Terms of Service
IMPORTANT — THIS AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR ENTITY) ("YOU" or "YOUR") AND NEW ISLAND STUDIOS, INC. (HEREINAFTER "COMPANY," "WE", "US" OR "OUR") THAT SETS FORTH THE LEGAL TERMS AND CONDITIONS FOR YOUR USE OF WWW.NEWISLANDSTUDIOS.COM AND ANY OTHER WEBSITE OWNED AND OPERATED BY COMPANY (THE "WEBSITE(S)") AND COMPANY SERVICES, INCLUDING ANY SOFTWARE, COMPANY MOBILE APPLICATIONS (THE "APP(S)"), PRODUCTS, DEVICES OR OTHER SERVICES OFFERED BY COMPANY FROM TIME TO TIME AND OTHER SERVICES OFFERED THROUGH THIRD PARTIES INTEGRATING COMPANY FUNCTIONALITY (COLLECTIVELY, "SERVICE(S)").
1. Agreement. BY USING ANY WEBSITES OR USING ANY SERVICES FROM COMPANY, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, WHICH INCLUDE A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER. PLEASE SEE SECTION 14 FOR MORE DETAILS.
SOME OF OUR SERVICES MAY HAVE ADDITIONAL RULES, POLICIES, AND PROCEDURES ("ADDITIONAL TERMS"). WHERE ADDITIONAL TERMS APPLY, WE WILL MAKE THEM AVAILABLE FOR YOU TO READ THROUGH IN CONNECTION WITH YOUR USE OF THAT SERVICE. BY USING THAT SERVICE, YOU AGREE TO THE ADDITIONAL TERMS.
WE RESERVE THE RIGHT TO CHANGE THE TERMS AND CONDITIONS OF THIS AGREEMENT OR TO MODIFY OR DISCONTINUE THE SERVICES OFFERED BY COMPANY AT ANY TIME. IF WE CHANGE THIS AGREEMENT, WE WILL POST THE REVISED AGREEMENT ON THE APPLICABLE WEBSITE(S) OR APP(S) AND ATTEMPT TO GIVE YOU NOTICE VIA A POSTING ON THE WEBSITE(S) OR APP(S) AND/OR BY SENDING YOU AN EMAIL AT THE ADDRESS YOU HAVE PROVIDED (IF ANY). THOSE CHANGES WILL GO INTO EFFECT ON THE EFFECTIVE DATE SHOWN IN THE REVISED AGREEMENT.
BY CONTINUING TO USE ANY WEBSITES OR TO PURCHASE OR USE ANY SERVICES FROM COMPANY AFTER THE NEW EFFECTIVE DATE, YOU AGREE TO BE BOUND BY SUCH CHANGES.
2. Eligibility. If requested from you, you agree to provide us with complete and current account registration information. Persons under 13 are prohibited from providing personal information on our Websites or via our Apps. If you are under 18, you may only use our Websites and Apps with the supervision of a parent or guardian 18 years of age or older.
3. Acceptable Use. You are responsible for your use of the Websites and Services, and for any use of the Websites and Services made using your account. Our goal is to create a positive, rewarding, and safe experience in connection with our Websites and Services. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to Company. When you use the Websites and Services, you may not:
o violate any law or regulation;
o violate, infringe, or misappropriate other people's intellectual property, privacy, publicity, or other legal rights;
o post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
o send unsolicited or unauthorized advertising or commercial communications, such as spam (additionally, please read our Anti-Spam Policy in Section 9 below);
o transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
o stalk, harass, or harm another individual;
o impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
o use any means to scrape or crawl any Web pages or content contained in the Websites or Apps (although Company may allow operators of public search engines to use spiders to index materials from the Websites for the sole purpose of creating publicly available searchable indices of the materials, and Company reserves the right to revoke these exceptions either generally or in specific cases);
o use automated methods to use the Websites or Apps;
o attempt to circumvent any technological measure implemented by Company or any of Company's providers or any other third party (including another user) to protect the Websites or Apps;
o attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Websites or Apps; or
o advocate, encourage, or assist any third party in doing any of the foregoing.
If you elect to download the App, the following also applies: Company grants you a personal, revocable, non-exclusive, non-transferable license (without a right to sublicense) to download, install and use a copy of the App on a single mobile device or computer that you own or control solely for your personal and professional use, subject at all times to this Agreement, including the restrictions on use, the acceptable use provisions and our right to remove your Content (as defined below) at our discretion at any time. Furthermore, with respect to any App accessed through or downloaded from an App Store such as the Android Market or Apple App Store (an "App Store Sourced Application"), you will only use the App Store Sourced Application: (i) on a product that runs the operating system for which it was intended and (ii) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the App from a third party App Store is also subject to the provisions of Section 15.
4. Ownership & Copyright Restrictions. The Websites and Apps are owned and operated by Company. The Websites and Apps, including but not limited to software, content, text, photographs, images, graphics, video, audio and the compilation as a whole ("Content"), are copyrighted under Canadian copyright and other laws by Company or its licensors, unless otherwise noted. You must abide by all additional copyright notices or restrictions contained in the Websites, Apps or elsewhere. You may not delete any author attributions, legal or proprietary notices in the Websites, Apps or elsewhere.
Except as noted in Section 5 below: (1) the Websites and Apps may not be used, displayed, copied, reproduced, distributed, republished, uploaded, downloaded, posted, transmitted, mirrored, modified, or otherwise, or in any way exploited for personal gain; (2) you may not redistribute, sell, translate, modify, reverse-engineer or reverse-compile or decompile, disassemble or make derivative works of the Websites, Apps or any Content or components that are available on the Websites or Apps; and (3) you may not make commercial use of any webpage or Services provided by Company, including redistribution or copying by means; EXCEPT with the prior, express written permission of Company.
You agree not to interfere or take action that results in interference with or disruption of the Websites or Apps or servers or networks connected to the Websites or Apps. You agree not to attempt to gain unauthorized access to other computer systems or networks connected to the Websites or Apps. Company reserves all other rights. Except as expressly provided herein, nothing on the Websites or as part of the Services will be construed as conferring any license under Company’s and/or any third party’s intellectual property rights, whether by estoppel, implication or otherwise. Notwithstanding anything herein to the contrary, Company may revoke any of the foregoing rights and/or your access to the Websites and Services, including the App, or any part thereof, at any time without prior notice.
5. Copyright Permission. Permission is granted for viewing the Website pages on the Internet and content via the Apps, subject to the terms and conditions of this Agreement. In the event that information is downloaded from the Websites or Apps, the information, including any Content, data or files incorporated in or generated by the Websites or Apps are owned by Company and Company retains complete title to the information and all property rights therein. All other rights are reserved.
6. Trademarks. All Content, product names, trademarks, service marks and logos on the Websites Apps or as part of the Services, unless otherwise noted, are wholly owned or validly licensed by Company. Trademarks, service marks and logos owned by third parties remain the property of such third parties.
7. Idea Submissions. If you submit any ideas, suggestions or testimonials to Company, we have the right to use your submission without charge in any manner that we deem appropriate, including posting on the Internet. You may only post ideas and material to the Websites if you have obtained appropriate copyright and other permission to post such materials and to permit Company to use such material without restriction. You agree that you will not violate or infringe the rights of third parties, including privacy, publicity and intellectual and proprietary rights, such as copyright or trademark rights.
We respond to notices of claimed copyright infringement in accordance with the Digital Millennium Copyright Act ("DMCA"). It is our policy to terminate the account of any user we determine, in our sole discretion, to be a repeat infringer of copyrights. Our full DMCA Copyright Policy page can be found at http://www.newislandstudios.com/copyright.
9. Anti-Spam Policy. Company prohibits the sending of unsolicited bulk email (spam). Spam is defined for this purpose as sending multiple messages similar in content to any persons, entities, newsgroups, forums, email lists, or other groups or lists unless prior authorization has been obtained from the email recipient or unless a business or personal relationship has already been established with the email recipient. Company also prohibits using false headers in emails or falsifying, forging or altering the origin of any email in connection with Company, and/or its products and services. Company prohibits engaging in any of the foregoing activities by using the service of another provider, remailer service, or otherwise.
IF YOU OR ANYONE YOU KNOW IS "SPAMMED" BY SOMEONE WHO IS SELLING OR DESCRIBING COMPANY'S PRODUCTS OR SERVICES, PLEASE CONTACT US PROMPTLY SO THAT WE MAY TAKE APPROPRIATE ACTION.
10. DISCLAIMER. COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, OR USEFULNESS WITH RESPECT TO COMPANY'S SERVICES, THE WEBSITES, OR INFORMATION CONTAINED ON THE WEBSITES OR APPS.
THE SERVICES ARE PROVIDED "AS IS." YOU MAY RELY ON THE SERVICES SOLELY AT YOUR OWN RISK. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS AND INACCURACIES IN THE INFORMATION OR OTHER MATERIALS THAT ARE AVAILABLE ON OR THROUGH THE SERVICES. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS, INCLUDING LOSS OF DATA, RESULTING FROM YOUR USE OF THE WEBSITES OR THE SERVICES. YOU WILL BE SOLELY RESPONSIBLE FOR MAINTAINING INDEPENDENT ARCHIVAL AND BACKUP COPIES OF ANY INFORMATION MADE AVAILABLE THROUGH THE WEBSITES OR SERVICES. ALTHOUGH WE INTEND TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES AND OTHER DESTRUCTIVE MATERIALS TO THE SERVICES, WE DO NOT GUARANTEE OR WARRANT THAT THE SERVICES OR MATERIALS THAT MAY BE DOWNLOADED FROM THE SERVICES DO NOT CONTAIN SUCH DESTRUCTIVE FEATURES. WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO THE FOREGOING.
11. LIMITED LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, YOU AGREE THAT COMPANY, ITS AFFILIATES, AGENTS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS WILL NOT BE LIABLE FOR ANY PERSONAL INJURY OR FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOST PROFITS OR OTHERWISE, ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, YOUR USE OF THE WEBSITES OR YOUR PURCHASE OR USE OF COMPANY SERVICES.
THE CUMULATIVE LIABILITY OF COMPANY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, YOUR USE OF THE WEBSITES OR YOUR PURCHASE OR USE OF COMPANY SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF (A) THE TOTAL AMOUNT PAID TO COMPANY BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, OR (B) $100. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF IMPLIED WARRANTIES, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES HERETO, THAT THE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
12. INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS COMPANY, ITS AFFILIATES, AGENTS, INDEPENDENT CONSULTANTS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM ANY AND ALL LIABILITIES, CLAIMS, EXPENSES AND DAMAGES, INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS, ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE WEBSITES OR THE SERVICES, OR IN CONNECTION WITH YOUR ACCOUNT OR ANY OTHER PERSON'S USE OR ACCESS TO THE SERVICES BY OR THROUGH YOUR ACCOUNT, WITH OR WITHOUT YOUR PERMISSION, INCLUDING WITHOUT LIMITATION ANY CLAIMS OF LIBEL, DEFAMATION, VIOLATION OF RIGHTS OF PRIVACY OR PUBLICITY, TRESPASS, AND INFRINGEMENT OF INTELLECTUAL OR OTHER PROPRIETARY RIGHTS.
13. Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of Canada without regard to any conflict of laws principles.
14. Arbitration Agreement. Except as provided herein, you and Company agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. All controversies, claims, counterclaims, or other disputes arising between you and Company relating to the Services or this Agreement (each a "Claim") shall be submitted for binding arbitration in accordance with the rules of the Canadian Arbitration Association ("CAA"). If CAA is not available to arbitrate, the parties shall agree to select an available alternative dispute resolution provider ("ADR Provider") and the rules of such provider shall govern all aspects of the arbitration. The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs, documents, or other evidence submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
For any claim where the total amount of the award sought is $10,000 or less, the CAA, you and Company must abide by the following rules: (a) the arbitration will be conducted solely based on written submissions; and (b) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the CAA rules.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Company will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude you from seeking action by federal, state, or local government agencies. You and Company also have the right to bring qualifying claims in small claims court. In addition, you and Company retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with this Agreement, nor a waiver of the right to have disputes submitted to arbitration as provided in this Agreement.
Neither you nor Company may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or Company's individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
If any provision of this Section 14 is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section 14 shall continue in full force and effect. No waiver of any provision of this Section 14 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Agreement. This Section 14 will survive the termination of your relationship with Company.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION OR TO HAVE A TRIAL BY JURY, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM AND THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN CAA RULES OR THE RULES OF AN ADR PROVIDER.
15. App Store. When you download our Apps, you may do so through a third party’s App Store. You acknowledge that the terms of this Agreement are between you and us and not with the owner or operator of the App Store ("App Store Owner"). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any App Store Sourced Application (as such term is defined in Section 3):
1. Your use of the App Store Sourced Application must comply with the App Store’s "Terms of Service" or equivalent terms.
2. You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
3. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Company and the App Store Owner, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company.
4. You and we acknowledge that, as between Company and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
5. You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Company and the App Store Owner, Company, not the App Store Owner, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
6. You and we acknowledge and agree that the App Store Owner, and the App Store Owner’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of this Agreement, the App Store Owner will have the right (and will be deemed to have accepted the right) to enforce the terms of this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
7. Without limiting any other terms in this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
8. You represent and warrant that (i) you are not located in a country that is subject to a Canadian Government embargo, or that has been designated by the Government of Canada as a “terrorist supporting” country; and (ii) you are not listed on any Canadian Government list of prohibited or restricted parties.
16. Waiver. No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. The terms and conditions of this Agreement may be waived or amended only in writing and only by the party that is entitled to the benefits of the term(s) or condition(s) being waived or amended. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
17. Unenforceability. If any provision of this Agreement or any word, phrase, clause, sentence, or other portion thereof should be held to be unenforceable or invalid for any reason, then such provision or portion thereof shall be modified or deleted in such manner as to render this Agreement as modified legal and enforceable to the maximum extent permitted under applicable laws.
18. Authority. The party entering into this Agreement hereby acknowledges, represents and warrants that he or she is expressly and duly authorized to enter into this Agreement and to legally bind said party to this Agreement.
19. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction.
20. Notices. You may contact us by writing us at the address or email address listed below:
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS AND PLEASE CHECK BACK FREQUENTLY FOR ANY CHANGES TO THIS AGREEMENT.