Effective August 26, 2016
NOTICE OF ARBITRATION: ANY DISPUTE BETWEEN YOU AND US MUST BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION. PLEASE READ SECTION 15 “BINDING ARBITRATION AND CLASS ACTION WAIVER” AS IT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT.
1. CHANGES TO THIS AGREEMENT
From time to time, we may update and modify this Agreement to accommodate new technology, industry practices, regulatory requirements, or for other purposes. We will provide you with notice if the changes are material and, where required by applicable law, we will obtain your consent (e.g., we may ask you to affirmatively consent to the changes by checking a box or clicking a button at the time of your next account login on the Viewer Panel Website). Unless expressly otherwise agreed, all material changes will apply prospectively only.
2. MEMBER ELIGIBILITY
The Viewer Panel Website is accessible to registered members only. To be eligible to become a member of the Viewer Panel Website, you must be a legal resident of the United States and must be at least 18 years of age (or the age of majority in your state of residence).
3. MEMBER REGISTRATION
Registration to become a member of the Viewer Panel Website is free and easy. However, because space is limited, member admission is on a first-come, first-served basis. El Rey does not guarantee that all registrations will be accepted, and expressly reserves the right to decline any registration request with or without reason. Subject to the foregoing limitations, usually within 24 hours after you submit your registration on the Viewer Panel Website, El Rey will send you a confirmation email to verify your email address and that you are the authorized user. You must respond to such email in order for your registration to be processed and accepted by El Rey. If you do not receive such an email from El Rey 24 hours after you submit your registration on the Viewer Panel Website, please contact us at firstname.lastname@example.org.
By registering to become a member of the Viewer Panel Website, you represent and warrant that any and all personal information you submit to El Rey on or through the Viewer Panel Website, such as your name, email address, mailing address, phone number, profile photo, and biographical information (collectively, “Personal Information”), is your own information and is truthful and accurate. It is your responsibility to notify us of any changes in your Personal Information. You are responsible for maintaining the confidentiality of your member account log-in information and are responsible for all activities on your account. If you share your account with others, you are responsible for all activities on your account by those with whom you share the account. Please immediately notify us of any unauthorized use of your account or any unauthorized or suspicious activity on your account.
By registering to become a member of the Viewer Panel Website, you also acknowledge and agree as follows:
- Your membership may be terminated at any time and for any reason, including (but not limited to) if El Rey determines, in its sole judgment, that you have violated this Agreement or any applicable law; or that you no longer meet the membership criteria for the Viewer Panel Website; or that you have not made meaningful contributions to the Viewer Panel Website (such as a lack of participation in El Rey surveys).
- Unless sooner terminated by you or by El Rey, your membership will automatically expire approximately 24 months following the date of your member registration. Upon expiration of your membership, you may submit a new membership application to El Rey on the Viewer Panel Website. However, readmittance will be at the sole discretion of El Rey, and is not guaranteed.
4. SURVEYS AND PRIZE DRAWINGS
After you are registered as a member of the Viewer Panel Website, you will from time to time receive invitations from El Rey to participate in El Rey programming surveys. All surveys are free and there is no condition of any purchase or payment of any fee to participate in a survey. Each invitation to participate in a survey will include notification of a prize incentive which will be awarded to one or more members participating in the survey. Winner(s) will be selected randomly in drawings. Incentive prizes will be defined at the onset of surveys for which prize incentives will be awarded. You understand, acknowledge and agree that: (i) your odds of winning in a prize drawing depends on how many members are included in that drawing, how many quarterly points you have vis-à-vis how many quarterly points other members included in the drawing have, and how many prizes/rewards are available in that drawing; (ii) there is no guaranty whatsoever that you will win a prize/reward in a given drawing; (iii) all prize drawing results announced by El Rey will be final and binding; and (iv) additional terms and conditions may apply to your participation in a prize drawing.
5. MEMBER FORUMS
The Viewer Panel Website includes member forums such as discussion boards, where members can engage in discussions and exchanges of opinions and comments on particular topics. Use of the member forums is subject to the following general guidelines:
- Please treat other fellow members as well as guests and moderators (if any) with courtesy and respect.
- Please do not use foul or obscene language or language which may create conflict or make for an unpleasant membership experience.
- Please do not make derogatory, threatening, harassing, or discriminatory remarks toward others.
- Threads and messages should stay on topic and pertain to the given discussion.
- Trolling, spamming, phishing, and other abusive conduct are strictly prohibited.
El Rey reserves the right to (i) moderate discussions in member forums, (ii) remove threads and messages which El Rey determines, in its sole judgment, are in violation of the above general guidelines, and (iii) terminate a member’s account on the Viewer Panel Website if El Rey determines, in its sole judgment, that the member has violated the above guidelines or otherwise violated this Agreement.
6. RESERVATION OF RIGHTS
El Rey reserves the right at any time, in its sole discretion, with or without notice, and without liability to you or other users, to: (i) modify, suspend, remove or terminate the Viewer Panel Website or any content or feature offered on the Viewer Panel Website, or any portion thereof; (ii) restrict, limit, suspend or terminate any user’s access to some or all of the Viewer Panel Website or some or all of the content and features offered on the Viewer Panel Website; (iii) monitor any user’s activities on the Viewer Panel Website to verify and ensure that user’s compliance with this Agreement and/or any applicable law; and (iv) investigate any suspected or alleged violation of this Agreement and cooperate with authorities in such investigation.
This Agreement will continue and remain in full force and effect for as long as you remain a member of the Viewer Panel Website.
8. INTELLECTUAL PROPERTY
8.1 Certain Definitions: As used herein:
- “El Rey Content” means, other than User Content (as defined below), all content and material made available on or through the Viewer Panel Website, including, without limitation, surveys, text, editorials, artwork, graphics, images, photos, animations, videos, audios, music, advertisements, program descriptions, program titles, marks, logos, slogans, links, Software (as defined in Section 8.6 below), user interfaces, layout and look and feel designs, search engines, tools, templates, forms, directories, data and information.
- “User Content” means any content or material submitted by users on or through the Viewer Panel Website, including, without limitation, user-submitted answers, responses, feedback, opinions, comments, ideas, messages, photos, images, artworks, videos, audios, etc. (whether solicited or unsolicited, and whether or not submitted in response to an El Rey survey), but specifically excluding any El Rey Content as well as any other content that is owned by El Rey or any of its licensors or business partners. As used herein, the term “User Content” does not include Personal Information submitted by users.
8.2 El Rey Content: All El Rey Content belongs to El Rey and/or its licensors or business partners (collectively, “El Rey and Related Parties”), and are protected by United States and international copyright, trademark and other intellectual property laws. Subject to your compliance with this Agreement and applicable laws, El Rey and Related Parties hereby grant to you a limited, revocable, nonsublicensable, nontransferable license to access and use the Viewer Panel Website and El Rey Content solely for your own personal, noncommercial use within the United States. All rights not expressly granted herein are reserved by El Rey and Related Parties. Except as expressly permitted by this Agreement or otherwise in writing by El Rey, you may not copy, reproduce, download, upload, post, stream, broadcast, transmit, perform, exhibit, display, publish, distribute, sell, offer to sell, frame or deep-link, modify, alter, translate, or otherwise use or exploit any El Rey Content.
8.3 User Content: El Rey and Related Parties do not claim ownership of User Content received on or through the Viewer Panel Website. However, by submitting User Content on or through the Viewer Panel Website, you:
- expressly grant to El Rey and Related Parties and their successors and assigns a nonexclusive, irrevocable, perpetual, worldwide, gratis and royalty-free, freely transferable and freely sublicensable license to use, copy, reproduce, store, archive, modify, excerpt, adapt, translate, create derivative works and compilations based upon, publicly perform, publicly display, exhibit, broadcast, stream, publish, distribute, and otherwise exploit, your submitted User Content, in any and all formats and media now known or hereafter devised (including, without limitation, television, radio, theatrical, Internet, mobile, digital, electronic, and print media) and for any and all commercial and non-commercial purposes (including, without limitation, market research, content development, production, broadcast, distribution, advertising, promotion, publicity, social media campaigns, merchandising, publishing, education, and charity); and you acknowledge and agree that the foregoing license granted by you to El Rey and Related Parties and their successors and assigns will continue and remain in full force and effect, even if you subsequently cease to be a member of the Viewer Panel Website or delete your submitted User Content from your member account on the Viewer Panel Website;
- expressly acknowledge and agree that: (i) your submission is voluntary and consensual and is not made in confidence or in trust, and no contractual, fiduciary or confidential relationship of any kind (whether express or implied) is created between you, on one hand, and El Rey and Related Parties, on the other hand, by reason of your submission; (ii) El Rey and Related Parties are under no obligation whatsoever to use your submitted User Content for any purpose or in any manner, and any decision of use or non-use is entirely and solely at the discretion of El Rey and Related Parties; (iii) if El Rey and Related Parties decide to use your submitted User Content for any purpose or in any manner, El Rey and Related Parties will have no obligation or liability to you whatsoever, and you will have no right or claim to any compensation, payment, credit, attribution, notice, approval or inspection of any kind whatsoever with respect to any use or exploitation of your submitted User Content by El Rey and Related Parties; and (iv) your submission is not returnable by El Rey and may be retained indefinitely by El Rey and Related Parties; and
- represent and warrant that: (i) you are the sole creator and owner of your submitted User Content; (ii) your submitted User Content does not violate any third-party right (including, without limitation, any third-party copyright, trademark, right of privacy or right of publicity), or violate any applicable law; and (iii) to the extent your submitted User Content contains any third-party property (such as material created by another person, or another person’s name, likeness or voice), you have secured all necessary rights, licenses and consents with respect to such third-party property to allow for El Rey and Related Parties’ use and exploitation of your User Content in accordance with the license granted by you in this Section 8.3.
8.4 El Rey’s DMCA Policy: In compliance with the Digital Millennium Copyright Act (Title 17, United States Code) (“DMCA”), El Rey will respond to proper notifications of claimed copyright infringement with respect to user generated content that is published online by El Rey, and will take appropriate action including removing and disabling access to the allegedly infringing User Content. El Rey also has a policy of terminating, in appropriate circumstances, the accounts of registered users on the Viewer Panel Website who are determined to be repeat infringers.
Designated Agent: In compliance with the DMCA, the following is El Rey’s Designated Agent to receive notifications of claimed copyright infringement by User Content on the Viewer Panel Website:
1657 12th Street
Santa Monica, CA 90404
Attn.: Senior Vice President, Business & Legal Affairs
Notice of Claimed Copyright Infringement: If you believe that your copyright has been infringed or violated by any user generated content found on the Viewer Panel Website, please notify the Designated Agent listed above in writing and provide the following requisite information:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works are covered by a single notification, a representative list of such works;
- 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;
- information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;
- a statement that the complaining party has 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 or is protected under the doctrine of fair use; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Counter-Notification to Claimed Copyright Infringement: Under the DMCA, if a notice of copyright infringement has been filed against content submitted by you on the Viewer Panel Website, you may make a counter-notification with the Designated Agent listed above, provided that such counter-notification must be in writing and contain the following requisite 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 by you 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; 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 you are located (or in the State of New York, USA, if you reside outside of the United States), and that you will accept service of process from the person who filed the notice of copyright infringement or an agent of such person.
If El Rey receives a valid counter-notification, it may reinstate the removed or disabled User Content in accordance with the DMCA. Please note that, under the DMCA, any person who knowingly makes material misrepresentations in a notification of claimed infringement or any counter-notification may be liable for damages.
8.6 Use of Software: If you acquire or download any software (including any mobile app, social media plug-in or widget, etc.) (“Software”) from the Viewer Panel Website, you acknowledge that your use of the Software is specifically subject to the terms and conditions of the applicable end user license agreement that accompanies the Software or, if there is no such end user license agreement, the following additional terms and conditions: (i) the Software is provided solely for your own personal, non-commercial use within the United States; (ii) all right, title and interest in and to the Software, including, without limitation, all copyrights and other intellectual property rights, will remain with El Rey and/or the provider or licensor of the Software; (iii) you may not copy, modify, sell, distribute, disseminate, transmit, translate, reverse engineer, decompile or disassemble the Software; (iv) you may not bypass, disable, deactivate or render ineffective any protection or security scheme or program contained in the Software; (v) you may not remove, erase, modify or tamper with any copyright, trademark or other proprietary rights notice that is printed or stamped on, affixed to, or encoded or recorded in the Software; (vi) you may not download, install, use, export or re-export the Software or any underlying information or technology except in full compliance with United States export control laws and regulations (see below for more information); and (vii) you acknowledge that, unless expressly otherwise stated, we provide no assistance, including any technical or customer support, in the use of the Software and your use of the Software is at your own risk.
All Software provided on the Viewer Panel Website is subject to United States export control laws and regulations. No Software may be downloaded from the Viewer Panel Website or otherwise exported or re-exported (i) into (or to a national or resident of) Sudan, Libya, North Korea, Iran, Syria, or any other country to which the United States has embargoed goods, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Orders. By downloading, installing or using any Software obtained from the Viewer Panel Website, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
9. PROHIBITED ACTIVITIES
We do not permit or tolerate any illegal, abusive, harmful or improper use of the Viewer Panel Website. Without limitation to the generality of the foregoing, we specifically prohibit the following:
- using the Viewer Panel Website or any El Rey Content other than for your own personal, non-commercial use within the United States;
- engaging in activity that violates any applicable law or violates any right of any person or entity;
- impersonating another person, or falsifying account information, or making unauthorized use of another person’s information;
- using any automated program, tool or process (including, without limitation, web crawlers, robots, bots, spiders, and automated scripts) to access the Viewer Panel Website or any server, network or system associated with the Viewer Panel Website, or to extract, collect, harvest or gather content or information from the Viewer Panel Website;
- interfering in any way with the operation of the Viewer Panel Website or any server, network or system associated with the Viewer Panel Website, including, without limitation, hacking, mail-bombing, flooding, overloading, or making "denial of service" attacks; probing, scanning or testing the vulnerability of the Viewer Panel Website or any server, network or system associated with the Viewer Panel Website; breaching or circumventing firewall, encryption, security or authentication routines; accessing data not intended for you, or accessing another user’s account without permission;
- creating works or materials (including, without limitation, fonts, icons, link buttons, wallpapers, desktop themes, on-line postcards, montages, mash-ups and similar videos,greeting cards, and other merchandise or digital goods) that derive from or are based on any El Rey Content, regardless of whether such derivative works or materials are sold, bartered or given away;
- either directly or through the use of any device, software, internet site, web-based service or other means, removing, altering, bypassing, circumventing, avoiding, or interfering with any copyright, trademark, or other proprietary notice marked on the Viewer Panel Website or El Rey Content, or any digital rights management mechanism, device, or other content protection, copy control, or access control measure associated with the Viewer Panel Website or El Rey Content, including geo-filtering mechanisms;
- framing or otherwise creating a browser or border environment around any page of the Viewer Panel Website or any El Rey Content, or deep-linking to any El Rey Content or any internal page of the Viewer Panel Website;
- using any El Rey name, mark or logo in any manner (including as metatags or ad keywords), except as necessary in order to make reference to El Rey in a truthful and non-misleading and purely descriptive and nominative manner;
- submitting, uploading, posting or transmitting any User Content that is: unlawful; threatening; harassing; abusive; obscene; vulgar; sexually explicit; pornographic or inclusive of nudity; offensive; excessively violent; tortious; false or misleading; derogatory; defamatory; libelous; hateful; discriminatory; or violating another’s right of privacy or publicity, or another’s copyright, trademark, or other intellectual property right or which may create conflict or make for an unpleasant membership experience;
- engaging in activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of or access to a computer or a computer network;
- attempting to decipher, decompile, disassemble or reverse engineer any Software;
- sending or causing others to send (directly or indirectly) unsolicited bulk messages or other unsolicited bulk communications of any kind;
- soliciting, collecting or requesting personal information from others for commercial or unlawful purposes;
- submitting, uploading, posting or transmitting an image or video of another person without that person’s consent;
- engaging in “trolling,” such as posting material, information, message or communication that is off-topic, absurd, or meaningless, with the intent of causing disruption or provoking reaction from others, or disrupting the normal flow of dialogue, causing a screen to “scroll” faster than other users are able to type, or otherwise acting in a manner that negatively affects other users’ ability to engage in real time exchanges;
- engaging in commercial activity, including, without limitation, advertisements or solicitations of business, purchase, or participation in any game or promotion not conducted or sponsored by El Rey.
10. LINKS TO THIRD-PARTY PRODUCTS AND SERVICES
The Viewer Panel Website may provide links (including through advertisements displayed) to websites, apps, and other products and services owned or operated by third parties (each, a “Linked Third-Party Product/Service”). Such links do not constitute or imply El Rey’s approval, sponsorship or endorsement of any Linked Third-Party Product/Service. When you engage with a Linked Third-Party Product/Service, you are interacting with the third party, not with El Rey. El Rey is not responsible for and makes no warranties, express or implied, regarding any Linked Third-Party Product/Service.
11. LINKING TO VIEWER PANEL WEBSITE
You may link to the Viewer Panel Website, but subject to the following conditions:
- Your link must be a text-only link;
- You do not frame or otherwise create a browser or border environment around any page of the Viewer Panel Website or any El Rey Content;
- You do not deep-link to any El Rey Content or any internal page of the Viewer Panel Website;
- You do not link to any live stream or live streaming event on the Viewer Panel Website (except with El Rey’s express prior written consent);
- You do not use any El Rey logo or design mark in or as your link;
- You do not link to the Viewer Panel Website from any pornographic or sexually oriented website;
- You do not misrepresent or falsely suggest that your website, app, content, product or service is sponsored, endorsed or approved by, or is affiliated or otherwise connected or associated with, El Rey or the Viewer Panel Website;
- You do not publish false, misleading or inaccurate information about, or otherwise disparage, El Rey or the Viewer Panel Website or any El Rey Content; El Rey is under no obligation to support your link.
12. MOBILE SERVICES
You agree that you are solely responsible for all Message & Data charges that you incur from your mobile service provider for your use of the Mobile Services. These charges may include standard and premium SMS/MMS charges and may be a one-time or reoccurring charge. All charges are billed by and payable to your mobile service provider. Please contact your mobile service provider for pricing plans and details. El Rey is not liable for any delays in the receipt of any SMS/MMS messages as delivery is subject to effective transmission from your network operator. Data obtained from you in connection with SMS/MMS services may include your mobile phone number, your carrier’s name and the date, time and content of your messages. We may use this information to contact you and to provide the services and subscriptions that you request from us.
- THE VIEWER PANEL WEBSITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND EL REY AND RELATED PARTIES DO NOT GUARANTEE OR PROMISE ANY SPECIFIC RESULTS FROM USE OF OR CONTINUOUS AVAILABILITY OF THE VIEWER PANEL WEBSITE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EL REY AND RELATED PARTIES EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FOR A COURSE OF PERFORMANCE OR COURSE OF DEALING.
- WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EL REY AND RELATED PARTIES MAKE NO WARRANTY THAT THE VIEWER PANEL WEBSITE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; OR THAT ANY ERROR OR DEFECT ON THE VIEWER PANEL WEBSITE WILL BE CORRECTED; OR THAT THE VIEWER PANEL WEBSITE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE VIEWER PANEL WEBSITE WILL BE SATISFACTORY TO YOU OR WILL MEET ALL YOUR REQUIREMENTS; OR THAT ALL SURVEYS OFFERED ON OR THROUGH THE VIEWER PANEL WEBSITE WILL BE AVAILABLE TO YOU.
- UNDER NO CIRCUMSTANCES WILL EL REY AND RELATED PARTIES BE RESPONSIBLE FOR ANY LOSS OR DAMAGE (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA) RESULTING FROM YOUR USE OF THE VIEWER PANEL WEBSITE. YOU ACKNOWLEDGE THAT YOUR USE OF THE VIEWER PANEL WEBSITE AND INFORMATION YOU TRANSMIT OR RECEIVE ON OR THROUGH THE VIEWER PANEL WEBSITE, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED THIRD PARTIES. YOU ASSUME ALL RISKS ASSOCIATED WITH YOUR USE OF THE VIEWER PANEL WEBSITE AND INFORMATION YOU TRANSMIT OR RECEIVE ON OR THROUGH THE VIEWER PANEL WEBSITE.
14. LIMITATIONS OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- IN NO EVENT SHALL EL REY AND RELATED PARTIES AND/OR TIDEWATCH BE LIABLE UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND, OR LOSS OF BUSINESS GOODWILL OR OPPORTUNITY) ARISING FROM OR IN CONNECTION WITH YOUR USE OF, YOUR INABILITY TO USE, OR YOUR RELIANCE UPON, THE VIEWER PANEL WEBSITE OR ANY EL REY CONTENT OR ANY USER CONTENT, EVEN IF EL REY AND RELATED PARTIES AND/OR TIDEWATCH HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
- IN NO EVENT SHALL THE TOTAL AND AGGREGATE LIABILITY OF EL REY AND RELATED PARTIES AND TIDEWATCH FOR ANY CLAIM ARISING OUT OF OR RELATED TO YOUR USE OF, YOUR INABILITY TO USE, OR YOUR RELIANCE UPON, THE VIEWER PANEL WEBSITE OR ANY EL REY CONTENT OR ANY USER CONTENT, EXCEED THE AMOUNT ACTUALLY PAID, IF ANY, BY YOU TO EL REY FOR THE USE OF THE VIEWER PANEL WEBSITE OR ANY EL REY CONTENT DURING THE TWELVE (12) MONTHS PERIOD PRIOR TO THE CLAIM.
- BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR TOTAL LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
15. BINDING ARBITRATION AND CLASS ACTION WAIVER
You and El Rey each agree to arbitrate all Disputes, except for those relating to the enforcement of El Rey’s and/or its licensors’ intellectual property rights. As used herein, “Dispute” means any dispute, claim, action or other controversy between you and El Rey concerning the Viewer Panel Website, any El Rey Content, any User Content, or this Agreement, whether in contract, tort, warranty, statute or regulation, or other legal or equitable basis.
In the event of a Dispute, you or El Rey (as the case may be) must send to the other party a notice of Dispute, which is a written statement that sets forth the name, address and contact information of the party giving the notice, the facts giving rise to the Dispute, and the relief requested. You must send any notice of Dispute in writing to El Rey at:
1657 12th Street
Santa Monica, CA 90404
Attn.: Senior Vice President, Business & Legal Affairs
We will send any notice of dispute to you at the contact information we have for you. You and El Rey will attempt to resolve a Dispute through informal negotiation within sixty (60) days from the date the notice of dispute is sent. After sixty (60) days, you or we may commence arbitration. You may also litigate a Dispute in small claims court if the Dispute meets the requirements to be heard in small claims court, whether or not you negotiated informally first.
If you and El Rey do not resolve a Dispute by informal negotiation or in small claims court, the Dispute shall be settled by binding arbitration before a neutral arbitrator. Arbitration will be administered by the alternative dispute resolution organization known as JAMS (https://www.jamsadr.com/) . The arbitration will take place in Los Angeles County, California. The arbitration will be governed by the laws of the State of California and will proceed in accordance with JAMS Arbitration Rules and Procedures, as then in effect. The arbitration hearing will not exceed one day. The decision of the arbitrator will be final, conclusive, binding upon, and non-appealable.
BY AGREEING TO THE PROVISIONS OF THIS PARAGRAPH RELATING TO ARBITRATION, THE PARTIES ARE EXPRESSLY WAIVING THEIR RIGHT TO A TRIAL BY JURY AND ACKNOWLEDGE THAT THEY ARE WAIVING THEIR RIGHT TO A TRIAL BY JURY.
You and El Rey hereby agree to submit to the exclusive personal jurisdiction of the federal or state courts located in Los Angeles County, California, in order to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ON AN INDIVIDUAL BASIS. Neither you nor El Rey will seek to have a dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitration or proceeding. If this class action waiver is found to be illegal or unenforceable as to all or some parts of a Dispute, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration.
16. GOVERNING LAW
This Agreement will be governed by, and construed in accordance with, the laws of the State of California (without regard to its conflict of laws provisions). You and El Rey agree to submit to the exclusive jurisdiction of the courts located in Los Angeles County, California, to resolve any and all Disputes (as defined in Section 15 above), other than Disputes to be resolved by binding arbitration pursuant to Section 15 above. YOU HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT YOU 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 THIS AGREEMENT.
YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE VIEWER PANEL WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ACCRUES. AFTER SUCH PERIOD, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
You agree to indemnify and hold harmless El Rey and Related Parties, TideWatch, and their respective officers, agents, representatives and employees, from and against any loss, liability, claim, or demand, including, without limitation, reasonable attorneys’ fees, made by any third party due to or arising out of or in connection with your use of the Viewer Panel Website, your breach of this Agreement, your violation of any third-party right, or any User Content submitted by you.
18. LOCATIONS OF USE
The Viewer Panel Website is hosted and operated in the United States. El Rey does not warrant that the Viewer Panel Website and El Rey Content will be available or accessible from locations outside the United States.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN.