This Terms of Service (“Terms”) is between Fiction Riot, LLC (“Fiction Riot”) and you, an individual user (“you”), and governs your use of Fiction Riot’s website at www.fictionriot.com (“Website”). BY ACCESSING THE WEBSITE OR SUBMITTING AN APPLICATION (AS DEFINED BELOW), YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MAY NOT USE ANY PORTION OF THE WEBSITE.
AS FURTHER DESCRIBED BELOW IN SECTION 10, AND WITHOUT LIMITING ANY TERMS IN THAT SECTION, DISPUTES BETWEEN YOU AND FICTION RIOT WILL BE RESOLVED BY BINDING INDIVIDUAL ARBITRATION, AND BY ACCEPTING THESE TERMS ARE SET FORTH ABOVE, YOU AND FICTION EACH WAIVE YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
1. GENERAL TERMS AND CONDITIONS
1.1 Website Overview. The Website provides Users with general information about our subscription-based platform for short-form videos (“Ficto”) and enables you to Submit (as defined in Section 5.1) an application for your content to be featured on Ficto (“Application”). As used in these Terms, “User” means any user of the Website.
1.2 Eligibility. THE WEBSITE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE WEBSITE BY Fiction Riot. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE WEBSITE AT ANY TIME OR IN ANY MANNER. Furthermore, by using the Website, you affirm that either you are at least 18 years of age or have been authorized to use the Website by your parent or legal guardian who is at least 18 years of age and entered into these Terms on your behalf. If you are using the Website on behalf of an entity or organization, then you represent and warrant that you have the authority to bind that entity or organization to these Terms and you agree to be bound by these Terms on behalf of that entity or organization.
1.3 Changes. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Website. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 1.3, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
1.4 Consideration. Fiction Riot currently provides you with access to the Website for free. In return for enjoying this free access, you acknowledge and agree that Fiction Riot may generate revenues (including, by way of example and not limitation, through the sale of advertising and sponsorships), increase goodwill or otherwise increase the value of Fiction Riot from your use of the Website, and you will have no right to share in any such revenues, goodwill or value whatsoever. Although currently free to users, Fiction Riot in its sole discretion may eventually charge you fees to access certain features on the Website. Fiction Riot will provide advance notice of any changes to any fees before they take effect. Even if we charge you a fee for the use of any portion of the Website, you will have no right to share in the revenues we charge you or other Users or to share in any goodwill or value created.
1.6 Jurisdiction. The Website is controlled and operated by Fiction Riot from its offices in the State of California. Fiction Riot makes no representation that materials on the Website are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Website from locations outside the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Website from jurisdictions where the content or practices of the Website are illegal, unauthorized or penalized is strictly prohibited.
1.7 Mobile Services. The Website may be accessible via a mobile phone, tablet or other wireless device (collectively, “Mobile Services”). Your mobile carrier’s normal messaging, data and other rates and fees will apply to your use of the Mobile Services and you are solely responsible for such rates and fees. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the Website and the related Mobile Services must be in accordance with these Terms.
1.8 Additional Terms. Fiction Riot may require you to agree to additional terms and/or policies that it makes available to you from time-to-time in connection with your use of the Website (“Additional Terms”). Except as expressly stated otherwise in Additional Terms, such Additional Terms are hereby incorporated into and subject to these Terms, and these Terms will control in the event of any conflict or inconsistency with the Additional Terms to the extent of the conflict or inconsistency, unless such Additional Terms expressly supersede a term in these Terms.
2.1 Accounts. While you may browse any public-facing portions of the Website without registering with Fiction Riot, in order to submit an Application, you must register an account with Fiction Riot (“Account”). When you register for an Account, you must provide us with some information about yourself such as your name and email address. You may not select or use a name as an Account username that is: (i) a name of another person with the intent to impersonate that person; or (ii) a name subject to any rights of any person, entity, or organization other than yourself without appropriate authorization.
2.2 Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You agree to notify Fiction Riot immediately at email@example.com if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Fiction Riot will not be liable for any loss or damage (whether direct or indirect) arising from unauthorized use of your credentials prior to you notifying Fiction Riot of such unauthorized use or loss of your credentials. Separate log-in credentials may be required to access External Websites (as defined in Section 6).
2.3 Accuracy of Information. When creating an Account, you will provide true, accurate, current, and complete information as Fiction Riot requests. You will update such information promptly, and as necessary to keep it current and accurate. Fiction Riot reserves the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by Fiction Riot in its sole discretion, and may, with or without prior notice and without liability to you, suspend or terminate your Account if activities occur on your Account that, in Fiction Riot’s sole discretion, would or might constitute a violation of these Terms, cause damage to or impair the Website, infringe or violate any third party rights, damage or bring into disrepute the reputation of Fiction Riot, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Fiction Riot may terminate your Account immediately without notice to you and without any liability to you or any third party.
3. SUBMITTING AN APPLICATION
3.1 Application Instructions. To Submit an Application, go to the application page at https://ficto.app/apply/, provide all required information, and Submit your Application Materials (as defined in 5.1) as instructed during the submission process. Fiction Riot will not distribute the Application Materials unless Fiction Riot communicates to you that your Application has been accepted. Any such distribution will be subject to Additional Terms. Notwithstanding any other provision of these Terms, nothing herein will obligate Fiction Riot to accept any Application.
3.2 Consent to Electronic Communications. When you Submit your Application, you may be required to provide us with additional contact information. By Submitting an Application and providing your contact information, you agree that we may communicate with you electronically to confirm receipt of your Application, to communicate the status of your Application, or to request additional information. Depending on your current mobile carrier plan, you may incur charges for these communications and agree to not hold Fiction Riot liable for any charges incurred. You acknowledge that any terms between you and any third-party provider create no obligation or responsibility on the part of Fiction Riot, and that Fiction Riot is not responsible for any failure of warranty by any such third party. Fiction Riot cannot control certain factors relating to message delivery. We have no liability for transmission delays or message failures.
3.3 Application Criteria. For more information about the content featured on Ficto, please visit, https://ficto.app/. Fiction Riot reserves the right to accept or reject Applications for any reason, including any Applications that it believes may be risky, infringing, or illegal. All Application Materials must be original, non-infringing or violative of any third party rights (including, by way of example and not limitation, the rights of privacy and publicity), exclusively created and owned by you or you otherwise must have all rights necessary to Submit the Application Materials, as further specified in Section 5.4 of these Terms. Application Materials may not contain images of any individuals who have not provided their explicit authorization. By including an image of any individual under the age of majority in their jurisdiction of residence in your Application Materials, you represent that you have received explicit permission from such minor’s parent or legal guardian to include such minor’s image. All Application Materials must be appropriate for viewing by the general public; appropriateness will be determined by Fiction Riot in its sole and absolute discretion. You warrant that the Application Materials do not contain information considered by you or any other third party to be confidential. You agree that Fiction Riot has the right to verify ownership and originality of all entries and that, upon Fiction Riot’s request, you must submit a written copy of any release or permission you have received from a third party granting you the right to use such property or the content, images and likeness in your Application Materials. Failure to provide such proof promptly upon request (and in any event within 72 hours) will result in a rejection of your Application. If Fiction Riot accepts your Application and your ownership, rights and the originality of the Application Materials cannot be verified to the satisfaction of Fiction Riot or is in any other way ineligible, then Fiction Riot may refuse to distribute any content from you on Ficto.
3.4 Acknowledgement. By Submitting an Application, you acknowledge that, because of our position in the entertainment industry, we receive numerous submissions of, among other things, ideas, formats, stories, and suggestions, and that many such submissions, either previously or hereafter received by us, are similar or identical to those developed by or otherwise available to us. Consequently, you recognize that any Application Materials submitted hereunder likewise may be similar or identical to materials we have developed independently or received from another User or other third party. You understand and agree that our use of material containing features or elements similar or identical to those contained in the Submitted Application Materials shall not obligate us to negotiate with you nor entitle you to any compensation if you determine that you have an independent legal right to use such other material not derived from you (either because such features or elements are not new or novel, were not originated by you, or were or may hereafter be independently created and submitted by other persons, including our employees). You acknowledge that no fiduciary or confidential relationship now exists between you and Fiction Riot, and you further acknowledge that no such relationships are established between you and Fiction Riot by reason of you Submitting your Application Materials.
4. GENERAL USE OF THE SERVICE
4.1 License. Subject to your complete and ongoing compliance with these Terms, Fiction Riot grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Website.
4.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (i) reproduce, distribute, publicly display, or publicly perform the Website; (ii) make modifications to the Website; or (iii) interfere with or circumvent any feature of the Website, including any security or access control mechanism. If you are prohibited under applicable law from using the Website, you may not use it.
4.3 Content. Except for any third party content linked to from the Website, the content that Fiction Riot provides to Users on or through the Website, including, without limitation, any sound recordings (and the musical works embodied therein), audiovisual works (and the sound recordings and musical works embodied therein), text, graphics, photos, software and interactive features, are protected by copyright or other intellectual property rights and owned by Fiction Riot or its third party licensors (collectively, the “Fiction Riot Content”). Moreover, Fiction Riot solely owns all design rights, databases and compilation and other intellectual property rights in and to the Website, in each case whether registered or unregistered, and any related goodwill.
4.4 Marks. The Fiction Riot trademarks, service marks, and logos (collectively, the “Fiction Riot Trademarks”) used and displayed on the Website are Fiction Riot’s registered and/or unregistered trademarks or service marks. Any other product and service names located on any part the Website may be trademarks or service marks owned by third parties (collectively with the Fiction Riot Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage Fiction Riot or the applicable third party, Fiction Riot’s or a third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any website without Fiction Riot’s prior express written consent. All goodwill generated from the use of any Fiction Riot Trademark will inure solely to Fiction Riot’s benefit.
4.5 Reservation of Rights. Fiction Riot hereby reserves all rights not expressly granted to you in this Section 4. Accordingly, nothing in these Terms or on the Website will be construed as granting to you, by implication, estoppel or otherwise, any additional license rights in and to the Website or any Fiction Riot Content or Trademarks located or displayed therein.
5. USER CONTENT; LICENSE TO Fiction Riot; FEEDBACK
5.1 Definition. This Section 5 governs any content that Users upload, post or transmit to or through the Website in connection with your Application (collectively, “Submit” and each such upload, post or transmission, a “Submission”) including, without limitation, any pre-recorded audiovisual works, photographs, artwork, literary works, sound recordings, or musical works and any other works subject to protection under the laws of the United States or any other jurisdiction, including, without limitation, patent, trademark, trade secret and copyright laws (collectively, the “Application Materials”). Fiction Riot recommends that you save copies of any Application Materials that you Submit on your personal device(s) or other storage media to ensure that you have permanent access to copies of such Application Materials.
5.2 Ownership. SUBJECT TO ANY THIRD PARTY RIGHTS IN ANY PREEXISTING CONTENT THAT IS A PART OF YOUR APPLICATION MATERIALS, YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR APPLICATION MATERIALS AND SUBMITTING YOUR APPLICATION MATERIALS DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS TO Fiction Riot OR ANY THIRD PARTY.
5.3 License to Fiction Riot. You hereby grant Fiction Riot an unrestricted, assignable, sublicensable, revocable, royalty-free, fully paid-up license throughout the universe to reproduce, store, copy, digitize, compress, encode (including real-time encoding), transcode, test, encrypt, retransmit from External Websites and otherwise process and use (collectively, “Use”) all or any part of all Application Materials you Submit by any means and through any media and formats, whether now known or hereafter developed, for the purposes of reviewing your Application Materials. For the avoidance of doubt, the rights granted in the preceding sentence of this Section include, but are not limited to, the right to reproduce audiovisual works (and any sound recordings and musical works embodied therein) on a royalty-free basis.
5.4 You Must Have Rights to the Application Materials You Submit; Certain of Your Representations and Warranties. You must not Submit any Application Materials if you are not the owner of or are not fully authorized to grant rights in all of the elements of the Application Materials you intend to Submit. You represent and warrant that: (i) you own the Application Materials Submitted by you or otherwise have all rights necessary to grant the license set forth in these Terms; (ii) the Submission and Use of your Application Materials does not violate the privacy rights, publicity rights, copyrights, trademark rights, patent rights, trade secret rights, contract rights, or any other rights of any party, including, but not limited to, the rights of any person visible in any of your Application Materials; (iii) the Submission of your Application Materials will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the Submission of your Application Materials does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person resulting from Submitting your Application Materials, including from Fiction Riot’s exercise of the license set forth in Section 5.3.
5.5 Waiver of Rights to Application Materials. By Submitting Application Materials, you waive any and all rights of privacy, publicity or any other rights of a similar nature in connection with your Application Materials, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any Application Materials you Submit.
5.6 Objectionable Content. You are not permitted to and agree not to Submit any Application Materials that is or could be interpreted to be, as Fiction Riot may determine in its sole discretion, (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, vulgar or in violation of any applicable laws; or (ii) promoting any product, good or service, or bigotry, discrimination, hatred, intolerance, racism or inciting violence ((i) and (ii) collectively, “Objectionable Content”). The Submission of any Objectionable Content may subject you to third party claims and none of the rights granted to you in these Terms may be raised as a defense against any third party claims arising from your Submission of Objectionable Content. You also agree not to use the Website for illegal or unlawful purposes. Fiction Riot reserves the right to remove, disallow, block or delete any Application Materials in its sole discretion. Fiction Riot in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Submits Objectionable Content, including, without limitation, warning the User, suspending or terminating the User’s Account, removing some or all of the User’s Application Materials and/or reporting the User to law enforcement authorities, either directly or indirectly.
5.7 No Liability. For the avoidance of doubt, Fiction Riot will not be liable for any use or misuse of Application Materials by any User.
5.8 Feedback. If you choose to provide Fiction Riot with input or suggestions regarding problems with or proposed modifications or improvements to the Website (“Feedback”), then you hereby grant to Fiction Riot a perpetual, irrevocable, non-exclusive, fully-paid and royalty-free right to use and exploit the Feedback in any manner and for any purpose without any restriction, credit, attribution or fees due to you.
6. EXTERNAL WEBSITES
The Website may contain links to or the ability to share information with third party websites and services (“External Websites”). Fiction Riot does not endorse any External Websites or the content made available on such External Websites. All External Websites and any content thereon is developed and provided by others. You should contact the site administrator or webmaster for those External Websites if you have any concerns regarding such content located on such External Websites. Fiction Riot is not responsible for the content of any External Websites and does not make any representations regarding the content or accuracy of any materials on such External Websites. You should take precautions when downloading files from all websites to protect your computer and mobile devices from viruses and other destructive programs. If you decide to access any External Websites, purchase any content from External Websites or subscribe to services offered by such External Website, then you do so at your own risk. You agree that Fiction Riot will have no liability to you arising from your use, engagement, exposure to or interaction with any External Websites.
7. TERM AND TERMINATION
7.1 Term. The term of these Terms commences as of your first use of the Website and continues until the termination of these Terms by either you or Fiction Riot.
7.2 Termination. You may terminate these Terms by deleting your Account through your Account settings. Fiction Riot reserves the right, in its sole discretion, to restrict, suspend or terminate these Terms and your access to all or any part of the Website at any time without prior notice or liability if you breach any provision of these Terms or violate the rights of any third party copyright owner. Fiction Riot may further terminate these Terms immediately for any other reason with or without notice to you, using the email address associated with your account credentials. Fiction Riot reserves the right to change, suspend or discontinue all or any part of the Website at any time without prior notice or liability.
7.3 Survival. Sections 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 2.2, 2.3, 3.2, 3.3, 3.4, 4.2, 4.3, 4.4, 4.5, 5, 6, 7.3, 8, 9, 10, 11, 12, 13, 14.1 and all defined terms used therein will survive the termination of these Terms indefinitely.
8. INTELLECTUAL PROPERTY POLICY
8.1 . We respect the intellectual property rights of third parties. If you have an intellectual property rights-related complaint about material posted on the Website, you may contact our designated agent to receive notices about such issues at the following address:
Via Email: firstname.lastname@example.org
Via Telephone : (424) 250-2400
Via U.S. Mail: Fiction Riot, LLC
2330 Pontius Ave, Suite 203
Los Angeles, CA 90064
Attn: Legal Department
Any notice alleging that materials hosted by or distributed through the Website infringe intellectual property rights must include substantially the following:
i. an electronic or physical signature of the person authorized to act on behalf of the owner of the right being infringed;
ii. a description of the intellectual property that you claim has been infringed;
iii. a description of the material that you claim is infringing and where it is located on the Website;
iv. your address, telephone number, and email address;
v. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the rights holder, its agent, or the law; and
vi. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the intellectual property owner or authorized to act on the intellectual property owner’s behalf.
8.2 Repeat Infringers. Fiction Riot will promptly terminate the accounts of Users that are determined by Fiction Riot to be repeat infringers. Fiction Riot considers a “repeat infringer” to be any user that has uploaded user content to or through the Website and for whom Fiction Riot has received more than three takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such user content. Fiction Riot has discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon Fiction Riot’s own determination.
9. LIMITATIONS ON LIABILITY AND WARRANTY DISCLAIMER
THE FOLLOWING TERMS IN THIS SECTION 9 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
9.1 NEITHER Fiction Riot NOR ITS CURRENT OR FUTURE AFFILIATES (COLLECTIVELY, THE “Fiction Riot PARTIES”) MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE WEBSITE AND ANY CONTENT AVAILABLE ON THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, COMPLETENESS, APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE Fiction Riot PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTHFULNESS, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE WEBSITE, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAMED ON THE WEBSITE FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE WEBSITE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE WEBSITE.
9.2 THE Fiction Riot PARTIES DO NOT WARRANT THAT THE WEBSITE WILL OPERATE ERROR FREE, OR THAT THE WEBSITE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE WEBSITE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO Fiction Riot PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
9.3 THE WEBSITE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE Fiction Riot PARTIES DISCLAIM ALL WARRANTIES THERETO, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
9.4 IN NO EVENT WILL ANY Fiction Riot PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE WEBSITE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH Fiction Riot PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Fiction Riot’S LIABILITY, AND THE LIABILITY OF ANY OTHER Fiction Riot PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO U.S. $100.
9.5 TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE WEBSITE, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE Fiction Riot PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
10. DISPUTE RESOLUTION
10.1 Generally. In the interest of resolving disputes between you and Fiction Riot in the most expedient and cost effective manner, you and Fiction Riot agree that any dispute arising out of or in any way related to these Terms or your use of the Website will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Website, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Fiction Riot ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION AND THAT THESE TERMS SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
10.2 Exceptions. Despite the provisions of Section 10.1 above, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of law; or (iv) file suit in a court of law to address an intellectual property infringement claim.
10.3 Arbitrator. Any arbitration between you and Fiction Riot will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Fiction Riot. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
10.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail or electronic mail within the applicable statute of limitations period (“Notice”). Fiction Riot’s address for Notice is: Fiction Riot, LLC, 2330 Pontius Ave, Suite 203, Los Angeles, CA 90064. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Fiction Riot may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Fiction Riot must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by Fiction Riot prior to selection of an arbitrator, then Fiction Riot will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by Fiction Riot in settlement of the dispute prior to the arbitrator’s award; or (C) $15,000.
10.5 Fees. If you commence arbitration in accordance with these Terms, then Fiction Riot will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles, California, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Fiction Riot for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
10.6 No Class Actions. YOU AND Fiction Riot AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (OTHER THAN CLAIMS WHICH ARE NOT COVERED BY THIS SECTION 10). Further, unless both you and Fiction Riot agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
10.7 Modifications to this Arbitration Provision. Except as otherwise provided in these Terms, if Fiction Riot makes any future change to this arbitration provision, other than a change to Fiction Riot’s address for Notice, then you may reject the change by sending us written notice within 30 days of the change to Fiction Riot’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Fiction Riot. If you do not send such written notice, then your continued use of the Website following any such change means that you have consented to such change.
10.8 Enforceability. If Section 10.6 above is found to be unenforceable or if the entirety of this Section 10 is found to be unenforceable, then the entirety of this Section 10 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue as described in Section 11 will govern any action arising out of or related to these Terms or your use of the Website.
11. Governing Law; Choice of Forum
The laws of the State of California, excluding its conflicts of law rules, govern these Terms and your use of the Website. Your use of the Website may also be subject to other local, state, national, or international laws; provided, however, that the United Nations Convention on Contracts for the International Sale of Goods will not apply to any provision of these Terms. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in or having jurisdiction over San Diego County, California and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless the Fiction Riot Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (1) your breach of these Terms; (2) your access to, use or misuse of Fiction Riot Content or the Website; or (3) your Application Materials. Fiction Riot will provide notice to you of any such claim, suit or proceeding. Fiction Riot reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if Fiction Riot believes that you are unwilling or incapable of defending Fiction Riot’s interests. In such case, you agree to cooperate with any reasonable requests assisting Fiction Riot’s defense of such matter at your expense.
13. CONSENT TO ELECTRONIC COMMUNICATIONS
14.1 Miscellaneous. These Terms is governed by the internal substantive laws of the State of California without respect to its conflict of laws provisions. You agree that no joint venture, partnership, employment or agency relationship exists between you and Fiction Riot as a result of these Terms or use of the Website. If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect. Failure of Fiction Riot to act on or enforce any provision of these Terms will not be construed as a waiver of that provision or any other provision in these Terms. No waiver will be effective against Fiction Riot unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Fiction Riot and you, these Terms constitutes the entire agreement between you and Fiction Riot with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. These Terms will inure to the benefit of Fiction Riot’s successors and assigns. You may not assign these Terms or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of Fiction Riot. Fiction Riot may assign these Terms, including all its rights hereunder, without restriction.
14.2 Contact Us. If you would like to contact Fiction Riot in connection with your use of the Website, then please refer to the contact information below: by mail at 2330 Pontius Ave, Suite 203, Los Angeles, CA 90064, and by email at email@example.com.