MINNOW TERMS OF SERVICE
Welcome, and thank you for your interest in Minnow Stream Inc. (“Minnow,” “we,” or “us”) and our website at www.minnowtv.com, along with our related websites, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Minnow regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND MINNOW ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 17.)
1. What We Do
We combine libraries of popular over-the-top media streaming services, like Hulu or HBO MAX, and package that information into a single directory on our platform (such information, “Directory Content”). The Directory Content shows you the video content that may be available on those third-party streaming services. The Service may provide tools that allow you to conduct searches of Directory Content, discover Directory Content, create your own playlist with Directory Content, and share your recommendations with other people. We may also make suggestions based on the Directory Content we think you may like.
What We Are Not: We are not a streaming service. To watch or stream any video content described in the Directory Content (with narrow exceptions like trailers), you will need to visit (and potentially subscribe to) the applicable third-party streaming service (the content offered by such third-party streaming service, “Streaming Content”). Your access to and use of any third-party streaming service and their Streaming Content may be subject to applicable terms and policies published by that third party.
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration
To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at email@example.com.
4. General Payment Terms
While we currently offer the Service for free, we reserve the right to offer some or all of the Service for a fee in the future and to determine pricing for the Service in our sole discretion. We will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information.
- Limited License. Subject to your complete and ongoing compliance with these Terms, Minnow grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service on a mobile device that you own or control; and (b) access and use the Service.
- License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service (including any Directory Content), in whole or in part; (b) make modifications to the Service (including any Directory Content) or any portion of the Service; or (c) interfere with or circumvent any feature of the Service, including interfering with any security features or access control mechanism, disabling or circumventing features that prevent or limit use or copying of any content, including any Directory Content, or reverse engineering or otherwise attempting to discover the source code of any portion of the Service. If you are prohibited under applicable law from using the Service, you may not use it.
- Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant us an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
6. Ownership; Proprietary Rights
The Service is owned and operated by Minnow. The visual interfaces, graphics, design, compilation, information, data, Directory Content, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by us are protected by intellectual property and other laws. You acknowledge that the Service, and all Materials included in the Service, are the property of Minnow or the third-party rights owners of such Materials. You may not make use of the Service, including the Materials, except as expressly authorized by us in these Terms or as otherwise permitted by law. We reserve all rights to the Service, including the Materials (to the extent of our rights in the Materials), not granted expressly in these Terms.
7. Third-Party Terms
- Third-Party Services and Linked Websites. We may provide tools through the Service that enable you to export information, including User Content (defined below), to third-party services. By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third-party services are not under our control, and, to the fullest extent permitted by law, we are not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites, platforms and mobile applications, including third-party streaming services (collectively, “Linked Websites”). Linked Websites are not under our control, and we are not responsible for their content, including any Streaming Content. We do not endorse or make any representation or warranty with respect to any Linked Website or their Streaming Content. We are not party to any subscription or other agreement you may enter into with a third-party streaming service, and by visiting a Linked Website, you acknowledge that you may be subject to the applicable third-party terms and policies applicable to your access and use of that Linked Website and that you are solely responsible for ensuring your compliance with those terms and policies.
- Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8. User Content
- User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
- Limited License Grant to us. By providing User Content to or via the Service, you grant us a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, publicly display, publicly perform, reproduce, modify for the purpose of formatting for display, and distribute (collectively, “Use”) your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed, in connection with the advertisement, marketing, promotion, and provision of the Service.
- Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service. If you are a user claiming a right to User Content pursuant to this Section 8.3, the license grant to you is limited to personal, non-commercial uses.
User Content Representations and Warranties. We disclaim any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize us and users of the Service to Use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by us, the Service, and these Terms;
- your User Content, and the Use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (iii) cause us to violate any law or regulation; or (iv) require us to obtain any additional authorizations, consents, licenses or permissions from or pay any royalties to any third parties for the Use of your User Content; and
- your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
- User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. We may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against us with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, we do not permit copyright-infringing activities on the Service.
- Text Messaging. Minnow and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Service, as well as marketing messages. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING MESSAGES FROM US, YOU CAN EMAIL HELLO@MINNOWTV.COM OR TEXT THE WORD "STOP" FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL MESSAGES FROM US, YOU CAN EMAIL HELLO@MINNOWTV.COM OR TEXT THE WORD "STOPALL" FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive text messages for a short period while we process your request, including messages confirming the receipt of your opt-out request.
- Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s "settings" page.
- Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself or by emailing us at firstname.lastname@example.org.
10. Prohibited Conduct
BY USING THE SERVICE, YOU AGREE NOT TO:
- use the Service for any illegal purpose or in violation of any local, state, national, or international law;
- violate any third-party terms and conditions applicable to your access and use of any Linked Website or Streaming Content;
- harass (including any junk mail, chain letters, and spam), threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
- use the Service in any way that may or is likely to exploit or harm minors, including by exposing them to inappropriate content;
- interfere with security-related features of the Service, including by disabling or circumventing features that prevent or limit use or copying of any Materials (including Directory Content);
- interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission;
- use any robot, spider, or other automatic device, process, or means to access the Service for any purpose;
- sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials (including Directory Content); or
- attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
11. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements
Notification. We respect the intellectual property of others and take the protection of intellectual property very seriously, and we ask our users do to the same. Infringing activity will not be tolerated on the Service. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Minnow with the user alleged to have infringed a right you own or control, and you hereby consent to Minnow making such disclosure. Your communication must include substantially the following:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or intellectual property owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
- Designated Agent Contact Information. Minnow's designated agent for a receipt of Notification of Claimed Infringement ("Designated Agent") can be contacted at:
Via Email: email@example.com
Via Postal Service:
Minnow Stream Inc.
Attn: Legal Department (Copyright Notification)
9806 Hannum Drive, Los Angeles, CA 90034
- Repeat Infringer Policy. Minnow’s intellectual property policy is to: (a) remove or disable access to material that Minnow believes in good faith or upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available on the Service; and (b) remove any User Content uploaded to the Service by “repeat infringers.” Minnow considers a “repeat infringer” to be any user that has repeatedly infringed or repeatedly been charged with infringing the rights of third parties by uploading User Content to the Service for which Minnow has received takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. Minnow has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon Minnow’s own determination.
Counter Notification. If you receive a notification from Minnow that material you uploaded to the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Minnow with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Minnow’s Designated Agent through one of the methods identified in Section 11.2 above and include substantially the following information:
- your physical or electronic signature;
- 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 you have 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; and
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which Minnow may be found, and you will accept service of process from the person who provided notification in accordance with Section 11.1 above or an agent of such person.
You should consult a lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid Counter Notification under the Copyright Act.
- Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Minnow in response to a Notification of Claimed Infringement, then Minnow will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Minnow will replace the removed User Content or cease disabling access to it in 10 business days, and Minnow will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Minnow’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Minnow’s system or network.
False Notifications of Claimed Infringement or Counter Notifications. The U.S. Copyright Act provides that: [a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Minnow] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Minnow reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
For clarity, and notwithstanding anything in this Section 11 to the contrary, Minnow in its sole discretion may (but has no obligation to) disclose publicly any and all Notices of Claimed Infringement and Counter Notifications.
12. Modification of Terms
We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon the earliest of your receipt of notice or acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
13. Term, Termination, and Modification of the Service
- Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2.
- Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, we may, at our sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at firstname.lastname@example.org.
- Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay us any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 4, 5.3, 6, 13.3, and 14 through 18 will survive.
- Modification of the Service. We reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Minnow, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Minnow Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service, or your use of the Linked Websites (including any Streaming Content) in violation of the applicable third-party terms and policies; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15. Disclaimers; No Warranties
- THE SERVICE AND ALL MATERIALS AND CONTENT (INCLUDING ANY MATERIALS AND CONTENT RELATING TO STREAMING CONTENT) MADE AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. MINNOW DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, THE LINKED WEBSITES, INCLUDING THE THIRD-PARTY STREAMING SERVICES, AND ALL MATERIALS AND CONTENT MADE AVAILABLE THROUGH THE SERVICE AND/OR THE LINKED WEBSITES, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. MINNOW DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND MINNOW DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR MINNOW ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE MINNOW ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER USER OF THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
- THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. We do not disclaim any warranty or other right that we are prohibited from disclaiming under applicable law.
16. Limitation of Liability
- TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MINNOW ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY Minnow ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
- EXCEPT AS PROVIDED IN SECTION 17.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE MINNOW ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO US$100.
- EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes between you and Minnow in the most expedient and cost effective manner, and except as described in Section 17.2 and 17.3, you and Minnow agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Minnow ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a letter to Minnow Stream Inc., Attention: Legal Department – Arbitration Opt-Out, 9806 Hannum Drive, Los Angeles, CA 90034, United States, that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Minnow receives your Opt-Out Notice, this Section 17 will be void and any action arising out of these Terms will be resolved as set forth in Section 18.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
- Arbitrator. Any arbitration between you and Minnow will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting us. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Our address for Notice is: Minnow Stream Inc., [9806 Hannum Drive, Los Angeles, CA 90034, United States]. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Minnow may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Minnow must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by us in settlement of the dispute prior to the award, we will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000.
- Fees. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles County, California, but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND MINNOW 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 Minnow agree otherwise, 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.
- Modifications to this Arbitration Provision. If we make any future change to this arbitration provision, other than a change to our address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to our address for Notice of Arbitration, in which case your account with us will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If Section 17.7 or the entirety of this Section 17 is found to be unenforceable, or if we receive an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 will govern any action arising out of or related to these Terms.
- Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Minnow submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
- Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- Contact Information. The Service is offered by Minnow Stream Inc., located at 9806 Hannum Drive, Los Angeles, CA 90034, United States. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
- Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
- No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
- International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
19. Notice Regarding Apple
This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Minnow only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance 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 of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.