Terms of Service
Updated and Effective: April 15th, 2021
These Terms of Service and this End User License Agreement (“Terms”) is between Fiction Riot, LLC d/b/a Ficto (“Ficto”) and you, an individual user (“You”), and governs your use of the following:
- Ficto’s website (“Website”), accessible on the world wide web at https://www.ficto.tv,
- Ficto’s iOS software application (“iOS”), accessible for download on the App Store at https://apps.apple.com/us/app/ficto/id1461664151,
- Ficto’s Android software application (“Android”) accessible for download on Google Play at https://play.google.com/store/apps/details?id=tv.ficto&hl=en_US&gl=US (Sections B and C collectively, the “Apps”), and
- any other websites, apps, features, functionalities, or services owned or controlled by Ficto (which, together with the Website and the Apps, shall be referred to as the “Service” hereto).
BY INSTALLING ANY APPS OR OTHERWISE ACCESSING OR USING ANY PORTION OF THE SERVICE, 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 SERVICE.
AS FURTHER DESCRIBED BELOW IN SECTION 11.0, AND WITHOUT LIMITING ANY TERMS IN THAT SECTION, DISPUTES BETWEEN YOU AND FICTO WILL BE RESOLVED BY BINDING INDIVIDUAL ARBITRATION, AND BY ACCEPTING THESE TERMS AS SET FORTH ABOVE, YOU AND FICTO EACH WAIVE YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Material Terms. As provided in greater detail in these Terms (and without limiting the express language of these Terms), you acknowledge the following:
- The Service is licensed, not sold to you, and you may use the Service only as set forth in these Terms;
- The use of the Service may be subject to separate third-party terms of service and fees, including, without limitation, your mobile network operator’s terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- You consent to the collection, use, and disclosure of your information in accordance with the Ficto Privacy Policy located at ficto.tv/privacy-policy (“Privacy Policy”);
- The Service is provided “AS IS” without warranties of any kind and Ficto’s liability to you is limited;
- We will resolve disputes arising under these Terms through binding arbitration. By accepting these Terms, as provided in greater detail in Section 11.6 of these Terms, you and Ficto are each waiving the right to a trial by jury or to participate in a class action; and
- If you are using the Apps on an iOS-based device, then you agree to and acknowledge the “Notice Regarding Apple,” below.
1.0 GENERAL TERMS AND CONDITIONS
1.1 Service Overview. The Service provides Users with a platform for streaming video-based episodic content (“Content”). As used in these Terms, “User” means any user of the Service.
1.2 Eligibility. OUR SERVICES ARE INTENDED FOR A GENERAL AUDIENCE AND NOT INTENDED FOR USE BY THOSE YOUNGER THAN THE AGE OF 16. IF YOU ARE UNDER 16 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by using the Service, you affirm that either you are at least 18 years of age or have been authorized to use the Service 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 Service on behalf of an entity or organization, then by using the Service, you represent and warrant that you have the authority to use the Service on behalf of that entity or organization 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 Service. 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. Ficto currently provides you with access to the Service for free. In return for enjoying free access to all or any portions of the Service, you acknowledge and agree that Ficto may generate revenues, increase goodwill or otherwise increase the value of Ficto from your use of the Service, including, but not limited to, through the collection of data and by displaying or performing advertising or participating in sponsorships, and you will have no right to share in any such revenues, goodwill or value. Ficto in its sole discretion may decide in the future to charge fees to access certain features on the Service.
1.5 Privacy Policy. Your access to and use of the Service is also subject to Ficto’s Privacy Policy located at ficto.tv/privacy-policy.
1.6 Jurisdiction. The Service is controlled and operated by Ficto from its offices in the State of California. Ficto makes no representation that materials on the Service 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 Service 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 Service from jurisdictions where the content or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
1.7 Mobile Services. The Service may require accessibility 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 Service and the related Mobile Services must be in accordance with these Terms.
1.9 Additional Terms. Ficto 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 Service or particular features of the Service (“Additional Terms”). Except as expressly stated otherwise in such 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 state that they supersede a term in these Terms.
2.0 ACCOUNTS
2.1 Accounts. While you may browse any public-facing portions of the Service without registering with Ficto, in order to in order to enjoy the full benefits of the Service, you may be requested to register an account with Ficto (“Account”). When you register for an Account, you may be required to provide us with some information about yourself such as your name and email address. You may also choose to provide us with a profile photo. 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. If you choose to create an Account, 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 Ficto immediately at policy@ficto.tv 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. Ficto will not be liable for any loss or damage (whether direct or indirect) arising from unauthorized use of your credentials. Separate log-in credentials may be required to access External Websites (as defined in Section 7.0).
2.3 Accuracy of Information. When creating an Account, you agree to provide true, accurate, current, and complete information as Ficto requests. You will update such information promptly, and as necessary to keep it current and accurate. Ficto reserves the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by Ficto 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 Ficto’s sole discretion, would or might constitute a violation of these Terms, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of Ficto, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Ficto may terminate your Account immediately without notice to you and without any liability to you or any third party.
3.0 GENERAL USE OF THE SERVICE
3.1 Proprietary Information. You acknowledge and agree that:
(i) the Service, and, without limitation, any Content, modifications, enhancements, and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, “Proprietary Materials”), are owned by Ficto and its licensors whose content is accessible from or through the Service, as applicable;
(ii) the Proprietary Materials may contain valuable copyrighted and proprietary material of Ficto and its licensors, or the third-party owners thereof;
(iii) the Proprietary Materials and the Service are licensed, rather than sold, to you pursuant to these Terms; and
(iv) you have no rights in the Proprietary Materials, other than the rights and licenses specifically granted to you pursuant to these Terms.
3.2 Trademarks. You acknowledge that Ficto has acquired, and is the owner of, the Ficto trademarks, service marks, design marks, or other indicia of origin (“Marks”) displayed on the Service. You will not, at any time or for any reason, challenge the validity of, or Ficto’s ownership of, the Marks, and you waive any rights you may have at any time to do so. All goodwill generated from the use of the foregoing Marks by you will inure exclusively to the benefit of Ficto. All trademarks, service marks, design marks, or other indicia of origin shown on the Service but not owned by Ficto are the property of their respective owners (“Third-Party Marks”). Except as otherwise permitted by law or these Terms, you may not use the Marks or the Third-Party Marks.
3.3 License. Subject to your complete and ongoing compliance with these Terms, Ficto hereby grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free license to access and use the Service, solely for your non-commercial use and strictly in the manner set forth in these Terms. Unless otherwise specified in writing, the Service is solely for your personal use and not for resale. Ficto reserves the right at all times and without notice to: (i) restrict and/or terminate your access to the Service (or any portion thereof); and (ii) modify or discontinue providing the Service (or any portion, features or functionalities thereof). You acknowledge and agree that, except as required by law, Ficto will not be liable to you or to any third party for any modification, suspension or discontinuance of all or any portion of the Service. If you are dissatisfied with any changes to the Service, then your sole option is to discontinue or terminate your use of the Service as described herein.
3.4 Restrictions. Ficto hereby reserves all rights not expressly granted to you in this Section 3.0. Accordingly, nothing in these Terms or on the Service will be construed as granting to you, by implication, estoppel or otherwise, any additional license rights in and to the Service or any Proprietary Materials, Marks or Third-Party Marks. You may not: (i) sell, transfer, assign, license, sublicense, or modify the Proprietary Materials, Marks, or Third-Party Marks; (ii) reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Proprietary Materials, Marks, or Third-Party Marks in any way for any public or commercial purpose without Ficto’s prior written consent, which may be withheld for any or no reason; or (iii) record Content broadcast by Ficto. The use or posting (of any of the Proprietary Materials on any other website or application, in any public venue, or in a networked computer environment, for any purpose is expressly prohibited.
4.0 YOUR RESPONSIBILITIES
You may not:
4.1 use, copy, install, transfer, or distribute the Service, except as specifically permitted by these Terms;
4.2 modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Service or its content;
4.3 remove or alter any copyright, trademark, or other proprietary rights notices contained in or on the Service or in or on any content (including Content) or other material obtained through the Service or the use of the Service;
4.4 create Accounts by automated means or under false or fraudulent pretenses;
4.5 use any robot, spider, screen or database scraper, site search or retrieval application, or other automated device, process, or means to access, retrieve, or index any portion of the Service or any Content available through the Service;
4.6 use any automated means to engage with the Service in an attempt to artificially increase your consumption of Content on the Service;
4.7 probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures;
4.8 reformat, mirror, or frame any portion of the web pages or web services that are part of the Service;
4.9 express or imply that any statements you make are endorsed by us, without our prior written consent in each instance;
4.10 transmit
(i) any material, non-public information about individuals or companies without the authorization to do so;
(ii) any trade secret of any third party; and/or
(iii) any advertisements, chain letters, investment opportunities, pyramid schemes, solicitations, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding;
4.11 transmit any software or other materials that contain any virus, worm, time bomb, Trojan horse, or other harmful or disruptive component; use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents;
4.12 undertake, cause, permit, or authorize the translation, reverse engineering, disassembling or hacking of any aspect of the Service, including content, or attempt to do any of the foregoing, except and solely to the extent permitted by these Terms, the Service’s authorized features, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by Ficto;
4.13 access, tamper with, or use non-public areas of the Service, Ficto’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Ficto’s providers;
4.14 harass, abuse, harm, or advocate or incite harassment, abuse, or harm of another person or group, including Ficto employees and other Users, through Objectionable Content (as defined in Section 5.6 or otherwise;
4.15 create a new Account with Ficto, without Ficto’s express written consent, if Ficto previously disabled an Account of yours;
4.16 gain unauthorized access to the Service, to other Users’ Accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
4.17 use the Service for any commercial purpose, except with Ficto’s prior express written consent;
4.18 violate any applicable federal, state, or local laws, applicable regulations or these Terms;
4.19 use the Service for any illegal, inappropriate, and/or unauthorized conduct, or using the Service in violation of Ficto’s or any third party’s intellectual property or other proprietary or legal rights;
4.20 use or access the Service to build a competing service; or
4.21 assist, encourage, or permit any person in engaging in any of the activities described above.
5.0 USER CONTENT; LICENSE TO FICTO; FEEDBACK
5.1 Definition. This Section 5 governs any content that Users may upload, post or transmit to or through the Service (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 “User Materials”). Ficto recommends that you save copies of any User Materials that you Submit on your personal device(s) or other storage media to ensure that you have permanent access to copies of such User Materials.
5.2 Ownership. SUBJECT TO ANY THIRD-PARTY RIGHTS IN ANY PREEXISTING CONTENT THAT IS A PART OF YOUR USER MATERIALS, YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER MATERIALS AND SUBMITTING YOUR USER MATERIALS DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS TO FICTO OR ANY THIRD PARTY.
5.3 License to Ficto. You hereby grant Ficto 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 User Materials you Submit by any means and through any media and formats, whether now known or hereafter developed, for the purposes of reviewing your User 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 User Materials You Submit; Certain of Your Representations and Warranties. You must not Submit any User Materials if you are not the owner of or are not fully authorized to grant rights in all of the elements of the User Materials you intend to Submit. You represent and warrant that: (i) you own the User 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 User 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 User Materials; (iii) the Submission of your User 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 User 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 User Materials, including from Ficto’s exercise of the license set forth in Section 5.3.
5.5 Waiver of Rights to User Materials. By Submitting User Materials, you waive any and all rights of privacy, publicity or any other rights of a similar nature in connection with your User 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 User Materials you Submit.
5.6 Objectionable Content. You are not permitted to and agree not to Submit any User Materials that is or could be interpreted to be, as Ficto may determine in its sole discretion, as
(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 Service for illegal or unlawful purposes. Ficto reserves the right to remove, disallow, block or delete any User Materials in its sole discretion. Ficto 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 User Materials and/or reporting the User to law enforcement authorities, either directly or indirectly.
5.7 No Liability. For the avoidance of doubt, Ficto will not be liable for any use or misuse of User Materials by any User.
5.8 Feedback. If you choose to provide Ficto with input or suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant to Ficto 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.
6.0 PROMOTIONS
6.1 Sweepstakes, Contests, Raffles, Surveys and similar Promotions. Periodically, Ficto and/or its partners may organize sweepstakes, contests, raffles, surveys, games, and similar promotions on the Services (each a "Promotion"). In addition to these Terms, Promotions will be subject to particular terms which we shall communicate to you at the time of these Promotions (“Promotional Terms”). By participating in any Promotion, you will become subject to those Promotional Terms. All Promotional Terms are incorporated into, may vary from, and shall supersede these Terms. We urge you to read the Promotional Terms. Our Privacy Policy, in addition to these Terms and any Promotional Terms, governs any information you submit in connection with such Promotions.
7.0 EXTERNAL WEBSITES
The Service may contain links to or the ability to share information with third party websites and services (“External Websites”). Ficto 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. Ficto 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 Services 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 Service, then you do so at your own risk. You agree that Ficto will have no liability to you arising from your use, engagement, exposure to or interaction with any External Websites.
8.0 TERM AND TERMINATION
8.1 Term. The term of these Terms commences as of your first use of the Service and continues until the termination of these Terms by either you or Ficto.
8.2 Termination. You may terminate these Terms by deleting your Account through your Account settings. Ficto reserves the right, in its sole discretion, to restrict, suspend or terminate these Terms and your access to all or any part of the Service 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. Ficto 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. Ficto reserves the right to change, suspend or discontinue all or any part of the Service at any time without prior notice or liability.
8.3 Survival. All sections that by their nature and definition require application beyond the Terms shall so apply.
9.0 INTELLECTUAL PROPERTY POLICY
9.1 Contact. We respect the intellectual property rights of third parties. If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our designated agent to receive notices about such issues at the following address:
Email: policy@ficto.tv
Telephone: +1 (424) 250-2400
Via Mail: Ficto
Attn: Legal Department
1049 Havenhurst Dr, Ste 236
West Hollywood, CA 90046 USA
Any notice alleging that materials hosted by or distributed through the Service 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 Service;
(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.
9.2 Repeat Infringers. Ficto will promptly terminate the accounts of Users that are determined by Ficto to be repeat infringers. Ficto considers a “repeat infringer” to be any user that has uploaded user content to or through the Service and for whom Ficto has received more than three takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such user content. Ficto has discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon Ficto’s own determination.
10.0 LIMITATIONS ON LIABILITY; WARRANTY DISCLAIMER
THE FOLLOWING TERMS IN THIS SECTION 10.0 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
10.1 NEITHER FICTO NOR ITS CURRENT OR FUTURE AFFILIATES (COLLECTIVELY, THE “FICTO PARTIES”) MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, COMPLETENESS, APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE FICTO PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTHFULNESS, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAMED ON THE SERVICE FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOUR USE OF THE SERVICE AND YOUR RELIANCE UPON ANY OF THE PROPRIETARY MATERIALS, THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
10.2 THE FICTO PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO FICTO PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
10.3 THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE FICTO 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.
10.4 IN NO EVENT WILL ANY FICTO 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 SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH FICTO PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FICTO’S LIABILITY, AND THE LIABILITY OF ANY OTHER FICTO PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO U.S. $100.
10.5 TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICE, 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 FICTO 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.
11.0 DISPUTE RESOLUTION
11.1 Generally. In the interest of resolving disputes between you and Ficto in the most expedient and cost-effective manner, you and Ficto agree that any dispute arising out of or in any way related to these Terms or your use of the Service 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 Service, 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 FICTO 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.
11.2 Exceptions. Despite the provisions of Section 10.0 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.
11.3 Arbitrator. Any arbitration between you and Ficto will be governed by the Streamlined Arbitration Rules and Procedures of JAMS (“JAMS Rules”), as modified by these Terms, excluding any rules or procedures governing or permitting class or representative actions. and will be administered by JAMS. JAMS may be contacted at www.jamsadr.com. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
11.4 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”). Ficto’s mailing address for Notice is:
Ficto
Attn: Legal Department
1049 Havenhurst Dr, Ste 236
West Hollywood, CA 90046 USA
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 Ficto may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Ficto 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 Ficto prior to selection of an arbitrator, then Ficto will pay you the highest of the following:
the amount awarded by the arbitrator, if any;
the last written settlement amount offered by Ficto in settlement of the dispute prior to the arbitrator’s award; or
fifteen thousand dollars ($15,000).
11.5 Fees. If you commence arbitration in accordance with these Terms, then Ficto 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 JAMS 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 JAMS 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 JAMS Rules. In that case, you agree to reimburse Ficto for all monies previously disbursed by it that are otherwise your obligation to pay under the JAMS 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.
11.6 No Class Actions. YOU AND FICTO 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 11.0). Further, unless both you and Ficto 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.
11.7 Modifications to this Arbitration Provision. Except as otherwise provided in these Terms, if Ficto makes any future change to this arbitration provision, other than a change to Ficto’s address for Notice, then you may reject the change by sending us written notice within 30 days of the change to Ficto’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 Ficto. If you do not send such written notice, then your continued use of the Service following any such change means that you have consented to such change.
11.8 Enforceability. If Section 10.6 above is found to be unenforceable or if the entirety of this Section 10.0 is found to be unenforceable, then the entirety of this Section 11.0 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue as described in Section 12.0 will govern any action arising out of or related to these Terms or your use of the Service.
12.0 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 Service. Your use of the Service 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 Los Angeles County, California and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
13.0 INDEMNITY
To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless the Ficto Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from:
your breach of these Terms;
your access to, use or misuse of Proprietary Materials or the Service; or
your User Materials.
Ficto will provide notice to you of any such claim, suit or proceeding. Ficto reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if Ficto believes that you are unwilling or incapable of defending Ficto’s interests. In such case, you agree to cooperate with any reasonable requests assisting Ficto’s defense of such matter at your expense.
14.0 CONSENT TO ELECTRONIC COMMUNICATIONS
By using the Service, you consent to receiving certain electronic communications from Ficto as further described in the Privacy Policy. Please read the Privacy Policy to learn more about your choices regarding Ficto’s electronic communications practices. You agree that any notices, agreements, disclosures or other communications that Ficto sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
15.0 GENERAL
15.1 Miscellaneous. You agree that no joint venture, partnership, employment or agency relationship exists between you and Ficto as a result of these Terms or use of the Service. 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 Ficto 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 Ficto 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 Ficto and you, these Terms constitute the entire agreement between you and Ficto 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. If Ficto provides a translation of the English language version of these Terms, then the translation is provided solely for convenience, and the English version will prevail. These Terms will inure to the benefit of Ficto’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 Ficto. Ficto may assign these Terms, including all its rights hereunder, without restriction.
15.2 Notice Regarding Apple. You acknowledge that these Terms is between you and Ficto only, not with Apple, and Apple is not responsible for the Apps or the content thereof. The license granted to you to use an App obtained through the Apple App store and governed by these Terms is limited to a non-transferable license to use it on Apple-branded products that you own or control, and as permitted by the "Usage Rules" set forth in the Apple Media Services Terms and Conditions. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apps. In the event of any failure of any App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant Apps to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Apps. As between Ficto 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 Ficto. Apple is not responsible for addressing any claims by you or any third party relating to the Apps or your possession and/or use of the Apps, including, but not limited to:
product liability claims;
any claim that any App fails to conform to any applicable legal or regulatory requirement; and
claims arising under consumer protection or similar legislation.