THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER (DISPUTE RESOLUTION; ARBITRATION AGREEMENT; CLASS ACTION WAIVER) BELOW GOVERN THE RESOLUTION OF DISPUTES. PLEASE READ THEM CAREFULLY. IF YOU DO NOT AGREE WITH THE DISPUTE RESOLUTION; ARBITRATION AGREEMENT; CLASS ACTION WAIVER IN THESE TERMS OF SERVICE, PLEASE DO NOT USE THE SERVICES..
YOUR RIGHT TO USE THE SERVICES IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF THESE TERMS OF SERVICE. BY CLICKING ON THE “ACCEPT” BUTTON AND USING THE SERVICES, YOU UNCONDITIONALLY AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF THESE TERMS OF SERVICE ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH ANY PROVISION OF THESE TERMS OF SERVICE, YOU MUST CLICK ON THE “CANCEL” BUTTON AND MAY NOT ACCESS OR USE THE SERVICES IN ANY MANNER FOR ANY PURPOSE.
Acceptance of Terms of Service
- By registering for and/or using the Services in any manner, including but not limited to visiting or browsing the Site and/or downloading the Applications, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Site by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.
- Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
- These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.
- In some countries, the law requires that we put a data protection agreement in place if customer information includes Personal Data (as defined in the applicable agreement) as part of the Services. Such agreement is found HERE.
You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
To sign up for the Services, you must register for either a team leader account (each, a “Team Leader Account”) or a team member account (a “Team Member Account”) on the Services (each, an “Account”). The user responsible for creating a Team Leader Account (the ” Team Leader”) will be responsible for inviting team members (each, a “Team Member”) to create Team Member Accounts associated with such a Team Leader Account. You must provide accurate and complete information and keep your Account information updated. You shall not: (i) use the name of another person with the intent to impersonate that person or (ii) use the name of a person other than you without appropriate authorization. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licences from state authorities), breach of security or unauthorised use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates.
- Definition. For purposes of these Terms of Service, the term “Content” includes, without limitation, information, videos, audio files, data, text, photographs, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, “Content” also includes all User Content (as defined below).
- User Content. All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively ” User Content”), whether publicly or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
- Notices and Restrictions. The Services may contain Content specifically provided by us, our partners or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
- Use License. Subject to your compliance with these Terms of Service and applicable law, you may access and use the Services (i.e., to download Content and display locally) that we make available, and that you licence from us. Use, reproduction, modification, distribution or storage of any Content for purposes other than using the Services is expressly prohibited without prior written permission from us. You shall not sell, licence, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right. Your licence to use and access the Services and the Content is automatically revoked if you violate these Terms of Service, including in any manner that violates our intellectual property rights. All rights not explicitly granted to you are reserved by us. You may provide comments, suggestions, bug or crash reports, and recommendations to us with respect to the Services (including without limitation with respect to modifications, enhancement, improvements, and other changes to the Services) (collectively, the “Feedback”). In such event, then you grant us a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, sublicensable, and transferable licence to make, use, sell, have made, offer to sell, import, export, reproduce, publicly display, distribute, modify, and publicly perform the Feedback.
- User Content License Grant. By submitting User Content through the Services, you hereby do and shall grant us a worldwide, non-exclusive, revocable, royalty-free, fully paid, sublicensable and transferable right and licence to access, use, adapt, convert, transcode, reproduce, distribute, display, perform, disclose, transmit, store and cache the User Content solely to the extent necessary to provide the Services or as otherwise permitted by these Terms of Service, which licence shall terminate upon the deletion or removal of any such User Content from the Services. For clarity, the foregoing licence granted to us does not affect your other ownership or licence rights in your User Content, including the right to grant additional licences to your User Content, unless otherwise agreed in writing. We do not claim ownership of User Content that is transmitted, stored, processed, or linked in your Account or through the Services. You represent and warrant that you have all rights to grant such licences to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
- Sharing of Content. When you add, create, upload, submit, distribute or post User Content to a Project, such User Content is accessible by any and all Team Members associated with the applicable Team Leader Account. You hereby do and shall grant each such Team Member with whom you share User Content through a Project the ability to access, use, import, edit, modify, truncate, aggregate, adapt, reproduce, distribute, display, publish, disclose, transmit, prepare derivative works of, store, cache and perform such User Content, including after termination of your Team Member Account or the Services. When you send a link to a Project to a Collaborator, you understand that each such Collaborator has the ability to view, access and display such Project, including after termination of your Team Member Account or the Services. In addition, when you send a link to a Project to a Collaborator, you may choose to grant the applicable Collaborator any or all of the following additional rights: download the Project, publish such link to such Project, and/or invite third parties to view, access and display such Project. Through its use of Firefilm, if you initiate or are invited by another individual or organisation that is using Firefilm products and services under a separate agreement with Firefilm (“Third-Party Account Holder”) to Share (as defined below) or edit User Content in a document, space, library, canvas or other collaboration environment controlled by the Third-Party Account Holder (each a “Collaboration Space”), you acknowledge and agree that the Third-Party Account Holder is solely responsible for implementing the settings, including commenting, editing, access, publication and ownership settings, for all content, including User Content, in the Collaboration Space. The Third-Party Account Holder will be able to restrict or terminate your access to the Collaboration Space at any time. If you do not want the Third-Party Account Holder to control your User Content, you should not Share or edit your User Content in a Collaboration Space and should maintain back-up copies of User Content. Firefilm has no responsibility or liability for any loss, use or misuse of User Content in a Collaboration Space. You acknowledge and agree that (A) Firefilm will not be a party to any disputes between you and any Third-Party Account Holder; (B) you will not seek to make Firefilm a party to any such dispute, and (C) Firefilm will have no liability or obligation to either you or a Third-Party Account Holder for any content, including User Content, subject to such a dispute. “Share” means to email, post, transmit, stream, upload, or otherwise make User Content available to a Third-Party Account Holder or other third party through your use of the Services.
- Content Deletion. Any User Content made available through a Project will continue to be available on such Project unless and until the applicable Team Leader Account is terminated from the Services or the applicable User Content is deleted from the Services, at which point such User Content will be removed from the Services in conformance with Firefilm’s then current data retention policies and procedures. User Content can be removed by the Team Leader responsible for the applicable Project or any applicable Team Member.
- Warranties. You hereby represent and warrant that (i) your User Content and the availability thereof through the Services does not and will not infringe or violate the rights of any third party, including without limitation any intellectual property rights, performers’ rights, rights of privacy or publicity, or rights in confidential information, (ii) you have obtained any and all necessary consents, permissions and/or releases from any and all persons appearing in any User Content in order to include their name, voice, performance or likeness in any User Content and to publish the same on the Services, and (iii) the storage, use or transmission of any User Content does not violate any law or these Terms of Service.
- Free Memberships, Offers, or Trials. Firefilm may offer free memberships, offers, and trial memberships in its sole discretion. If access to the Services is provided to you for free or for trial purposes, such access is governed by these Terms of Service. At any time prior to or during the free or trial period, Firefilm may, in its sole discretion, terminate the free or trial access without prior notice and without any liability to you, to the extent permitted under applicable law, for any reason, including to prevent abuse of the free or trial access. After the free or trial access period expires, you may continue using the Services only by enrolling in a paid subscription, if available, or as otherwise permitted by Firefilm. During the free or trial period, no express or implied warranties shall apply to the Services, all Services are provided “as-is” with all defects, and no technical or other support is included.
- NFR Version. Firefilm may also designate the Services as “trial, “evaluation,” “not for resale,” or other similar designation (“NFR Version”). You may install and use the NFR Version only for the period and purposes stated when we provide the NFR Version. You must not use any materials you produce with the NFR Version for any commercial purposes.
- Pre Release or Beta Version. We may designate the Services, or a feature of the Services, as a pre release or beta version (“Beta Version”). A Beta Version does not represent the final product and may contain bugs that may cause system or other failure and data loss. We may choose not to release a commercial version of the Beta Version. You must promptly cease using the Beta Version and destroy all copies of the Beta Version if we request you to do so. In exchange for your use of a Beta Version, you agree that Firefilm may collect data regarding your use of the Beta Version to improve our products and personalise your experience, regardless of whether or not you have opted-out of data collection for non-Beta Versions. If you do not wish to have your usage tracked, you must discontinue your use of the Beta Version by uninstalling such Beta Version or utilising a non-Beta Version of the Services. Any separate agreement we enter into with you governing the Beta Version will supersede these provisions.
- Availability of Content. We do not guarantee that any Content will be made available on the Site or through the Services. We reserve the right to, but do not have any obligation to, (i) remove, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all and (ii) to remove or block any Content from the Services.
- Unauthorised Use. You must immediately notify us in writing of any unauthorised use of any (i) Content (including User Content), (ii) Account or (iii) the Services that come to your attention. In the event of any such unauthorised use by any third party that obtained access through you, please refer to the Intellectual Property Removal Policy. You will take all steps necessary to terminate such unauthorised use. You will provide us with such cooperation and assistance related to any such unauthorised use as we may reasonably request. You acknowledge that if you wish to protect your transmission of User Content to us, it is your responsibility to use a secure encrypted connection to communicate with the Services.
- Business Email Domains. As a Personal User or a Business User, you may create a Firefilm account using an email address provided or assigned to you by a Business (such as your work email address). If the Business establishes a direct relationship with us, they may want to add your account to such a relationship. If this happens, the Business may, with prior notice, roll your account into the Business’s account. This means the Business may (A) access the account; (B) take control over the account and any Content therein whether stored, uploaded, or imported before or after the date these Terms of Service were last updated; and (C) recommend any non-Business Content associated with such account to be moved to a new account that utilises an email address not associated with such Business. You, as an individual or a Business User, also acknowledge that Firefilm may provide your personal information to such Business, such as your name or email address. If you do not want a Business to access, use, remove, retain, or control an account or profile, then do not use a Business email address with that account.
Rules of Conduct
- As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Service or applicable law. You are responsible for all of your activity in connection with the Services, including without limitation your conduct, your User Content, and your communications with others.
- You shall promptly handle and resolve any notices and claims relating to your Content, including any notices sent to you by any person claiming that any of your Content violates any person’s rights.
- You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
- fails to comply with these Terms of Service;
- infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty (see our Intellectual Property Removal Policy);
- is unlawful, threatening, abusive, harassing, defamatory, libellous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, offensive or is otherwise inappropriate as determined by us in our sole discretion;
- constitutes unauthorised or unsolicited advertising, junk or bulk e-mail (“spamming”);
- contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorised access to any system, data, password or other information of ours or of any third party;
- impersonates any person or entity, including any of our employees or representatives; or
- includes anyone’s identification documents or sensitive financial information.
- You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’ (“Third Party Providers”)) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
- You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any Applications), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
- We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
- Ownership of User Content. You (as a Business or an individual, as applicable) retain all rights and ownership of your User Content. We do not claim any ownership rights to your User Content.
- Firefilm Intellectual Property. We (and our licensors) remain the sole owner of all right, title, and interest in the Services. Except as stated in the Terms of Service, we do not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the items in the Services. We reserve all rights not granted under the Terms of Service.
Third Party Services
The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
In App Purchases
Through the Applications, you may purchase (“In App Purchase”) certain goods designed to enhance the performance of the Services (” Goods”). When you purchase Goods, you are doing so through either Apple iTunes service or the Google Play service and you are agreeing to their respective Terms and Conditions. ( http://www.apple.com/legal/internet-services/itunes/us/terms.html ; http://play.google.com/intl/en_us/about/play-terms.html ). We are not a party to any In App Purchase.
Payments and Billing
- Paid Services. Certain of our Services may be subject to payments now or in the future (the “Paid Services”). Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of this Agreement.
- Taxes and Third-Party Fees. You must pay any applicable taxes and third-party fees (including, for example, telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, VAT, foreign exchange fees, and foreign transaction fees). We are not responsible for these fees. Contact your financial institution with questions about fees. We may take steps to collect the fees you owe us. You are responsible for all related collection costs and expenses. If you are located in a different country from the applicable Firefilm entity with which you are transacting, your payments will be made to a foreign entity.
- Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand. You authorise us to store any payment method you provide and use it in connection with your use of the Services. If your primary payment method fails or if the full amount fails to be charged, you authorise us to charge any other payment method in your account for the payment amount owed, including partial or incremental payment amounts. If you have not provided us with a backup payment method(s) and you fail to provide full payment, or if all payment methods in your account fail, we may suspend your access to the Services.
- Recurring Billing. Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO https://app.Firefilm/account.
- Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELLED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORISED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ttps://app.Firefilm/account. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT AND THAT WE MAY PARTICIPATE IN PROGRAMS TO TRY TO UPDATE YOUR PAYMENT INFORMATION IN ORDER TO CHARGE YOU FOR AMOUNTS OWED UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
- Change in Amount Authorised. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
- Auto-Renewal for Subscription Services. Unless you opt out of auto-renewal, which can be done through your Account Settings https://app.Firefilm/account, any Subscription Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign your Subscription Services at any time, go to Account Settings. If you terminate a Subscription Service, you may use your subscription until the end of your then-current term; your subscription will not be renewed after your then-current term expires. However, you won’t be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
- Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorised to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
- Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. You must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Service, please contact us via Support.
Apple Device and Application Terms
If you are accessing the Services via an application on a device provided by Apple, Inc. (“Apple”) or an application obtained through the Apple App Store, the following shall apply:
- Both you and Firefilm acknowledge that these Terms of Service are concluded between you and Firefilm only, and not with Apple, and that Apple is not responsible for the Application or the Content;
- The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms of Service as they are applicable to the Services;
- You will only use the Application in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
- You acknowledge and agree that Firefilm, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
- You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Firefilm, and not Apple, will be responsible for the investigation, defence, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and Firefilm acknowledge and agree that, in your use of the Application, you will adhere to any applicable third party terms of agreement which may affect or be affected by such use; and
- Both you and Firefilm acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Service, and that upon your acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as the third party beneficiary hereof.
Firefilm may, in its sole discretion, create referral and/or promotional codes as a standalone code or as appended to a personalised referral URL (“Promo Codes”) that may be redeemed for discounts on future Services and/or a Third Party Provider’s services, or other features or benefits related to the Services and/or a Third Party Provider’s services, subject to any additional terms that Firefilm establishes as part of a referral program. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by Firefilm; (iii) may be disabled by Firefilm at any time for any reason without liability to Firefilm; (iv) may only be used pursuant to the specific terms that Firefilm establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Firefilm reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or Promo Codes by you or any other user in the event that Firefilm determines or believes that the use of the referral system or use or redemption of the Promo Code was in error, fraudulent, illegal, or otherwise in violation of Firefilm’s Terms. If you choose to use our referral program via Promo Codes or other means to tell a friend about our products and services, you represent that you have their consent to provide us your friend’s name and/or email address. We will send your friend one or more emails on your behalf and as requested by you for the sole purpose of inviting him or her to visit the Firefilm website and use the Firefilm products and services. Unless we are authorised by your friend, we will only use your friend’s name and/or email address for the purposes of sending invitation emails on your behalf as requested by you and maintaining an activity log of our referral program.
We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your Account, you may do so by following the instructions on the Site or through the Services. Any fees paid hereunder are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licences of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding:
- which users gain access to the Services;
- what Content you access via the Services; or
- how you may interpret or use the Content.
We strongly encourage and recommend that you maintain appropriate security, protection and backup copies of your Content, which may include your use of additional encryption technology to protect Content (including User Content) from unauthorised access. You acknowledge and agree that we will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content.
You release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (IV) THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; (V) THAT THE SERVICES WILL NOT HARM YOUR COMPUTER SYSTEM; OR (VI) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. WE DO NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF USERS SUBSCRIBING TO OUR SERVICES, NOR DO WE HAVE ANY OBLIGATION TO MONITOR THE USE OF THE SERVICES BY USERS. WE DISCLAIM ALL LIABILITY FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION.
You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, or otherwise from your User Content, violation of these Terms of Service, or infringement by you, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defences.
Limitation of Liability
IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, WARRANTY OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) (HOWEVER ARISING), EVEN IF WE HAD BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES, (II) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE SERVICES, INCLUDING FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF THE GREATER OF (A) FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS THREE (3) MONTH PERIOD OR (B) $500.00.
These limitations and exclusions in this section (Limitation of Liability) apply to the maximum extent permitted by law even if (A) a remedy does not fully compensate you for any losses or fails of its essential purpose; or (B) we knew or should have known about the possibility of damages.
These Terms of Service set forth the entire liability of Firefilm and its affiliates as well as your exclusive remedy with respect to access and use of the Services.
Dispute Resolution; Arbitration Agreement; Class Action Waiver
Notice of Claim and Required Information Dispute Resolution Process. If you have any concern or dispute that Firefilm Support is unable to resolve (“Claim”), you agree to first try to resolve the dispute informally and in good faith by contacting us and providing a written Notice of Claim to the address provided below in the Contact Section. The Notice of Claim must provide Firefilm with fair notice of your identity, a description of the nature and basis of your Claim, and the relief you are seeking, including the specific amount of any monetary relief you are seeking, and cannot be combined with a Notice of Claim for other individuals. If any dispute related to your Claim is not resolved within sixty (60) days of receipt, any resulting legal actions must be resolved through either small claims court or final and binding arbitration, including any dispute about whether arbitration is required for the dispute, subject to the exceptions set forth below. Neither party shall initiate legal action until 60 days after the Notice of Claim is received. This agreement to arbitrate shall apply, without limitation, to all claims that arose or were asserted before the effective date of the Terms. The arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of the Terms of Service or formation of the Terms of Service, including whether any dispute between us is subject to arbitration (i.e., the arbitrator will decide the arbitrability of any dispute) and whether all or any part of these Terms of Service are void or voidable. Claims related to the Terms of Service or Services are permanently barred if not brought within one (1) year of the event resulting in the Claim.
Arbitration Rules. If you reside in the Americas, JAMS will administer the arbitration in Santa Clara County, California, pursuant to its Streamlined Arbitration Rules and Procedures. If you reside in Australia, New Zealand, Japan, mainland China, Hong Kong, Macau, Taiwan, South Korea, India, Sri Lanka, Bangladesh, Nepal, or a member state of the Association of Southeast Asian Nations (ASEAN), then the Singapore International Arbitration Centre (SIAC) will administer the arbitration in Singapore under its Rules of Arbitration, which rules are deemed to be incorporated by reference in this section. Otherwise, the London Court of International Arbitration (LCIA) will administer the arbitration in London, UK under the LCIA Arbitration Rules. There will be one arbitrator that you and Firefilm mutually select. The arbitration will be conducted in the English language, but any witness whose native language is not English may give testimony in the witness’ native language, with simultaneous translation into English (at the expense of the party presenting the witness). Judgement upon the award rendered may be entered and will be enforceable in any court of competent jurisdiction having jurisdiction over you and us. In the event of a conflict between the rules of the arbitration provider and the Terms, including with respect to the assessment of the fees and costs of arbitration, the Terms will govern.
Arbitration Fees and Costs. Payment of all filing, administration, and arbitrator fees and costs of arbitration will be governed by the rules of the arbitration provider, except that to the extent that you bring a Claim as part of a Coordinated Action, we agree that the parties will equally share all of the fees and costs of arbitration (to the extent that allocation is not already required under applicable rules). For purposes of this section, a “Coordinated Action” is any action in which you are represented by a law firm or collection of law firms that has filed numerous coordinated individual arbitration demands of the same or similar nature against Firefilm within a short time. Notwithstanding the above, if you are unable to afford fees or costs of arbitration, Firefilm will pay them. If the arbitrator finds that either the substance of a Claim or the relief sought in arbitration was frivolous, or a Claim was brought for an improper purpose, the parties may seek to re-allocate the fees and costs of arbitration, according to the rules of the arbitration provider.
Exceptions to Arbitration – Small Claims and Injunctive Relief.Notwithstanding the foregoing, either party may elect to have any Claim that is subject to the jurisdiction of small claims court decided in small claims court in Santa Clara County, California, USA, or the county of your residence. If either party files a Claim in arbitration that could have been brought in small claims court, the other party may provide notice that it wants the case decided in small claims court before the appointment of an arbitrator, and the arbitrator shall administratively close the case before assessing any fees, and the party bringing the Claim must proceed in small claims court in lieu of arbitration. Any dispute about whether a Claim qualifies for small claims court shall be resolved by that court, not by an arbitrator. In the event of any such dispute, the arbitration proceeding shall remain closed unless and until a decision by the small claims court that the Claim should proceed in arbitration. Additionally, either party shall be entitled to apply for preliminary injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction, such as in the event of your or others’ unauthorised access to or use of the Services in violation of the Terms of Service. If a party has a dispute in which they seek to obtain both preliminary injunctive relief and other forms of relief, the party may go to court to seek preliminary injunctive relief, but must arbitrate its claims or seek relief in small claims court for all other forms of relief.
Acceptance of Arbitration and Right to Opt Out. Within the first thirty (30) days of your use of the Services or the date of the last update to this Section of the Terms of the Service, whichever is later, you have the right to opt out of the arbitration and class action waiver provisions of this Section by sending us written notice of your decisions at the address set forth in the Contact Section. If you opt out of these provisions, Firefilm will also not be bound by them.
No Class Actions. You may only resolve disputes with us on an individual basis, and you may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Nonetheless, if any portion of this class action waiver is deemed unenforceable or invalid as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes.
Audits. If you are a Business, then we may, no more than once every twelve (12) months, upon at least seven (7) days’ prior notice to you, appoint our personnel or an independent third-party auditor who is obliged to maintain confidentiality, to inspect (including manual inspection, electronic methods, or both) your records, systems, and facilities to verify that your installation and use of Services comply with our Terms of Service. Additionally, you will provide us with all records and information reasonably requested by us within thirty (30) days of our request in order for us to verify that the installation and use of any and all Services is in conformity with your valid licences. If the verification discloses a shortfall in conformity with the licences for the Services, you will immediately acquire any necessary licences in order to remedy any such non-conformity(ies).
Entire Agreement and Severability. These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site and any Applications, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
Assignment. These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing, sent to the address listed in the Contact Section below, and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. We may notify you by your email or postal mail associated with your account, postings within the Services, or other legally accepted means. It is your responsibility to keep your account information current to receive notifications.
No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorised representatives.
Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation
Contact. You may contact us at the following address: Firefilm,