Notice Regarding Dispute Resolution: This Agreement contains provisions that govern how claims you and we may have against each other are resolved (see Section 18 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with Section 18. Unless you opt-out of arbitration: (a) you will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1. Updates to this Agreement. The Company may modify this Agreement from time to time. We will notify you of material changes to this Agreement by posting the amended terms on the Service at least thirty (30) days before the effective date of the changes. [If you have provided us with your email address, we will also notify you of material changes to this Agreement by email at least thirty (30) days before the effective date of the changes. It is therefore very important that you make sure we have a current email address for you on file so that you will receive notice of any material changes.] If you do not agree with the proposed changes, you should discontinue your use of the Service prior to the time the new terms takes effect. If you continue using the Service after the new terms take effect, you will be bound by the modified Agreement.
3. Affirmative Representations Regarding Your Use of the Service. When you use the Service, you represent that: (A) the information you submit is truthful and accurate; (B) your use of the Service and your use of services available on the Service do not violate any applicable law or regulation; (C) you are 13 years of age or older; and (D) you are of sufficient legal age or otherwise have legal capacity to legally enter into this Agreement.
4. Access to the Service. The Company grants you permission to access and use the Service in accordance with this Agreement, provided that: (A) you will not copy, distribute, or disclose any part of the Service in any medium; (B) you will not alter or modify any part of the Service; and (C) you will otherwise comply with the terms and conditions of this Agreement.
5. User Accounts. You do not have to register with the Service in order to visit the Service. However, to access certain features of the Service, including any casting features, you may need to register and create a “User” account. Your account gives you access to the services and functionality that may be provided to registered Users by the Company in its sole discretion. You may never use another User’s account without permission of the applicable User. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you agree to keep your user ID and account password confidential and secure at all times. You must notify the Company immediately of any breach of security or unauthorized use of your account. Although the Company will not be liable for your losses caused by any unauthorized use of your account or loss of your user ID or password, you shall be liable for the losses of the Company or others due to the applicable unauthorized use. Where available, you may make changes to your application by accessing your User account on the Service.
6. Prohibited Activities. You agree that in connection with your use of the Service, you will not:
A. use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Service in a manner that sends more request messages to the Company’s servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser;
B. use the Service for any unauthorized purpose including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other electronic communications, or engaging in unauthorized framing of, or linking to, the Service without our express written consent;
C. transmit chain letters, bulk or junk email or interfere with, disrupt, or create an undue burden on the Service or the networks or services connected to the Service, including without limitation, hacking into the Service, or using the system to send unsolicited or commercial emails, bulletins, comments or other communications;
D. impersonate any other person or entity, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity;
E. decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from or sublicense the Service, or any portion thereof; or
F. circumvent, disable or otherwise interfere with security related features of the Service or features that prevent or restrict use or copying of any Company Content (as defined in below) or enforce limitations on use of the Service or the Company Content on the Service.
7. The Company’s Right to Manage the Service. The Company may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without notice and liability, if, in the Company’s sole determination, you violate any of the terms of this Agreement. The Company also reserves the right, but does not undertake the obligation to: (A) monitor or review the Service for violations of this Agreement and for compliance with our policies; (B) report to law enforcement authorities and/or take legal action against anyone who violates this Agreement; (C) manage the Service in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Service; (D) screen our users, or attempt to verify the statements of our users; (E) monitor disputes between you and other users or to termination or block you and other users for violating this Agreement; and/or (F) refuse, restrict access to or the availability of, or remove, delete, edit or disable (to the extent technologically feasible) any Casting Content or any portion thereof.
8. The Company’s Intellectual Property Rights. Except with regard to any Casting Content provided by you or other users of the Service, all Intellectual Property Rights in the Service and all material or content made available by the Company by means of the Service including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, design elements and contents of the Service and (including assembly and arrangement) (collectively, that “Company Content”) remains at all times the property of the Company or the property of the Company’s licensors. Any names, images and logos identifying the Company, the Company’s partners or third parties, including, without limitation, the Company’s distributors and brand sponsors, and the Company’s or their products and services available through the Service are proprietary marks and may not be reproduced or otherwise used without express, written permission. Nothing contained in this Agreement shall be construed as a grant of any license from the Company or any conveyance, assignment or transfer of any right to use any trademark, patent, design right or copyright or other intellectual property right belonging to the Company or to any third party, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction. If you are a resident in a jurisdiction which recognizes moral rights in certain works, to the extent permitted by law of that jurisdiction, you agree to waive your moral rights in any Casting Content (as defined below) submitted via the Service.
9. Unsolicited Submissions. The Company does not accept or consider unsolicited creative materials, ideas or suggestions either via the Service, email or any other means whatsoever. This is to avoid any misunderstandings if your ideas are similar to those the Company has developed or obtained independently.
10. Casting Content. The Service may allow you to apply to become a contestant on The Dunk King program (the “Program”) and the Company, the Service and/or third party software may collect video and audio-visual content and/or other information associated with your application to become a contestant on the Program (“Casting Content”). However, the fact that you submit Casting Content does not guarantee that you will be a contestant on the Program. Your submission of Casting Content will be subject to and governed by the Video Submission Agreement entered into by and between you and the Company (the “Submission Agreement”). You should read the Submission Agreement carefully before submitting any Casting Content through the Service. A copy of the Submission Agreement is located at www.dunkkingcasting.com.
12. Indemnity. You agree to defend, indemnify and hold harmless the Company and its subsidiaries, affiliates, agents, managers, licensees, assignees, designees, vendors, service providers, distributors, brand sponsors, and other third party partners, and each of their employees, contractors, agents, officers, directors, shareholders and representatives (all of the foregoing, including the Company, individually and collectively referred to herein as the “Company Parties”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (A) your use of and access to the Service, including any data, content or work transmitted or received by you; (B) your violation of any term set forth in this Agreement, including without limitation, your breach of any of the representations, warranties and undertakings contained in this Agreement; (C) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (D) your violation of any law, rule or regulation of the United States or any other country; (E) any claim or damages that arise as a result of any of your Casting Content or any other content that is submitted by you through the Service, or (F) any other party’s access and use of the Service with your, if applicable, unique username, password or other appropriate security code.
13. NO WARRANTY. THE SERVICE IS PROVIDED BY THE COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU ASSUME SOLE RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICE AND THE RESULTS AND PERFORMANCE THEREOF (INCLUDING, WITHOUT LIMITATION, VIEWING OF THE WEBSITE, THIRD PARTY WEBSITES, THIRD PARTY CONTENT, OR THIRD PARTY RESOURCES). USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, EACH OF THE COMPANY PARTIES DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT VIEWED, STREAMED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THIS DOWNLOADING, VIEWING, STREAMING, OR ANY OTHER USE BY YOU.
14. Limited Liability. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SERVICE, CONTRIBUTIONS, MATERIALS OR ANY OTHER CONTENT THEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, OUR LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY SHALL NOT EXCEED $50.
15. Exceptions to Disclaimers and Liability Limitations. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE STATES OR JURISDICTIONS, THE LIMITATIONS OR EXCLUSIONS IN SECTIONS 14 AND 15 MAY NOT APPLY TO YOU.
16. Termination. The Company reserves the right to terminate the Service or your access to any of its functions including, your account (if any) and/or this Agreement at any time with or without cause or notice.
17. Legal Disputes and Arbitration Agreement
Please Read This Following Clause Carefully – It May Significantly Affect Your Legal Rights, Including Your Right to File a Lawsuit in Court
A. Initial Dispute Resolution. We are available by email at email@example.com to address any concerns you may have regarding your use of the Service. Most concerns may be quickly resolved in this manner. Each of you and the Company agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
B. Agreement to Binding Arbitration. If we do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to section 18(A) above, then either party may initiate binding arbitration. All claims arising out of or relating to this Agreement (including its formation, performance and breach) and/or your use of the Service shall be finally settled by binding arbitration administered on a confidential basis by JAMS in accordance with the provisions of the JAMS Streamlined Arbitration Rules and Procedures or subsequent versions of those rules, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of this Agreement shall be subject to the Federal Arbitration Act.
The JAMS rules governing the arbitration may be accessed at http://www.jamsadr.com/ or by calling the JAMS at 1.800.352.5267. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost. A request for payment of fees should be submitted to JAMS along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to JAMS. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain circumstances.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
C. Class Action and Class Arbitration Waiver. You and the Company each further agree that any arbitration shall be conducted in your respective individual capacities only and not as a class action or other representative action, and you and the Company each expressly waive your respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 18(B) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
D. Exception - Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
E. 30 Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 18(B), 18(C), and18(D) by sending written notice of your decision to opt-out to the following address: 4130 Cahuenga Blvd, Toluca Lake, CA 91602 Attn: Dunk King Casting or by fax to 805-435-2599. The notice must be sent within thirty (30) days of registering to use the Service, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
F. Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in Section 18(B) do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Los Angeles, California (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in California for any litigation other than small claims court actions.
G. Applicable Law. You agree that federal laws and the laws of the State of California, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and the Company.
H. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within six (6) months after the applicable claim or cause of action arose or be forever barred.
19. Severability. In the event that any provision (or any part of an applicable provision) of these terms is held to be illegal, invalid or unenforceable, the applicable provision (or part) will be severed and: (A) it shall be deemed replaced by an alternative provision (or part) which approximates as closely as lawfully possible in terms of substance and effect the provision or part severed; and (B) the remainder of these terms shall continue in full force and effect.
20. No Waiver. If you breach this Agreement and the Company does not take action against you, the Company will still be entitled to enforce its rights against you in relation to that breach subsequently and to use the Company’s rights and remedies in any other situation where you breach this Agreement.
21. Remedies. In no event may you terminate the rights granted hereunder, and you agree that you shall not be entitled to obtain injunctive relief or other equitable relief with respect to the rights granted hereunder.
22. Assignment. You acknowledge and agree that the Company shall be free to sell, assign, license, mortgage, encumber or otherwise transfer this Agreement and/or any or all of its rights hereunder, and/or to delegate any or all of its duties hereunder at any time and from time to time to any person or entity. You are not permitted to assign any of the rights granted to you pursuant to this Agreement or delegate any or your obligations pursuant to this Agreement to any person or entity.
23. No Modifications by Our Employees. If any of our employees offers to modify the terms of this Agreement, he or she is not acting as an agent for us or speaking on our behalf. You may not rely, and should not act in reliance on, any statement or communication from our employees or anyone else purporting to act on our behalf.
24. Entire Agreement. This Agreement, together with any other legal notices and agreements published by the Company via the Service, shall constitute the entire agreement between you and the Company concerning the Service.
25. Contact Information. Please contact the Company at firstname.lastname@example.org with any questions regarding this Agreement.