Date of Last Revision: July 25, 2017
PLEASE NOTE THAT THE “ARBITRATION AGREEMENT” CONTAINS PROVISIONS THAT REQUIRE (i) WITH LIMITED EXCEPTIONS, ALL DISPUTES ARISING BETWEEN YOU AND COMPANY UNDER THIS AGREEMENT TO BE RESOLVED IN BINDING ARBITRATION, AND NOT IN COURT, AND (ii) YOU AND COMPANY WAIVE THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN CONNECTION WITH SUCH DISPUTES. PLEASE REVIEW THE ARBITRATION AGREEMENT. BY USING THIS SITE AND ACCEPTING THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE ARBITRATION AGREEMENT. PLEASE READ IT CAREFULLY.
Use of the Site
Site Content, Software and Trademarks: You acknowledge and agree that the Site may contain content or features (“Site Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Company, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Site or the Site Content, in whole or in part. In connection with your use of the Site you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Site or the Site Content other than as specifically authorized by Company is strictly prohibited.
Third Party Websites
The Site may provide, or third parties may provide, links or other access to third party Sites and resources on the Internet. Company has no control over such Sites and resources and Company is not responsible for and does not endorse such Sites and resources. You further acknowledge and agree that Company will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such Site or resource. Any dealings you have with third parties found while using the Site are between you and the third party, and you agree that Company is not liable for any loss or claim that you may have against any such third party.
Indemnity and Release
Disclaimer of Warranties
YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
COMPANY MAKES NO WARRANTY THAT (I) THE SITE WILL MEET YOUR REQUIREMENTS, (II) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE OR RECOMMENDATIONS, PROMOTIONS OR MENTIONS BY THE SITE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SITE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; OR (V) ANY OTHER MATTER RELATING TO THE SITE.
Governing Law and Arbitration.
This Agreement shall be governed by and construed in accordance with the substantive laws of the State of California, without regard to any conflict of laws provisions thereof. Any dispute arising out of or in connection with this Agreement (including for equitable relief) shall be resolved by binding arbitration under the current expedited procedures applicable to the then-current commercial arbitration rules of the American Arbitration Association. The place of arbitration shall be the county of Orange, California. Any award rendered by the arbitrator shall be final and binding upon the you and the Company, and judgment upon any such award rendered may be entered in any court having jurisdiction. Each Party shall pay its own expenses of arbitration, and the expenses of the arbitrator shall be equally shared between Company and you unless the arbitrator assesses as a part of his or her award all or any part of the arbitration expenses of a Party (including reasonable attorneys’ fees) against the other Party.
Copyright Infringement Notification. Pursuant to 17 U.S.C. §512(c)(2), all notifications of claimed copyright infringement on Company’s Video Player should be sent to our Designated Agent. Company has provided the following information for the exclusive purpose of notifying Company that you allege an infringement of your copyright. Please do not send other inquiries or notices to this contact, as you will not receive a response to such inquiries or notices that are not related to copyright infringement.
Under federal law, you may be subject to severe civil penalties if you knowingly make a material misrepresentation that online material is infringing. These penalties include court costs and monetary damages, as well as attorneys’ fees. Such attorneys’ fees may include those incurred by parties who are injured by Company’s reliance on such misrepresentation(s), such as: (a) the copyright owner, (b) the copyright owner’s licensee(s),(c) our Network webSite(s) and/or (d) Company.
To file a copyright infringement notification with us, you will need to send a written communication that includes substantially the following (please consult your legal counsel, or refer to 17 U.S.C.§512(c)(3) (Section 512(c)(3) of the Digital Millennium Copyright Act) to confirm these requirements:
1a. The electronic or physical signature of the owner, or of the person authorized to act on behalf of the owner, of the copyright interest that is allegedly infringed.
1b. Identification of the copyrighted work(s) that you claim has been infringed (if multiple copyrighted works on the Company Video Player are covered by a single notification, a representative list of such works on the Company Video Player).
1c. A description of the material that you claim is infringing, or material that is claimed to be the subject of infringing activity, and that is to be removed or access to which is to be disabled, and the location where the original or an authorized copy of the copyrighted work exists (e.g. a URL of a webSite where the material is lawfully posted, provided in the body of an email would be the most effective way of helping Company locate the material).
1d. A clear description of where the infringing material is located on our webSite, including its URL, so that Company can locate the material.
1e. Your address, telephone number, and email address, so that Company may contact you regarding the notification.
1f. A statement that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
1g. A statement made 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.
Please note that the information you provide in this legal notice may be forwarded to the person who provided the allegedly infringing content to Company, and that the claimant’s information may be published on the Company Site in place of disabled content.
2. Company’s Designated Agent. Please submit the foregoing notice, in writing, to the following Designated Agent:
Digital Throttle LLC
c/o Copyright Agent/Bryan Robb
28562 Oso Parkway, D446
Rancho Santa Margarita, CA 92688
Telephone: (949) 713-0944
Fax: (959) 544-0465
Email: legal @ digitalthrottle.net
3. Counter-Notification. When Company receives notification of alleged copyright infringement, Company will remove or disable access to the work/material that is the subject of the notification, and will notify you of the removal or disabled access. If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your content, you may elect to send a counter-notice to Company’s Designated Agent. Company has provided the following information for the exclusive purpose of notifying Company that you dispute a claim of infringement of another’s copyright.
Please be advised that only those parties having an active Licensee Agreement with Company may submit a counter-notification. DO NOT SUBMIT a counter-notification if you do not have a Licensee Agreement with Company. 17 U.S.C.§512(f) imposes liability on any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification, for damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by Company, who is injured by such misrepresentation, as a result of reliance on such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
To submit a counter-notification with Company, you must submit a writing that includes the following (please consult 17 U.S.C. §512(g) to confirm these requirements):
3a. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (e.g. the specific URL for the material formerly on the Company Video Player).
3b. The statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
3c. The statement: “I consent to the jurisdiction of the Federal District Court for the district in which my address is located, or if my address is outside the United States, the judicial district in which Company is located, and will accept service of process from the claimant or claimant’s agent.”
3d. Your name, address, telephone number, and email address, and the date of your Company License Agreement.
3e. A physical or valid electronic signature.
If you are a subscriber not within the United States, and are responding to a valid international claim not brought under §512(c) of the Digital Millennium Copyright Act, you may submit your counter-notification under the above process, or alternatively, with an international counter-notification. You should understand that filing a counter-notification may lead to legal proceedings between you and the complaining party. There may be adverse legal consequences in your country if you make false or bad faith allegations through this process. If you are unsure whether material infringes the copyrights of other, please first contact a lawyer before proceeding. An international counter-notification must include the following:
3a.1 Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (e.g. the specific URL for the material formerly on the Company Video Player).
3b.1 The statement: “I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
3c.1 The statement: “I will accept service of process from the person who provided Company with the original copyright complaint, or an authorized agent of such person.”
3d.1 Your name, address, telephone number, and email address, and the date of your Company License Agreement.
3e.1 A physical or valid electronic signature.
Company can only accept a counter-notification directly from the user a Licensor from whom the allegedly infringing content has been removed or has had its access disabled. For Company’s verification purposes, counter-notifications should be submitted from the email address associated with the account.
4. Restoration of Content. Once Company receives a counter-notification, Company will forward a copy of the counter-notification to the party who submitted the original claim of copyright infringement. Please be advised that when Company forwards the counter-notification, it will include your personal information. By submitting a counter-notification to Company, you consent to having your information revealed in this way. Company will not forward your counter-notification to any party other than the original claimant.
Additionally, once a counter-notification is sent by Company to the party who submitted the original claim of copyright infringement, Company may replace the removed material or cease disabling access to it within ten (10) to fourteen (14) business days, unless the original claimant provides notice to the Designated Agent within ten (10) business days upon receipt of the counter-notification, indicating that the claimant has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on Company’s Video Player. Without such notice, Company may then reinstate the material on its webSite at its sole discretion.
5. Termination Policy. Please be advised that Company has adopted, and enforces a policy of termination in appropriate circumstances of Licensors who are repeat infringers.
6. Disclaimer. Please be advised that any notification of copyright infringement, or counter-notification, under this Copyright Policy may be deemed invalid if you fail to comply with Company’s Terms and Conditions of Use Policy. Again, please be advised that under 17 U.S.C. §512(f) any person who knowingly materially misrepresents that material is infringing, or who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability for damages. If you are unsure whether materials on the Company Video Player infringe upon the copyrights of others, please consult a lawyer before proceeding with any notice to Company.