Warner Archive Instant
Last updated on: October 9th, 2013
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE WEBSITE AND SERVICES. IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES.
• Each time you use the Services, these Terms and any Additional Terms (defined below) apply. Any updates to them will apply to you; so you should check back each time you return for any updates.
• You may only use the Content (defined below) on the Services in connection with your permitted activities on the Services and not in an offline environment or in connection with another web site. (See Section 5)
• We are providing the Services to you on an “as-is” basis, without any warranty of any kind, and our liability to you in connection with your use of the Services is very limited. Many other limitations and disclaimers relate to your use of the Services. (See Sections 13 and 14)
• Many types of disputes that may arise in connection with your access to and use of the Services are subject to mandatory arbitration – which includes your waiver of a right to a jury trial. (See Section 17)
The Warner Archive Instant website, applications and service (collectively, the “Services”) is a service offered by Warner Bros. Digital Distribution, a division of Warner Bros. Home Entertainment Inc. (“Warner”, “we,” “our”, or “us”). The Service includes the ability to access Content via a web browser and/or using applications provided by the Service, including the ability to access Subscription Content (defined below) through www.warnerarchiveinstant.com, which requires the payment of a monthly fee. By using the Services or Content, you are agreeing to be bound by these Terms which apply whether you are a registered user of the Services or a non-registered user just browsing (collectively “Users”) and regardless of how you access or use them. By “Services”, we mean any web site that posts these Terms and all features, widgets, applications, content, software and downloads that are operated by us and that are available through or interact with it, and/or post links to these Terms.
If You Want to Use The Services,
then carefully read these Terms, as they constitute a written agreement between you and Warner and they affect your legal rights and obligations. If you are under the age of majority, you may use the Services only with involvement of a parent or guardian who agrees to these Terms for you.
The business realities associated with operating the Services are such that, without the limitations that are set forth in these Terms -- such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and our arbitration of certain disputes – Warner would not make the Services available to you.
In some instances, both these Terms and separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions will apply to your use of the Services or to a service or product offered via the Services (in each such instance, and collectively, “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
We reserve the right to revise or modify these Terms and any Additional Terms, at any time without prior notice (“Updated Terms”) by posting them on the Services so that they are accessible via a link on the Services. Notwithstanding the foregoing, we will notify you before making changes to the arbitration provisions which can be found below in Section 17 of these Terms. Your continued use of the Services will be deemed to be your irrevocable acceptance of any revisions. Therefore, you should review these Terms and any Additional Terms on a regular and frequent basis. The Updated Terms will be effective as of the time that Warner posts them on the home page of the Services, or such later date as may be specified in them.
We reserve the right to restrict, suspend or terminate the Services or your access to the Services, in whole or in part, without notice, in our sole discretion. If we terminate your access to the Services based on a breach of any portion of these Terms, we reserve the right to refuse to provide any Services or other services to you in the future. If we terminate your access to the Subscription Content (defined below) Services, your permission to use the Subscription Content Services automatically terminates.
2. ONLINE PRIVACY NOTICE
3. YOUR REGISTRATION
You may be required to register for an account (“Account”) in order to access certain features of the Services, such as prior to purchasing a subscription to the Subscription Content offered on the Services. If you elect to take advantage of such features, you must register on the Services by completing the applicable registration form to create your Account with a unique username and password. The decision to provide this information is purely optional; however, if you elect not to provide such information, you may not be able to access certain Content or participate in certain features of the Services.
a. Account Information.
By registering with the Services, you represent and warrant that the information you provide on the registration form is true, accurate and complete, and acknowledge that it is your responsibility to keep registration and credit card information (if any) current and promptly update any such information if it changes. You will not use false identities or impersonate any other person or use a name that you are not authorized to use. Only one (1) Account is allowed per User and is for individual use only.
b. Security of your Account.
You are responsible for safeguarding and maintaining the confidentiality of your Account information and agree not to disclose your password to anyone, including friends, family, and business associates. Accordingly, you shall not allow other persons access to or use of such username or password and you will not allow others to use your Account to access the Services under any circumstances. You shall not post your username or password on any web site nor transmit it through unsecured sites. If we feel your username and password are insecure or otherwise problematic, we may require you to change it and/or terminate your Account. You agree that you are entirely and solely responsible for any and all activities or actions that occur under your Account, whether or not you have authorized such activities or actions. You agree to notify email@example.com immediately in the event of any unauthorized use of your Account or any other breach of security. You are fully responsible for all transactions and other activities that are undertaken using your username or password, including unauthorized use, until you terminate your Account or notify Warner that your username or password has been lost, stolen or otherwise compromised.
c. Assignment / Transfer of Your Account.
You agree not to sell, assign, transfer or sublicense your rights as a user of the Services. Failure to comply with the obligations in this Section 3 may, at our option, result in immediate suspension or termination of your right to use the Services, including Subscription Content.
The Services are general audience web sites and we do not knowingly collect any personal information from children younger than the age of thirteen (13) as required by U.S. law. We will delete any personal information collected that we later determine to be from a User younger than the age of thirteen (13). If you are a parent or guardian of a child under the age of thirteen (13) and believe he or she has disclosed personal information to us, please contact us at firstname.lastname@example.org.
5. YOUR USE OF OUR CONTENT
The Services contain a variety of: (i) materials and other items relating to Warner and its products and services, and similar items from our licensors and other third parties, including all layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, including, without limitation, the User advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Services, and the compilation, assembly, and arrangement of the materials of the Services, the Subscription Content, and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including those of Warner (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
The Services (including past, present, and future versions) and the Content are owned or controlled by Warner and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Services is the property of Warner or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, patent, or other intellectual property rights and laws to the fullest extent possible. Warner owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Services.
c. Limited License.
Subject to your strict compliance with these Terms and the Additional Terms, Warner grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to: (i) download (temporary storage only), display, view, use, play the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use via a standard web browser to enable display) on a personal computer or other Internet enabled device (each, an “Device”) for your personal, private, non-commercial, entertainment use (i.e. viewing) only. No business entity (e.g., corporation, partnership, sole proprietorship) is licensed to use the Services or Content, including, without limitation, Subscription Content. The foregoing limited license may be immediately suspended or terminated for any reason, in Warner’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms. While using the Services, you may encounter Content that may be deemed offensive, indecent, or objectionable. You agree to use the Services at your sole risk and that we shall not have any liability to you for the type of Content that you may access, including, without limitation, Content that you may find offensive, indecent, or objectionable.
d. Rights of Others.
e. Reservation of All Rights Not Granted as to Content and Services.
These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Services. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Warner and its licensors and other third parties. Any unauthorized use of any Content or the Services for any purpose is prohibited.
a. Services Use Restrictions.
You agree that you will not: (i) aside from the purchase of goods or services offered for sale by Warner or its affiliates, use the Services for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Warner Trademarks (defined below); (iii) engage in any activities through or in connection with the Services that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Warner; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Services source or object code or any software or other products, services, or processes accessible through any portion of the Services; (v) engage in any activity that interferes with a User’s access to the Services or the proper operation of the Services, or otherwise causes harm to the Services, Warner, or other Users of the Services; (vi) interfere with or circumvent any security feature of the Services or any feature that restricts or enforces limitations on use of or access to the Services or the Content; or (vii) otherwise violate these Terms or any Additional Terms.
b. Content Use Restrictions.
You also agree that, in using the Content: (i) you will not monitor, gather, copy, or distribute such Content (except as may be a result of standard search engine activity or use of a standard browser) on the Services by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party application or web sites, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Warner or, in the case of Content from a licensor, the owner of the Content; (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any User experience; (viii) you will not attempt to disable, bypass, modify, defeat, or otherwise circumvent any of the digital rights management or other security related tools incorporated into the Content; and (ix) you will not use and/or otherwise distribute the Content on any other web site, service or networked computer environment without our prior written permission of an officer of Warner or, in the case of Content from a licensor, the owner of the Content. Any other use or exploitation of the Services, including the Subscription Content, is strictly prohibited.
7. SUBMISSIONS, COMMUNICATIONS AND CONTACT US
You may contact us with questions or comments at Warner Archive Instant, 4000 Warner Blvd, Bldg. 160, Burbank, CA 91522. Please forward any questions or comments about the Services to: email@example.com. You acknowledge that the provision of customer support is at Warner’s sole discretion and that we have no obligation to provide you with customer support of any kind. Please forward any questions regarding privacy to firstname.lastname@example.org.
In your communications with Warner, please keep in mind that unless we expressly request them, Warner does not seek any unsolicited ideas or materials for products or services, or even improvements to products or services, such as ideas, concepts, inventions, or designs for musical productions or equipment, books, scripts, screenplays, motion pictures, television shows, theatrical productions, or otherwise (collectively, “Unsolicited Ideas and Materials”). Any information and materials you post on or send to us via the Services (regardless of whether we have requested them or not) are deemed Unsolicited Ideas and Materials and licensed to us as set forth below. In addition, Warner retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. Warner’s receipt of your Unsolicited Ideas and Materials is not an admission by Warner of their novelty, priority, or originality, and it does not impair Warner’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
By providing Unsolicited Ideas and Materials to us or others via the Services you hereby grant to Warner the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your Unsolicited Ideas and Materials (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such Unsolicited Ideas and Materials and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any Unsolicited Ideas and Materials for any purposes whatsoever, including developing, producing, and marketing products and/or services. In order to further effect the rights and license that you grant to Warner to your Unsolicited Ideas and Materials, you also hereby grant to Warner, and agree to grant to Warner, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any Unsolicited Ideas and Materials, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Unsolicited Ideas and Materials, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 7.
From time to time, areas on the Services may expressly request submissions of feedback, concepts, stories, or other potential content from you (“Invited Submissions”). Where this is the case, please carefully read any Additional Terms which appear elsewhere on the Services to govern those submissions, as they will affect your legal rights. If no Additional Terms govern those submissions, then this Section 7 of these Terms will apply in full to any Invited Submissions and you grant us a license to them just as if they were Unsolicited Ideas and Materials.
8. SUBSCRIPTION TERMS
Certain features on the Services provide Users digital access (a “Subscription”) to movies, documentaries, television shows, promotional videos and other video content on the Services (collectively, “Subscription Content”), and are subject to the terms and conditions in this Section 8 and any Additional Terms posted on the Services relevant to Subscription Content. Subscription Content is only available to Users located in the United States. Access to Subscription Content first requires you to purchase a Subscription. User shall receive access to the Subscription Content for a monthly fee, the amount of which is disclosed on the Services on our home page, payable in advance. To purchase any goods and/or services, including, without limitation, a Subscription on our Services, you must be at least eighteen (18) years of age and the applicable age of majority in your jurisdiction of residence (which is eighteen (18) in most states but is nineteen (19) in Alabama and Nebraska and twenty-one (21) in Mississippi), or if you are under the age of majority, have your parent or legal guardian’s permission to purchase a Subscription. Individuals under the age of majority in their state of residence should have their parent or legal guardian set up their Account since they will be responsible for compliance with these Terms. Prior to the purchase of any goods or services on our Services, you must provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card. By submitting that information to us, you hereby agree that you authorize us to charge your card at our convenience but within thirty (30) days of credit card authorization. All sales of products and services are final. All charges from those sales are non-refundable. For each Subscription, or other product or service that you order on the Services, you agree to pay the price applicable (including any sales taxes, surcharges and any delivery fees for the delivery service you select) as of the time you submitted the order. Warner will automatically bill your credit card or other form of payment submitted as part of the order process for such price. Warner does not offer returns. We will generally charge you on the day that you sign-up for your Subscription, and for future months, on that same day of the month of your initial purchase (however if you sign-up on the 31st of a month and a month does not have 31 days, you will instead be charged on the last day of that month).
b. Access Rights to Subscription Content.
Subject to compliance with the terms and conditions set forth in these Terms, during the Subscription Term (defined below), a User who has purchased a Subscription will have a limited, revocable, non-transferable and non-exclusive license for a User’s personal access to stream the Subscription Content on Devices approved by Warner and owned by the User; provided, however, that the Subscription Content may only be viewed by one (1) of the User’s designated Devices at any one time. User will use their username and password for purposes of accessing the Subscription Content. User shall: (a) be responsible for the security and/or use of his or her username and password; (b) not disclose that information to any person or entity; (c) not permit any other person or entity to use his or her username or password; and (d) use their Subscription in accordance with the terms and conditions of this Agreement. Warner reserves the right to deny, suspend or revoke access to the Subscription Content, in whole or in part, if Warner believes a User is in breach of this Agreement or is otherwise using or accessing the Subscription Content in a manner inconsistent with the terms and conditions of this Agreement. Users acknowledge and agree that Warner is providing access to and use of the Subscription Content to multiple customers and those services are non-exclusive and non-transferable by User.
c. Subscription Term & Termination.
Your Subscription will commence as of the date your payment for a Subscription is received by Warner and will continue in full force on a month to month term until such time as the User cancels the Subscription through the Account functionality on the Services (the “Subscription Term”). In the event that a User cancels a Subscription in the middle of their monthly subscription, the User will not be entitled to receive a refund for the unused portion of the remainder of that month’s Subscription. Warner will have the right, upon written notice to User, to terminate this Agreement, and suspend User’s access to the Subscription Content, if: (a) User fails to pay Warner any amount due to Warner under this Agreement; (b) User materially breaches any term or condition of these Terms. Warner shall have the right to terminate this Agreement and suspend User’s access to the Subscription Content with or without cause, upon thirty (30) days written notice to User in which case User will no longer be charged for access to the Subscription Content. Upon the expiration or termination of these Terms for any reason, User’s access to, and use of, the Subscription Content will terminate.
d. Free Trials/Promotional Offerings.
We may offer promotional trial Subscriptions to access the Services for free for a limited time or at special discounted prices. If you sign up for a trial use, your rights to use the Services are limited by the terms of such trial and will terminate or renew on the terms of your trial arrangement and/or any applicable Additional Terms. If you have been a Warner Archive Instant subscriber at any time, or if your payment method, physical address or email address have been associated with a Subscription, you are not eligible to receive a free trial. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering.
e. Methods of Payment, Credit Card Terms and Taxes.
All payments must be made by Visa, MasterCard, Discover and American Express. We currently do not accept cash, personal or business checks or any other payment form, although in the future we may change this policy. Your card issuer agreement governs your use of your designated card, and you must refer to that agreement and not these Terms to determine your rights and liabilities as a cardholder. You hereby represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless you notify Warner of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If Warner does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Warner or its agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use or value-added taxes.
f. Order Acceptance Policy.
Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of an offer from us. Warner reserves the right at any time after receipt of your order to accept or decline your order for any reason. Warner further reserves the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Your order will be deemed accepted by Warner upon our delivery of products or services that you have ordered or once you have access to the Subscription Content in the event of a Subscription. We may require additional verifications or information before accepting any order. Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that: (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion or the quantity not provided (if your credit card has already been charged for the order); or (b) we will not charge your credit card for the cancelled portion of the order or the quantity not provided.
g. No Responsibility to Sell Mispriced Products or Services.
We do our best to describe every item, product, service or Subscription offered on the Services as accurately as possible. However, we are human, and therefore we do not warrant that specifications or pricing on the Services will be complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications of any item, product, service or Subscription, Warner shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card prior to cancellation, we will issue a credit to your account in the amount of the charge.
h. Modifications to Prices or Billing Terms.
WARNER RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR PRODUCTS OR SERVICES SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON THE SERVICES OR BY E-MAIL DELIVERY TO YOU.
The User acknowledges that since the Internet is neither owned nor controlled by any one entity, Warner makes no guarantees that any given User will be able to access the Subscription Content or Services at any given time, and except as otherwise specifically provided herein, Warner shall not be liable to User for failure of accessibility to the Subscription Content or Services.
9. OTHER THIRD-PARTY SITES AND SERVICES
The Services may link you to other web sites, software or mobile applications, including web sites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with Warner. These sites, software or applications may contain information or material that some people may find inappropriate or offensive. These other sites are not under our control, and you acknowledge that (whether or not such sites are affiliated in any way with us) we are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites. The inclusion of such a link does not imply endorsement of any site by us or any association with its operators.
We cannot ensure that you will be satisfied with any products or services that you purchase from any third-party site that links to or from the Services or our software since such other sites are owned and operated by independent retailers. We do not endorse any of the merchandise, nor have we taken any steps to confirm the accuracy or reliability of any of the information contained in such third-party sites. We do not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you irrevocably waive any claim against us with respect to such sites and third parties. Warner disclaims all liability in connection with therewith. We strongly encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online transaction with any of these third parties.
10. ABUSE OF SERVICES AND CONTENT
You agree not to bypass, modify, defeat or tamper with or circumvent any of the functions or protections of the Services, or Content or mechanisms that protect or limit use or access to the Services or Content, including, but not limited to, any digital rights management functionality. You agree that you will not compromise security of the Services, Content and/or Accounts or tamper with system resources. Also, decompiling, reverse engineering, disassembling, or otherwise using technical means to investigate and/or replicate the functionality of the Services and/or to copy or create other products based (in whole or in part) on the Services, is prohibited. If you become involved in any violation of system security, we reserve the right to release your details to system administrators at other sites and to law enforcement agencies in order to assist them in resolving security incidents.
We reserve the right, without limitation, to: (i) investigate any suspected breaches of the Services security or of our information technology or other systems or networks, (ii) investigate suspected violations of these Terms, including, without limitation, any violation arising from any submission, posting or e-mails you make or send to any portion of the Services, (iii) investigate any information obtained by Warner in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Services, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any User Accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party.
We may seek to gather information from the User who is suspected of violating these Terms, and from any other User. We may suspend any Users whose conduct is under investigation as we deem appropriate and without notice. If we believe, in our sole discretion, that a violation of these Terms has occurred, we may suspend Users use of their username and password, terminate Accounts or take other corrective action we deem appropriate. You agree that we may fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any e-mails, or publishing or otherwise making available any materials that are believed to violate these Terms.
BY ACCEPTING THESE TERMS YOU WAIVE AND AGREE TO HOLD HARMLESS WARNER BROS. DIGITAL DISTRIBUTION, A DIVISION OF WARNER BROS. HOME ENTERTAINMENT INC. AND ITS PARENT, SUBSIDIARIES AND AFFILIATED COMPANIES AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, MEMBERS, SHAREHOLDERS, AGENTS, VENDORS and CONTRACTORS (COLLECTIVELY, “THE WARNER PARTIES”) AND THEIR OFFICERS, EMPLOYEE AND AGENTS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE WARNER PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY ANY OF THE WARNER PARTIES OR LAW ENFORCEMENT AUTHORITIES.
12. LOCAL AVAILABILITY
Warner controls and operates the Services from its U.S.-based offices in the U.S.A., and Warner makes no representation that the Services are appropriate or available for use beyond the U.S.A. If you use the Services from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws, including, without limitation, regarding your online conduct and acceptable content, if and to the extent local laws apply. The Services may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Services and/or the provision of any content, program, product, service, or other feature described or available on the Services to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
13. DISCLAIMER OF WARRANTIES
Your use of the Services is at your own risk. THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND SUBSCRIPTION CONTENT, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE WARNER PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SERVICES; (B) THE CONTENT ON OR PROVIDED THROUGH THE SERVICES; (C) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SERVICES; (F) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT THE SERVICES; AND/OR (G) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO OR FROM THE WARNER PARTIES OR VIA THE SERVICES. IN ADDITION, THE WARNER PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE WARNER PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICES OR THE FUNCTIONS CONTAINED THEREIN WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICES OR THE SERVER THAT MAKES THE SERVICES AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES OR OTHER MALWARE. THE WARNER PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICES IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. THE WARNER PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE WARNER PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THESE TERMS.
BY ACCESSING OR USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICES AND WILL COMPLY WITH THESE TERMS AND ANY APPLICABLE ADDITIONAL TERMS.
14. LIMITATION OF LIABILITY/WAIVER OF UNKNOWN CLAIMS
a. LIMITATIONS OF LIABILITY.
UNDER NO CIRCUMSTANCES WILL THE WARNER PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (A) THE SERVICES; (B) THE CONTENT; (C) THE SUBSCRIPTION CONTENT; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICES; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE WARNER PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SERVICES; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SERVICES’ TECHNICAL OPERATION; OR (H) ANY DAMAGE TO ANY USER’S COMPUTER, HARDWARE, COMPUTER SOFTWARE, DEVICES, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE WARNER PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICES). IN NO EVENT WILL THE WARNER PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. In no event shall THE WARNER PARTIES liability to you, whether arising in contract, tort, strict liability or otherwise, exceed the total amounts paid by you to us during the six (6) months immediately prior to the time such claim arose.
The material, information and opinions included and/or expressed in or on the services are not necessarily those of THE WARNER PARTIES or other Content providers. We may remove or modify any Content, including Subscription Content, without notice or liability at any time in our sole discretion.
YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE SERVICES OR ANY OF THE SERVICES CONTENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SERVICES OR THE SERVICES CONTENT.
We shall not have any obligation to monitor or review communications of users of the software or the Services, and the content of such communications is not our responsibility.
b. WAIVER OF UNKNOWN CLAIMS.
BY ACCESSING THE SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You agree to indemnify, defend (at the Warner Parties’ option) and hold harmless the Warner Parties from and against any and all claims, demands, liabilities, costs, judgments, fines, penalties, settlements, interest, and expenses, including reasonable attorney’s fees and expert witness fees, that directly or indirectly arise from or are related to your breach of any of the foregoing provisions, representations or warranties, and/or from your placement or transmission of any content onto our servers, and/or from any and all use of the Services or your account (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Warner Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Warner Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Warner Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Warner Party.
16. JURISDICTIONAL ISSUES/WAIVER OF INJUNCTIVE RELIEF
a. Choice of Law.
The Services and Content are presented solely for the purpose of providing entertainment and information and promoting programs, films, music, and other products available in the United States, its territories, possessions, and protectorates. These Terms and any Additional Terms shall be governed by, construed and enforced in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of California, without regard to its conflicts of law provisions.
b. Waiver of Injunctive Relief.
YOU AGREE THAT IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICES, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU WAIVE ANY RIGHT TO SEEK, AND YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITES, CONTENT, PRODUCT, SERVICE, OR OTHER INTELLECTUAL PROPERTY CLAIMED OWNED, LICENSED, USED OR CONTROLLED BY WARNER OR A LICENSOR OF WARNER.
17. DISPUTES / ARBITRATION
This Section 17 is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Warner agree that we intend that this Section 17 satisfies the “writing” requirement of the Federal Arbitration Act.
If a dispute arises between you and us, our preference is to resolve the matter quickly and in the most cost effective manner possible. Before resorting to the methods described below for settling a dispute, we ask that you provide us with notice of the dispute via email to email@example.com. Upon receipt, we shall have no less than ten (10) business days to attempt to resolve the dispute with you before the parties resort to the other alternatives described in this Section 17.
If the claim you wish to assert against us is less than $10,000, then, at your election, the arbitration may proceed in-person, by telephone, or by written briefs. At your election, you also may bypass arbitration and proceed to assert your claim in small claims court. If either party files a claim in state or federal court that is required by this Agreement to have been brought to arbitration, then the other party shall be entitled to his/her/its reasonable attorneys' fees incurred in successfully filing a motion to compel the claim to arbitration.
b. Limited Time to File Claims.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 17(a)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
18. CLASS ACTION WAIVER
The parties agree that they will resolve their disputes on an individual basis. Any claims brought under this agreement must be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. This agreement also prevents any party from participating in a class action (existing or future) that was brought by any other party. Instead, the parties agree to resolve their disputes under this agreement on an individual basis.
19. CLAIMS OF COPYRIGHT INFRINGEMENT
If you believe that any content appearing on the Services infringes your copyright rights, we want to hear from you. Please forward the following information in writing to the Copyright Agent at the address listed below:
(a) your name, address, telephone number, and e-mail address;
(b) a description of the copyrighted work that you claim has been infringed;
(c) a description of each place where alleged infringing material is located;
(d) a statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
(e) your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
(f) a statement by you made under penalty of perjury, that the information in your notice is accurate, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Warner Bros. Digital Distribution, a division of Warner Bros. Home Entertainment Inc.
c/o: Warner Bros. Advanced Digital Services, a division of Warner Bros. Technical Operations Inc.
4000 Warner Blvd.
Burbank, CA 91522
Tel: (818) 977 - 0018
We reserve any and all exemptions from liability that may be available under the copyright or other applicable law.
20. PROCEDURE FOR ALLEGING INFRINGEMENT OF OTHER INTELLECTUAL PROPERTY
If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Services, then you may send us a written notice to the addresses set forth above that includes all of the following:
(a) a legend or subject line that says: “Intellectual Property Infringement Notice”;
(b) a description of the intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Services on which the material appears);
(d) your full name, address, telephone number, and e-mail address;
(e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;
(f) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and
(g) your electronic or physical signature.
We will act on such notices in our sole discretion. Any User of the Services that fails to respond satisfactorily to Warner with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
a. Export Controls.
Software related to or made available by the Services may be subject to export controls of the U.S.A. No software from the Services may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls, including as set forth in subsections (i) – (iii) above.
b. Severability; Interpretation.
If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation,”. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Warner in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration. These Terms, together with any Additional Terms, constitutes the entire understanding and agreement between you and Warner and supersedes any and all prior or inconsistent understandings relating to the Services and your use of the Services.
When you communicate with us electronically, such as via e-mail and text message, you consent to receive communications from us electronically in the same manner. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Warner may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Warner.
e. No Waiver.
Except as expressly set forth in these Terms or any Additional Terms, (i) no failure or delay by you or Warner in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Services and you will be responsible for all charges related to them. Depending upon your geographic location, the equipment you are using to access Services or Content, your available bandwidth and other factors, you may not have access to portions of the Services or Content.
You may contact us at Warner Archive Instant, 4000 Warner Blvd, Bldg. 160, Burbank, CA 91522. Please forward any comments or complaints about the Services to firstname.lastname@example.org. Please forward any questions regarding privacy to email@example.com.