YOU AGREE THAT BY USING THIS WEBSITE YOU ARE AT LEAST 18 YEARS OF AGE AND YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT.
IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED TO USE THIS WEBSITE.
1. Licenses and Website Access: For purposes of these Terms, “Content” includes any text, message, data, photograph, image, graphic, information, audio/video files or other material on the Website and the related trademarks, service marks, logos, insignias and other intellectual property contained therein. As between you and the Company, the Content on the Website (excluding any User Content (as defined below), is owned by or licensed to the Company, subject to copyright and other intellectual property rights under the law. Without limitation, this includes the CINESKY brand name (inclusive of “CINESKY”), as well as any and all Company trademarks and service marks used on or by the Website. Content also includes the “look and feel” of the Website (including its design, layout, color combinations, button shapes and other graphical elements). Content on the Website is provided to you “as is” for your information in connection with your use of the Services. Company grants you a limited, revocable, non-exclusive, non-transferable license to access the Website and Content and utilize certain Services for your own personal use only, and not to modify the Website, or any portion thereof (other than as expressly permitted by Company). Except as expressly stated in the Terms, you are not granted any right or license, by implication, estoppel, or otherwise, in or to any patent, service mark, trademark, copyright, or proprietary right of the Company or any third party, in connection with your use of the Website and any Content provided by Company or any third party on the Website. Elements of the Website, including page headers, custom graphics, logos, sounds, images and button icons, are protected by trade dress and other state and federal laws and may not be copied or imitated in whole or in part. Violation of these Terms, including without limitation modification or use of Content on the Website for any purpose other than those permitted in this Agreement, shall result in the automatic termination, without notice to you, of your license to access the Website and utilize the Services, and also may constitute the infringement of Company’s copyright, service mark, trademark and/or other rights. You shall not attempt to access any other Company’s systems, programs or data that are not made available for public use.
2. Restrictions on Use of Website: You agree that in connection with your use of the Website, you will not do any of the following:
(a) Circumvent, disable or otherwise interfere with security-related features of the Website or features that prevent or restrict use or copying of any Content, or enforce limitations on use of the Website or the Content.
(b) Copy, reproduce, republish, upload, post, transmit, or distribute in any way any Content without Company’s written permission, other than as expressly allowed by Company.
(c) Transmit any software or other materials that contain any viruses, worms, Trojan horses, defects, date bombs, time bombs or other items of a destructive nature.
(d) Use any data scraping, mining, robots, spiders, or similar data gathering and extraction methods within the Website or in any way reproduce or circumvent the navigational structure or presentation of the Website or its contents without the Company’s prior written consent.
(e) Modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Website or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Website.
(f) Use any meta tags or any other “hidden text” utilizing the Company’s name or any substantially similar name without the Company’s express written consent.
(g) Request more than 500 pages of the Website in any twenty-four hour period, whether alone or acting in concert with a group of individuals.
(h) Request an unreasonable number of media or other documents available for download from the Website in any twenty-four hour period, whether alone or acting in concert with a group of individuals.
(i) Take any action that imposes or may impose (in Company’s sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure.
(j) Duplicate or create multiple user accounts in an attempt to circumvent our
security and privacy measures and policies.
(k) “Frame” or “mirror” any part of the Website.
(m) Remove any copyright, trademark or other proprietary rights notices contained on the Website.
(n) Use the Website or Content for any unlawful purpose.
5. Limitations on Services: You acknowledge that Company may establish limits concerning use of the Services and reserves the right at any time to modify or discontinue the Services (or any part thereof), with or without notice, including but not limited to the functionality or hours of availability, the equipment needed for its access or use, or its pricing. Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
YOU ACKNOWLEDGE THAT COMPANY IS NOT RESPONSIBLE OR LIABLE FOR YOUR USE OF ANY OF THE SERVICES.
6. Termination of Services: You agree that Company, in its sole discretion, has the right (but not the obligation) to delete or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of the Website immediately and without notice, for any reason, including, without limitation, if Company believes that you have acted inconsistently with the letter or spirit of the Terms. Further, you agree that Company shall not be liable to you or any third party for any termination of your access to the Website, and you agree not to attempt to use the Website after said termination.
(a) Website Content. This Website is owned and operated by the Company. All right, title and interest in and to the Content provided on this Website (excluding any User Content), including but not limited to information, documents, logos, graphics, sounds, page headers, button icons, service marks, trade dress, trademarks and images are owned either by Company or by third party authors, developers, or vendors and licensed to the Company (“Third Party Providers”). The Content and materials provided on or through the Website are intended to educate and inform you about the products and services offered or described on the Website. The Content may only be republished, reproduced, uploaded, displayed, posted, distributed, or transmitted, in relation to an active license authorized by the Company and may only be used to promote the Content during an exhibition.
Company cannot guarantee that technical difficulties will not occur during the download of the Content or that the Content will download successfully. You further acknowledge that you do not acquire any ownership rights by using the Website, the Content or User Content provided by any third party. Any rights not expressly granted herein to you are hereby reserved by Company.
(b) Copyrights. All Website design, graphics, and the selection and arrangement thereof are owned by the Company. Copyright © 2017, CINESKY PICTURES, LLC ALL RIGHTS RESERVED.
(c) Trademarks. The Company’s logo, and all images and text, and all page headers, custom graphics and button icons are service marks, trademarks and/or trade dress of Company. All other trademarks, service marks, product names and company names or logos cited herein are the property of their respective owners. The trademarks, logos, and service marks displayed on the Website (collectively the “Trademarks”) are the registered and unregistered trademarks of Company, Company’s licensors and suppliers, and others. Nothing contained on the Website should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademarks without the express written permission of Company, Company’s licensors or suppliers, or the third party owner of any such Trademark. Misuse of any Trademarks is prohibited, and Company will aggressively enforce its intellectual property rights in such Trademarks, including via civil and criminal proceedings.
9. Digital Millennium Copyright Act. If you are a copyright owner or an agent thereof and believe that any Content, including without limitation any User Content, infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA“) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
(d) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
(e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The Company’s designated Copyright Agent to receive notifications of claimed infringement is: Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, 11400 W. Olympic Blvd., 9th Floor, Los Angeles, California 90064, Attn: Michael Wolf, Esq. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to the Company’s customer service at [email protected] You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
10. Warranty Matters and Liability of Company.
(a) No representations or warranties, express or implied, are given regarding the Services or your use of the Website. Company’s liability is limited only to amounts actually paid by you to the Company. If you are not satisfied with our service please contact our customer service department at [email protected] Without limiting the generality of the foregoing, you agree that use of the website, the Content and the Services, including without limitation the Products, is entirely at your own risk. Company assumes no responsibility for errors or omissions in the Services, the website or its content, including any documents and user content, or any third party website.
The website, the Services, and the Products are provided on an “as is” or “as available” basis, without any warranties of any kind. Company does not warrant the quality, accuracy, functionality, performance, merchantability, security, reliability, completeness, or timeliness of the Website, the Content, the Services, the Products or any other information, text, graphics, links or other items contained within the Website’s Content or any third party website, or any other goods or services sold via the Services.
To the fullest extent permitted by law company disclaims any warranties for and does not assume any responsibility for any incompleteness, errors, security, reliability, timeliness, viruses, harmful components or effects, vulnerabilities, bugs, problems, omissions, inaccuracies or other limitations in, or interruptions in the operation of the website, the content, the services, the Services or any other information, text, graphics, links or other items contained within the Website’s Content or any third party website, or any other Services or Products received or purchased through or advertised on the Website, or accessed through any links on the Website.
All express and implied warranties, including, without limitation, the warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights are expressly disclaimed to the fullest extent permitted by law. Company makes no commitment to update the information, including the Services and Products contained in, and sold through, the website. You acknowledge that you are responsible for obtaining and maintaining all telephone, computer hardware and/or other equipment needed to access and use this website, and all charges related thereto. Your use of this website, the content and/or any of the Services or Products or other products provided through the Website or any third party website is entirely done so at your own risk.
(b) Changes, Misprints, Errors And Cancellations. Subject to applicable law, we: (i) reserve the right to change the Products and Services advertised through the Website.
11. Limitations of Liability:
(a) Under no circumstances shall company, its affiliates, officers, directors, advisory board members, employees, shareholders, members, managers, licensors, suppliers, advertisers, sponsors, attorneys or agents be liable to you or any third party under any contract, negligence, strict liability or other theory arising out of or relating in any way to the Products, the Website, the Services, and/or any Content, including without limitation any user content, contained in the Website, or any other linked website or any product or service on the Website, for any direct, indirect, incidental, punitive, special, consequential or exemplary damages (even if company has been advised of the possibility of such damages), including without limitation, damages for loss of business, loss of data or lost profits) resulting from any aspect of your use of any Products, the Website or the Services, whether the damages arise from use or misuse of any Products, the Website or the Services, from inability to use any Products, the Website or the Services, or the interruption, suspension, modification, alteration, or termination of the Website or the Services. Such limitation shall also apply with respect to damages incurred by reason of other services or products received through or advertised in connection with the Website or the Services or any links on the Website, as well as by reason of any information received through or advertised in connection with the Website or the Services or any links on the Website. These limitations shall apply to the fullest extent permitted by law. If your use of Content from this Website results in the need for servicing, repair or correction of equipment or data, you assume any costs thereof.
(b) To the extent that the foregoing limitations on liability in Section 14(a) above are limited or restricted by law, your sole and exclusive remedy and company’s absolute limit of liability in connection with any lawsuit, claim or cause whatsoever directly or indirectly relating to or arising out of or relating in any way to the Website, the Services, and/or any Content, whether based on contract, tort or any other legal theory of recovery, shall in all cases be strictly limited to the price paid by you directly to Company in connection with such access to or use of the Products, Services, and/or any Content.
(c) You acknowledge and agree that in no event shall Company be liable for any direct, indirect, incidental, punitive, special, consequential or exemplary damages (even if Company has been advised of the possibility of such damages), to you or any third party.
(d) Company shall not be liable for any failure to perform in accordance with a Transaction (or any other order for goods or services), including, without limitation, failure to deliver the Products caused for any reason, in whole or in part, beyond Company’s reasonable control, including, but not limited to, production schedules of Company’s suppliers, unavailability of materials, labor disturbances, acts of God, earthquake, fire, flood, weather, terrorism or transportation difficulties.
13. General Release of Claims. As such may apply to your usage of the Products, the Website and/or its Content, and/or the Services, you, on behalf of yourself, your spouse, and each of your heirs, beneficiaries, executors, administrators, attorneys, agents, representatives, successors and assigns, hereby forever release and discharge Company, and each of its employees, members, managers, officers, contractors, attorneys, agents, representatives, successors and assigns, and any person or entity acting by, though, under or in concert with any of them, from and against, and forever waive, forfeit and relinquish, each and every claim, action, demand, right, lien, covenant, agreement, contract, representation, warranty, indemnity, obligation, debt, cause of action, liability, lawsuit, litigation, loss, damage (including consequential damages and penalties), fee, cost and expense (including costs and expenses of counsel), of every and whatever type, kind, nature, description or character, whether sounding in law, equity, contract, tort, statute or otherwise, and whether or not presently or later known, existing, asserted, suspected, liquidated, fixed, contingent, matured or anticipated, that arises out of, relates to or otherwise is in any way connected with your access or use of the Website, its Content and/or the Services (each a “Claim,” collectively, “Claims”).
You intend for this Section 15 to serve as a general release, and you recognize that you may have Claims of which you are totally unaware and unsuspecting, but that which you are nevertheless releasing and giving up by consenting to the Terms and using the Website, and providing the foregoing general release. In furtherance of such understanding and intention, as applicable, you acknowledge that you are familiar with the provisions of California Civil Code Section 1542, and you waive all such provisions of California Civil Code Section 1542, which provides as follows::
SECTION 1542. (EXTENT OF GENERAL RELEASE.) A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
You also acknowledge and agree that nothing contained in this Section 15 shall release or discharge you from your representations, warranties, covenants and agreements set forth in, and from your duties and obligations assumed under, these Terms.
You shall forever refrain and forebear from commencing, instituting or prosecuting any lawsuit, action or other proceedings against the Company and other parties released hereunder arising out of or in any way connected with any Claim that is released or discharged under these Terms.
You represent and warrant to the Company that you have not assigned any Claim released or discharged under the Terms, and you shall indemnify, defend, protect and hold harmless the Company and other parties from and against any and all Claims that the Company and/or other parties shall suffer or incur as a result of or arise in connection with any breach of the foregoing representation and warranty.
14. Essential Basis of Bargain. YOU ACKNOWLEDGE THAT COMPANY HAS SET ITS PRICES AND PROVIDED ACCESS TO OR USE OF THE WEBSITE, THE SERVICES, DOCUMENTS OR TOOLS AND/OR ANY CONTENT IN RELIANCE OF THE LIMITATIONS OF LIABILITY, THE DISCLAIMERS OF WARRANTIES AND DAMAGES, THE GENERAL RELEASE, AND THE INDEMNITY SET FORTH HEREIN IN SECTIONS 13-16, AND THAT THE SAME FORM AN ESSENTIAL BASIS UPON WHICH THESE TERMS ARE ESTABLISHED, AND UPON WHICH COMPANY HAS PROVIDED TO YOU ACCESS TO OR USE OF THE WEBSITE, THE PRODUCTS AND/OR CONTENT. YOU AGREE THAT THE LIMITATIONS OF LIABILITY, THE DISCLAIMERS OF WARRANTIES AND DAMAGES, THE GENERAL RELEASE, AND THE INDEMNITY SET FORTH HEREIN IN SECTIONS 13-16 WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
15. Promotional Information / News Updates: You will receive regular updates/information regarding Cinesky Pictures product and services by separate email communication. However, these will only pertain to news relating to Content that the Company believes is of interest to the user.
16. Promotional Offers, Contests and Sweepstakes: We may from time to time offer participation in promotional offers, contests and sweepstakes on our Website. Your participation in these offers, contests and sweepstakes is governed by the express rules applicable to each such offer, contest or sweepstakes. Without limitation, this includes all promotions specific to wireless devices.
17. Technical Support Issues: If you encounter a technical problem when attempting to print or otherwise access your completed form, or some other problem you may encounter in attempting to utilize our Services and/or Content, Company’s customer service representatives may be able to assist you with your problem.
If you contact Company’s customer service representatives and request that a customer service representative remotely control your computer in order to try to resolve your technical problem, you acknowledge and accept that Company has no obligation to do so, and, if it does so, shall not be liable for any technical problems that may persist or arise with your computer after doing so.
18. Inaccuracy. From time to time there may be information on our Website that contains typographical errors, inaccuracies, or omissions. We may correct errors, inaccuracies, or omissions and change or update information at any time without notice. We apologize for any inconvenience this may cause you.
19. Termination of Use. Notwithstanding anything contrary in these Terms, we reserve the right, without notice and in our sole discretion, to suspend or terminate your ability to use the Website (which would include deleting or deactivating your account, blocking your email or IP address, and/or blocking or preventing your future access to and use of the Website). You agree that Company shall not be liable to you or any third party for any suspension or termination of your access to the Website. Further, you agree not to attempt to use the Website after said suspension or termination unless you have received prior written permission from Company. Upon any termination, you must promptly destroy all Materials downloaded or otherwise obtained from this Website, as well as all copies of such Materials, whether made under this agreement or otherwise.
Ability to Accept Terms of Service
You affirm that you are 18 years of age or older, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Website Terms, and to abide by and comply with these Website Terms. If you are under 18 years of age, then please do not use the Website. There are lots of other great websites for you. Talk to your parents about what sites are appropriate for you.
20. General information: The Terms constitute the entire agreement between you and Company and govern the use of the Website, its Contents and/or the Services, superseding any prior agreements between you and Company. The failure of Company to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. The Terms do not limit any rights that Company may have under trade secret, copyright, patent, trademark or other laws. The employees of Company are not authorized to make modifications to the Terms or to make any additional representations, commitments, or warranties binding on Company, except in a writing signed by an authorized officer of Company. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
You warrant, represent and agree that, by accessing and/or using of the Website, its Content and/or the Services and/or any User Content , you (i) do so with knowledge of any and all rights that you may have with respect to the provisions of these Terms, (ii) have carefully read and considered these Terms and fully understand its contents and the significance of its contents, (iii) are consenting to these Terms of your own informed and free will, based upon such party’s own judgment and without any coercion or fear of retaliation, and (iv) you have been afforded the opportunity to obtain independent legal advice with respect to these Terms.
THE TERMS AND THE RELATIONSHIP BETWEEN YOU AND COMPANY SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ANY CONFLICTS OF LAWS PRINCIPLES.
Further, you agree that all actions or proceedings arising in connection with your use of the Website and these Terms shall be tried and litigated exclusively in the State and Federal courts located in the County of Los Angeles, State of California. The aforementioned choice of venue is intended to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between you and the Company with respect to or arising out of this Agreement in any jurisdiction other than that specified in this paragraph. You hereby waive any right you may have to assert the doctrine of forum non convenience or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulate that the State and Federal courts located in the County of Los Angeles, State of California shall have in personam jurisdiction and venue over you for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to your use of the Website or these Terms. You hereby authorize and accept service of process sufficient for personal jurisdiction in any action against you as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Website, the Content, any User Content, the Services and/or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. You also agree that the Terms shall not be construed against the drafting party, i.e., Company.
EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THESE TERMS. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THIS AGREEMENT.
YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Further, unless both you and Company agree otherwise, the trier of fact may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
In addition, in the event of a breach of these Terms by you, the Company will, in addition to all other remedies available to it, be entitled to equitable relief by way of a temporary restraining order, or preliminary or permanent injunction and any other legal or equitable remedies. This provision will not be construed as a waiver of the rights which the Company may have for damages under these Terms or otherwise, and all of the Company’s rights and remedies will be unrestricted.
If any provision of these Terms as applied to any party or to any circumstance shall be found by a court of competent jurisdiction to be void, invalid or unenforceable, the same shall in no way affect any other provision of these Terms, the application of any such provision in any other circumstance, or the validity or enforceability of these Terms, and any provision that is found to be void, invalid or unenforceable shall be curtailed and limited only to the extent necessary to bring such provision within the requirements of the law.
21. Questions: If you have any questions, comments or complaints regarding these Terms or the Website, feel free to contact us at [email protected]
22. Notice for California Users. Under California Civil Code Section 1789.3, California users of the Website are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Last Updated: May 21, 2018