TERMS OF SERVICE
APERTURE OTT TERMS OF SERVICE
This Terms of Service Agreement (“Agreement”) is between you and APERTURE, Inc. (for the purposes hereof, “APERTURE,” “we” or “us”), a subsidiary of APERTURE, Inc. The Agreement governs your use of our service (the “APERTURE OTT Service”), which allows consumers like you to purchase video programs (“Programs”) and subscriptions to video channels from content producers (“Producers”) through Producer websites and applications that we power.
When you use the APERTURE OTT Service by, for example, making a purchase, creating an account with us or a Producer, or using a Producer website or application, you agree to this Agreement. Please note that by accepting this Agreement, you agree to resolve claims between you and APERTURE and applicable Producers through binding arbitration.
To make a purchase, you must create an account with APERTURE and the Producer. Each time that you make a purchase with a new Producer, you must create an account with that Producer.
To create an account, you must provide a valid email address. You represent and warrant that all information you provide is accurate. You are solely responsible for maintaining the security of your account and for all activity that occurs under your account. You must notify us immediately if you suspect any unauthorized access to or use of your account.
You may not create an account if you are younger than 13 years of age. By creating an account, you represent that you are at least 13 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 APERTURE OTT Service.
By creating an account with a Producer, you agree that the Producer will have access to your account information and account activities, such as the viewing and purchase of the Producer’s Programs. Producers are subject to our Acceptable Consumer Privacy Practices Policy. APERTURE is not responsible for a Producer’s use or disclosure of your data.
PROGRAM VIEWING AND TRANSACTION OPTIONS
Producers may offer the following purchase options through Producer-branded websites and applications:
Rental: After paying the stated fee, you may stream the Program an unlimited number of times during the stated rental period.
Purchase: After paying the stated fee, you may stream the Program an unlimited number of times; if offered by the Producer, you may download the Program.
Subscription: For a recurring fee, you may stream the Programs offered within a Producer’s subscription channel an unlimited number of times during your subscription period. The Producer may add or remove Programs from the channel at any time.
You are responsible for obtaining Internet access and a compatible, Internet-connected device to stream and/or download Programs via Producer websites and applications. The quality of your viewing experience depends on a number of factors, including your viewing device and the quality of your Internet connection.
To make a purchase, you must provide a valid payment method. 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. To pause or cancel a subscription, visit your account settings. Your changes will be applied to your next subscription period.
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.
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 a channel that you have subscribed to during your subscription period.
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.
APERTURE OTT Service: Subject to the terms hereof, APERTURE grants you permission to use the APERTURE Service, for the purpose of purchasing and viewing Programs for your personal entertainment. All rights not expressly granted by APERTURE are reserved.
If you download a Producer 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 APERTURE and the platform operator (but without creating any obligation by APERTURE), APERTURE 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: To the extent that you submit any content to APERTURE, you grant APERTURE 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. If you provide any feedback about improving APERTURE, we will have the right to use your feedback without compensation to you. You represent and warrant that any content you submit to APERTURE does not, and will not, violate any law or any third party’s rights, including any intellectual property rights.
Third Party Rights (Copyright Policy): We take claims of copyright infringement seriously. Any party that believes that its copyrights (or other intellectual property) have been infringed is directed to file a takedown notice pursuant to our Copyright Policy.
ACCEPTABLE USE POLICY
In using the APERTURE OTT Service, you will not:
Scrape, reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the APERTURE OTT Service or any source code therein;
Attempt to circumvent any technical measures (including digital rights management) that we may employ;
Take any measures to interfere with or damage the APERTURE OTT Service;
Use the APERTURE OTT Service to transmit tortious, unlawful, infringing, and otherwise objectionable content;
Spam or harass APERTURE or any other user;
Use any fraudulent, deceptive, or misleading practices;
Collect personal information about Producers or other APERTURE users;
Engage in any commercial activities except as permitted by us; or
Engage in any illegal activities.
TERM AND TERMINATION
This Agreement begins when you first use the APERTURE OTT Service. You may terminate this agreement at any time by deleting your account(s). We reserve the right to terminate your account or restrict access to your account for any reason, including your breach of this Agreement.
YOUR USE OF THE APERTURE OTT SERVICE AND ANY PROGRAM IS AT YOUR OWN RISK. APERTURE PROVIDES THE APERTURE OTT SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. PRODUCERS PROVIDE PROGRAMS ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.
APERTURE 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, APERTURE makes no representations or warranties concerning:
The availability of the APERTURE OTT Service in a particular jurisdiction.
The availability of the APERTURE OTT Service for any particular device, operating system, or browser.
The continued support for a particular feature of the APERTURE OTT Service.
The viewing quality of any Program. APERTURE does not guarantee that you will be able to use the APERTURE OTT Service or view any Program uninterrupted or error-free.
The content of any Program or the suitability of any Program for any audience. All opinions and statements expressed by or in Programs (or related materials) are those of the Producer and/or persons involved in the production of the Program, not APERTURE.
The continued availability of any Program or the availability of particular Program within a subscription channel.
Any Producer’s actions or omissions with respect to your personal information.
Producers may provide links to other Producer websites or third party websites. APERTURE is not responsible for the content of, or any interactions or transactions that may take place on or through, any such website.
LIMITATION OF LIABILITY
To the maximum extent permitted by law, APERTURE, its parent, directors, officers, employees, representatives, consultants, agents, suppliers, and partners (including Producers) 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 APERTURE user; or (iii) damages exceeding the greater of USD $100 or the amounts paid by you to APERTURE 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 APERTURE (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 APERTURE and its parent, directors, officers, employees, representatives, consultants, agents, suppliers, and partners (including Producers) 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.
BINDING ARBITRATION AND GOVERNING LAW
Binding Arbitration with APERTURE: You and APERTURE agree that any dispute between you and APERTURE arising out of or relating to this Agreement or your use of the APERTURE OTT Service shall be resolved by BINDING ARBITRATION administered by JAMS.
Binding Arbitration with Producers: To the extent that the Producer has agreed to resolve disputes with consumers through arbitration in its agreements with APERTURE, 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.
Waiver of Class Action Claims: By agreeing to arbitrate your claims against APERTURE and Producers, (i) YOU GIVE UP YOUR RIGHT TO GO TO COURT AND HAVE YOUR CLAIMS TRIED BY A JUDGE OR JURY (except for matters that may be taken to small-claims court); and (ii) YOU GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING.
Right to Bring Small Claims Actions: The one exception to the exclusivity of arbitration (whether against APERTURE or a Producer) is that you have the right to bring an individual claim in a small-claims court of competent jurisdiction. But whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain any class action, class arbitration, or other representative action or proceeding.
Arbitration Rules: The arbitration proceeding shall be governed by the then-effective JAMS’ Comprehensive Arbitration Rules or Streamlined Arbitration Rules, depending on the amount in dispute, and JAMS’ Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses. You have the right to a fair hearing before a neutral arbitrator and the opportunity to participate in the process of choosing the arbitrator. The arbitrator shall have the right to award all remedies that court may award.
Court Proceedings: Any proceeding to enforce this 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 this 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 New York County, New York. You hereby irrevocably consent to the jurisdiction of those courts for such purposes an action and, to the extent permitted by law, both APERTURE and you WAIVE ANY RIGHT TO A TRIAL BY JURY in such an action.
Governing Law: This Agreement shall be governed by the laws of the state of New York without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act. 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.
No Waiver: The failure of APERTURE (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.
Interpretation: Headings are provided for convenience and shall not be used to construe the terms hereof.
Assignment: This Agreement is binding on the parties and their successors, heirs, and permitted assigns. This Agreement is not assignable or transferable by you without our prior written consent.
Relationship: The parties are independent contractors as to one another. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
No Third Parties: No third parties shall have any rights under this Agreement, except that Producers may enforce the terms herein against you, and indemnified parties may enforce indemnification rights.
Force Majeure: Neither APERTURE 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 APERTURE 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 APERTURE OTT Service would violate U.S. law. You represent and warrant that you are not subject to such sanctions.
Notices: You agree to receive notices via the email address that you used to create an account or via the APERTURE website.
Entire Agreement: This Agreement incorporates the following agreements and policies by reference:
Acceptable Consumer Privacy Practice Policy
Except as set forth above, links to pages on the APERTURE website or any third party materials are for convenience only and do not form part of this Agreement.
This Agreement sets forth the entire understanding between you and APERTURE concerning your use of the APERTURE 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 APERTURE website and will apply prospectively.
Contact Us: If you have any support questions, please contact us at firstname.lastname@example.org. For all other questions regarding this Agreement, please contact us at:
Aperture Film and Television, Inc.
591 Roxbury Dr.
Attn: Legal Dept.