IndieFlix OTT Viewer Terms of Service Agreement
Last updated: August 7, 2020
This IndieFlix OTT Viewer Terms of Service Agreement (“Agreement”) is between you and IndieFlix Group, Inc. (for the purposes hereof, “IndieFlix,” “we” or “us”). The Agreement governs your use of the “IndieFlix OTT Service,” an online platform that allows consumers like you to view video programs (“Programs”) from content owners and licensors (“IndieFlix ”) through IndieFlix-branded websites and applications that we power.
Notice: Section 10 of this Agreement contains a mandatory ARBITRATION AGREEMENT. By using the IndieFlix OTT Service, you agree that any claims you may have against IndieFlix relating to the IndieFlix OTT Service must be ARBITRATED, and you waive the right to (1) assert claims against IndieFlix in court: (2) participate in a clas action; and (3) have a jury hear your case.
By creating an account, viewing videos, making a purchase, downloading IndieFlix branded applications that we power, or otherwise visiting or using the IndieFlix OTT Service, you accept this Agreement and consent to contract with us electronically.
If you are an entity other than a natural person, the person who registers the account or otherwise uses the IndieFlix OTT Service must have the authority to bind the entity. In this context, “you” means both the entity and each person who is authorized to access the account.
We may update this Agreement by posting a revised version on our website. By continuing to use the IndieFlix OTT Service, you accept any revised Agreement.
You may terminate the Agreement at any time by deleting your account. We reserve the right to suspend or terminate your account for your breach of the terms hereof. If IndieFlix deletes your account for breach, you may not re-register. In the event of any termination or expiration of the Agreement, the following sections will survive: Section 7 (Disclaimers), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10 (Arbitration Agreement; Jury Waiver; Class Action Waiver), and Section 11 (General Provisions).
Registration: You must create an account to use certain features we offer (e.g., to view a Program). To do so, you must provide an email address. By creating an account, you agree to receive notices from IndieFlix you purchase at this email address.
Age Requirements: You may not create an account if you are younger than 18 years of age. By creating an account, you represent that you are at least 18 years of age, and, to the extent required by law, you have the permission of a parent or guardian to create an account and use the IndieFlix OTT Service.
Parents and Guardians: By granting your child permission to use the IndieFlix OTT Service through your account, you agree and understand that you are responsible for monitoring and supervising your child's usage. If you believe your child is using your account and does not have your permission, please contact us immediately so that we can disable access.
Account Security: You are responsible for all activity that occurs under your account, including unauthorized activity. You must safeguard the confidentiality of your account credentials. If you are using a computer that others have access to, you must log out of your account after each session. If you become aware of unauthorized access to your account, you must change your password and notify us immediately.
By creating an account, you agree that the Producer of the Program(s) you purchase will have access to your account information and account activities, such as the viewing and purchase of the Producer’s Programs, and your contact information. IndieFlix is not responsible for a Producer’s use or disclosure of your data.
4. Program Viewing and Purchase Options
IndieFlix may offer the following purchase options through IndieFlix branded websites and applications:
To make a purchase, you must provide a valid payment method. We may apply taxes, including VAT (value-added tax), to any charges. Prices and other terms of purchase are subject to change. If a Producer provides you access to a Program on a free basis, such access will be deemed a “purchase” for the purpose of this Agreement.
ALL PURCHASES, INCLUDING RECURRING CHARGES, ARE FINAL AND NON-REFUNDABLE.
Free trials and Discounts: IndieFlix may offer free-trial or discounted subscriptions. When a free-trial period ends, your paid subscription begins (unless you have cancelled) and you must pay the full monthly or annual fee. If a Producer provides a discount for the first subscription period, you must pay the discounted fee; in any renewal, you must pay the full fee.
Automatic Renewal: To the extent permitted by applicable law, subscriptions automatically renew for the subscription period until you cancel. Your payment method will be charged at the beginning of each subscription period. If a Purchaser offers a free-trial period, your payment method will be charged at the end of the free-trial period unless you cancel before the end of that period.
How to Decline Renewal: To pause or cancel a subscription, visit your account settings. Your changes will be applied to your next subscription period.
In-App Purchase: IndieFlix may allow you to purchase subscriptions within apps you download. When you make such “in-app” purchases, you will be billed by the app platform, not us. To turn off automatic renewal for subscriptions, access your platform’s account settings (not IndieFlix’s). Any billing inquiries should be directed to the app platform.
5. Licenses and Intellectual Property
License to Programs: Subject to the terms hereof, you have the right to stream and/or (if offered) download for your personal entertainment purposes: (i) Programs that you have rented during the stated rental period; (ii) Programs that you have purchased; and (iii) Programs made available within the IndieFlix channel that you have subscribed to during your subscription period.
Restrictions: You may not resell streams or downloads, use any Program for any commercial purpose, redistribute or retransmit any Program, publicly perform or display any Program, or make derivative works from any Program. All rights not expressly granted herein are reserved by the applicable Producer.
IndieFlix OTT Service: Subject to the terms hereof, IndieFlix grants you permission to use the IndieFlix OTT Service for the sole purpose of viewing Programs for your personal entertainment. All rights not expressly granted by IndieFlix are reserved.
IndieFlix Apps: If you download an IndieFlix application that we power (an “app”) that operates on a third-party platform (e.g., iOS, Roku): (i) you have the right to use such app for your personal, non-commercial use on devices permitted by the platform operator; (ii) as between IndieFlix and the platform operator (but without creating any obligation by IndieFlix), IndieFlix shall be responsible for the apps and their content and providing any warranty, support, or indemnification with respect to such apps as required by law; and (iii) the platform operator shall have the right to enforce the terms of this clause with respect to your use of the app.
Your Content; Feedback: To the extent that you submit any content to IndieFlix (i.e. in your profile, a comment, or forum), you grant IndieFlix an irrevocable, worldwide, non-exclusive, royalty-free, perpetual right and license to use, copy, adapt, transmit, distribute, license, and publicly perform and display such content in all media for any purpose whatsoever. Any content submitted must comply with the Acceptable Use Policy set forth in Section 6. If you make suggestions to IndieFlix on improving our products or services, IndieFlix may use your suggestions without any compensation to you.
6. Acceptable Use Policy
We may allow you to upload, submit, or publish (collectively, to "submit") content such as images, comments and text (collectively, "content"). You must ensure that your content, and your conduct, complies with the Acceptable Use Policy set forth in this Section 6. IndieFlix may (but is not obligated to) monitor your account, content, and conduct, regardless of your privacy settings. IndieFlix may take all appropriate actions to enforce this Acceptable Use Policy including removing specific videos or suspending or removing your account.
6.1 Copyright Policy
You may only upload content that you have the right to upload and share. Copyright owners may send IndieFlix a takedown notice as stated in our Copyright Policy if they believe IndieFlix is hosting infringing materials. We will, in appropriate circumstances, terminate the accounts of persons who repeatedly infringe.
6.2 Content Restrictions
You may not submit any content that:
6.3 Code of Conduct
In using the IndieFlix OTT Service, you may not:
6.4 Prohibited Technical Measures
You will not:
6.5 Restricted Users
You may not create an account if you are a member of a terror or hate group. You may not purchase any goods or services from us if you reside in a country subject to a comprehensive U.S. sanctions program or are a Specifically Designated National (SDN) as designated by the U.S. Department of the Treasury.
YOUR USE OF THE INDIEFLIX OTT SERVICE AND ANY PROGRAM IS AT YOUR OWN RISK. INDIEFLIX PROVIDES THE INDIEFLIX OTT SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. INDIEFLIX PROVIDES PROGRAMS ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. INDIEFLIX AND EACH PRODUCER DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Without limiting the above, IndieFlix makes no representations or warranties concerning:
IndieFlix may provide links to other Producer websites or third-party websites. IndieFlix is not responsible for the content of, or any interactions or transactions that may take place on or through, any such website.
8. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, INDIEFLIX, ITS PARENT, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, AND PARTNERS (INCLUDING INDIEFLIX) SHALL NOT BE LIABLE FOR (I) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES; (II) DAMAGES RELATING TO ANY DISPUTE BETWEEN YOU AND A PRODUCER OR OTHER INDIEFLIX USER; OR (III) DAMAGES EXCEEDING THE GREATER OF USD $100 OR THE AMOUNTS PAID BY YOU TO INDIEFLIX OVER THE 12 MONTHS PRECEDING THE FILING OF YOUR CLAIM.
The foregoing limitations apply to all claims, whether based on warranty, contract, tort, or any other legal theory, whether or not IndieFlix (or a Producer) has been informed of the possibility of such damage, and whether a remedy set forth herein is found to have failed its essential purpose. Some jurisdictions may not allow the exclusion of certain warranties or the exclusion or limitation of liability as set forth above, so these limitations above may not apply to you.
You shall indemnify, defend, and hold harmless IndieFlix and its parent, directors, officers, employees, representatives, consultants, agents, suppliers, and partners (including IndieFlix) from any liability, claim, demand, damages, losses, and costs (including attorneys’ fees) arising from: (i) your unauthorized use of any Program; (ii) your breach of this Agreement or violation of any law or third-party right; or (iii) any content that you upload or submit to us.
10. Arbitration Agreement; Jury Waiver; Class Action Waiver
This Section 10 sets forth a binding arbitration agreement between you and IndieFlix (the “Arbitration Agreement”). In this Arbitration Agreement, you agree:
10.1 Arbitration Agreement
The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof), or your use of the IndieFlix OTT Service shall be BINDING ARBITRATION administered by JAMS pursuant to its Streamlined Arbitration Rules & Procedures as modified by our Arbitration Procedures.
Arbitration provides a private dispute resolution process that is usually more streamlined and less formal than litigation. In an arbitration, your rights will be determined by a neutral third party called an arbitrator, and not a judge or jury. Both you and IndieFlix are entitled to fundamentally fair proceedings at every stage of the arbitration, including the hearing (if any). The arbitrator will decide all issues relating to the dispute, including the question of arbitrability, and can grant any relief that a court could grant. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. For details on the arbitration process, see our Arbitration Procedures.
10.3 Location of Hearing
If you are a consumer, as defined by JAMS in its Consumer Minimum Standards, you may request that the arbitration hearing be conducted in the area in which you reside. Otherwise, the hearing (if any) shall take place in Seattle Washington, United States of America.
10.4 Class-Action Waiver
EACH PARTY WAIVES ITS RIGHT TO GO TO COURT, TO A TRIAL BY JURY, AND TO PARTICIPATE IN A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE PROCEEDING WITH RESPECT TO ANY CLAIM SUBJECT TO ARBITRATION.
10.5 Exception for Small Claims Court Matters
Notwithstanding the above, each party has the right to bring an individual claim against the other in a small claims court of competent jurisdiction pursuant to Rule 1 of JAMS’ Consumer Minimum Standards. If one party files an arbitration that could be litigated in such a small claims court, the responding party may request that the dispute proceed in small claims court. If the responding party requests to proceed in small claims court before the appointment of the arbitrator, the arbitration shall be administratively closed. If requested after the appointment of the arbitrator, the arbitrator shall administratively close the arbitration so long as the proceedings are at an early stage and no hearing has occurred.
10.6 Jurisdiction and Venue
The Federal Arbitration Agreement (“FAA”) shall govern this Arbitration Agreement. To the extent not preempted or inconsistent with the FAA, the choice of law provisions in Section 11 are incorporated and are applicable to this Arbitration Agreement. Any arbitration award may be entered in a court of competent jurisdiction.
10.7 Binding Arbitration with IndieFlix
To the extent that the Producer has agreed to resolve disputes with consumers through arbitration in its agreements with IndieFlix, you agree that any dispute with a Producer arising out of or relating to your purchase or viewing of a Producer’s Program or subscription channel shall be resolved by BINDING ARBITRATION administered by JAMS in accordance with this Section 10.
11. General Provisions
Choice of Law: Any disputes relating to this Agreement or your use of the IndieFlix OTT Service will be governed by the laws of Washington State and the United States of America (with respect to matters subject to federal jurisdiction such as copyright), without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.
Choice of Venue for Litigation; Jury Trial Waiver: Any proceeding to enforce the Arbitration Agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that the Arbitration Agreement is for any reason held to be unenforceable, any litigation (except for small-claims court actions) shall be commenced only in the federal or state courts located in Seattle, located in Washington State. You hereby irrevocably consent to the exclusive jurisdiction of those courts for such purposes and, to the extent permitted by law, both IndieFlix and you WAIVE ANY RIGHT TO A TRIAL BY JURY in such an action.
No Waiver: The failure of IndieFlix (or any Producer) to exercise or enforce any term of this Agreement will not constitute a waiver of such term.
Provisions Severable: If any term of this Agreement is held invalid or unenforceable, that term will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining terms will remain in full force and effect.
No Third Parties: No third parties shall have any rights under this Agreement, except that IndieFlix may enforce the terms herein against you, and indemnified parties may enforce indemnification rights.
Force Majeure: Neither IndieFlix nor any Producer shall be liable for any failure or delay in performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; natural disasters; wars; civil or military disturbances; sabotage; strikes; epidemics; riots; power failures; computer failure; loss or malfunction of utility, transportation, computer (hardware or software) or telephone communication service; accidents; labor disputes, acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation.
U.S. Export Compliance: You may not use the IndieFlix OTT Service if (i) you are personally subject to U.S. government sanctions or (ii) you are located in a country that is subject to U.S. Government sanctions such that your use of the IndieFlix OTT Service would violate U.S. law. You represent and warrant that you are not subject to such sanctions.
This Agreement sets forth the entire understanding between you and IndieFlix concerning your use of the IndieFlix OTT Service and supersedes all prior agreements regarding the same. This Agreement may only be modified by us. Any changes will be posted to the IndieFlix website and will apply prospectively.
Contact Us: If you have any support questions, please contact us at data@IndieFlix.com. You must send any notices of a legal nature to us at:
IndieFlix Group Inc.
Attention: Legal Department
4111 E Madison St
Seattle, WA 98112