Last modified: February 20, 2017
(SEE SUMMARY OF MOST SIGNIFICANT CHANGES TO LEARN MORE.)
EPIX (AS DEFINED BELOW) IS ONLY AVAILABLE TO RESIDENTS OF THE UNITED STATES OF AMERICA, ITS TERRITORIES AND POSSESSIONS.
This Site is offered and made available only to users 18 years of age or older who reside in the United States of America, its territories and possessions (“U.S.”). If you are not yet 18 years old, or the required greater age for certain features, or do not reside in the U.S. and/or do not meet any other eligibility requirements, or, if for any reason, you do not agree with all of the terms and conditions contained in this Agreement, please discontinue using the Site immediately because by using or attempting to use the Site, you certify that you are at least 18 years of age and meet any other eligibility and residency requirements of the Site and agree to all of the terms and conditions of this Agreement.
These terms and conditions regarding your use of the Site constitute a legally binding agreement between you, on the one hand, and S3P, on the other hand.
The words “use” or “using” in this Agreement means any time an individual (a “user”), directly or indirectly, with or without the aid of a machine or device, does or attempts to access, interact with use, display, view, print or copy from the Site, transmit, receive or exchange data or communicate with the Site, or in any way utilizes, benefits, takes advantage of or interacts with any function, service or feature of the Site, for any purpose whatsoever. This Agreement does not cover your rights or responsibilities with respect to third party content or sites or any links that may direct your browser or your connection to third party sites or pages. This is the entire and exclusive Agreement between you and us regarding use of the Site and it cannot be modified, except as specifically described below in Section 2.
3. Ownership of Intellectual Property
The contents of this Site, including all Site software, design, text, images, photographs, illustrations, audio and video material, artwork, graphic material, databases, proprietary information and all copyrightable or otherwise legally protectable elements of the Site, including, without limitation, the selection, sequence and 'look and feel' and arrangement of items, and all trademarks, service marks and trade names (individually and/or collectively, “Material”), are the property of S3P and its Affiliates, and any of their successors and assigns, and any of their respective licensors, Advertisers (as defined below), suppliers, and operational service providers and are legally protected, without limitation, under U.S. Federal and State, as well as applicable foreign laws, regulations and treaties. Unless the context clearly requires otherwise or we explicitly say so in writing, the term “Site” includes “Material” as well. The Site is to be used solely for your noncommercial, non-exclusive, non-assignable, non-transferable and limited personal use and for no other purposes. You must not alter, delete or conceal any copyright or other notices contained on the Site, including notices on any Material you are permitted to download, transmit, display, print or reproduce from the Site. You shall not, nor will you allow any third party (whether or not for your benefit) to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website), or otherwise use, any Material without the express prior written consent of S3P or its owner if S3P is not the owner. Any unauthorized or prohibited use of any Material may subject you to civil liability, criminal prosecution, or both, under applicable federal, state and local laws. We require users to respect our copyrights, trademarks, and other intellectual property rights. We likewise respect the intellectual property of others. On notice, we will act expeditiously to remove content on the Site that infringes the copyright rights of others and will disable the access to the Site and its services of anyone who uses them to repeatedly infringe the intellectual property rights of others.
We take protection of copyrights, both our own and others, very seriously. We therefore employ multiple measures to prevent copyright infringement over this Site and to promptly end any infringement that might occur. If you believe that the Site contains elements that infringe your copyrights in your work, please follow the procedures set forth in our Copyright Compliance Policy.
From time to time, you may communicate with, receive communications from, be re-directed to, interact with, or participate in or use the services or obtain goods and services of or from, third parties (collectively, the “Advertisers”) such as our advertisers, sponsors, or promotional partners, as a result of your use of the Site. All such communication, interaction and participation is strictly and solely between you and such Advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertiser or any goods or services you may purchase or obtain from any Advertiser).
5. Rules of Conduct
Your use of the Site is subject to all applicable local, state, national laws and regulations and, in some cases, international treaties. You are solely responsible for all activities, acts and omissions that occur in, from, through or under your user name or password. You are also prohibited from using the Site (or attempting to use the Site, or allowing, enabling or condoning others to use the Site) in a manner that:
• is or is likely to be libelous, defamatory, indecent, vulgar or obscene, pornographic, sexually explicit or sexually suggestive, racially, culturally, or ethnically offensive, harmful, harassing, intimidating, threatening, hateful, objectionable, discriminatory, or abusive, or which may or may appear to impersonate anyone else;
• adversely affects or negatively reflects on us, EPIX, our goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else or is likely to do so;
• discourages or is likely to discourage any person, firm or enterprise from using all or any portion, features or functions of the Site, or from advertising, linking or becoming a supplier to us in connection with the Site;
• sends or results in the transmission of junk e-mail, chain letters, duplicative or unsolicited messages, or so-called “spamming” and “phishing”;
• uses the Site for commercial or business purposes, including, without limitation, advertising, marketing or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other website or web pages;
• transmits, distributes or uploads programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horses, spyware, or other potentially harmful programs or other material or information;
• forges any TCP/IP packet header or part of the header information in any email, newsgroup posting or other posting for any reason;
• violates any laws, rules or regulations (including, without limitation, laws regarding the transmission of technical data or software exported from the United States), judicial or governmental order or any treaties, or violates or infringes upon any copyright or other intellectual property rights, rights of publicity or privacy or any other rights of ours or of any other person, firm or enterprise;
• gains or enables unauthorized access to the Site or any of its features or functions, other users' accounts, names, passwords, personally identifiable information or other computers, websites or pages, connected or linked to the Site;
• modifies, disrupts, impairs, alters or interferes with the use, features, functions, operation or maintenance of the Site or the use and enjoyment of the Site by any other person, firm or enterprise;
• collects, obtains, compiles, gathers, transmits, reproduces, deletes, revises, views or displays any material or information, whether personally identifiable or not, posted by or concerning any other person, firm or enterprise, in connection with their or your use of the Site, unless you have obtained the express, prior permission of such other person, firm or enterprise to do so;
• except with our prior permission, uses manual or automated software, devices, scripts, robots or other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Site; or
6. Text Message Marketing and Promotions
If you register for Text Services, you acknowledge, understand and agree that you may be charged by your wireless carrier for the ability to send or receive all such messages. The standard messaging rates of your wireless carrier shall apply to all Text Services, unless noted otherwise. Under no circumstances shall S3P be responsible for any wireless service charges incurred by you or by a person that has access to your wireless device, telephone number, or email address. If you change or deactivate your wireless telephone number, you agree to notify us when your wireless telephone number is no longer associated with you and identify such wireless phone number to ensure that future messages directed to you are not sent to the person to whom your old number has been or will be assigned.
You understand, acknowledge and agree that S3P may, at its sole discretion and without liability to you or any user, terminate its offer of any specific Text Service or all Text Services at any time without advance notice. S3P may provide notice of terminations or changes in services on the Site.
7. Viral Features
Your comments, suggestions and information are important to us. Portions of this Site may provide you and other users an opportunity to participate in forum services, blogs, web communities and other message and communication facilities (“Communities”) and may provide you with the opportunity, through such Communities or otherwise, to submit, post, display, transmit and/or exchange information, ideas, opinions, messages or other information (“Post” or “Postings”)), your submission of which is also governed by the terms and conditions therein, and considered a Posting for purposes of this Agreement. You understand, acknowledge and agree that such Postings are the sole responsibility of the person from which such Postings originated. This means that you are solely and entirely responsible for the consequences of all Postings that you (including, but not limited to, Postings made under your name, user name and/or email address) upload, post, email, transmit or otherwise make available via the Site. Postings do not reflect the views of the Site, S3P or its Affiliates, and S3P does not represent or guarantee the truthfulness, accuracy or reliability of any Posting or endorse or support any opinions expressed in any Postings. S3P does not control any Postings submitted, although we may (in our sole discretion) use automated and/or manual means of reviewing Postings in order to prevent unauthorized content from appearing and being displayed on our Site. S3P reserves the right to review, monitor, edit and/or screen any Postings and to delete, remove, move, re-format, edit or reject, without notice to you, any Postings that we deem, in our sole discretion, to be in violation of this Agreement or to be unacceptable to S3P, or for any reason or for no reason whatsoever; provided, however, that S3P shall have no obligation or liability for failure to do so or for doing so in any particular manner. If we change your Postings, you will not be responsible for any such changes we make.
If we determine, in our sole discretion and judgment, that any Posting does or may violate any of the terms of this Agreement, in addition to our rights as described in this Agreement, we reserve the right, at any time and without limiting any and all other rights we may have under this Agreement, at law or in equity, to: (i) refuse to allow you to Post; (ii) remove and delete Postings; (iii) revoke your right to use the Site; and/or (iv) use any technological, legal, operational or other means available to us to enforce the provisions of this Agreement, including, without limitation, blocking specific IP addresses or deactivating your registration on the Site.
If a Posting originates from you or your account, you hereby agree that:
(a) you specifically authorize the Site, S3P and their Affiliates to use such Posting in whole or in part, throughout the universe, in perpetuity in or on any and all media, now known or hereafter devised, and alone or together with or as part of other information, content and/or material of any kind or nature;
(b) you represent, warrant and covenant that (i) the Posting is original to you and/or fully cleared for use as contemplated herein,(ii) the Posting does and will not, in any way, violate or breach any of the terms of this Agreement, (iii) the Posting does not contain libelous, tortious, obscene or otherwise unlawful material or information, (iv) the Posting, and S3P’s exercise of the rights you grant to S3P to the Postings will not infringe upon, misappropriate or otherwise violate any copyright or other intellectual property, privacy, publicity or other rights of any party, or otherwise violate any other applicable law, rule or regulation, (v) the Posting shall not be injurious to the health of any user, and (vi) we shall not be required to pay or incur any sums to any person or entity as a result of our use or exploitation of the Posting, (vi) all of the information provided by you associated with your Posting is complete and accurate; and
(c) if your Posting incorporates the name, logo, brand, service or trademark, voice, likeness or image of any person, firm or enterprise, you additionally represent, warrant and covenant that (i) you have the right to grant the Site, S3P and its Affiliates the right to use all such Postings as described above, (ii) the Posting was produced in compliance with all applicable laws and regulations, and (iii) for any Posting that contains original videos, you will comply with any applicable identification verification and record-keeping requirements. With the submission of each such Posting, S3P and the Affiliates reserve the right to request that you, and upon such request you must, deliver a full and complete set of such identification verification records to us, as well as a legible photocopy of your valid driver's license, passport or other acceptable government-issued photo identification for our verification and record-keeping purposes. In addition, you specifically acknowledge and agree to abide by our policies regarding governmental certification procedures relating to the foregoing identification verification and record-keeping procedures and, if applicable, you will promptly comply with any specific requests or directions we give you in connection with Postings you submit that may be subject to these requirements.
You understand, acknowledge and agree that we have the right to delete, re-format and/or change your Postings in any manner that we may determine (although you will not be responsible for any such changes made). The amount of storage space on the Site per user is limited. Some Postings may not be processed due to space constraints or outbound message limitations. You understand, acknowledge and agree that we assume no responsibility for deletion of Postings or any failure to store, receive or deliver Postings in a timely manner or any other matter relating to Postings. Posting is for noncommercial purposes only and you may not Post in any manner which does or is intended to promote or generate revenue for any business enterprise or commercial activity.
If you believe that any content on the Site (including, without limitation, Postings) violates any of the terms of this Agreement (except for any notices covered by the Copyright Compliance Policy), please contact us at email@example.com to send us a message about it (please refer to our Copyright Compliance Policy for any notices covered by the Copyright Compliance Policy). We cannot guarantee that we will respond to your message and we reserve the right to take or refrain from taking any or all steps available to us once we receive any such message.
9. Contests, Sweepstakes, Auctions & Promotions
From time to time, EPIX, S3P, the Affiliates or EPIX's operational service providers, suppliers, and Advertisers, may conduct promotions on or through the Site, including, but not limited to, auctions, contests and sweepstakes (“Promotions”). Each Promotion may have Additional Terms and/or Rules which will be posted or otherwise made available to you and, for purposes of each Promotion, will be deemed incorporated into and form a part of this Agreement.
If we offer certain e-Commerce to enable you to purchase goods and services via our shop (the “E-Commerce Service” or “Shop”), additional terms (such as those available on or through the Shop page) apply to your use and access of the E-Commerce Service which are Additional Terms and incorporated herein by reference.
The Shop on certain Sites utilizes third party operational service providers. All purchases made through these third party operational service providers are subject to their respective terms and conditions of use. S3P is not responsible and has no liability whatsoever for goods or services you obtain through our third party operational service providers or other web sites or web pages. We encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online transaction with any of these third parties. S3P does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any such third party, and you irrevocably waive any claim against us with respect to such sites. S3P is not responsible for assisting you in correcting any problem you may experience with goods and services purchased through a third party operational service provider, even if the goods or services were shown on one of the Site’s web pages. S3P cannot ensure that you will be satisfied with any products or services that you purchase from any third party operational service provider as those are owned and operated by independent entities. Customer service issues related to goods or services should be directed to the relevant third party operational service provider.
S3P does not guarantee that product descriptions or other content will be accurate, complete, reliable, current, or error-free. Descriptions and images of, and references to, products on the Site do not imply S3P’s endorsement of such products. Furthermore, customer reviews seen in a Shop are provided by the third party operational service provider’s users and are subject to such third party operational service provider’s own community guidelines. S3P and our third party operational service providers reserve the right, with or without prior notice, to change product descriptions, images, and references; to limit the available quantity of any product; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from conducting any or all transaction(s); and/or to refuse to provide any user with any product. Price and availability of any product are subject to change without notice.
11. Certain Products & Services
(a) RSS Feeds and Podcasts
The Site may provide RSS Feeds (“RSS Feeds”) consisting of selected text, audio, video, and photographic content (“Content”) from the Site that is provided over the Internet using an XML feed. Certain RSS Feeds may be podcasts (“Podcasts”) which may include as part of the Content an associated audio, video and/or photographic file where the audio and/or video file may be downloaded and played from a user's Device or (if permitted) transferred to another Device. Certain software and hardware is required for users to download and view and/or play Content through RSS Feeds.
Content is Material and subject to all of the terms of this Agreement, even though you may download, copy and/or transfer to a Device, or through a Device to another Device, the RSS Feeds and associated Content.
By your access to and use of RSS Feeds, you understand, acknowledge and agree that the Site, S3P and their Affiliates do not warrant that its RSS Feeds will operate on all user equipment. Please see the “Disclaimer and Limitations of Liability” section below for further details.
(b) Mobile Applications
If S3P offers products and services through applications available on your wireless or other mobile Device (such as a mobile phone) (the “Mobile Application Services”), these Mobile Application Services are governed by the Additional Terms governing the applicable Mobile Application Service. These Mobile Application Services may be provided at no charge to you or may be available for a fee, as provided in the applicable Additional Terms, including, but not limited to, the terms presented to you in connection with your download of such Mobile Application Service. In addition, your wireless carrier's standard messaging rates and other messaging, data and other rates and charges will apply to certain Mobile Application Services. You should check with your carrier to find out what plans your carrier offers and how much the plans cost. In addition, the use or availability of certain Mobile Application Services may be prohibited or restricted by your wireless carrier, and not all Mobile Application Services may work with all wireless carriers or Devices. Therefore, you should check with your wireless carrier to find out if the Mobile Application Services are available for your wireless Device, and what restrictions, if any, may be applicable to your use of such Mobile Application Services. If you change or deactivate your wireless telephone number, you agree to promptly update your Mobile Application Services account information or otherwise notify us that the wireless telephone number is no longer associated with you and identify such wireless phone number, to ensure that future messages directed to you are not sent to the person to whom your old number has been or will be assigned.
Under no circumstances will the Site, S3P or any Affiliates be responsible for any wireless email, text messaging or other charges incurred by a user (or any person that has access to a user's wireless device, telephone number, or email address) using any Mobile Application Services.
12. Hyperlinks To Third Party Sites
13. Deactivation or Termination of Your Registration or Use
If you are registered to use the Site, you may deactivate your account on the Site, at any time and for any reason, by contacting the relevant participating provider. If you are unable to deactivate your account on this Site using this method, have a free trial account from S3P, or otherwise have questions about how to deactivate your account, please contact us at firstname.lastname@example.org. We may terminate your use of and registration on the Site, at any time and for any reason, with or without cause, without prior notice to you and without any liability or further obligation of any kind whatsoever to you or any other party.
14. Disclaimer and Limitations of Liability
THE SITE, AND ALL MATERIALS, GOODS AND SERVICES AND POSTINGS ARE MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), OR ANY GUARANTY OR ASSURANCE THE SITE WILL BE AVAILABLE FOR USE, OR THAT ALL FEATURES, FUNCTIONS OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. Without limiting the foregoing, we are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions relating to your use of the Site. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the Site, including, without limitation, Postings and Materials associated with your use of the Site.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THIS SITE, S3P, ANY OF THEIR AFFILIATES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATIONAL SERVICE PROVIDERS, ADVERTISERS, OR SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, RELATING TO USE OF THE SITE OR FROM THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, HOWEVER ARISING OR CAUSED, WHETHER FORESEEABLE OR NOT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OR CHARACTERIZATION OF THE CLAIM AND EVEN IF ADVISED OF THE POSSIBILITY OF DAMAGES. WITHOUT LIMITING THE FOREGOING, THE SITE IS MAINTAINED ON SERVERS IN THE UNITED STATES AND THE CHANNEL AND S3P DISCLAIM ALL LIABILITY FOR ANY USE NOT SPECIFICALLY AUTHORIZED OR THAT IS IN VIOLATION OF THIS AGREEMENT OR THE LAWS OR REGULATIONS THAT MAY APPLY TO YOU IN ANY JURISDICTION OR COUNTRY.
Notwithstanding any claim that a sole or exclusive remedy which is provided in this Agreement may or does fail of its essential purpose, you specifically acknowledge and agree that your sole and exclusive remedy for any loss or damage shall be to have S3P, upon written notice from you to us, attempt to repair, correct or replace any deficient goods or services under this Agreement and, if repair, correction or replacement is not reasonably commercially practicable for S3P, to refund any monies actually paid by you for the goods or services involved and to terminate and discontinue your use of the Site. You further understand and acknowledge the capacity of the Site, in the aggregate and for each user, is limited. Consequently some messages and transmissions may not be processed in a timely fashion or at all, and some features or functions may be restricted or delayed or become completely inoperable. As a result, you acknowledge and agree that S3P assumes no liability, responsibility or obligation to transmit, process, store, receive or deliver transactions or Postings or for any failure or delay associated with any Postings and you are hereby expressly advised not to rely upon the timeliness or performance of the Site for any transactions or Postings. Some jurisdictions do not allow for the exclusion of certain warranties or certain limitations on damages and remedies; accordingly some of the exclusions and limitations described in this Agreement may not apply to you.
You agree to indemnify, defend and hold the Site, S3P, and any of their Affiliates, or any of their successors and assigns, and any of their respective officers, directors, employees, agents, representatives, licensors, Advertisers, suppliers, and operational service providers harmless from and against any and all claims, actions, losses, expenses, damages and costs (including reasonable attorneys' fees), resulting from any breach or violation of this Agreement by you, your use of the Site, or the public posting or other permitted use of your Postings.
S3P reserves the right to assume, at its sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with S3P in the defense of any such claim, action, settlement or compromise negotiations, as requested by S3P.
16. Ads & Malware
We take great care and pride in creating this Site. We are always on the lookout for technical glitches that affect how the Site works. When we find them on our end, we will fix them. Unfortunately, your Device may cause some glitches that affect how you see our Site -- and that is beyond our control.
If you experience any unusual behavior, content or ads on the Site, it may be the result of Malware on your Device. Malware -- short for MALicious softWARE -- is a term used to broadly classify a form of software which is installed in a computer system with malicious intentions, usually without the owner's knowledge or permission. Malware includes computer viruses, key loggers, malicious active content, rogue programs and dialers, among others. While we continuously work closely with our partners to ensure that everything on the Site is working properly, sometimes Malware programs on your Device may interfere with your experience on our Site and on other sites that you visit.
We suggest that you take some of the following actions which may help to clean your Device and which could prevent future installations of Malware. Update your Device via tools available through your web browser or from your browser provider. Install a SpyWare Removal Tool such as Spybot Search and Destroy or AdAware to clean your Device of Malware. Install antivirus software, such as Norton anti-virus McAfee Virus-shield.
Please note that we cannot be responsible for the effects of any third party software including Malware on your Device. Please make sure to carefully read the Help or Customer Support areas of any software download site. If you do discover any Malware on your Device, we also suggest you speak with a qualified Device technician. If, after taking the above actions, you are still experiencing any problems, please feel free to contact us at email@example.com.
17. Privacy; Access by Children; Investigations/Violations
(b) Access by Children. The Site contains certain mature content that may not be appropriate for children. If the primary account holder chooses to allow any linked sub-account holder to access adult or mature content available on the Site, the primary account holder acknowledges and agrees that such sub-account holder may be exposed to adult language as well as visual images and audio depicting nudity, sexual activity and violence. The primary account holder may establish certain "Parental Controls" through the relevant participating provider. We will recognize the maximum movie and television ratings set by the primary account holder for each sub-account that is linked to the primary account holder.
18. Closed Captioning of Internet Protocol-Delivered Video Programming
In accordance with the Twenty-First Century Communications and Video Accessibility Act of 2010, all video programming distributors that make video programming available directly to end users through a distribution method that uses the internet protocol are required to provide contact information to end users for the receipt and handling of written closed captioning complaints.
If you have a complaint regarding the Site’s compliance with the closed captioning requirements of the Twenty-First Century Communications and Video Accessibility Act of 2010, please click here.
19. Resolution of Disputes: Binding Arbitration; No Class or Representative Actions or Arbitrations
See our FAQ for more information.
19.1 Binding Arbitration and Exclusions from Arbitration. Except as provided below OR UNLESS YOU SUBMIT A VALID ARBITRATION/CLASS ACTION WAIVER OPT-OUT NOTICE (AS DESCRIBED IN SECTION 19.5), any and all claims between you and S3P will be resolved in binding arbitration rather than in court.
19.2 Informal Dispute Resolution. Except with respect to Claims described in Section 19.1(B) above, before either you or S3P pursue or participate in any Claim against the other party in arbitration or court proceedings, you or S3P must notify the other party of the Claim in writing at least 60 days in advance of initiating the arbitration or court proceeding in order to provide a reasonable opportunity to resolve the Claim. You may send a written notice of your Claim to S3P at 1540 Broadway, New York, New York 10036, Attention: Business & Legal Affairs. S3P may send written or electronic notice of its Claim to your email address, S3P account or any physical or other address S3P has for you. The notice must describe the Claim in reasonable detail and set forth the relief requested so that the other party has an opportunity to adequately address the Claim. Except with respect to Claims described in Section 19.1(B) above, you and S3P agree to negotiate in good faith with each other to try to informally resolve the Claim and, if you and S3P do not reach an informal resolution of the Claim within 60 days, then the Claim may be submitted to binding arbitration as set forth in Section 19 or court as permitted by Section 19.1.
19.3 Arbitration Proceedings and Costs. Any arbitration will be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (the “AAA Rules”), as modified by this Agreement. The AAA Rules, and other information about the AAA, are available at the AAA’s website at www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s website (see Demand for Arbitration at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and, for arbitrations in California, https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822, but contact the AAA if you have issues accessing these links) and arbitration proceedings shall be initiated in the location described in Section 20. As required by the AAA Rules, if you initiate the arbitration proceedings, you must send the original copy of the completed form to S3P, which should be sent to S3P at the following address: 1540 Broadway, New York, New York 10036, Attention: Business & Legal Affairs. If your Claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the AAA Rules. In all cases, you and S3P shall exchange documents and other information that you or S3P intend to use in the arbitration.
Upon filing of an arbitration demand for Claims up to $75,000, S3P will reimburse you for all necessary filing, administration and arbitrator fees paid by you to the AAA or, if you wish S3P to pay such fees directly to the AAA, you must request payment of such fees by S3P by mail to the AAA along with your form initiating arbitration and S3P will make arrangements to pay such fees directly to the AAA. In the event the arbitrator determines that the Claim(s) you assert in the arbitration are frivolous or vexatious, you agree to reimburse S3P for all fees associated with the arbitration paid by S3P on your behalf. You agree that S3P shall have no obligation to pay any other fees except as determined by the arbitrator.
For Claims that total more than $75,000, the AAA Rules will govern payment of filing, administration and arbitrator fees to the maximum extent permitted by law. The decision of the arbitrator will be binding and conclusive on all parties, and judgment to enforce the decision may be entered by any court of competent jurisdiction.
19.4 Class Action Waiver. UNLESS YOU SUBMIT A VALID ARBITRATION/CLASS ACTION WAIVER OPT-OUT NOTICE (AS DESCRIBED IN SECTION 19.5), YOU AND S3P AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WHETHER IN ARBITRATION OR IN COURT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. You and S3P expressly agree that any Claim is personal to you and S3P, shall only be resolved by an individual arbitration (or individual court proceedings with respect to Claims excluded from mandatory arbitration as described in Section 19.1 of this Agreement), and shall in no event be brought as a class arbitration, a class action, or any other representative proceeding. The arbitrator (or court if the Claim is excluded from mandatory arbitration as described in Section 19.1 of this Agreement) may only conduct an individual arbitration (or court action if the Claim is excluded from mandatory arbitration as described in Section 19.1 of this Agreement), and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding. If a court or arbitrator determines that this class action waiver is unenforceable in an action between you and S3P, then this Agreement to arbitrate will be unenforceable. Neither you nor S3P consent to class arbitration.
19.5 Right to Opt Out of Mandatory Arbitration and Class Action Waiver. If you do not wish to be bound by the mandatory arbitration and class action waiver provisions in Sections 19.1, 19.3 and 19.4, you must notify S3P in writing (the “Arbitration/Class Action Waiver Opt-Out Notice”), where the arbitration/class action waiver opt-out notice meets all of the following requirements:
19.5.1 Sent by first class mail, postage prepaid, certified and return receipt requested or sent by overnight courier service (such as Federal Express) to Studio 3 Partners LLC, Attention: Business & Legal Affairs, 1540 Broadway, 31st Floor, New York, NY 10036.
19.5.2 Postmarked (if sent by first class mail) or deposited with the overnight courier service no later than (A), if you register as a new registered user of the Site on or after February 20, 2017 (“Agreement to Arbitrate Date”), 45 days after the date you accept this Agreement for the first time, unless an earlier deadline in Section 19.5.2(C) applies, (B), if you are already a registered user of the Site before the Agreement to Arbitrate Date, 45 days after the earlier of either (I) your first log in to the Site on or after the Agreement to Arbitrate Date or (II) the date which email notice of the Agreement containing this Section 19, if any, was sent to the email address associated with your user registration, unless an earlier deadline in Section 19.5.2(C) applies or (C) for all other users of the Site, 45 days after you accept this Agreement for the first time on or after the Agreement to Arbitrate Date, unless a longer period is required by applicable law.
19.5.3 Includes your first and last name, address, phone number, email address and, if applicable, your username if you are a registered user of the S3P website(s), application(s) or other interactive services(s) along with an identification of the S3P website(s), application(s) or other interactive services(s) for each such username. We shall use the foregoing information included in the Arbitration/Class Action Waiver Opt-Out Notice to record, process, maintain and administer your opt-out of the mandatory arbitration and class action waiver provisions and not for marketing purposes.
19.5.4 Includes a statement that you do not agree to the mandatory arbitration and class action waiver.
If the Arbitration/Class Action Waiver Opt-Out Notice meets all of the above requirements, you will be deemed to have opted out of the mandatory arbitration and class action waiver provisions in Section 19.1, Section 19.3 and Section 19.4 with respect to all S3P websites, applications or other interactive services. Note that a valid Arbitration/Class Action Waiver Opt-Out Notice applies only to the individual identified in such notice as opting out.
If the Arbitration/Class Action Waiver Opt-Out Notice does not meet all of the above requirements, you will not be deemed to have opted out of the mandatory arbitration and class action waiver provisions in Section 19.1, Section 19.3 and Section 19.4.
20. Governing Law, Arbitration Location, Jurisdiction, Venue and Jury Trial Waiver. With the exception of the provision above that the enforceability of Section 19 is governed both procedurally and substantively by the FAA, this Agreement and your use of the Site is otherwise governed by, construed and enforced in accordance with the laws of the State of New York (without regard to that state’s conflict of laws rules).
You or S3P shall initiate arbitration in the United States county or territory in which you reside or, if you do not reside in the United States or one of its territories, in the non-United States country in which you reside; provided, however, that (a) S3P may request to transfer the arbitration to New York County, New York if it agrees to pay any additional fees or costs you incur as a result of the change in location as such additional fees or costs are determined by the arbitrator and to the maximum extent permitted by law and, upon such request, (b)(i) if you agree to such request, the arbitration shall be transferred to New York County, New York or (ii) if you do not agree to such request, S3P shall have right to request that the arbitrator determine the location in which the arbitration shall be held. You and S3P agree that any Claim that is allowed to proceed in court as set forth in Section 19.1 of this Agreement (including, but not limited to, as a result of your submission of a valid Arbitration/Class Action Waiver Opt-Out Notice), or otherwise proceeds in court in the event the agreement to arbitrate above is found not to apply to you or a particular Claim as a result of a decision by the arbitrator or a court order, is subject to exclusive jurisdiction and venue in the State or Federal Courts situated in the Borough of Manhattan, New York City, State of New York.
To the extent it may be applicable, you and S3P agree to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act. If any Claim proceeds in court rather than in arbitration, YOU AND S3P WAIVE ANY RIGHT TO A JURY TRIAL.
© 2017 Studio 3 Partners LLC. All Rights Reserved.