2. Site Content. This Site contains a variety of (1) copyrighted material, such as information, articles, opinions, other text, directories, guides, graphics, photographs, illustrations, images, video and audio clips, trailers, music clips, sound clips, advertising and promotional materials, data, software, compilations, designs, graphical interface, and overall “look and feel”, and (2) trademarks, logos, trade names, service marks, and trade identities, including the individual names of motion pictures, or other entertainment properties and providers, and the domain names and URLs associated therewith, whether registered or unregistered (collectively the “Trademarks”), and (3) other forms of intellectual property (all of the foregoing collectively and individually are referred to as “Content”).
(a) Ownership. This Site (including past, present and future versions) and its Content are owned by EPG or its licensors. All right, title, and interest in and to the Content available via the Site is the property of EPG or its licensors, and is protected by U.S. and international copyright, trademark, patent, or other proprietary rights and laws. Except to the minimum extent otherwise expressly permitted under applicable law or this Agreement, no copying or other exploitation of Content from the Site is permitted without the express prior written permission of EPG or the applicable owner thereof. This applies to copyrighted Content regardless of whether or not a copyright notice appears on such materials, and applies to Trademarks, whether registered or unregistered, and regardless of whether or not a trademark notice appears on such materials.
(b) License. We grant you a nonexclusive, nontransferable, revocable, limited license to view, download, copy, and print Content retrieved from the Site only for your personal, non-commercial use. You may not remove or obscure any copyright notice, trademark notice, or other proprietary rights notice displayed on or in conjunction with the Content. Except to the minimum extent otherwise expressly permitted under applicable law, you may not use any Content available via the Site in any other manner or for any other purpose without the prior express written permission of EPG or its licensor, as applicable.
(c) Title. Title to any Content that you download or print is not transferred to you. You may own the medium on which the Content is recorded or printed, but we or our licensor retain all right, title, and interest in and to such Content, and all intellectual property rights therein. You acknowledge that you do not acquire any ownership rights in any Content by using the Site or by virtue of downloading, printing, modifying or using Content from the Site. All rights not expressly granted in this Agreement are expressly reserved to EPG or its licensors.
(d) Separately Licensed Content. In some instances, certain Content that you download from the Site is subject to a separate license agreement or other specific terms and conditions which will be provided at the time you download or install the Content. In those situations, such license agreement or other applicable terms and conditions will control in lieu of this Agreement.
3. User Forums, Postings, and User Generated Content. We may provide forums, message boards, chat rooms or other interactive areas on the Site (“User Forums”) to give users of the Site (“Users”) a forum to express their opinions and share their ideas, information, materials, and other user-generated Content (collectively “Submissions”)
(a) Product Submissions Prohibited. EPG does not accept unsolicited Submissions for motion pictures, television programs, web sites or other products or services. It is our intent to avoid the possibility of future misunderstandings when projects developed by or on behalf of EPG (whether internally or by third parties) might seem to others to be similar to their own creative ideas or materials. Therefore, please do not make any such unsolicited Submissions to EPG through this Site, including User Forums, by e-mail, text message or otherwise. However, if you decide to make any such unsolicited Submission, you hereby grant to EPG the right and license to your Submission as set forth in Section 3(b) below.
(b) Rights You Grant to Us. Whenever you Submit (as defined in Section 3(e) below) a Submission to a User Forum or some other aspect of the Site or directly to EPG (including by e-mail or text message) you: (1) grant to EPG and its affiliates an irrevocable worldwide, nonexclusive, perpetual, fully sub-licensable and assignable, royalty-free right and license to use, exploit, reproduce, modify, adapt, translate, incorporate in other works, and otherwise create derivative works from, publish, distribute, transmit, broadcast, perform, display, and otherwise exercise all rights in and to such Submission (including the right to use or not use your name, voice, likeness and other identifying information in connection therewith), via the Site or otherwise, in any form, media, or technology now known or later developed, without any compensation to you, and (2) consent to all relevant acts or omissions in relation to your moral rights in such Submission (if any) which may or might otherwise constitute a breach or infringement of those moral rights, and to the extent permitted by law waive all your moral rights in such Submission, even if such material is altered or changed in a manner not agreeable to you.
(c) No Responsibility. We are not responsible for, and we do not endorse, the Submissions posted in User Forums by Users of the Site. We specifically disclaim any responsibility or liability to any person or entity for any loss, damage, injury, claim, liability or other cause of any kind or nature or character based upon or resulting from any Submission.
(d) No Obligation to Prescreen. We do not have, and do not undertake, any obligation to prescreen, monitor, edit, or remove any Submission that is posted on any User Forum or is otherwise available through the Site. However, we retain the right (but not the obligation), in our sole discretion and for any reason, to prescreen, monitor, edit, refuse to accept, remove, or move any Submission submitted by any User to a User Forum. Since we may not prescreen Submissions, if your Submission contains offensive, indecent, or otherwise objectionable content, or infringes on the rights of any third parties, you may bear legal responsibility for others’ exposure to such objectionable or infringing content.
(f) Representations You Make to Us. You are solely responsible for all Submissions that you Submit to a User Forum or some other aspect of the Site or directly to EPG (including by e-mail). By doing so, you represent and warrant to EPG that each such Submission: (1) is not confidential and that you have all necessary permission to Submit such Submission; and (2) does not infringe upon, misappropriate or violate the rights of any third parties, including, without limitation, any intellectual property rights, rights of publicity or privacy, or any other proprietary rights.
(g) No Obligation to Use. You agree and understand that we are not obligated to post or use your Submissions Submitted through the Site or otherwise, and may alternatively choose to discard your Submissions without any obligation or liability whatsoever.
4. Acceptable Use. You may use the Site only for lawful purposes, and you agree that you shall at all times comply with all applicable local, state, national, and international laws, statutes, rules, regulations, ordinances and the like applicable to your use of the Site. In addition, while using the Site, you agree that you will not do any of the following:
• Inappropriate Submissions. Submit to or on the Site, anything that is or may be: (i) harmful, threatening, abusive, harassing, degrading, hateful, or intimidating; (ii) defamatory, libelous, or disparaging of any person or entity; (iii) false, fraudulent, or tortious; (iv) obscene, indecent, pornographic, vulgar, profane, or sexually explicit; (v) intended to promote (or have the effect of promoting) violence, racial hatred, terrorism or illegal acts; (vi) infringing, or in violation or misappropriation of, any patent, trademark, trade identity right, trade secret, publicity right, privacy right, copyright or any other intellectual property or any other rights of any third party; (vii) in violation of any other rights of any person or entity; (viii) violative of any law or regulation; or (ix) otherwise objectionable, in EPG’s sole discretion.
• Viruses; Malware. Submit any virus, worm, “Trojan Horse”, “easter egg”, “time bomb”, spyware, or any other computer code, file, or program that may or is intended to damage, hijack or otherwise interfere with the operation of the Site or any hardware, software, or telecommunications equipment or with any third party’s uninterrupted use and enjoyment of the Site.
• No Spam. Submit any advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” investment opportunities, or any other form of solicitation.
• Collecting Personal Information. Collect or harvest personally identifiable information about other users of the Site or “stalk” or otherwise harass other persons.
• Impersonation. Impersonate any person or entity; falsely state or otherwise misrepresent your affiliation with any person or entity, including EPG; forge headers or otherwise manipulate identifiers in order to disguise the origin of any Submissions to us or through the Site; or expressly state or imply that we endorse any statement you make.
• Security, Cracking & Hacking. Violate or attempt to violate the security of any portion of the Site, including but not limited to: (i) access Content not intended for you; (ii) log into a server or account which you are not authorized to access; (iii) attempt to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (iv) attempt to interfere with or disrupt the Site or the servers or networks that provide the Site, including without limitation, via means of submitting a virus to the Site, overloading, “flooding”, “mailbombing” or “crashing” the Site; or (v) restrict or inhibit any other user from accessing or using the Site, including, without limitation, by means of hacking or defacing any portion of the Site.
• Reverse Engineering. Modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Site.
• Data Mining, Scraping, Etc. Except for search engines presenting links to users searching for EPG and related entertainment content, use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” scrape, or in any way reproduce or circumvent the navigational structure or presentation of the Site or its contents, unless otherwise permitted by EPG in writing in advance.
If you register for any feature that requires a password and/or user name, you will either select your own password at the time of registration, or will receive an email notification from us with a randomly generated initial password. You may not use a user name (or email address) that is already being used by someone else; that may impersonate another person; that belongs to another person, without his or her prior consent; that violates the intellectual property or other rights of any person; that is vulgar or otherwise offensive; or that we reject for any other reason in our sole discretion.
If you register with the Site, you agree to accept responsibility for all activities that occur under your account or password. You are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer, cell phone (or other internet access device, as applicable) so that others may not access the password protected portion of the Site using your name, user name or password, in whole or in part. You agree to immediately notify us of any unauthorized use of your password or user name or any other breach of security. We shall not be liable for any loss or damage arising from your negligence or failure to comply with any of the foregoing obligations.
If you register with the Site, you agree to provide true, accurate, current, and complete information about yourself, and, as permitted, to maintain and update it continuously and promptly to keep it true, accurate, current and complete. You agree that if any information you provide, or if we have reasonable grounds to suspect that any information you provide, is false, inaccurate, outdated, or incomplete, we may terminate your registration.
We reserve the right to terminate registration and/or deny access to the entire Site or any portion of the Site to any person in our sole discretion for any reason or no reason at all.
6. Site Content and Performance.
(a) Accuracy of Content. While we strive to keep the Content that we post on the Site accurate, complete, and up-to-date, we cannot and do not guarantee, represent or warrant that any of the Content on this Site (whether posted by us, a User, or any other third party) is accurate, complete, timely or applicable to you, nor do we have any obligation or undertaking to update the Site.
(b) Links to Other Sites. The Site may provide links to other web sites and/or resources (including advertisements) that we do not maintain or are not under our control (“Third Party Web Sites”). We do not control any Third Party Web Sites linked to from the Site, and your dealings with such Third Party Web Sites are solely between you and such third parties. We are not responsible for, and we make no representations or warranties with respect to, the Content, products, services, personal information practices, ownership, or legality of any such linked Third Party Web Site unless expressly stated by us. Your use of such Third Party Web Sites is subject to the terms and conditions established by such third parties, and we encourage you to review their user terms and privacy policies before you use their services. Your access to and use of such Third Party Web Sites is solely at your own risk, and you agree that we will not be responsible or liable for any loss or damage of any sort that you may suffer as the result of your dealings with such Third Party Web Sites.
(c) Linking to the Site. If you link to this Site, you must adhere to these guidelines: (1) the link to this Site must not damage, dilute or tarnish the goodwill associated with any EPG names and/or intellectual property; (2) the link to this Site must not create the false appearance that your web site and/or organization is sponsored by, endorsed by, affiliated with, or associated with EPG; (3) you may not “frame” this Site or alter its Content in any other way; and (4) you may not link to this Site from a web site that is unlawful, abusive, indecent or obscene, that promotes violence or illegal acts, that contains expressions of racism, that is libelous, defamatory, scandalous, or inflammatory or is otherwise deemed inappropriate, as determined by EPG in its sole discretion.
7. Your Contact With Advertisers or Other Third Parties. Your interaction with suppliers, advertisers, or other third parties that may appear on or be accessible through the Site are solely between you and such third party. This may include, but is not limited to, your participation in promotions, disclosure of information, use of software or other third party materials, reliance upon advertising claims, the payment for and delivery of goods or services, and any terms, conditions, warranties, or representations associated with such interactions. EPG does not make any representations or warranties with respect to any products or services that may be obtained from such third parties, and you agree that EPG will have no obligations or liability with respect to any loss or damage of any kind incurred as a result of your contact with such third party.
8. Sweepstakes, Contests, and Promotions. Any sweepstakes, contests or other promotions (“Promotions”) that may be offered via the Site will be governed by a separate set of rules that, in addition to describing such Promotion, may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the Promotion, use of Submissions you Submit, and disclosures about how your personal information may be used. It is your responsibility to read such rules to determine whether or not you want to and are eligible to participate, register and/or enter, and to determine the applicable terms and conditions of the Promotion. By participating in any Promotion, you will become subject to those official rules, and you agree to comply with abide by such rules and the decisions of the sponsor(s) identified therein, which shall be final and binding in all respects.
9. Notice and Procedure for Making Complaints Regarding Content. EPG respects the intellectual property of others and we ask our Users to do the same. EPG has a policy of terminating the accounts of Users who (in EPG’s reasonable discretion) are repeat infringers. In accordance with the Digital Millennium Copyright Act, EPG has designated a Copyright Agent to receive notice of claims of copyright infringement with respect to Content on the Site. To notify EPG of Content on the Site that you believe infringes your rights, please provide the following information to the EPG Copyright Agent 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 or, if multiple copyrighted works at the Site are covered by a single notification, a representative list of such works at the Site; (c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit EPG to locate the material, such as the URL or a reasonable description of where the alleged infringing material is located; (d) 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; (e) A statement by you, made under penalty of perjury, that the information in the notification is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (f) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest. EPG’s Copyright Agent for notice of claims of copyright or other intellectual property infringement can be reached as follows: By e-mail: email@example.com (with subject “Copyright Complaints”); By phone: (310) 309-8400 (ask for General Counsel’s Office); By postal mail: Epic Pictures Group, Inc. 1630 Stewart Street, Suite 120 Santa Monica, California 90404 Attn: General Counsel — DMCA Agent (with subject “Copyright Complaints”)
10. DISCLAIMER OF WARRANTIES WITH RESPECT TO SITE. THE SITE (INCLUDING, WIHTOUT LIMITATION, ALL CONTENT, LINKS, MESSAGES, PRODUCTS, SERVICES, DOWNLOADS AND OTHER MATERIALS CONTAINED ON AND/OR OBTAINED THROUGH THE SITE) IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EPG AND ITS AFFILIATES AND THEIR RESPECTIVE MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND OTHER REPRESENTATIVES (COLLECTIVELY THE “EPG PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND UNDERTAKINGS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, THE EPG PARTIES DO NOT WARRANT THAT THE SITE WILL BE AVAILABLE OR THAT YOUR USE OF THE SITE WILL BE TIMELY, UNINTERRUPTED, ERROR-FREE, OR SECURE, THAT DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SITE (OR THE SERVER THAT MAKES IT AVAILABLE) IS FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL INTERNET CONNECTIONS, HARDWARE AND SOFTWARE NEEDED TO ACCESS AND USE THE SITE, AND FOR PAYING ALL CHARGES RELATED THERETO. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND YOUR RELIANCE THEREON. NO OPINION, ADVICE, OR STATEMENT OF ANY EPG PARTY, WHETHER MADE ON THE SITE OR OTHERWISE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
FURTHER, THE EPG PARTIES DO NOT WARRANT THAT YOUR ACTIVITIES OR USE OF THE SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, THE EPG PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE SITE, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN THE JURISDICTION WHERE YOU ACCESS OR USE THE SITE.
THE EPG PARTIES WILL NOT BE LIABLE FOR YOUR USE OF THE SITE, INCLUDING, WITHOUT LIMITATION, THE CONTENT OR ERRORS CONTAINED ON THE SITE.
APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW APPLIES TO THIS AGREEMENT.
11. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, IN NO EVENT SHALL THE EPG PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, ECONOMIC, EXEMPLARY OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH OR RELATING TO YOUR USE OF THIS SITE OR WITH THE DELAY OR INABILITY TO USE THIS SITE, OR FOR ANY INFORMATION, CONTENT, PRODUCTS, AND/OR SERVICES OBTAINED THROUGH THIS SITE, OR OTHERWISE ARISING OUT OF THE USE OF THIS SITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF THE EPG PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
THE EPG PARTIES ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER MODEM, CELL PHONE, MOBILE DEVICE, COMPUTER SOFTWARE, 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.
YOUR ACCESS TO AND USE OF THIS SITE IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE SITE OR ANY OF THE CONTENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SITE OR THE CONTENT.
YOU RECOGNIZE AND CONFIRM THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF OUR ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY SITE, MOTION PICTURE OR OTHER AUDIO/VISUAL CONTENT OWNED OR CONTROLLED BY US OR OUR LICENSORS, OR ANY OTHER EQUITABLE REMEDY, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY SITE, MOTION PICTURE OR OTHER AUDIO/VISUAL CONTENT OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.
BY ACCESSING THIS SITE, 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 OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
12. Indemnification You agree to indemnify, defend and hold the EPG Parties, harmless from and against any and all claims, demands, damages, losses, investigations, liabilities, judgments, settlements, costs (including attorneys’ fees), or other expenses that directly or indirectly arise from or are otherwise directly or indirectly connected to: (a) your breach or alleged breach of this Agreement; (b) your use of the Site or activities in connection with the Site; (c) your Submissions; or (d) your violation of any law, rule or regulation. You will cooperate as fully required by the EPG Parties in the defense of any claim. EPG reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of EPG.
13. Compliance. You understand and agree that we will determine your compliance with this Agreement in our sole discretion. Any violation of this Agreement may be referred to law enforcement authorities.
14. Miscellaneous Terms
(a) Modification or Suspension of the Site. We reserve the right, at any time and without notice to you, to modify, add, suspend, or discontinue, temporarily or permanently, the entire Site or any portion of the Site, in our sole discretion. This includes the right to modify, discontinue or remove any Content, postings, links, pages, services, or other materials at any time and for any reason. You agree that we shall not be liable to you for any modification, general suspension or discontinuance of any aspect of the Site. We may, in our sole discretion, refuse or restrict anyone from access to the entire Site or any portion of the Site at any time
(b) Jurisdiction / Location. Unless otherwise specified, the Site and its Content are presented solely for the purpose of promoting the entertainment, information, and community resources and services available in, and other uses in, the United States. We control and operate the Site from within the State of California, United States of America, and will specifically not be governed by the United Nations Conventions on Contracts for the International Sale of Goods, if otherwise applicable. We make no representation or warranty that the Site, or any Content or other materials available on the Site, are appropriate or available for use in other locations. Those who choose to access the Site from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
(c) Severability of Agreement. If any provision of this Agreement is found by a court or other binding authority to be invalid, you agree that every attempt shall be made to give effect to the parties’ intentions as reflected in that provision, and the remaining provisions contained in this Agreement shall continue in full force and effect.
(d) Applicable Law. This Agreement and the resolution of any dispute related to this Agreement or the Site shall be governed by and construed in accordance with the laws of the State of California and the United States of America without giving effect to any principles of conflicts of law. Any legal action or proceeding between EPG and you related to this Agreement or otherwise arising out of usage of this Site shall be brought exclusively in a federal or state court of competent jurisdiction sitting in or having jurisdiction over the County of Los Angeles, State of California, and you hereby consent and submit to the exclusive personal jurisdiction and venue of such courts.