited to fonts, icons, link buttons, wallpaper, desktop themes, on-line postcards, montages, mash-ups and similar videos, greeting cards and unlicensed merchandise) that derive from or are based on the FSD Content. This prohibition applies regardless of whether such derivative works or materials are sold, bartered or given away. Also, you may not, either directly or through the use of any device, software, internet site, web-based service or other means, remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notice marked on the FSD Content contained in the FSD Services or any digital rights management mechanism, device, or other content protection, copy control, or access control measure associated with the FSD Content, including geo-filtering mechanisms. Except as necessary in order to make reference to FSD or FSD Services in a purely descriptive capacity, you are expressly prohibited from using any FSD Content in any manner.
Restrictions on Use of the FSD Services
FSD reserves the right to remove commercial Content in its sole discretion. You understand that you are responsible for all User Content that you post, upload, transmit, email or otherwise make available on, through or in connection with the FSD Services. Additionally, you acknowledge that you have no expectation of privacy in or confidentiality with respect to your User Content. Accordingly, please choose carefully the information that you post on, through or in connection with the FSD Services. You understand that FSD does not control the User Content posted by users via the FSD Services and, as such, you understand you may be exposed to offensive, inaccurate or otherwise objectionable User Content. FSD assumes no responsibility or liability for any User Content. If you become aware of any misuse of FSD Services, please report this immediately to the applicable FSD Site. Please click here for a complete list of FSD Site contact information.
FSD assumes no responsibility for monitoring the FSD Services for inappropriate Content or conduct. If at any time, FSD chooses in its sole discretion to monitor the FSD Services, FSD nonetheless assumes no responsibility for Content other than FSD Content, assumes no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of any user or visitor.
You agree not to use the FSD Services to:
• Post, upload or otherwise transmit or link to content that is: unlawful; threatening; abusive; obscene; vulgar; sexually explicit; pornographic or inclusive of nudity; offensive; excessively violent; invasive of another's privacy, publicity, contract or other rights; tortious; false or misleading; defamatory; libelous; hateful; or discriminatory;
• Violate the rights of others including patent, trademark, trade secret, copyright, privacy, publicity or other proprietary rights;
• Harass or harm another person;
• Exploit or endanger a minor;
• Impersonate or attempt to impersonate any person or entity;
• Introduce or engage in activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of or access to a computer or a computer network;
• Attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising the FSD Services;
• Interfere with, damage, disable, disrupt, impair, create an undue burden on, or gain unauthorized access to the FSD Services, including FSD's servers, networks or accounts;
• Cover, remove, disable, block or obscure advertisements or other portions of the FSD Services;
• Delete or revise any information provided by or pertaining to any other user of the FSD Services;
• Use technology or any automated system such as scripts, spiders, offline readers, or bots in order to collect or disseminate usernames, passwords, email addresses or other data from the FSD Services, or to circumvent or modify any security technology or software that is part of the FSD Services;
• Send or cause to send (directly or indirectly) unsolicited bulk messages or other unsolicited bulk communications of any kind through the FSD Services. If you do so, you acknowledge you will have caused substantial harm to FSD, but that the amount of harm would be extremely difficult to measure. As a reasonable estimation of such harm, and by way of liquidated damages and not as a penalty, you agree to pay FSD $50 for each actual or intended recipient of such communication;
• Solicit, collect or request any personal information for commercial or unlawful purposes;
• Post, upload or otherwise transmit an image or video of another person without that person's consent;
• Engage in commercial activity (including, but not limited to, advertisements or solicitations of, business; sales; contests; sweepstakes; creating, recreating, distributing or advertising an index of any significant portion of the FSD Content; or building a business using the FSD Content) without FSD’s prior written consent; using technology or other means to access, index, frame, or link to the FSD Services (including the Content) that is not authorized by FSD (including, without limitation, by removing disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized download, stream capture, linking, framing, reproduction, access to, or distribution of FSD Content);
• Accessing FSD Services (including the Content) through any automated means, including “robots,” “spiders,” or “offline readers” (other than by individually performed searches on publicly accessible search engines for the sole purpose of, and solely to the extent necessary for, creating publicly available search indices – but not caches or archives – of FSD Services and excluding those search engines or indices that host, promote, or link primarily to infringing or unauthorized content;
• Use the FSD Services to advertise or promote competing services;
• Use the FSD Services in a manner inconsistent with any and all Applicable Law;
• Attempt, facilitate or encourage others to do any of the foregoing.
FSD reserves the right, but disclaims any obligation or responsibility, to remove User Content that violates this Agreement, as determined by FSD, or for any other reason in FSD’s sole discretion and without notice to you. You acknowledge that FSD reserves the right to investigate and take appropriate legal action against anyone who, in FSD's sole discretion, violates this Agreement, including but not limited to, terminating their account and/or subscription and/or reporting such User Content, conduct, or activity to law enforcement authorities.
You acknowledge, consent and agree that FSD may access, preserve or disclose information you provide to or through the FSD Services or that we have collected about you, including registration information and User Content, when FSD has a good faith belief that such access, preservation or disclosure is necessary in order to: (i) protect, enforce, or defend the legal rights, privacy, safety, or property of FSD, our parents, subsidiaries or affiliates (“FSD Affiliates”), or their employees, agents and contractors (including enforcement of this Agreement or our other agreements); (ii) protect the safety, privacy, and security of users of the FSD Services or members of the public, including in urgent circumstances; (iii) protect against fraud or for risk management purposes; (iv) comply with Applicable Law or legal process; or (v) respond to requests from public and government authorities. If FSD sells all or part of its business or makes a sale or transfer of its assets or is otherwise involved in a merger or transfer of all or a material part of its business, FSD may transfer your information to the party or parties involved in the transaction as part of that transaction.
FSD reserves the right to limit the storage capacity of User Content. You assume full responsibility for maintaining backup copies of your User Content, and FSD assumes no responsibility for any loss of your User Content due to it being removed by FSD or for any other reason.
User Content on Message Boards and Forums
FSD may offer users the ability to post messages on message boards and forums (collectively, "Forums"), which may be open to the public generally, to all members of FSD Services or to a select group of FSD Service members. You acknowledge that all User Content posted by you on Forums is User Content, and by posting on Forums you agree to comply with the rules and restrictions on User Content set forth above and any other rules specifically applicable to such Forums. FSD reserves the right, but disclaims any obligation or responsibility, to prevent you from posting User Content to any Forum and to restrict or remove your User Content from a Forum or refuse to include your User Content in a Forum for any reason at any time, in FSD’s sole discretion and without notice to you. We ask you not to disclose any sensitive information (e.g., social security numbers, health or criminal background) on or through the FSD Services, including the Forums or otherwise.
Your Proprietary Rights in and License to Your User Content
FSD does not claim any ownership rights in the User Content that you post, upload, email, transmit, or otherwise make available (collectively, “Transmit”) on, through or in connection with the FSD Services, except with respect to your unsolicited submissions, as described under “Unsolicited Submissions” below; provided, however, that User Content shall not include any FSD Content or content owned by an FSD Affiliate. By posting or transmitting any User Content on, through or in connection with the FSD Services, you hereby grant to FSD and our FSD Affiliates, licensees, assignees, and authorized users, a worldwide, perpetual, irrevocable, non-exclusive, fully-paid and royalty-free, freely sublicensable and transferable (in whole or in part) right (including any moral rights) and license to use, modify, excerpt, adapt, publish, translate, create derivative works and compilations based upon, publicly perform, publicly display, reproduce, sublicense, broadcast and distribute such User Content, including your name, voice, likeness and other personally identifiable information to the extent that such is contained in User Content, anywhere, in any form and on and through all media formats now known or hereafter devised, for any and all purposes including, but not limited to, promotional, marketing, trade or any non-commercial or commercial purposes. Additionally, FSD is free to use any ideas, concepts, know-how, or techniques contained within such User Content for any purpose including, but not limited to, developing, manufacturing, marketing and providing commercial products and services, including FSD Services. FSD’s use of such User Content shall not require any further notice or attribution to you and such use shall be without the requirement of any permission from or any payment to you or any other person or entity. You hereby appoint FSD as your agent with full authority to execute any document or take any action, FSD may consider appropriate in order to confirm the rights granted by you to FSD in this Agreement.
You represent and warrant that: (i) you own the User Content Transmitted by you on, through or in connection with the FSD Services and/or Third-Party Services, or otherwise have the right to grant the license set forth in this section, and (ii) the Transmission of User Content by you on, through or in connection with the FSD Services and/or Third-Party Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of the use of any User Content Transmitted by you on or through the FSD Services or Third-Party Services. If you delete your User Content from any FSD Service, FSD’s license to such User Content will end after a reasonable period of time necessary for the deletion to take full effect. However, the User Content may be retained in the FSD’s back-up copies of the applicable FSD Service, which are not publicly available. Furthermore, to the extent that FSD made use of your User Content before you deleted it, FSD will retain the right to make such pre-existing uses even after your User Content is deleted. You acknowledge that (i) deletion of your User Content from FSD Services will not result in, and FSD assumes no responsibility for, the deletion of such User Content by any third-parties who were provided with or had access to such User Content prior to your deleting it from FSD Services, and (ii) termination of your account or your use of the FSD Services will not result in the immediate or automatic deletion of your User Content consistent with this Agreement.
Removal of Material that Infringes Copyrights
FSD respects the intellectual property of others and requires that our users do the same. FSD has a policy that provides for the termination in appropriate circumstances of users and account holders of FSD Services who are repeat infringers. FSD also reserves the right to remove or disable access to any transmission of Content that infringes the copyright of any person under the laws of the United States upon receipt of a notice that substantially complies with the requirements of 17 U.S.C. § 512(c)(3) as set forth above.
If you believe materials on FSD Services infringes your copyright.
If you believe that any materials residing on or linked to from FSD Services infringes your copyright, you must send a written notification of claimed infringement that contains substantially all of the following information to the appropriate FSD Site Copyright Agent: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit FSD to locate the material on the FSD Services (such as the URL(s) of the claimed infringing material); (c) information reasonably sufficient to permit FSD to contact you, such as an address, telephone number, and an email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or Applicable Law; (e) a statement by you that the above information in your notification is accurate and a statement by you, made under penalty of perjury, that you are the owner of an exclusive right that is allegedly infringed or are authorized to act on the owner's behalf; and (f) your physical or electronic signature. FSD's Copyright Agent for notification of a claimed infringement can be reached as follows: Copyright Agent, 10201 W. Pico Blvd., Los Angeles, CA 90035; Facsimile: (310) 969-5660; Phone: (310)369-7069. Please be sure to send the notification to the attention of the FSD Site on which your claimed infringement occurred. For example, if your claimed infringement occurred on foxsports.com, the notification should be sent to the address above, and include, "Attention: FoxSports.com" as the last line of the address. If you wish to notify the applicable Copyright Agent electronically, please click here for a list of email addresses of each applicable FSD Site's Copyright Agent.
If you posted materials to an FSD Service that was removed due to notice by a copyright owner.
If you posted materials to the FSD Services that FSD removed due to a notice of a claimed infringement from a copyright owner, FSD will take reasonable steps promptly to notify you that the material has been removed or disabled. This notice may be by means of a general notice on FSD Services or by written or electronic communication to such address(es) you have provided to FSD, if any. You may provide counter-notification in response to such notice in a written communication that includes substantially all of the following: (i) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (ii) a statement by you, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (iii) your name, address, telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which FSD may be found, and that you will accept service of process from the person who provided notification requesting the removal or disabling of access to the material or such person’s agent; and (iv) your physical or electronic signature.
Please note that, under 17 U.S.C. §512(f), any person who knowingly makes material misrepresentations in a notification of claimed infringement or any counter-notification may be liable for damages.
Third-Party Links and Services
You are solely responsible for your interactions with other FSD users and visitors, providers of Third-Party Services, Processors or any other parties with whom you interact on, through or in connection with the FSD Services. FSD reserves the right, but has no obligation, to become involved in any way with these disputes.
THE FSD SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND FSD DOES NOT GUARANTEE OR PROMISE ANY SPECIFIC RESULTS FROM USE OF OR CONTINUOUS AVAILABILITY OF THE FSD SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FSD EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FOR A COURSE OF PERFORMANCE OR COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FSD MAKES NO WARRANTY THAT YOUR USE OF THE FSD SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS TO THE FSD SERVICES WILL BE CORRECTED, THAT THE FSD SERVICES OR THE SERVERS ON WHICH THEY ARE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY INFORMATION OBTAINED BY YOU ON, THROUGH OR IN CONNECTION WITH THE FSD SERVICES OR THIRD-PARTY SERVICES (INCLUDING, BUT NOT LIMITED TO, THROUGH USER CONTENT OR THIRD-PARTY ADVERTISEMENTS) WILL BE ACCURATE, RELIABLE, TIMELY OR COMPLETE. UNDER NO CIRCUMSTANCES WILL FSD OR OUR FSD AFFILIATES BE RESPONSIBLE FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) RESULTING FROM USE OF THE FSD SERVICES, PROBLEMS OR TECHNICAL MALFUNCTION IN CONNECTION WITH USE OF THE FSD SERVICES, ATTENDANCE AT AN FSD EVENT, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH THE FSD SERVICES, ANY USER CONTENT, ANY THIRD-PARTY ADVERTISEMENT OR THIRD-PARTY SERVICE TRANSMITTED ON, THROUGH OR IN CONNECTION WITH THE FSD SERVICES, OR THE CONDUCT OF ANY USERS OF THE FSD SERVICES, WHETHER ONLINE OR OFFLINE. YOUR USE OF USER CONTENT, THIRD-PARTY ADVERTISEMENTS, THIRD-PARTY SERVICES AND THE GOODS OR SERVICES PROVIDED BY ANY THIRD-PARTIES IS SOLELY YOUR RESPONSIBILITY AND AT YOUR OWN RISK.
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE FSD SERVICES, AND ANY INFORMATION TRANSMITTED OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. YOU ASSUME RESPONSIBILITY FOR THE ENTIRE COST OF ANY MAINTENANCE, REPAIR OR CORRECTION TO YOUR COMPUTER SYSTEM OR OTHER PROPERTY OR RECOVERY OR RECONSTRUCTION OF LOST DATA NECESSITATED BY YOUR USE OF THE FSD SERVICES. User Content, third-party advertisements and Third-Party Services do not necessarily reflect the opinions or policies of FSD or our FSD Affiliates.
Limitation on Liability
IN NO EVENT WILL FSD OR OUR FSD AFFILIATES BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE FSD SERVICES, EVEN IF FSD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN JURISDICTIONS THAT DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF SUCH DAMAGES, FSD AND OUR FSD AFFILIATES’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, FSD AND OUR FSD AFFILIATES’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO FSD, FOR THE FSD SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM.
YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF FSD’S ACTS OR OMISSIONS OR YOUR USE OF FSD SERVICES ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE FSD SERVICES.
THE LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF FSD HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
United States Jurisdiction
FSD provides the FSD Services in the United States of America. FSD does not represent that the FSD Content, FSD Services are appropriate (or, in some cases, available) for use in other locations. If you use the FSD Services from a jurisdiction other than the United States, you agree that you do so of your own initiative, and you are responsible for complying with local laws as applicable to your use of the FSD Services.
Not all of the FSD Services are available worldwide or nationwide, and FSD makes no representation that you will be able to obtain any FSD Services in any particular jurisdiction, either within or outside of the United States.
U.S. Export Controls
Software available in connection with the FSD Services (the "Software") is further subject to United States export controls. No Software may be downloaded from the FSD Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
(1) FSD, including its FSD Affiliates, agents, employees, predecessors in interest, successors, and assigns, and you agree that any and all disputes and claims that each of you and FSD may have against the other that arise out of or relate to the FSD Services and your use of them, including the breach, termination, enforcement, interpretation or validity of this Agreement, including the agreement to arbitrate (the “Arbitration Agreement”) and the scope or applicability of this Arbitration Agreement (collectively, “Disputes”), including but not limited to the arbitrability of any and all Disputes, and even if the events giving rise to Disputes occurred before this Arbitration Agreement became effective, will be resolved in a binding, confidential, individual and fair arbitration process, and not in court. Each of you and FSD agrees to give up the right to sue in court. Each of you and FSD also agrees to give up the right to have Disputes heard by a jury and the ability to seek to represent, in a class action or otherwise, anyone but each of you and FSD (see paragraph 9 of this Arbitration Agreement below). The only exceptions to this Arbitration Agreement are that (i) each of you and FSD retains the right to sue in small claims court and (ii) each of you and FSD may bring suit in court against the other to enjoin infringement or other misuse of intellectual property rights.
(2) This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement shall survive termination of this Agreement.
(3) Any arbitration between you and FSD will be conducted by the American Arbitration Association (the “AAA”) and will be governed by the AAA’s Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. The AAA Rules are available online at www.adr.org, or by calling the AAA at 1-800-778-7879. The arbitration will be conducted by a single arbitrator. If you and we cannot agree on who that single arbitrator should be, then the AAA shall appoint an arbitrator with significant experience resolving the type of Dispute at issue. The arbitrator is bound by the terms of this Agreement.
(4) If either you or FSD wants to arbitrate a Dispute, you or FSD must first send by mail to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the FSD Service to which the Notice relates, and the relief requested. Your Notice to the FSD must be sent by mail to Arbitration Notice of Dispute, 2121 Avenue of the Stars, 7th Floor, Los Angeles, California, 90067. The FSD will send any Notice to you at the contact information we have for you or that you provide. It is the sender’s responsibility to ensure that the recipient receives the Notice. During the first 45 days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute. If you and we do not resolve the Dispute within those first 45 days, either you or we may initiate arbitration in accordance with the rules and procedures provided for by the AAA. A form for initiating formal arbitration may be found on the AAA’s website at www.adr.org (“Arbitration Form”). In addition to filing this Arbitration Form with AAA in accordance with its rules and procedures, you must send a copy of this completed Arbitration Form to the FSD at the address listed above to which you sent your Notice of Dispute.
(5) AAA charges fees to conduct arbitrations. Ordinarily, the claimant has to pay that fee to start a case, but if you wish to commence an arbitration against FSD, and you are seeking to recover less than $10,000 (inclusive of attorneys’ fees), you will not have to pay this filing fee; FSD will pay it on your behalf. If you are seeking to recover $10,000 or more, you will have to pay the filing fee charged by AAA, but FSD will reimburse that fee if you win the arbitration.
(6) If you are seeking to recover $10,000 or less, AAA rules provide that the Dispute should be resolved without a hearing, by submission of documents only. Either you or we may request a hearing, however, and be responsible for the fees associated with it. If the arbitrator recommends a hearing even if neither you nor we request one, FSD will pay the arbitrator’s fees associated with the hearing. If the claim is for more than $10,000, the manner and place of the hearing will be determined in accordance with the AAA Rules.
(7) Regardless of how the arbitration proceeds, the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions.
(8) Each of you and FSD may incur attorneys’ fees during the arbitration. In addition to whatever rights you may have to recover your attorneys’ fees under Applicable Law, if you prevail in the arbitration, and if FSD failed to make a settlement offer to you before the arbitration or the amount you win is at least 25% greater than FSD’s highest settlement offer to resolve the Dispute, then FSD will pay your reasonable attorneys’ fees in addition to the amount the arbitrator awarded. If FSD wins the arbitration, you will be responsible for your own attorneys’ fees. In addition, if the arbitrator, at the request of the winning party, finds that the losing party brought a Dispute or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by Applicable Law.
(9) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. The arbitrator may not order FSD to pay any monies to or take any actions with respect to persons other than you, unless FSD explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order. YOU AND FSD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING. Further, unless FSD agrees, the arbitrator may not consolidate other persons’ claims with yours, and may not otherwise preside over any form of a representative, multi-claimant or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Arbitration Agreement shall be null and void, but the rest of this Agreement, including the provisions governing where actions against FSD must be pursued, will remain in effect.
(10) You and FSD agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation, proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or court order.
This Agreement will be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of law provisions. Except with respect to Disputes to be resolved through an arbitration process in accordance with the Arbitration Agreement contained above, you and FSD agree to submit to the exclusive jurisdiction of the courts located in New York, New York to resolve any Dispute arising out of this Agreement or the FSD Services. YOU HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD-PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE FSD SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ACCRUES. AFTER SUCH PERIOD, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
You agree to indemnify and hold FSD, its FSD Affiliates, subcontractors and other partners, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including, but not limited to, reasonable attorneys' fees, made by any third-party due to or arising out of or in connection with your use of the FSD Services, your breach of this Agreement, your violation of any rights of another or any User Content that you post or otherwise submit on, through or in connection with the FSD Services.
FSD does not knowingly accept, via the FSD Services or otherwise, unsolicited submissions including, without limitation, submissions by you of blog ideas, articles, scripts, story lines, fan fiction, characters, drawings, information, suggestions, proposals, ideas or concepts. FSD requests that you do not make any unsolicited submissions. Any similarity between an unsolicited submission and any elements in any FSD or FSD Affiliate creative work, including without limitation, a film, series, story, title or concept would be purely coincidental. If you do send any submissions to FSD via the FSD Services that are unsolicited (including but not limited to any Forum), however, you agree that (i) your unsolicited submissions are not being made in confidence or trust and that by making such submissions, no contractual or fiduciary relationship is created between you and FSD; (ii) any such unsolicited submissions and copyright becomes the property of and will be owned by FSD (and are not User Content licensed by you to FSD under “Your Proprietary Rights in and License to Your User Content”) and may be used, copied, sublicensed, adapted, transmitted, distributed, publicly performed, published, displayed or deleted as FSD sees fit; (iii) you are not entitled to any compensation, credit or notice whatsoever in connection with such unsolicited submissions; and (iv) by sending an unsolicited submission, you waive the right to make any claim against FSD or FSD Affiliates relating to any unsolicited submissions by you, including, without limitation, unfair competition, breach of implied contract or breach of confidentiality.
FSD may, from time to time, post FSD employment opportunities on the FSD Services and/or invite users to submit resumes to it. If you choose to submit your name, contact information, resume and/or other personal information to FSD in response to employment listings, you are authorizing FSD to utilize this information for all lawful and legitimate hiring and employment purposes. FSD also reserves the right, at its sole discretion, to forward the information you submit, to its FSD Affiliates for legitimate business purposes. Nothing in this Agreement or contained in the FSD Services will constitute a promise by FSD to contact, interview, hire or employ any individual who submits information to it, nor will anything in this Agreement or contained in the FSD Services constitute a promise that FSD will review any or all of the information submitted to it by users of the FSD Services.
The failure of FSD to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The Section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. Except as otherwise expressly provided herein, if any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
You agree that any notices the FSD may be required by Applicable Law to send to you will be effective upon FSD’s sending an e-mail message to the e-mail address you have on file with FSD or publishing such notices on the informational page(s) of FSD Services.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and FSD as a result of this Agreement or your use of the FSD Services. A printed version of this Agreement and of any notice related to it shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other business documents and records originally generated and maintained in printed form.
Nothing contained in this Agreement limits FSD’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the FSD Services or information provided to or gathered by us in connection with such use.
If you would like to contact any FSD Site with any questions regarding this Agreement, please click here for a list of contact information.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.