Please Read This Terms of Use Agreement Carefully. This Is A Binding Contract.
This Terms of Use (this “TOU”) describes the terms and conditions applicable to your access and use of all STIRR.TV “Websites” and mobile applications (“Apps”) and interactive services operated by Thinking Media, Inc., d/b/a STIRR.TV ( “STIRR”, “we”, “us”, or “our”) where this TOU is posted on our Websites and Apps (collectively the “Sites”) and the services provided in association with the Sites (collectively, the “Service”).
This TOU sets forth the terms and conditions under which STIRR provides you access to the Sites and the Service.
Your use of the Site constitutes your acceptance of and agreement to be bound by these Terms of Use. If you do not agree to abide by these Terms of Use, you must stop using the Site and exit the Site now.
If you agree to these Terms of Use, then STIRR grants you permission to access to and use the Sites and Service in accordance with these Terms of Use and any other related terms and conditions which may be presented to you for your use or involvement with any subscription Service or other promotional STIRR related activities.
STIRR may make changes to the Sites and/or the Service at any time. STIRR may also amend this TOU at any time by posting the amended Terms of Use on the Sites, and/or sending you an email, and you agree that you will be bound by any changes to this TOU. For your convenience, the date of last revision is included at the top of this page.
Privacy Policy. By using the Sites or the Service, you represent that you have read and consent to our Privacy Policy https://press.stirr.tv/privacy-policy (which Privacy Policy is incorporated herein by this reference) in addition to this TOU. STIRR may revise the Privacy Policy at any time, and the new versions will be available on the Sites. If at any point you do not agree to any portion of the Privacy Policy, you may contact us, as set forth in the Privacy Policy, and you must immediately stop using the Sites and/or Service.
STIRR Accounts and Internet Connection.
In order to access some features of the Sites, you have to create a STIRR account. You may never use another person’s STIRR account without permission. When creating your account, you must provide accurate and complete information. You must keep your account password confidential and secure because you are solely responsible for the activity that occurs on your STIRR account. You must notify STIRR immediately if you become aware of any breach of security or unauthorized use of your account.
You are solely responsible for any Internet connection and telecommunication fees or charges that you may incur when accessing the Service.
TOU Updates. STIRR will revise this TOU as the Sites and/or Service evolves. You must agree to all revisions if you choose to continue using the Sites and/or Service. By using the Sites and/or Service, you agree to the then-current version of this TOU as posted on the Sites. If at any point you do not agree to any portion of the then-current version of this TOU, you must immediately stop using the Sites and/or Service.
Termination of Service. STIRR reserves the right to deny service to any person at STIRR’s sole and absolute discretion. The Sites and/or Service is offered with the understanding that STIRR may terminate any account registered to you and/or your access to the Sites and/or Service at any time, for any reason or no reason, including without limitation for any violation of this TOU, or our Privacy Policy. STIRR may stop offering and/or supporting the Sites and/or Service at any time.
Eligibility. You represent that you are 18 years old or older and have the legal capacity to enter a contract in the jurisdiction where you reside, or that you have the permission, consent and agreement of your parent or authorized legal guardian where applicable.
Unsolicited Idea Submissions.
Unsolicited Ideas. STIRR values your feedback on its Services, Sites and products, but please do NOT submit any unsolicited creative ideas, suggestions or materials to us. Neither STIRR nor any of its employees and/or subcontractors accept or consider unsolicited ideas, original creative artwork or other works, including, without limitation, ideas or suggestions for new or improved business concepts or technologies, product enhancements, improvements to existing programs, marketing plans or names for new content (collectively “Unsolicited Ideas“). Please do not send your Unsolicited Ideas to STIRR or its employees and/or subcontractors. This policy is aimed at avoiding potential misunderstandings or disputes when STIRR products, Sites or Services might seem the same or similar to Unsolicited Ideas that were submitted.
Rights to Unsolicited Ideas. If you do submit your Unsolicited Ideas to STIRR, or to any of its employees and/or subcontractors, then you hereby acknowledge and agree that, from the time of uploading, transmission or dispatch, you grant STIRR and its designees a worldwide, perpetual, irrevocable, sublicensable, transferable, assignable, and royalty-free right to use, reproduce, distribute, create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import your Unsolicited Ideas, including, without limitation, all copyrights, trademarks, trade secrets, patents, industrial rights, so-called “moral rights” and all other intellectual and proprietary rights related thereto, in any media now known or hereafter created, devised or developed, for any purpose whatsoever, commercial or otherwise, including, without limitation, giving the Unsolicited Ideas to others, without any compensation or attribution to you. You also waive any claim that any use by STIRR and/or its licensees of your Unsolicited Ideas violates any of your rights, including but not limited to moral rights, privacy rights, rights to publicity, proprietary or any other rights, and/or rights to credit for the material or ideas set for therein.
Restrictions and Conditions of Use.
Use of Sites and Service. STIRR authorizes you to view and use the Sites solely for your personal, non-commercial use. This authorization is not a transfer of title in the Sites, any information or any copies of any information, or to any text, graphics, logos, images, videos, data compilations, software or other materials on or related to the Sites (“Materials”), and is subject to the following restrictions: (a) you may not remove or modify any copyright, trademark, logo or any other proprietary notices affixed to any information and/or Materials; (b) you may not modify any information and/or Material in any way, or reproduce or publicly display, distribute or otherwise use the information and/or Material for any public or commercial purpose. You agree not to license, create derivative works from, transfer, sell or re-sell any information, Material or Services obtained from the Sites. You agree to abide by all additional restrictions displayed on the Sites, as updated from time to time.
No Violation of Laws. You agree that you will not, in connection with your use of the Sites or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Sites and/or Service any material or information that infringes any copyright, trademark, patent, trade secret, or any other right of any party (including rights of privacy or publicity).
Misuse of Sites and/or Service. You may not connect to or use the Sites and/or Service in any way not expressly permitted by this TOU. Without limiting the foregoing, you agree that you will not: (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Sites and/or Service or otherwise attempt to disrupt the Sites and/or Service or any other person’s use of the Sites and/or Service; or (b) attempt to gain unauthorized access to the Sites, Service, accounts registered to other users, or the computer systems or networks connected to the Sites and/or Service. Furthermore, you may not use the Sites or Service to develop, generate, transmit or store information that: (i) is defamatory, harmful, abusive, obscene or hateful; (ii) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Sites and/or Service; (iii) performs any unsolicited commercial communication not permitted by applicable law; (iv) constitutes harassment or a violation of privacy or threatens other people or groups of people; (v) is harmful to children in any manner; (vi) violates any applicable law, regulation or ordinance; (vii) makes any false, misleading or deceptive statement or representation regarding STIRR and/or the Service; (viii) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (ix) generates artificial, automated or fraudulent views of pages or videos or ‘clicks’ on advertisements or offers.
No Commercial Uses. You agree that you will not use the Sites or the Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Sites or Service.
No Data Mining or Harmful Code. You agree that you will not: (a) obtain or attempt to obtain any information from the Service, including without limitation email information of other account holders; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions, malware or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble the Sites or the Service.
Mobile Devices. The Sites and Service contains services and features that maybe available to or through certain mobile devices. Your carrier’s normal rates and fees apply. We do not guarantee that any or all Services will work with or be accessible through all carriers or devices.
Sales Tax Collection. In states where we have no physical presence, we are not required to collect and remit sales tax for purchases unless required by such states. However, if a state does not require this, it may still require that their residents file a sales or use tax return for items purchased on the Site. You should consult your state and local tax laws to determine compliance with tax laws and regulations in your area. For those states that do require it, we collect and remit sales tax. For purchases where sales tax is applicable you will see the tax calculated on the checkout page before you are asked to confirm the purchase. We use reasonable commercial efforts to calculate and remit the correct amount of tax required on each taxable purchase, but we do not guarantee the accuracy of the amount of the tax we represent to you as the tax owed. Minor errors may occur owing to the inability to accurately track multiple taxing districts, state and local “tax holidays,” the timing of rate changes or the application of certain taxes to categories of items we sell. As a result of any error, we may over collect or under collect your tax. In consideration of our allowing you access to and use of the Sites, and in collecting and remitting taxes required on your purchases, you hereby waive your right to claim that the tax collected on any purchase is incorrect in any respect and agree to hold us harmless, our officers, directors, employees, agents and representatives, for any harm or other damages you may incur as a result of our error in calculating the taxes you owe for your purchases
Products, Service Charges, Errors, Misprints and Cancellations.
To make purchases on the Sites, you must have a valid shipping address in the United States, or in the country where you are located. Subject to applicable law, and notwithstanding any information, slogans, or materials displayed on the Sites, we: (a) reserve the right to change the products and services advertised or offered for sale through the Sites, the prices or specifications of such products and services, and any promotional offers and any other Site content at any time and from time to time without any notice or liability to you or any other person; (b) cannot guarantee that products or services advertised or offered for sale on the Sites will be available when ordered or thereafter; (c) reserve the right to limit quantities of products and services sold or made available for sale; (d) do not represent or warrant that Site content related to any products or services advertised or offered for sale (including without limitation product descriptions or photographs) is accurate, complete, reliable, current, or error-free; and (e) reserve the right to cancel, to terminate, or not to process orders (including accepted orders) where the price or other material information on the Sites is inaccurate or when we recognize abuse of this TOU and our policies. If we do not process an order for such reason, we will advise you that the order has been cancelled and will either not charge you or will apply credit to the payment type used in the order. Some jurisdictions may not allow the exclusions and disclaimers of certain implied warranties, so some of the provisions of this section may not apply to you. We have made reasonable efforts to ascertain general eligibility of products and display accurately the colors or appearances of the products on the Sites. If a product offered on the Sites is not as described, you agree that your sole remedy is to return it in unused condition for a refund.
We reserve the right to limit quantities of products and services purchased by each user of the Sites. In addition, we reserve the right to cancel any order, or part of an order, or to refuse service to anyone for any reason. Such reasons may include, but are not limited to, unauthorized coupon use, product availability, and price discrepancy. We reserve the right to charge fees or extra shipping charges for any product that is backordered. The posting of prices on our Sites is not an offer for sale of goods, and the order confirmation is not an acceptance of an offer to purchase goods. You agree that the contract for sale of goods between us and any user of the Sites is not entered into until we charge a valid credit card or otherwise accept payment.
Promotions: We may from time to time provide certain promotional opportunities, sweepstakes and/or contests to Site users, and such promotions, sweepstakes and/or contests maybe subject to additional official rules which would be provided at that time. All such promotions will be run at our sole discretion, and can be activated, modified or removed at any time by us without advance notification. Our liability, and the liability of any of our partners pursuant to such promotional opportunities, sweepstakes and contests will be limited pursuant to the limitations of liability set forth in these Terms.
Links.
Third Party Links from the Sites. The Sites may contain links to Sites, Apps and content platforms operated by other parties (for example: Google, YouTube, Instagram, Amazon, Apple, Roku, Facebook, Twitter, etc.). STIRR provides these links to other sites, Apps and content platforms as a convenience, and use of these sites and content platforms is at your own risk. The linked sites, APPs and content platforms are not under the control of STIRR, and STIRR is not responsible for the content available on the other sites, Apps and content platforms. Such links do not imply STIRR’s endorsement of information or material on any other Sites, App or content platform and STIRR disclaims all liability with regard to your access to and use of such linked sites, Apps and content platforms. Products and/or services offered on or in association with the third party linked sites and Apps are provided through independent third party vendors, and you agree to look solely to such third party vendors, and not STIRR, for any issues related to such products and/or services.
Links to the Sites. Unless otherwise set forth in a written agreement between you and STIRR, you must adhere to STIRR’s linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with STIRR’s and/or its licensors’ names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that you or your organization or entity is sponsored by, affiliated with, or associated with STIRR, (iii) when selected by a user, the link must display the Sites on full-screen and not within a “frame” on the linking Sites, and (iv) STIRR reserves the right to revoke its consent to the link at any time and in its sole discretion.
Social Networks. The Service may include features that operate in conjunction with certain third-party social networking sites or APPs that you visit, including the use of such features to log into your account on the Sites (“Social Network Features”). While your use of the Social Network Features is governed by this TOU, your access and use of third-party social networking sites and the services provided through those sites is governed by the terms of service and other agreements posted on those third-party sites. It is impossible for STIRR to determine in each case whether your use of the Social Network Features would cause you to violate or breach the terms of service and/or other agreements posted on those third-party sites. You understand and acknowledge that your actions in association with your use of the Social Network Features may possibly cause you to violate or breach the terms of service and other agreements posted on those third-party sites which could result in the termination of your account and ability to access those third party sites and, in some cases, could give rise to the possibility of liability for damages. You agree that you alone are responsible for your use of any Social Network Features and that STIRR will not be liable to you or anyone else for your violation or breach of any terms of service or other agreement of any third-party sites, App or service that may result from your use of such Social Network Features.
Intellectual Property.
Trademarks. Trademarks, including without limitation, “STIRR" marks and logos are the trademarks and/or Service Marks of Thinking Media, Inc. Unauthorized use of any Thinking Media, Inc. Trademark, Service Mark or logo would be a violation of international and U.S. Federal and State trademark laws.
Copyright. The Sites and Service and the content made available through the Sites and the Service are protected by U.S. and international copyright Except as authorized in this TOU, you may not use, modify, reproduce or distribute any of the content, or the design or layout of the Sites or Service, or individual sections of the content, design or layout of the Sites without STIRR’s express prior written permission.
DMCA Copyright Claim and Agent. Note: the following information is provided exclusively for notifying STIRR that your copyrighted material may have been infringed. All other inquiries, such as requests for technical assistance, reports of social media or email abuse or piracy reports, will not receive a response through this process. STIRR respects the intellectual property rights of others and requires that visitors and users who use the Sites and the Service do the same.
Copyright Infringement Claim: If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the STIRR Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
Your address, telephone number, and email address;
A description of the copyrighted work that you claim has been infringed;
A description of where the alleged infringing material is located;
A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Copyright Agent:
Thinking Media, Inc.
2222
Email: legal@stirr.com
Inquiries not compliant with the procedure outlined above may not receive a response. STIRR may, in appropriate circumstances, terminate an account holder or subscriber to a Site or Service if he or she is a repeat infringer. If you believe that an account holder or subscriber is a repeat infringer, please follow the instructions above to contact STIRR’s DMCA Copyright Agent and provide information sufficient for us to verify that the account holder or subscriber is a repeat infringer.
Counter-Notice. If you believe that your user Posting (as defined below) that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your Posting, you may send a counter-notice containing the following information to the STIRR Copyright Agent:
To be effective, a Counter Notification must be a written communication provided to STIRR’s designated Copyright Agent that includes substantially the following:
A physical or electronic signature of the STIRR account holder;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
A statement under penalty of perjury that the Subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
The Subscriber’s name, address, email and telephone number, and a statement that the Subscriber consents to the to the exclusive jurisdiction of the state and federal courts located within Los Angeles, California and that the Subscriber will accept service of process from the person who provided notification or an agent of such person.
Upon receipt of a Counter Notification containing the information as outlined in 1 through 4 above:
STIRR will without undue delay provide you, the complaining party, with a copy of the Counter Notification;
STIRR will inform you that it will replace the removed material or cease disabling access to it within approximately 10 to 14 business days;
STIRR will replace the removed material or cease disabling access to the material within approximately 10 to 14 business days following receipt of the Counter Notification, provided STIRR’s designated Copyright Agent has not received notice from you that an action has been filed seeking a court order to restrain Subscriber from engaging in infringing activity relating to the material on STIRR’s network or system.
USA Location and Governance. The Sites and the Service are owned and operated by STIRR in the United States and governed by the state and federal laws of the United States. The Sites are therefore intended for access only from, and use by residents of, the United States. If you are a resident of, or access the Sites from, a jurisdiction outside the United States, the laws of your jurisdiction may be more or less strict than the laws that apply to these Sites and you therefore do so at your own risk and are responsible for compliance with all applicable laws of such jurisdiction. We make no representation that the Sites or Sites’ content is appropriate or available for use in other locations, and access to them from territories where their content is illegal is prohibited. You may not use or export any of the Sites content in violation of United States export laws and regulations. Those who choose to access the Sites, and/or the Service from locations outside the United States do so on their own initiative and are solely responsible for compliance with applicable local laws.
User Postings on the Sites. The Sites may provide users with the ability to post feedback, Fan-Art, messages or testimonials on the Sites. STIRR is under no obligation to review any messages; information or content (“Postings”) posted on the Sites by users and assumes no responsibility or liability relating to any Postings. Notwithstanding the above, STIRR may from time to time monitor the Postings on the Sites and may remove any Postings at its sole discretion. You grant other users of the Sites permission to access, use, record, reproduce, distribute, publicly display, publicly perform, and prepare derivative works of your Postings in any medium (whether now known or later developed). We do not guarantee any confidentiality with respect to any Postings that you may submit, upload, post or otherwise provide to the Sites, and it is your responsibility to protect any rights that you may have in your Postings. Please also be aware that any personally identifiable information that you choose to include in your Postings for publication on the Sites will not be protected, except as maybe set forth in our Privacy Policy. If STIRR has provided you with any free or discounted product or other item of value (other than sales and discounts available to the general public), you agree to disclose the value received in your Postings in compliance with Section 5 of the U.S. Federal Trade Commission Act.
Submitted Content. STIRR does not claim ownership of any materials of the Postings you make available through the Sites. At STIRR’s sole discretion, such materials in the Postings may be included in the Service in whole or in part or in a modified form. With respect to such materials in the Postings you submit or make available for inclusion on the Sites, you grant STIRR a perpetual, irrevocable, non-terminable, worldwide, royalty-free, fully paid-up and non-exclusive license to use, copy, distribute, publicly perform, display, modify, create derivative works, and sublicense such materials in the Postings or any part of such materials and Postings. You hereby represent and warrant: that any materials or Postings you provide do not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified above in this Section entitled “Submitted Content”. You also grant us the right, but not the obligation, to use your name, likeness, and identity in connection with your materials and Postings. You voluntarily waive all so-called “moral rights” or similar rights you may have in your materials and Postings.
Children. The Sites and the Service of STIRR does not knowingly collect information from children under 13 or allow them to create an account or access account features. The Children’s Online Privacy Protection Act (COPPA) of 1998 provides safeguards to protect children who use the Internet by regulating the online collection of personal information from children under the age of 13. To ensure compliance with this law, STIRR does not knowingly collect or maintain information provided by children under the age of 13 unless expressly authorized by a parent or legal guardian. Minors (under the age of 13) should not submit any personal information to us. If we learn that we have inadvertently collected personal information from a child under the age of 13, we will make all reasonable efforts to delete that data from our records.
Disclaimer of Warranties.
The Sites and Service are provided on an “AS IS” and “AS AVAILABLE” basis for your use, without warranties of any kind, either express or implied, including without limitation the warranties of merchantability, fitness for a particular purpose, title, non-infringement, and those arising from course of dealing or usage of trade. STIRR makes no warranty as to the accuracy, completeness or reliability of any content available through, or the performance of, the Sites or the Service. You are responsible for verifying any information before relying on it. Use of the Sites and/or the Service is at your sole risk. STIRR does not warrant that you will be able to access or use the Sites and/or Service at the times or locations of your choosing; that the Sites or the Service will be uninterrupted or error-free; that defects will be corrected; or that the Sites or the Service are free of viruses or other harmful components.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
Limitation of Liability; Sole and Exclusive Remedy.
To the maximum extent permitted by law, STIRR, its affiliates, licensors and business partners (collectively, the “Related Parties”) disclaim all liability, whether based in contract, tort (including negligence), strict liability or otherwise, and further disclaims all losses, including without limitation direct, indirect, incidental, consequential, or special damages arising out of or in any way connected with access to or use of the Sites and/or Service, even if STIRR and/or Related Parties have been advised of the possibility of such damages. Without limiting the foregoing, in no case will the liability of STIRR or any of the Related Parties exceed the amount that you paid to us or our designees during the 6 months prior to the time the cause of action giving rise to liability arose or $100, whichever amount is less.
STIRR will not be responsible or liable, under any circumstances, for any loss, liability, expenses or damages incurred in connection with the Site and/or the Service to the extent caused by or resulting from: (a) your acts, defaults or omissions; (b) your violation of any of any term, condition, representation or warranty contained in this TOU; or (c) acts or omissions of third parties, including third parties contracted by STIRR.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of STIRR and its affiliates shall be limited to the fullest extent permitted by law.
Indemnification. You agree to indemnify, defend and hold STIRR and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys’ fees and expenses, and court costs, resulting from or arising out of your use of the Sites and/or the Service or any breach by you of this TOU, our Privacy Policy or any other policies that STIRR may issue for the Sites and/or Service from time to time.
Governing Law; Jurisdiction. This TOU is governed by, and will be construed under, the laws of the United States of America and The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as expressly provided below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Sites and/or the Service shall be subject to binding arbitration as provided in paragraph 28. To the extent any matter is excluded from arbitration as set forth below, all such disputes, shall be subject to the exclusive jurisdiction of the state and federal courts located within New Castle county, Delaware and you agree to submit to the personal jurisdiction and venue of such courts. You and STIRR agree that any cause of action arising out of or related to the Sites or Services must commence within 1 year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
Binding Arbitration.
28.1 Arbitration Procedures. You and STIRR agree that, except as provided in this Section 28, all disputes, controversies and claims related to this TOU (each a “Claim”), will be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party will be final and binding on the other. . In the event of a conflict between the terms set forth in this Section and the JAMS Rules, the terms in this Section will control and prevail.
Except as otherwise set forth in this Section, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, discovery shall be permitted pursuant to the JAMS Rules. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration (arbitrability) will be governed by the JAMS Rules and shall be determined by an arbitrator. Notwithstanding the foregoing, you and STIRR may litigate in court to compel arbitration, stay proceedings pending arbitration, obtain interim equitable relief, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
By agreeing to this arbitration provision, you understand that you and STIRR waive the right to sue in court and have a jury trial.
28.2 Location and Timing. The arbitration will take place within 30 days following receipt by either party of the other party’s notice of arbitration. The arbitration will be conducted in Los Angeles, California.
28.3 Limitations. You and STIRR agree that any arbitration will be limited to the Claim between STIRR and you individually. You and STIRR agree that: (a) there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; (b) there is no right or authority for any dispute to be brought in a purported representative capacity or as a private attorney general; and (c) no arbitration will be joined with any other arbitration.
28.4 Severability. You and STIRR agree that if any portion this Section 28 is found illegal or unenforceable, that portion will be severed and the remainder of the Section will be given full force and effect.
Additional Terms.
TOU Revisions. This TOU may only be revised in a writing signed by STIRR, or published by STIRR on the Sites.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and STIRR as a result of this TOU or your use of the Service.
STIRR may assign this TOU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the TOU without STIRR’s prior written consent, and any unauthorized assignment by you will be null and void.
If any part of this TOU is determined to be invalid or unenforceable, then that portion will be severed, and the remainder of the TOU will be given full force and effect.
Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this TOU, the prevailing party will be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
No Waiver. Our failure to enforce any provision of this TOU will in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this TOU will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
All notices given by you or required under this TOU will be in writing and addressed to: Thinking Media, Inc. d/b/a STIRR,
2222
ATTN: Legal Department. STIRR
Equitable Remedies. You hereby agree that STIRR would be irreparably damaged if the terms of this TOU were not specifically enforced, and therefore you agree that we will be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this TOU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Terms Applicable for Apple ios
If you are accessing or using one of our Apps and/or the Sites through a device manufactured and/or sold by Apple, Inc. (“Apple”), such a device will be referenced as an “Apple Device”:
To the extent that you are accessing the App through an Apple Device, you acknowledge that this TOU is entered into between you and STIRR and, that Apple is not a party to these Terms other than as third-party beneficiary as set forth below.
The use of the Sites and Service granted to you in this TOU is subject to the permitted Usage Rules set forth in the Apple App Store Terms and Conditions (see e.g.: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the App.
You acknowledge that STIRR, and not Apple, is responsible for providing the App and content thereof.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the App.
To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App.
Notwithstanding anything to the contrary herein, and subject to the terms in this TOU, you acknowledge that, solely as between Apple and STIRR STIRR and not Apple is responsible for addressing any claims you may have relating to the App, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
Further, you agree that if the App, or your possession and use of the App, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
When using the App, you agree to comply with any and all third-party terms that are applicable to any platform, sites, technology or service that interacts with the App.
Other App Stores or Devices. If you are accessing or using one of our Apps and/or the Sites through a device manufactured and/or sold by a third-party other than Apple, or through another third-party App Store (e.g., such as the Google Store), the terms set forth in Section 37 above will be applicable to such use and the applicable third-party’s device or App store name will be inserted (as appropriate) instead of the word “Apple”, as set forth above in Section 37.
Controlling Language. In the event that any conflict arises between the English language version of this TOU and any translation thereof (including without limitation, Spanish), the English language version will be controlling in all respects.
Entire Agreement. This TOU, including documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Sites and/or Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Sites and/or Service.