HitFix, INC Terms and Conditions of Use
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING OR OBTAINING ANY MATERIALS, INFORMATION, PRODUCTS OR SERVICES THROUGH THIS SITE. HitFix, INC (“HitFix”) offers access to and use of www.HitFix.com (the “Site”) to you (“You” or “Your”), subject to Your acceptance of these terms and conditions ("Terms"). These Terms describe the terms and conditions by which HitFix offers You participation in its program providing entertainment forecasting (including the display of upcoming music, television and movie events), general news information, and allowing the uploading of videos, profiles, opinions and other information, including an advertising program and various related services to all of the foregoing (the “HitFix Programs”). By accessing, using or obtaining any content, data, materials, information, products or services through HitFix, You agree to observe these Terms and represent and warrant to HitFix that You are at least 18 years of age, possess legal parental or guardian consent or are otherwise capable of entering into and performing legal agreements. In any case, You affirm that You are over the age of 13, as the Site is not intended for children under 13. If You are under 13 years of age, please do not use HitFix. If You do not accept all of these Terms, then please leave HitFix immediately. These Terms are effective as of December 17, 2008.
HitFix owns, develops and maintains a network (the “Channel”) of entertainment forecasting, news, comments, videos advertisements and other content (collectively, “Content”) creators (each, a “Publisher”) and advertisers (each, an “Advertiser”) who advertise through the Channel and related technologies that facilitate the distribution of such Content including advertisements (“Advertisements”). HitFix makes, or may make, the Channel available through one or more different distribution channels (the “HitFix Service”), including without limitation, through the Site. The Channel shall include any media format and any media channel, whether currently in existence or created in the future including, without limitation, the internet, broadcast television, cable, mobile device and satellite.
Registration is not required to use many features of the HitFix Service. However, You are required to register if You wish to post a comment or upload Content, or view certain Content and to advertise on the Channel. If You wish to upload Content, you will be subject to our Publisher Terms set forth below. To register, You will have to create an account. As a condition to using such components of the HitFix Service, You will be asked to register with HitFix and select a password and screen name ("HitFix User ID"). You shall provide HitFix with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these Terms, which may result in immediate termination of Your HitFix account. You may not (i) select or use as a HitFix User ID a name of another person with the intent to impersonate that person; (ii) use as a HitFix User ID a name subject to any rights of a person other than You without appropriate authorization; or (iii) use as a HitFix User ID a name that is otherwise offensive, vulgar or obscene. HitFix reserves the right to refuse registration of, or cancel a HitFix User ID in its sole discretion. You are solely responsible for the activity that occurs on Your account, and You must keep Your account password secure. You must notify HitFix immediately of any breach of security or unauthorized use of Your account. Although HitFix will not be liable for Your losses caused by any unauthorized use of Your account, You may be liable for the losses of HitFix or others due to such unauthorized use.
YOUR REPRESENTATIONS AND WARRANTIES
You specifically represent and warrant to HitFix that (i) Your Content and the distribution and/or publication of Your Content (including Advertisements) through the Channel or through and/or by any affiliate or partner of HitFix, directly or indirectly, does not, and shall not, (A) infringe or misappropriate the rights of any third party, nor shall doing so violate any right of any person, (B) contain Adult Content (as defined in Section 12 below), (C) be fraudulent, misleading, hateful, tortuous, defamatory, slanderous, libelous, abusive, violent, threatening, profane, vulgar or obscene, (c) harass others, promote bigotry, racism, hatred or harm against any individual or group, promote discrimination based on race, sex, religion, nationality, sexual orientation or age, or otherwise interfere with another party's use of the Channel, (d) promote illegal or harmful activities or substances (including without limitation activities that promote or provide instructional information about activities such as making or buying illegal weapons or substances), (e) be illegal, unlawful or contrary to the laws or regulations in any state or country where, as applicable, Your Content is created, displayed or accessed, (f) contain any computer programming routines or viruses (including without limitation time bombs, Trojan Horses, worms, Easter Eggs, drop dead devices or cancelbots) that are intended to damage, interfere with, intercept or expropriate any system data or personal information, permit unauthorized access to the Channel or disable, damage or erase any portion of the Content processed or stored therein, or (g) constitute unsolicited bulk email, junk mail, spam or chain letters; (ii) Your performance under this Agreement and/or the rights granted herein do not and will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any contract or agreement, to which You are currently bound or will become bound in the future; and (iii) Your performance under this Agreement will comply with all applicable laws, rules and regulations (including, without limitation, export control, privacy and obscenity laws), domestic or foreign. You further represent and warrant that You have paid all license fees and/or other fees required to be paid to third parties for the performance of Your obligations or exercise of Your rights hereunder, for the grant of the licenses hereunder and for any other act by You under these Terms ("Third Party Fees"), and You covenant and agree to timely pay any and all Third Party Fees required to be paid in the future for such actions. You further expressly agree that, as between You, on the one hand, and HitFix and its affiliates, subsidiaries and distribution partners on the other hand, any obligation to pay Third Party Fees as a result of distribution of Your Content pursuant to these Terms shall be Your obligation and not the obligation of HitFix or any of its affiliates, subsidiaries or partners.
If you are a Publisher or are otherwise transmitting or submitting Content to the Channel, then You are solely responsible for all Content You transmit or submit to the Channel, whether created by or for You, including but not limited to graphics, music, sound, images, files, photos, animation, artwork, text, data, information, messages, hypertext links, scripts or other material. HitFix disclaims all liability relating to Your Content. You are strictly prohibited from uploading to HitFix any material that contains any virus, worm, Trojan Horse, time bomb, adware, spyware, or similar contaminating or destructive feature. Violators may be prosecuted to the maximum extent of the law. HitFix may, in its sole discretion: (i) reject, suspend access to or remove any of Your Content from the Channel at any time that HitFix deems it unsuitable for the Channel; and (ii) modify any meta data You submit with Your Content, including without limitation meta tags, age rating, descriptive language, search terms, category and keyword modifiers. HitFix shall have no liability for taking such actions. You agree and accept that HitFix does not guarantee that Your Content will be distributed on any part of the Channel. You may request that HitFix remove any or all of Your Content from HitFix. HitFix will use reasonable efforts to ensure the Content is removed from HitFix as soon as practicable following Your request. However, You acknowledge and agree that HitFix shall have no obligation to attempt to remove from distribution: (i) any of Your Content that is otherwise publicly available through the Internet or other publicly accessible medium; or (ii) any of Your Content that is distributed by persons or entities other than HitFix on the Channel or their end users without monetary compensation or commercial purposes. In the event that HitFix fails to remove such requested Content from HitFix after Your request for removal, HitFix shall not be liable to You for damages or charges of any kind in an amount greater than $10.
If You are an Advertiser, You are solely responsible for all Content contained in any Advertisement submitted by You to the Channel, whether created by or for You, including but not limited to: (i) artwork, written content, images, photos, graphics, music, animation, data, text, information, URLs, hypertext links, scripts and the content and material included in such components; and (ii) websites and content proximately reachable from such Content. HitFix disclaims all liability relating to Your Advertisements. In connection with HitFix's marketing and distribution of the Channel, You permit HitFix to: (x) tag Your Advertisement with information that will be used by HitFix to identity it as Your Advertisement and assist HitFix in properly tracking and calculating any revenue amounts that You may owe to HitFix; (y) associate Your Advertisement with Content, and (z) distribute, or have distributed, Your Advertisement in the Channel. HitFix may, in its discretion, reject, suspend access to or remove any of Your Advertisements from the Channel at any time. You agree and accept that distribution of Your Advertisements on any part of the Channel may be subject to acceptance by any applicable third party service providers.
Each party retains any and all pre-existing right, title and interest in and to its website/s, intellectual property, including copyrights and trademarks, technology, content and all components thereof, in whole or in part. Accordingly, You own Your Content, and HitFix owns the HitFix Programs, HitFix Service and the Channel and the HitFix web site. These Terms shall not be construed in any manner as transferring any rights of ownership of or license to the foregoing, and/or to the features or information therein, except as expressly set forth in these Terms. Under no circumstances will these Terms be construed as granting, by implication, estoppel or otherwise, a license to any intellectual or other property or components thereof other than as specifically granted in these Terms.
- HitFix. HitFix, along with its service and information providers ("Providers"), own and have copyrights on the Site and all of its contents. You will not copy, reproduce, republish, upload, post, transmit, distribute, sell, transfer or modify any of the content, data, information or materials found on the Site, but You may download, display and print one copy of the materials presented on the Site on a single computer for Your personal, non-commercial use. Trademarks, logos and service marks displayed on the Site ("Marks") are HitFix’s, and its Providers’, registered and common law Marks. Your use of and access to HitFix do not grant You any license or right to use any of the Marks. You will not use any robot, spider, other automatic device, or manual process to monitor materials available through HitFix. All software, applications, and modules used on HitFix are proprietary to HitFix or licensed to HitFix by other parties. You may not reproduce, reverse engineer, create derivative works of, reverse assemble or reverse compile, sell, lease, distribute, rent, assign, transfer, or modify any software on HitFix.
- Publishers. You hereby grant HitFix a limited, non-exclusive, worldwide, revocable, sublicensable license to perform such acts in connection with Your Content as are reasonably necessary to conduct the HitFix Programs and maintain the Channel. Specifically, the foregoing license includes, without limitation, permission for HitFix, to: (i) publicly display, publicly perform, transmit, distribute, copy, store, reproduce and/or provide Your Content on or through the Channel, either in its original form, copy or in the form of an encoded work; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms based on Your Content; (iii) distribute, transmit, and/or display Your Content and encoded works via such technologies as are supported by HitFix from time to time; and (iv) display Advertisements in connection with any display of Your Content and encoded works.
You hereby represent and warrant that You own or have the right to submit all information You send to HitFix. Your use of the Site is subject to the HitFix Copyright Policy (the “Copyright Policy”). You represent and warrant that You have read the Copyright Policy and it is reasonable and acceptable to You. Your acceptance of these Terms is also Your consent to the copyright practices in our Copyright Policy.
HitFix may contain links to other sites that HitFix does not operate or control. HitFix is not responsible for these other sites. HitFix provides these links for Your reference and convenience. HitFix does not endorse the contents of these other sites. These links are not an indication of HitFix’s association with the owners or operators of any of these other sites or its endorsement of any material on those sites. You are free to access these other sites, but You do so at Your own risk. By using the Site, You expressly relieve HitFix from any and all liability from Your use of any third-party sites. You agree not to create a link from any site, including any site controlled by You, to the Site without the express, written permission of HitFix.
PARTICIPATION AT YOUR OWN RISK
Your participation in the Channel is at Your own risk. Although the Channel enables users to connect and share Content with one another and with end users or viewers, HitFix has no responsibility to control or monitor any information or exchanges between or among users. HitFix does not control the Content (including, without limitation, Advertisements) made available through the Channel. Some people may find Content on the Site objectionable, inappropriate or offensive. HitFix does not control or guarantee, nor is HitFix responsible for, the truth, accuracy, ownership, completeness, integrity, safety, timeliness, quality, appropriateness, legality or applicability of any Content. HitFix assumes no responsibility for monitoring any Content or HitFix user conduct. If HitFix chooses, at any time in its sole discretion, to monitor (in whole or in part) Content or HitFix user conduct, HitFix nonetheless assumes no responsibility for Content, no obligation to modify or remove any Content and no responsibility for HitFix user conduct. You agree that HitFix has no responsibility or liability for the deletion or failure to store, maintain or transmit any Content.
You will not use the Site for any purpose or in any manner to display, post or make available any sexual, pornographic or erotic material nor upload, email, post, publish, distribute, transmit, submit or otherwise make available through the Site any Content, that is of, or is suggestive of, a sexual, pornographic or erotic nature ("Adult Content") including, without limitation, material that is pornographic, obscene, indecent or profane in its use of sexual language or description or depictions of sexual acts. If HitFix finds Content that it determines, in its sole discretion, contains Adult Content, HitFix may, without notice, remove or block access to such Content. HitFix reserves the right to suspend or cancel at any time and without notice Your account, or deduct or withhold payments related to any Content, that HitFix, in its sole discretion, determines to be in violation of this Section.
HITFIX MAKES, AND ITS PROVIDERS MAKE, NO WARRANTY OF ANY KIND REGARDING THE SITE AND/OR ANY CONTENT, DATA, MATERIALS, INFORMATION, PRODUCTS OR SERVICES PROVIDED ON THE SITE, ALL OF WHICH ARE PROVIDED ON AN "AS IS" BASIS. HITFIX EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY THAT THE SITE WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED. HITFIX FURTHER DISCLAIMS ANY WARRANTY AS TO THE ACCURACY, COMPLETENESS AND TIMELINESS OF ANY CONTENT OR INFORMATION FOUND ON THE SITE. HITFIX EXPRESSLY DISCLAIMS AND ITS PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THIS WARRANTY DISCLAIMER MAY BE LIMITED IN ITS APPLICABILITY TO YOU. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. HITFIX, ITS AFFILIATES, AND/OR THEIR RESPECTIVE SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES ON THE SITE AT ANY TIME.
LIMITATION OF LIABILITY
HITFIX WILL NOT BE, AND ITS PROVIDERS WILL NOT BE, RESPONSIBLE OR LIABLE FOR (A) ANY DAMAGES TO OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY AS THE RESULT OF YOUR ACCESS TO, USE OF OR BROWSING ON THE SITE OR THE NETWORK OR AS THE RESULT OF YOUR DOWNLOADING OF ANY CONTENT, INFORMATION, MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FOUND THEREIN OR (B) ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH (I) ANY USE OF THE SITE OR THE NETWORK OR OF THE CONTENT, DATA, MATERIALS OR INFORMATION FOUND THEREIN, (II) ANY FAILURE OR DELAY (INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE ANY COMPONENT OF THE SITE FOR PURCHASES), OR (III) THE PERFORMANCE OR NON PERFORMANCE BY HITFIX OR ANY PROVIDER, EVEN IF HITFIX OR A PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO SUCH PARTIES OR ANY OTHER PARTY. NOT BY WAY OF LIMITATION OF THE FOREGOING, THIS DISCLAIMER OF LIABILITY (X) APPLIES ALSO TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, AND (Y) INCLUDES INJURIES, LOSS, CLAIMS AND DAMAGES CAUSED BY BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR ANY OTHER CAUSE OF ACTION.
If, despite the limitations in Sections 12 and 13 above, HitFix or a Provider is found liable for any loss or damage which arises out of or is in any way connected with any of the occurrences described in such Sections, then HitFix’s liability and the Providers’ liability will in no event exceed, in total US$100. Some states do not allow the limitation of liability, so the limitations above may not apply to You. Such limitations on liability are in addition to, and not in lieu of, any limitations on liability set forth in any other agreement between You and HitFix
You will defend and indemnify HitFix and any Provider and each of the foregoing parties’ respective officers, directors, employees and agents from and against any claim, cause of action or demand, including without limitation reasonable legal and accounting fees, brought by You or on Your behalf in excess of the liability described above or brought by third parties as a result of Your breach of these Terms or the documents made part of these Terms by reference, Your violation of any law or the rights of a third party or Your use of HitFix or the Channel.
- Headings; No Joint Venture; Assignment.The headings in these Terms are for Your convenience and reference only. Such headings do not limit or affect these Terms. Your acceptance of these Terms and use of HitFix do not create a joint venture, partnership, employment or agency relationship with HitFix. You may not assign, delegate or transfer Your rights or obligations under these Terms. However, HitFix may assign these Terms.
- Modification.HitFix may modify these Terms at any time. Your continued use of HitFix, following any modification of these Terms, will be subject to the Terms in effect at the time of Your use. You will review these Terms periodically, as it is your responsibility to remain current with them. Your continued use of the Site, following any modification, will be Your acceptance of the modified Terms. Except as described in the preceding sentences, You and HitFix can only modify these Terms in a written document signed or otherwise accepted by You and HitFix.
- Other Terms, Breach.Other terms and conditions may apply to Your purchases of advertising services and products through the Site and to Your use of other portions of the Site. You will observe these other terms and conditions. If HitFix fails to act with respect to Your breach or anyone else’s breach of these Terms or any other terms and or conditions on any occasion, HitFix is not waiving its right to act with respect to future or similar breaches.
- Severability; Entire Agreement. If a court finds any provision of these Terms to be unenforceable or invalid, that provision will be enforced to the fullest extent permitted by applicable law and the other Terms will remain valid and enforceable. These Terms, together with those items made a part of these Terms by reference, make up the entire agreement between HitFix and You relating to Your use of the Site, and replaces any prior understandings or agreements (whether oral or written) regarding Your use of the Site.
- Jurisdiction; Governing Law; Legal Fees; Statute of Limitations; Electronic Documents. You agree that: (i) HitFix shall be deemed solely based in the Los Angeles, California (USA); and (ii) the Site shall be deemed a passive website that does not give rise to personal jurisdiction over HitFix, either specific or general, in jurisdictions other than the State of California (USA). The laws of the State of California (USA), without regard to its conflict of laws rules, will govern these terms and conditions, as well as Your and our observance of them. If You take any legal action relating to Your use of HitFix or these Terms, You agree to file such action only in the state and federal courts located in the Los Angeles, California (USA). In any such action or any action HitFix may initiate, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to costs, both taxable and non-taxable, and reasonable attorneys’ fees. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.