Effective Date: July 28, 2014
Last Updated Date: July 28, 2014
WELCOME TO SCREAMBOX!
BY ACCESSING OR USING THIS WEBSITE, THE SOFTWARE, THE SERVICES OR APPLICATION, CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR MERELY BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH US (AND AT LEAST EIGHTEEN (18) YEARS OLD), AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE CUSTOMER, AND TO BIND THAT COMPANY TO THESE TERMS. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE CUSTOMER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES. YOUR SCREAMBOX SUBSCRIPTION WILL AUTO-RENEW UNLESS YOU CANCEL YOUR MEMBERSHIP. PLEASE SEE SECTION 1 FOR DETAILS.
THE CONTENT AVAILABLE THROUGH OUR SERVICES MAY CONTAIN MATURE SUBJECT MATTER, INCLUDING “R”-RATED MATERIAL, VIOLENCE AND OTHER CONTENT YOU MAY CONSIDER OBSCENE. YOU MUST BE AT LEAST EIGHTEEN (18) TO USE OUR SERVICE, BUT EVEN IF YOU ARE OLD ENOUGH TO USE OUR SERVICES, NOT ALL OF THE CONTENT MAY BE APPROPRIATE FOR YOU. YOU VIEW ALL CONTENT ON OUR SERVICES AT YOUR OWN RISK.
1.1 Registering Your Account. In order to access certain features of the Screambox Properties you may be required to become a Member. For purposes of the Terms, a “Member” is a User who has registered an account on the Website (“Account”). You may also register by linking a valid account on an approved social networking service (“SNS” and each such account, a “Third-Party Account”) to your Account or the Services, you will allow Screambox to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account.
1.2 Membership. Screambox membership, which may start with a free trial, will continue month-to-month unless and until you cancel your membership or we terminate it. You must have Internet access and provide us with a current, valid, accepted method of payment (as such may be updated from time to time, "Payment Method") to use the Services. Our monthly membership fee is billed monthly in advance to your Payment Method. You must cancel your membership before it renews each month in order to avoid billing of the next month's membership fees to your Payment Method. We reserve the right to modify, terminate or otherwise amend our membership plans on a going forward basis. You may edit your Payment Method information by visiting your Account page on the Site.
1.3 Free Trials. Your Screambox membership may start with a free trial. The free trial period of your membership lasts for the period of time specified during sign-up (or if no time is stated, fourteen (14) days). Free trials may not be combined with any other offers. Free trials are for new and certain former members only. Screambox reserves the right, in its absolute discretion, to determine your free trial eligibility. You will not receive a notice from us that your free trial period has ended or that the paying portion of your membership has begun. CLICK ON YOUR ACCOUNT PAGE ON THE SITE TO FIND CANCELLATION INSTRUCTIONS.
2.1 Recurring Billing. We will begin billing your Payment Method for monthly membership fees at the end of the free trial period of your membership unless you cancel prior to the end of the free trial period. You hereby authorize such charges as a condition of starting your membership. To view the specific details of your membership, including monthly membership price and end date of your free trial period, log into your Account on our Services. We may authorize your Payment Method through various methods, including authorizing it up to approximately one month of service as soon as you register. In some instances, your available balance or credit limit may be reduced to reflect the authorization during your free trial period. We will continue to bill your Payment Method on a monthly basis for your membership fee until you cancel. Your non-termination or continued use of a Service reaffirms that we are authorized to charge your Payment Method for that Service. Upon renewal of your subscription, if Screambox does not receive payment through your Payment Method: (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Screambox may either terminate or suspend your subscription and continue to attempt to charge your Payment Method until payment is received (upon receipt of payment, your Account will be re-activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received). This does not waive our right to seek payment directly from you and may result in a change to your payment billing dates.
2.4 No Refunds. You may cancel your Screambox membership at any time. However, PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. Following any cancellation, however, you will continue to have access to the service through the end of your current billing period.
3. Use of the Services and Screambox Properties. The Application, the Software, the Website, the Services, and the information and content available on the Website and in the Application and the Services, including for download, (collectively, the “Screambox Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Screambox grants you a limited license to reproduce portions of the Screambox Properties for the sole purpose of using the Services for your personal, non-commercial use. During your membership, we grant you a limited, non-exclusive, non-transferable, license to view movies through the Services on a streaming-only basis for that use. Except for the foregoing limited license, no right, title or interest shall be transferred to you. Unless otherwise specified by Screambox in a separate license, your right to use any Screambox Properties is subject to the Terms.
3.1 Screambox Software. Use of any software and associated documentation, other than the Application, that is made available via the Website or the Services (“Software”) is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Website page(s) accompanying the Software. These license terms may be posted with the Software downloads or at the Website page where the Software can be accessed. You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. At no time will Screambox provide you with any tangible copy of our Software. Screambox shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between the Terms and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by the Terms. Subject to your compliance with the Terms, Screambox grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Terms. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
3.2 Application License. Subject to your compliance with the Terms, Screambox grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
3.3 Accessing and Download the Application from iTunes. The following applies to any App Store Sourced Application:
(a) You acknowledge and agree that (i) the Terms are concluded between you and Screambox only, and not Apple, and (ii) Screambox, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Screambox and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Screambox.
(d) You and Screambox acknowledge that, as between Screambox and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Screambox acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Screambox and Apple, Screambox, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(f) You and Screambox acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof. (g) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
3.4 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from which you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that the Terms are between you and Screambox and not with the App Store. Screambox, not the App Store, is solely responsible for the Screambox Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Screambox Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Screambox Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
3.5 Open-Source Software. Certain software code incorporated into or distributed with the Application may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the Sun Public License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in this EULA, the Open Source Software is not licensed under Section 2.1 and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
3.6 Updates. You understand that the Screambox Properties are evolving. As a result, Screambox may require you to accept updates to the Screambox Properties that you have installed on your computer or mobile device. You acknowledge and agree that Screambox may update the Screambox Properties with or without notifying you. You may need to update third-party software from time to time in order to use the Screambox Properties.
3.7 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Screambox Properties or any portion of the Screambox Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Screambox Properties (including images, text, page layout or form) of Screambox; (c) you shall not use any metatags or other “hidden text” using Screambox’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Screambox Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the Screambox Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Screambox Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Screambox Properties. Any future release, update or other addition to the Screambox Properties shall be subject to the Terms. Screambox, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Screambox Properties terminates the licenses granted by Screambox pursuant to the Terms.
3.8 Streaming. Screambox streaming software is developed by, or for, Screambox and is designed to enable streaming of content from Screambox through Screambox ready devices. This software may vary by device and medium, and functionalities may also differ between devices. BY USING OUR SERVICES, YOU ACKNOWLEDGE AND AGREE TO RECEIVE, WITHOUT FURTHER NOTICE OR PROMPTING, UPDATED VERSIONS OF SCREAMBOX AND RELATED THIRD-PARTY SOFTWARE. WE DO NOT TAKE RESPONSIBILITY OR OTHERWISE WARRANT THE PERFORMANCE OF THESE DEVICES, INCLUDING THE CONTINUING COMPATIBILITY OF THE DEVICE WITH OUR SERVICE. By using our service, you agree to look solely to the entity that manufactured and/or sold you the device for any issues related to the device and its compatibility with the Services. THE NUMBER OF DEVICES ON WHICH YOU MAY SIMULTANEOUSLY WATCH IS LIMITED.
3.9 Third-Party Materials. As a part of the Screambox Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Screambox to monitor such materials and that you access these materials at your own risk.
4.1 Access Through a SNS. You represent that you are entitled to grant Screambox access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Screambox to pay any fees or making Screambox subject to any usage limitations imposed by such third-party service providers. By granting Screambox access to any Third-Party Accounts, you understand that Screambox may access, make available and store (if applicable) any Content that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Screambox Properties via your Account. Unless otherwise specified in the Terms, all SNS Content shall be considered to be Your Content (as defined in Section 3.1) for all purposes of the Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Screambox Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Screambox’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Screambox Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Account” section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND SCREAMBOX DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Screambox makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Screambox is not responsible for any SNS Content.
4.2 Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least eighteen (18) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Screambox Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Screambox Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify Screambox immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Screambox has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Screambox has the right to suspend or terminate your Account and refuse any and all current or future use of the Screambox Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Screambox reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Screambox Properties if you have been previously removed by Screambox, or if you have been previously banned from any of the Screambox Properties.
4.3 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Screambox Properties, including but not limited to, a mobile device that is suitable to connect with and use the Screambox Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Screambox Properties.
5. Responsibility for Content.
5.1 Types of Content. You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Screambox Properties (“Content”), including the Screambox Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Screambox, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Screambox Properties (“Your Content”), and other Users of the Screambox Properties, and not Screambox, are similarly responsible for all Content they Make Available through the Screambox Properties (“User Content”).
5.2 No Obligation to Pre-Screen Content. You acknowledge that Screambox has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Screambox reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Screambox pre-screens, refuses or removes any Content, you acknowledge that Screambox will do so for Screambox’s benefit, not yours. Without limiting the foregoing, Screambox shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
5.3 Storage. Unless expressly agreed to by Screambox in writing elsewhere, Screambox has no obligation to store any of Your Content that you Make Available on the Screambox Properties. Screambox has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Screambox Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Screambox retains the right to create reasonable limits on Screambox’s use and storage of the Content, including Your Content, such as limits on file size, storage space, and similar limits described in the web pages accompanying the Services and as otherwise determined by Screambox in its sole discretion.
6.1 Screambox Properties. Except with respect to Your Content and User Content, you agree that Screambox and its suppliers own all rights, title and interest in the Screambox Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the Screambox Properties.
6.2 Trademarks. Screambox and other related graphics, logos, service marks and trade names used on or in connection with the Screambox Properties or in connection with the Services are the trademarks of Screambox and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Screambox Properties are the property of their respective owners.
6.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Screambox Properties.
6.4 Your Content. Screambox does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in the Screambox Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
6.5 License to Your Content. Subject to any applicable account settings that you select, you grant Screambox a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, derive revenue or other remuneration from, and communicate to the public, Your Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right, including moral rights, that may exist in Your Content. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Screambox Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Screambox, are responsible for all of Your Content that you Make Available on or in the Screambox Properties.
6.6 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the Screambox Properties, you hereby expressly permit Screambox to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
6.7 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Screambox.
6.8 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Screambox through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Screambox has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Screambox a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Screambox Properties.
7. User Conduct.
7.1 Hacking. You agree that you will not, under any circumstances:
(a) Interfere with or damage Screambox Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(b) Modify or cause to be modified any files that are a part of the Screambox Properties;
(c) Disrupt, overburden, or aid or assist in the disruption or overburdening of: (i) any computer or server used to offer or support the Screambox Properties; or (ii) the enjoyment of the Screambox Properties by any other person;
(d) Institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon the Screambox Properties, or other attempts to disrupt the Screambox Properties or any other person’s use or enjoyment of the Screambox Properties;
(e) Attempt to gain unauthorized access to the Screambox Properties, accounts registered to others, or to the computers, servers or networks connected to the Screambox Properties by any means other than the User interface provided by Screambox, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Screambox Properties;
(f) Access, tamper with or use non-public areas of the Screambox Properties, Screambox’s computer systems, or the technical delivery systems of Screambox’s providers;
(g) Attempt to probe, scan, or test the vulnerability of any Screambox system or network, or breach any security or authentication measures;
(h) Disrupt or interfere with the security of, or otherwise cause harm to, the Screambox Properties, systems, resources, accounts, passwords, servers or networks connected to or accessible through the Screambox Properties or any affiliated or linked sites; or
(i) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Screambox or any of Screambox’s providers or any other third party (including another User) to protect the Screambox Properties.
7.2 Commercial Activities. You agree that you will not, under any circumstances (except to the extent expressly authorized by the Terms): (a) Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the Screambox Properties (including your Account), or access to or use of the Screambox Properties;
(b) Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
(c) Use the Screambox Properties or any part thereof for any commercial purpose, including, but not limited to communicating or facilitating any commercial advertisement or solicitation;
(d) Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise); or (e) Market any goods or services for any business purposes.
7.3 Unauthorized Use or Access. You agree that you will not, under any circumstances:
(a) Interfere or attempt to interfere with the proper functioning of the Screambox Properties or connect to or use the Screambox Properties in any way not expressly permitted by the Terms;
(b) Systematically retrieve data or other content from our Screambox Properties to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, spiders, or otherwise;
(c) Use, display, mirror or frame the Screambox Properties, or any individual element within the Screambox Properties, Screambox’s name, any Screambox trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Screambox’s express written consent;
(d) Use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through the Screambox Properties or that is in transit from or to the Screambox Properties, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the Screambox Properties;
(e) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the Screambox Properties, whether through the use of a network analyzer, packet sniffer or other device;
(f) Make any automated use of the Screambox Properties, or take any action that imposes or may impose (in Screambox’s sole discretion) an unreasonable or disproportionately large load on the infrastructure for the Screambox Properties;
(g) Bypass any robot exclusion headers or other measures Screambox takes to restrict access to the Screambox Properties, or use any software, technology or device to send content or messages, scrape, spider or crawl the Screambox Properties, or harvest or manipulate data;
(h) Use, facilitate, create, or maintain any unauthorized connection to the Screambox Properties, including, but not limited to: (i) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Screambox Properties; or (ii) any connection using programs, tools or software not expressly approved by Screambox;
(i) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Screambox Properties, or to obtain any information from the Screambox Properties; (j) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Screambox Properties;
(k) Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(l) Solicit or attempt to solicit personal information from other Users of the Screambox Properties;
(m) Use the Screambox Properties to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
(n) Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or in any way use the Screambox Properties to send altered, deceptive or false source-identifying information; or
(o) Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, but not limited to, clear GIFs, 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
7.4 General. In connection with your use of the Screambox Properties, you shall not:
(a) Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
(b) Harm minors in any way;
(c) Impersonate any person or entity, including, but not limited to, Screambox personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity; (d) Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
(e) Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
(f) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
(g) Register for more than one Account or register for an Account on behalf of an individual other than yourself;
(h) Stalk or otherwise harass any other User of our Screambox Properties; or
(i) Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
8. Investigations. Screambox may, but is not obligated to, monitor or review the Screambox Properties and Content at any time. Without limiting the foregoing, Screambox shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Screambox does not generally monitor user activity occurring in connection with the Screambox Properties or Content, if Screambox becomes aware of any possible violations by you of any provision of the Terms, Screambox reserves the right to investigate such violations, and Screambox may, at its sole discretion, immediately terminate your license to use the Screambox Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
9. Interactions with Other Users.
9.1 User Responsibility. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that Screambox reserves the right, but has no obligation, to intercede in such disputes. You agree that Screambox will not be responsible for any liability incurred as the result of such interactions.
9.2 Content Provided by Other Users. The Screambox Properties may contain User Content provided by other Users. Screambox is not responsible for and does not control User Content. Screambox has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
10. Third-Party Services. The Screambox Properties may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (collectively, “Third-Party Websites & Ads”). When you click on a link to a Third-Party Website or Ad, we will not warn you that you have left the Screambox Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of Screambox. Screambox is not responsible for any Third-Party Websites & Ads. Screambox provides these Third-Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Ads, or their products or services. You use all links in Third-Party Websites & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
11. Fees and Terms.
11.1 General Purpose of Terms: Sale of Service, not Software. The purpose of the Terms is for you to secure access to the Services. All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of Screambox’s Software, and, furthermore, any use of Screambox’s Software by you in furtherance of the Terms will be considered merely in support of the purpose of the Terms.
11.2 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. To the extent you submit payment through the Services, we may use a third-party payment provider (“Payment Provider”) to bill you through your Payment Method. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Provider in addition to this Agreement. We are not responsible for error by the Payment Provider. We reserve the right to correct any errors or mistakes that we make even if we have already requested or received payment.
11.3 Taxes. Screambox’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Screambox, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Screambox for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Screambox is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
11.4 Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: 8840 Wilshire Blvd, 2nd floor, Beverly Hills, CA 90046.
12. Indemnification. You agree to indemnify and hold Screambox, its parents, subsidiaries, affiliates, officers, employees, agents, partners, licensors and licensees (collectively, the “Screambox Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Screambox Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Screambox reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Screambox in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Screambox Properties.
13. Disclaimer of Warranties.
13.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SCREAMBOX PROPERTIES IS AT YOUR SOLE RISK, AND THE SCREAMBOX PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. SCREAMBOX PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(a) THE SCREAMBOX PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SCREAMBOX PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SCREAMBOX PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SCREAMBOX PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SCREAMBOX PROPERTIES WILL BE CORRECTED.
(b) ANY CONTENT VIEWED, DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SCREAMBOX PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SCREAMBOX PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. SCREAMBOX MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SCREAMBOX OR THROUGH THE SCREAMBOX PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) From time to time, Screambox may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Screambox’s sole discretion. The provisions of this section apply with full force to such features or tools.
13.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE SCREAMBOX PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE SCREAMBOX PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. SCREAMBOX MAKES NO WARRANTY REGARDING THE QUALITY OF ANY CONTENT, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SCREAMBOX PROPERTIES
13.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SCREAMBOX PROPERTIES. YOU UNDERSTAND THAT SCREAMBOX DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SCREAMBOX PROPERTIES.
14. Limitation of Liability.
14.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL SCREAMBOX PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SCREAMBOX PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT SCREAMBOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SCREAMBOX PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SCREAMBOX PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SCREAMBOX PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SCREAMBOX PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE SCREAMBOX PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
14.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE SCREAMBOX PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY SCREAMBOX AS A RESULT OF YOUR USE OF THE SCREAMBOX PROPERTIES IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT A CLAIM. IF YOU HAVE NOT PAID SCREAMBOX ANY AMOUNTS IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT ANY SUCH CLAIM, SCREAMBOX’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).
14.3 User Content. THE SCREAMBOX PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
14.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SCREAMBOX AND YOU.
14.5 EXCLUSION OF DAMAGES. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
15. Procedure for Making Claims of Copyright Infringement. It is Screambox’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Screambox by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Screambox Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Screambox Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written 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 (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Screambox’s Copyright Agent for notice of claims of copyright infringement is as follows: 8840 Wilshire Blvd, 2nd floor, Beverly Hills, CA 90046, Email: firstname.lastname@example.org Attn: Dan March.
16. Term and Termination.
16.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Screambox Properties, unless terminated earlier in accordance with the Terms.
16.2 Prior Use. Notwithstanding the foregoing, if you used the Screambox Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Screambox Properties (whichever is earlier) and will remain in full force and effect while you use the Screambox Properties, unless earlier terminated in accordance with the Terms.
16.3 Termination of Services by Screambox. Screambox has the right to suspend or terminate any Services provided to you for any reason, including if timely payment cannot be charged to your Payment Method for any reason, if you have materially breached any provision of the Terms, or if Screambox is required to do so by law (e.g., where the provision of the Website, the Application, the Software or the Services is, or becomes, unlawful),. You agree that all terminations for cause shall be made in Screambox’s sole discretion and that Screambox shall not be liable to you or any third party for any termination of your Account. In the event Screambox does not terminate this Agreement for cause, Screambox will refund to you any unused balance in your Account.
16.4 Termination of Services by You. If you want to terminate the Services provided by Screambox, you may do so by accessing the Account section of the Website or Application.. Your notice should be sent, in writing, to Screambox's address set forth below. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS.
16.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Screambox will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
17.1 Violations. If Screambox becomes aware of any possible violations by you of the Terms, Screambox reserves the right to investigate such violations. If, as a result of the investigation, Screambox believes that criminal activity has occurred, Screambox reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Screambox is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Screambox Properties, including Your Content, in Screambox’s possession in connection with your use of the Screambox Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Screambox, its Users or the public, and all enforcement or other government officials, as Screambox in its sole discretion believes to be necessary or appropriate.
17.2 Breach. In the event that Screambox determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Screambox Properties, Screambox reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Screambox) that you have violated the Terms;
(b) Delete any of Your Content provided by you or your agent(s) to the Screambox Properties;
(c) Discontinue your registration(s) with the any of the Screambox Properties, including any Services or any Screambox community;
(d) Discontinue your subscription to any Services;
(e) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(f) Pursue any other action which Screambox deems to be appropriate.
17.3 No Subsequent Registration. If your registration(s) with or ability to access the Screambox Properties, or any other Screambox community is discontinued by Screambox due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Screambox Properties or any Screambox community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Screambox Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Screambox reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
18. International Users. The Screambox Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Screambox intends to announce such Services or Content in your country. The Screambox Properties are controlled and offered by Screambox from its facilities in the United States of America. Screambox makes no representations that the Screambox Properties are appropriate or available for use in other locations. Those who access or use the Screambox Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
19. General Provisions.
19.1 Electronic Communications. The communications between you and Screambox use electronic means, whether you visit the Screambox Properties or send Screambox e-mails, or whether Screambox posts notices on the Screambox Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Screambox in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Screambox provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
19.2 Release. You hereby release the Screambox Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Screambox Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Screambox Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” You represent that you are aware of the meaning of California Civil Code Section 1542 and you intend, by accepting the Terms, to assume the risk of claims that may exist but may not be known or suspected as of yet.
19.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Screambox’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
19.4 Force Majeure. Screambox shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
19.5 Compliance. If you believe that Screambox has not adhered to the Terms, please contact Screambox by emailing us at email@example.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
19.6 Limitations Period. YOU AND SCREAMBOX AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE SCREAMBOX PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
19.7 Dispute Resolution.
(a) Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (U.S. $5,000.00) shall be resolved in a cost effective manner through binding non-appearance-based arbitration. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, Screambox may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from California law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the Screambox Properties.
(b) Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
(c) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(d) You and Screambox must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR SCREAMBOX MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Screambox will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) Screambox also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
(e) The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 12 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States federal law. Notwithstanding the foregoing, either you or Screambox may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Los Angeles County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Los Angeles County, California, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Los Angeles County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(f) With the exception of (d)(i) and (ii) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (d)(i) or (ii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Screambox shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Los Angeles County, California and you hereby waive any forum non conveniens defense. By using the Screambox Properties in any manner, you agree to the above arbitration provision.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
19.8 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
19.9 Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
19.10 Notice. Where Screambox requires that you provide an e-mail address, you are responsible for providing Screambox with your most current e-mail address. In the event that the last e-mail address you provided to Screambox is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Screambox’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Screambox at the following address 8840 Wilshire Blvd, 2nd floor, Beverly Hills, CA 90046. Such notice shall be deemed given when received by Screambox by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
19.11 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
19.12 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
19.13 Export Control. You may not use, export, import, or transfer the Screambox Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Screambox Properties, and any other applicable laws. In particular, but without limitation, the Screambox Properties may not be exported or re-exported (a) into any United States 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’s Denied Person’s List or Entity List. By using the Screambox Properties, 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 list of prohibited or restricted parties. You also will not use the Screambox Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Screambox are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Screambox products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
19.14 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
19.15 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
20. International Provisions. The following provisions shall apply only if you are located in the countries listed below.
20.1 United Kingdom. A third party who is not a party to the Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Terms, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
20.2 Germany. Notwithstanding anything to the contrary in Section 12, Screambox is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).