OUTtv Website Terms and Conditions
(Last Updated on September 9, 2013)
THESE TERMS AND CONDITIONS CONTAIN LEGAL OBLIGATIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS WEBSITE.
Welcome to the Internet sites of OUTtv Network Inc. (“OUTtv”). These Terms and Conditions apply to all OUTtv Internet sites and applications (“Apps”) that reference these Terms and Conditions, including without limitation www.outtv.ca, www.hotpinkshorts.com and the OUTtv mobile web site (each an “OUTtv Site” and collectively the “OUTtv Sites”). By using any OUTtv Sites, or any of the products or services available on any OUTtv Sites (collectively the “Services”), you agree, without limitation or qualification, to be bound by these terms and conditions and such other additional or alternative terms, conditions, rules and policies which are displayed or to which you may be directed in connection with any particular OUTtv Site or Service, all as may be modified by OUTtv from time to time in its sole discretion (collectively, the “Terms and Conditions”). If you do not agree with these Terms and Conditions, you may not use any OUTtv Sites or any of the Services on any OUTtv Sites.
Please note that we reserve the right, at our discretion, to change, modify, add, or remove portions of these Terms and Conditions at any time. Please check periodically for changes. Your continued use of a OUTtv Site following the posting of any changes to these Terms and Conditions will mean you accept those changes.
REGISTRATION, ACCOUNTS and PASSWORDS
Certain of the Services and related features made available on OUTtv Sites may require registration or subscription. Should you choose to register or subscribe for any such Services or related features you agree to provide accurate and current information about yourself as required by the relevant registration or subscription process, and to promptly update such information as necessary to ensure that it is kept accurate and complete. You agree to be responsible for: (a) maintaining the confidentiality of any passwords or other account identifiers which you choose or are assigned as a result of any registration or subscription on any OUTtv Sites, and (b) all activities that occur under such password or account. Further, you agree to notify OUTtv of any unauthorized use of your password or account. OUTtv shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to comply with this paragraph.
RESTRICTIONS ON USE OF MATERIALS
All material, information and content available on any OUTtv Sites (collectively “Content”), including the manner in which such Content is presented, and the Services are:
Copyright © OUTtv Network Inc., its affiliates and/or licensors. All rights reserved.
Such Content is protected by Canadian and worldwide copyright laws and treaty provisions. OUTtv grants you a limited non-exclusive, non-transferable license to use and display on your computer or other electronic access device, the Content and Services for your own personal and non-commercial use only, provided that you do not modify, enhance, edit, translate, adapt, reverse engineer, decompile or disassemble the Content, or insert advertising or promotional material into the Content, and that you maintain all copyright and other proprietary notices. Except as provided herein, you agree not to reproduce, reformat, optimize, customize, make derivative works of, retransmit, distribute, sell, publish, communicate, broadcast or otherwise make available any of the Content obtained through any OUTtv Sites or any of the Services, including, without limitation, by caching, framing or similar means, without the prior written consent of the respective copyright owner of such Content.
OUTtv and all associated designs and logos are trademarks of OUTtv Network Inc., used under license. All other product, brand and company names and logos used or mentioned on an OUTtv Site or any of the Services may be the trademarks or registered trademarks of their respective owners. Any use of any trademarks appearing on any OUTtv Sites or any of the Services without the express written consent of the owner of that trademark is strictly prohibited.
In consideration of the availability, and your use, of any OUTtv Sites or any of the Services, you agree to comply with all applicable laws and regulations and these Terms and Conditions when using such OUTtv Site or Service. You acknowledge that OUTtv may investigate any violations of law and may cooperate with law enforcement authorities in prosecuting users in this regard. Additionally, you agree not to:
- post, transmit, link to, or otherwise distribute any materials, information or content constituting, advocating or encouraging conduct that would constitute a criminal offense or give rise to civil liability, or otherwise use any OUTtv Sites or any of the Services in a manner which is contrary to law or would serve to restrict or inhibit any other user from using or enjoying any OUTtv Sites, any of the Services, or the Internet;
- defame, abuse, stalk, harass, threaten or otherwise violate the legal rights of others, including without limitation, rights relating to privacy, publicity and personality;
- post, transmit, link to, or otherwise distribute any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful material or information;
- post, transmit, link to, or otherwise distribute any information, materials or content (including for greater certainty, software) which contains viruses, spyware, malware, trojan horses, worms or other harmful or disruptive components.
RESPONSIBILITY FOR MINORS
In cases where you have authorized a Minor (defined herein as a person under the age of nineteen) to use any OUTtv Sites or any of the Services, you recognize that you are fully responsible for: (i) the online conduct of such Minor; (ii) controlling the Minor’s access to and use of any OUTtv Sites or any of the Services; and (iii) the consequences of any misuse by the Minor. You acknowledge that some of the areas of any OUTtv Sites may contain material that is inappropriate for Minors.
FORUMS AND CONTENT SUBMISSIONS
By uploading materials to any chat board or forum available on any OUTtv Sites (collectively “Forums”) or otherwise submitting any materials to us through any other content generating or submitting Service on any OUTtv Sites, you automatically grant (or warrant that the owner of such materials expressly grants) OUTtv a world-wide, perpetual, royalty-free, irrevocable and non-exclusive right and license to use, copy, adapt, edit, manipulate, transmit, communicate, publicly display and perform, distribute and create compilations and derivative works from such submitted materials, for the purposes of publishing and promoting such materials in connection with the Forum or other Service through which the materials were submitted or generated, and for all promotions thereof. Such license shall apply with respect to any form, media, or technology, whether analog or digital, now known or later developed. In addition, you warrant that all “moral rights” in such materials have been waived.
In addition, you automatically grant (or warrant that the owner of such material expressly grants) OUTtv a world-wide, perpetual, royalty-free, irrevocable and non-exclusive right and license to televise, broadcast, transmit, exploit, use, edit, manipulate, communicate, publicly display and perform, distribute and create compilations, “mash-ups” and derivative works from, such submitted materials in any manner, media or technology, whether digital or analog, including but not limited to all forms of television, wireless and online technology, now known or later developed.
If you are a Minor, you must have permission from your parent or guardian to upload any materials to a Forum. OUTtv may request a parent’s or guardian’s email address from anyone who uploads any materials to a Forum for the purpose of verifying with the parent or guardian that he/she has in fact given permission for such uploading. In the event that material is uploaded without permission, all uploaded material will be removed immediately and without notice to you.
When participating in a Forum, never assume that people are who they say they are, know what they say they know, or are affiliated with whom they say they are affiliated. OUTtv cannot be responsible for the content or accuracy of any information, and will not be responsible for any reliance or decisions made based on such information. When using a Forum, you may not post, transmit, link to, or otherwise distribute any information, materials or content that do not generally pertain to the designated topic or theme of the particular Forum. Use of a Forum for commercial purposes of any kind is strictly prohibited. Please note that OUTtv reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of these Terms and Conditions.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) ANY OUTtv SITES AND ANY OF THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THAT OUTtv MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS (as used in this section, “WARRANTIES”) OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND THAT ANY SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED, AND (B) OUTtv SPECIFICALLY MAKES NO WARRANTIES THAT ANY OUTtv SITES OR ANY OF THE SERVICES, INCLUDING ANY CONTENT, INFORMATION, PRODUCTS OR SERVICES OBTAINED FROM OR THROUGH THE USE OF ANY OUTtv SITES OR ANY OF THE SERVICES, WILL BE PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS OR THAT SUCH SERVICES OR THE RESULTS DERIVED THEREFROM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.
DISCLAIMER REGARDING SEARCH CONTENT
Any and all pictures, sounds, sound effects, sound recordings, musical works, performances, graphics, video, cinematic productions, audio-visual works and any other works (the “Multimedia Content”) located through a OUTtv Site’s search services are protected by copyright and/or other intellectual property laws. OUTtv does not have the right to authorize you to reproduce, distribute, publicly display, publicly perform, communicate or create derivative works from any files containing such Multimedia Content. Where search results link to sites outside any OUTtv Sites, all of the Multimedia Content contained on such sites is owned and served by entities other than OUTtv. OUTtv provides you with the URL or address of the Multimedia Content; this information may be used to determine the server of the Multimedia Content. If you intend to make use of any Multimedia Content accessed through any OUTtv Sites’ search services for commercial or non-commercial purposes, you are asked to contact the server and/or owner of the Multimedia Content for permission to use such Multimedia Content.
OUTtv reserves the right, in its sole discretion, to add to, remove, modify or otherwise change any part of these Terms and Conditions, in whole or in part, at any time. Except as otherwise expressly contemplated herein, changes will be effective when notice of such change is posted on any OUTtv Sites. Please check these Terms and Conditions regularly for updates by checking the date of “Last Update” at the top of this document. If any change is not acceptable to you, you must discontinue your use of any OUTtv Sites and any of the Services immediately. Your continued use of any OUTtv Sites or any of the Services after any such changes are posted will constitute acceptance of those changes. Further, OUTtv reserves the right to change, modify, suspend or discontinue any aspect of any OUTtv Sites, Services or Content from time to time without notice or liability and for any reason whatsoever.
CONTENT LINKED TO ANY OUTtv SITES
Please exercise discretion while browsing the Internet. Please note that certain links on any OUTtv Sites may take you to other websites. OUTtv provides these links only as a convenience and not as an endorsement by OUTtv. These linked sites are not necessarily under the control of OUTtv. If you decide to visit any linked site, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses and other destructive elements. OUTtv is not responsible for the content of any such linked sites or any other web page which is not part of any OUTtv Sites and under OUTtv’s control. Unless otherwise expressly provided, OUTtv makes no representation or warranty regarding, and does not endorse, any linked site or the information, products or services appearing thereon. Accordingly, you agree that OUTtv will not be responsible or liable in any way for the accuracy, relevancy, copyright compliance, legality, or decency of material contained in any site linked from any OUTtv Sites.
DEALINGS WITH THIRD PARTIES
You acknowledge and agree that your correspondence or business dealings with any third parties, including any merchants or advertisers, found on, or through, any OUTtv Sites or any of the Services, including payment for and delivery of related goods and services, and all other terms, conditions, representations and warranties related to such dealings, are solely as between you and such third parties. OUTtv assumes no responsibility whatsoever for any charges you or any user of your account incurs when making purchases or other transactions in this manner. Further, the responsibility for ensuring compliance with all applicable laws in connection with any such transactions shall be yours alone. You agree that OUTtv shall not be responsible or liable in any way for any loss or damage of any kind incurred as a result of, or in connection with, any such dealings or transactions.
You agree to defend, indemnify and hold harmless each of OUTtv, its affiliates and licensors and each of their respective officers, directors, employees and agents, including all third parties mentioned on any OUTtv Sites, from and against any and all claims, actions or demands, including without limitation reasonable legal and accounting fees, resulting from or related to: (a) your breach of any of these Terms and Conditions; (b) your access to or use of any OUTtv Sites, Services or Content; or (c) your use or reliance on, or publication, communication or distribution of anything on or from any OUTtv Sites or through any of the Services. You shall use your best efforts to cooperate with us in the defence of any claim. We reserve the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL OUTtv, INCLUDING ITS AFFILIATES AND LICENSORS, BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, AND ANY DAMAGES FOR LOSS OF PROFITS, SAVINGS, GOODWILL OR OTHER INTANGIBLE LOSSES, REGARDLESS OF WHETHER OUTtv HAD BEEN ADVISED OF OR COULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (A) THE USE, INABILITY TO USE OR PERFORMANCE OF ANY OF THE SERVICES OF ANY OUTtv SITES, (B) ANY UNAUTHORIZED ACCESS TO OR MODIFICATION TO ANY OF YOUR CONTENT OR TRANSMISSIONS, OR (C) ANY OTHER MATTER RELATING TO A OUTtv SITE OR ANY OF THE SERVICES.
You expressly acknowledge that OUTtv has entered into this agreement, and has and will make any OUTtv Sites, Content and Services available to you in reliance upon the limitations and exclusions of liability and the disclaimers set forth herein, and that the same form an essential basis of the bargain between you and OUTtv. You expressly agree that the limitations and exclusions of liability and the disclaimers set forth herein will survive, and continue to apply in the case of, a fundamental breach or breaches, the failure of essential purpose of contract, the failure of any exclusive remedy or termination of this agreement.
GOVERNING LAW/JURISDICTIONAL ISSUES
All OUTtv Sites and Services are controlled, operated and administered by OUTtv from its offices within Canada. OUTtv makes no representation or warranty that any OUTtv Sites or any of the Services are appropriate or available for use at any locations outside Canada. If you access any OUTtv Sites from outside Canada, you are responsible for compliance with all applicable laws. You may not export any of the Content accessible through any OUTtv Sites in violation of applicable export laws and regulations. These Terms and Conditions shall be interpreted, construed and governed by the laws in force in the Province of British Columbia, Canada, without reference to its conflict of laws principles. Subject to the “Arbitration and Actions” paragraph below, each party hereby agrees to submit to the jurisdiction of the courts of the Province of British Columbia and to waive any objections based upon venue. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms and Conditions.
ARBITRATION AND ACTIONS
Except where prohibited by applicable law, any controversy, claim or dispute arising out of or relating to these Terms and Conditions, your use of any OUTtv Site or Service or the relationship which results from these Terms and Conditions, including without limitation, the performance, breach, enforcement, existence or validity of the matters provided for in these Terms and Conditions which cannot be amicably resolved, even if only one of the parties declares that there is a difference (collectively, a “Claim”), will be referred to and finally settled (to the exclusion of the courts) by private and confidential binding arbitration before a single arbitrator held in Toronto, Ontario in English and governed by Ontario law pursuant to the Arbitration Act, 1991 (Ontario), as amended, replaced or re-enacted from time to time. The arbitrator shall be a person who is legally trained and who has experience in the information technology field in Canada and is independent of either party. Any such Claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim, controversy or dispute of any other party. You agree to waive any right you may have to commence or participate in any class action against us related to any Claim and, where applicable, you also agree to opt out of any class proceedings against us. Notwithstanding the foregoing, we reserve the right to pursue the protection of intellectual property rights and confidential information through injunctive or other equitable relief through the courts.
You acknowledge and agree that OUTtv, in its sole and absolute discretion, may, without notice to you, suspend or terminate your account or your use of, or access to, any OUTtv Sites or any of the Services, and remove and discard any information or content related to any OUTtv Sites or any of the Services (and your use thereof), for any reason, including where OUTtv believes that you have violated any of these Terms and Conditions. You further agree that OUTtv shall not be liable to you or to any other person as a result of any such suspension or termination. If you are dissatisfied with any OUTtv Sites or any of the Services or with any terms, conditions, rules, policies, guidelines, or practices of OUTtv in operating any OUTtv Sites or any of the Services, your sole and exclusive remedy is to discontinue using a OUTtv Site or any of the Services.
SUBMISSION OF IDEAS AND/OR SUGGESTIONS
OUTtv is always improving its websites and Services and developing new features and content. If you have ideas and/or suggestions regarding improvements or additions, we would like to hear them, but any submission will be subject to these Terms and Conditions. UNDER NO CIRCUMSTANCES SHALL ANY DISCLOSURE OF ANY IDEA AND/OR SUGGESTION OR RELATED MATERIAL TO OUTtv BE SUBJECT TO ANY OBLIGATION OF CONFIDENTIALITY OR EXPECTATION OF COMPENSATION. BY SUBMITTING THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL TO OUTtv, YOU ARE WAIVING ANY AND ALL RIGHTS THAT YOU MAY HAVE IN THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL AND ARE REPRESENTING AND WARRANTING TO OUTtv THAT THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL ARE WHOLLY ORIGINAL WITH YOU, THAT NO ONE ELSE HAS ANY RIGHTS IN THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL AND THAT OUTtv IS FREE TO IMPLEMENT THE IDEA AND/OR SUGGESTION AND TO USE THE RELATED MATERIAL IF IT SO DESIRES, AS PROVIDED OR AS MODIFIED BY OUTtv, WITHOUT OBTAINING PERMISSION OR LICENSE FROM ANY THIRD PARTY.
This agreement is personal to you, and you may not assign your rights or obligations to anyone. These Terms and Conditions constitute the entire agreement between OUTtv and you pertaining to your use of any OUTtv Sites, Services and Content and supersede any prior agreements between you and OUTtv with respect to the subject matter hereof. OUTtv’s failure to insist upon or enforce strict performance of any right or provision of these Terms and Conditions shall not constitute or be construed as a waiver of any right or provision. If any of the provisions (or parts thereof) contained in these Terms and Conditions are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions (or parts thereof) contained herein. No changes to these Terms and Conditions shall be made except by a revised posting on this page or except as otherwise expressly contemplated herein. The parties have required that these Terms and Conditions and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents que s’y rattachent soient rédigés en anglais.