The term "Site Services" shall mean any service on, or provided by, the Site, and includes the content of the Site, including any and all human readable patent audio and/or visual elements of this Site created or owned by SPE, or third parties, including, without limitation, any text, graphics, images, illustrations, photographs, animations, video, audio or audiovisual works (including, without limitation, motion pictures, movie trailers, television programs or other episodic works), designs, logos, information and other content made available through the Site, including Promotional Materials, ("Site Content"), and any and all underlying elements of the Site, including, without limitation, source code, script, object code, software, computer programs, and other sets of statements and instructions contained in the underlying Site ("Site Codes").
These Terms are a binding legal agreement between the SPE Business Partner and SPE. The employee, agent and/or representative of the SPE Business Partner represents and warrants that he or she has the legal authority to act on behalf of the SPE Business Partner and to bind the SPE Business Partner to these Terms when using the Site. Do not use the Site if you cannot agree with any of the terms contained herein on behalf of yourself and/or the SPE Business Partner.
This Site is hosted on servers in the United States and the use of it, wherever you are resident or the SPE Business Partner is located, shall be subject to and governed by the laws of the State of California.
I. OWNERSHIP; RESTRICTIONS ON USE
The Site and the Site Services and all copyrights, patents, trademarks, service marks, trade names and all other intellectual property rights in the Site and the Site Services are owned by SPE and/or its licensors and are protected by applicable USA and international copyright and other intellectual property laws. The SPE Business Partner acknowledges, understands and agrees that it shall not have, nor be entitled to claim, any rights in or to the Site or Site Services and/or any portion thereof, except as expressly granted to the SPE Business Partner by SPE, subject to the conditions set forth below and the other terms and conditions of these Terms.
The SPE Business Partner may use certain Site Content for which the SPE Business Partner has acquired certain exhibition rights pursuant to a valid license agreement between the SPE Business Partner and SPE (the "License Agreement") and subject to all of the terms and conditions contained in said License Agreement.
II. GENERAL LICENSES
Subject to these Terms, we hereby grant the SPE Business Partner the following limited, revocable, non-exclusive, non-transferable, non-assignable, worldwide, royalty-free rights and licenses (each a "License"), if and as applicable:
1. the License to access and view the Site (including, without limitation, any Site Content provided on or through the Site) through the SPE's Business Partner's employees, agents or representatives for the SPE Business Partner's commercial, lawful use only, as intended through the customary and authorized functionality of the Site; and
2. the License to stream certain Site Content, in particular movie or television program trailers, using any of the widgets and/or other digital streaming Internet video players for the commercial use of the SPE Business Partner.
III. Promotional Materials
1. The SPE Business Partner may use certain promotional materials (including clips, photographs, audio, graphics, text and other information in digital format) ("Promotional Materials") as pertain to programming for which the SPE Business Partner has acquired certain exhibition rights pursuant to a valid License Agreement between the SPE Business Partner and SPE and subject to these Terms.
2. In accordance with such a License Agreement for Promotional Materials, the SPE Business Partner may download Promotional Materials expressly made available to the SPE Business Partner through the direct downloading of the Materials from the Site using a confidential password ("Password").
3. The SPE Business Partner's use of the Promotional Materials will be limited to approved promotional purposes only. The SPE Business Partner may use the Promotional Materials only during the license period specified in the License Agreement for the purposes granted therein by SPE and for no other purpose. The SPE Business Partner will not allow the Promotional Materials downloaded to be used by any other party. Additionally, the SPE Business Partner will not edit or alter the Promotional Materials downloaded.
4. The SPE Business Partner may access the Promotional Materials by logging onto the Site using the Password. The SPE Business Partner will not allow use of the Password by any person other than its authorized employees, agents and/or representatives, and the SPE Business Partner will cause its employees, agents and representatives to keep the Password confidential.
5. The SPE Business Partner's right to download the Promotional Materials and the license granted to the SPE Business Partner to use the Promotional Materials will begin as of the date SPE approves the SPE Business Partner's Account and will continue until the earlier of (i) termination by SPE by the giving of notice no less than thirty (30) days prior to the date of such termination or (ii) the expiration of the license period pursuant to the License Agreement. However, SPE may immediately terminate these Terms and the SPE Business Partner's right to use the Promotional Materials if, in SPE's sole discretion, the SPE Business Partner or any of its employees, agents or representatives using the Site on behalf of the SPE Business Partner breach any term of these Terms or the License Agreement.
6. The SPE Business Partner and its employees, agents or representatives using the Site on behalf of the SPE Business Partner will not use the Promotional Materials in any manner which is or may be defamatory, derogatory, unflattering or negative to SPE or any SPE entity, employee, representative, associate, affiliate, parent or subsidiary corporation, or the motion pictures or television programs created, produced, distributed or promoted by or for Sony Pictures Entertainment Inc., Sony Pictures Television, Columbia TriStar Television, Inc., Columbia Pictures Industries, Inc., Screen Gems, Inc., Sony Pictures Classics, Columbia TriStar Home Entertainment, or anyone appearing in such motion pictures or television programs, or the television or motion picture industries as a whole, or otherwise in violation of law.
7. The SPE Business Partner will include appropriate trademark and copyright notices on all web sites and any other approved promotional materials created by the SPE Business Partner when the Promotional Materials are included in any such web site or promotional materials. (e.g., TM & © 2014 Sony Pictures Entertainment Inc. All rights reserved.).
IV. General Provisions
1. The SPE Business Partner agrees to comply with all applicable laws, rules and regulations in connection with its activities under these Terms, including without limitation the applicable regulations of the United States Department of Commerce and the United States Export Administration Act, as amended to assure that the Site Services are not exported in violation of the laws of the United States. SPE makes no representation that the Site Services and their copyrights, trademarks, and licensing arrangements, are appropriate or available for use in locations other than the United States. Those who choose to access the Site from locations outside of the United States do so on their own initiative and at their own risk.
2. SPE (and its parent, affiliated entities and/or licensors) will continue to hold all rights in and to the Site, the Site Services and the Site Content, including, without limitation, the motion pictures and television programs referenced therein.
3. The SPE Business Partner will indemnify SPE, its employees, agents, representatives, associates, affiliates, parent and subsidiary corporations from any cost or damage arising out of any claim related to its use of the Site or the Site Services (including the use of the Site or the Site Services by employees, agents or representative of the SPE Business Partner) or a breach by the SPE Business Partner or its employees, agents or representatives of any term of these Terms.
4. The Site and the Site Services, and all copyrights, trademarks, service marks, trade names and all other intellectual property or property rights therein are proprietary to SPE and are owned by SPE and/or its licensors and content providers, and are protected by applicable domestic and international copyright laws.
5. With the exception of permitted commercial use of the Site Content, including permitted commercial use of motion pictures and television programs and promotional use of the Promotional Materials, under the terms of a valid License Agreement, you shall not capture, reproduce, perform, transfer, sell, license, modify, manipulate, create derivative works from or based upon, republish, upload, edit, post, transmit, publicly display, frame, link, distribute, or exploit in whole or in part the Site and the Site Services or otherwise use the Site or the Site Services on any other web site, other networked computer environment, or in any medium now known or hereafter developed. Except as provided herein, any other copy or use of any portion of the Site is not authorized, will be a violation of these Terms and will constitute a copyright violation. Any violation of copyright laws may be subject to severe civil and criminal penalties.
6. The SPE Business Partner and its employees, agents or representatives shall not interfere or attempt to interfere with the operation of the Site in any way through any means or device including, but not limited to, spamming, hacking, uploading computer viruses or time bombs), or any other means expressly prohibited by any provision of these Terms or by law, shall not use bots, spiders, offline readers or other automated systems to access or use the Site in a manner that sends more request messages to the Site's servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser, and shall not do anything that is likely to adversely affect or reflect negatively upon or harm the goodwill or reputation of SPE or any of its affiliates, or the Site, or any of the content running or being promoted on the Site (including, without limitation, any movie, television program or other initiative).
7. In consideration for the SPE Business Partner's use of the Services, the SPE Business Partner represents, warrants, covenants and agrees that it uses and will at all times use the Site in its commercial and business capacity and agrees to (i) comply with these Terms, (ii) ensure that the authorized employees, agents or representative provide accurate, complete and true information about themselves as required on the registration form to create an account, and (iii) ensure that the authorized employees, agents or representatives maintain and update, as applicable, their registration information with current and complete information. A SPE Business Partner who violates these Terms, in whole or in part, may, at SPE's sole discretion, have its account suspended or terminated, and may be permanently banned from using any current or future Site Services.
8. The SPE Business Partner is responsible for all activity occurring under its account. The SPE Business Partner agrees that it will (i) immediately notify SPE of any unauthorized use of its Account, and (ii) ensure that it properly exits all Services at the completion of its use session. SPE shall have no liability for any loss or damage arising from the SPE Business Partner's use of an Account, the Site, or any Site Service, or the SPE Business Partner's failure to comply with the foregoing requirements.
9. The Site may frame, link to and/or contain advertisements about non-SPE owned or controlled third party web sites. Third party web sites may also reference, advertise, or link to the Site. SPE does not endorse or sponsor third party web sites and is not responsible for the content of third party web sites. SPE expressly and specifically disclaims any statements or assertions made on third party web sites and disclaims any responsibility and liability for any content, software, functionality, services or advertised products or services found on or related to any such third party web sites.
10. SPE is pleased to hear from its visitors and welcomes your comments regarding SPE products and services, including the Site. Unfortunately, however, SPE's long-standing company policy does not allow it to accept or consider creative ideas (including stories, character ideas, screenplays, and original artwork, etc.), suggestions, or materials other than those it has specifically requested (see below). While we value any feedback, we request that the SPE Business Partner, its employees, agents or representatives be specific in their comments regarding our services and products, and that they do not submit any creative ideas, suggestions, or materials. It is the intent of these Terms to avoid the possibility of future misunderstandings when projects developed by SPE or its affiliates might seem to others to be similar to their own creative work. If, at our request, you submit certain specific submissions or, despite our request that you not send us any other creative ideas, suggestions or materials, you do so (collectively, the "Submissions"), the Submissions shall be deemed, and shall remain, the exclusive property of SPE. None of the Submissions shall be subject to any obligation of confidence on the part of SPE, and SPE shall not be liable for any use or disclosure of any Submissions. Without limitation of the foregoing, SPE shall exclusively own all now known or hereafter existing rights to the Submissions of every kind and nature, in perpetuity, throughout the universe, and SPE shall be entitled to use, reproduce, modify, adapt, publish, translate, license, create derivative works from and distribute such materials or incorporate such Submissions into any form, medium, or technology now known or later developed throughout the universe, for any purpose whatsoever, commercial or otherwise, without compensation to those who provide the Submissions. In addition, you warrant that the Submissions do not violate any person's so-called "moral rights" or other similar or analogous rights under any applicable laws in any country or region of the world. Applicable law may restrict or limit the foregoing provisions of this paragraph. If so, without limitation of the foregoing, you agree that, in no event, shall SPE's total liability exceed $5,000.00.
11. The SPE Business Partner agrees to indemnify, defend and hold harmless SPE for any and all claims, damages, losses, and causes of action arising as a result of the SPE Business Partner's, its employees', agents' or representatives' failure to comply with these Terms or their negligence or willful misconduct when using the Site or any of the Site Services.
12. The SPE Business Partner is entirely responsible and liable for all activities conducted by the SPE Business Partner, its employees, agents and representatives in connection with any portion of the Site and Site Services. Listed below are some, though not all, violations that may result in SPE terminating or suspending the SPE Business Partner's Account and/or access to Site or Site Services. The SPE Business Partner agrees not to do, and to oblige its employees, agents and representatives not to do, any of the following actions while using any Site and Site Services:
a. Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, any regulations having the force of law while using or accessing any Site or Site Services;
b. Invade the privacy or violate any personal or proprietary right of any person or entity; or
c. Infringe the intellectual property rights or similar rights, including but not limited to copyrights and trademarks, of any person or entity.
13. DISCLAIMER. THE SITE AND SITE SERVICES ARE PROVIDED "AS IS" "WITH ALL FAULTS" AND "AS AVAILABLE" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SPE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. SPE DOES NOT WARRANT THAT THE AVAILABILITY OF, OR THE FUNCTIONS CONTAINED IN, THE SITE AND SITE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE AND SITE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE, SITE SERVICES OR SERVER DO NOT VIOLATE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON. SPE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE AND SITE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT SPE) ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITE AND SITE SERVICES AS WELL AS THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION IF THERE ARE ANY DEFECTS. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
14. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL SPE BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE SITE SERVICES, EVEN IF SPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WHILE SPE TAKES PRECAUTIONS AGAINST SECURITY BREACHES, NO WEB SITE OR INTERNET TRANSMISSION IS COMPLETELY SECURE, AND AS SUCH, SPE SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM UNAUTHORIZED ACCESS, HACKING, DATA LOSS, OR OTHER BREACHES THAT MAY OCCUR. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL SPE'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU TO SPE, IF ANY, FOR ACCESSING THE SITE.
15. These terms shall be construed and enforced in accordance with the laws of the State of California ("Applicable Law") without regard to the choice of law principles thereof. You agree that any and all disputes or controversies of any nature between you and us arising at any time in connection with these Terms or the use of the Site or Site Services, including, without limitation, the issue of arbitrability of any matter so arising between the parties, shall be determined by binding arbitration in accordance with the Commercial Arbitration Rules of the Judicial Arbitration and Mediation Services ("JAMS") before a single neutral arbitrator ("Arbitrator"). The Arbitrator shall be an attorney or retired judge with at least ten (10) years experience in the entertainment industry and shall be mutually agreed upon by the parties. If the parties are unable to agree on an Arbitrator, the Arbitrator shall be appointed by JAMS. The fees of the Arbitrator shall be borne equally by the parties, provided that the Arbitrator may require that such fees be borne in such other manner as the Arbitrator determines is required in order for this arbitration clause to be enforceable under applicable law. The parties shall be entitled to conduct discovery in accordance with Section 1283.05 of the California Code of Civil Procedure, provided that (a) the Arbitrator must authorize such discovery in advance based on findings that the material sought is relevant to the issues in dispute and that the nature and scope of such discovery is reasonable under the circumstances, and (b) discovery shall be limited to depositions and production of documents unless the Arbitrator finds that another method of discovery (e.g., interrogatories) is the most reasonable and cost efficient method of obtaining the information sought. There shall be a record of the proceedings at the arbitration hearing and the Arbitrator shall issue a Statement of Decision setting forth the factual and legal basis for the Arbitrator's decision. If neither party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the Arbitrator's decision shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the California Superior Court, which may be made ex parte, for confirmation and enforcement of the award. If either party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the award of the Arbitrator shall be appealed to three (3) neutral arbitrators (the "Appellate Arbitrators"), each of whom shall have the same qualifications and be selected through the same procedure as the Arbitrator. The appealing party shall file its appellate brief within thirty (30) days after its written notice requesting the appeal and the other party shall file its brief within thirty (30) days thereafter. The Appellate Arbitrators shall thereupon review the decision of the Arbitrator applying the same standards of review and all of the same presumptions) as if the Appellate Arbitrators were a California Court of Appeals reviewing a judgment of the California Superior Court, except that the Appellate Arbitrators shall in all cases issue a final award and shall not remand the matter to the Arbitrator. The decision of the Appellate Arbitrators shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the California Superior Court, which may be made ex parte, for confirmation and enforcement of the award. The party appealing the decision of the Arbitrator shall pay all costs and expenses of the appeal, including the fees of the Appellate Arbitrators and the reasonable outside attorneys' fees of the opposing party, unless the decision of the Arbitrator is reversed, in which event the expenses of the appeal shall be borne as determined by the Appellate Arbitrators. The Arbitrator shall have the power to enter temporary restraining orders, preliminary and permanent injunctions. Prior to the appointment of the Arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief in a court of competent jurisdiction in Los Angeles County, California without thereby waiving its right to arbitration of the dispute or controversy under this section. All arbitration proceedings (including proceedings before the Appellate Arbitrators) shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The provisions of this paragraph shall supersede any inconsistent provisions of any prior agreement between the parties. Nothing in this paragraph shall prevent either party from seeking interlocutory and/or injunctive relief from a court of competent jurisdiction pursuant to other provisions of these Terms.
Notwithstanding anything to the contrary herein and to the maximum extent permitted by Applicable Laws, the SPE Business Partner hereby irrevocably waives any right or remedy to seek and/or obtain injunctive or other equitable relief or any order with respect to, and/or to enjoin or restrain or otherwise impair in any manner, the production, distribution, exhibition or other exploitation of any SPE or any SPE affiliate-related motion picture, television program, production or project, or the use, publication or dissemination of any advertising or promotion in connection with such motion picture, television program, production or project. This provision shall remain in full force and effect notwithstanding any termination of your use of the Site or the Site Services.
UNLESS OTHERWISE UNENFORCEABLE UNDER APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING OUT OF OR RELATING TO THESE TERMS WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.
16. Headings herein are for convenience of reference only and shall in no way affect interpretation of these Terms.
17. If any provision of these Terms shall be held unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
Last updated March 10, 2014