2. ACCESS AND USE OF THE Butaca SERVICES
- 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.
The Content. The Content is available for permissible viewing on or through the Butaca Services.
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.
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:
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.
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
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;
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.
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.
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.
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.
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.
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 copyright@Butaca.tv (subject line: “DMCA Takedown Request”). You may also contact us by mail at:
10. ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
(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).
(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 email@example.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:
(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.
(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.
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.
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.