TERMS OF SERVICE AGREEMENT
Last updated: 08122019
IMPORTANT NOTICE TO USER: PLEASE READ THIS DOCUMENT CAREFULLY. This Terms of Service Agreement (“Terms of Service”) is a legal agreement between you (referred to herein as “you” or “your”) and Tugg, Inc., a Delaware corporation (referred to herein as “Tugg”, “we”, “our”, or “us”) for access to and use of our website available at http://www.tugg.com (the “Website”) and the related software, feeds, and services, including, without limitation, streaming and downloading services, mobile and web services, channels and applications owned, controlled or offered by us (referred to collectively as the “Service”).
BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE AND THE TERMS AND CONDITIONS, IF APPLICABLE TO YOU, OF THE CHANNEL OWNER AGREEMENT, AVAILABLE [HERE], AND THE PROMOTER AGREEMENT, AVAILABLE [HERE], WHICH ARE BOTH HEREBY INCORPORATED BY REFERENCE. IF ANY OF THESE TERMS ARE UNACCEPTABLE TO YOU OR IN THE EVENT THAT ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, DO NOT USE THE SERVICE. YOUR CONTINUED USE OF THE SERVICE NOW, OR FOLLOWING THE POSTING OF ANY CHANGES IN THESE TERMS OF SERVICE, WILL INDICATE ACCEPTANCE AND AGREEMENT BY YOU OF SUCH CHANGES.
YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE AND TO BE BOUND BY ITS TERMS. IF YOU ARE ACTING ON BEHALF OF A COMPANY OR ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY.
1. The Service; Purchases.
- Channel Owners: The Service enables users that enter into the Channel Owner Agreement (“Channel Owners”) to use the Tugg media player application and to upload Films owned or controlled by the Channel Owner and/or to select a group of Films from Tugg’s online library, and make those Films available for rental, download or license of certain rights on such Channel Owner’s website (each, a “Channel”), subject to the restrictions set forth on the Service, including without limitation, in these Terms of Service and the Channel Owner Agreement. The Channel Owner will have the right to participate in all revenue from the exploitation of Films owned or controlled by the Channel Owner and/or the Films selected by Channel Owner from Tugg’s online library, subject to the terms and conditions of these Terms of Service, the Channel Owner Agreement and as otherwise set forth on the Service.
- Users: The Service enables users to rent or purchase Films from Tugg’s online library, subject to the restrictions set forth on the Service, including without limitation, in these Terms of Service, the Purchase Policy (available at http://www.tugg.com/purchasepolicy) and, if applicable, the Non-Theatrical / Semi-Theatrical / Educational Rights License Agreement (available at http://resources.tugg.com/legal/non-theatrical-licensee-agreement/ ), which are hereby incorporated by reference into these Terms of Service.
G. You agree that (i) you will use the Service solely for your own, non-commercial (except as set forth in these Terms of Service, the Film Uploader Payment Policy, Channel Owner Agreement, Promoter Agreement and Non-Theatrical / Semi-Theatrical / Educational Rights License Agreement), personal use in accordance with these Terms of Service and in accordance with any specific rules or usage provisions specified by us on the Service, (ii) all information supplied by you to us will be true, accurate, current and complete, (iii) you may receive electronic communications (e.g., e-mail notices) from us from time to time, and (iv) you will review the latest version of these Terms of Service posted on the Service from time to time to check for amendments that may apply to you (as more fully described in Section 11 below). We retain the right at our sole discretion to deny or suspend access to the Service to anyone, at any time and for any reason, without any liability whatsoever.
H. You acknowledge and agree that your use of the Service, including, without limitation, the storage of any Films, Content, data, files, information and/or other materials on a server owned or under our control or in any way connected to the Service, shall be at your sole risk and responsibility and we shall have no obligation to back-up such data, files, information and/or other materials. We expressly reserve the right to limit storage capacity and to remove and/or delete any data, files, and/or other information stored or used in connection with the Service for any reason including, without limitation, if we deem, in our sole discretion, such data to be in violation of these Terms of Service and/or any rule or policy of ours and/or any local, state, or federal law or regulation.
I. You are solely responsible for any breach of your obligations under these Terms of Service and for the consequences (including, without limitation, any loss or damage which we and/or our licensees, licensors, assigns and/or successors may suffer) of any such breach.
J. We cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings, or other interruptions. We cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or settings.
2. Restrictions on Use of the Service. You represent, warrant, and agree that you will not (as a Film Uploader, Channel Owner, User, and/or in any other capacity):
(i) use the Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms of Service, the Channel Owner Agreement, Promoter Agreement, the Purchase Policy, or Non-Theatrical / Semi-Theatrical / Educational Rights License Agreement and/or any and all applicable local, state and federal laws and regulations and international treaties;
(ii) use the Service for the distribution, housing, processing, propagation, storage, or otherwise handling in any way abusive, defamatory, harassing, discriminatory, libelous, lewd, obscene, pornographic, threatening, or tortious material, or any false or misleading material, or any other material (including, without limitation, links to such material) that we deem, in our sole discretion, to be objectionable whether or not such material is unlawful;
(iii) permit or otherwise enable unauthorized users to access and/or use the Service, Films, or Content;
(iv) use the Service to export software, data, Films or Content in violation of applicable U.S. laws or regulations;
(v) sell, copy, duplicate, rent, lease, loan, distribute, transfer, or sublicense the Service, or otherwise permit any third party to use or have access to the Service for any purpose (except as expressly permitted by us in writing) or decompile, reverse engineer, disassemble, modify, create a derivative work of, display in human readable form, attempt to discover any source code, or otherwise use any software that enables or comprises any part of the Service;
(vi) remove any copyright, trademark, patent or other proprietary notices from the Service;
(vii) distribute, publish, exhibit, or otherwise use the Service in any manner and for any purpose not expressly permitted under these Terms of Service, the Promoter Agreement, Channel Owner Agreement, Purchase Policy or Non-Theatrical / Semi-Theatrical / Educational Rights License Agreement;
(viii) frame or utilize framing techniques to enclose the Service, Films, or Content, or any portion thereof;
(ix) exploit the Service or collect any data incorporated in the Service, including Films or Content, in any automated manner through the use of bots, metaspiders, crawlers or any other automated means;
(x) register as a user of the Service by providing false, inaccurate, or misleading information;
(xi) post hyperlinks to commercial services or websites on the Service, except if and to the extent permitted in the Promoter Agreement or Channel Owner Agreement;
(xii) impersonate any person or entity, including, but not limited to, an employee of ours, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(xiii) collect personal data about other users of the Service for commercial or any other purposes, except to the extent permitted in the Promoter Agreement and Channel Owner Agreement;
(xiv) post irrelevant Content (as defined in Section 6 below), repeatedly post the same or similar Films or Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure, unless otherwise agreed in writing between a Channel Owner and Tugg;
(xv) attempt to gain unauthorized access to our computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service (or the servers and networks which are connected to the Service);
(xvi) make available Content (as defined in Section 6 below) that constitute or contain “commercial tie-ins,” “affiliate marketing,” “link referral code,” “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or unsolicited commercial advertisement, except to the extent such Content is provided to you by us or one of our affiliates for a purpose specifically authorized by us in writing or to the extent permitted in the Channel Owner Agreement;
(xvii) create or attempt to create multiple user accounts;
(xviii) post or submit any Films or Content to the Service that are inaccurate, defamatory or violate or infringe the rights of any third parties, including, without limitation, any intellectual property rights and rights of publicity and/or privacy; and
(xix) engage in conduct that manipulates or misrepresents the integrity of any ratings or reviews of Films that may be organized through the Service.
3. Provision of the Service by Us. We are constantly improving the Service in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Service which we provide may change from time to time without prior notice to you. As part of this continuing innovation, you acknowledge and agree that we may decline to provide you access to the Service or stop (permanently or temporarily) providing the Service (or any features or programs, Films or Content within the Service) to you or to users generally at our sole discretion, without liability or prior notice to you except for any applicable refund policy for Event tickets purchased via the Service or for active rentals of Films purchased via the Service or Channels, to the extent set forth in our Purchase Policy or otherwise on the Website or the applicable Channel. You may stop using the Service at any time. You do not need to specifically inform us when you stop using the Service. You acknowledge and agree that if we disable access to your account, you may be prevented from accessing the Service, your account details, or any files or other Films or Content which is contained in your account. You acknowledge and agree that while we may not currently have set a fixed upper limit on the amount of storage space used for the provision of the Service, or the duration of time that we will store any information on your behalf, such fixed upper limits or temporal limits may be set by us at any time, in our sole discretion. Any new features that augment or enhance the current Service shall be subject to these Terms of Service.
4. Access to the Service; Reservation of Rights.
A. We hereby give you a personal, worldwide, revocable, non-assignable and non-exclusive right to access and use the Service in the manner and for the purposes expressly permitted by these Terms of Service. We also hereby grant you a limited, revocable, and non-exclusive right to create a hyperlink to the Website or subdomains thereof so long as the link does not portray us, our affiliates, or products or services provided by us or our affiliates in a false, misleading, derogatory, or otherwise offensive manner in our sole judgment, does not violate any local, state, or federal law or regulation and such link is in accordance with the terms and conditions of the Promoter Agreement and any guidelines set forth on the Service. You may not assign (or grant a sub-license of) your rights to use the Service, grant a security interest in or over your rights to use the Service, or otherwise transfer any part of your rights to use the Service and any such attempt shall be null and void at the time of such attempt.
B. We reserve all right, title and interest in and to the Service not expressly granted to you under these Terms of Service. There are no implied licenses under these Terms of Service.
5. Your Password and Account Security. You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Service. Accordingly, you agree that you will be solely responsible to us for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify us immediately at firstname.lastname@example.org.
6. Films and Content in the Service.
A. You understand that in addition to all Films, as defined above, all other information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Service are the sole responsibility of the person from which such content originated. All such information, other than Films, is referred to as “Content”.
B. You acknowledge that Films and Content presented to you as part of the Service are protected by intellectual property rights which are owned or controlled by the persons and/or entities that provide those Films or Content to us (or by other persons or companies on their behalf) or us if uploaded by us. Unless you are the owner or authorized licensor of the Content, as applicable, you may not modify, rent, lease, loan, sell, distribute or create derivative works based on the Films or Content (either in whole or in part) unless you have been specifically permitted to do so by the owners of those Films or Content or by us on their behalf, in writing.
C. We reserve the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Films or Content for any reason whatsoever. Tugg shall not have the right to edit the Films, except as set forth in Section 8(G) below.
D. You understand that by using the Service you may be exposed to Films and/or Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Service at your own risk.
E. You understand that you shall not have the right to upload pornography or any film with a rating more restrictive than an “R” rating or any unrated film that if rated would likely receive a rating more restrictive than an “R” rating to the Service, including without limitation, any Channels, without Tugg’s prior written approval.
F. You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Service and for the consequences of your actions (including, without limitation, any loss or damage which we or our licensees, licensors, assigns and/or successors may suffer) by doing so.
G. The Films and Content that you create, transmit or display to us may be publicly available for viewing by other users of the Service and through or on third party services, such as our Events, and web sites, including but not limited to Channels, with whom we share such Films or Content. Film Uploaders, at the time they upload their Films, will be able to select, on an irrevocable basis, the term, territory and media for which they will grant us and our sublicensees rights in the Films, pursuant to Section 8, below. For all other user-generated Content, you should only provide what you are comfortable sharing with others under these Terms of Service. A Channel Owner is not required to submit Films owned or controlled by the Channel Owner to the Tugg online library and may elect to only distribute such Films on the Channel Owner’s Channel.
H. You understand that any reference on the Service to any product, service, hypertext link to a third party, or other information by trade name, trademark, logo or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Tugg.
I. By uploading a Film to the Service as a Film Uploader, you represent and warrant: (a) that you have all rights necessary to enter into these Terms of Service; (b) that there are no liens or encumbrances against the Film adversely affecting the rights granted to Tugg and its licensees hereunder (other than customary liens of any collective bargaining units, financiers, completion guarantors and/or labs); (c) your Film and any advertising or publicity materials supplied by you hereunder shall not contain any material which violates or infringes, nor will Tugg or its licensees’ exploitation of the rights granted hereunder and at the time of upload violate or infringe, the copyright of any person or entity or any other common law or other right including without limitation, any right of privacy or trademark, of any person, firm or corporation; (d) that all musical compositions contained in the Film, all performances of musical compositions contained in Film, and all photographs, clips, likenesses and all other materials contained in the Film have been cleared for use in and in connection with the Film (and all advertising or promotional materials provided by you to Tugg) for the entire term (selected by the Film Uploader on the Website at the time of upload) for the territory (selected by the Film Uploader on the Website at the time of upload) and in the media (selected by the Film Uploader on the Website at the time of upload) and that all required license fees are fully paid; (e) all costs of production of the Film, including, without limitation, all compensation, laboratory costs, license fees and royalties will be paid in full prior to the time of upload except any deferred costs, participations and/or guild residuals, all of which shall be payable by you; (f) there is no action, suit or proceeding relating to the Film pending or threatened, before any court, administrative or governmental body which might affect Tugg’s or its licensees’ rights hereunder; (g) there are no defects in the chain-of-title to the Film and you have obtained the rights to use the name and likeness of all cast in the marketing and advertising of the Film as contained in the advertising or promotional materials provided by you to Tugg; and (h) the Film has been duly and properly registered for copyright in the U.S. or can be so registered.
J. Film Uploaders shall be solely and exclusively responsible for the calculation, accounting and payment of any and all third party participations (whether in the form of percentage contingent compensation, deferments, bonuses or otherwise) and guild-mandated residual and supplemental market payments (if any) that become payable by reason of the exploitation of the their Film(s), including without limitation, music new use, re-use fees or performance royalties, and the applicable Film Uploader does hereby indemnify and hold Tugg and its licensees harmless with respect to any claims by any person or entity in connection with any such payments. Additionally, the applicable Film Uploader represents and warrants that (i) Tugg and its licensees may exploit the music synchronization rights, master use rights and performance rights in all music embodied in such Film Uploader’s Film(s) without charge in conjunction with its exploitation of such Film(s) and (ii) the applicable Film Uploader has obtained all consents, licenses and permissions necessary in connection with the Film Uploader’s Film(s), including music copyrights and performing artists rights necessary for exploitation of the rights granted by the Film Uploader to Tugg and its licensees at the time of upload.
K. If you uploaded a Film as a Film Uploader, you represent, warrant and covenant that: (a) the Film does not and shall not contain any visual depiction that is child pornography [as defined in 18 U.S.C. §2256(8)] or is actual sexually explicit conduct [within the definitions in clauses (i) through (iv) of 18 U.S.C. §2256(2)(A)]; (b) you meet all of the eligibility requirements for the safe harbor certification set forth in 18 U.S.C. §2257A(h)(1) and 28 C.F.R. §75.9(a)(1)-(3); (c) you regularly and in the normal course of business collect and maintain, and with respect to the Film, did collect and maintain, individually identifiable information regarding all performers, including minor performers, employed by you, pursuant to tax, labor, and other laws, labor agreements or otherwise pursuant to industry standards, where such information includes the name, address and date of birth of the performer, in accordance with 28 C.F.R. §75; (d) upon receipt of a written demand from Tugg with respect to one or more performer(s) in the Film, you shall promptly deliver to Tugg copies of the individually identifiable information collected and maintained by you with respect to such performer(s); (e) you (or said Primary Producer) have filed, or shall file, by the deadlines established in 28 C.F.R. §75.9(e), with the Attorney General of the United States of America the certification provided under 18 U.S.C. §2257A(h) and 28 C.F.R. §75.9, and, if requested, shall provide Tugg with a true, correct and complete copy of said certification; and (f) the definitions set forth in 18 U.S.C. §2257, 18 U.S.C. §2257A, 28 C.F.R. §75 and the explanatory notes by the Department of Justice of the United States of America in 73 Fed. Reg. 77432 et seq. (Dec. 18, 2008) apply to the foregoing warranty, representation and covenant.
7. Intellectual Property.
A. You acknowledge and agree that we (or our licensors) own all legal right, title and interest in and to the Service, including any intellectual property rights which subsist in the Service (whether those rights happen to be registered or not, and wherever in the world those rights may exist) including, without limitation, all rights with respect to copyrights, patents, trademarks, service marks, moral rights, trade names, domain names, technology, mask works, know-how, design rights, trade dress, trade secrets, inventions, ideas, processes, formulas, source code and object code, data, and similar rights, including without limitation, the information in any application, registration, or renewal thereof that may be protected under the intellectual property laws, regulations, or rules of any country. Without limiting the foregoing, all data, graphics, icons, images, logos, text, and the compilation of all content therein, and all service marks, trademarks, trade names, and trade dress depicted on the Service are owned by us (or our licensors).
B. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including, without limitation, copyright and trademark notices) which may be affixed to or contained within the Service.
C. You agree that in using the Service, you will not use any trademark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
8. Rights you grant to us.
A. You retain copyright or any other rights you already hold in Films and Content which you submit, post or display on or through, the Service, except for the rights expressly granted to Tugg in these Terms of Service.
B. By submitting Films to the Tugg online library, you (i) grant us and our licensees an irrevocable, exclusive license to distribute and otherwise exploit your Films during the term, throughout the territory and in the media selected by you on the Website at the time of upload, (ii) grant us and our licensees an irrevocable non-exclusive license to advertise, promote and publicize your Films during the term (as selected by you on the Website at the time of upload), throughout the territory (as selected by you on the Website at the time of upload) in all media now known or hereafter devised and (iii) authorize us to transcode, copy and store the Films on computer servers owned and/or operated by us or our sublicensees, or Channel Owners, or on our behalf. The foregoing rights include Tugg and its licensees’ rights to use, perform and exploit the music, lyrics and/or musical performances contained in the Films, solely for exploitation of and as a part of the applicable Film submitted by you and in all advertising and promotional materials provided by you. Any inadvertent overspill beyond the territory (as selected by you on the Website at the time of upload) shall not be deemed a breach of these Terms of Service. A Channel Owner is not required to submit Films owned or controlled by the Channel Owner to the Tugg online library and may elect to only distribute such Films on the Channel Owner’s Channel.
C. By submitting, posting or displaying Content, you give us a worldwide, perpetual, fully-sublicensable, irrevocable, fully-paid up royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute and otherwise exploit any Content which you submit or post on or through the Service in any manner or media whatsoever, now known or hereafter developed, including, without limitation, in the advertising, marketing and publicity and merchandising of the Service.
D. By submitting Content, uploading Films, or becoming a Promoter or Channel Owner, you agree that we may use your feedback, suggestions, or ideas in any way, including in future modifications of the Service, other products or services, advertising or marketing materials. You grant us a perpetual, worldwide, fully transferable, sublicensable, irrevocable, fully-paid up, royalty free license to use the feedback you provide to us in any way.
E. You agree that we are not responsible for protecting and enforcing any intellectual property rights granted by you to us in connection with these Terms of Service and that we have no obligation to do so on your behalf.
F. In connection with Films and/or Content you submit, post or display via the Service, you affirm, represent, and warrant, and can demonstrate to our full satisfaction upon request, that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize us to use such Films and/or Content in the manner contemplated by the Service and these Terms of Service. You further agree that you will not submit Films or Content that are, or contain materials that are, copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including without limitation, privacy and publicity rights, unless you are the owner of such rights or have written permission from their rightful owner to upload or post the Films or Content and to grant us all of the license rights granted herein.
G. You understand that we may make such changes to your Films and/or Content as are necessary to conform and adapt those Films and/or Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit us to take these actions.
H. You represent and warrant to us that you have all the rights, capacity, power and authority necessary to grant the above license.
9. Copyright Agent. The Digital Millennium Copyright Act of 1998 (the “DMCA“) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our copyright agent with the following information: an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Service; your address, telephone number, and e-mail address; 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; 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 are authorized to act on the copyright owner’s behalf. Any notification by a copyright owner or a person authorized to act on such copyright owner’s behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon us actual knowledge of facts or circumstances from which infringing material or acts are evident. Our copyright agent for notice of claims of copyright infringement can be reached as follows:
Name: Pablo Gonzalez
Company: Tugg Inc.
Address: 4210 Spicewood Spring Rd, Austin, TX 78759
We suggest that you consult your legal advisor before filing a notice with our copyright agent. You should note that there can be penalties for false claims under the DMCA.
11. Changes to Terms of Service. We reserve the right to change, amend and/or modify these Terms of Service, in whole or in part, at any time with or without notice. You hereby acknowledge and agree that such changes, amendments and/or modifications will become effective when posted on the Service or as otherwise provided by us. From time to time, we may post on the Service or otherwise notify you of additional or different rules and policies relating to the Service. These rules and policies shall thereafter be part of these Terms of Service. If you use the Service after the posting or other notice of changes in these Terms of Service or changed rules or policies, you are agreeing to follow and be bound by them for such use.
12. NO WARRANTIES. THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THE ACCURACY, RELIABILITY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE, OR THAT THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY DATA, FILES, AND/OR OTHER INFORMATION STORED ON A SERVER OWNED OR UNDER OUR CONTROL OR IN ANY WAY CONNECTED WITH THE SERVICE, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN DISCLAIMERS OR LIMITATIONS OF WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
14. DISCLAIMER OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE, OUR AFFILIATES, LICENSORS, LICENSEES, SUCCESSORS OR ASSIGNS OR ANY OF OUR OR THEIR DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS OR THIRD PARTY LICENSORS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE AND/OR THE SERVICE PROVIDED HEREUNDER OR ANY OTHER INTERACTIONS WITH US, INCLUDING WITHOUT LIMITATION, FROM THE CONTENT, THE FILMS, ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICE, THE CANCELATION OR NONPERFORMANCE OF ANY EVENT (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND/OR CANCELATION), THE INABILITY TO USE TICKETS TO AN EVENT OR THE INABILITY TO ATTEND AN EVENT. MOREOVER, IN NO EVENT SHALL WE OR OUR AFFILIATES, LICENSORS, LICENSEES, SUCCESSORS OR ASSIGNS OR ANY OF OUR OR THEIR DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS OR THIRD PARTY LICENSORS’ TOTAL LIABILITY TO YOU FOR DAMAGES, LOSSES, LIABILITIES, EXPENSES AND/OR CLAIMS EXCEED THE PURCHASE PRICE PAID BY YOU FOR PRODUCTS OR SERVICES THROUGH THE SERVICE RELATED TO YOUR CLAIM FOR DAMAGES DURING THE SIX MONTHS PRIOR TO YOUR NOTICE TO US OF ANY AND ALL CLAIMS BY YOU. THE ABOVE LIMITATIONS OF LIABILITY APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, RECKLESSNESS, PROFESSIONAL NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS OR LEGAL THEORY. SUCH LIMITATIONS OF LIABILITY SHALL APPLY WHETHER OR NOT THE DAMAGES ARISE DIRECTLY OR INDIRECTLY FROM: (i) THE USE OR MISUSE OF, OR RELIANCE UPON, THE SERVICE PROVIDED HEREUNDER; (ii) THE INABILITY TO USE THE SERVICE FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR ANY FAILURE OF PERFORMANCE NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, OR DESTRUCTION; (iii) THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE; (iv) CANCELATION OF AN EVENT OR (v) THE DELETION AND/OR CORRUPTION OF ANY DATA, INFORMATION, DOCUMENTS, FILES AND/OR ANY OTHER MATERIALS STORED ON A SERVER OWNED OR UNDER OUR CONTROL OR IN ANY WAY CONNECTED TO THE SERVICE. SUCH LIMITATIONS ON LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
15. Release and Indemnification. You (as a Film Uploader, Channel Owner, User, Promoter, Ticket Purchaser and/or in any other capacity) agree to release, indemnify and hold harmless Tugg, Tugg’s affiliates, licensees, licensors, successors and assigns and any of Tugg’s and their directors, members, officers, employees, agents and third party licensors, from and against any and all liabilities, losses, damages, claims and expenses, including attorneys’ fees, with respect to (i) your use or misuse of, or reliance upon, the Service, (ii) your violation of these Terms of Service (including, without limitation, breach of your representations and warranties contained herein), any applicable laws or rights of another, and/or (iii) any Films and/or Content you make available through the Service, including without limitation, any Channel. For the avoidance of doubt, this section shall survive the termination of these Terms of Service. We may, in our sole and absolute discretion, control the defense and disposition (including its possible settlement) of any claim for which you are obligated to indemnify us, at your sole cost and expense and you will not settle, compromise or in any other manner dispose of any claim without our prior written consent.
16. California Waiver. If you are a California resident, you waive California Civil Code 1542, which says:
“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.”
17. Term and Termination. These Terms of Service are effective until terminated by us or you as set forth below. We shall have the right to terminate these Terms of Service including, without limitation, your right to access and use the Service, at any time in our sole discretion and without advance notice to you. The licenses granted herein by us shall automatically terminate without advance notice if you fail to comply with any material provision of these Terms of Service. You, as a viewer, Channel Owner, Promoter or general user of our Service, may terminate these Terms of Service at any time by deleting your user account on the Service and discontinuing use of any and all parts of the Service; provided however, that a Film Uploader shall not have the right to terminate these Terms of Service with respect to any uploaded Films. Upon termination of these Terms of Service for any reason, you shall immediately cease using the Service. Notwithstanding anything herein to the contrary, Film Uploaders rights and remedies in the event of a breach or alleged breach of these Terms of Service, the terms of upload or the Film Upload Payment Policy shall be limited to Film Uploader’s right, if any, to recover damages in an action at law, subject to Sections 15 and 16 above, and in no event shall Film Uploader be entitled by reason of any breach or alleged breach to enjoin, restrain, or seek to enjoin or restrain, the use, distribution, or other exploitation of the Films during the Term, throughout the territory and in the media the Film Uploader selects at the time of upload.
18. Governing Law and Venue for Disputes. These Terms of Service, and your relationship with us under these Terms of Service, shall be governed by the laws of the State of Texas without regard to its conflict or choice of laws provisions. Any dispute with us, or our officers, directors, employees, agents or affiliates, arising under or in relation to these Terms of Service shall be resolved exclusively through the federal or state courts located in Travis County, Texas (and courts with appellate jurisdiction therefrom), except with respect to imminent harm requiring temporary or preliminary injunctive relief in which case we may seek such relief in any court with jurisdiction over the parties. You understand that, in return for agreement to this provision, we are able to offer the Service at the terms designated, and that your assent to this provision is an indispensable consideration to these Terms of Service.
You also acknowledge and understand that, with respect to any dispute with us, our officers, directors, employees, agents or affiliates, arising out of or relating to your use of the Service or these Terms of Service:
* YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; and
* YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE.
19. Severability. If any provision in these Terms of Service is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of these Terms of Service shall remain in effect.
20. No Assignment, Sublicense or Transfer. You may not assign, sublicense, or transfer these Terms of Service or any rights or obligations hereunder without our prior written consent. Any such attempted assignment, sublicense, or transfer will be null and void and we, in our sole discretion, shall have the right to immediately terminate these Terms of Service.
21. Communications by us. You agree that we may communicate with you electronically. Such electronic communications may consist of e-mail, notices posted on the Service, and other communications. You agree that all agreements, notices, disclosures, and other communications we send to you electronically will satisfy any requirement that such communication be in writing and, to the extent intended, such communication will be an enforceable and binding term or amendment to these Terms of Service.