July 1, 2017
Your access to and use of certain NoireTV Services may require you to accept additional terms and conditions applicable to such NoireTV Services, including any future modifications (collectively, “Additional Terms”) in addition to this Agreement, and may require you to download software or Content (as defined below). The Additional Terms are made a part of this Agreement by this reference. In the event of a conflict, between any such Additional Terms and this Agreement, such Additional Terms will prevail over this Agreement with respect to your use of that specific NoireTV Service.
Use of the NoireTV Services is limited to users aged 13 years and above.
PLEASE NOTE THAT THE “ARBITRATION AGREEMENT” SECTION BELOW CONTAINS PROVISIONS THAT REQUIRE (i) WITH LIMITED EXCEPTIONS, ALL DISPUTES ARISING BETWEEN YOU AND NoireTV UNDER THIS AGREEMENT BE RESOLVED IN BINDING ARBITRATION, AND NOT IN COURT AND (ii) YOU AND NoireTV WAIVE THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN CONNECTION WITH SUCH DISPUTES. PLEASE CLICK HERE TO REVIEW THE ARBITRATION AGREEMENT. BY USING THIS SITE AND ACCEPTING THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE ARTBITRATION AGREEMENT. PLEASE READ IT CAREFULLY.
NoireTV furnishes the NoireTV Services (as defined below) for your personal enjoyment and entertainment. By using any NoireTV Service (whether or not you have an account or subscription) or by clicking a box that states that you accept and agree to this Agreement, you signify your agreement to be bound by this Agreement, including any future modifications, and any Additional Terms and to abide by all applicable laws, rules and regulations (“Applicable Law”). Please read through this Agreement carefully. If you do not agree to be bound by this Agreement and to abide by all Applicable Law, you may not use the NoireTV Services and must discontinue use of the NoireTV Services immediately. NoireTV may modify this Agreement at any time, and each such modification will be effective upon posting on or to the NoireTV Service. All material modifications will apply prospectively only. Your continued use of the NoireTV Services following any modification constitutes your acceptance of and agreement to be bound by this Agreement as so modified. It is therefore important that you review this Agreement regularly. NoireTV may also use third-party service providers, such as vendors, contractors, agents or sponsors, to operate, develop or help NoireTV manage and provide the NoireTV Services.
NoireTV Account Registration and Security
Some NoireTV Services require you to create an account (including setting up a NoireTV credential and password) to participate in or to secure additional NoireTV Services, such as viewing and commenting on NoireTV Content (defined below), purchasing NoireTV Site Products, creating an NoireTV Site profile and signing up for specific NoireTV newsletters. To make it easier for you to create an account and interact with participating NoireTV Services without having to maintain multiple sign-in credentials, NoireTV has created the universal NoireTV credential. The NoireTV credential allows you to sign into participating NoireTV Services with one email and password. In addition to your NoireTV credential, you will have the ability to create a profile, which may include an NoireTV Site username and profile, as part of your account. If you would like to subscribe to any of the newsletters NoireTV offers, please visit http://www.NoireTVnetworks.com/login.
You take full responsibility for your participation on the NoireTV Services. As a condition of using certain features on the NoireTV Services, you may be required to register on the NoireTV Services and/or select a username and password. All registration information you submit directly to us or through a Third-Party Service (defined below) to create an account must be accurate and must be kept updated by you. Your failure to do so will constitute a breach of the Agreement, which may result in immediate termination of your account. You may not (i) select or use as a username a name of another person with the intent to impersonate that person; or (ii) use as a username a name subject to any rights of another person without appropriate authorization. NoireTV reserves the right to refuse registration of, or cancel, a username, in its sole discretion. It is your responsibility to notify us of any changes in such information, including, but not limited to your contact information. You are responsible for maintaining the confidentiality of all your passwords and are responsible for all use of your account. It is therefore critical that you do not share your account information with anyone. You may be held liable for losses incurred by NoireTV, NoireTV Affiliates (defined below) or any other NoireTV user or visitor in the event someone else uses your account as a result of your failure to keep your account information secure and confidential and you agree to indemnify NoireTV and all NoireTV Affiliates from any third-party claims arising from such actions. You agree not to use the account, username, email address or password of another member or subscriber at any time and not to allow any other person to use your account. You agree to notify NoireTV immediately if you suspect any unauthorized use of, or access to, your account or password. NoireTV shall retain the right to change your username, but no obligation, for any reason, including, without limitation, if the username you have selected violates this Agreement. NoireTV shall also retain the right, but no obligation, to review any profile pictures provided by you.
The NoireTV Site is intended solely for your personal and non-commercial use. NoireTV may change, suspend or discontinue the NoireTV Site (or any feature thereof) at any time. NoireTV may also impose limits on certain features and services offered on the NoireTV Site or restrict your access to parts or all of the NoireTV Site without notice or liability. You acknowledge that from time to time the NoireTV Site may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which NoireTV may undertake from time to time; or (iii) causes beyond the control of NoireTV or which are not reasonably foreseeable by NoireTV.
Unless terminated by NoireTV in its sole discretion, this Agreement remains in full force and effect while you use the NoireTV Services. You may terminate your account at any time, for any reason, in the following ways: (i) to terminate your account please send an email to [email protected], Subject: Terminate NoireTV Account; (ii) to terminate a newsletter subscription please log on to the NoireTV Site account profile page and select your NoireTV newsletter preferences or click the unsubscribe link on the bottom of the NoireTV newsletter.
NoireTV may terminate your account, any subscription (both free and paid) and/or access to all (or any portion of) the NoireTV Services at any time, for any or no reason, with or without prior notice or any explanation, and shall have no liability to you for such termination. Furthermore, even after your account subscription and/or access to the NoireTV Services is terminated by you or NoireTV, this Agreement will remain in full force and effect with respect to your past and future use of the NoireTV Services. If we terminate your user account, subscription and/or access to the NoireTV Services (or any portion of the NoireTV Services) you may not create a new account, purchase a new subscription or try to access the NoireTV Services without NoireTV’s prior written approval. You agree that your account and/or subscription is non-transferable. Any rights to your account and/or NoireTV Services terminate upon your death.
You acknowledge that NoireTV reserves the right to charge a fee for any portion of the NoireTV Services. NoireTV will provide you with advance notice of any such fees, including any change in the amount of such fees, and a way to cancel your account and/or subscription in the event you do not wish to pay the modified fee. If you continue to use the NoireTV Services after the applicable fee has been imposed or increased, you are expressly agreeing to the subscription fee or increase thereto and you will be responsible for paying such fee for the balance of your subscription service. You will not be entitled to a refund of any unused portion of such fees or other payments if NoireTV suspends or terminates your account, and/or access to an NoireTV Site (or any portion of the NoireTV Site), due to your breach of this Agreement or violation of Applicable Law, as determined by NoireTV, in its sole discretion.
Purchasing NoireTV Site Products
If you purchase certain subscription based NoireTV Site Products, your subscription will be automatically renewed and the credit card you provided to the Processor for such NoireTV Site Product will be charged per the billing cycle of your subscription (e.g., monthly, 3-month, 6-month, annual), unless you cancel the subscription prior to the automatic renewal date of the subscription. The renewal charge for your subscription shall be the same as the original purchase price, unless you are otherwise notified in advance. You acknowledge and agree that the authorization to charge your credit card for the subscription shall automatically transfer to any successors or assigns of NoireTV or the Processor, for a substantially similar subscription. Some subscription options include a free trial period. You are allowed only one free trial period. Subsequent subscriptions or upgrades do not qualify for additional free trials.
NoireTV makes no warranty and accepts no liability for any loss or damages whatsoever, relating to, or in connection with, your placement of an order for an NoireTV Site Product with the Processor. NoireTV provides no refunds for, makes no warranty for and accepts no liability, regarding purchases you make on or through any NoireTV Service. You are solely responsible for any and all transactions utilizing your Personal Financial Information, including, but not limited to, any and all charges. You acknowledge and agree that in the event the Processor experiences a data breach that affects any of your information, NoireTV will in no way be responsible or liable to you for any such data breach.
If you have any questions regarding your purchases or transactions or believe that there is an error or unauthorized transaction or activity associated with transactions utilizing your information, you must contact the Processor.
Limited Content License
The NoireTV Services contain information, text, files, images, video, sounds, musical works, works of authorship, materials, applications, software, product names, company names, trade names, logos, designs, and any other materials or content (collectively, “Content”) of NoireTV and NoireTV Affiliates and their licensors and assignors (“NoireTV Content”), as well as materials and Content provided by users (“User Content”) or other third-parties. NoireTV Content contained in the NoireTV Services is protected by copyright, trademark, patent, trade secret and other laws and, as between you and NoireTV, NoireTV, its licensors, or its assignors, own and retain all rights in the NoireTV Content and NoireTV Services. NoireTV hereby grants you a limited, revocable, nonsublicensable, nontransferable license, to access and display or perform the NoireTV Content (excluding any software code) solely for your personal, non-commercial use, in connection with using the NoireTV Services. The NoireTV Services may also contain User Content. Except as provided in this Agreement or as explicitly allowed in the Additional Terms on the applicable NoireTV Service, you may not copy, download, stream capture, reproduce, duplicate, archive, upload, modify, translate, publish, broadcast, transmit, retransmit, distribute, perform, display, sell, frame or deep-link, make available or otherwise use any Content contained in or through the NoireTV Services.
Except as explicitly and expressly permitted by NoireTV or by the limited license set forth above, you are strictly prohibited from creating works or materials (including but not limited to fonts, icons, link buttons, wallpaper, desktop themes, on-line postcards, montages, mash-ups and similar videos, greeting cards and unlicensed merchandise) that derive from or are based on the NoireTV Content. This prohibition applies regardless of whether such derivative works or materials are sold, bartered or given away. Also, 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 notice marked on the NoireTV Content contained in the NoireTV Services or any digital rights management mechanism, device, or other content protection, copy control, or access control measure associated with the NoireTV Content, including geo-filtering mechanisms. Except as necessary in order to make reference to NoireTV or NoireTV Services in a purely descriptive capacity, you are expressly prohibited from using any NoireTV Content in any manner.
You may not, without the NoireTV’s written permission, “mirror” any Contents contained on the NoireTV Site or any other server. You may not use the NoireTV Site for any purpose that is unlawful or prohibited by the Agreement. You may not use the NoireTV Site in any manner that could damage, disable, overburden, or impair the NoireTV Site, or interfere with any other party’s use and enjoyment of the Site. You may not attempt to gain unauthorized access to the NoireTV Site through hacking, password mining or any other means. NoireTV reserves the right, in its sole discretion, to terminate your access to the NoireTV Site, or any portion thereof, at any time, for any reason or for no reason at all, without prior notice or any notice.
Restrictions on Use of the NoireTV Services
NoireTV reserves the right to remove commercial Content in its sole discretion. You understand that you are responsible for all User Content that you post, upload, transmit, email or otherwise make available on, through or in connection with the NoireTV Services. Additionally, you acknowledge that you have no expectation of privacy in or confidentiality with respect to your User Content. Accordingly, please choose carefully the information that you post on, through or in connection with the NoireTV Services. You understand that NoireTV does not control the User Content posted by users via the NoireTV Services and, as such, you understand you may be exposed to offensive, inaccurate or otherwise objectionable User Content. NoireTV assumes no responsibility or liability for any User Content. If you become aware of any misuse of the NoireTV Services, please report this immediately here .
NoireTV assumes no responsibility for monitoring the NoireTV Services for inappropriate Content or conduct. If at any time, NoireTV chooses in its sole discretion to monitor the NoireTV Services, NoireTV nonetheless assumes no responsibility for Content other than NoireTV Content, assumes no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of any user or visitor.
You agree not to use the NoireTV Services to:
Post, upload or otherwise transmit or link to content that is: unlawful; threatening; abusive; obscene; vulgar; sexually explicit; pornographic or inclusive of nudity; offensive; excessively violent; invasive of another’s privacy, publicity, contract or other rights; tortious; false or misleading; defamatory; libelous; hateful; or discriminatory;
Violate the rights of others including patent, trademark, trade secret, copyright, privacy, publicity or other proprietary rights;
Harass or harm another person;
Exploit or endanger a minor;
Impersonate or attempt to impersonate any person or entity;
Introduce or engage in activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of or access to a computer or a computer network;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising the NoireTV Services;
Interfere with, damage, disable, disrupt, impair, create an undue burden on, or gain unauthorized access to the NoireTV Services, including NoireTV’s servers, networks or accounts;
Cover, remove, disable, block or obscure advertisements or other portions of the NoireTV Services;
Delete or revise any information provided by or pertaining to any other user of the NoireTV Services;
Use technology or any automated system such as scripts, spiders, offline readers, or bots in order to collect or disseminate usernames, passwords, email addresses or other data from the NoireTV Services, or to circumvent or modify any security technology or software that is part of the NoireTV Services;
Send or cause to send (directly or indirectly) unsolicited bulk messages or other unsolicited bulk communications of any kind through the NoireTV Services. If you do so, you acknowledge you will have caused substantial harm to NoireTV, but that the amount of harm would be extremely difficult to measure. As a reasonable estimation of such harm, and by way of liquidated damages and not as a penalty, you agree to pay NoireTV $50 for each actual or intended recipient of such communication;
Solicit, collect or request any personal information for commercial or unlawful purposes;
Post, upload or otherwise transmit an image or video of another person without that person’s consent;
Engage in commercial activity (including, but not limited to, advertisements or solicitations of, business; sales; contests; sweepstakes; creating, recreating, distributing or advertising an index of any significant portion of the NoireTV Content; or building a business using the NoireTV Content) without NoireTV’s prior written consent; using technology or other means to access, index, frame, or link to the NoireTV Services (including the Content) that is not authorized by NoireTV (including, without limitation, by removing disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized download, stream capture, linking, framing, reproduction, access to, or distribution of NoireTV Content);
Accessing NoireTV 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 NoireTV Services and excluding those search engines or indices that host, promote, or link primarily to infringing or unauthorized content;
Use the NoireTV Services to advertise or promote competing services;
Use the NoireTV Services in a manner inconsistent with any and all Applicable Law;
Attempt, facilitate or encourage others to do any of the foregoing.
NoireTV reserves the right, but disclaims any obligation or responsibility, to remove User Content that violates this Agreement, as determined by NoireTV, or for any other reason in NoireTV’s sole discretion and without notice to you. You acknowledge that NoireTV reserves the right to investigate and take appropriate legal action against anyone who, in NoireTV’s sole discretion, violates this Agreement, including but not limited to, terminating their account and/or subscription and/or reporting such User Content, conduct, or activity to law enforcement authorities.
You acknowledge, consent and agree that NoireTV may access, preserve or disclose information you provide to or through the NoireTV Services or that we have collected about you, including registration information and User Content, when NoireTV has a good faith belief that such access, preservation or disclosure is necessary in order to: (i) protect, enforce, or defend the legal rights, privacy, safety, or property of NoireTV, our parents, subsidiaries or affiliates (“NoireTV Affiliates”), or their employees, agents and contractors (including enforcement of this Agreement or our other agreements); (ii) protect the safety, privacy, and security of users of the NoireTV Services or members of the public, including in urgent circumstances; (iii) protect against fraud or for risk management purposes; (iv) comply with Applicable Law or legal process; or (v) respond to requests from public and government authorities. If NoireTV sells all or part of its business or makes a sale or transfer of its assets or is otherwise involved in a merger or transfer of all or a material part of its business, NoireTV may transfer your information to the party or parties involved in the transaction as part of that transaction.
NoireTV reserves the right to limit the storage capacity of User Content. You assume full responsibility for maintaining backup copies of your User Content, and NoireTV assumes no responsibility for any loss of your User Content due to it being removed by NoireTV or for any other reason.
User Content on Message Boards and Forums
NoireTV may offer users the ability to post messages on message boards and forums (collectively, “Forums”), which may be open to the public generally, to all members of NoireTV Services or to a select group of NoireTV Service members. You acknowledge that all User Content posted by you on Forums is User Content, and by posting on Forums you agree to comply with the rules and restrictions on User Content set forth above and any other rules specifically applicable to such Forums. NoireTV reserves the right, but disclaims any obligation or responsibility, to prevent you from posting User Content to any Forum and to restrict or remove your User Content from a Forum or refuse to include your User Content in a Forum for any reason at any time, in NoireTV’s sole discretion and without notice to you. We ask you not to disclose any sensitive information (e.g., social security numbers, health or criminal background) on or through the NoireTV Services, including the Forums or otherwise.
Your Proprietary Rights in and License to Your User Content
NoireTV does not claim any ownership rights in the User Content that you post, upload, email, transmit, or otherwise make available (collectively, “Transmit”) on, through or in connection with the NoireTV Services, except with respect to your unsolicited submissions, as described under “Unsolicited Submissions” below; provided, however, that User Content shall not include any NoireTV Content or content owned by an NoireTV Affiliate. By posting or transmitting any User Content on, through or in connection with the NoireTV Services, you hereby grant to NoireTV and our NoireTV Affiliates, licensees, assignees, and authorized users, a worldwide, perpetual, irrevocable, non-exclusive, fully-paid and royalty-free, freely sublicensable and transferable (in whole or in part) right (including any moral rights) and license to use, modify, excerpt, adapt, publish, translate, create derivative works and compilations based upon, publicly perform, publicly display, reproduce, sublicense, broadcast and distribute such User Content, including your name, voice, likeness and other personally identifiable information to the extent that such is contained in User Content, anywhere, in any form and on and through all media formats now known or hereafter devised, for any and all purposes including, but not limited to, promotional, marketing, trade or any non-commercial or commercial purposes. Additionally, NoireTV is free to use any ideas, concepts, know-how, or techniques contained within such User Content for any purpose including, but not limited to, developing, manufacturing, marketing and providing commercial products and services, including NoireTV Services. NoireTV’s use of such User Content shall not require any further notice or attribution to you and such use shall be without the requirement of any permission from or any payment to you or any other person or entity. You hereby appoint NoireTV as your agent with full authority to execute any document or take any action, NoireTV may consider appropriate in order to confirm the rights granted by you to NoireTV in this Agreement.
You represent and warrant that: (i) you own the User Content Transmitted by you on, through or in connection with the NoireTV Services and/or Third-Party Services, or otherwise have the right to grant the license set forth in this section, and (ii) the Transmission of User Content by you on, through or in connection with the NoireTV Services and/or Third-Party Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of the use of any User Content Transmitted by you on or through the NoireTV Services or Third-Party Services. If you delete your User Content from any NoireTV Service, NoireTV’s license to such User Content will end after a reasonable period of time necessary for the deletion to take full effect. However, the User Content may be retained in the NoireTV’s back-up copies of the applicable NoireTV Service, which are not publicly available. Furthermore, to the extent that NoireTV made use of your User Content before you deleted it, NoireTV will retain the right to make such pre-existing uses even after your User Content is deleted. You acknowledge that (i) deletion of your User Content from NoireTV Services will not result in, and NoireTV assumes no responsibility for, the deletion of such User Content by any third-parties who were provided with or had access to such User Content prior to your deleting it from NoireTV Services, and (ii) termination of your account or your use of the NoireTV Services will not result in the immediate or automatic deletion of your User Content consistent with this Agreement.
Removal of Material that Infringes Copyrights
NoireTV respects the intellectual property of others and requires that our users do the same. NoireTV has a policy that provides for the termination in appropriate circumstances of users and account holders of NoireTV Services who are repeat infringers. NoireTV also reserves the right to remove or disable access to any transmission of Content that infringes the copyright of any person under the laws of the United States upon receipt of a notice that substantially complies with the requirements of 17 U.S.C. § 512(c)(3) as set forth above.
If you believe materials on the NoireTV Services infringes your copyright.
If you believe that any materials residing on or linked to from NoireTV Services infringes your copyright, you must send a written notification of claimed infringement that contains substantially all of the following information to the NoireTV Copyright Agent: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit NoireTV to locate the material on the NoireTV Services (such as the URL(s) of the claimed infringing material); (c) information reasonably sufficient to permit NoireTV to contact you, such as an address, telephone number, and an email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or Applicable Law; (e) a statement by you that the above information in your notification is accurate and a statement by you, made under penalty of perjury, that you are the owner of an exclusive right that is allegedly infringed or are authorized to act on the owner’s behalf; and (f) your physical or electronic signature. NoireTV’s Copyright Agent for notification of a claimed infringement can be reached as follows: Copyright Agent, NoireTV Networks, LLC, 10201 W. Pico Blvd., Los Angeles, CA 90035; Facsimile: (310) 969-5660; Phone: (310)369-7069. Please be sure to send the notification to the attention of the NoireTV Site on which your claimed infringement occurred. If you wish to notify the NoireTV Copyright Agent electronically, please submit an email to [email protected]
If you posted materials to an NoireTV Service that was removed due to notice by a copyright owner.
If you posted materials to the NoireTV Services that NoireTV removed due to a notice of a claimed infringement from a copyright owner, NoireTV will take reasonable steps promptly to notify you that the material has been removed or disabled. This notice may be by means of a general notice on NoireTV Services or by written or electronic communication to such address(es) you have provided to NoireTV, if any. You may provide counter-notification in response to such notice in a written communication that includes substantially all of the following: (i) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (ii) a statement by you, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (iii) your name, address, telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which NoireTV may be found, and that you will accept service of process from the person who provided notification requesting the removal or disabling of access to the material or such person’s agent; and (iv) your physical or electronic signature.
Please note that, under 17 U.S.C. §512(f), any person who knowingly makes material misrepresentations in a notification of claimed infringement or any counter-notification may be liable for damages.
Third-Party Links and Services
Sweepstakes and/or Contests
Sweepstakes, contests, games and other promotions run on the NoireTV Services by NoireTV may require you to provide some information such as full name, zip code, e-mail address, and phone number, in order to participate. NoireTV may use a reputable third-party, selected by, but not affiliated with NoireTV, to manage and administer some or all of its sweepstakes, contests, games and other promotions. This third-party may have access to some or all of the information that you provided in order to participate in the sweepstakes, contests, games or other promotion. Our sweepstakes and/or contests are targeted to individuals 18 years of age and older, and individuals under 18 years of age are not eligible to participate unless specifically permitted by the official rules of the related sweepstakes or contest. NoireTV requires proof of age in order for an individual to collect any prizes awarded.
You are solely responsible for your interactions with other NoireTV users and visitors, providers of Third-Party Services, Processors or any other parties with whom you interact on, through or in connection with the NoireTV Services. NoireTV reserves the right, but has no obligation, to become involved in any way with these disputes.
THE NoireTV SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND NoireTV DOES NOT GUARANTEE OR PROMISE ANY SPECIFIC RESULTS FROM USE OF OR CONTINUOUS AVAILABILITY OF THE NoireTV SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NoireTV 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, NoireTV MAKES NO WARRANTY THAT YOUR USE OF THE NoireTV SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS TO THE NoireTV SERVICES WILL BE CORRECTED, THAT THE NoireTV SERVICES 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 NoireTV 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 UNDER NO CIRCUMSTANCES WILL NoireTV OR OUR NoireTV AFFILIATES 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 NoireTV SERVICES, PROBLEMS OR TECHNICAL MALFUNCTION IN CONNECTION WITH USE OF THE NoireTV SERVICES, ATTENDANCE AT AN NoireTV EVENT, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH THE NoireTV SERVICES, ANY USER CONTENT, ANY THIRD-PARTY ADVERTISEMENT OR THIRD-PARTY SERVICE TRANSMITTED ON, THROUGH OR IN CONNECTION WITH THE NoireTV SERVICES, OR THE CONDUCT OF ANY USERS OF THE NoireTV SERVICES, WHETHER ONLINE OR OFFLINE. YOUR USE OF USER CONTENT, 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 NoireTV SERVICES, AND ANY INFORMATION TRANSMITTED OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW YOU ASSUME RESPONSIBILITY 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 NoireTV SERVICES. User Content, third-party advertisements and Third-Party Services do not necessarily reflect the opinions or policies of NoireTV or our NoireTV Affiliates.
Limitation on Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW NoireTV OR OUR NoireTV AFFILIATES WILL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE NoireTV SERVICES, EVEN IF NoireTV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW NoireTV AND OUR NoireTV AFFILIATES’ 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 NoireTV, FOR THE NoireTV SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM.
YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF NoireTV’S ACTS OR OMISSIONS OR YOUR USE OF NoireTV SERVICES 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 ANY PORTION OF THE NoireTV SERVICES.
THE LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF NoireTV HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
United States Jurisdiction
NoireTV provides the NoireTV Services in the United States of America. NoireTV does not represent that the NoireTV Content, NoireTV Services are appropriate (or, in some cases, available) for use in other locations. If you use the NoireTV Services from a jurisdiction other than the United States, you agree that you do so of your own initiative, and you are responsible for complying with local laws as applicable to your use of the NoireTV Services.
Not all of the NoireTV Services are available worldwide or nationwide, and NoireTV makes no representation that you will be able to obtain any NoireTV Services in any particular jurisdiction, either within or outside of the United States.
U.S. Export Controls
Software available in connection with the NoireTV Services (the “Software”) is further subject to United States export controls. No Software may be downloaded from the NoireTV Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
(2) This Agreement evidences 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 this Agreement.
(3) Any arbitration between you and NoireTV 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 NoireTV 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 NoireTV 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 http://www.jamsadr.com/consumer-arbitration/. The arbitrator is bound by the terms of this Agreement.
(4) If either you or NoireTV wants to arbitrate a Dispute, you or NoireTV 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 NoireTV Service to which the Notice relates, and the relief requested. Your Notice to the NoireTV must be sent by mail to Arbitration Notice of Dispute, 2121 Avenue of the Stars, 7th Floor, Los Angeles, California, 90067. The NoireTV 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. If you and we do not resolve the Dispute within those first 45 days, either you or we may initiate arbitration in accordance with the rules and procedures provided for by 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 NoireTV at the address listed above to which you sent your Notice of Dispute.
(5) You and NoireTV acknowledge and agree to abide by the following rules for arbitration: (a) YOU AND NoireTV 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) NoireTV will pay arbitration costs as required by the JAMS Consumer Arbitration Minimum Standards and consistent with paragraph 6 below; (c) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (d) each side pays his, her or its own attorneys’ fees, except as otherwise provided in paragraph 8 below.
(6) 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 NoireTV, you and NoireTV acknowledge and agree to abide by the following:
If you are seeking to recover less than $10,000 (inclusive of attorneys’ fees), NoireTV 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 NoireTV will reimburse the filing fee if you prevail on all claims decided upon by the arbitrator.
NoireTV 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. NoireTV 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.
NoireTV 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.
(7) Regardless of how the arbitration proceeds, each of you and NoireTV 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.
(8) Each of you and NoireTV 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 NoireTV failed to make a settlement offer to you before the arbitration or the amount you win is at least 25% greater than NoireTV’s highest settlement offer to resolve the Dispute, then NoireTV will pay your reasonable attorneys’ fees in addition to the amount the arbitrator awarded. If NoireTV 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 Dispute 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.
(9) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. The arbitrator may not order NoireTV to pay any monies to or take any actions with respect to persons other than you, unless NoireTV explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order. . Further, unless NoireTV 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.
(10) You and NoireTV 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, or unless otherwise required by law or court order.
(11) With the exception of subpart (a) in paragraph (5) (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 (5) is found invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, but the rest of this Agreement, including the provisions governing where actions against NoireTV 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.
This Agreement will be governed by, and construed in accordance with, the laws of the State of New York, 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 NoireTV agree to submit to the exclusive jurisdiction of the courts located in New York, New York to resolve any Dispute arising out of this Agreement or the NoireTV 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 NoireTV SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ACCRUES. AFTER SUCH PERIOD, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
You agree to indemnify and hold NoireTV, its NoireTV Affiliates, 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 misuse of the NoireTV Services, your breach of this Agreement, your violation of any rights of another or any User Content that you post or otherwise submit on, through or in connection with the NoireTV Services.
NoireTV does not knowingly accept, via the NoireTV Services or otherwise, unsolicited submissions including, without limitation, submissions by you of blog ideas, articles, scripts, story lines, fan fiction, characters, drawings, information, suggestions, proposals, ideas or concepts. NoireTV requests that you do not make any unsolicited submissions. Any similarity between an unsolicited submission and any elements in any NoireTV or NoireTV Affiliate creative work, including without limitation, a film, series, story, title or concept would be purely coincidental. If you do send any submissions to NoireTV via the NoireTV Services that are unsolicited (including but not limited to any Forum), however, you agree that (i) your unsolicited submissions are not being made in confidence or trust and that by making such submissions, no contractual or fiduciary relationship is created between you and NoireTV; (ii) any such unsolicited submissions and copyright becomes the property of and will be owned by NoireTV (and are not User Content licensed by you to NoireTV under “Your Proprietary Rights in and License to Your User Content”) and may be used, copied, sublicensed, adapted, transmitted, distributed, publicly performed, published, displayed or deleted as NoireTV sees fit; (iii) you are not entitled to any compensation, credit or notice whatsoever in connection with such unsolicited submissions; and (iv) by sending an unsolicited submission, you waive the right to make any claim against NoireTV or NoireTV Affiliates relating to any unsolicited submissions by you, including, without limitation, unfair competition, breach of implied contract or breach of confidentiality.
NoireTV may, from time to time, post NoireTV employment opportunities on the NoireTV Services and/or invite users to submit resumes to it. If you choose to submit your name, contact information, resume and/or other personal information to NoireTV in response to employment listings, you are authorizing NoireTV to utilize this information for all lawful and legitimate hiring and employment purposes. NoireTV also reserves the right, at its sole discretion, to forward the information you submit, to its NoireTV Affiliates for legitimate business purposes. Nothing in this Agreement or contained in the NoireTV Services will constitute a promise by NoireTV to contact, interview, hire or employ any individual who submits information to it, nor will anything in this Agreement or contained in the NoireTV Services constitute a promise that NoireTV will review any or all of the information submitted to it by users of the NoireTV Services.
The failure of NoireTV to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The Section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. Except as otherwise expressly provided herein, if any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
You agree that any notices the NoireTV may be required by Applicable Law to send to you will be effective upon NoireTV’s sending an e-mail message to the e-mail address you have on file with NoireTV or publishing such notices on the informational page(s) of NoireTV Services.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and NoireTV as a result of this Agreement or your use of the NoireTV Services. A printed version of this Agreement and of any notice related to it shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other business documents and records originally generated and maintained in printed form.
Nothing contained in this Agreement limits NoireTV’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the NoireTV Services or information provided to or gathered by us in connection with such use.
If you would like to contact any NoireTV Site with any questions regarding this Agreement, please contact us here
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.