• Section 2: OUR SERVICES
• Section 3: MEMBERSHIP ACCOUNTS
• Section 4: TRANSACTIONAL AND SUBSCRIPTION SERVICES; PACKAGES AND LEVELS; PROMOTIONS AND OTHER PACKAGES
• Section 5: BILLING
• Section 6: CUSTOMER SUPPORT SERVICES AND RELATED COMMUNICATIONS
• Section 7: INTELLECTUAL PROPERTY
• Section 8: DISCLAIMER OF WARRANTIES
• Section 9: LIMITATION OF LIABILITY
• Section 10: INDEMNIFICATION
• Section 11: DISPUTE RESOLUTION, ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
• Section 12: MISCELLANEOUS
Section 2: OUR SERVICES
• Our Services. By subscribing to our Services, you receive access to and use of: (i) certain software, technology and other intellectual property rights (including all functionality and data contained therein) (e.g., adaptive streaming and third-party platform authentication) owned or operated by us (regardless whether available for download directly or indirectly from Fancy Flix) (e.g., applications that are hosted or downloaded, accessories, tools, features and/or functionality related to and/or made available by us); (ii) websites owned, operated or otherwise controlled by, or on behalf of, us; (iii) the content accessible by you (e.g., any and all transaction and subscription video, audio, data, interactive, programming, advertising and other content); and (iv) any and all other products and/or services accessed, provided, used or otherwise made available to you, including to enhance past or then-current Services.
• Internet Connection. In order to access and use our Services, you must have a broadband, wireless or similar internet connection, and you will need to obtain such internet connection (including sufficient levels and required equipment related thereto) from a third-party internet or similar wireless service provider at your sole cost and expense (“Internet Connectivity”). It is your responsibility to obtain and maintain the Internet Connectivity necessary to access and use our Services. Fancy Flix is not responsible for your Internet Connectivity (or the amount of data consumed by you in connection with your use of any of our Services). The time it takes to access and use any of our Services (e.g., watching a movie or TV show) will vary based on a number of factors, including your location, your Internet Connectivity, the available bandwidth at the time of your request, the format of our Services you are attempting to access, the device(s) you use to access our Services and other factors outside of our control. Fancy Flix makes no representations or warranties about the speed or quality of your watching experience on your or any device, and reserves the right to change our Services (e.g., the format) based on the specifications of your Internet Connectivity (e.g., if your Internet Connection or device do not meet our required standards for accessing and viewing high-definition (“HD”) content, then any HD content accessed by you may be automatically re-formatted by us in an attempt to improve your experience). We suggest that you ensure that your Internet Connectivity, Permitted Device(s) and configuration are compatible with our Services and the format thereof. By accessing or using our Services, you agree to look solely to the entity that provides your Internet Connection for any issues related to such connection and/or its compatibility with, or sufficiency for accessing and using, any of our Services.
• Devices. Not all devices are compatible, or permissible, for use with our Services. Currently we only support Android mobile devices. Permitted Devices, are manufactured and sold by entities other than Fancy Flix. In order to use our Services, you must have a Permitted Device, and you will need to obtain such Permitted Device from a third-party provider of such device at your sole cost and expense. You may use more than one Permitted Device, but the number of Authorized User(s) concurrently accessing or using our Services may be limited to one (1) Permitted Device at any time. In addition, certain of our Services, or portions of the functionality thereof, may be “blacked-out” or not-available on certain Permitted Device(s). By accessing or using any of our Services, you agree to look solely to the third party that manufactured and/or sold you the device for any issues related to such device, the operating system thereon and/or its or their compatibility with any of our Services.
• Use of Adaptive Bitrate Streaming. Our audiovisual Services, including, without limitation, live TV channels, use adaptive bitrate streaming (“ABS”), which creates multiple versions of each program, recorded at different bitrates, to optimize playback of the applicable audiovisual content at any given time based upon the capabilities of the applicable playback device and available internet bandwidth.
• Programming Content and Restrictions. Certain of our Services may be “blacked out” in your viewing area (e.g., local broadcast channels, sporting events and/or other content for which you do not have the rights to access); if you circumvent or attempt to circumvent any of these “blackouts,” then you may be subject to legal action brought by us or third parties. Certain of our Services may have additional restrictions and your access to such Services will be subject to those restrictions (e.g., you must be at least 18 years of age, or the applicable age of majority where you live, in order to access certain adult-oriented programming or similar Services).
Section 3: MEMBERSHIP ACCOUNTS
• Device Deactivation. If your device is transferred, lost, or stolen, then you must immediately contact Customer Service at: email@example.com. It is your sole responsibility to notify us of any transferred, lost, or stolen devices, and to prevent any unauthorized access to our Services and your Membership Account. Please review the risks and responsibilities of allowing third-party access to your Membership Account (see Section 3.A. above) that may result from your failure to notify us that your device was transferred, lost, or stolen.
Section 4: TRANSACTIONAL AND SUBSCRIPTION SERVICES; PACKAGES AND LEVELS; PROMOTIONS AND OTHER PACKAGES
• Packages of Subscription Services. We may offer a number of different packages of Subscription Services, including special promotional packages, each governed by any supplemental Promotional Terms provided at the time of your first access or use of such Services. Some promotional packages may be offered by third parties in conjunction with the provision of their own products and services. We are not responsible for the products and services provided by such third parties. We reserve the right to modify, terminate, or otherwise amend the Subscription Services offered by us, and the contents of the packages and levels thereof.
• Minimum Requirements. Fancy Flix reserves the right to require and/or change minimum programming package requirements, from time to time and at any time, in its sole and absolute discretion. For example, Fancy Flix may require a minimum commitment term, or Fancy Flix may require you to subscribe to a minimum level or package of our Services in order to view certain content or obtain access to purchase additional levels or packages of Subscription Services. In order to purchase certain packages, you may be required to first subscribe to Services for a set term (e.g., a year-long subscription).
• Only One Promotion per Account Owner. Promotional offers may not be combined with other promotional offers associated with any account that you own, unless otherwise expressly permitted in the applicable Promotional Terms. Fancy Flix reserves the right, in its sole and absolute discretion, to determine your eligibility for any promotional offer pursuant to the applicable Promotional Terms. Fancy Flix reserves the right to change, amend and alter then-current promotional offers or Promotional Terms as well as institute new promotional offers, from time to time and at any time, in its sole and absolute discretion. We do not guarantee that any promotional offers are or will be available to you at all, or in connection with any Services desired by you.
• Cancellation Policies. Your Subscription Services are prepaid on a monthly billing period basis and you may contact us to cancel them at any time by visiting firstname.lastname@example.org. Because charges are prepaid each billing period, when you contact us to cancel your Subscription Services, your subscription will continue, and you will be able to enjoy your Subscription Services through the end of, the then-current billing period (except as otherwise provided herein to the contrary (see Section 5.D.) or in any Promotional Terms). Refunds are not issued for a partial billing period. WE ARE NOT OBLIGATED, AND YOU ARE NOT ENTITLED AND HEREBY WAIVE ANY RIGHT, TO ANY CREDIT, REFUND, PRICE ADJUSTMENT OR ANY OTHER DISCOUNT, COMPENSATION OR RECOMPENSE FOR ANY PARTIAL-USE, EARLY CANCELATION OR UNWATCHED PRE-PAID SERVICES. When you cancel your Subscription Services, you may be subject to certain charges and fees as set forth in any applicable Promotional Terms, and if you have taken advantage of a promotional offer that required you to pre-pay for a minimum period of time (e.g., 3 months), then your cancellation will not become effective until the end of that minimum period of time, and in such case, for purposes of such promotional offer, your initial “billing period” will mean such minimum period of time. Your cancelation of Subscription Services does not automatically cancel your Membership Account or access to our Transactional Services.
Section 5: BILLING
• Fees and Charges. We will bill you monthly in advance for your Subscription Services. Charges are billed to the credit or debit card you registered with your Membership Account. Fancy Flix may, from time to time and at any time, change the amount of or basis for determining any fees or charges, and/or institute new fees, surcharges, or other charges as determined by us (e.g., surcharges imposed for transmission of programming content in certain jurisdictions). You agree to pay all amounts billed for our Services, as well as all taxes, fees, and other charges, if any, that are now or may in the future be assessed in connection with any of our Services you access or use, and any other charges due and owing to us. We may apply interest and late fees for any amounts paid following the date when due, and we may terminate or suspend your account for any failure to timely pay any amounts or maintain up-to-date payment method information within your account. State and local taxes or reimbursement charges for gross earnings taxes in some states may apply.
• No Returns, Credits or Refunds. YOU UNDERSTAND AND AGREE THAT PAYMENTS ARE NONREFUNDABLE. WE ARE NOT OBLIGATED, AND YOU ARE NOT ENTITLED AND HEREBY WAIVE ANY RIGHT, TO ANY CREDIT, REFUND, PRICE ADJUSTMENT OR ANY OTHER DISCOUNT, COMPENSATION OR RECOMPENSE FOR ANY PARTIALLY USED OR UNUSED SERVICE (E.G., SUBSCRIPTION SERVICES NOT USED OR TRANSACTIONAL SERVICES NOT DOWNLOADED OR FULLY VIEWED). Because charges are prepaid each billing period, following your cancellation of any of your Subscription Services or Transactional Services, you will continue to have access to any and all of such Services for which you have paid through the end of your then-current billing period, and to certain of our other Services that do not require any payment, including, access to and use of certain portions of our Websites and Apps. Notwithstanding the forgoing, although not required or obligated, we reserve the right to evaluate or elect to provide credits, refunds, price adjustments or other discount, compensation or recompense, from time to time, and at any time, in our sole and absolute discretion; provided that any such elections to offer any such credits, refund, price adjustment or other discount, compensation or recompense in one instance does not entitle you to the same or any such benefit in the future for similar or unrelated instances, nor does it create any obligation whatsoever for us to offer such benefit to you or any other user in connection with any past, present, or future request under any circumstance whatsoever.
Section 6: CUSTOMER SUPPORT SERVICES AND RELATED COMMUNICATIONS
• Communications. By registering for a Membership Account, you hereby consent to receive electronic communications from us and other Contributors related to such account and our Services. These communications may involve sending emails to the email address you provided during registration, or delivering electronic communications via your Membership Account, and will include notices about your Membership Account (e.g., payment authorizations, password or payment method changes, confirmation e-mails, notices, and other similar or transactional information related to such account); these communications are part of our Services and your relationship with us. You agree that any notice, agreements, disclosures, or other communications that we send to you electronically, as described herein, will satisfy any legal communication requirements (e.g., that such communications be in writing and through an appropriate method). You also consent to receiving other electronic communications from us, such as newsletters about new Services features and content, special offers, promotional announcements, and customer surveys. If you no longer want to receive certain non-transactional communications via email, please contact Customer Service at email@example.com, click on the “Unsubscribe” link contained in any email, or on any other link that indicates that you would like to be removed from future, similar non-transactional communications.
Section 7: INTELLECTUAL PROPERTY
• Fancy Flix Property. The “Fancy Flix” Services, including any and all content made available in connection with your access and use of our Services, is protected by domestic and international copyright, trade secret, trademark, and other intellectual property laws.
• End-User License Agreement. Our Websites, Apps, and other software and technologies are developed by, or for, us and are designed to enable our provision of certain content through Permitted Devices. Our Websites, Apps, and other software and technologies may vary by Permitted Device, operating system, or other medium and the functionalities thereof may also differ among Permitted Devices. BY USING ANY OF OUR SERVICES, YOU ACKNOWLEDGE AND AGREE TO OUR END USER LICENSE AGREEMENT (I.E., OUR EULA) AND TO RECEIVE, WITHOUT FURTHER NOTICE OR PROMPTING, UPDATED VERSIONS OF OUR WEBSITES, APPS, AND OTHER SOFTWARE AND TECHNOLOGIES, INCLUDING RELATED THIRD-PARTY SOFTWARE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS SET FORTH IN OUR EULA, THEN DO NOT USE ANY OF OUR SERVICES.
• Reporting Claims. If you have a reasonable belief that your or any other’s protected works have been reproduced or distributed in a way that constitutes copyright infringement, or are otherwise aware of any content available in connection with the Services that may be infringing, violating, or otherwise misappropriating your rights or such other party’s rights, then please notify us immediately.
Section 8: DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
• NEITHER FANCY FLIX NOR ANY OTHER CONTRIBUTOR MAKES ANY WARRANTY WHATSOEVER THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS OR REASONABLE SATISFACTION; (ii) THE SERVICE WILL ALLOW YOU TO COPY, RECORD, VIEW, SKIP, OR TRANSFER ANY PARTICULAR MEDIA, PROGRAMMING, OR PART THEREOF, OR PROVIDE OR CONTINUE TO PROVIDE ANY OTHER PARTICULAR FUNCTIONALITY; (iii) THE SERVICE WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH, OR DATA-THROUGHPUT RATE, BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iv) INFORMATION RELATED TO YOUR ACCOUNT OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; OR (v) THE VARIETY, QUANTITY, OR QUALITY OF ANY MEDIA, PRODUCTS, SERVICES, ACCESSORIES, INFORMATION, OR OTHER MATERIAL RENTED OR OBTAINED BY YOU THROUGH OUR SERVICES WILL MEET YOUR EXPECTATIONS, OR ANY ERRORS IN THE SERVICE WILL BE CORRECTED.
• FANCY FLIX MAY RECOMMEND CERTAIN LEVELS OF INTERNET CONNECTION FOR USE WITH CERTAIN OF OUR SERVICES; PROVIDED, HOWEVER, THAT YOU HEREBY AGREE AND UNDERSTAND THAT FANCY FLIX WILL HAVE NO RESPONSIBILITY WHATSOEVER FOR YOUR INTERNET CONNECTIVITY AND FANCY FLIX DOES NOT WARRANT OR GUARANTEE THE AVAILABILITY OR PERFORMANCE OF ANY INTERNET CONNECTIVITY, INCLUDING THE SPEED, BANDWIDTH, COMPATIBILITY, SUFFICIENCY, EQUIPMENT, OR DELIVERY OF ANY INTERNET CONNECTION OR THAT ANY CERTAIN INTERNET CONNECTIVITY WILL IMPROVE OUR SERVICE(S). PLEASE BE AWARE THAT CERTAIN OF OUR SERVICES MAY REQUIRE THE USE OF ADDITIONAL DATA, AND THAT ANY INCREASED COSTS, FEES, OR OTHER AMOUNTS DUE TO BE PAID BY YOU AS A RESULT OF ANY INCREASE IN USAGE (E.G., USAGE OF DATA) IN CONNECTION WITH THE SERVICES WILL BE YOUR SOLE RESPONSIBILITY.
• FANCY FLIX MAY RECOMMEND OR LIST THE NAMES OF CERTAIN DEVICES PERMITTED FOR USE WITH CERTAIN OF OUR SERVICES, BUT YOU HEREBY AGREE AND UNDERSTAND THAT FANCY FLIX DOES NOT TAKE ANY RESPONSIBILITY WHATSOEVER FOR AND FANCY FLIX DOES NOT WARRANT THE PERFORMANCE OF ANY DEVICE OR GUARANTEE THAT SUCH DEVICE (OR THE APPLICABLE OPERATING SYSTEM OR VERSION) WILL BE (OR REMAIN) COMPATIBLE WITH ANY OF OUR SERVICES. YOU MAY ONLY USE OUR SERVICES ON PERMITTED DEVICES.
• 5WE HEREBY DISCLAIM ANY, AND YOU AGREE THAT WE HAVE, NO OBLIGATION WHATSOEVER TO REPLACE OR SUPPLEMENT ANY SERVICES, PACKAGE OF SERVICES, OR PORTION OF ANY SERVICE(S) THAT WE CHANGE. WE ARE NOT OBLIGATED, AND YOU ARE NOT ENTITLED AND HEREBY WAIVE ANY RIGHT, TO ANY CREDIT, REFUND, PRICE ADJUSTMENT, OR ANY OTHER DISCOUNT, COMPENSATION OR RECOMPENSE FOR ANY AMOUNT PAID BY YOU TO RECEIVE REPLACEMENT, SUPPLEMENTAL OR ALTERNATE SERVICES, PACKAGES OF SERVICES AND/OR POTION OF SERVICES AS A RESULT OF ANY CHANGE.
• ANY MEDIA, SOFTWARE, OR OTHER MATERIAL OR CONTENT DOWNLOADED, STREAMED OR OTHERWISE OBTAINED THROUGH USE OF OUR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR TELEVISION, RECEIVER, DEVICE OR OTHER HARDWARE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD, STREAMING OR OBTAINING OF ANY SUCH MEDIA, SOFTWARE OR OTHER MATERIAL OR CONTENT. NEITHER FANCY FLIX NOR ANY OTHER CONTRIBUTOR ASSUMES ANY RESPONSIBILITY, AND WILL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, CORRUPT, OR OTHERWISE HARM ANY OF YOUR PROPERTY OR THE PROPERTY OF ANY THIRD PARTY, INCLUDING YOUR SOFTWARE, DEVICE OR OTHER HARDWARE.
Section 9: LIMITATION OF LIABILITY
• Indirect Damages. YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER FANCY FLIX NOR ANY OTHER CONTRIBUTORS WILL BE LIABLE TO YOU FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES (E.G., INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER INDIRECT DAMAGES, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES EVEN IF FANCY FLIX OR ANY OF SUCH OTHER CONTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM, OR OTHERWISE RESULTING DIRECTLY OR INDIRECTLY FROM: (i) USE OF ANY OF OUR SERVICES; (ii) ACTIONS, OMISSIONS, AND OTHER ACTIVITY UNDER YOUR MEMBERSHIP ACCOUNT (INCLUDING USE NOT AUTHORIZED BY US); (iii) THE PERFORMANCE OR NON-PERFORMANCE OF OUR SERVICES; OR (iv) THE INSTALLATION, MAINTENANCE, REMOVAL, OR TECHNICAL SUPPORT OF OUR SERVICES, EVEN IF SUCH DAMAGES RESULT FROM THE NEGLIGENCE OR GROSS NEGLIGENCE OF FANCY FLIX OR THE OTHER CONTRIBUTORS.
• Force Majeure. NEITHER FANCY FLIX NOR ANY OTHER CONTRIBUTORS WILL BE LIABLE TO YOU FOR ANY FAILURE TO PERFORM THAT IS CAUSED BY OR OTHERWISE RESULTS FROM ANY ACTS OF GOD, FIRES, EARTHQUAKES, FLOODS, POWER OR TECHNICAL FAILURE, SERVER, INTERNET, SATELLITE OR UPLINK FAILURE, ACTS OF ANY GOVERNMENTAL BODY, OR ANY OTHER CAUSE BEYOND OUR REASONABLE CONTROL.
• Applicability. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, BUT ONLY TO THE EXTENT SUCH LIMITATIONS ARE EXPRESSLY DISALLOWED UNDER THE APPLICABLE LAW(S).
Section 10: INDEMNIFICATION
Section 11: DISPUTE RESOLUTION, ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
• Dispute Resolution. If a Dispute arises and you or we wish to seek arbitration or file any action in small claims court, then the party wishing to seek arbitration or file an action must first send to the other party, by certified mail, notice of the applicable Dispute (“Dispute Notice”), and you and Fancy Flix hereby agree to attempt to resolve any such Dispute through informal dispute resolution for at least 60 days following the date on which the applicable Dispute Notice is properly sent. To initiate arbitration proceedings the party seeking such arbitration must open a case by filing with the American Arbitration Association (“AAA”) a demand for such arbitration, paying the administrative filing fee and providing a copy of the applicable arbitration agreement (collectively, the “Demand for Arbitration”); you will only be responsible for paying an arbitration initiation fee equal to the amount that you would pay to file a lawsuit against us in the appropriate court of law in your state, not to exceed $125.00.
• Class Action Waiver. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE). Further, unless both you and Fancy Flix specifically agree otherwise in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual party’s individual claim. In the event that this Section 11.E. or any other material provision of this Section 11 is held to be unenforceable, void or voidable, then Section 11 in its entirety will be void, ab initio.
Section 12: MISCELLANEOUS