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Terms of Use

These Terms of Use and Our Privacy Policy, which is incorporated herein by reference (collectively, "Terms"), govern the relationship between You and Fractional Media, Inc. ("Fractional Media" or "We" or "Us" or "Our") and Your use of any online or mobile product or service to which You have access, including Fractional Media's website, www.fractionalmedia.com, and any service accessible from Our website (collectively, "Our Services"). When We use "You" or "Your" in these Terms, "You" includes Your users and You warrant that You are agreeing to these Terms on their behalf. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT CLICK ON THE “I AGREE” BUTTON OR BOX, CREATE AN ACCOUNT, OR USE ANY OF OUR SERVICES.

SECTION 9 OF THESE TERMS CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, WHICH AFFECT YOUR LEGAL RIGHTS. PLEASE READ IT CAREFULLY.

1. Limited License Grant.

Subject to Your agreement and continuing compliance with these Terms, We grant You a non-exclusive, non-transferable, non-sublicensable, revocable limited license subject to the limitations below to access and use Our Services. Unless otherwise specified, You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from Our Services.

2. Additional Terms and Modification of Terms.

Certain aspects of Our Services, including, the use of Our SDK, are subject to specific terms and conditions that govern Your use of such Services and You may be asked to agree to additional terms governing Your use of such Services.  In such cases, You will be asked to expressly consent to the special terms, for example, by checking a box or clicking on a button marked "I agree." This type of agreement is known as a "click-through" agreement. If any of the terms of the click-through agreement are different from these Terms, the terms of the click-through agreement will govern Your use of such specific services.   

We reserve the right to modify these Terms from time to time by posting updated versions on Our website or otherwise notifying You of changes through Our Services. Unless We state otherwise, changes are effective when We post or notify You of them. By continuing to use Our Services after the posting of changes to these Terms, You agree to the changes and the updated Terms.  If You do not agree to the new Terms, You must stop using the Services.

3. Intellectual Property Rights in Our Services.

Except for the limited license granted herein, We and Our licensors retain all right, title and interest in and to Our Services, (including, all content made available through Our Services and the technology and software used to provide Our Services, any games, titles, content, computer code, themes, objects, characters, character names, stories, dialogue, catchphrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operations, moral rights, documentation, in-Service chat transcripts, character profile information, and recordings). Our Services are protected by copyright, trademark and other laws. If You violate these Terms, You may be breaking the law, including, by violating Our intellectual property rights. We and Our licensors may actively protect Our intellectual property rights in the event You violate these Terms. In addition, You agree not to modify, create derivative works of, decompile, or otherwise attempt to extract source code from Us.

The trademark "Fractional Media" and logos associated with it are trademarks of Fractional Media and its affiliates, and all trademarks, logos and service marks (collectively, "Marks") displayed on or in Our Services are either Our property or the property of third parties. Similarly, all artwork and other protectable expression in Our Services are either Our property or the property of third parties and protected by Copyright law. Marks, artwork, images, music, and any other protectable expression may not be copied, imitated or used without written permission from the owner.

If You provide Us with any suggestions for enhancement or feedback regarding Our Services or any of Our other products or services, You agree that We will have a perpetual, transferable, sub-licensable, royalty-free, fully paid-up, irrevocable, worldwide license to use such suggestions and feedback, including, by incorporating Your suggestions or feedback in Our services or products, without any obligation to compensate You or provide you with any notice.

4. Code of Conduct.

You agree to comply with the following requirements (Our "Code of Conduct") when You access Our Services:

  • You will not use Our Services for any unauthorized commercial purpose, including, commercial advertisement or solicitation (such as chain letters, junk e-mail, “spam,” or other repetitive messages;
  • You will not remove or obscure any proprietary notices within Our Services;
  • You will not disrupt or attempt to disrupt Our Services or any other person’s use or enjoyment of Our Services;
  • You will not attempt to gain unauthorized access to Our Services, to accounts registered to others, or to networks from which portions of Our Services are provided, including by circumventing or bypassing robot exclusion headers or security mechanisms for Our Services;
  • You will not use any service or software that accesses, intercepts, "mines," or otherwise collects information from Our Services or that is in transit from or to Our Services;
  • You will not make any automated use of Our Services, or take any action that imposes an unreasonable burden on Our infrastructure;
  • You will not use any software, technology, or device to send content or messages, scrape, spider, or crawl Our Services, or harvest or manipulate data from Our Services;
  • Except where permitted by law or relevant open source licenses, You will not modify, reverse engineer, decompile, disassemble, decipher or otherwise try to derive the source code for Our Services; and 
  • You will not copy, modify or distribute content from Our Services except as specifically authorized by Us.

Failure to comply with this Code of Conduct may subject You to penalties under these Terms and applicable law.

5. Your Content.

Our Services may include features by which You can submit or upload content to Our Services (“Your Content”). You represent that You have all rights and permissions necessary to submit Your Content to Us (including, with respect to videos and photographs, written consent from each identifiable person therein), that Your Content is accurate, and that Your Content is not subject to any confidentiality obligations or in violation of the Code of Conduct. In addition, You represent and warrant that any of Your Content submitted by You does not violate or infringe upon any copyright, right of privacy, trademark, patent, trade-name, performing right or any literary, dramatic, musical, athletic, personal, private, civil, contract, or property right or any other right of any person, firm, or corporation, or contain any libelous or slanderous material.

You retain all right, title and interest to Your Content, except that You grant Us a perpetual, non-exclusive, transferable, sub-licensable, royalty-free, fully paid-up, irrevocable, worldwide license to use Your Content and any modifications thereto in connection with Our Services.

We do not endorse any content supplied; each user is responsible for his or her content, and We expressly disclaim any warranty with respect to content uploaded on Our Services. We have no obligation to monitor Your Content, and We are not responsible for monitoring Our Services for inappropriate or illegal communications by other users. However, We reserve the right to block, remove or edit Your Content. We may, in Our discretion, choose to monitor or record Your interaction with Our Services You access or with other users when You are using Our Services. You acknowledge and agree that You have no expectation of privacy in any of Your Content.

6. Accounts; Information Collection and Use; Privacy Policy.

Some of Our Services are only available if You register with our website and create an account.  When You register, You agree to (a) provide true, accurate, current and complete information about Yourself as prompted by the registration form; and (b) maintain and promptly update Your registration information to keep it true, accurate, current and complete.

As a registered user, You are required to choose a unique password. You may not use the password of any other person to access the Services without their express permission. You are responsible for maintaining the confidentiality of Your password and You are solely responsible for the activities of anyone accessing the Services using Your password, even if You did not authorize the activities. You must notify Us at immediately at info@fractionalmedia.com of any unauthorized use or suspected unauthorized use of Your password.  In addition, if You know or suspect Your password has been compromised, You must promptly change Your password. Even if You give Us notice, You could be held liable for losses incurred by Us or another party due to someone else using Your account or password

In addition to Your Content, We collect (i) information, content or other material that You provide to Us or is otherwise transmitted in or through Our Services You access or which is generated, acquired or developed when You download, install, and/or use Our Services or anytime You are in contact with Us; and (ii) information You receive or which is transmitted to or otherwise made available to You from other users of Our Services or third parties in Our Services (collectively, “Service Information”). We use the Service Information in many ways, including, to help Us provide and support Our Services. For example, We may use the Service Information to deliver and target advertising and generate information about the reach and effectiveness of advertising through various measurements and analytics (without providing personally identifiable information about You).

Our Privacy Policy sets out detailed information regarding Our collection, use and sharing of information from and about You. When You download or access Our Services, You acknowledge and accept that Our Privacy Policy applies to You. You should carefully review Our Privacy Policy and, if You do not agree with them, You should not use Our Services.

7. Disclaimer; Limitation of Liability.

OUR SERVICES ARE PROVIDED "AS IS," AND USE OF OUR SERVICES IS AT YOUR SOLE RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, ABOUT OUR SERVICES OR ANY CONTENT OR SERVICES MADE AVAILABLE THROUGH OUR SERVICES, AND WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR AVAILABILITY. WE DO NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE OUR SERVICES AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT OUR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT OUR SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

YOU ACKNOWLEDGE THAT, EXCEPT IN THE CASE OF WILLFUL ACTS OR GROSS NEGLIGENCE, WE WILL NOT BE LIABLE TO YOU FOR: (1) ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, OR OTHER PECUNIARY LOSS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES; (2) AN AMOUNT IN EXCESS OF $100; OR (3) THE CONDUCT OF THIRD PARTIES, INCLUDING THIRD PARTY SITES OR MOBILE PLATFORM PROVIDERS OR OTHER USERS OF OUR SERVICES. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THE FOREGOING LIMIT.  THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Certain state and national laws do not allow some of the exclusion of liability or the warranty disclaimers set forth above. Therefore, the above limitations and disclaimers may not apply to You, and You may have additional rights.  

8. Indemnity.

If You misuse Our Services, violate the law, or violate these Terms, and Your violation results in loss or damage or a claim or liability against Us, You agree to indemnify, defend and hold Us harmless from (which means You agree to compensate Us for) that loss, damage, claim or liability, including, Our legal fees and expenses. We may take exclusive charge of the defense of any legal action for which You are required to indemnify Us under this Section, at Your expense. You agree to cooperate in Our defense of these actions. We will use reasonable efforts to notify You of any claim for which You are obligated to indemnify Us. This Section will apply even if You stop using Our Services.

9. Agreement to Arbitrate; Class Action Waiver.

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND INCLUDES WAIVER OF A TRIAL BY JURY IN A COURT AND OF THE ABILITY TO BRING ANY CLAIM ON BEHALF OF OTHERS.

Overview

This Section 9 (i.e., the “Agreement to Arbitrate”) applies to the maximum extent permitted by applicable law. If the laws of Your jurisdiction prohibit the application of provisions of this Section 9 notwithstanding Section 10 below, those prohibited provisions will not apply to You. IF YOU LIVE IN THE EUROPEAN UNION, NONE OF THIS SECTION 9 APPLIES TO YOU.

Most user concerns can be resolved by contacting Our customer support team at info@fractionalmedia.com. In the unlikely event that We are unable to resolve Your concerns and a dispute remains, this Section explains how You and We agree to resolve it. As explained in more detail below, We each agree to resolve any dispute between Us through binding arbitration or small claims court instead of in courts of general jurisdiction.

Agreement to Arbitrate; Exceptions

If We cannot resolve our dispute through customer support, YOU AND WE AGREE TO RESOLVE ALL DISPUTES AND CLAIMS BETWEEN US IN INDIVIDUAL BINDING ARBITRATION, INCLUDING CLAIMS CONCERNING ANY ASPECT OF THE RELATIONSHIP BETWEEN US, YOUR DECISION TO DOWNLOAD OR ACCESS OUR SERVICES, YOUR USE OF AN OUR SERVICE, ANY USER CONTENT, OR YOUR ACCOUNT. This Agreement to Arbitrate is intended to be interpreted broadly, and applies to all legal claims under any legal theory (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory), and applies to any disputes or claims that You assert or that arise even after You stop using Our Services.  This Agreement to Arbitrate also applies to any claims that are currently the subject of a purported class action litigation in which You are not a member of a certified class. If You and We have a dispute about whether this Agreement to Arbitrate can be enforced or applies to our dispute, You and We agree that the arbitrator will decide that issue as well.

An arbitration is a proceeding before a neutral arbitrator, instead of before a judge or jury. Arbitration is less formal than a lawsuit in court, and provides more limited discovery. It follows different rules than court proceedings, and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons if requested by either party. YOU UNDERSTAND THAT YOU AND WE ARE GIVING UP THE RIGHT TO SUE IN COURT AND THE RIGHT TO HAVE A TRIAL BEFORE A JUDGE OR JURY.

This Section 9, however, does not apply to the following types of claims or disputes, which You or We may bring in court in accordance with Section 10 below:

(1) claims of infringement or other misuse of intellectual property rights, including such claims seeking injunctive relief; and

(2) claims for preliminary injunctive relief.

This Section does not prevent You from bringing Your dispute to the attention of any federal, state, or local government agencies that can, if the law allows, seek relief from Us for You. Also, any of us can bring a claim in small claims court either in Santa Clara County, California or the county where You live, or some other place we both agree on, if such claims meets all the requirements to be brought in that court.

The arbitrator will administer and conduct any arbitration in accordance with California law, including the California Code of Civil Procedure, and the arbitrator will apply California law to any dispute or claim, without reference to rules of conflict of law.  To the extent that the Comprehensive Arbitration Rules and Procedures conflict with California law, California law will take precedence.  Any arbitration under these Terms will be conducted in Santa Clara County, California and the decision of the arbitrator will be in writing.  The arbitrator’s decision regarding the claims will be final and binding upon the parties and will be enforceable in any court having jurisdiction thereof.  Each party will be responsible for paying its own attorneys’ fees and costs; provided, however, that We are entitled to recover Our attorneys’ fees and costs in arbitration if the arbitrator determines that Your claims are frivolous or Your costs are unreasonable.  The arbitrator will be bound by these Terms.

For EU Users

In the event of any controversy or claim arising out of or relating to these Terms, including any question regarding its existence, validity, termination or breach thereof, the parties hereto will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a satisfactory solution. If they do not reach settlement within a period of 60 days, then, upon notice by any party to the other(s), any unresolved controversy or claim will be settled by arbitration administered by the International Centre for Dispute Resolution (“ICDR”) in accordance with the provisions of its International Arbitration Rules. The place of arbitration will be in London, England. The number of arbitrators will be one. The language to be used in the arbitral proceedings will be English. Except as may be required by law, neither You nor Your representatives may disclose the existence, content, or results of any arbitration hereunder without Our prior written consent. 

Class Action Waiver

For disputes arising between Us and You, or any other user, that are subject to this Agreement to Arbitrate, You and We agree that We can only bring a claim against each other on an individual basis. NEITHER YOU NOR WE CAN BRING A CLAIM AS A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION, CONSOLIDATED ACTION, OR REPRESENTATIVE ACTION. THE ARBITRATOR CANNOT COMBINE MORE THAN ONE PERSON’S CLAIM INTO A SINGLE CASE, AND CANNOT PRESIDE OVER ANY CONSOLIDATED, CLASS, OR REPRESENTATIVE ARBITRATION PROCEEDING, UNLESS WE BOTH AGREE OTHERWISE IN WRITING. THE ARBITRATOR’S DECISION OR AWARD IN ONE PERSON’S CASE CAN ONLY AFFECT THE PERSON WHO BROUGHT THE CLAIM, NOT OTHER USERS OF OUR SERVICES, AND CANNOT BE USED TO DECIDE DISPUTES WITH OTHERS.

If a court decides that this "Class Action Waiver" subsection is not enforceable or is invalid, then Section 9 shall cease to have effect, however, the remaining portions of the Terms will remain in full force and effect.

Service of Process

To initiate arbitration or any legal proceeding against Us, please serve initiating documents on Our registered agent for service of process at: Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware 19808.

Changes to this Section 9

We agree to provide You with 5 days’ notice through the applicable Services if We change this Section 9. Notwithstanding any provision in these Terms to the contrary, We agree that if We make any future change to this Section 9, You may reject any such change by sending Us written notice within 30 days of the change to: info@fractionalmedia.com.

10. Applicable Law.

For Users other than EU Users

You agree that these Terms will be deemed to have been made and executed in the State of California, U.S.A. and that any dispute arising under the Terms, as well as any other dispute or claim that may arise between You and Us, will be governed by and resolved in accordance with the laws of the State of California, without regard to conflict of law provisions or principals.

For claims not required to be arbitrated under Section 9, or in the event the arbitration provision in Section 9 is deemed unenforceable or voided, You agree that any claim asserted in any legal proceeding by You against Us will be commenced and maintained exclusively in any state or federal court located in Santa Clara County, California having subject matter jurisdiction with respect to the dispute between the parties and You hereby consent to the exclusive jurisdiction of such courts. In any dispute arising between Us, each party will be responsible for paying such party’s own attorneys’ fees and costs.

For EU Users

You agree that these Terms of Use will be governed by the laws of England, excluding the law of conflicts and the Convention on Contracts for the International Sale of Goods (CISG). However, where the laws of England provide a lower degree of consumer protection than the laws of Your country of residence, the consumer protection laws of Your country will prevail. In any dispute arising between Us, each party will be responsible for paying such party’s own attorneys’ fees and costs.

11. Digital Millennium Copyright Act ("DMCA") Notice.

We respond to allegations of copyright violations in accordance with the Digital Millennium Copyright Act (“DMCA”). The DMCA provides a process for a copyright owner to give notification to an online service provider concerning alleged copyright infringement. When We receive a valid DMCA notification, it may expeditiously take down the offending content. On taking down content under the DMCA, We will take reasonable steps to contact the owner of the removed content, including by forwarding them a copy of the Notice and the name and email address of the person submitting the Notice, so that a Counter Notice may be filed. On receiving a valid Counter Notice, We generally restore the content in question, unless We receive notice from the notification provider that a legal action has been filed seeking a court order to restrain the alleged infringer from engaging in the infringing activity.

Please note: The DMCA provides that You may be liable for damages (including costs and attorneys’ fees) if You falsely claim that content is infringing Your copyright. We recommend contacting an attorney if You are unsure whether Your content is protected by copyright law or whether content is infringing on Your copyright.

To Submit a Notice:

 If You believe that content infringes on Your copyright, You must submit a written notification to Us either by email or written letter (regular mail or courier). The Notice must include the following: 

  1. An identification of the copyright You claim has been infringed (i.e., Your copyrighted material);
  2. A description of the nature and exact location of the content You claim infringes Your copyright;
  3. Your name, address, telephone number, and email address;
  4. Statements by You that: (a) You have a good faith belief that the use of the copyrighted materials described above and contained on the service is not authorized by the copyright owner, its agent, or by protection of law; and that (b) You swear, under penalty of perjury, that the information in the notification is accurate and that You are the copyright owner or are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
  5. A physical signature of the copyright owner or a person authorized to act on their behalf. To satisfy the signature requirement, please designate electronic signatures by typing a forward slash before and after Your name (e.g., /Jane Doe/).

Send the written Notice to Our designated Copyright Agent by emailing Us at info@fractionalmedia.com or by sending the Notice to:

Fractional Media, Inc.
530 Lytton Ave, 2nd Floor
Palo Alto, California 94301 

To Submit a Counter Notice:

Under the DMCA, a Counter Notice is a legal means to state Your objection to a DMCA Notice. If You have received a DMCA Notice from Us, or have been otherwise advised by Us that Your account was the subject of a DMCA Notice, and You dispute that Your material is infringing or believe that the material removed or disabled was as a result of a mistake or misidentification of the material to be removed or disabled, You may submit a Counter Notice. 

12. Miscellaneous.

You may terminate these Terms at any time and for any reason by deactivating your account and discontinuing your use of the Service. We may also terminate or suspend Your account or Your use of the Service at any time and for any reason with or without notice and without liability, including, if we reasonably believe that you have violated these Terms, you have created any risks to Us or if We decide to stop providing the Service.   The following terms survive any termination of these Terms: Section 3, Intellectual Property Rights in Our Services; Section 5, Your Content; Section 7, Disclaimer; Limitation of Liability; Section 8, Indemnity; Section 9, Agreement to Arbitrate; Class Action Waiver;  Section 10, Applicable Law; Section 12, Miscellaneous; and any other term which should survive the termination of these Terms by their nature. 

You must not assign or otherwise transfer the Terms or any right granted hereunder.

As used in these Terms, the term "including" means "including, but not limited to." Section headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

By accepting these Terms, You affirm that you are (a) at least eighteen (18) years old, and (b) have full power and authority to enter into these Terms and doing so will not violate any other agreement to which You are a party. If You are under the age of thirteen (13), You may not access or use our Services.

Except as otherwise expressly set forth in these Terms, in the event that any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of these Terms of Use will remain in full force and effect. These Terms constitute and contain the entire agreement between You and Us with respect to the subject matter hereof and supersedes any prior oral or written agreements. You agree that these Terms are not intended to confer and do not confer any rights or remedies upon any person other than the parties to these Terms.

If We provide a translated version of these Terms or any other terms or policy incorporated or referenced in these Terms, it is for informational purposes only. If the translated version means something different than the English version, then the English meaning will be the one that applies.

If We do not enforce a provision of these Terms of Use, that does not waive Our right to do so later. And, if We do expressly waive a provision of these Terms of Use, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by both You and Us to be legally binding.

We are subject to existing laws and legal process, and We may comply with law enforcement or regulatory requests or requirements notwithstanding any term to the contrary in these Terms.

We may notify You via postings on www.fractionalmedia.com or via e-mail or via any other contact information You provide to Us. All notices given by You or required from You under these Terms or Our Privacy Policy must be in writing and addressed to us as set forth above. Any notices that You provide that do not comply with these requirements will have no legal effect.

A printed version of these Terms and of any notices given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

We will not be liable for any delay or failure to perform resulting from causes outside of Our reasonable control, including, any failure to perform hereunder due to unforeseen circumstances or causes beyond Our control, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.

© 2018 Fractional Media, Inc. All Rights Reserved.