HERE PUBLISHING INC.
TERMS OF USE

 

Last revised: February 13, 2017

 

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE SERVICES (DEFINED BELOW) BECAUSE THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS, INCLUDING, BUT NOT LIMITED TO, MANDATORY ARBITRATION AND CLASS ACTION WAIVER (PARA. 26), LIMITATION OF LIABILITY (PARA. 18), AND INDEMNITY TO US (PARA. 25). BY USING ANY OF THE SERVICES, YOU ACCEPT THESE TERMS OF USE AND AGREE TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS OF USE, PLEASE DO NOT USE ANY OF THE SERVICES.

 

This agreement (“Agreement,” “Terms of Use,” or “Terms”) is a legally binding agreement between Here Media Inc. and its subsidiaries and affiliates (collectively, "Here Media," "us" or "we") and you concerning Here Media’s digital, online and mobile products and services that link to these Terms of Use, including, but not limited to, online and mobile websites (such as heretv.com, out.com, advocate.com and pride.com) (collectively, the “Sites”), mobile and connected TV applications (including for smartphones, tablets and streaming TV devices), digital publications (including OUT and The Advocate), and related interactive features, content and user interfaces, as well as related software, downloads and updates (collectively, “Services”). Access to and use of the Services is provided by Here Media subject to the following Terms.

 

By using the Services, you accept and agree to be legally bound by these Terms as well as our privacy policy found at www.heremedia.com/privacy-policy (“Privacy Policy”). The Privacy Policy is hereby incorporated by this reference into these Terms of Use.

 

Please note that these Terms of Use include capitalized words or phrases. These capitalized words and phrases are defined terms. The defined terms are first set off from other text in parentheses. Their definitions are found either in these Terms of Use or our Privacy Policy.   

 

1. ELIGIBILITY:

 

To be eligible to subscribe to the Services that require a subscription (e.g., the Here TV app), you must meet the following criteria (the "Eligibility Criteria"):

 

(a) You must have reached the age of 18, or the age of legal majority in your state, province, territory or country of residence (collectively, “Services Area”);

 

(b) You must have an account in good standing with Here Media or an authorized subscription provider of the Services (collectively, "Subscription Provider") and have activated your subscription to the Services (the "Subscription") with the Subscription Provider; and

 

(c) You must establish a registered profile with Here Media tied to the Services. Your profile together with your Subscription will establish your registered account ("Registered Account"). For some Subscription Providers, such as Apple TV, your Registered Account will be created for you when you purchase your Subscription.

 

2. CHANGES TO TERMS:

 

Here Media reserves the right to modify the terms of this Agreement or to change, modify or otherwise alter any feature of the Services or the Sites at any time in its sole discretion. Changes to this Agreement may be communicated to you by making the revised Agreement available for your review on the Services or the Sites. Please review the Terms and Privacy Policy periodically for any changes. The date that these Terms were last modified can be found at the top of this Agreement. Any modifications to this Agreement, including, but not limited to, any modifications to the warranty disclaimers or limitations of liability contained in this Agreement, will supersede the prior Agreement provisions for all activity occurring after the revised version has been made available.

 

To the extent any change materially impacts the availability of the Services, such as a change to your Subscription, in addition to posting the revised document on the Services, we will communicate such a change directly to you via the email address associated with your Registered Account. Your continued use of the Services or the Sites after the changes come into effect and, in the case of any Subscription, your failure to cancel the same within the relevant notice period, will mean you accept and agree to be bound to the changes.

 

3. CONSENT TO ELECTRONIC COMMUNICATIONS:

 

Your registration and use of the Services constitutes consent to receiving electronic communications from Here Media and our Subscription Providers regarding your account. You agree that any such communications from either Here Media or our Subscription Providers will satisfy any legal requirements, such as that notice be provided to you in writing. You also consent to receiving promotional messages, offers, surveys, and requests electronically. For more information about how we communicate with you, please review our Privacy Policy at www.heremedia.com/privacy-policy. If you no longer want to receive non-transactional communications, you may unsubscribe at any time using the link at the bottom of the electronic communication or you may sign in to your Registered Account and update your notification settings. Please note that changes made to your notification settings may not take effect immediately, and there could be a delay before your new settings become effective.

 

4. REPRESENTATIONS:

 

By accessing, previewing, or otherwise using the Services in any manner, you represent and warrant that you are a resident of the applicable Services Area, that you are a subscriber with an account in good standing with an authorized Subscription Provider, that you have a Registered Account, and that you have legal capacity to enter into this Agreement (i.e., that you are at least eighteen (18) years old or of sufficient age to be considered an adult in your Services Area and possess sufficient capacity and are otherwise entitled to be legally bound in contract). You represent and warrant that you have read and agree to abide by this Agreement, and that you have read and are aware of and in agreement with our Privacy Policy.

 

5. LICENSE:

 

Here Media grants you a limited, non-exclusive, non-transferable, royalty-free license to access, use, and privately display the Services and the Sites on your personal Internet-connected devices, solely as provided in this Agreement for your personal use and only as long as you continue to meet all of the Eligibility Criteria and are not otherwise in breach of this Agreement. Please note that in order to access the Services or the Sites, your device must be connected to the Internet, and you will be solely responsible for the cost and maintenance of any such Internet connection. Additionally, the Services will only operate on certain hardware and software platforms. It is your sole responsibility to ensure that you have access to the appropriate platforms required to access the Services. Please check the requirements periodically, as Here Media reserves the right to change or cease support of any hardware or software platforms at any time.

 

This license will enable you to view, preview, select, stream and access video, audio, graphics, photos, text, special features, and messages (collectively "Content") via the Services or the Sites in accordance with the terms of this Agreement during the timeframe in which your account is active and for the duration of the access window for each individual Content item. Any unauthorized copy of the Services, the Sites, Content, underlying software, or any portion thereof will constitute a violation of copyright. Violation of this Agreement in any manner automatically terminates the license granted to you herein and obligates you to cease all use of the Services and the Sites.

 

Here Media may control the maximum number of simultaneous streams per account (across all Content on the Services) regardless of the number of devices on which the Services is available. Here Media may change the maximum number of simultaneous streams or registered devices per account that you may use at any time, in its sole discretion.

 

6. REGISTRATION FOR SERVICE:

 

To access certain Services (e.g., Here TV app), you will be required to purchase a Subscription through a Subscription Provider and create a registered profile with Here Media. Your Subscription together with your Here Media registered profile will establish your Registered Account.

 

Subscription with Subscription Provider

 

To access certain Services, you may purchase a Subscription through an authorized Subscription Provider. In order to purchase a Subscription through a Subscription Provider other than Here Media, you must have an active account with such Subscription Provider and provide a current and valid method of payment, such as a credit card or debit card (a "Payment Method"). Your Payment Method provided to the Subscription Provider, will be processed by such Subscription Provider and not through Here Media. Any inquiries related to payments through your Subscription Provider should be directed to your Subscription Provider directly. You are responsible for all charges incurred in connection with your Subscription.

 

Registration with Here Media

 

Once you have purchased a Subscription with a Subscription Provider other than Here Media, you must establish a Registered Account to access the Services. To create a Registered Account, you must first set up your profile, which requires information including your first and last name, a valid email address, a password, and your birthdate ("Required Information"). You can manage access to the Services and your Registered Account through the "Settings" section of the Services.

 

It is a condition of use of the Services that all the details you provide, including Required Information and Payment Method, will be correct, current, and complete and will not violate any law. If Here Media or a Subscription Provider believes the details are not correct, current or complete, do not meet the Eligibility Criteria, or that you have otherwise violated this Agreement or any law, we each have the right at our sole discretion to suspend, terminate or refuse you access to the Services, your Registered Account or the Sites and any of its resources.

 

Here Media as Subscription Provider - Subject to Availability

 

Subject to availability, you may also access the Services by purchasing a Subscription through Here Media directly. In order to purchase a Subscription through Here Media, you must create a Registered Account, including the Required Information, and additionally provide Here Media with a current and valid Payment Method. The Payment Method provided to Here Media will be processed by Here Media or its authorized vendor(s). Any inquiries related to payments through Here Media should be directed to Here Media. You are responsible for all charges incurred in connection with your Here Media Subscription.

 

Authorized Users - Subject to Availability

 

Once you have created a Registered Account, subject to availability, you may be given the option to add authorized users tied to your Registered Account (the "Authorized User(s)"). Authorized Users should be limited to members of your immediate household only. Each Authorized User will be required to read and accept these Terms and the Privacy Policy. If you are a parent or legal guardian and wish to establish your minor child as an Authorized User, you will be required to click to accept the Terms and Privacy Policy on behalf of such minor child. PARENTS AND GUARDIANS HEREBY ACKNOWLEDGE THAT THE SERVICES (INCLUDING THE HERE TV APP) DO NOT CURRENTLY OFFER PARENTAL CONTROLS AND IT IS CURRENTLY NOT POSSIBLE TO CUSTOMIZE THE VIEWABLE CONTENT ON REGISTERED ACCOUNTS OR FOR ANY AUTHORIZED USERS.

 

The Registered Account will function as the "master account" for all Authorized Users. EACH AUTHORIZED USER HEREBY ACKNOWLEDGES THAT THEIR ACTIVITY MAY BE ACCESSIBLE TO THE REGISTERED ACCOUNT HOLDER, INCLUDING STREAMS BY TITLE AND ANY CHANGES TO THE AUTHORIZED USER SETTINGS.

 

You are responsible for all activity occurring under your Registered Account and by any Authorized User, including maintaining the confidentiality of each Authorized User name and password, and you agree that any Authorized User will not permit the disclosure of any user name and password to any person. You agree that you will:

 

(a) Immediately notify Here Media of any unauthorized use of a user name or password by sending us an email at appsupport@heremedia.com; and

 

(b) Make sure that you and any of your Authorized Users properly exit the Services at the completion of each session. Here Media and its Subscription Providers shall not be liable for any loss or damage arising from your use or misuse of your Registered Account or failure to comply with the registration requirements.

 

7. PAYMENT FOR SERVICEs AND BILLING:

 

Ongoing Subscription

 

By creating an account with an authorized Subscription Provider and providing such Subscription Provider with a Payment Method, you agree to pay the Subscription Provider a subscription fee and any applicable taxes and service fees on a designated cycle for the Services (collectively, the "Subscription Fee"). Subject to Paragraph 8 ("Free Trials   and Promotional Offers"), the first Subscription Fee will be charged to your Payment Method on the date the Subscription Provider confirms your Subscription purchase. Thereafter, the Subscription Fee will be charged to your Payment Method by your Subscription Provider on a recurring basis in accordance with your designated cycle.

 

Billing Cycle

 

For Subscriptions obtained through a Subscription Provider other than Here Media, your billing will be processed by such Subscription Provider or its authorized vendor(s). For Subscriptions obtained through Here Media, your billing will be processed by Here Media or its authorized vendor(s), each upon your sign-up. The Subscription Fee will be billed at the time you establish your Subscription and on an ongoing, regular basis unless you cancel your Subscription. Please note that billing cycles may vary. Note that the timing of your billing may change (i.e. in the event of a problem with your Payment Method, such as an expired credit card). You should confirm the applicable billing policies prior to establishing your Subscription.

 

Subscription Price Changes

 

Each Subscription Provider reserves the right to change the price for a Subscription to the Services in its sole discretion and will be responsible for communicating any price changes to you in accordance with the law.

 

Updating Payment Method

 

You may update your Payment Method with your Subscription Provider (other than Here Media) at any time by accessing your account with such Subscription Provider. If Here Media is your Subscription Provider, you may update your payment method by accessing your Registered Account.

 

If at any time the Subscription Provider is unable to charge your Payment Method for the Subscription Fee due to insufficient funds, expired or invalid account details, or otherwise, you remain responsible for the cost of such Subscription Fee.

 

A change in your Payment Method may result in changes to your prior billing cycle. It is your responsibility to update and maintain the Payment Method associated with your Subscription Fee. In the event your Payment Method is unable to cover the Subscription Fee, each of Subscription Provider and Here Media reserve the right to suspend your respective accounts and access to the Services, until such time as the Payment Method has been updated to permit the Subscription Provider to charge the Subscription Fee.

 

Cancellation

 

You can cancel your Subscription at any time. Please note that you must cancel your Subscription before it renews for a subsequent month in order to avoid being charged for the next month's Subscription Fee. If you cancel your Subscription, the cancellation will become effective at the end of the then-current monthly Subscription period. If Here Media is your Subscription Provider, you will need to cancel your Subscription through Here Media. If you obtained your Subscription through a Subscription Provider, other than Here Media, you will need to cancel your Subscription directly with such Subscription Provider.

 

No Refunds

 

REFUNDS WILL NOT BE PROVIDED FOR ANY SUBSCRIPTION. WE DO NOT PROVIDE CREDIT, REFUNDS, OR PRORATED BILLING FOR SUBSCRIPTIONS THAT ARE CANCELLED MID-MONTH. In such a circumstance, you will continue to have access to your Subscription until the end of the monthly billing cycle. Each Subscription Provider reserves the right to offer refunds, discounts or other consideration in select circumstances at its sole discretion. Please note that each circumstance is unique and election to make such an offer in one instance does not create the obligation to do so in another.

 

8. FREE TRIALS AND PROMOTIONAL OFFERS:

 

Free Trials

 

The Services may be made available to you on a free trial basis for a limited time ("Trial Subscription"). The specific duration of the Trial Subscription will be specified in the applicable offer at sign-up. Trial Subscriptions are limited to new Services subscribers, unless otherwise specified. Your status as a new subscriber to the Services will be determined by the Subscription Provider and Here Media, each in its sole discretion. These Terms apply to any Trial Subscription, unless otherwise specified.

 

At the time of signing up for a Trial Subscription, you must provide the Subscription Provider with a valid Payment Method in order to use the Services during the Trial Subscription period. Your Payment Method will not be charged by the Subscription Provider during the Trial Subscription Period.

 

UPON THE EXPIRATION OF THE TRIAL SUBSCRIPTION, THE SUBSCRIPTION FEE FOR THE SERVICE WILL BE CHARGED TO YOUR PAYMENT METHOD, UNLESS YOU TIMELY CANCEL THE TRIAL SUBSCRIPTION. PLEASE NOTE THAT YOU WILL NOT BE NOTIFIED THAT YOUR TRIAL SUBSCRIPTION WILL END OR HAS ENDED.

 

To find additional details about your Trial Subscription, including the date the Trial Subscription ends, please visit the Billing Page of your Registered Account for the latest information contained in our records or contact your Subscription Provider directly.

 

Promotional Offers

 

No refunds, adjustments or price protection will be applied to your Subscription Fee in the event of a new/subsequent discount or promotional offering after you sign-up for the Services. New customers may take advantage of any "new customer" promotion only once. Requirements for a special promotion will be stated at the time each offer is presented.

 

As a condition of these Terms, you agree not to register multiple times for the same promotional offer using multiple names, addresses, email addresses or other means. Any such action shall constitute a violation of these Terms and may result in the termination of your Registered Account.

 

9. MATURE CONTENT:

 

THE SERVICES (INCLUDING THE HERE TV APP) CONTAINS MATURE CONTENT, WHICH MAY NOT BE APPROPRIATE FOR CHILDREN. WHERE POSSIBLE, CONTENT IS RATED ACCORDING TO GUIDELINES ESTABLISHED BY THE MOTION PICTURE ASSOCIATION OF AMERICA OR TELEVISION RATINGS/CONTENT ADVISORIES. HOWEVER, SOME CONTENT MAY NOT BE RATED AND/OR MAY CONTAIN VIOLENCE, SEXUAL CONTENT AND MATURE THEMES. SUCH CONTENT IS INTENDED FOR THOSE PERSONS OVER THE AGE OF 18, OR THOSE PERSONS WHO HAVE RECEIVED CONSENT FROM A PARENT OR GUARDIAN.

 

THE SERVICES (INCLUDING THE HERE TV APP) DO NOT CURRENTLY OFFER PARENTAL OR OTHER CONTENT CONTROLS AND IT IS NOT POSSIBLE TO CUSTOMIZE THE VIEWABLE CONTENT ON REGISTERED ACCOUNTS OR FOR ANY AUTHORIZED USERS.

 

If you choose to access, or allow an Authorized User to access, any adult or mature Content on the Services, you acknowledge and agree that exposure to visual images and sounds that may depict nudity, sexual activity, violence, adult language, or are otherwise graphic in nature, may occur. You agree that use of the Services is at your sole risk and that Here Media shall have no liability to you or any Authorized User for the type of Content that you may access or allow to be accessed. It is your responsibility to ensure that the Content accessed by you or any Authorized User does not violate the laws or other requirements of the applicable community.

 

10. COPYRIGHTS AND TRADEMARKS:

 

The Services and the Sites, and all materials incorporated in the Services and the Sites (including, but not limited to text, photographs, graphics, video and audio) are protected by copyrights, patents, trademarks, trade secrets or other proprietary rights under laws of the United States and other countries. Unauthorized copying, editing, exhibition, broadcast or distribution of a copyrighted program can result in severe criminal and civil penalties under U.S. laws. In particular, as of the date of publication of these Terms, criminal copyright infringement, including without monetary gain, is investigated by the FBI and is punishable by up to 5 years in prison and a fine of $250,000.

 

Some of the characters, logos or other images incorporated by Here Media on the Services and the Sites are also protected as registered or unregistered trademarks, trade names or service marks owned by Here Media ("Trademarks"). All other trademarks are the property of their respective owners. Use of the Trademarks of Here Media or of any other party is not authorized in any manner other than as incorporated into the Services and the Sites.

 

11. COPYRIGHT NOTICE:

 

If you believe that any content appearing on the Services and/or the Sites has been copied in a way that constitutes copyright infringement under the laws of the United States, please forward the following information to the Copyright Agent named below:

 

• Your name, address, telephone number, and email address;

 

• A description of the copyrighted work that you claim has been infringed;

 

• The exact URL or a description of where the alleged infringing material is located;

 

• A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

 

• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and

 

• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

 

Here Media Inc.

P.O. Box 241579

Los Angeles, CA 90024

Attn: Legal Department

 

E-Mail: legal@heremedia.com

 

Please note that while Here Media seeks to preserve any and all exemptions from liability that may be available under the copyright law, this is not a stipulation that Here Media is a service provider as defined in 17 U.S.C. section 512c or elsewhere in the law.

 

12. RESTRICTIONS ON USE OF MATERIALS:

 

(a) You may not copy, reproduce, distribute, transfer, sell, license, publish, enter into a database, display, perform publicly, modify, create derivative works, upload, edit, post, link to, frame, transmit, rent, lease, lend or sublicense or in any way exploit any part of the Services or the Sites, or attempt to interfere with the operation of the Services in any way, except that you may access and display material and all other Content displayed on the Services for non-commercial, personal, entertainment use for a limited time only as strictly authorized herein. You may not use any data mining, robots, virus, worms, bugs, or similar data gathering and extraction tools on the Services or on any portion of the Services or the Sites, or frame any portion of the Services or the Sites, or attempt to tamper, hack, corrupt, or impair the administration or security of the Services or the Sites. Without limiting the generality of the foregoing, you may not distribute any part of the Services over any network, including a local area network, nor sell or offer it for sale. You may not assign, sublicense, pledge or transfer any of your rights or obligations under this Agreement to any person or entity without Here Media's prior written consent which may be withheld in Here Media's sole discretion (and any such purposed assignment, pledge or transfer without such prior written consent shall be void ab initio). In addition, these files may not be used to construct any kind of database. You acknowledge that your use of the Services and your Registered Account is non-transferable. Any authorization to copy material granted by Here Media in any part of the Services or the Sites for any reason is restricted to viewing a single copy for non-commercial, personal, entertainment use only, and is subject to your keeping intact all copyright, trademark and other proprietary notices. Using any material on any other service or networked computer environment is prohibited. Also prohibited are: decompiling, reverse engineering, disassembling, or otherwise reducing the code used in any software or digital rights management feature on the Services or the Sites into a readable form in order to examine the construction of such software or to copy or create other products based (in whole or in part) on such software or any feature of the Services or the Sites, or intercepting or recording network communications transmitted between the Services or the Sites and Here Media.

 

(b) Here Media respects the intellectual property rights of others and asks users of the Services and the Sites to do the same. Here Media and its licensees and other Content partners reserve the right, at any time, to prosecute any violation of copyright or other intellectual property laws to the fullest extent of the law, including both civil and criminal penalties.

 

13. CONTENT AND CONTENT LIMITATIONS:

 

Content, including but not limited to video, audio, graphics, photos, text, special features, software and messages may be streamed to you or otherwise made available to you in connection with your use of the Services or Sites. Please note that some Content items may specify an access window in which you will be able to view the Content. The access window will typically range between four (4) to eight (8) weeks, although because these windows may vary, you should pay close attention to the description provided with the Content. During the applicable access window, you will be able to view the Content as many times as you want, BUT ONCE THE ACCESS WINDOW FOR A PARTICULAR CONTENT ITEM TERMINATES, YOU WILL NO LONGER HAVE THE ABILITY TO ACCESS THAT PIECE OF CONTENT. It is your responsibility to monitor the access window for each piece of Content available via the Services, and Here Media and its partners and affiliates accept no liability for any access windows or the expiration thereof. Here Media reserves the right, in its sole discretion, to disable access to any Content at any time, regardless of the posted access windows or its programming schedules. Please note that not all Content will be available for all purposes. Access to certain Content may depend upon your geographic location (i.e. you will not be able to access content from outside the applicable Services Area), whether you are able to maintain an Internet connection, or available bandwidth and equipment used to access the Services. You should be sure to read the description near each piece of Content to determine options for viewing or accessing that Content. While we do our best to keep the Content descriptions up-to-date, Here Media does not warrant that such descriptions will always be complete, current, or accurate. No transfer of ownership to any portion of the Content shall be made as a result of any access you are granted to the Services as a result of your Subscription or Registered Account. Here Media does not make any representations or warranties with respect to the accessibility of any particular Content at any time.

 

14. SERVICE UPDATES AND SOFTWARE:

 

At various times, Here Media may choose to make available updates, bug fixes, or other changes or enhancements to the Services or the Sites (collectively, "Services Updates"). Services Updates may be:

 

(a) Automatic, such as in connection with general website changes and additional features or updates to data required by the Services;

 

(b) At your election, in which instance you will receive information and instructions for how to authorize optional Services Updates; and

 

(c) Mandatory, in which case you will be required to consent to the Services Update or install or upgrade a third-party plug-in if you wish to maintain continued access to the Services.

 

Please note that the Services or the Sites may be unavailable during a Services Update.

 

15. SUSPENSION AND TERMINATION:

 

Here Media and any Subscription Provider may suspend or terminate your Subscription and access to the Services, Sites, or your Registered Account immediately for any reason or for no reason whatsoever, including if Here Media reasonably determines that you are in violation of this Agreement or receives information that you no longer meet the Eligibility Criteria. In such event, you must cease all use of the Services and the Sites. The suspension or termination of your Subscription is in addition to, and not in lieu of, any rights and remedies available to Here Media, its partners and affiliates or any Subscription Provider under this Agreement or under applicable laws.

 

Additionally, you may terminate your account at any time by following the cancellation process set forth in Paragraph 7 above. Please note you shall still be responsible for all Subscription Fees incurred prior to the effective date of termination.

 

This Agreement is effective until terminated; however, your past and any future use of the Services or Sites shall be governed by the terms of this Agreement. Your rights under this Agreement will terminate automatically without notice from Here Media if you fail to comply with any term(s) of this Agreement.

 

16. CUSTOMER SERVICE:

 

(a) For Customer Services inquires related to the Services, the Sites, or your Subscription through Here Media (including Subscription Fee and Payment Method), please visit our Help Center for our FAQ's. If you are unable to resolve your question using the Help Center, please send us an email at appsupport@heremedia.com.

 

(b) For Customer Services matters related to your Subscription through a Subscription Provider other than Here Media (including Subscription Fee and Payment Method) or other matters relating to billing through your Subscription Provider, please contact your Subscription Provider directly.

 

(d) We take security very seriously. If you have reason to believe that your Registered Account credentials have been compromised or misappropriated in some way, you should immediately send us an email at appsupport@heremedia.com.

 

17. DISCLAIMER OF WARRANTIES:

 

YOUR USE OF THE SERVICES OR THE SITES IS AT YOUR OWN RISK. THE SERVICES AND ALL THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICES AND OTHER CONTENT IN THE SERVICES AND THE SITES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HERE MEDIA, ITS AFFILIATES, SUBSCRIPTION PROVIDERS, DISTRIBUTORS, SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. HERE MEDIA, SUBSCRIPTION PROVIDERS, DISTRIBUTORS, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. HERE MEDIA, ITS AFFILIATES, SUBSCRIPTION PROVIDERS, DISTRIBUTORS, SUPPLIERS AND LICENSORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, FUNCTIONS OR OTHER CONTENT IN THE SERVICES, THE SITES, OR ANY SITES LINKED TO THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.

 

18. LIMITATION OF LIABILITY:

 

HERE MEDIA, SUBSCRIPTION PROVIDERS, DISTRIBUTORS, SUPPLIERS AND LICENSORS DO NOT ACCEPT ANY LIABILITY FOR ANY LOSS OR DAMAGE (DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR OTHERWISE), INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO FAILURE OF PERFORMANCE, LOSS OF USE, LOSS OF DATA, LOSS CAUSED BY A VIRUS, WORM, TROJAN HORSE PROGRAM OR DISABLING CODE, DELAY IN OPERATION OR TRANSMISSION, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, COMMUNICATION LINE FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF A RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION RESULTING FROM ANY USE OF, OR INABILITY TO USE, THE SERVICES OR THE SITES OR THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, FUNCTIONS OR OTHER CONTENT ON THE SERVICES OR THE SITES, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF HERE MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. WITHOUT LIMITATION, YOU (AND NOT HERE MEDIA) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY SUCH LOSS OR DAMAGE ARISING. YOU ASSUME THE RISK IN USING THE SERVICES OR THE SITES AS WELL AS TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR DATA BACK UP AND VIRUS CHECKING AS YOU CONSIDER NECESSARY. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.

 

19. FEEDBACK AND POSTINGS:

 

(a) Portions of the Services or the Sites may invite you to provide us with feedback. Please be aware that Here Media does not accept unsolicited submissions of concepts, creative ideas, suggestions, stories, or other potential content. This is to avoid the possibility of future misunderstanding when projects developed by Here Media staff or representatives might seem to others to be similar to the submitted concepts, creative ideas, suggestions, stories or other potential content. Therefore, please do not send Here Media any unsolicited submissions. In any event, no material you send to us will be treated as confidential.

 

(b) Please also be aware that your feedback will not be acknowledged and does not create a confidential, fiduciary or other special relationship between you and Here Media, or any of its Subscription Providers, affiliates or any of its licensees, successors or assigns or place Here Media or any of its Subscription Providers, affiliates, licensees, successors or assigns in a position that is any different from the position held by members of the general public. You acknowledge and agree that neither Here Media nor any of its Subscription Providers, affiliates, licensees, successors or assigns has now, or shall have in the future, any duty or liability, direct or indirect, vicarious, contributory or otherwise, with respect to the infringement or protection of any copyright in and to your feedback, and that Here Media and its licensees, successors or assigns are not responsible for the loss, deletion, failure to store or misdelivery of any feedback submitted.

 

(c) To the extent that use of the Services or the Sites provides you or other users an opportunity to post and exchange information, content, ideas and opinions ("Postings"), be advised that Here Media does not screen, edit, or review Postings prior to their appearance on the Services or the Sites or elsewhere, and Postings do not necessarily reflect the views of Here Media. To the fullest extent permitted by applicable laws, Here Media excludes all responsibility and liability for the Postings or for any losses or expenses resulting from their use or appearance on the Services or the Sites or elsewhere. Here Media reserves the right to monitor all Postings and to remove any which it considers in its absolute discretion to be offensive or otherwise in breach of this Agreement or in violation of general community standards and notions of decency. You hereby represent and warrant that you have all necessary rights in and to all Postings you provide and all material, content and information they contain and that such Postings shall not infringe any proprietary right, intellectual property right or other rights of third parties.

 

(d) Please act responsibly when using the Services and the Sites. You may only use the Services and the Sites and its contents for lawful purposes and in accordance with applicable law and you are prohibited from storing, distributing or transmitting any unlawful material through the Services and the Sites. You may not collect or store personal information regarding other users. You recognize that storing, distributing or transmitting unlawful material could expose you to criminal and civil liability. You agree that if any third party claims that material you have contributed to the Services or the Sites is unlawful, you will bear the burden of establishing that it is lawful.

 

20. HYPERLINKS TO AND FROM THIRD PARTY SITES:

 

(a) You are not permitted to link to the Services or the Sites from any third-party site without the prior written permission of Here Media. However, the Services and the Sites may link you to other sites on the Internet including, without limitation, sites owned or controlled by our Subscription Providers. These sites may contain information or material that some people may find inappropriate or offensive. These other sites are not under the control of Here Media, and you acknowledge that (whether or not such sites are affiliated in any way with Here Media or its Subscription Providers) Here Media is 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 Here Media or any association with its operators.

 

(b) Here Media 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 and/or the Sites. Here Media does not endorse any of the merchandise, nor has Here Media taken any steps to confirm the accuracy or reliability of any of the information contained in such third-party sites. We have no duty to pre-screen information, products and services of third parties (collectively "Third-Party Content"), but we have the right to refuse to post or to edit submitted Third-Party Content. We reserve the right to remove Third-Party Content for any reason, but we are not responsible for any failure or delay in removing such material. Here Media does 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. 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.

 

(c) Any area of the Services or the Sites that is accessed through any third party proprietary online service is subject to the rules, policies and guidelines of such third party proprietary online service.

 

21. SYSTEM ABUSE:

 

(a) You may not reproduce, sell, resell or otherwise exploit any resource, or access to any resource, contained on the Services and/or the Sites.

 

(b) You are prohibited from using any services or facilities provided in connection with the Services or the Sites to compromise security or tamper with system resources or accounts. The use or distribution of tools designed for compromising security (e.g. password guessing programs, cracking tools or network probing tools) is strictly prohibited.

 

(c) If Here Media believes that you have engaged in any fraudulent activity in connection with your use of the Services or the Sites, we reserve the right to take any action to remedy such activity, including without limitation, termination of your Registered Account.

 

22. INVESTIGATIONS/VIOLATIONS:

 

Here Media along with its respective Subscription Providers and affiliates reserve the right to investigate suspected violations of this Agreement, and may seek to gather information from the user who is suspected of violating the terms of this Agreement, and from any other user. We may suspend any users whose conduct is under investigation and may remove such material from its servers as we deem appropriate and without notice. If we believe, in our sole discretion, that a violation of these terms of this Agreement has occurred, we may warn users, suspend usernames and passwords, terminate Registered Accounts or take other corrective action deemed appropriate. We may also provide personally identifiable information in response to legal process, for example, in response to a court order or a subpoena. We also may disclose such information in response to a law enforcement agency's request.

 

BY ACCEPTING THIS AGREEMENT YOU WAIVE AND HOLD HARMLESS HERE MEDIA AND ITS SUBSCRIPTION PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY HERE MEDIA DURING OR AS A RESULT OF ITS INVESTIGATIONS OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER HERE MEDIA OR LAW ENFORCEMENT AUTHORITIES.

 

23. THIRD PARTY SUBSCRIPTION PROVIDER TERMS:

 

These Terms constitute agreement between you and Here Media, and not between you and any Subscription Provider(s). Unless otherwise specified, Subscription Providers will have no obligation to provide maintenance and support services, or respond to product claims regarding the Services. Subscription Providers shall not be responsible for any product or intellectual property claims associated with the Services. Please review the terms of use and user agreements of your Subscription Provider to confirm your compliance to those terms.

 

iOS Subscribers

 

Accessing the Services via iOS products must be in accordance with the App Store Terms of Services in addition to the Terms set forth herein. You acknowledge and agree that Apple, Inc., ("Apple") and any subsidiaries of Apple, are third party beneficiaries to these Terms. Upon your acceptance of these Terms, Apple will have the right (and be deemed to have accepted the right) to enforce these Terms as a third party beneficiary.

 

24. USE IN APPLICABLE SERVICES AREA ONLY:

 

The Services, Sites and Content are intended for viewing solely within their applicable Services Area. For example, certain Content may be restricted to the U.S. only, while other Content may be available worldwide. Use of technology to mask your location or hinder Here Media's ability to ascertain your location is prohibited. Please note Here Media may use technologies to verify your geographic location. Here Media makes no representation that materials or other Content in the Services or Sites are appropriate or available for use outside of the applicable Services Area. By using the Services or submitting personally identifiable information to the Services, either during the registration process or subsequently, you consent to have your information transferred to and processed and maintained in the United States, subject to applicable U.S. laws.

 

25. INDEMNITY:

 

You agree to indemnify and hold harmless Here Media, the Subscription Provider(s), and their respective directors, officers, shareholders, parents, subsidiaries, affiliates, partners, agents, and licensors (collectively, the "Indemnified Parties"), from and against all losses, expenses, damages and costs, including reasonable attorney fees, resulting from your breach of any of the foregoing provisions, representations or warranties, or from your placement or transmission of any content onto the servers of the Services, or from any and all use of your Registered Account in violation of this Agreement or the failure to fulfill any obligations relating to your Registered Account incurred by you or any other person using your Registered Account. We reserve the right to take over the exclusive defense of any claim for which we are entitled to indemnification under this Section. In such event, you shall provide us with such cooperation as is reasonably requested by us.

 

26. Governing Law; binding arbitration; no class action; Waiver of Jury Trial:

 

(a) This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of California, as they are applied to agreements entered into and to be performed entirely within California and without regard to conflict of law principles.

 

(b) In the event an issue arises, Here Media and you hereby agree to resolve those disputes through binding arbitration instead of in courts. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and you hereby waive any right to such proceedings.

 

(c) Any dispute, claim or controversy arising out of or relating to the Services or your use of the Services or the Sites, these Terms of Use and this agreement to arbitrate, must be filed within one year of the relevant events. You waive-- that is, give up- your right to pursue - any dispute, claim or controversy that is not filed within one year and any right you may have had to pursue that dispute, claim or controversy in any forum is permanently barred.

 

(d) Except as set forth in subparagraph (e) below, Here Media and you agree that any dispute, claim or controversy arising out of or relating to the Services or your use of the Services or the Sites, these Terms of Use and this agreement to arbitrate, shall be determined by binding arbitration instead of courts of general jurisdiction. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:

 

• claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;

 

• claims that arose before this Agreement or any prior agreement;

 

• claims that may arise after the termination of this Agreement.

 

References in this paragraph to "Here Media," "we," and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, licensees, licensors or providers of content, successors, and assigns, as well as all authorized or unauthorized users of the Services under this or prior Agreements. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and Here Media are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement. A party who intends to seek arbitration must first send to the other, by certified mail, return receipt requested, or by other mail delivery service that provides proof of delivery (e.g., FedEx), a written notice of dispute ("Notice"). The Notice to Here Media should be addressed to: General Counsel, Here Media Inc., P.O. Box 241579, Los Angeles, CA 90024 ("Notice Address"). The Notice must

 

(i) describe the nature and basis of the claim or dispute; and

 

(ii) set forth the specific relief sought ("Demand"). If Here Media and you do not reach an agreement to resolve the claim within 60 days after the Notice is received, you or Here Media may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Here Media or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Here Media is entitled.

 

The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Agreement, including Disclaimer of Warranties and Limitation of Liability. The arbitrator shall have the right to award money damages and other appropriate relief, consistent with the terms of this agreement; HOWEVER, THE ARBITRATOR SHALL NOT HAVE THE RIGHT TO AWARD INJUNCTIVE RELIEF AGAINST EITHER PARTY OR TO CERTIFY A CLASS ACTION OF ANY KIND. All issues are for the arbitrator to decide. Unless Here Media and you agree otherwise, any arbitration hearings will take place either (i) in person in the county (or parish) of the billing address associated with your subscription according to your Subscription Provider, whose records shall be the sole determinant, or in Los Angeles, California, at your option, or (ii) by video conference during which you shall be able to appear from the county (or parish) of the billing address associated with your subscription according to your Subscription Provider, whose records shall be the sole determinant, or any other location of your choosing which has appropriate video conference facilities available. If your claim is for $10,000 or less, there shall be no in person hearing; and we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by video conference as established by the AAA Rules. If your claim exceeds $10,000, the right to and format of a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Each party shall be responsible for their own attorneys' fees.

 

YOU AND HERE MEDIA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Here Media agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.

 

(e) Notwithstanding the foregoing, disputes enforcing, protecting, or concerning the validity of any of your or Here Media's intellectual property rights (or the intellectual property rights of any of Here Media's licensors) are not covered by this agreement to arbitrate contained in paragraph 26.

 

(f) If the waiver of the right to participate in a class action set forth in subparagraphs (b) and (d) above is found to be illegal or unenforceable for any reason whether by judicial, legislative, or other action, then the entirety of the agreement to arbitrate contained in paragraphs (b) and (d) is null and void. In that instance, you and Here Media agree to waive your right to a jury trial. You and Here Media further agree that any dispute, claim or controversy arising out of or relating to the Services or your use of the Services or the Sites, and these Terms of Use shall be brought in the appropriate state or federal court located in Los Angeles County, California; and that we both irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in Los Angeles County, California.

 

27. SEVERABILITY:

 

If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable for this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between the parties relating to the matters contained herein.

 

28. FORCE MAJEURE:

 

Here Media shall not have any liability to you by reason of any delay or failure to perform any obligation hereunder if the delay or failure to perform is occasioned by force majeure, which shall refer to any act of God, storm, fire, casualty, unanticipated work stoppage, power outage, satellite failure, strike, lockout, labor dispute, civil disturbance, riot, war, national emergency, Governmental action, or other cause beyond its control.

 

29. EXPORT CONTROL:

 

You may not use or otherwise export or re-export the software except as authorized by United States law and the laws of the jurisdiction in which the software was obtained. In particular, but without limitation, the software may not be exported or re-exported into any U.S. embargoed countries or to any persons listed as prohibited under applicable law or regulation.

 

30. SURVIVAL OF TERMS:

The provisions of the Terms of Use, which by their nature should survive expiration or termination of the Terms of Use, will survive such termination, including, but not limited to, paragraphs 12-13 and 17-30.