Last Updated: Nov 30, 2022
BY ACCESSING THIS PLATFORM IN ANY WAY, INCLUDING, WITHOUT LIMITATION, BROWSING THIS PLATFORM, USING ANY INFORMATION, AND/OR SUBMITTING INFORMATION TO COMPANY, YOU AGREE TO AND ARE BOUND BY THE TERMS, CONDITIONS, POLICIES AND NOTICES CONTAINED ON THIS PAGE, INCLUDING, BUT NOT LIMITED TO, CONDUCTING TRANSACTIONS ELECTRONICALLY, DISCLAIMERS OF WARRANTIES, DAMAGE AND REMEDY EXCLUSIONS AND LIMITATIONS, BINDING ARBITRATION, AND A CHOICE OF NEW YORK LAW.
ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE IN SECTION 10. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND COMPANY AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND COMPANY WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
From time to time we may update this Platform and these Terms. Your use of this Platform after we post any changes to these Terms constitutes your agreement to those changes. You agree to review these Terms periodically to ensure that you are familiar with the most recent version. In addition, when using particular services, your transactions or services may be subject to additional terms and conditions applicable to such services which may be posted from time to time. This may include promotions, sweepstakes/contests, as well as return policies for certain transactions.
Company may, in its sole discretion, and at any time, discontinue this Platform or any part thereof, with or without notice, or may prevent your use of this Platform with or without notice to you. You agree that you do not have any rights in this Platform and that Company will have no liability to you if this Platform is discontinued or your ability to access the Platform or any content you may have submitted through the Platform is terminated. All restrictions, rights granted by you, and all disclaimers and limitations of liability will survive any termination.
1. Company Content
Content on this Platform that is provided by Company or its licensors, including all materials that are included in or are otherwise a part of the Platform (including past, present and future versions of the Platform), including, without limitation: graphics; layout; text; instructions; photographs, images; audio; videos; designs; trademarks, trade dress, logos, product names or packaging, and slogans; any and all copyrightable material (including source and object code); the “look and feel” of the Platform, digitally downloadable files, and the compilation of all of the foregoing (“Company Content”) is the property of Company and its licensors, and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws.
You agree not to download, display or use any Company Content for use (a) in any publications, (b) in public performances, (c) on websites other than this Platform for any other commercial purpose, (d) in connection with products or services that are not those of Company, and/or (e) in any other manner that is likely to cause confusion among consumers, that disparages or discredits Company and/or its licensors or their respective products or brands, that dilutes the strength of Company’s or its licensor’s intellectual property, or that otherwise infringes Company’s or its licensors’ intellectual property rights. You further agree to in no other way misuse any Company Content or third party content that appears on this Platform.
2. Use of the Platform and Posting Policy
The following requirements apply to your use of the Platform, including any submission, data, feedback, or other materials provided, submitted, posted, transmitted, or displayed by you in connection with the Platform (“User Content”):
(a) you will not use any electronic communication feature of the Platform for any purpose that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, hateful, invasive of the privacy of another person, abusive, racist, infringing, pornographic, violent or otherwise objectionable or inappropriate as determined by Company;
(b) you will not upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights;
(c) you will not collect, store, or post any content that:
i. contains personal information about other users or any individual;
ii. violates the privacy/publicity of any other individual or entity;
iii. contains anything that you are under a contractual obligation to keep private or confidential;
iv. contains any images, words, sounds, video, or other content that is subject to intellectual property rights for which you do not have the right or license to use in the manner contemplated on the Platform;
v. contains any commercial or corporate advertising (including, without limitation, corporate logos, brand names, and slogans), recognizable branded products, or commercial artwork;
vi. suggests, depicts, or describes any inappropriate, unlawful, or dangerous behavior or use of Company’s or any other products or services;
vii. contains or describes any harmful or illegal activity or content or in any way violate any federal, state, or local laws, rules, or regulations;
viii. creates or implies any association between Company and any individual or entity or his, her, or its products or services;
ix. is false, fraudulent, deceptive, misleading, defamatory, slanderous, libelous (including trade libel), disparaging, unlawfully harassing, threatening, profane, obscene, pornographic, hateful, indecent, inappropriate, or injurious to any other party;
x. depicts or promotes ingesting substances that are not meant for consumption and could lead to severe harm;
xi. encourages dangerous games, dares, challenges, or stunts that might lead to injury or property damage;
xii. depicts, would constitute, encourages, normalizes, glorifies, or provides instructions for a criminal offence, dangerous activities or self-harm;
xiii. depicts, promotes, normalizes, or glorifies disordered eating;
xiv. depicts, promotes, normalizes, or glorifies any dangerous weight loss behaviors associated with disordered eating;
xv. depicts, solicits, promotes, normalizes, or glorifies non-consensual sexual acts or non-consensual intimate imagery;
xvi. insults another individual, or disparages an individual on the basis of attributes such as intellect, appearance, personality traits, or hygiene;
xvii. intimidates or harasses another;
xviii. promotes sexually explicit material, violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
xix. is deliberately designed to provoke or antagonize people, especially trolling and bullying, or is intended to harass, harm, hurt, scare, distress, embarrass or upset people;
xx. contains a threat of any kind, including threats of physical violence;
xxi. contains any answers, responses, comments, opinions, analysis or recommendations that you are not properly licensed or otherwise qualified to provide;
xxii. in the sole judgment of Company, is objectionable or which restricts or inhibits any other person from using the Platform, or which may expose Company, the Platform or its users to any harm or liability of any type;
(d) you will not use the Platform, without our express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
(e) you will not upload, post, email, or otherwise transmit any advertising or promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation or unauthorized communication;
(f) you will not impersonate any person, entity, or organization, including without limitation, the personnel of Company, or falsely state or otherwise misrepresent an affiliation with another person or organization, including giving the impression that any content you upload, post, transmit, distribute or otherwise make available emanates from the Platform;
(g) you will not upload, post, email, or otherwise transmit any material that contains viruses, malicious code, or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of the Platform, any computer software or hardware, or telecommunications equipment;
(h) you will not use any data mining, crawlers, spiders, robots or similar data gathering, scraping or extraction methods in connection with the Platform;
(i) you will not use the Platform, or any content or information available on or through the Platform for any unauthorized purpose;
(j) you will not attempt to reverse engineer, reverse assemble, reverse compile, decompile, disassemble, translate, or otherwise alter, defraud, or create false results from any executable code, information on, or received by the Platform;
(k) you will not harvest or collect personal information about any other individual who uses the Platform;
(l) you will not market, rent or lease the Platform for a fee or charge, or use the Platform to advertise or perform any commercial solicitation;
(m) you will not interfere with or attempt to interfere with the proper working of the Platform, disrupt our website or any networks connected to the Platform, or bypass any measures we may use to prevent or restrict access to the Platform;
(n) you will not incorporate the Platform or any portion thereof into any other program or product. In such case, we reserve the right to refuse service, terminate accounts or limit access to the Platform in our sole discretion;
(o) you will not use automated scripts to collect information from or otherwise interact with the Platform;
(p) you will not use or attempt to use another’s account, service or system without authorization from Company, or create a false identity on the Platform;
(q) you will not use the Platform in a manner that may create a conflict of interest or undermine the purposes of the Platform, such as trading reviews with other users or writing or soliciting fake reviews;
In addition to the above, your access to and use of the Platform must, at all times, be compliant with our Community Guidelines.
By displaying, publishing, or otherwise submitting any User Content on or through the Platform, you hereby grant to Company a non-exclusive, sub-licensable, worldwide, fully-transferrable, fully-paid, irrevocable, perpetual, royalty free license to use, modify, publicly perform, publicly display, reproduce, adapt, reformat, publish, broadcast, translate, create derivative works from, transmit, and distribute such User Content in any and all media or technology now known or hereinafter developed without the requirement to make payment to you or to any third party or the need to seek any third party permission. This license includes the right to host, index, cache, distribute, and tag any User Content, edit and revise any User Content (without notice), as well as the right to sublicense User Content to third parties. You continue to retain all ownership rights in your User Content, and you continue to have the right to use your User Content in any way you choose, subject to these Terms and the license described herein. You represent and warrant that you own all content submitted, displayed, published or posted by you on the Platform and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any content you submit, and our use thereof does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity. You further represent that all information provided by you through this Platform is true and accurate. Company reserves the right to remove any User Content you provide, in its sole discretion, without any notice to you.
You are solely responsible for your conduct and any data that you submit, post, transmit, or display on or through the Platform. We reserve the right to, but are not obligated to, remove, block, and/or monitor, without notice, any visitor that we consider, for any reason, to violate these Terms or to be outside the subject scope of the Platform. We further reserve the right, at any time and without prior notice, to remove or disable access to content or refuse to display content at our discretion for any reason or no reason. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate these Terms, we may take any action we deem necessary to cure or prevent the violation.
Users of the Platform who are California residents and are under 18 years of age may request and obtain removal of User Content they posted by contacting us at privacy.support@TSXentertainment.com. All requests must be labeled “California Removal Request” on the email subject line. All requests must provide a description of the User Content you want removed and information reasonably sufficient to permit us to locate that User Content. We do not accept California Removal Requests via postal mail, telephone or facsimile. We are not responsible for notices that are not labeled or sent properly, and we may not be able to respond if you do not provide adequate information.
3. Broadcasting Service
Some features of the Platform may allow users to pay a Service Fee (as defined below) to publicly broadcast their User Content through channels, media, or platforms owned or licensed by us (“Broadcasting Service”). The Broadcasting Service allows you to pick a date and time slot (within a predetermined time block), during which your User Content will be broadcasted, if it has been approved and all related Service Fees have been paid. Purchasing Broadcasting Services does not guarantee that your User Content will be displayed at all, or that it will be displayed during the requested time slot. If you purchase a Broadcasting Service and upload your User Content, we will then review your User Content for compliance with the Posting Policy and Content Guidelines. By purchasing the Broadcasting Service you agree and authorize us to contact you either via the Platform, or via email, with updates regarding your Broadcasting Service.
Once you purchase the Broadcasting Service (by paying the Service Fee, uploading your User Content, and choosing the desired broadcasting date and time), we will contact you to advise you: 1) whether the User Content provide has been approved or rejected; 2) when your User Content has been scheduled to be broadcasted; 3) prior to your User Content being broadcasted; and 4) in case there are any issues with your Broadcast Services.
4. Service Fees and Refund Policy
Certain features of the Platform, such as the Broadcasting Service, are available for purchase and you will be required to pay certain fees and costs (“Service Fees”) to use the features that are subject to Service Fees (“Paid Features”). The Service Fees are determined in our sole discretion. The Service Fees may vary and will depend on the type of Paid Features. The Service Fees will be displayed to you at the time you decide to purchase Paid Features. You always have the choice to accept or reject the Service Fees. However, if you decline to pay the Service Fees, you will not be able to access, view, or use the Paid Feature. If you purchase the Broadcasting Service, you will be presented with the Service Fee for that specific Paid Feature and if you accept it, we will place a temporary hold on your payment method that will authorize us to charge your method of payment for this amount, once the User Content is approved. If your User Content is rejected, you will not be charged any amount and we will automatically cancel the hold on your payment method.
All User Content is subject to the Posting Policy in Section 2 and the Content Guidelines. When you purchase a Paid Feature such as the Broadcasting Service, you will be required to accept the Service Fee which will place a hold on you method of payment for the amount of the Service Fee. However, submitting User Content and accepting the Service Fee does not guarantee that your User Content will be publicly displayed. Instead, this guarantees that we will review your User Content for compliance with the Posting Policy and Content Guidelines, and if approved, we will undertake our best efforts to schedule your User Content to be broadcasted during the selected time block. However, we make no promises or guarantees that your User Content will broadcast at all, or during the selected time block. We will contact you in case your User Content has been rejected or the time block you have selected is no longer available.
If your User Content is rejected, we will cancel the authorization hold and you will not be charged any Service Fees related to that User Content. If your User Content is approved and scheduled for broadcast as request or approved by you, your method of payment will be charged for the amount of the Service Fee.
We do not offer any refunds related to Paid Services that have already been completed. For example, if you purchase the Broadcasting Service and your User Content has already been broadcasted, we will not offer you a refund of any Service Fees paid for such completed service. If you are unhappy about any aspect of the Broadcasting Service you have purchased, please contact our customer satisfaction team at customer.support@TSXentertainment.com.
If we, in our sole discretion, determine that you have uploaded User Content that either has been previously rejected or clearly fails to comply with our Posting Policy and Content Guidelines, for the purpose of annoyance, harassment, or abuse of us or the Platform, we may chose not to refund the Service Fee associated with such transaction, and/or terminate, block, or suspend your access to the Platform or prevent you from purchasing any additional Paid Features.
5. DMCA Notice and Procedure for Copyright Infringement Claims
As Company asks others to respect its intellectual property rights, it respects the intellectual property rights of others and expects users of its Platform to do the same. Company, in appropriate circumstances, may remove from the Platform information that might infringe the intellectual property rights of others.
Procedure for Reporting Copyright Infringements
If you believe your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on the Platform, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- Provide name of copyright rights holder;
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interest;
- A description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work. If multiple copyrighted works are covered by this notice – you may provide a representative list of the copyrighted works that you claim have been infringed;
- Identification of the URL or other specific location on the Platform where the material that you claim is infringing is located;
- Provide your company affiliation (if applicable), mailing address, telephone number, and, if available, email address;
- 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 the law; and
- A statement by you with the following:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent or the law (e.g. as a fair use)”.
“I consent to the information in my complaint being forwarded to the user who posted the allegedly infringing content.”
“I understand that under Section 512(f) of the Digital Millennium Copyright Act or similar law, if applicable, I may be liable for any damages, including costs and attorneys’ fees, if I knowingly misrepresent or provide false information.”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid and we will have no obligation to respond or acknowledge receipt of your notice. Please note that you will be liable for damages (including costs and attorneys’ fees) if you misrepresent or make bad faith claims that any material on the Platform infringes your copyrights.
Deliver your Notice, with all items completed, to Company’s Designated Copyright Agent at the address below:
TSX Entertainment, LLC
1345 Avenue of the Americas
New York, NY 10105
THE DESIGNATED AGENT SHOULD BE CONTACTED ONLY IF YOU BELIEVE THAT YOUR WORK HAS BEEN USED OR COPIED IN A WAY THAT CONSTITUTES COPYRIGHT INFRINGEMENT AND SUCH INFRINGEMENT IS OCCURRING ON THE PLATFORM. ALL OTHER INQUIRIES DIRECTED TO THE DESIGNATED AGENT WILL NOT RECEIVE A RESPONSE.
Receipt of Proper Infringement Notification
Once a proper bona fide infringement notification has been received by the Designated Agent, it is Company’s policy:
- To remove or disable access to the infringing content;
- To notify the content provider, member, or user (“Content Provider”) that it has removed or disabled access to the content; and
- That repeat offenders will have the infringing content removed from the system and that Company may terminate such Content Provider’s access to the Platform.
Procedure to Supply a Counter-Notice to the Designated Agent
If the Content Provider believes that the content that was removed or to which access was disabled is either not infringing or the Content Provider believes that it has the right to post and use such content, the Content Provider may send the Designated Agent a counter-notice, which must contain the following:
- Content Provider’s contact information, including full legal name (not that of a company) of the submitter, an email address, a physical address, and a phone number.
- The location, including any URL, of the content that has been removed or disabled.
- The following statement, to which Content Provider must agree: “I consent to the jurisdiction of the Federal District Court for the district in which my address is located, or if my address is outside of the United States, the judicial district in which Company is located, and will accept service of process from the claimant.”
- The following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
- A physical or electronic signature. To satisfy this requirement, Content Provider may type the submitter’s full legal name (not that of a company) at the bottom of your electronic counter-notification.
If a counter-notice is received by the Designated Agent, Company may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten business days.
If Company does not receive notice within ten business days that the original complaining party is seeking a court order to prevent further infringement of the content, we may replace or cease disabling access to the material that was removed. The decision to replace or cease disabling access to any content is at Company’s sole discretion.
6. User Accounts/Registrations
Certain areas of the Platform require registration or otherwise ask you to provide information to participate in certain features or access certain content or to create a user account to access certain services (“User Account”). In order to create a User Account, you may log in through one of the third party services (such as Facebook, Google, Apple) (“Connected Account”) or sign up by providing the required information, such as your name and email address. If you elect not to provide such information, you may not be able to access certain content or participate in certain features of the Platform, or any features at all.
By creating a User Account, you agree: (a) to provide accurate, current and complete information about yourself; (b) to maintain and promptly update from time to time as necessary your information; (c) to maintain the security of your password and accept all risks of unauthorized access involving your email and password combination and the information you provide to us; (d) to immediately notify us if you discover or otherwise suspect any security breaches related to the Platform, or your email and password combination; (e) that you will use our Platform only for yourself, and not on behalf of any third party, unless authorized by such third party; and (f) that you are fully responsible for all activity on the Platform that occurs under your User Account. We may, in our sole discretion, refuse to allow you to create a User Account, or limit the number of User Accounts that you may associate with the Platform, or suspend or terminate any User Account or access to the Platform.
You also agree that you will not:
- Create multiple User Accounts;
- Use the Platform under a different User Account if we’ve disabled access for you under a different User Account, unless you have our written permission first;
- Buy, sell, rent, or lease access to the Platform under your email and password combination or Connected Account to any third party, unless you have our written permission first;
- Share your email and password combination or access to the User Account with anyone; or
- Log in or attempt to log in to access the Platform through any unauthorized third party application(s) or client(s).
7. Suspension, Termination, Cancellation
Company reserves the right, at any time, in Company’s sole and exclusive discretion, to amend, modify, suspend, or terminate the Platform, or any part thereof, and/or your use of or access to them, with or without notice. Company shall have no liability to you or any other person or entity for any modification, suspension, or termination, or any loss of related information.
Company may also, at its option and in its sole discretion and with or without notice: (a) suspend, restrict, or terminate your access to any or all of the Platform, and/or (b) deactivate or cancel your User Account, if: (i) we are so required by a facially valid subpoena, court order or binding order of any government authority; (ii) we reasonably suspect you of using the Platform in connection with any Prohibited Uses (as defined below); (iii) your use of the Platform is subject to any pending litigation, investigation, or government proceeding and/or we, in our sole discretion, perceive a heightened risk of legal or regulatory non-compliance associated with your activity; (iv) any of our service partners are unable to support your use thereof; (v) you take any action that Company deems in its sole discretion as circumventing Company controls, or abusing promotions which Company may offer from time to time; (vi) we stop offering all or part of the Platform or services offered through the Platform; or (vii) you breach these Terms.
You acknowledge that Company’s decision to take certain actions, including limiting access to or suspending your User Account, may be based on confidential criteria that are essential to Company’s risk management and/or security protocols. You agree that Company is under no obligation to disclose the details of its risk management and/or security procedures to you.
8. Representations, Limitations of Liability and Indemnity
Company makes no representations about the reliability of the features of this Platform, the Company Content or any other Platform feature, and disclaims all liability in the event of any service failure. You acknowledge that any reliance on such material or systems or use of the Platform will be at your own risk. Company makes no representations regarding the amount of time that any Company Content will be preserved. Company makes no representation or warranties that any material, images, applications or files obtained from or through the Platform are free from computer viruses or other faults or defects. It is your responsibility to take customary precautions against computer viruses and/or concerning inaccuracies, typographical errors or other defects on the Platform or applications or material available on or through Platform. You agree to use this Platform, applications and functions at your own risk.
Company does not endorse, verify, evaluate or guarantee any information provided by users and nothing shall be considered as an endorsement, verification or guarantee of any User Content. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which contain or suggest an endorsement by Company (including its personnel and owners) without the prior review and written approval of Company.
THIS THE PLATFORM AND PLATFORM UPDATES ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUSES, ARE MADE WITH RESPECT TO THIS PLATFORM OR ANY INFORMATION OR SOFTWARE THEREIN. THE COMPANY ENTITIES DO NOT WARRANT THAT YOUR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE COMPANY ENTITIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. BY ACCESSING OR USING THE SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICES.
UNDER NO CIRCUMSTANCES WILL THE COMPANY ENTITIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE PLATFORM OR PLATFORM UPDATES; (B) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE PLATFORM OR PLATFORM UPDATES; (C) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE COMPANY ENTITIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SERVICES; (D) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (E) ANY ERRORS OR OMISSIONS IN THE OPERATION OF THE SERVICES; OR (F) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE).
IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE COMPANY ENTITIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE PLATFORM OR PLATFORM UPDATES DURING THE PRECEDING YEAR.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF COMPANY’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE COMPANY ENTITIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE COMPANY ENTITIES. BY ACCESSING THE SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; AS A RESULT, THE ABOVE LIMITATIONS OR EXCLUSIONS UNDER THIS PARAGRAPH MAY NOT APPLY TO YOU AND THE FOREGOING PARAGRAPH SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENT ARE THE RESULT OF COMPANY’S NEGLIGENT, FRAUDULENT, RECKLESS ACTS OR INTENTIONAL MISCONDUCT.
ANY PRODUCTS AND/OR SERVICES DESCRIBED ON THE PLATFORM ARE OFFERED IN JURISDICTIONS WHERE THEY MAY BE LEGALLY OFFERED FOR SALE. THE INFORMATION ON THE PLATFORM IS NOT AN OFFER OR SOLICITATION BY ANYONE IN ANYONE IN ANY JURISDICTION IN WHICH AN OFFER OR SOLICITATION CANNOT LEGALLY BE MADE, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE A SOLICITATION.
You agree to indemnify and hold harmless from and against any damages and expenses, including reasonable attorneys’ fees and costs, related to your violation of these Terms, or any violations thereof by your dependents or any claims arising from the use of User Content you submitted, posted, or otherwise provided to Company or this Platform.
You (and any third party on whose behalf you use the Platform) agree to indemnify, defend, and hold harmless Company, its parents, subsidiaries, officers, employees, and contractors and each of their respective officers, employees and agents (collectively, “Company Entities”) from any claims, liabilities, damages, losses, costs, and/or expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with the following (whether resulting from your activities on the Platform or those conducted on your behalf): (i) your access to or use of the Platform; (ii) your breach or alleged breach of these Terms; (iii) your User Content and the use of User Content by Company Entities; or (vi) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property, or privacy right. You agree that the Company Entities will have no liability in connection with any such breach or unauthorized use, and you agree to indemnify, defend, and hold harmless any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees of the Company Entities in connection therewith. You will cooperate as fully required by Company in the defense of any claim. The Company Entities reserve the right to assume exclusive control of its defense in any matter subject to your indemnification, which shall not excuse your obligation to indemnify the Company Entities. You shall not settle any claim without the prior written consent of Company.
9. Third Party Websites
10. Binding Arbitration
You and Company agree that any controversy or claim (except for any claim of infringement, breach of confidentiality, or misappropriation of any patent, copyright, trademark, or trade secret) arising out of or relating to these Terms, the Platform, and/or use of the Platform or Platform Updates, as well as all questions of arbitrability, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules (“Commercial Rules”) by a sole arbitrator. You can access the Commercial Rules at https://www.adr.org/Rules or by calling +1 800-778-7879. You and Company shall endeavor to agree upon the arbitrator, and if you and Company fail to do so within twenty-one (21) days of the commencement of the arbitration, the appointment shall be made by the AAA in accordance with the Commercial Rules. The place, or legal seat of arbitration, shall be New York, and the language of the arbitration shall be English.
YOU MAY ONLY BRING CLAIMS IN YOUR INDIVIDUAL CAPACITY ON YOUR OWN BEHALF, AND NOT IN ANY REPRESENTATIVE CAPACITY OR ON BEHALF OF ANY CLASS OR PURPORTED CLASS, AND NO ARBITRATION YOU COMMENCE HEREUNDER MAY BE JOINED WITH OR INCLUDE ANY CLAIMS BY ANY OTHER PERSONS. Each party shall bear its own arbitration filing fees.
The arbitrator shall issue a reasoned award and shall have the power to grant any interim or provisional measures that the arbitrator deems appropriate, including, but not limited to, injunctive relief and specific performance, and any interim or provisional measures ordered by the arbitrator may be specifically enforced by any court of competent jurisdiction as a final award. Each party hereto retains the right to seek interim measures from a judicial authority, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.
The arbitrator shall award the prevailing party, if any as determined by the arbitrator, its costs, including reasonable attorney’s fees. Judgment on any award rendered by the arbitrator may be entered in any court of competent jurisdiction.
No information concerning an arbitration, beyond the names of the parties, their counsel or the relief requested, may be unilaterally disclosed to a third party by any party unless required by law (other than to legal or professional advisors, witnesses, or experts acting pursuant to a duty of confidentiality). Any documentary or other evidence given by any party or witness in any arbitration shall be treated as confidential by any party whose access to such evidence arises exclusively because of its participation in the arbitration and shall not be disclosed to any third party (other than legal or professional advisors, witnesses or experts acting pursuant to a duty of confidentiality), except as may be required by law. Any party who commences any judicial proceeding in connection with an arbitration initiated hereunder shall endeavor to have the judicial record of any such proceeding sealed or kept confidential to the extent permitted by law.
You acknowledge and agree that your use of the Platform may involve you providing an “electronic signature” indicating your desire to use the Platform. Your “electronic signature” indicates your acceptance of this Agreement, and your consent to receive communications about this Agreement electronically. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. If you wish to receive communications in another manner, you may contact us at customer.support@TSXentertainment.com. You may opt out of receiving promotional emails that you have previously opted-in to at any time by following the instructions to unsubscribe, as provided therein.
12. No Third Party Rights
Unless expressly stated in these Terms to the contrary, nothing herein is intended to confer any rights or remedies on any persons other than you, Company, and our successors and assigns. Nothing in these Terms is intended to relieve or discharge the obligation or liability of any third persons to you and Company and our successors and assigns, nor shall any provision give any third parties any right of subrogation or action over against you, Company, and our successors and assigns.
13. Mobile Service, Internet and Service Fees
The use of the Platform may require use of a mobile device and wireless mobile data service, which must be obtained from your wireless carrier, and may require Internet access, which must be obtained from your service provider; you are responsible for obtaining and paying for such additional services and obtaining a suitable device, including without limitation all usage charges related thereto. You are required to send and receive, at your cost, electronic communications related to the Platform, including without limitation, administrative messages, service announcements, diagnostic data reports, and Platform Updates, from Company, your mobile carrier or third party service providers. If you do not have an unlimited wireless mobile data plan, you may incur additional charges from your wireless service provider in connection with your use of the Platform. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the Platform, including but not limited to payment of all third party fees associated therewith, including fees for information sent to or through the Platform.
The Platform may not work with all devices or all mobile carriers. Company makes no representations that the Platform will be compatible with or provided by all mobile carriers. In the event that fees are charged for the Platform, or other third party service providers charge a fee for the products or services they provide, you agree to pay such fee to the respective party in exchange for your continued use of such products or services. Some services may be subject to different or additional terms (including fees), which you will be required to agree to prior to your use of such services.
14. Mobile App Terms
Company may make available for download certain Platform updates or upgrades to the Platform to update, enhance or further develop the Platform (“Platform Updates”, included in the definition of “Platform”). The license granted herein allows you to download and use the Platform Updates to update the Platform on any device that you own or control. These Terms does not allow you to update devices that you do not own or control, and you may not make the Platform Updates available over a network where it could be used by multiple devices or multiple computers at the same time. You may not make any copies of the Platform Updates, unless such copy is authorized in writing by Company.
Except as and only to the extent permitted by applicable law, or by licensing terms governing use of open-sourced components included with the Platform, you may not copy, decompile, reverse engineer, disassemble, adapt, translate, modify, or create derivative works of the Platform, Platform Updates, any content included therein, or any part thereof or attempt to determine any source code, algorithms, methods or techniques embodied by the Platform, Platform Updates, or any derivative works thereof. Any attempt to do so is a violation of the rights of Company and its licensors of the Platform and Platform Updates. If you breach this restriction, you may be subject to prosecution and damages. By storing content on your device, you are making a digital copy. In some jurisdictions, it is unlawful to make digital copies without prior permission from the rights holder. The Platform and Platform Updates may be used to reproduce materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce.
Company may, at its discretion, automatically download Platform Updates to your device. You agree to accept these Platform Updates, and to pay for any costs associated with receiving them. The Platform and Platform Updates are subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Platform and Platform Updates. These laws include restrictions on destinations, end users and end use.
For Apple iOS Users: You, the end-user of any mobile application provided by Company, acknowledge that the Terms are entered into by and between Company and you and not with Apple, Inc. Notwithstanding the foregoing, you acknowledge that Apple, Inc. and its subsidiaries are third-party beneficiaries of these Terms and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce these Terms. You acknowledge that Apple, Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the Platform. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). These Terms incorporates by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/). For purposes of these Terms, the Platform is considered the “Licensed Application” as defined in the LAEULA and Company is considered the “Application Provider” as defined in the LAEULA. If any of these Terms conflict with the terms of the LAEULA, the terms of these Terms shall control.
By downloading the Platform from Google Play (or its successors) operated by Google, Inc. or one of its affiliates (“Google”), you specifically acknowledge and agree that to the extent of any conflict between (a) the Google Play Terms of Services and the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms”), and (b) the other terms and conditions in these Terms, the Google Play Terms shall apply with respect to your use of the Platform that you download from Google Play. You hereby acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by Company or you (or any other user) under these Terms or the Google Play Terms.
Both you and Company acknowledge and agree that no partnership is formed and neither of you nor Company has the power or the authority to obligate or bind the other.
These Terms will be governed by and construed in accordance with the internal laws of New York without regard to conflicts of laws principles. By using this Platform, you hereby agree that any and all disputes regarding these Terms and/or the Platform not subject to the arbitration provision set forth above will be subject to the federal and state courts located in the State of New York. YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THIS PLATFORM AND/OR THESE TERMS, WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION. These Terms operate to the fullest extent permissible by law. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to these Terms. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Platform or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, the Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You also agree that you will not use the Application for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
The failure of Company to comply with these Terms because of an act of God, epidemic, outbreak, war, fire, riot, terrorism, earthquake, actions of federal, state or local governmental authorities or for any other reason beyond the reasonable control of Company, shall not be deemed a breach of these Terms.
Company’s failure to exercise or enforce any right or provision of these Terms shall not be deemed a waiver of such right or provision in that or any other instance. We may assign these Terms at any time without notice to you. You may not assign to anyone else and any attempt by you to assign shall be void. If you do not comply with these Terms, and we do not act right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future).
These Terms constitute a binding agreement between you, your heirs, successors, affiliates, and representatives and Company, and is accepted by you upon your use of the Platform or your account. These Terms constitute the entire agreement between you and Company regarding the use of the Platform and your account. By using the Platform you represent that you are capable of entering into a binding agreement, and that you agree to be bound by these Terms.