1.1 FSD reserves the right to update and change, from time to time, any aspect of the Application and this FSD License and all documents incorporated by reference herein. FSD may modify this FSD License at any time, and each such modification will be effective upon linking to, posting or referencing the modified FSD License on or through the Application or FSD Service. All material modifications will apply prospectively only. Your continued use of the Application following any modification constitutes your acceptance of and agreement to be bound by this FSD License as so modified. It is therefore important that you review this FSD License 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 Application.
1.2 In the ordinary courses of our business, we may share information that we collect from or about you with third parties in order to process your requests and fulfill your orders for video content offered through the Application, including, to provide you with access to localized content and provide video content recommendations.
1.3 PLEASE NOTE THAT THE “ARBITRATION AGREEMENT” SECTION CONTAINS PROVISIONS THAT REQUIRE (i) WITH LIMITED EXCEPTIONS, ALL DISPUTES ARISING BETWEEN YOU AND FSD UNDER THIS FSD LICENSE 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 VISIT: ARBITRATION or GO TO Section 6 below TO REVIEW THE ARBITRATION AGREEMENT.
2. Licensed Uses; Restrictions
2.1 The Application (including, without limitation, any software, documentation, and local files installed or utilized by the installer application) is owned by FSD and, with respect to their applicable contributions to the Application, FSD’s licensors, including content and data providers (collectively, “FSD Licensors”), and are licensed to you on a non-exclusive, non-sublicenseable, revocable basis, in the United States, on the service where the Application is made available to you, on the terms and conditions set forth herein. This FSD License defines legal use of the Application and all updates, revisions, substitutions and copies of the Application made by or for you. All rights not expressly granted to you herein are reserved by FSD or applicable FSD Licensors.
2.2 You may:
Install and personally use the Application on a device that is supported by the Application and owned or controlled by you;
Only use the Application, the Licensor Software and any data accessed through the Application for your own personal, non-commercial use;
Use the Application until this FSD License is terminated by you or FSD; and
Terminate this FSD License by discontinuing all use of the Application.
2.3 You may not, and you may not authorize others to:
Decompile, copy, reverse engineer, disassemble, modify, rent, lease, loan, distribute, or create derivative works (as defined by the U.S. Copyright Act) or improvements (as defined by U.S. patent law) based on the Application, any updates or any portion thereof;
Distribute or make the Application available over a network where it could be used by multiple devices at the same time;
Incorporate the Application into any device manufactured by or for you;
Use the Application outside of the United States;
Use the Application in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this FSD License;
Use or export the Application in violation of Applicable Law; or
Sell, lease, loan, distribute, transfer, or sublicense the Application or access thereto or derive income from the use or provision of the Application, whether for direct commercial or monetary gain or otherwise, without FSD’s prior, express, written permission; and
Assign, copy, transfer, or transmit the Application, the Licensor Software or any data obtained through the Application to any third party.
3.1 The Application is protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in this FSD License. FSD and FSD’s Licensors own all rights, title, and interest in and to their applicable contributions to the Application. This FSD License grants you no right, title, or interest in any intellectual property owned or licensed by FSD, including, without limitation, the Application and FSD trademarks, and creates no other relationship between you and FSD or between you and FSD’s Licensors.
3.2 The Application and its components contain software licensed from FSD Licensors (“Licensor Software”) which enables the Application to perform certain functions. All rights in and to any third-party data, software, and servers are reserved and remain with the applicable third parties. You agree that such FSD Licensors and any other third parties may enforce their rights under this FSD License against you directly in their own name.
4. Support; Updates; Termination
4.1 FSD, in its sole discretion, may elect to provide you with customer support and/or software updates, upgrades, enhancements or modifications for the Application (collectively, “Support”).
4.2 FSD, in its sole discretion, may elect to use third-party entities to manage the service through which the Application is available, channel partners, associated service providers, airtime service providers and merchants of record (collectively, “Application Partners”).
4.3 Unless terminated by FSD in its sole discretion, this FSD License remains in full force and effect while you use the FSD Application. FSD may terminate your access to all (or any portion of) the Application at any time, for any or no reason, with or without prior notice or any explanation, and without liability. Furthermore, even after your access to the Application 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 Application. If we terminate your access to the Application (or any portion of the Application) you: (1) must immediately cease any and all use of the Application and remove the Application from your device; (2) may not try to access, use or download the Application without FSD’s prior written approval. You agree that your account is non-transferable. Any rights to the Application terminate upon your death. This FSD License terminates automatically if you violate any of its terms and conditions.
4.4 FSD may change, suspend, or discontinue any aspect of the Application including, without limitation, the availability of any Support or Application feature, database, or content at any time without prior notice or liability to you. FSD may also impose limits on certain Application features or restrict your access to parts or all of the Application or Support without notice or liability.
4.5 FSD reserves the right in its sole discretion to charge fees for use of or access to any aspect of the Application or any feature(s) thereof. 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 the Application (or any portion of the Application), due to your breach of this FSD License or violation of Applicable Law, as determined by FSD, in its sole discretion.
5. Disclaimers; Limitation of Liability
5.1 THE APPLICATION AND ANY APPLICATION FEATURE ACCESSED THROUGH THE APPLICATION ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND ANY USE THEREOF IS AT YOUR SOLE RISK AND FSD DOES NOT GUARANTEE OR PROMISE ANY SPECIFIC RESULTS FROM USE OF OR CONTINUOUS AVAILABILITY OF THE APPLICATION. FSD DOES NOT REPRESENT THAT THE APPLICATION OR ANY APPLICATION FEATURE ACCESSED VIA THE APPLICATION IS APPROPRIATE OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES. 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 APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS TO THE APPLICATION WILL BE CORRECTED, THAT THE APPLICATION 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 APPLICATION OR THIRD-PARTY SERVICES (INCLUDING, BUT NOT LIMITED TO, THROUGH LICENSOR SOFTWARE, APPLICATION PARTNERS, USER CONTENT OR THIRD-PARTY ADVERTISEMENTS) WILL BE ACCURATE, RELIABLE, TIMELY OR COMPLETE. UNDER NO CIRCUMSTANCES WILL FSD OR OUR PARENTS, SUBSIDIARIES OR AFFILIATES (“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 APPLICATION, PROBLEMS OR TECHNICAL MALFUNCTION IN CONNECTION WITH USE OF THE APPLICATION, ATTENDANCE AT AN FSD EVENT, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH THE APPLICATION, ANY USER CONTENT, ANY THIRD-PARTY ADVERTISEMENT OR THIRD-PARTY SERVICE TRANSMITTED ON, THROUGH OR IN CONNECTION WITH THE APPLICATION, OR THE CONDUCT OF ANY USERS OF THE APPLICATION, 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.
5.2 YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE APPLICATION, 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 APPLICATION. User Content, third-party advertisements, Licensor Software, Application Partners and their Third-Party Services do not necessarily reflect the opinions or policies of FSD or our FSD Affiliates.
5.3 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FSD, OUR FSD AFFILIATES, FSD LICENSORS OR APPLICATION PARTNERS, ADVERTISERS, SPONSORS OR APPLICATION PARTNERS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS (COLLECTIVELY, “COMPANY ENTITIES”), WILL NOT 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 APPLICATION, EVEN IF FSD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FSD’S AND THE COMPANY ENTITIES’ 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 APPLICATION DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM.
5.4 YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF FSD’S OR COMPANY ENTITIES’ ACTS OR OMISSIONS OR YOUR USE OF THE APPLICATION 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 APPLICATION. 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.
6. Arbitration Agreement
6.1 FSD, including its Company Entities, predecessors in interest, successors, and assigns, and you agree that any Dispute (as defined herein) between you and FSD regarding any aspect of your relationship with FSD, 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. The term “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any dispute, claim, demand, count, cause of action, or controversy between you and FSD, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory. The term “Dispute” specifically includes, but is not limited to, any and all claims between you and FSD in any way related to or concerning this Arbitration Agreement, any other aspect of this FSD License (including their applicability and their conformance to applicable law), any products or services provided by FSD, any billing disputes, and any disputes relating to telephonic, text message, or any other communications either of us received from the other. 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. Disputes over whether these exceptions apply shall be resolved by the court in which such action has been brought; all other disputes over arbitrability shall be resolved by the arbitrator. Each of you and FSD also agrees to give up the ability to seek to represent, in a class action or otherwise, anyone but each of you and FSD (see paragraph 6.9 of this Arbitration Agreement below). There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator must follow this Agreement. The arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages).
6.2 This FSD License, including, without limitation, the Arbitration 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 FSD License.
6.3 Any arbitration between you and FSD will be conducted by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”), as modified by this agreement to arbitrate. The arbitration shall be conducted by a single, neutral arbitrator, and if you and FSD cannot agree on who that single arbitrator will be, the arbitrator will be appointed pursuant to the JAMS Rules, with the participation and involvement of FSD and you pursuant to JAMS Rule 12. The JAMS Rules are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration/. The Consumer Arbitration Minimum Standards are available at http://www.jamsadr.com/consumer-arbitration/. The arbitrator is bound by the terms of this FSD License.
6.4 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 FSD must be sent by mail to Arbitration Notice of Dispute, 2121 Avenue of the Stars, 7th Floor, Los Angeles, California, 90067. 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 JAMS Rules. Further instructions on submitting a Demand for Arbitration may be found at http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf. In addition to filing this Demand for Arbitration Form with JAMS in accordance with its rules and procedures, you must send a copy of this completed Demand for Arbitration to FSD at the address listed above to which you sent your Notice of Dispute.
6.5 You and the FSD acknowledge and agree to abide by the following rules for arbitration: (a) YOU AND FSD 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, AND THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF; (b) FSD will pay arbitration costs as required by the JAMS Consumer Arbitration Minimum Standards and consistent with paragraph 6.6 below; (c) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (d) each side pays his, her or its own attorneys’ fees, except as otherwise provided in paragraph 6.8 below.
6.6 JAMS charges filing and other fees to conduct arbitrations. Ordinarily, the claimant has to pay the filing fee to initiate arbitration, but if you wish to commence an arbitration against FSD, you and FSD acknowledge and agree to abide by the following:
a. If you are seeking to recover less than $10,000 (inclusive of attorneys’ fees), FSD will pay the filing fee on your behalf or reimburse your payment of it.
b. If you are seeking to recover $10,000 or more, you will have to pay the filing fee charged by JAMS, but FSD will reimburse the filing fee if you prevail on all claims decided upon by the arbitrator.
c. FSD and you agree that, if the claims to be arbitrated total less than $10,000 (inclusive of attorneys’ fees), the claim ordinarily should be decided on written submissions only, without a telephonic or in-person hearing. FSD will not request a hearing for any claims totaling less than $10,000. This provision shall not be construed by the arbitrator to deprive you of any rights you may have to a telephonic or in-person hearing in your hometown area pursuant to the JAMS Rules.
d. FSD and you agree that, if the claims to be arbitrated total $10,000 or more, the arbitration will occur in a manner and place consistent with the JAMS Rules.
6.7 Regardless of how the arbitration proceeds, each of you and FSD shall cooperate in good faith in the exchange of non-privileged documents and information as necessary in accordance with the JAMS Rules, and the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions.
6.8 Each of you and FSD may incur attorneys’ fees during the arbitration. Each side agrees to pay his, her or its own attorneys’ fees unless the claim(s) at issue permit the prevailing party to be paid its attorneys’ fees, and in such instance, the fees awarded shall be determined by the applicable law(s). 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.
6.9 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. Further, unless FSD expressly 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.
6.10 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.
6.11 With the exception of subpart (a) in paragraph (6.5) (i.e., the waiver of the ability to proceed on behalf of multiple claimants or a purported class), if any part of this Arbitration Agreement is deemed invalid, unenforceable, or illegal, then the balance of this Arbitration Agreement shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (a) in paragraph (6.5) is found invalid, unenforceable or illegal, 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, the choice of governing law, and our mutual waiver of the right to a trial by jury, will remain in effect and apply to any claim that, for this or any other reason, proceeds in court rather than in arbitration.
7. Additional Terms
7.1 Indemnification. You agree to indemnify and hold FSD, the Company Entities, 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 misuse of the Application, 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 Application.
7.2 Government End Users. If the Application and related documentation are supplied to or purchased by or on behalf of the United States Government, then the Application is deemed to be a “commercial item” as defined by 48 C.F.R. § 2.101, and consisting of “commercial computer software” and “commercial computer software documentation” for purposes of compliance with 48 C.F.R. § 12.212 or § 227.7202. Rights of the United States Government shall not exceed the minimum rights set forth in 48 C.F.R. § 52.227-19. All other terms and conditions of this FSD License apply.
7.3 Governing Law. This FSD License 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 FSD License, the Application or any other 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 FSD LICENSE.7.4 No General Waiver; Severability. The failure of FSD to exercise or enforce any right or provision of this FSD License shall not constitute a waiver of such right or provision. If any provision of this FSD License is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this FSD License remain in full force and effect.
7.6 Statute of Limitations. YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS FSD LICENSE OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ACCRUES. AFTER SUCH PERIOD, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
7.7 Interpretation. The headings of the paragraphs in this FSD License are for convenience of reference only and do not affect the meaning or interpretation of this FSD License.
7.8 Software available in connection with the Application (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Application or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
7.9 Third Party Beneficiaries. Except for with respect to Company Entities (as applicable), this FSD License is for the sole benefit of the parties hereto and not for the benefit of any third party.