TERMS & CONDITIONS
July 3, 2013
Welcome to the [Boom! Studios / Kaboom Studios/Archaia Entertainment]. (“Boom!” or “we” or “us”) Site hosted at [http://www.boom-studios.com/ http://www.kaboom-studios.com/ http://www.archaia.com] and other affiliated Sites and/or mobile phone application (together, collectively, the “Site”).
PLEASE REVIEW THE FOLLOWING TERMS AND CONDITIONS CONCERNING YOUR USE OF AND ACCESS TO THE SITE. BY ACCESSING, USING AND/OR DOWNLOADING ANY MATERIALS OR CONTENT FROM THE SITE, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS AND CONDITIONS (THESE “TERMS” OR “AGREEMENT”). IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT USE THE SITE.
Boom! reserves the right to change these Terms or its policies relating to the Site at any time and from time to time, and such changes will be effective upon being posted herein. You should visit this page from time to time to review the then current Terms because they are binding on you. Certain provisions of these Terms may be superseded by expressly designated legal notices or terms located on particular pages of the Site, which may be posted from time to time. Your continued use of the Site after any such changes and/or postings shall constitute your consent to such changes.
Any unauthorized use of or access to this Site, including without limitation for any commercial or competitive purpose is strictly prohibited.
In addition, you may NOT:
- Falsely claim that you are associated with another person or entity;
- Collect information about Boom!, the Site or users of the Site without Boom!’s written consent;
- Modify, frame, render (or re-render), mirror, truncate, inject, filter or change any content or information contained in the Site, without Boom!’s written consent.
- Use any deep-link, page-scrape, robot, crawl, index, spider, click spam, macro programs, Internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor the Site or any portion thereof;
- Disguise the origin of information transmitted to, from, or through the Site.
Use of Site Content: All materials provided on the Site, including but not limited to information, documents, products, logos, graphics, sounds, images, compilations, content and services (“Materials” or “Content”), are provided either by Boom! or by respective third party authors, artists, developers or vendors (“Third Party Providers”) and are the copyrighted works of Boom! and/or its Third Party Providers (or is permitted/licensed to be used by Third Party Providers), unless specifically provided otherwise. Except as stated herein, none of the Materials may be modified, copied, printed, reproduced, distributed, republished, performed, downloaded, displayed, posted, transmitted and/or otherwise used in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means, without the prior express written permission of Boom! and/or a Third Party Provider. Also, you may not “mirror” or “archive” any Materials contained on the Site on any other server without Boom!’s prior express written permission.
Except where expressly provided otherwise by Boom!, nothing on the Site shall be construed to confer any license or ownership right in or to the Materials, under any of Boom!’s intellectual property rights, whether by estoppel, implication, or otherwise. You acknowledge sole responsibility for obtaining any such licenses. Materials provided by Third Party Providers have not been independently reviewed, tested, certified, or authenticated in whole or in part by Boom!. Boom! does not provide, sell, license, or lease any of the Materials other than those specifically identified as being provided by Boom!.
Any unauthorized use of any Materials contained on the Site may violate copyright laws, trademark laws, the laws of privacy and publicity, and/or communications regulations and statutes. It is your obligation to comply with all applicable state, federal and international laws. You are responsible for maintaining the confidentiality of your account information and password and for restricting access to such information and to your computer. You agree to accept responsibility for all activities that occur under your account or password.
Termination: You or we may suspend or terminate your account or your use of this Site at any time, for any reason or for no reason. You are personally liable for any orders that you place or charges that you incur prior to termination. We reserve the right to change, suspend, or discontinue all or any aspect of this Site at any time without notice.
LINKS TO THIRD PARTY SITES
The Site may contain links or have references to Sites controlled by parties other than Boom!. Boom! is not responsible for and does not endorse or accept any responsibility for the contents or use of these third party Sites. Boom! is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Boom! of the linked Site and/or the content and materials found at the linked Site, except as specifically stated otherwise by Boom!. Boom! shall not be responsible or liable, directly or indirectly, for any damage or loss incurred or suffered by You in connection therewith. Your access and use of linked Sites, including any products, services, or materials therein, is at your own risk. It is your responsibility to take precautions to ensure that whatever you select for your use is free of viruses or other items of an intrusive nature.
Except where expressly provided otherwise by Boom!, all comments, feedback, information and data submitted to Boom! through, in association with or in regard to the Site (“Submissions”) shall be considered non-confidential and Boom!’s property. This may not include copyright ownership of images which you may upload, but does include an express license to use said images in any method Boom! sees fit and make compilations and derivative works thereof in all media now known or hereafter devised. Except as expressly enumerated in the preceding sentence, by providing such Submissions to Boom!, you agree to assign to Boom!, as consideration in exchange for the use of the Site, all worldwide rights, title and interest in copyrights and other intellectual property rights to the Submissions. You represent that you have the right to grant Boom! these rights. Boom! shall be free to use and/or disseminate such Submissions on an unrestricted basis for any purpose. You acknowledge that you are responsible for the Submissions that you provide, and that you, not Boom!, have full responsibility for the Submissions, including their legality, reliability, appropriateness, originality and copyright.
You will not post any Submission that (a) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (b) bigoted, hateful, or racially or otherwise offensive; (c) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or (d) otherwise harms or can reasonably be expected to harm any person or entity.
All Submissions must be true, and in accordance with the rights of privacy and publicity and all federal, state and international law. You may not upload an image or any likeness of another without their consent (or the consent of their parent or guardian if they are under the age of 18). If you do so, Boom! reserves the right to cancel or suspend your account. Furthermore, Boom! reserves the right to cancel or suspend your account, if in its sole discretion, it believes you are using Boom! for improper purposes, or any purpose inconsistent with its business.
The Site is neither intended for nor designed to be used by anyone under the age of 13. If you are under 13 years of age, you should not register or provide Personal Information on the Site. Should we become aware of a child under the age of 13 registering with our Site, we will promptly remove all such information associate with that account.
LIMITATION OF LIABILITY
IN NO EVENT SHALL BOOM! BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES TO YOUR COMPUTER, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY AND/OR FOR LOSS OF DATA, CONTENT, IMAGES, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THESE TERMS, INCLUDING BUT NOT LIMITED TO THE ACCESSING OR USE OF, OR INABILITY TO USE, THE SITE AND THE BOOM! SERVICE, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTUOUS ACTION, EVEN IF THE PARTY FROM WHOM DAMAGES ARE BEING SOUGHT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE EVENT OF CUSTOMER’S BREACH, OR RELATED TO ITS INDEMNITY OBLIGATIONS. THIS PARAGRAPH SHALL NOT AFFECT THE RIGHTS LISTED BELOW IN THE SECTION TITLED “INDEMNITIES”. TO THE EXTENT ALLOWED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BOOM! EXCEED $1,000.00.
LICENSES FROM YOU
REPRESENTATIONS AND WARRANTIES
Each party represents and warrants that it has the power and authority to enter into these Terms. Boom! warrants that it will provide the Site in a manner consistent with its business practices, as Boom!, in its sole and absolute discretion, deems fit. You represent and warrant that any information you provide in connection with the Boom! Service is accurate and current and that you have the right to provide such information.
DISCLAIMER OF WARRANTIES
EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY BOOM!, THE SITE IS PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, BOOM!, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS OF EACH (“RELATED PARTIES”), HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTEES, AND CONDITIONS WITH REGARD TO THE SITE INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. BOOM! MAKES NO REPRESENTATIONS, GUARANTEES OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE SITE AND/OR MATERIALS ASSOCIATED THEREWITH, OR THE RESULTS YOU MAY OBTAIN BY ACCESSING OR USING THE SITE AND/OR MATERIALS ASSOCIATED THEREWITH. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BOOM! DOES NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SITE, BOOM! SERVICE OR MATERIALS WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE. YOU ACKNOWLEDGE THAT BOOM! CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SITE MAY BE SUBJECT TO LIMITATIONS, DELAYS, INTERCEPTION AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. BOOM! IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
You shall defend, indemnify and hold Boom! and all Related Parties harmless against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with a claim by a third party related to your use of the Site or violation of this Agreement.
You will comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with your use of the Site, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which Boom! controls and operates the Site and services associated therewith. Furthermore, you expressly agree not to violate any rights of publicity or privacy of any person, nor defame any person or entity.
Boom! may give notice by means of a general notice on the Site, electronic mail to your e-mail address on record in Boom!’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Boom!’s account information. You may give notice to Boom! at any time by letter delivered by registered mail with return receipt to: Boom! Entertainment, Inc., 5670 Wilshire Blvd., Suite 450, Los Angeles, CA 90036. All notices shall be deemed to have been given four days after mailing.
Governing Law: Any action related to these Terms will be governed by California law and controlling U.S. Federal law. No choice of law rules of any jurisdiction will apply. Any disputes, actions, claims or causes of action arising out of or in connection with these Terms or the Site shall be subject to the jurisdiction of the state and federal courts located in the state of California and/or to arbitration as stated herein.
Arbitration: Any controversy or claim related to these Terms (“Claim”) may be resolved by arbitration in accordance with the Federal Arbitration Act (Title 9, U. S. Code) (the “Act”). The Act will apply even though these Terms provide that it is governed by the laws of Delaware. Arbitration proceedings will be determined in accordance with the Act, the rules and procedures for the arbitration of financial services disputes of JAMS/Endispute, LLC, a Delaware limited liability company or any successor thereof (“JAMS”), except that discovery in said arbitration shall be limited in scope to the specifics of liability on the Claim, and any discovery related to damages calculations or any financials shall be withheld until after liability has been decided by the arbitrator(s). In the event of any inconsistency between the JAMS rules and this paragraph, the terms of this paragraph shall control. The arbitration shall be administered by JAMS and conducted in the state of California. All Claims shall be determined by one arbitrator; however, if Claims exceed Five Million Dollars, upon the request of Boom!, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced. The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the application of the statute of limitations, the service on JAMS under applicable JAMS rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shall have the power to award legal fees pursuant to the terms of these Terms. This paragraph does not limit the right of Boom! to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or nonjudicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. In the event of any dispute (whether or not arbitrated), the prevailing party shall be entitled to reasonable costs and attorneys’ fees.
Entire Agreement: These Terms represents the parties’ entire understanding relating to the use of the Site and supersedes any prior or contemporaneous, conflicting or additional, communications.
Severability: If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
Relationship of the Parties: No joint venture, partnership, employment, or agency relationship exists between Boom! and you as a result of these Terms or use of the Site.
Assignment: You may not assign these Terms without the prior written approval of Boom!. Any purported assignment in violation of this section shall be void.
Contractors: Boom! reserves the right to use Third Party Providers in the provision of the Site and/or the goods, service and/or Materials associated therewith.
Waiver: The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
Fees/Costs: In the event of any litigation of any controversy or dispute arising out of or in connection with these Terms, its interpretation, its performance, or the like, the prevailing party shall be awarded reasonable attorneys’ fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute.
Reservation of Rights: Any and all rights not expressly granted herein are reserved by Boom!.
INTELLECTUAL PROPERTY NOTICES
Elements of the Site are protected by copyright, trademark, trade dress and other laws and may not be copied or imitated in whole or in part. No logo, graphic, sound or image from the Site may be copied or retransmitted unless expressly permitted by Boom!.
The Boom! trademarks and/or other Boom! identifiers referenced herein are trademarks of Boom! and/or its affiliates, and may be registered in certain jurisdictions.
LEGAL CONTACT INFORMATION
If you have any questions about these Terms, or if you would like to request permission to use any Materials, please contact firstname.lastname@example.org.
Copyright © 2013 Boom! Entertainment, Inc. Inc. All rights reserved.