END USER LICENSE AGREEMENT
Effective Date: June 30, 2016
(See Summary of Most Significant Changes
to learn more.)
This is a legal agreement between you and Nickelodeon, a business unit of Viacom Media Networks, a division of Viacom International, Inc. ("VMN") (Viacom International Inc., along with its parent company Viacom Inc. and all affiliates that Viacom Inc. directly or indirectly owns or controls (such as Paramount Pictures Corporation and the other affiliates of Viacom Media Networks as described in the link here, shall be referred to collectively as “VII”) covering your use of software published by VMN, for use on mobile devices, tablets, personal computers and other devices, as well as all related elements including, but not limited to updates and upgrades, manuals, online materials, files and documentation of any kind (collectively, the “Software”) where such Software includes an authorized link to this Agreement. Be sure to read the following agreement before using the Software.
By installing, accessing and using the Software, you are hereby agreeing to be legally bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, do not download or use the software and remove all copies of it from your devices.
- SCOPE OF LICENSE
- VMN hereby grants you a personal, non-exclusive, non-assignable and non-transferable license, without the right of sublicense, to use and display, for noncommercial and personal use only, the Software which you may download on to any single computer and any associated smartphones, tablets and other related devices which you own and control, subject to any usage rules or other restrictions set out by the device manufacturer, "app store" provider or platform operator (e.g. Apple, Google, Microsoft, Amazon, Barnes & Noble). The rights granted hereunder are subject to your compliance with the terms and conditions of this Agreement.
You agree not to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast, commercially exploit, circulate, or in any way transfer or assign the Software or any part thereof (including, without limitation, building databases of content contained in the Software), to any third party (including, without limitation, the display and distribution of the Software via a third party website) without the express prior written consent of VMN. You further agree that you will not disassemble, decompile, reverse engineer, create derivative works from or otherwise modify the Software, except to the extent permitted by applicable law. You may not rent, lease, sell or sublicense the Software. You may not copy the Software other than as specified herein. You may not make the Software available over a network which allows multiple users or devices to access the Software at once. You may not remove any proprietary notices or labels on the Software. Any unauthorized or prohibited use may subject the offender to civil liability and criminal prosecution under applicable federal and state laws.
- Separate from any backup functionality (if any) offered by the device manufacturer or "app store" provider" you may make one (1) backup copy of the Software for non-commercial use, provided any copy must contain all of the original Software's proprietary notices.
- VMN retains all rights not expressly granted hereunder
- AUTOMATIC COMMUNICATIONS FEATURES.
The Software includes functionality that requires it to perform certain communications over the Internet as part of its normal operation. The communications features are automatic and are enabled by default. By installing and/or using the Software, you consent to the Software's communications features. If you do not maintain a connection to the internet, certain features and functions of the Software may not work, or may not work properly.
- CHATROOM/MESSAGE BOARDS
- To the extent that portions of this Software provide users an opportunity to post and exchange information, ideas and opinions (the “Postings”), please be advised that Postings do not necessarily reflect the views of VMN. In no event shall VMN assume or have any responsibility or liability for any Postings or for any claims, damages or losses resulting from their use and/or appearance on this Site. You hereby represent and warrant that you have all necessary rights in and to all Postings you provide and all information they contain and that such Postings shall not infringe any proprietary or other rights of third parties or contain any defamatory, tortious, or otherwise unlawful information. VMN may sweep its chatrooms and/or message boards periodically in its sole discretion. VMN does not allow Postings which contain:
The communication features of the Software may be used for noncommercial purposes only. Users may not post any information intended to promote and/or generate revenue for any third party business activity. Although VMN periodically monitors the content posted on this Site, we cannot be responsible for the views or opinions expressed by third parties. Nonetheless, VMN will make every effort to ensure that the chatrooms/message boards/”Write to Nick” best serve the interests of all users and, therefore, VMN reserves the right to refuse to post, edit, or delete messages that violate the above-referenced rules, as well as revoke the privileges of users who do not comply with such rules. If you believe that any content on the Site (including, without limitation, Postings) violates any of the terms of this Agreement (except for any notices covered by the Copyright Compliance Policy) please click here to send us a message about it (please refer to our Copyright Compliance Policy for any notices covered by the Copyright Compliance Policy). We cannot guarantee that we will respond to your message and we reserve the right to take or refrain from taking any or all steps available to us once we receive any such message.
OWNERSHIP OF INTELLECTUAL PROPERTY
- private or personal information which might identify a user
- profanity or obscenities
- personal attacks on other individuals
- defamatory, obscene, pornographic, threatening and harassing comments; and/or other information that VMN deems in its sole discretion to be inappropriate for this Site.
TEXT MESSAGING MARKETING AND PROMOTIONS
- Title, ownership rights, and intellectual property rights in the Software shall remain at all times in VMN and/or its subsidiaries, affiliates, assigns, licensors or other respective owners. The Software is protected, without limitation, pursuant to U.S. and foreign copyright and trademark laws.
- You may not use the Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.
- The Software may allow you to create user-generated content, including but not limited to Postings, screenshots, user generated artwork, or other material. In exchange for use of the Software, you hereby grant VMN a non-exclusive, royalty-free, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to use your contributions including but not limited to the rights to reproduce, distribute, adapt, modify, create derivative works from, perform, display, publish, broadcast, transmit, or otherwise communicate to the public in all media now known or hereafter devised, for any purpose, without any further notice or compensation to you. You hereby waive and relinquish any claim based upon "moral rights" (as that term is commonly understood) or any rights of attribution or integrity in connection with content submitted to us hereunder. This license grant, and the above waiver of any applicable moral rights, survives any termination of this License.
If you register for the Text Services, you acknowledge, understand and agree that you may be charged by your wireless carrier for the ability to send or receive all such messages. The standard messaging rates of your wireless carrier shall apply to all Text Services, unless noted otherwise. Under no circumstances shall VMN or VII be responsible for any wireless service charges incurred by you or by a person that has access to your wireless device, telephone number, or email address. If you change or deactivate your wireless telephone number, you agree to notify us when your wireless telephone number is no longer associated with you and identify such wireless phone number to ensure that future messages directed to you are not sent to the person to whom your old number has been or will be assigned.
You understand, acknowledge and agree that we may, at our sole discretion and without liability to you or any user, terminate our offer of any specific Text Service or all Text Services at any time without advance notice. VMN may provide notice of terminations or changes in services on this Software.
CLOSED CAPTIONING OF INTERNET PROTOCOL-DELIVERED VIDEO PROGRAMMING
In accordance with the Twenty-First Century Communications and Video Accessibility Act of 2010, all video programming distributors that make video programming available directly to end users through a distribution method that uses the internet protocol are required to provide contact information to end users for the receipt and handling of written closed captioning complaints.
If you have a complaint regarding the Software’s compliance with the closed captioning requirements of the Twenty-First Century Communications and Video Accessibility Act of 2010, please click here.
DIGITAL RIGHTS MANAGEMENT SYSTEMS ("DRMs").
The Software may include third party DRMs which are subject to their own license agreements. DRMs are designed to manage and enforce intellectual property rights in digital content purchased over the Internet. You may not take any action to circumvent or defeat the security or content usage rules provided or enforced by either the DRM or the Software. DRMs may be able to revoke your ability to use applicable content. VMN is not responsible for the operation of the DRM in any way, including revocation of your content. You consent to the communications enabled and/or performed by the DRM, including automatic updating of the DRM without further notice. You agree to indemnify and hold harmless VMN for any claim relating to your use of a third party DRM.
CONTESTS, SWEEPSTAKES, AND OTHER ACTIVITIES
VMN provides rules and/or guidelines ("Rules of Participation") for certain activities associated with the Software including, without limitation, contests, sweepstakes and giveaways by VMN and in conjunction with third parties. This Agreement is incorporated by reference to the specific Rules of Participation which appear in connection with information about a particular activity. To the extent that any conflict exists between this Agreement and specific Rules of Participation, the Rules of Participation for the activity in which you choose to participate shall govern.
Some of the E-Commerce Services utilize third party service providers. All purchases made through these third party service providers are subject to their respective terms and conditions of use. We encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online transaction with any of these third parties. VMN does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any such third party, and you irrevocably waive any claim against us with respect to such sites. We are not responsible for assisting you in correcting any problem you may experience with goods and services purchased through a third party service provider,. We cannot ensure that you will be satisfied with any products or services that you purchase from any third-party service provider as those are owned and operated by independent entities. Customer service issues related to goods or services should be directed to the relevant third party service provider.
VMN does not guarantee that product descriptions or other content will be accurate, complete, reliable, current, or error-free. VMN and its third party service providers reserve the right, with or without prior notice, to change product descriptions, images, and references; to limit the available quantity of any product; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from conducting any or all transaction(s); and/or to refuse to provide any user with any product. Price and availability of any product are subject to change without notice.
The term of this Agreement shall commence on the date that you install or otherwise use the Software, and ends on the earlier date of either your removal of the Software from your devices, or VMN's termination of this Agreement. Also, the license will terminate automatically if you fail to comply with the limitations described herein. On termination, you must remove or destroy all copies of the Software.
DISCLAIMER AND LIMITATION OF LIABILITY
THIS SOFTWARE IS DISTRIBUTED AND TRANSMITTED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
VMN is not responsible or liable for any infections or contamination of your system, or delays, inaccuracies, errors, or omissions arising out of your use of the Software. The entire risk as to the quality, accuracy, adequacy, completeness, correctness and validity of the Software rests with you.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NICKELODEON, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, REPRESENTATIVES, AND THIRD PARTY PROVIDERS TO THE SITE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR SIMILAR DAMAGES, THAT MAY RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE MATERIALS CONTAINED ON THIS SITE WHETHER THE MATERIAL IS PROVIDED OR OTHERWISE SUPPLIED BY NICKELODEON OR ANY THIRD PARTY. INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF NICKELODEON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
Notwithstanding the foregoing, in no event shall VMN's liability to you for any and all claims, damages, losses, and causes of action (whether in contract, tort or otherwise, other than as may be required by applicable law in cases involving personal injury) exceed the amount paid by you, if any, for accessing and using the Software.
You agree to indemnify, defend and hold harmless, VMN, its affiliates, and their respective officers, directors, employees, agents, licensors and representatives from and against any and all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of this Agreement by you. VMN reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with VMN in asserting any available defenses.
RESOLUTION OF DISPUTES: BINDING ARBITRATION; NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS
See our FAQs
for more information.
GOVERNING LAW, ARBITRATION LOCATION, JURISDICTION, VENUE, AND JURY TRIAL WAIVER
- Informal Dispute Resolution. Except with respect to Claims described in Sub-section 1(B) above, before either you or VII pursue or participate in any Claim against the other party in arbitration or court proceedings, you or VII must notify the other party of the Claim in writing at least 60 days in advance of initiating the arbitration or court proceeding in order to provide a reasonable opportunity to resolve the Claim. You may send a written notice of your Claim to VII at 1515 Broadway, New York, New York 10036, Attention: Viacom Inc. General Counsel. VII may send written or electronic notice of its Claim to your email address, VII account or any physical or other address VII has for you. The notice must describe the Claim in reasonable detail and set forth the relief requested so that the other party has an opportunity to adequately address the Claim. Except with respect to Claims described in Sub-section 1(B) above, you and VII agree to negotiate in good faith with each other to try to informally resolve the Claim and, if you and VII do not reach an informal resolution of the Claim within 60 days, then the Claim may be submitted to binding arbitration as set forth in this Section of the Agreement or court as permitted by Sub-section 1 above.
- Arbitration Proceedings and Costs. Any arbitration will be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (the “AAA Rules”), as modified by this Agreement. The AAA Rules, and other information about the AAA, are available at the AAA’s website at www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s website (see Demand for Arbitration at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and, for arbitrations in California, https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822, but contact the AAA if you have issues accessing these links) and arbitration proceedings shall be initiated in the location described in Section 15 below. As required by the AAA Rules, if you initiate the arbitration proceedings, you must send the original copy of the completed form to VII, which should be sent to VII at the following address: 1515 Broadway, New York, New York 10036, Attention: Viacom Inc. General Counsel. If your Claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the AAA Rules. In all cases, you and VII shall exchange documents and other information that you or VII intend to use in the arbitration.
Upon filing of an arbitration demand for Claims up to $75,000, VII will reimburse you for all necessary filing, administration and arbitrator fees paid by you to the AAA or, if you wish VII to pay such fees directly to the AAA, you must request payment of such fees by VII by mail to the AAA along with your form initiating arbitration and VII will make arrangements to pay such fees directly to the AAA. In the event the arbitrator determines that the Claim(s) you assert in the arbitration are frivolous or vexatious, you agree to reimburse VII for all fees associated with the arbitration paid by VII on your behalf. You agree that VII shall have no obligation to pay any other fees except as determined by the arbitrator.
For Claims that total more than $75,000, the AAA Rules will govern payment of filing, administration and arbitrator fees to the maximum extent permitted by law. The decision of the arbitrator will be binding and conclusive on all parties, and judgment to enforce the decision may be entered by any court of competent jurisdiction.
- Class Action Waiver. UNLESS YOU SUBMIT A VALID ARBITRATION/CLASS ACTION WAIVER OPT-OUT NOTICE (AS DESCRIBED IN SUB-SECTION 5), YOU AND VII AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WHETHER IN ARBITRATION OR IN COURT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. You and VII expressly agree that any Claim is personal to you and VII, shall only be resolved by an individual arbitration (or individual court proceedings with respect to Claims excluded from mandatory arbitration as described in Sub-section 1 of this Agreement), and shall in no event be brought as a class arbitration, a class action, or any other representative proceeding. The arbitrator (or court if the Claim is excluded from mandatory arbitration as described in Sub-section 1 of this Agreement) may only conduct an individual arbitration (or court action if the Claim is excluded from mandatory arbitration as described in Sub-section 1 of this Agreement), and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding. If a court or arbitrator determines that this class action waiver is unenforceable in an action between you and VII, then this Agreement to arbitrate will be unenforceable. Neither you nor VII consent to class arbitration.
- Right to Opt Out of Mandatory Arbitration and Class Action Waiver. IF YOU DO NOT WISH TO BE BOUND BY THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS IN SUB-SECTIONS 1, 3 AND 4, YOU MUST NOTIFY VII IN WRITING (THE “Arbitration/Class Action Waiver Opt-Out Notice”), WHERE THE ARBITRATION/CLASS ACTION WAIVER OPT-OUT NOTICE MEETS ALL OF THE FOLLOWING REQUIREMENTS:
(a) Sent by first class mail, postage prepaid, certified and return receipt requested or sent by overnight courier service (such as Federal Express) to Viacom Inc., Attention: Viacom Legal Department, Records Management, 1515 Broadway, 51st Floor, New York, NY 10036.
(b) Postmarked (if sent by first class mail) or deposited with the overnight courier service no later than (A), if you register as a new registered user of the Software on or after 6/30/2016 (“Agreement to Arbitrate Date”, except as provided in (C) below), 45 days after the date you accept this Agreement for the first time, unless an earlier deadline in Sub-section 5.2(C) applies, (B), if you are already a registered user of the Software before the Agreement to Arbitrate Date, 45 days after the earlier of either (I) your first log in to the Software on or after the Agreement to Arbitrate Date or (II) the date which email notice of the Agreement containing this Section of the Agreement, if any, was sent to the email address associated with your user registration, unless an earlier deadline in Sub-section 5.2(C) applies or (C) for all other users of the Software, 45 days after you accept this Agreement for the first time on or after the Agreement to Arbitrate Date, which Agreement to Arbitrate Date shall be, and 45 days shall start, December 31, 2016 for users of apps and other interactive services of the Software, unless a longer period is required by applicable law.
Time Periods Applicable to Users of Multiple VII Websites, Applications or Other Interactive Services. If you are or become a user of more than one VII website, application or other interactive service, you must provide the Arbitration/Class Action Waiver Opt-Out Notice within the earliest deadline applicable for any VII website, application or other interactive service for which you are or become a user (for example, if the Agreement to Arbitrate Date is August 1 and if you are a pre-existing registered user of a VII website prior to August 1 who logins on August 1 and registers as a new registered user of another VII website on August 15, you must provide the Arbitration/Class Action Waiver Opt-Out Notice by September 15 (45 days after August 1 and not 45 days after August 15)).
(c) Includes your first and last name, address, phone number, email address and, if applicable, your username if you are a registered user of the VII website(s), application(s) or other interactive services(s) along with an identification of the VII website(s), application(s) or other interactive services(s) for each such username. We shall use the foregoing information included in the Arbitration/Class Action Waiver Opt-Out Notice to record, process, maintain and administer your opt-out of the mandatory arbitration and class action waiver provisions and not for marketing purposes.
(d) Includes a statement that you do not agree to the mandatory arbitration and class action waiver.
If the Arbitration/Class Action Waiver Opt-Out Notice meets all of the above requirements, you will be deemed to have opted out of the mandatory arbitration and class action waiver provisions in Sub-section 1, Sub-section 3 and Sub-section 4 with respect to all VII websites, applications or other interactive services (including, but not limited to, those owned, operated and/or provided by Viacom Inc. and the corporate affiliates that Viacom Inc. directly or indirectly owns or controls such as those described in the link here). Note that a valid Arbitration/Class Action Waiver Opt-Out Notice applies only to the individual identified in such notice as opting out.
If the Arbitration/Class Action Waiver Opt-Out Notice does not meet all of the above requirements, you will not be deemed to have opted out of the mandatory arbitration and class action waiver provisions in Sub-section 1, Sub-section 3 and Sub-section 4.
With the exception of the provision above that the enforceability of Section 14 above is governed both procedurally and substantively by the FAA, this Agreement and your use of the Software is otherwise governed by, construed and enforced in accordance with the laws of the State of New York (without regard to that state’s conflict of laws rules).
You or VII shall initiate arbitration in the United States county or territory in which you reside or, if you do not reside in the United States or one of its territories, in the non-United States country in which you reside; provided, however, that (a) VII may request to transfer the arbitration to New York County, New York if it agrees to pay any additional fees or costs you incur as a result of the change in location as such additional fees or costs are determined by the arbitrator and to the maximum extent permitted by law and, upon such request, (b)(i) if you agree to such request, the arbitration shall be transferred to New York County, New York or (ii) if you do not agree to such request, VII shall have right to request that the arbitrator determine the location in which the arbitration shall be held. You and VII agree that any Claim that is allowed to proceed in court as set forth in Section 14(1) above (including, but not limited to, as a result of your submission of a valid Arbitration/Class Action Waiver Opt-Out Notice), or otherwise proceeds in court in the event the agreement to arbitrate above is found not to apply to you or a particular Claim as a result of a decision by the arbitrator or a court order, is subject to exclusive jurisdiction and venue in the State or Federal Courts situated in the Borough of Manhattan, New York City, State of New York.
To the extent it may be applicable, you and VII agree to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act. If any Claim proceeds in court rather than in arbitration, YOU AND VII WAIVE ANY RIGHT TO A JURY TRIAL.
- The Software may not be downloaded, exported or re-exported in violation of any law including, without limitation, to countries that are subject to U.S. export restrictions.
- This Agreement contains the entire understanding and supersedes all prior understanding of the parties hereto relating to the Software, and cannot be changed or terminated orally. If any provision of this Agreement is found to be illegal or unenforceable, the Agreement will be deemed curtailed to the extent necessary to make it legal and enforceable and will remain, as modified, in full force and effect. This Agreement and all matters or issues collateral thereto shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the principles thereof relating to conflicts of law. Any legal proceeding of any nature brought by either party against the other party to enforce any right or obligation under this Agreement shall be submitted for trial before any court of competent jurisdiction in the County of New York, State of New York. Each of the parties hereto (i) irrevocably consents to personal jurisdiction by any such court and (ii) submits to the venue and jurisdiction of any such court and agrees to accept service of process outside the State of New York in any matter to be submitted to any such court pursuant hereto. Each Party irrevocably consents to the exercise of personal jurisdiction over each of the Parties by such courts and waives any right to plead, claim or allege that New York is an inconvenient forum. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Software or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST NICKELODEON AND ITS AFFILIATES.
This Agreement is personal to you, and may not be assigned without VMN's express written consent. In the event that you are an entity that merges with another entity or are acquired by another entity during the Term, you shall provide written notice of such merger or acquisition not later than the date on which any public announcement is made. If VMN does not consent to assignment of this Agreement to the new or acquiring entity in such merger or acquisition, VMN may terminate this Agreement on thirty (30) days' written notice. Both parties shall perform under this Agreement until such termination is effective.
Nickelodeon is a member of the Viacom family of companies.
© 2016 Viacom International Inc. All rights reserved.