"FLE LLC": Fresh Look Enterprises LLC, a California company. In these Terms, FLE LLC is referred to by “us”, “we” or “our”, as applicable.
"Content": documents, photos, videos, audio, images, graphics, animations, edits, variations, messages, polls, queries, posts, comments, signals, ratings, rankings, and any other text, content, information or data accessible via use of the Site, including any of the foregoing contributed by a User or by us.
"Services": the services, features, functionality and Content accessible via use of the Site.
"Site":www.moviethingy.com and any web pages that are a part of www.moviethingy.com.
"User": you and any other user of the Services.
1.1 Subject to your compliance with these Terms, particularly sections 2, 3, 4, 6 and 7 below, we hereby grant to you a fee-bearing (unless in our sole discretion we waive payment of fees), non-exclusive, non-transferable, worldwide right and license to use the Services and access the Site. You may not access the Site or use the Services or Content:
a) if you are a direct competitor of us (including, without limitation if you are involved in the provision of services enabling the recording and sharing of personal diaries, journals or similar content) or operating on behalf of such a direct competitor; or (b) for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes. You may not have more than one account at any given time. You may not sublicense, sell access, resell, transfer, distribute, make derivative works of, monetize or commercially exploit or make available, the Content, Site or Services in whole or in part.
1.2 You agree that we are free to use and implement in perpetuity without compensation, attribution or obligation to you any feedback, benchmarks, requirements, suggestions, criticisms, improvements, recommendations, ideas, and error corrections provided by you to us relating to the Site, Services, Content, or our other products or services.
1.3 No other right or license to the Content, the Site or the Services is provided, and no other license shall be implied, by course of conduct or otherwise. Each User retains all right, title and interest in and to such User's Content, and all associated intellectual property rights, subject to these Terms. We retain all right, title and interest in and to the Site, Services, and all associated intellectual property rights. Except as expressly authorized by these Terms, Users shall not use, reproduce, or distribute Content contributed by other Users or us.
2.1 You are solely responsible for all Content, whether publicly posted on or privately transmitted via the Site, that you contribute and we have no responsibility for such Content. You agree not to transmit Content or otherwise conduct or participate in any activities on the Site and/or any Service which, in our sole judgment, is likely to be prohibited by law or breach of third party rights in any applicable jurisdiction, including, without limitation, laws governing libel and defamation, encryption of software, the export of technology, the transmission of obscenity or the permissible uses of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any Content that (a) is hateful, offensive, libelous, defamatory, obscene, abusive, pornographic, lewd, erroneous, or threatening; (b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise breaches any applicable local, state, national, or foreign law or regulation; (c) constitutes infringement of the intellectual property rights of any party; (d) creates an impression that is incorrect, misleading, or deceptive, including, without limitation, by impersonating others or otherwise misrepresenting your identity or affiliation with a person or entity; and (e) publish or post other people's private or personally identifiable information without their express authorization and permission. We may, in our sole discretion, terminate the Services as to any Content that we believe in our sole judgment is not in compliance with these Terms. We may preserve and disclose Content if required to do so by law or judicial or governmental mandate or as reasonably determined useful by us to protect the rights, property or safety of FLE LLC, Users and/or the public.
2.2 Each User, by using any Service, may be exposed to Content that is offensive, indecent, objectionable, false or erroneous. You must evaluate, and shall bear all risks associated with, the use of any Content, including any reliance on the quality, integrity, accuracy, completeness, or usefulness of such Content. We will not pre-screen or review Content, but we may refuse or delete any Content of which we become aware that fails to fulfill the purpose of the Services, is in breach of these Terms, is otherwise contrary to law, or is otherwise inappropriate in our discretion. We do not guarantee the accuracy, integrity or quality of any Content. Under no circumstances will we be liable in any way for any Content, including, but not limited to, liability for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content. We shall have no obligation or liability to you or any User to license Content, protect and maintain Content owners' intellectual property rights, or to enforce these Terms. You hereby waive and release any claims you may have against us arising or resulting from use or misuse of your Content, failure to comply with these Terms, or for any act, omission, or conduct of any User.
2.4 We do not guarantee the authenticity of the identity of any User. Users are solely responsible for authenticating the identity of other Users. You acknowledge that identities may be concocted and that other Users may be acting under false pretenses or acting without authority.
3.2 When creating an account, you will receive or will be permitted to create online ID/user name and password information ("Sign-On Credentials") upon completing the registration process, and are wholly responsible for maintaining the confidentiality of, and for all activities occurring under, such Sign-On Credentials. You shall not transfer to any party your Sign-On Credentials, or use the Sign-On Credentials of another, without our prior written consent. You shall immediately notify us at [email protected] of any unauthorized use of Sign-On Credentials or any other breach of security. We will not be liable for any loss or damage arising from a User's failure to comply with this section or from unauthorized use of the Sign-On Credentials.
3.3 We may require you to change your user name if we believe appropriate (such as when a trademark owner complains about a username that does not closely relate to a user’s actual name).
4.1 You shall not use the Site in any manner that could damage, disable, overburden, or impair any of our servers, or the network(s) connected to any such server, or interfere with any other party's use and enjoyment of the Site and Services, including falsifying or altering Content posted by others. You may not attempt to gain unauthorized access to other accounts, computer systems or networks connected to any of our servers or to any of the Services, through hacking, password mining or any other means, or exploit bugs or vulnerabilities in the Site or Services. You are prohibited from breaching or attempting to breach any security features of the Site and the Services, including, without limitation: (a) accessing Content not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with Services to any User, user, host, or network, including, without limitation, by means of submitting a virus to the Site, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;” (d) using the Site or the Services to send unsolicited e-mail or messages, including, without limitation, promotions or advertisements for products or services; (e) publishing or linking to malicious content intended to damage or disrupt another User’s browser or computer or to compromise a User’s privacy or anonymity; (f) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting; (g) accessing or tampering with non-public areas of the Service, our computer systems, or the technical delivery systems of our providers; (h) accessing or searching or attempting to access or search the Service by any means (automated or otherwise) other than through the currently available, published interfaces that are provided by us (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with us; (i) deep link to the Site for any purpose (ie, posting a link to a web page on the Site other than the home page); (j) aggregating Content in whole or in part with data, content, or information available from other websites or services; (k) removing or obscuring any form of advertising on the Site; or (l) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by us in providing the Site or the Services except that, if you are a European resident, subject to your compliance with these Terms, you may decompile any computer software component of the Site or the Services that we make available to you for your use only to the extent permitted by law where this is indispensable to obtain the information necessary to achieve the interoperability of an independently created program with such component or with another program and such information has not been provided by or is not available from us or elsewhere.
4.2 You shall not engage in harvesting or other collection of information about other Users, including email addresses, without our prior and each such User's prior written consent. You agree not to “crawl” the Site or use or launch any automated system, including without limitation, "robots", "spiders", etc. that accesses the Site or pulls Content from the Site (other than those used by public search engine providers for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials), including in a manner that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using conventional web browsers.
4.3 You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services on the Site. The Site and all Services on it are for your personal use only. Except in furtherance of your personal use, you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any Content. Without limiting the generality of the foregoing, you shall not publish, distribute or transmit to the general public via any medium, whether via print, online, or otherwise, the Content or Services, except through the Site or as otherwise authorized by us, and you shall not engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Site. You shall not remove any copyright, trademark or other proprietary rights notices contained in or on the Site, including ours and our licensors’.
4.4 While we will endeavor to back up Site data and make such data available in the event of loss or deletion, we have no responsibility or liability for the deletion or failure to store any Content. We reserve the right to mark as "inactive" and archive accounts and/or queries, projects, forums, discussions or similar interactions that are inactive for an extended period of time. Further, you acknowledge that we may monitor and collect information (including but not limited to technical and diagnostic information) about your usage of the Services in order to improve the Services and to verify compliance with these Terms.
4.5 If you believe that you are entitled or obligated to act contrary to these Terms under any mandatory or applicable law, you agree to provide us with detailed and substantiated explanation of your reasons in writing at least thirty days before you so act, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so.
4.6 For purposes of service messages and notices about the Services to you, we may place a banner notice across Site pages to alert you to certain changes such as modifications to these Terms. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you in relation to your account and otherwise in relation to these Terms through your account or through other contact information which you have provided to us, including email, mobile number, telephone, or delivery services including, but not limited to, the postal service. You acknowledge and agree that we shall have no liability, including, but not limited to, for your failure to receive critical information about the Services associated with or arising from your failure to maintain accurate contact or other information.
4.7 Because no online system is perfectly secure or reliable, the internet is an inherently insecure medium, and the reliability of hosting services, Internet intermediaries, your Internet service provider, and other service providers cannot be assured, you accept security risks associated with your use of the Site, the Services and the Content, and the responsibility for choosing to use a technology that does not provide perfect security or reliability.
5.1 EACH USER'S USE OF THE SITE AND SERVICES IS AT HIS OR HER SOLE RISK. THE SITE AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND we ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE OR DISPLAY ANY content, User COMMUNICATIONS OR PERSONALIZATION SETTINGS. EACH User WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO HIS OR HER COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM use of the site or services. to the MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, title AND NON-INFRINGEMENT. Specifically, we make no warranty that (a) the Site or any Service will meet your requirements, goals or needs, (b) Site or Services access will be uninterrupted, timely, secure or error-free, or (c) any errors or deficiencies will be corrected. Further, scheduled and preventive maintenance as well as required and emergency maintenance work may temporarily interrupt services or access to the website.
5.2 EXCLUDING ONLY DAMAGES ARISING OUT OF GROSS NEGLIGENCE OR WILLFUL DEFAULT, our LIABILITY FOR OUR FRAUD, DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR ANY OTHER LOSS FOR WHICH WE CANNOT LAWFULLY EXCLUDE LIABILITY, we SHALL NOT BE LIABLE FOR ANY, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF REVENUE, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF we HAve BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY User's USE OR INABILITY TO USE the content, site OR ANY SERVICE; THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; UNAUTHORIZED ACCESS TO OR ALTERATION OF a User's content; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON the site OR ANY SERVICE; OR ANY OTHER MATTER RELATING TO US, the site, content OR ANY SERVICE. EXCLUDING ONLY our LIABILITY FOR our fraud, DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR ANY OTHER LOSS FOR WHICH WE CANNOT LAWFULLY limit LIABILITY, ANY LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE IS LIMITED TO $20 IN THE AGGREGATE. 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.
5.3 You agree to defend, indemnify (ie compensate in full), release and hold harmless us, our suppliers, and all officers, directors, employees, consultants, agents, and representatives of any of the foregoing (collectively "Protected Parties") in full from and against any and all claims (including third party claims), losses, liability, damages, and/or costs of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with: (a) your unauthorized access to, or use of, the Content, Site or Services, (b) your breach of these Terms, (c) your use of Content or conduct engendered thereby, and any activities you conduct on or through the Site, or (d) your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity. Further, in the event you have a dispute with one or more Users, you hereby release the Protected Parties from claims, demands and damages (actual, direct and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, foreseeable and unforeseeable, arising out of or in any way connected with such disputes.
FOR CALIFORNIA RESIDENTS: You further agree that these Terms waive and release any claims that would otherwise be preserved by operation of section 1542 of the California Civil Code, which provides: "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 understand that you are releasing us from all claims, whether known or unknown to you, and whether or not you suspect that those claims may exist at this time.
Fees and any other charges for the use of the Services are described on the Site and are nonrefundable except as we may otherwise specify on the Site. Fees may change from time to time. If we change fees or charges, we will give you reasonable notice. If they do change, your continued use of the Site after the change indicates your agreement with the new fees and charges after the effective date of the change. Any change to fees and other charges will not be applicable to the billing period in which the change occurs. You are responsible for all taxes applicable to the fees in any applicable jurisdiction. Your obligation to pay fees continues through the end of the subscription period during which you cancel your subscription.
7.1 Service Discontinuance.
We may from time to time modify or discontinue, temporarily or permanently, access to the Site or any Service thereon (or any part, feature, or functionality thereof). We shall not be liable for any such modification, suspension or discontinuance.
7.2 Account & Service Termination. We may terminate our contract with you under these Terms for cause, including for:
a) your breach of these Terms;
b) your abuse of Site resources or any attempt to gain unauthorized entry to the Site or Services;
c) your use of the Site or any Service in a manner inconsistent with the purpose of the Services.
We may terminate our contract with you under these Terms at will:
a) on your request for such termination; and
b) for requirements of applicable law, regulation, court or governing agency order.
We may in addition terminate the availability of the Site and Services for our own business reasons, including if we elect to cease being in the business of providing the Services. Our termination of our contract with you under these Terms and/or your access to the Site or any Service under these Terms may be effected without notice and, on such termination, we may immediately deactivate or delete your account and Content, and/or bar any further access to the Site and Services. We shall not be liable for any termination of our contract with you under these Terms and/or your access to the Site or Services. After any such termination, you shall not attempt to register a new account without our permission.
7.3 US Government Restricted Rights. Services are provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in applicable laws and regulations. Use of the Services and related materials by the U.S. Government constitutes acknowledgment of our proprietary rights in same.
7.4 Trademarks. You are granted no right, title or license to any third party trademarks by these Terms, or to any of our trademarks or servicemarks except as expressly set forth in these Terms. We reserve all right, title and interest in and to our trademarks, servicemarks, trade names, domain names, and similar identifiers, including Movie ThingyTM ("Marks"). You shall not:
a) challenge our ownership or use of the Marks;
b) attempt to register any Marks; or
c) incorporate any Marks into your trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations. Any and all use of the Marks by or for you inures to our benefit.
If you acquire any rights in any Marks by operation of law or otherwise, you will immediately and at no expense to us, assign such rights to us along with any associated goodwill, applications and registrations.
7.5 Governing Law. These Terms, the Services, the Site and Content, and any disputes related to or concerning any of the foregoing (including tort as well as contract claims, and whether pre-contractual or extra-contractual) shall be governed by the laws of California. The choice of law rules of any jurisdiction shall not apply and shall not be invoked in any proceeding between the parties. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms, the Services, the Site or Content must be filed within one (1) year after such claim or cause of action arose, or be forever barred.
7.6 California-Based Site. The Site is controlled by FLE LCC from its offices in California. We make no representation that any of the Services or Content are appropriate for use in other jurisdictions. Your use of or access to the Site shall not be construed as our purposefully availing ourselves of the benefits or privileges of doing business in any other state or jurisdiction other than California.
7.7 Dispute Resolution. Any disputes between or claims brought by you or us arising out of or related to these Terms, the Services, the Site or Content (including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the arbitrability of any disputes) shall be referred to and finally settled by binding arbitration before the American Arbitration Association ("AAA") in accordance with the Rules of Arbitration of the AAA in effect at the time of arbitration except as inconsistent with this section. The arbitration shall be conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. If in-person appearance is required, such hearings shall be held in San Francisco, California. The arbitrator shall apply the law specified in section 7.6 above. All awards may if necessary be enforced by any court having jurisdiction. The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards therein, shall be kept confidential. Except as required by law, no party shall make any public announcements with respect to the proceeding or the award, except as required to enforce same. You and we agree that by agreeing to these Terms, the parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Notwithstanding the foregoing, nothing in this section shall preclude the right and ability to file and maintain at any time an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto. All claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using arbitration in accordance with this section. Should either party file an action contrary to this section, the other party may recover lawyers' fees and costs, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim.
7.8 Assignment. These Terms shall not be assigned, delegated, or transferred by you, in whole or in part, whether voluntarily, involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise, without our prior written consent. Any such purported assignment, delegation or transfer without such written consent shall be void. We may at any time assign these Terms without prior consent or notice. These Terms shall be binding on, and inure to the benefit of, the parties and their respective and permitted successors and assigns.
7.9 Injunctive Relief. You acknowledge and agree that breach of these Terms, or any unauthorized use, disclosure or distribution of the Content, may cause irreparable harm to us, the extent of which would be difficult to ascertain, and that we shall be entitled to seek immediate injunctive relief (in addition to any other available remedies), in any court of competent jurisdiction under the applicable laws thereto.
7.10 Miscellaneous. The Terms constitute the entire agreement between you and us and govern each User's use of the Site and Services, superseding any prior agreements. Each User may be subject to additional terms and conditions that may apply when that User uses affiliate services, third party content or third party software. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. No waiver of any provision of these Terms shall be deemed a further waiver or continuing waiver or such provision or any other provision, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Nothing herein shall be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between us and any user or other person or entity, nor do these terms extend rights to any third party.