Terms of use
Butaca.tv is wholly owned by H Code Media, Inc. (“Butaca”, “BUTACA”, “we”, “our” or “us”). Please read these Butaca Terms of Use (the “Terms of Use”) and our Privacy Policy, available at https://www.Butaca.tv/privacy-policy (“Privacy Policy”), carefully because they govern your access and use of our video streaming service offering a selection of television shows, movies, clips, and other audio-video content (collectively, the “Content”) accessible via our website located at www.Butaca.tv (the “Butaca Site”), our applications (“Apps”) and our player for viewing the Content (the “Video Player”), in addition to any other features, tools, applications, materials, or other services offered from time to time by Butaca in connection with its business, however accessed. To make these Terms of Use easier to read, the Butaca Site, Apps, Video Player and our services are referred to collectively as the “Butaca Services”. For more information on H Code Media, Inc please visit https://hcodemedia.com/.
By visiting, accessing, or using any of the Butaca Services, you agree to be bound by these Terms of Use. It is important that you carefully read through these Terms of Use and also whenever we update them or whenever you access or use the Butaca Services. If you have any questions or comments about these Terms of Use, please contact us at privacy@verandaentertainment.com.
IMPORTANT NOTICE REGARDING ARBITRATION: BY USING ANY BUTACA SERVICES AND ACCEPTING THESE TERMS OF USE YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND US THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. YOU AND Butaca WAIVE THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN CONNECTION WITH SUCH DISPUTES. PLEASE REVIEW CAREFULLY SECTION 10 TITLED “ARBITRATION AGREEMENT AND CLASS ACTION WAIVER” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
1. CHANGES TO THE TERMS OF USE BY BUTACA
Butaca may amend these Terms of Use at any time by posting the amended Terms of Use on the Butaca Services. Any amendment to these Terms of Use will be effective upon posting on the Butaca Services. Your continued use of the Butaca Services after any such amendment is posted constitutes your acknowledgement and acceptance of such amendment. If you do not agree to be bound by the updated Terms of Use, then, except as otherwise provided in Section 10, you may not access or otherwise use the Butaca Services. Because the Butaca Services are evolving over time we may change or discontinue all or any part of the Butaca Services, at any time and without notice, at our sole discretion and without liability to you. Butaca may also impose limits on certain features and services offered on the Butaca Services or restrict your access to parts or all of the Butaca Services without notice or liability.
2. ACCESS AND USE OF THE BUTACA SERVICES
Age Limitations and Restrictions. The Butaca Services are not directed to nor intended to be accessed or used by children under the age of 13. If you are under the age of 13, you are not permitted to access, use or register to use the Butaca Services or to otherwise provide your personal information to Butaca. If you are at least 13 and under 18 years of age, you may register with Butaca only if you have the consent of your parent or guardian, in which case your parent or guardian will be required to consent to these Terms of Use on your behalf. Access to Content may be restricted due to age appropriateness. Accessing the Butaca Services and/or the Content from territories where Butaca does not offer the Butaca Services is prohibited.
Registration and Your Information. If you want to use certain features of the Butaca Services you will need to create an account (“Account”). You can do this with your email address via the Butaca Site or Apps, or using your account with certain third-party social networking services such as Facebook (each, an “SNS Account”). If you choose the SNS Account option, please note that we will create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
It is important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you do not, we may suspend or terminate your Account. You agree that you will keep your password and Account information secure and that you will not disclose your Account password to anyone else and you will notify us immediately of any unauthorized use of your Account. You are responsible for all inaccuracies in your Account information and all activities that occur under your Account, regardless of whether or not you know about them.
Your License. Subject to your compliance with these Terms of Use, Butaca grants you a limited, revocable, non-exclusive, non-transferable license, with no right to sublicense, to view and use the Butaca Services in connection with your permitted use thereof, including accessing and viewing the Content on a streaming-only basis through the Video Player, solely for personal, non-commercial purposes as set forth in these Terms of Use.
The Content. The Content is available for permissible viewing on or through the Butaca Services.
You may only access and view the Content personally and for a non-commercial purpose in compliance with these Terms of Use. You may not either directly or through the use of any device, software, internet site, web-based service, or other means remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices marked on the Content, Butaca Services or any digital rights management mechanism, device, or other content protection or access control measure associated with the Butaca Services or the Content, including geo-filtering mechanisms. You may not use technologies to access or use the Butaca Services or Content from territories where Butaca does not have rights or does not offer services. You may not either directly or through the use of any device, software, internet site, web-based service, or other means copy, download, stream capture, reproduce, duplicate, archive, distribute, make available, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit the Butaca Services or Content unless expressly permitted by Butaca in writing. You may not incorporate the Content into, or stream or retransmit the Content via, any hardware or software application or make it available via frames or inline links unless expressly permitted by Butaca in writing. Furthermore, you may not create, recreate, distribute, or advertise an index of any significant portion of the Content unless authorized by Butaca. You may not seek to develop, build, or otherwise promote a business, product, or service utilizing the Butaca Services or the Content, whether or not for profit. The Butaca Services and Content covered by these restrictions includes without limitation any text, graphics, layout, interface, technology, logos, photographs, audio and video materials, and stills. In addition, you are strictly prohibited from creating derivative works or materials that otherwise are derived from or based on in any way the Butaca Services or the Content, including without limitation montages, mash-ups and similar videos, wallpaper, desktop themes, greeting cards, and merchandise, unless it is expressly permitted by Butaca in writing. The foregoing prohibitions apply even if you intend to give away the derivative materials free of charge.
The Video Player. You may not modify, enhance, remove, interfere with, or otherwise alter in any way any portion of the Video Player, its underlying technology, any digital rights management mechanism, device, or other content protection or access control measure incorporated into the Video Player. This restriction includes, without limitation, disabling, reverse engineering, modifying, interfering with or otherwise circumventing the Video Player in any manner that enables users to view the Content without: (i) displaying visibly both the Video Player and all surrounding elements (including the graphical user interface, any advertising, copyright notices, and trademarks) of the webpage where the Video Player is located; and (ii) having full access to all functionality of the Video Player, including, without limitation, all video quality and display functionality and all interactive, elective, or click-through advertising functionality.
The Apps. Subject to your compliance with these Terms of Use, Butaca grants you a limited, revocable, non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the Apps on a consumer electronics device (e.g., a mobile phone, tablet, television, or computer) that you own or control and to run such single copy solely for your own personal non-commercial purposes on such consumer electronics device.
You may not copy an App, except to make a copy for backup or archival purposes. Except as expressly permitted in these Terms of Use, you may not: (1) copy, modify or create derivative works based on the Apps; (2) distribute, transfer, sublicense, lease, lend or rent the Apps to any third party; (3) reverse engineer, decompile or disassemble the Apps; or (4) make the functionality of the Apps available to multiple users through any means. Butaca reserves all rights in and to the Apps not expressly granted to you under these Terms of Use.
Accessing Apps from App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:
These Terms of Use are concluded between you and Butaca, and not with the App Provider, and Butaca (not the App Provider), is solely responsible for the App.
The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Butaca.
The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (1) product liability claims; (2) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
In the event of any third-party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Butaca will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use.
The App Provider, and its subsidiaries, are third-party beneficiaries of these Terms of Use as related to your license to the App, and that, upon your acceptance of the Terms of Use, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use as related to your license of the App against you as a third-party beneficiary thereof.
You represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
You must also comply with all applicable third-party terms of service when using the App.
Ownership. As between you and Butaca, Butaca and/or Butaca’s licensors exclusively own, control and retain all right, title and interest in and to the Butaca Services and the Content, including all associated intellectual property rights. You acknowledge that the Butaca Services, including without limitation the Content, are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Butaca Services, including without limitation the Content.
Your Responsibilities and Butaca’s Enforcement Rights. You can access and use the Butaca Services and Content for lawful personal, non-commercial, and appropriate purposes only. You agree not to engage in any conduct that:
· violates the rights of others, including patent, trademark, trade secret, copyright, moral rights or other intellectual property rights, or rights of privacy, publicity, or other proprietary rights, harasses or harms another individual, impersonates any person or entity, or otherwise misrepresents yourself or your affiliation with any person or entity; or (2) is fraudulent, false, misleading or deceptive;
· uses technology or other means to access, index, frame, search or link to the Butaca Services (including the Content) that is not authorized by Butaca; remove, avoid, deactivate, descramble disable, bypass, or circumvent any technological measure implemented by Butaca or any of Butaca’s providers or any other third party (including another user) to protect Butaca Services, including without limitation content protection or access control mechanisms intended to prevent the unauthorized download, stream capture, linking, framing, reproduction, access to, or distribution of the Butaca Services;
· accesses, tampers with, or uses non-public areas of the Butaca Services, Butaca’s computer systems, or the technical delivery systems of Butaca’s providers;
· involves accessing the Butaca Services (including the Content) through any automated means, including “robots,” “spiders,” or “offline readers” (other than by individually performed searches on publicly accessible search engines for the sole purpose of, and solely to the extent necessary for, creating publicly available search indices - but not caches or archives - of the Butaca Services, excluding those search engines or indices that host, promote, or link primarily to infringing or unauthorized content);
· uses any meta tags or other hidden text or metadata utilizing a Butaca trademark, logo URL or product name without Butaca’s express written consent
· access the Butaca Services, including without limitation Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms of Use;
· deciphers, decompiles, disassembles or reverse engineers any of the software used to provide the Butaca Services;
· interferes with the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Butaca Services;
· introduces viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
· damages, disables, overburdens, impairs, or gains unauthorized access to the Butaca Services, including Butaca’s servers, computer network, or user accounts;
· removes, modifies, disables, blocks, obscures or otherwise impairs any advertising in connection with the Butaca Services (including the Content);
· uses the Butaca Services to advertise or promote services that are not expressly approved in advance in writing by Butaca;
· probe, scan or test the vulnerability of any Butaca system or network or breach any security or authentication measures;
· collects or stores personally identifiable information from Butaca Services without Butaca’s authorization;
· violates, or encourages conduct that would violate, any applicable law or regulation, constitute a criminal offense or give rise to civil liability;
· violates these Terms of Use or any guidelines or policies posted by Butaca;
· interferes with any other party’s use and enjoyment of the Butaca Services; or
· encourages or enables any other individual to do any of the foregoing or attempts to do any of the foregoing.
We have the right to investigate violations of these Terms of Use or conduct or activity that may affect the Butaca Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
If Butaca determines in its sole discretion that you are violating any of these Terms of Use, we may (i) notify you, (ii) use technical measures to block or restrict your access or use of the Butaca Services, (iii) suspend or terminate your Account or access to the Butaca Services and Content, and/or (iv) use any other available legal or equitable remedy. In either case, you agree to immediately stop accessing or using in any way (or attempting to access or use) the Butaca Services and Content, and you agree not to circumvent, avoid, or bypass such restrictions, or otherwise restore or attempt to restore such access or use.
No Spam/Unsolicited Communications. We know how annoying and upsetting it can be to receive unwanted email or instant messages from people you do not know. Therefore, no one may use the Butaca Services to provide personal information or otherwise collect information about users for the purpose of sending, or to facilitate or encourage the sending of, unsolicited bulk or other communications. You understand that we may take any technical remedies to prevent spam or unsolicited bulk or other communications from entering, utilizing, or remaining within our computer or communications networks. If you Post (as defined below in Section 4) or otherwise send spam, advertising, or other unsolicited communications of any kind through the Butaca Services, you acknowledge that you will have caused substantial harm to Butaca and that the amount of such harm would be extremely difficult to measure. As a reasonable estimation of such harm, you agree to pay Butaca $50 for each such unsolicited communication you send through the Butaca Services.
Downloads. In order to participate in certain Butaca Services or access certain Content, you may be notified that it is necessary to download software or other materials or agree to additional terms and conditions. Unless otherwise provided by these additional terms and conditions, they are hereby incorporated into these Terms of Use.
Suspension/Discontinuation. We hope not to, but we may change, suspend, or discontinue - temporarily or permanently - some or all of the Butaca Services (including the Content and the devices through which the Butaca Services are accessed), with respect to any or all users, at any time without notice. You acknowledge that Butaca may do so in Butaca’s sole discretion. You also agree that Butaca will not be liable to you for any modification, suspension, or discontinuance of the Butaca Services.
Internet Access Charges. You are responsible for any costs you incur to access the internet.
Customer Service; Availability. If we can be of help to you, please do not hesitate to contact our customer service department by visiting our customer service web page on Butacatv.com. You acknowledge that from time to time the Butaca Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Butaca may undertake from time to time; or (iii) causes beyond the control of Butaca or which are not reasonably foreseeable by Butaca.
3. PRIVACY POLICY. Use of the Butaca Services is also governed by the Butaca Privacy Policy available at https://www.Butaca.tv/privacy-policy, which is incorporated into and is a part of these Terms of Use by this reference. You acknowledge and agree that your access or use of Butaca Services or Content is also subject to our Privacy Policy.
4. USER MATERIAL. Any licenses you have previously granted to Butaca and/or Butaca’s users to the reviews, comments, or other materials (collectively, “User Material”) you may have published, transmitted, submitted, or posted (collectively, “Post”) to Butaca Services continue under these Terms of Use. Further, any representations and warranties that you own the User Material or otherwise have the right to grant the license to your User Materials that you hereby grant to Butaca, and that the Posting of your User Material does not violate any right of any party, including privacy rights, publicity rights, and intellectual property rights, continue to be valid and have full effect. In addition, you agree to pay for all royalties, fees, and other payments owed to any party by reason of your Posting User Material. Butaca continues to disclaim any guarantees of confidentiality with respect to any User Material.
Third Party Posts. You agree to waive any legal or equitable rights or remedies you may have against Butaca with respect to User Material provided by other users. You acknowledge that Posts are public and Butaca cannot guarantee the accuracy or security of any information provided through such Posts; you access and make such disclosures at your own risk. Butaca is not responsible for the content or accuracy of any information contained in a Post, and shall not be responsible for any decisions made based on such information. Butaca prohibits disclosing any inappropriate content or information, personal or sensitive information on or through the Butaca Services.
5. LINKED DESTINATIONS AND ADVERTISING.
Third Party Destinations. The Butaca Services (including the Apps) may contain links to third-party websites or resources, or destinations. You will not infer or assume that Butaca endorses, operates, controls, is responsible for or is connected with these or other third-party websites, resources or destinations, even if they link to Butaca Services and even if such websites, resources, or destinations are operated by a person (including legal entity) affiliated or otherwise connected with Butaca. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites, resources, and destinations or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites, resources, and destinations, and release Butaca from any responsibility and liability to you for any content or other materials hosted and served from any such websites, resources, or destination. These Terms of Use do not govern your use of any other websites, resources, or destinations.
Advertisements. Butaca is not responsible for advertisements or any third-party material posted on any of the Butaca Services, nor is Butaca responsible for the products or services provided by advertisers. Any dealings you have with advertisers found while using the Butaca Services are between you and the advertiser, and you agree that Butaca is not liable for any loss or claim that you may have against an advertiser.
6. TRADEMARKS. Butaca, the Butaca logo, www.Butaca.tv, www.Butacatv.com, and other Butaca marks, graphics, logos, scripts, and sounds are trademarks, registered or otherwise, and trade dress of Butaca, Inc.. You may not copy, download or exploit any of the Butaca trademarks.
7. FEEDBACK. It is Butaca’s policy not to accept unsolicited submissions, including scripts, story lines, articles, fan fiction, characters, drawings, information, suggestions, ideas, or concepts (“Unsolicited Submissions”). Butaca’s policy is to delete any such submission without reading it. Therefore, any similarity between an Unsolicited Submission and any elements in any Butaca creative work, including a film, series, story, title, or concept, would be purely coincidental. We welcome feedback, comments and suggestions for improvements to the Butaca Services (“Feedback”). You can submit Feedback by emailing us at feedback@Butaca.tv (subject line: “Feedback”). You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
8. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY, AND INDEMNITY
THE BUTACA SERVICES AND CONTENT ARE PROVIDED “AS-IS” AND “AS AVAILABLE.” BUTACA DOES NOT GUARANTEE OR PROMISE ANY SPECIFIC RESULTS FROM USE OF OR CONTINUOUS AVAILABILITY OF THE BUTACA SERVICES OR CONTENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BUTACA EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FOR A COURSE OF PERFORMANCE OR COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUTACA MAKES NO WARRANTY THAT YOUR USE OF THE BUTACA SERVICES OR CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS TO THE BUTACA SERVICES OR CONTENT WILL BE CORRECTED, THAT THE BUTACA SERVICES, CONTENT OR THE SERVERS ON WHICH THEY ARE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY INFORMATION OBTAINED BY YOU ON, THROUGH OR IN CONNECTION WITH THE BUTACA SERVICES OR THIRD PARTY SERVICES (INCLUDING, BUT NOT LIMITED TO, THROUGH USER CONTENT OR THIRD PARTY ADVERTISEMENTS) WILL BE ACCURATE, RELIABLE, TIMELY OR COMPLETE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BUTACA WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) RESULTING FROM USE OF THE BUTACA SERVICES, CONTENT, PROBLEMS OR TECHNICAL MALFUNCTION IN CONNECTION WITH USE OF THE BUTACA SERVICES, CONTENT, ATTENDANCE AT A BUTACA EVENT, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH THE BUTACA SERVICES OR CONTENT, ANY USER CONTENT, ANY THIRD PARTY ADVERTISEMENT OR THIRD PARTY SERVICE TRANSMITTED ON, THROUGH OR IN CONNECTION WITH THE BUTACA SERVICES, OR THE CONDUCT OF ANY USERS OF THE BUTACA SERVICES OR CONTENT, WHETHER ONLINE OR OFFLINE. YOUR USE OF POSTS, THIRD PARTY ADVERTISEMENTS, THIRD PARTY SERVICES, AND THE GOODS OR SERVICES PROVIDED BY ANY THIRD PARTIES IS SOLELY YOUR RESPONSIBILITY AND AT YOUR OWN RISK.
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE Butaca SERVICES AND CONTENT, AND ANY INFORMATION TRANSMITTED OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. YOU ASSUME RESPONSIBILITY, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, FOR THE ENTIRE COST OF ANY MAINTENANCE, REPAIR OR CORRECTION TO YOUR COMPUTER SYSTEM OR OTHER PROPERTY OR RECOVERY OR RECONSTRUCTION OF LOST DATA NECESSITATED BY YOUR USE OF THE BUTACA SERVICES.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BUTACA’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO BUTACA FOR THE BUTACA SERVICES AND CONTENT DURING THE TERM OF YOUR USE OF THE Butaca SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BUTACA WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES OTHER THAN THE AMOUNT PAID, IF ANY, BY YOU TO BUTACA FOR THE BUTACA SERVICES DURING THE TERM OF YOUR USE OF THE BUTACA SERVICES, INCLUDING ANY OTHER GENERAL, DIRECT, INDIRECT, COMPENSATORY, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, AND INCLUDING, WITHOUT LIMITATION, LOST PROFIT DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO ACCESS OR USE THE Butaca SERVICES OR CONTENT.
YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF BUTACA’S ACTS OR OMISSIONS OR YOUR USE OF Butaca SERVICES OR CONTENT ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS OR USE ANY PORTION OF THE BUTACA SERVICES OR CONTENT.
THE LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF Butaca HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
INDEMNITY
YOU AGREE TO INDEMNIFY AND HOLD BUTACA, ITS AFFILIATES, STATIONS AFFILIATED WITH BUTACA, PRODUCERS OF CONTENT, EACH ADVERTISER, SPONSOR AND THEIR ADVERTISING AGENCIES, SUBCONTRACTORS AND OTHER PARTNERS, AND THEIR RESPECTIVE OFFICERS, AGENTS, PARTNERS AND EMPLOYEES, HARMLESS FROM ANY LOSS, LIABILITY, CLAIM, OR DEMAND, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF OR IN CONNECTION WITH YOUR USE OR MISUSE OF THE CONTENT OR THE BUTACA SERVICES (INCLUDING, WITHOUT, LIMITATION, ANY USE OF YOUR ACCOUNT, WHETHER OR NOT AUTHORIZED BY YOU), YOUR BREACH OF THESE TERMS OF USE, YOUR VIOLATION OF ANY RIGHTS OF ANOTHER, OR ANY CONTENT THAT YOU TRANSMIT THROUGH THE BUTACA SERVICES.
9. NOTICE AND PROCEDURE FOR CLAIMS OF COPYRIGHT INFRINGEMENT. We respect copyright law and expect our users to do the same. It is our policy to terminate in appropriate circumstances subscribers or account holders who have been adjudicated as repeat infringers on Butaca Services. We accept proper notifications of claimed copyright infringements that comply with the appropriate subsection of 17 U.S.C. § 512 regarding material or information location tools residing on our Butaca Services. Please direct notifications of claimed copyright infringements to Butaca’s copyright agent at privacy@verandaentertainment.com (subject line: “DMCA Takedown Request”).
10. ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
(1) Butaca, including its Affiliates, agents, employees, predecessors in interest, successors, and assigns, and you agree that any Dispute (as defined herein) between you and Butaca, regarding any aspect of your relationship with Butaca, will be resolved in a binding, confidential, individual and fair arbitration process, and not in court. Each of you and Butaca agrees to give up the right to sue in court. The terms of this Section 10 are referred to in these Terms of Use as the “Arbitration Agreement”.
(2) The term “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any dispute, claim, demand, count, cause of action, or controversy between you and Butaca, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory. The term “Dispute” specifically includes, but is not limited to, any disputes, actions, claims, or controversies between you and the Butaca that arise from or in any way relate to or concern any Content, products or services provided by Butaca including but not limited to the Butaca Services (as defined above), this Arbitration Agreement, any other aspect of these Terms of Use (including their applicability and their conformance to applicable law), any billing disputes, and any disputes relating to telephonic, text message, or any other communications either of us received from the other. The only exceptions to this Arbitration Agreement are that (i) each of you and Butaca retains the right to sue in small claims court and (ii) each of you and Butaca may bring suit in court against the other to enjoin infringement or other misuse of intellectual property rights. Disputes over whether these exceptions apply shall be resolved by the court in which such action has been brought; all other disputes over arbitrability shall be resolved by the arbitrator.
(3) Each of you and Butaca also agrees to give up the ability to seek to represent, in a class action or otherwise, anyone but each of you and Butaca (see paragraph 9 below).
(4) There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator must follow this Arbitration Agreement. The arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages); provided that they are recoverable under these Terms of Use.
(5) These Terms of Use evidence a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement shall survive termination of the Terms of Use.
(6) Any arbitration between you and Butaca will be conducted by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”), as modified by this agreement to arbitrate. The arbitration shall be conducted by a single, neutral arbitrator, and if you and Butaca cannot agree on who that single arbitrator will be, the arbitrator will be appointed pursuant to the JAMS Rules, with the participation and involvement of Butaca and you pursuant to JAMS Rule 12. The JAMS Rules are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration/. The Consumer Arbitration Minimum Standards are available at https://www.jamsadr.com/consumer-minimum-standards/. The arbitrator is bound by these Terms of Use.
(7) If either you or Butaca wish to arbitrate a claim, you or Butaca must first send by mail to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the Butaca Service to which the Notice relates, and the relief requested. Your Notice to the Butaca must be sent by email at privacy@verandaentertainment.com. Butaca will send any Notice to you at the contact information we have for you or that you provide. It is the sender’s responsibility to ensure that the recipient receives the Notice. During the first 45 days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute.
(8) If you and we do not resolve the Dispute within 45 days, either you or we may initiate arbitration in accordance with the JAMS Rules. Further instructions on submitting a Demand for Arbitration may be found at http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf. In addition to filing this Demand for Arbitration with JAMS in accordance with its rules and procedures, you must send a copy of this completed Demand for Arbitration to the Butaca at the address listed above to which you sent your Notice of Dispute.
(9) You and the Butaca acknowledge and agree to abide by the following rules for arbitration:
(a) YOU AND Butaca MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING, AND THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF; (b) Butaca will pay arbitration costs as required by the JAMS Consumer Arbitration Minimum Standards and consistent with paragraph 10 below; (c) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law and these Terms of Use; and (d) each side pays his, her or its own attorneys’ fees, except as otherwise provided in paragraph 10 below.
(10) JAMS charges filing and other fees to conduct arbitrations. Ordinarily, the claimant has to pay the filing fee to initiate arbitration, but if you wish to commence an arbitration against Butaca, you and the Butaca acknowledge and agree to abide by the following:
If you are seeking to recover less than $10,000 (inclusive of attorneys’ fees), Butaca will pay the filing fee on your behalf or reimburse your payment of it.
If you are seeking to recover $10,000 or more, you will have to pay the filing fee charged by JAMS, but Butaca will reimburse the filing fee if you prevail on all claims decided upon by the arbitrator.
Butaca and you agree that, if the claims to be arbitrated total less than $10,000 (inclusive of attorneys’ fees), the claim ordinarily should be decided on written submissions only, without a telephonic or in-person hearing. Butaca will not request a hearing for any claims totaling less than $10,000. This provision shall not be construed by the arbitrator to deprive you of any rights you may have to a telephonic or in-person hearing in your hometown area pursuant to the JAMS Rules.
Butaca and you agree that, if the claims to be arbitrated total $10,000 or more, the arbitration will occur in a manner and place consistent with the JAMS Rules.
(11) Regardless of how the arbitration proceeds, each of you and Butaca shall cooperate in good faith in the exchange of non-privileged documents and information as necessary in accordance with the JAMS Rules, and the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions.
(12) Each of you and Butaca may incur attorneys’ fees during the arbitration. Each side agrees to pay his, her or its own attorneys’ fees unless the claim(s) at issue permit the prevailing party to be paid its attorneys’ fees, and in such instance, the fees awarded shall be determined by the applicable law(s). In addition to whatever rights you may have to recover your attorneys’ fees under applicable law, if you prevail in the arbitration, and if Butaca failed to make a settlement offer to you before the arbitration or the amount you win is at least 25% greater than Butaca’s highest settlement offer, then Butaca will pay your reasonable attorneys’ fees in addition to the amount the arbitrator awarded. If Butaca wins the arbitration, you will be responsible for your own attorneys’ fees. In addition, if the arbitrator, at the request of the winning party, finds that the losing party brought a claim or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by applicable law.
(13) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief, only to the extent necessary to provide relief warranted by that party’s individual claim, only as permitted by applicable law, and only to the extent that declaratory and injunctive relief are permitted by these Terms of Use. The arbitrator shall have no authority to award punitive, exemplary, multiplied or consequential damages or any other relief not allowed under this Arbitration Agreement. The arbitrator also may not order Butaca to pay any monies to or take any actions with respect to persons other than you, unless Butaca explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order. Further, unless Butaca expressly agrees, the arbitrator may not consolidate other persons’ claims with yours, and may not otherwise preside over any form of a representative, multi-claimant or class proceeding.
(14) You and Butaca agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation, proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, an order confirming the award, or unless otherwise required by law or court order. In keeping with the confidential nature of the arbitration, You and Butaca agree that an order confirming award is only necessary if the obligations of the award have not been performed. Therefore, before taking any steps to confirm the arbitration award, the party seeking confirmation of the award must give the other party notice of its intention to confirm the award. If the party who would be the respondent in any such confirmation proceeding performs its obligation under the terms of the arbitration award within 15 business days of such notice, the party who gave notice of its intent to confirm the award shall not seek to confirm or otherwise enforce the award.
(15) With the exception of subpart (a) in paragraph (9) (i.e., the waiver of the ability to proceed on behalf of multiple claimants or a purported class), if any part of this Arbitration Agreement is deemed invalid, unenforceable, or illegal, then the balance of this Arbitration Agreement shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (a) in paragraph (9) is found invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, but the rest of these Terms of Use, including the provisions governing where actions against Butaca must be pursued, the choice of governing law, and our mutual waiver of the right to a trial by jury, will remain in effect and apply to any claim that, for this or any other reason, proceeds in court rather than in arbitration.
11. TERMINATION. We may terminate your access to and use of the Butaca Services, at our sole discretion, at any time and without notice to you. Without limiting the forgoing, we may, at our sole discretion, without notice to you, terminate or restrict your Account or your use of the Butaca Services, including the Content, or any portion thereof, at any time, without liability, if Butaca determines in its sole discretion that you have breached these Terms of Use, violated any law, rule, or regulation, engaged in other inappropriate conduct, place an undue burden on our networks or servers or for any other business reason or no reason. We may further use technology to limit activities, such as the number of calls to the Butaca servers being made, and you agree to respect these limitations and not take any steps to circumvent, avoid, or bypass them.
You may cancel your Account via the functionality provided in Butaca Services.
Upon any termination, discontinuation or cancellation of the Butaca Services or your Account, the following Sections will survive 2(b)(ii), 2(f)(ii), 2(g), 2(h), 6, 8, 10, 11, and 12.
12. GENERAL INFORMATION
Export Controls. Software and the transmission of applicable technical data, if any, in connection with the Butaca Services are subject to export controls. You agree to comply with all applicable laws regarding software and the transmission of technical data exported from the United States or the country in which you reside.
Choice of Law and Forum. These Terms of Use are governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its conflict of law provisions.
Except with respect to Disputes to be resolved through an arbitration process in accordance with the Arbitration Agreement contained above, you and Butaca agree to submit to the exclusive jurisdiction of the courts located in Delaware to resolve any Dispute arising out of the Agreement or the Butaca Services. YOU HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE Butaca SERVICES, OR CONTENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ACCRUES. AFTER SUCH PERIOD, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
No Waiver/Reliance. If you see other parties violating these Terms of Use, you may let us know at privacy@verandaentertainment.com (subject line: “TOU Violation”). You may not rely upon Butaca’s response with respect to one party or one situation as any indication of what Butaca might do with respect to another party or another situation, even if the parties or situations appear to you to be similar. Similarly, if we fail to act in response to a violation of these Terms of Use, you should not assume that we do not object to the violation or even that we are aware of it. In addition, you may not construe a waiver of any provision of these Terms of Use with respect to any party as a waiver of that provision (or any other provision) with respect to either that party or any other party. Further, Butaca’s decision to delay exercising or enforcing any right or remedy under these Terms of Use will not constitute a waiver of such right or remedy. Even if Butaca acts in a way that appears to you to be inconsistent with these Terms of Use, Butaca’s action will not be deemed a waiver or constructive amendment of these Terms of Use. Butaca’s failure to enforce any right or provision of these Terms of Use will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Butaca. Except as expressly set forth in these Terms of Use, the exercise by either party of any of its remedies under these Terms of Use will be without prejudice to its other remedies under these Terms of Use or otherwise.
Integration, Amendment, and Severability. Please note that these Terms of Use, including any end user license agreement that might accompany Butaca authorized applications, features and devices, constitute the entire legal agreement between you and Butaca and govern your use of the Butaca Services (including your use of the Content) (but excludes any services, if any, that Butaca may provide to you under a separate signed written agreement), and completely replace any prior oral or written understandings or agreements between you and Butaca in relation to the Butaca Services, including Content. Except as set forth in Section 1 above, these Terms of Use may not be amended or varied except in a writing signed by Butaca. Although we understand that electronic or digital signatures are frequently viewed as the equivalent of traditional written signatures these days, for these purposes, a signature or “signed” writing or written agreement may not include an electronic or digital signature. These Terms of Use operate to the fullest extent permissible by law. If any provision of these Terms of Use is held to be unlawful, void, or unenforceable, you and we agree that the provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Use will remain in full force and effect.
Assignment. You may not assign or transfer these Terms of Use, by operation of law or otherwise, without Butaca’s prior written consent. Any attempt by you to assign or transfer these Terms of Use, without such consent, will be null. Butaca may freely assign or transfer these Terms of Use without restriction. Subject to the foregoing, these Terms of Use will bind and inure to the benefit of the parties, their successors and permitted assigns.
Notices. Any notices or other communications provided by Butaca under these Terms of Use, including those regarding modifications to these Terms of Use, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Contact. If you have any questions about these Terms of Use or the Butaca Services, please contact privacy@verandaentertainment.com
