TERMS OF PURCHASE, LICENSE AGREEMENT AND WARRANTY STATEMENT, MEMBERSHIP AND BILLING.
PLEASE READ THESE TERMS OF PURCHASE, LICENSE AGREEMENT AND WARRANTY STATEMENT (“AGREEMENT”) CAREFULLY BEFORE USING YOUR PRODUCT. FOR THE PURPOSES OF THIS AGREEMENT AND THIS AGREEMENT IS THE LEGAL AGREEMENT GOVERNING YOUR USE OF THE PRODUCT, THE SOFTWARE (INCLUDING THE EMBEDDED SOFTWARE AND THIRD PARTY SOFTWARE) THAT CAME INSTALLED ON THE PRODUCT AND ANY UPDATES, UPGRADES, BUG FIXES OR MODIFIED VERSIONS THERETO (“SOFTWARE”) AND RELATED DOCUMENTATION. BY USING YOUR PRODUCT, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT GRANTED ANY RIGHTS IN THE SOFTWARE, AND YOU SHOULD NOT USE THE PRODUCT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT AND YOU HAVE NOT USED THE PRODUCT AND ARE THE ORIGINAL END USER PURCHASER OF THE PRODUCT, YOU MAY RETURN THE UNUSED AND UNDAMAGED PRODUCT IN ITS ORIGINAL PACKAGING WITH ALL ACCOMPANYING SOFTWARE AND DOCUMENTATION AND OTHER ITEMS TO THE PLACE WHERE YOU OBTAINED IT WITHIN 30 DAYS AFTER PURCHASE FROM FOR A REFUND ACCORDING TO THE REFUND POLICY STATED BELOW.
(a) Subject to the terms of this Agreement, you are granted a nonexclusive, nontransferable right to use the Software solely on a single Product on which it was originally installed.
(b) General Limitations. This is a license, not a transfer of title, to the Software, for use only under the terms of this Agreement. Seller and its respective partners or subsidiaries retain ownership of all copies of the Software, and reserve all rights not expressly granted to you. The rights granted herein are limited to intellectual property rights in the Software and do not include any other patents or intellectual property rights. Except as and only to the extent expressly permitted in this Agreement or by applicable law, you may not copy, decompile, reverse engineer, disassemble, and attempt to derive the source code of, modify, or create derivative works of the Software or any part thereof. Any attempt to do so is a violation of the rights of Seller and its licensors.
Open Source Software
Certain software libraries and other thirdparty software included in the Software are “free” or “open source” software and are subject to separate license terms (“Open Source Software”). Such Open Source Software is distributed WITHOUT ANY WARRANTY, without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. Certain Open Source Software has been or may be made available by Seller on its web site. Seller is not obligated to provide any warranty, maintenance, technical or other support for the resultant modified Seller Software or its use on Seller Products.
Consent to Use of Data
If you are the original purchaser of the Product and you are not satisfied with the Product, you may be eligible to return the Product for a refund, based on Seller’s return policy and other applicable laws. You may contact the Seller for return policy that is applicable to your purchase. If you made your ViViTV purchase through our website, please ship your ViViTV and all of its parts back to us. Once we have confirmed that all parts have been received and are in working condition, a refund will be made in 3-5 business days, depending on your financial institution.
Limited Warranty. Seller warrants to you that, for a period of 90-days from the date of the purchase by the original end-user purchaser (the “Warranty Period”), your Product and the Accessories will be substantially free of hardware defects in materials and workmanship under normal use. Your exclusive remedy and Seller’s entire liability under this warranty will be for Seller at its sole option to repair or replace the Product or Accessories or refund your purchase price less any rebates. This limited warranty extends only to the original end-user purchaser.
Warranty Service. If a defect arises during the Warranty Period, contact Seller’s. BE SURE TO HAVE YOUR PROOF OF PURCHASE ON HAND WHEN CALLING. RETURN REQUESTS CANNOT BE PROCESSED WITHOUT PROOF OF PURCHASE. You are responsible for shipping defective product to Seller. Seller pays for shipping from Seller back to you only. Customers located outside of the United States of America and Canada are responsible for all shipping and handling charges. Limitation on Warranty. This warranty does not apply: (a) to damage caused by use with non-Seller products; (b) to damage caused by accident, misuse, being subjected to abnormal physical or electrical stress, or other external causes; (c) to damage caused by operating the product outside the permitted or intended uses described by Seller; (d) if the product has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Seller; (e) to a product or part that has been modified, except by Seller; (f) to consumable parts, such as batteries; (g) to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports, that does not otherwise affect the product’s functionality or materially impair your use; (h) if any Seller serial number has been removed or defaced; or (i) if the warranty sticker has been removed or altered.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS”, WITH ALL FAULTS. EXCEPT AS SPECIFIED ABOVE IN THIS SECTION, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY SELLER, ITS SUPPLIERS AND LICENSORS. SELLER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL SELLER, ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFITS, OR LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, PERSONAL INJURY OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall the total liability of Seller, its suppliers and licensors to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
The Software and technology in the Seller Products (hereafter referred to as “Software and Technology”) are subject to export controls under the laws and regulations of the United States (U.S.). You shall comply with such laws and regulations governing export, re-export, transfer and use of the Software and Technology and will obtain all required U.S. and local authorizations, permits, or licenses. Seller and you each agree to provide the other information, support documents, and assistance as may reasonably be required by the other in connection with securing authorizations or licenses.
Membership and Billing
Membership fees and charges are fully earned upon payment. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our members (“credits”). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance. We may change the fees and charges in effect, or add new fees and charges from time to time, but we will give you advance notice of these changes by email. If you want to use a different Payment Method or if there is a change in Payment Method, such as your credit card validity or expiration date, you may edit your Payment Method information by visiting our website and clicking on the “Sign In” link, available at the top of the pages of the ViViTV website. If your Payment Method reaches its expiration date and you do not edit your Payment Method information or cancel your account (see, “Cancellation” below), you authorize us to continue billing that Payment Method and you remain responsible for any uncollected amounts. If you signed up for ViViTV using your account as your Payment Method and wish to cancel your ViViTV membership at any time, including during your free trial, you will need to do so by visiting your account and turning off auto-renew. You may also find billing information about your ViViTV membership by visiting your account.
• Ongoing Membership
You must cancel your membership before it renews each month in order to avoid billing of the next month’s membership fees to your Payment Method. We will bill the monthly membership fee to the Payment Method you provide to us during registration (or to a different Payment Method if you change your account information). Membership fees are fully earned upon payment.
You may cancel your ViViTV membership at any time. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL-MONTH MEMBERSHIP PERIODS OR UNWATCHED MOVIES OR TV SHOWS. To cancel, visit our website and click on “Cancel Membership” on the “Your Account” page and follow the instructions for cancellation under the heading “Cancel Membership.”
Right to Terminate
We reserve the right to terminate or restrict your use of our service, without notice, for any or no reason whatsoever.
Features & Functionality
Account Access; Identity Protection
In order to provide you with ease of access to your account and to help administer the ViViTV service, ViViTV implements technology that enables us to recognize you as the account holder and provide you with direct access to your account without requiring you to retype any password or other user identification when you revisit the ViViTV service. You are responsible for updating and maintaining the truth and accuracy of the information you provide to us relating to your account.
You are also responsible for maintaining the confidentiality of your account and password and for restricting access to your ViViTV ready device. If you disclose your password to anyone or share your account and/or devices with other people, you take full responsibility for their actions. Where possible, users of public or shared devices should log out at the completion of each visit. If you sell or return a ViViTV ready device, you should logout and/or deactivate the device before doing so. Similarly, if your ViViTV ready device is lost or stolen, please deactivate the ViViTV ready device. If you fail to log out or deactivate your device, subsequent users may access the ViViTV service through your account and may be able to access certain of your account information.
If you find that you’re a victim of identity theft and it involves a ViViTV account, you should notify Customer Service. Then, you should report this instance to all your card issuers, as well as your local law enforcement agency. Also, you should be mindful of any communication requesting that you submit credit card or other account information. Providing your information in response to these types of communications can result in identity theft. Always access your sensitive account information by going directly to the ViViTV website and not through a hyperlink in an email or any other electronic communication, even if it looks official. ViViTV reserves the right to place any account on hold anytime with or without notification to the member in order to protect itself and its partners from what it believes to be fraudulent activity. ViViTV is not obligated to credit or discount a membership for holds placed on the account by either a representative of ViViTV or by the automated processes of ViViTV.
Entertainment and Service Content
We distribute movies, television, and other filmed entertainment and we reserve the right to display and promote the filmed entertainment or other information through our service, including our website and user interfaces, to you in any manner we choose in our sole and absolute discretion. In addition, the ViViTV service allows you and other third parties to post reviews or comments concerning the entertainment distributed by us. Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed or made available by third parties through the ViViTV service are those of the respective authors or producers and not of ViViTV, or its shareholders, directors, officers, or employees or licensors. Under no circumstances shall ViViTV, or its shareholders, directors, officers, directors, or employees or licensors be held liable for any loss or damage caused by your reliance on information obtained through the ViViTV service. It is your responsibility to evaluate the information, opinion, advice, or other content available through the ViViTV service.
Use of Information Submitted
ViViTV is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us (“Feedback”), including responses to questionnaires or through postings to the ViViTV service, including the ViViTV website and user interfaces, without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the ViViTV service. Furthermore, by posting any Feedback on our site, submitting Feedback to us, or in responding to questionnaires, you grant us a perpetual, worldwide, non-exclusive, royalty-free irrevocable license, including the right to sublicense such right, and right to display, use, reproduce or modify the Feedback submitted in any media, software or technology of any kind now existing or developed in the future.
Please note ViViTV does not accept unsolicited materials or ideas for use or publication, and is not responsible for the similarity of any of its content or programming in any media to materials or ideas transmitted to ViViTV. Should you send any unsolicited materials or ideas, you do so with the understanding that no additional consideration of any sort will be provided to you, and you are waiving any claim against ViViTV and its affiliates regarding the use of such materials and ideas, even if material or an idea is used that is substantially similar to the idea you sent.
From time to time, we test various aspects of our service, including our website, user interfaces, service levels, plans, promotions, features, availability of movies & TV shows, delivery, and pricing, and we reserve the right to include you in or exclude you from these tests without notice. Your Conduct in Accessing the ViViTV Service.
By accessing the ViViTV service, including the ViViTV website and user interfaces, you agree to use the ViViTV service, including all features and functionalities associated therewith, the website and user interfaces and all content and software associated therewith in accordance with all applicable laws, rules and regulations, including public performance limitations or other restrictions on use of the service or content therein. In addition, you agree not to upload, post, e-mail or otherwise send or transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the ViViTV service. You also agree not to interfere with the servers or networks connected to any portions of the ViViTV service or to violate any of the procedures, policies or regulations of networks connected to the ViViTV service. You also agree not to impersonate any other person while using the ViViTV service, conduct yourself in a vulgar or offensive manner while using the ViViTV service, or use the ViViTV service for any unlawful purpose.
Limitations on Use
Government End Users
The Software and related documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which the Agreement may be incorporated, you may provide to Government end user or, if the Agreement is direct, Government end user will acquire, the Software and documentation with only those rights set forth in the Agreement. Use of any of the Software or documentation or all constitutes agreement by the Government that the Software and documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
Digital Rights Management (DRM) technology
Content owners use digital rights management technology to protect their intellectual property, including copyrights. The Seller Product uses DRM software to access DRM protected content. If the DRM software fails to protect the content, content owners may ask the Seller or other respective entities to revoke the software’s ability to use DRM to play or copy protected content. Revocation does not affect unprotected content. When you download licenses for protected content, you agree that respective DRM vendors may include a revocation list with the licenses. Content owners may require you to upgrade DRM to access their content. If you decline an upgrade, you will not be able to access content that requires the upgrade.
This Software is protected by certain intellectual property rights of DRM vendors. Use or distribution of such technology outside of this Product is prohibited without a license from the respective DRM vendors.
MPEG-1, MPEG-2, MPEG-4, H.264/AVC Notice
To the extent that the Software contains MPEG-1, MPEG-2, MPEG-4 AND/OR AVC decoding functionality, commercial use of such software requires additional licensing and the following provision applies: THE MPEG-1, MPEG-2, MPEG-4 AND AVC FUNCTIONALITY IN THE SOFTWARE IS LICENSED HEREIN ONLY FOR THE PERSONAL AND NON-COMMERCIAL USE OF A CONSUMER TO DECODE VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY AND/OR MPEG-1, MPEG-2, MPEG-4 AND/OR AVC VIDEO THAT WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE MPEG-1, MPEG-2, MPEG-4 AND/OR AVC VIDEO, AS APPLICABLE. INFORMATION REGARDING OTHER USES AND LICENSES MAY BE OBTAINED FROM MPEG LA L.L.C. SEE HTTP://WWW.MPEGLA.COM.
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida, notwithstanding any conflicts of law provisions. The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods. This Agreement constitutes the entire agreement between the parties with respect to the use of the Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by Seller. If any part of this Agreement is found to be unenforceable, the remainder shall continue in full force and effect and the unenforceable provision shall be reformed so as to give maximum legal effect to the intentions of the parties as expressed herein. Any translation of this Agreement is done for local requirements, and in the event of a dispute between the English and any non-English versions, the English version of this Agreement shall govern.