THESE TERMS OF USE CONTAIN AN ARBITRATION CLAUSE AND A CLASS ACTION WAIVER CLAUSE. BY USING THIS SITE, YOU ARE ACCEPTING THE TERMS OF USE AND, WHILE YOU MAY STILL PURSUE CLAIMS AGAINST US, WITH A FEW EXCEPTIONS (FOR EXAMPLE, IF YOU SUBMIT A VALID ARBITRATION/CLASS ACTION WAIVER OPT-OUT NOTICE AS DESCRIBED IN SECTION 17.5 BELOW> ), YOU ARE AGREEING THAT YOU MUST PURSUE YOUR CLAIMS IN A BINDING ARBITRATION PROCEEDING (AND NOT IN A COURT) AND ONLY ON AN INDIVIDUAL (AND NOT A CLASS ACTION) BASIS. SEE OUR FAQS FOR MORE INFORMATION ON THE ARBITRATION AND CLASS ACTION WAIVER CLAUSES. PLEASE READ THESE TERMS OF USE CAREFULLY TO UNDERSTAND YOUR RIGHTS AND RESPONSIBILITIES.
This is the official Terms of Use Agreement ("Agreement" or "Terms of Use") for the website, application, or other interactive service that includes an authorized link to this Agreement (all such websites, applications and other interactive services are referred to collectively as the "Site").
This Site is fully controlled and operated by Viacom International Inc., which shall be referred to as "VII," "we," "us" or "our".
By accessing and using this Site, you are hereby agreeing to be legally bound by the Terms of Use of VII. We reserve the right, at our sole discretion, to change, modify, or otherwise alter these Terms of Use at any time. Such changes and/or modifications shall become effective immediately upon the posting thereof. Please review the Terms of Use periodically. Your continued use of the Site following the posting of changes and/or modifications will constitute your acceptance of the revised Terms of Use.
If you do not agree with all of the following Terms of Use, please do not use this Site.
1. OWNERSHIP OF INTELLECTUAL PROPERTY
All Site software, design, text, images, photographs, illustrations, audio clips, video clips, artwork, graphic material, and other copyrightable or otherwise legally protectable elements of the Site, and the selection, sequence, look and feel, and arrangements thereof, and trademarks, service marks, and trade names (individually and collectively, the "Material") are the property of VII and/or its parents, subsidiaries, affiliates, assigns, licensors, or other respective owners and are protected, without limitation, pursuant to U.S. and foreign copyright and trademark laws. Except as otherwise specifically noted on this Site or in connection with any particular Material, VII hereby grants you a personal, non-exclusive, non-assignable, and non-transferable license to use and display, for your noncommercial and personal use only, one copy of any Material and/or software that you may print or download from this Site, including without limitation, any files, codes, audio, or images incorporated in or generated by the software, provided that you maintain (without alteration) all copyright and other notices contained in such Material and software. You further agree that where specifically noted on this Site or in connection with any Material or software, you will use such Material or software, as the case may be, in accordance with such specific terms and instructions. You acknowledge and agree that you may not sublicense, sell, assign, lease, or otherwise transfer this license or any Material and that no title to the Material has been or will be transferred to you from VII or anyone else. You agree not to reproduce, modify, create derivative works from, display, frame, perform, publish, distribute, disseminate, transmit, broadcast, or circulate any Material to any third party (including, without limitation, the display and distribution of the Material via a third party website) without the express prior written consent of VII. Use of VII's and/or its licensors' Material is only permitted with their express written permission. You further agree that you will not disassemble, decompile, reverse engineer, or otherwise modify the Material. You may not use the Material in an attempt to, or in conjunction with, any device, program, or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. Use of spiders, robots, and similar data gathering and extraction tools is expressly prohibited. All rights not expressly granted herein are reserved. Any unauthorized or prohibited use may subject the offender to civil liability and criminal prosecution under applicable federal and state laws. We require users to respect our copyrights and other intellectual property rights.
2. REGISTRATION
If we offer user registration on the Site, to register as a member of the Site, there may be a few options for you to register (which are further described in our Privacy Policy), including Site registration and/or third party social platform sign-on (as described in our Privacy Policy). In each case, you may be required to either use a pre-existing user name and password (together, your "User ID") or select a new User ID. Additional information may be requested and/or required during the registration process. After you have registered for the Site, we may recognize you when you visit the same website, application, or other interactive service across devices (such as when you login) and permit you to login on such website, application, or other interactive service. Also note that, for your online privacy and security, if other people have access to your device, we recommend you log out of your account after visiting any of the websites, applications, or other interactive services that are associated with your account.
We may also provide you with access to certain features or functions that we may offer on the Site, such as the option to participate in newsletters, commenting, shopping, and member profile pages. To sign up for or participate in these features or functions, you may be required to provide us with certain information about you in order for us to personalize and/or allow you to use such features and functions. For example, if we offer e-Commerce services on this Site, if you order any of our goods or services through such services, in addition to your name and contact information, we (or our operational service providers that we use to provide the e-Commerce service) may also collect and/or maintain your billing address, shipping address, selections, credit card or other payment instrument information, order number, and information about your computer's internet address and website, which may have referred or directed you to the Site (e.g., the referring URL).
The Site may also provide features, functions, and/or services powered by a third party social media network or other third party. For example, information may be disclosed to a third party through plug-ins offered by such third party (such as TV Everywhere authentication, Likes, Shares or commenting). Please take care when using any third party service and familiarize yourself with the third party's policies and agreements, if any, that govern such use.
To learn how we may use the information we collect during the registration process, please read our Privacy Policy.
3. TEXT MESSAGING MARKETING AND PROMOTIONS
Consistent with local law, appropriately aged visitors may have the opportunity to register for special promotions, services, news, programming and information delivered via text messaging (collectively, "Text Services") on wireless devices such as mobile phones and, if we do so, we will obtain appropriate consent for any Text Services in accordance with the nature of the Text Service and applicable laws, rules, and regulations. The information requested or transmitted as part of the registration process includes your wireless telephone number and may include other information, such as your preferences regarding goods or services, choices of music or artists, or other similar survey information and/or an email address. Depending on the Text Service and the information collected, you may also be required to confirm your agreement to this Agreement (including, but not limited to, the Privacy Policy and Rules).
If you register for the Text Services, you acknowledge, understand, and agree that you may be charged by your wireless carrier for the ability to send or receive all such messages. The standard messaging rates of your wireless carrier shall apply to all Text Services, unless noted otherwise. Under no circumstances shall VII be responsible for any wireless service charges incurred by you or by a person that has access to your wireless device, telephone number, or email address. If you change or deactivate your wireless telephone number, you agree to notify us when your wireless telephone number is no longer associated with you and identify such wireless phone number to ensure that future messages directed to you are not sent to the person to whom your old number has been or will be assigned.
You understand, acknowledge and agree that we may, at our sole discretion and without liability to you or any user, terminate our offer of any specific Text Service or all Text Services at any time without advance notice. VII may provide notice of terminations or changes in services on this Site.
4. CLOSED CAPTIONING OF INTERNET PROTOCOL-DELIVERED VIDEO PROGRAMMING
In accordance with the Twenty-First Century Communications and Video Accessibility Act of 2010, all video programming distributors that make video programming available directly to end users through a distribution method that uses the internet protocol are required to provide contact information to end users for the receipt and handling of written closed captioning complaints.
If you have a complaint regarding the Site's compliance with the closed captioning requirements of the Twenty-First Century Communications and Video Accessibility Act of 2010, please see http://media.viacom.com/accessibility/.
5. COMMENTS, MESSAGE BOARDS, AND OTHER POSTINGS
To the extent that portions of this Site provide users an opportunity to submit, post, and/or exchange information, ideas, opinions, photographs, images, video, creative works, or any other material (the "Postings"), and/or their online user names (the "User Names"), please be advised that Postings do not necessarily reflect the views of VII. In no event shall VII assume or have any responsibility or liability for any Postings or User Names or for any claims, damages, or losses resulting from their use and/or appearance on this Site. You hereby represent and warrant that you have all necessary rights in and to all Postings and User Names you provide and all information they contain and that such Postings and User Names shall not infringe any proprietary or other rights of third parties or contain any libelous, tortious, or otherwise unlawful information. If your Posting incorporates the name, voice, likeness, and/or image of any individual, you represent and warrant that you have the right to grant VII permission to use such name, voice, likeness, and/or image of such individual appearing in the Posting in all media throughout the world in perpetuity.
By submitting a Posting, you hereby authorize VII to use, and authorize others to use, your Postings and User Names in whole or in part, on a royalty-free basis, throughout the universe in perpetuity in any and all media, now known or hereafter devised, alone, or together or as part of other material of any kind or nature, including without limitation commercial use on and advertising and promotion of the Site. You hereby waive and relinquish any claim based upon "moral rights" (as that term is commonly understood) or any rights of attribution or integrity in connection with content submitted to us hereunder. This license grant, and the above waiver of any applicable moral rights, survives any termination of this license. Without limiting the foregoing, VII will have the right to use and change the Postings in any manner, either with or without the User Name, that VII may determine. Notwithstanding the foregoing, VII will have no obligation to use the Postings or the User Names. Please be advised that in no event shall VII assume or have any responsibility or liability for the manner in which the Posting is exploited or for any claim, damages, or losses resulting from their use and/or appearance on VII, affiliated television program services, or elsewhere. VII does not allow Postings which contain:
The comments, activities, and message boards may be used for noncommercial purposes only. Users may not post any information intended to promote and/or generate revenue for any third party business activity. Although VII periodically monitors the content posted on this Site, we cannot be responsible for the views or opinions expressed by third parties. Nonetheless, VII will make every effort to ensure that the comments, activities and message boards best serve the interests of all users and, therefore, VII reserves the right to refuse to post, edit, or delete comments or messages that violate the above-referenced rules, as well as revoke the privileges of users who do not comply with such rules.
VII does not represent or endorse the accuracy or reliability of any advice, opinion, statement, suggestion, or other information offered by third parties that is displayed or distributed throughout our website. Users acknowledge that any reliance upon any such advice, opinion, statement, suggestion, or information shall be at your sole risk.
If you believe that any content on the Site (including, without limitation, Postings) violates any of the terms of this Agreement (except for any notices covered by the Copyright Compliance Policy), please email copyright@mtvn.com to send us a message about it (please refer to our Copyright Compliance Policy currently located at https://www.nick.com/legal/ga6rl4/copyright-compliance for any notices covered by the Copyright Compliance Policy). We cannot guarantee that we will respond to your message and we reserve the right to take or refrain from taking any or all steps available to us once we receive any such message.
Users of this Site who are California residents and are under 18 years of age may request and obtain removal of Postings on this Site that they themselves post by emailing us at privacy@viacom.com. All requests must be labeled "California Removal Request" on the email subject line. All requests must provide a description of the content or information in your Posting that you want removed and information reasonably sufficient to permit us to locate the material and include the name and URL (if applicable) of the website, application, or other interactive service. We shall not accept requests via postal mail, telephone, or facsimile. We are not responsible for notices that are not labeled or sent properly, or we may not be able to respond if you do not provide complete information.
Please also note that any requests for removal do not ensure complete or comprehensive removal of the content or information from this Site. For example, content that you have posted may be republished or reposted by another user or third party. See also Section V(A) of our Privacy Policy regarding how you may delete certain information.
6. YOUR RESPONSIBILITIES
You may use this Site only for lawful, non-commercial purposes. You may not submit or transmit through this Site (whether via message boards, comments, or otherwise) any material, or otherwise engage in any conduct that:
VII discourages the use of profanity or obscenities in Postings and any Postings containing prohibited language will not be posted on the Site. For purposes of clarity, masked vulgarity, obscenity, or profanity (e.g., "f*cK") is deemed to be equivalent to including the actual objectionable word, phrase, or symbol in your Posting or otherwise on the Site. VII reserves the right to delete any such material from the Site and to cooperate fully with any investigation of any person or persons who violate the Terms of Use. You may not use this Site in any manner that could damage, disable, overburden, or impair our servers or networks. You may not attempt to gain unauthorized access to any services, user accounts, computer systems, or networks through hacking, password mining, or any other means. We may take any legal and technical remedies to prevent the violation of this provision and to enforce these Terms of Use.
7. CONTESTS, SWEEPSTAKES, ELECTRONIC POSTCARDS, AND OTHER ACTIVITIES
From time to time, VII or its suppliers and advertisers may conduct promotions on or through the Site, including without limitation auctions, contests, sweepstakes, and electronic postcards ("Promotions"). Each such Promotion may have additional terms, conditions, and/or rules, which will be posted or otherwise made available to you and, for purposes of each Promotion, will be deemed incorporated into and form a part of these Terms of Use (the "Rules"). If any conflict arises between these Terms of Use and the Rules, the Rules shall govern for purposes of your participation or involvement in the Promotion to which the Rules relate.
8. SHOPPING
If VII offers certain e-Commerce to enable you to purchase goods and services through our Site (the "E-Commerce Service" or "Shop"), additional terms (such as those available on or through the Shop page) apply to your use and access of the E-Commerce Service, which are incorporated herein by reference. The Shop on certain Sites utilizes third party operational service providers. All purchases made through these third party operational service providers are subject to their respective terms and conditions of use. VII is not responsible and has no liability whatsoever for goods or services you obtain through our third party operational service providers or other web sites or web pages. VII encourages you to make whatever investigation you feel necessary or appropriate before proceeding with any online transaction with any of these third parties. VII 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 such third party, and you irrevocably waive any claim against us with respect to such sites. VII is not responsible for assisting you in correcting any problem you may experience with goods and services purchased through a third party operational service provider, even if the goods or services were shown on one of the Site's web pages. VII cannot ensure that you will be satisfied with any products or services that you purchase from any third party operational service provider as those are owned and operated by independent entities. Customer service issues related to goods or services should be directed to the relevant third party operational service provider.
VII does not guarantee that product descriptions or other content will be accurate, complete, reliable, current, or error-free. Descriptions and images of, and references to, products on the Site do not imply our or VII's endorsement of such products. Furthermore, customer reviews seen in our Shop are provided by the third party operational service provider's users and are subject to such third party operational service provider's own community guidelines. VII and our third party operational service providers reserve the right, with or without prior notice, to change product descriptions, images, and references; to limit the available quantity of any product; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code, or other similar promotions; to bar any user from conducting any or all transactions; and/or to refuse to provide any user with any product. Price and availability of any product are subject to change without notice.
9. SUBSCRIPTION CANCELLATION AND REFUNDS
If you purchase a subscription service through a Site controlled or operated by VII (the "Direct Subscription Service"), the terms to which you agree when you subscribe through the Direct Subscription Service Site shall apply to your subscription, which terms are incorporated herein by reference. In the event of any inconsistency or conflict between the terms on the Direct Subscription Service Site and these Terms of Use, the terms of the Direct Subscription Service Site shall govern and control. If you choose to cancel a Direct Subscription Service, you can continue to use the features of your Direct Subscription Service following cancellation until the end of your applicable billing period. You will not be charged for the Direct Subscription Service again unless you reactivate. Payments for Direct Subscription Services are non-refundable and there are no refunds for partially used subscription periods. VII may choose to provide a refund, discount, or other consideration ("Credits") to some or all of our consumers at any time and for any reason. The amount and form of such Credits and the decision to provide them are at VII’s sole discretion, and the provision of Credits in one instance does not entitle you or any other consumers to receive Credits in the future under any circumstances.
For subscriptions services that are not purchased directly through a Site controlled and operated by VII, please consult the terms and conditions relating to your subscription for the terms of refund and cancellation.
10. DISCLAIMER AND LIMITATION OF LIABILITY
THIS SITE, AND ALL MATERIALS, GOODS AND SERVICES, AND POSTINGS ARE MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) OR ANY GUARANTY OR ASSURANCE THE SITE WILL BE AVAILABLE FOR USE, OR THAT ALL FEATURES, FUNCTIONS, OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, VII IS NOT RESPONSIBLE OR LIABLE FOR ANY MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS, OR OMISSIONS RELATING TO YOUR USE OF THE SITE. YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT TO THE FULLEST EXTENT PERMISSIBLE BY LAW, YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY, AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF THE SITE, INCLUDING WITHOUT LIMITATION, POSTINGS AND MATTERS ASSOCIATED WITH YOUR USE OF THE SITE. YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT TO THE FULLEST EXTENT PERMISSIBLE BY LAW, YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY, AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF THE SITE, INCLUDING WITHOUT LIMITATION, POSTINGS AND MATERIALS ASSOCIATED WITH YOUR USE OF THE SITE.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THIS SITE, VII, ITS PARENTS, SUBSIDIARIES, AND AFFILIATES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATIONAL SERVICE PROVIDERS, ADVERTISERS, OR SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND, DIRECT OR INDIRECT, RELATING TO THE SITE OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, HOWEVER ARISING OR CAUSED, WHETHER FORESEEABLE OR NOT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OR CHARACTERIZATION OF THE CLAIM AND EVEN IF ADVISED OF THE POSSIBILITY OF DAMAGES. WITHOUT LIMITING THE FOREGOING, THE SITE IS MAINTAINED ON SERVERS IN THE UNITED STATES AND VII DISCLAIMS ALL LIABILITY FOR ANY USE NOT SPECIFICALLY AUTHORIZED OR THAT IS IN VIOLATION OF THIS AGREEMENT OR THE LAWS OR REGULATIONS THAT MAY APPLY TO YOU IN ANY JURISDICTION OR COUNTRY.
NOTWITHSTANDING ANY CLAIM THAT A SOLE OR EXCLUSIVE REMEDY WHICH IS PROVIDED IN THIS AGREEMENT MAY OR DOES FAIL OF ITS ESSENTIAL PURPOSE, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY LOSS OR DAMAGE SHALL BE LIMITED TO HAVING VII, UPON WRITTEN NOTICE FROM YOU TO US, ATTEMPT TO REPAIR, CORRECT, OR REPLACE ANY DEFICIENT GOODS OR SERVICES UNDER THIS AGREEMENT AND, IF REPAIR, CORRECTION, OR REPLACEMENT IS NOT REASONABLY COMMERCIALLY PRACTICABLE FOR VII, TO REFUND ANY MONIES ACTUALLY PAID BY YOU TO VII FOR THE GOODS OR SERVICES INVOLVED AND TO TERMINATE AND DISCONTINUE YOUR USE OF THE SITE. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THE CAPACITY OF THE SITE, IN THE AGGREGATE AND FOR EACH USER, IS LIMITED. CONSEQUENTLY SOME MESSAGES AND TRANSMISSIONS MAY NOT BE PROCESSED IN A TIMELY FASHION OR AT ALL, AND SOME FEATURES OR FUNCTIONS MAY BE RESTRICTED OR DELAYED OR BECOME COMPLETELY INOPERABLE. AS A RESULT, YOU ACKNOWLEDGE AND AGREE THAT VII ASSUMES NO LIABILITY, RESPONSIBILITY, OR OBLIGATION TO TRANSMIT, PROCESS, STORE, RECEIVE, OR DELIVER TRANSACTIONS OR POSTINGS, OR FOR ANY FAILURE OR DELAY ASSOCIATED WITH ANY POSTINGS AND YOU ARE HEREBY EXPRESSLY ADVISED NOT TO RELY UPON THE TIMELINESS OR PERFORMANCE OF THE SITE FOR ANY TRANSACTIONS OR POSTINGS. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE EXCLUSIONS AND LIMITATIONS DESCRIBED IN THIS AGREEMENT MAY NOT APPLY TO YOU.
11. THIRD PARTY SERVICE PROVIDERS
The appearance, availability, or your use of URLs or hyperlinks referenced or included anywhere on the Site or any other form of link or re-direction of your connection to, with or through the Site, does not constitute an endorsement by, nor does it incur any obligation, responsibility, or liability on the part of VII, any of its successors and assigns, and any of its officers, directors, employees, agents, representatives, licensors, advertisers, suppliers, and operational service providers. VII does not verify, endorse, or have any responsibility for any such third party sites, their business practices (including their privacy policies), or any goods or services associated with or obtained in connection with any such site, even if VII's logos or sponsorship identification is on the third party site as part of a co-branding or promotional arrangement. If any third party site obtains or collects personal information or other information from you, in no event shall we assume or have any responsibility or liability. Please read our Privacy Policy, which describes how we collect and use your personal information and other information and certain of our relationships.
Your correspondence or business dealings with, or participation in promotions of, third party service providers and advertisers found on or through this Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party service provider or advertiser, as the case may be. You agree that, to the fullest extent permissible pursuant to applicable law, VII shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third party service providers and advertisers on this Site.
12. ADS AND MALWARE
VII takes great care and pride in creating this Site. We are always on the lookout for technical glitches that affect how the Site works. When we find them on our end, we will fix them. Unfortunately, your device may cause some glitches that affect how you see our Site and that is beyond our control.
If you experience any unusual behavior, content, or ads on the Site, it may be the result of Malware on your computer. Malware - short for “MALicious software”- is a term used to broadly classify a form of software, which is installed in a computer system with malicious intentions, usually without the owner's knowledge or permission. Malware includes computer viruses, key loggers, malicious active content, rogue programs, and dialers, among others. While we continuously work closely with our partners to ensure that everything on the Site is working properly, sometimes Malware programs on your device may interfere with your experience on our Site and on other sites that you visit.
We suggest that you take actions (such as installing reputable third party antivirus software), which may help to clean your device and which could monitor or prevent future installations of Malware.
Please note that we cannot be responsible for the effects of any third-party software including Malware on your device. Please make sure to carefully read the Help or Customer Support areas of any software download site. If you do discover any Malware on your device, we also suggest you speak with a qualified technician for your device.
If, after taking the above actions, you are still experiencing any problems, please feel free to contact us at support@nick.com.
13. INDEMNIFICATION
You agree to indemnify, defend, and hold VII, its parents, subsidiaries, and affiliates, and any of their successors and assigns, and any of their respective officers, directors, employees, agents, representatives, licensors, advertisers, suppliers, and operational service providers harmless from and against any and all claims, actions, losses, expenses, damages, and costs (including reasonable attorneys' fees), resulting from any alleged or actual breach or violation of these Terms of Use by you. VII reserves the right to assume, at its sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with VII in the defense of any such claim, action, settlement, or compromise negotiations, as requested by VII.
14. TERMINATION OR SUSPENSION OF ACCESS; MODIFICATION TO SITE
VII reserves the right to terminate, suspend, or otherwise restrict your use of and access to this Site, or any portion hereof, with or without notice at any time for any reason whatsoever, with or without cause, including, but not limited to, your violation of these Terms of Use or any inappropriate or unlawful behavior on your part. In addition, VII reserves the right to modify or discontinue this Site or any portion hereof at any time with or without notice. The Site shall not be liable to you or any third party for any such termination, suspension, restriction, modification or discontinuance.
15. PRIVACY POLICY
Certain information we may collect about you is subject to our Privacy Policy. Please review our Privacy Policy, which is incorporated herein by reference, for disclosures relating to our collection and use of such information.
16. ELECTRONIC DELIVERY POLICY
By using this Site, you agree that we may provide to you required notices, agreements, and other information concerning the Site electronically by posting on the home page of this Site or on the relevant web page.
17. RESOLUTION OF DISPUTES: BINDING ARBITRATION; NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS
See our FAQs at http://btg.mtvnservices.com/legal/FAQs/ for more information.
1. Binding Arbitration and Exclusions from Arbitration. EXCEPT AS PROVIDED BELOW OR UNLESS YOU SUBMIT A VALID ARBITRATION/CLASS ACTION WAIVER OPT-OUT NOTICE (AS DESCRIBED IN SUB-SECTION 5 BELOW), ANY AND ALL CLAIMS BETWEEN YOU AND VII WILL BE RESOLVED IN BINDING ARBITRATION RATHER THAN IN COURT. You and VII agree to submit to individual arbitration the resolution of any and all Claims by or between you and/or VII, except that you and VII agree that the following will not be subject to the mandatory arbitration provisions in this Section 17(1): (A) any Claim filed by you or VII with respect to any violation, enforcement or validity of patent, trademark, trade dress, service mark, copyright and/or trade secret rights of you, VII, or any third party, including, but not limited to, Claims related to content that you upload to or share on the Site and/or (B) you or VII may seek a preliminary injunction, restraining order or other provisional equitable relief in any court as provided in "GOVERNING LAW, ARBITRATION LOCATION, JURISDICTION, VENUE, JURISDICTION AND JURY TRIAL WAIVER" below in connection with any Claim whereby you or VII, as applicable, may suffer immediate and irreparable harm for which money damages may be inadequate and impossible to calculate (including, but not limited to, a Claim under Section 17 (1)(A)), where such Claim under this Section 17(1)(B) will not be subject to the informal dispute resolution procedures described in Section 17(2) below; provided, however, that, subsequent to obtaining such preliminary injunction, restraining order or other provisional equitable relief, the Claim will then be submitted to arbitration in accordance with this Section of the Agreement. You and VII agree that this Agreement affects interstate commerce, and that the enforceability of this Section of the Agreement will be governed by, construed, and enforced, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1-9 ("FAA"). Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. There is no judge or jury in arbitration, discovery is more limited than in court, there are no class or representative proceedings, and court review of an arbitration decision is limited. An arbitrator must follow this Agreement and can award on an individual basis the same damages and relief as a court (including, but not limited to, injunctive and declaratory relief, statutory damages, and attorneys’ fees). "Claim(s)" means any dispute, claim or controversy by or between you and/or VII relating to the Site and/or this Agreement (including, but not limited to, this Site’s Privacy Policy and any additional terms that govern certain products and/or services which are presented in conjunction with those products and/or services, Rules, regulations, procedures and policies which we refer to in this Agreement), as may be modified from time-to-time, and the subject matter hereof, including, but not limited to, any contract, tort, statutory, or equity claims.
2. Informal Dispute Resolution. Except with respect to Claims described in Section 17 (1)(B) above, before either you or VII pursue or participate in any Claim against the other party in arbitration or court proceedings, you or VII must notify the other party of the Claim in writing at least 60 days in advance of initiating the arbitration or court proceeding in order to provide a reasonable opportunity to resolve the Claim. You may send a written notice of your Claim to VII at 1515 Broadway, New York, New York 10036, Attention: ViacomCBS, General Counsel. VII may send written or electronic notice of its Claim to your email address, VII account or any physical or other address VII has for you. The notice must describe the Claim in reasonable detail and set forth the relief requested so that the other party has an opportunity to adequately address the Claim. Except with respect to Claims described in Section 17(1)(B) above, you and VII agree to negotiate in good faith with each other to try to informally resolve the Claim and, if you and VII do not reach an informal resolution of the Claim within 60 days, then the Claim may be submitted to binding arbitration as set forth in this Section of the Agreement or court as permitted by Section 17(1) above.
3. Arbitration Proceedings and Costs. Any arbitration will be administered by the American Arbitration Association ("AAA") pursuant to its Consumer Arbitration Rules (the "AAA Rules"), as modified by this Agreement. The AAA Rules, and other information about the AAA, are available at the AAA's website at www.adr.org. A form for initiating arbitration proceedings is available on the AAA's website (see "Demand for Arbitration, Consumer Arbitration Rules", under Rules and Forms, Consumer Forms, at https://www.adr.org, but contact the AAA if you have issues locating the form) and arbitration proceedings shall be initiated in the location described in "GOVERNING LAW, ARBITRATION LOCATION, JURISDICTION, VENUE, JURISDICTION AND JURY TRIAL WAIVER" below. As required by the AAA Rules, if you initiate the arbitration proceedings, you must send the original copy of the completed form to VII, which should be sent to VII at the following address: 1515 Broadway, New York, New York 10036, Attention: ViacomCBS, General Counsel. If your Claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the AAA Rules. In all cases, you and VII shall exchange documents and other information that you or VII intend to use in the arbitration.
Upon filing of an arbitration demand for Claims up to $75,000, VII will reimburse you for all necessary filing, administration and arbitrator fees paid by you to the AAA or, if you wish VII to pay such fees directly to the AAA, you must request payment of such fees by VII by mail to the AAA along with your form initiating arbitration and VII will make arrangements to pay such fees directly to the AAA. In the event the arbitrator determines that the Claim(s) you assert in the arbitration are frivolous or vexatious, you agree to reimburse VII for all fees associated with the arbitration paid by VII on your behalf. You agree that VII shall have no obligation to pay any other fees except as determined by the arbitrator.
For Claims that total more than $75,000, the AAA Rules will govern payment of filing, administration and arbitrator fees to the maximum extent permitted by law. The decision of the arbitrator will be binding and conclusive on all parties, and judgment to enforce the decision may be entered by any court of competent jurisdiction.
4. Class Action Waiver. UNLESS YOU SUBMIT A VALID ARBITRATION/CLASS ACTION WAIVER OPT-OUT NOTICE (AS DESCRIBED IN SECTION 17(5)), YOU AND VII AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WHETHER IN ARBITRATION OR IN COURT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. You and VII expressly agree that any Claim is personal to you and VII, shall only be resolved by an individual arbitration (or individual court proceedings with respect to Claims excluded from mandatory arbitration as described in Section 17(1) of this Agreement), and shall in no event be brought as a class arbitration, a class action, or any other representative proceeding. The arbitrator (or court if the Claim is excluded from mandatory arbitration as described in Section 17(1) of this Agreement) may only conduct an individual arbitration (or court action if the Claim is excluded from mandatory arbitration as described in Section 17(1) of this Agreement), and may not consolidate more than one person's claims and may not preside over any form of representative or class proceeding. If a court or arbitrator determines that this class action waiver is unenforceable in an action between you and VII, then this Agreement to arbitrate will be unenforceable. Neither you nor VII consent to class arbitration.
5. Right to Opt Out of Mandatory Arbitration and Class Action Waiver. IF YOU DO NOT WISH TO BE BOUND BY THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS IN SECTIONS 17(1), 17(3) AND 17(4), YOU MUST NOTIFY VII IN WRITING (THE "Arbitration/Class Action Waiver Opt-Out Notice"), WHERE THE ARBITRATION/CLASS ACTION WAIVER OPT-OUT NOTICE MEETS ALL OF THE FOLLOWING REQUIREMENTS:
(a) Sent by first class mail, postage prepaid, certified and return receipt requested or sent by overnight courier service (such as Federal Express) to ViacomCBS, Attention: Legal Department, Records Management, 1515 Broadway, 51st Floor, New York, NY 10036.
(b) Postmarked (if sent by first class mail) or deposited with the overnight courier service no later than (A), if you register as a new registered user of the Site on or after 2/9/2016 ("Agreement to Arbitrate Date" except as provided in (C) below), 45 days after the date you accept this Agreement for the first time, unless an earlier deadline in Sub-section 5.2(C) applies, (B), if you are already a registered user of the Site before the Agreement to Arbitrate Date, 45 days after the earlier of either (I) your first log in to the Site on or after the Agreement to Arbitrate Date or (II) the date which email notice of the Agreement containing this Section of the Agreement, if any, was sent to the email address associated with your user registration, unless an earlier deadline in Section 17(5)(b)(C) applies or (C) for all other users of the Site, 45 days after you accept this Agreement for the first time on or after the Agreement to Arbitrate Date, which Agreement to Arbitrate Date shall be December 31, 2016 for users of the Site's mobile applications, unless a longer period is required by applicable law.
Time Periods Applicable to Users of Multiple VII Websites, Applications or Other Interactive Services. If you are or become a user of more than one VII website, application or other interactive service, you must provide the Arbitration/Class Action Waiver Opt-Out Notice within the earliest deadline applicable for any VII website, application or other interactive service for which you are or become a user (for example, if the Agreement to Arbitrate Date is August 1 and if you are a pre-existing registered user of a VII website prior to August 1 who logins on August 1 and registers as a new registered user of another VII website on August 15, you must provide the Arbitration/Class Action Waiver Opt-Out Notice by September 15 (45 days after August 1 and not 45 days after August 15)).
(c) Includes your first and last name, address, phone number, email address and, if applicable, your username if you are a registered user of the VII website(s), application(s) or other interactive services(s) along with an identification of the VII website(s), application(s) or other interactive services(s) for each such username. We shall use the foregoing information included in the Arbitration/Class Action Waiver Opt-Out Notice to record, process, maintain and administer your opt-out of the mandatory arbitration and class action waiver provisions and not for marketing purposes.
(d) Includes a statement that you do not agree to the mandatory arbitration and class action waiver.
If the Arbitration/Class Action Waiver Opt-Out Notice meets all of the above requirements, you will be deemed to have opted out of the mandatory arbitration and class action waiver provisions in Section 17(1), Section 17(3) and Section 17(4) with respect to all VII websites, applications or other interactive services (including, but not limited to, those owned, operated and/or provided by ViacomCBS and the corporate affiliates that ViacomCBS directly or indirectly owns or controls such as those described at https://www.viacomcbs.com/brands). Note that a valid Arbitration/Class Action Waiver Opt-Out Notice applies only to the individual identified in such notice as opting out.
If the Arbitration/Class Action Waiver Opt-Out Notice does not meet all of the above requirements, you will not be deemed to have opted out of the mandatory arbitration and class action waiver provisions in Section 17(1), Section 17(3) and Section 17(4).
18. GOVERNING LAW, ARBITRATION LOCATION, JURISDICTION, VENUE, AND JURY TRIAL WAIVER
With the exception of the provision above that the enforceability of "RESOLUTION OF DISPUTES: BINDING ARBITRATION; NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS" above is governed both procedurally and substantively by the FAA, this Agreement and your use of the Site is otherwise governed by, construed, and enforced in accordance with the laws of the State of New York (without regard to that state's conflict of laws rules).
You or VII shall initiate arbitration in the United States county or territory in which you reside or, if you do not reside in the United States or one of its territories, in the non-United States country in which you reside; provided, however, that (a) VII may request to transfer the arbitration to New York County, New York if it agrees to pay any additional fees or costs you incur as a result of the change in location as such additional fees or costs are determined by the arbitrator and to the maximum extent permitted by law and, upon such request, (b)(i) if you agree to such request, the arbitration shall be transferred to New York County, New York or (ii) if you do not agree to such request, VII shall have right to request that the arbitrator determine the location in which the arbitration shall be held. You and VII agree that any Claim that is allowed to proceed in court as set forth in Section 17(1) above (including, but not limited to, as a result of your submission of a valid Arbitration/Class Action Waiver Opt-Out Notice), or otherwise proceeds in court in the event the agreement to arbitrate above is found not to apply to you or a particular Claim as a result of a decision by the arbitrator or a court order, is subject to exclusive jurisdiction and venue in the State or Federal Courts situated in the Borough of Manhattan, New York City, State of New York.
To the extent it may be applicable, you and VII agree to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act. If any Claim proceeds in court rather than in arbitration, YOU AND VII WAIVE ANY RIGHT TO A JURY TRIAL.
19. MISCELLANEOUS
VII operates and controls this Site from its offices at 1515 Broadway, New York, New York 10036, United States of America. This Site is intended exclusively for residents of the United States. We make no representation that content on this Site is appropriate or available for use in locations outside the United States. If you choose to access this Site from a location outside the United States, you do so of your own initiative and you alone are responsible for compliance with local laws. Under no circumstances is VII responsible for ensuring that the Site is in compliance with the local laws of jurisdictions outside the United States. No software from this Site may be downloaded, exported or re-exported in violation of any law including, without limitation, to countries that are subject to U.S. export restrictions.
These Terms of Use contain the entire understanding and supersede all prior understandings of the parties hereto relating to the subject matter hereof and cannot be changed or terminated orally. Notwithstanding the foregoing, you also may be subject to additional or separate terms and conditions, rules, or policies that may apply when you use certain features and services or purchase certain products that may be made available through this Site. If any provision of these Terms of Use is found to be illegal or unenforceable, these Terms of Use will be deemed curtailed to the extent necessary to make them legal and enforceable and will remain, as modified, in full force and effect.
20. COPYRIGHT POLICY
We take protection of copyrights, both our own and others, very seriously. We therefore employ multiple measures to prevent copyright infringement over this Site and to promptly end any infringement that might occur. If you believe that the Site contains elements that infringe your copyrights in your work, please follow the procedures set forth in our Copyright Compliance Policy at https://www.nick.com/legal/ga6rl4/copyright-compliance.
These Terms of Use were last updated on October 6, 2020