Last updated: November, 2016
- Your agreement that the FilmPatch Platform is provided “as is” and without warranty (Section 17).
- Your agreement that FilmPatch has significant limitations on liability regarding theFilmPatch Platform (Section 18).
- Your acknowledgment and agreement that FilmPatch does not supervise, direct or control a Service Provider’s work or Requests in any manner (Section 1) and FilmPatch has no liability regarding the performance of Requests.
- Your consent to release FilmPatch from liability based on claims between Users (Section 2) and generally (Section 18).
- Your agreement to indemnify FilmPatch from claims due to your use or inability to use the FilmPatch Platform or content submitted from your account to the FilmPatch Platform (Section 19).
- Your consent that no claims can be adjudicated on a class basis (Section 20).
1. FilmPatch Platform Connects Service Providers and Clients
The FilmPatch Platform is a web-based communications platform that enables connection between Clients and Service Providers. “Clients” are individuals and/or businesses seeking to obtain project services (“Requests”) from Service Providers and are therefore clients of Service Providers, and “Service Providers” are individuals and/or businesses seeking to performRequests for Clients. Both Clients and Service Providers together are hereinafter referred to as “Users.” If you agree on the terms of a Request with another User, you and such other User form a Service Agreement directly between the two of you as set forth in more detail in Section 3 below.
FILMPATCH DOES NOT PERFORM REQUESTS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM REQUESTS. FILMPATCH DOES NOT SUPERVISE, DIRECT OR CONTROL A SERVICE PROVIDER’S WORK OR THE REQUESTS IN ANY MANNER, WHICH SERVICE PROVIDER AND CLIENT HEREBY ACKNOWLEDGE.
The FilmPatch Platform only enables connections between Users for the fulfillment of Requests. FilmPatch is not responsible for the performance of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Requests, Service Providers, Clients, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users. FilmPatch makes no representations about the suitability, reliability, timeliness, quality, or accuracy of the Requests requested and services provided by Users identified through the FilmPatch Platform whether in public, private, or offline interactions.
2. User Vetting
Users may be subject to a vetting process before they can register for and during their use of the FilmPatch Platform, including but not limited to a verification of identity and a comprehensive criminal background check, at the Country, State and local level, using third-party services as appropriate. Users hereby give consent to FilmPatch to conduct background checks as often as required in compliance with federal and state laws, including, without limitation, the Fair Credit Reporting Act.
Although FilmPatch may perform background checks of Users, as outlined above, FilmPatch has no obligation to perform such checks and cannot confirm that each User is who they claim to be and therefore, FilmPatch cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the FilmPatch Platform. If any background checks are performed, such checks will be for very limited purposes and solely for specific issues related to and for the sole benefit of, FilmPatch, LLC. No User may rely on this process. All Users are hereby expressly urged to perform their own respective background check.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you do not know.
NEITHER FILMPATCH NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE FILMPATCH PLATFORM, AND YOU HEREBY RELEASE FILMPATCH AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELATED THERETO. FILMPATCH AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE FILMPATCH PLATFORM.
3. Arrangement between Clients and Service Providers
Where approved in advance by the Client, the Service Provider is not obligated to personally perform the Request services. Before any Request services are performed by any assistants, helpers, subcontractors or other personnel engaged by the Service Provider, the Service Provider shall require any such individuals to become registered Service Providers on the FilmPatch Platform. The Service Provider assumes full and sole responsibility for the payment of all compensation, benefits and expenses of helpers, assistants, subcontractors and/or other personnel, if any, and for all required and applicable state and federal income tax withholdings as to the Service Provider and all persons engaged by the Service Provider in the performance of the Request services.
The Client shall pay for completed Request services through the PSP (as defined below in Section 4) as indicated on the FilmPatch Platform at the rates agreed to before the Request is completed. Such rates shall be negotiated between the Client and Service Provider and shall be agreed upon before the Service Provider begins work on the Request. Both parties agree to notify FilmPatch of any disputes prior to negotiation of or filing of any claims.
4. Billing and Payment
Users of the FilmPatch Platform arrange for Requests directly with other Users. FilmPatch will not be a party to any arrangements, agreements or contracts for Requests or services. Payment for Request services through the FilmPatch Platform is made directly from the Client to the Service Provider and not by FilmPatch.
Users of the FilmPatch Platform will be required to provide their credit card or bank account details to FilmPatch and the Payment Service Provider retained by FilmPatch (the “PSP”). Clients will be responsible for paying the invoice for each Request (the “Invoice”), which will include (i) the pricing terms of the Request agreed with and provided by a Service Provider (“Request Payment”), (ii) any out-of-pocket expenses agreed with and submitted by a ServiceProvider in connection with the Request, (iii) any tip or gratuity, if applicable, and (iv) the service charge FilmPatch assesses for the FilmPatch Platform variable based on the Request Payment amount (“Service Charge”). The Service Charge typically is 20% of the Request Payment amount, but FilmPatch reserves the right, in its sole discretion, to change the Service Charge at any time.
When Client receives confirmation through the FilmPatch Platform or via email that a Request has been completed, Client automatically authorizes FilmPatch to provide Client’s payment details to the PSP for processing of Request Payment, out-of-pocket expenses owed to the Service Provider, and the Service Charge owed to FilmPatch for the use of the FilmPatch Platform. Client may be charged a cancellation fee through the PSP if Client books a Request but cancels it before it is completed, as set forth in the Request pricing terms [Note that FilmPatch website should have a place where Request terms are laid out].
Any payments owed to and paid to FilmPatch, including but not limited to the Service Charge, are final and non-refundable, unless otherwise determined by FilmPatch in its sole and absolute discretion. [Revise / insert other refund policies as necessary]
FilmPatch reserves the right, in its sole discretion (but not the obligation), upon request from Client or Service Provider or upon notice of any potential fraud, unauthorized charges or other misuse of the FilmPatch Platform, to (i) place on hold any Request Payment and out-of-pocket expenses, or (ii) refund, provide credits or arrange for the PSP to do so.
Request Payment and fees must be paid through the PSP as indicated on the FilmPatch Platform.
The FilmPatch Platform is only a venue for connecting Users. Because FilmPatch is not involved in the actual contact between Users or in the completion of the Request, in the event that you have a dispute with one or more Users, you release FilmPatch and its affiliates (and the irrespective members, officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
FILMPATCH EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS FILMPATCH PLATFORM. TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
7. Public Areas; Acceptable Use
The FilmPatch Platform may contain profiles, email systems, blogs, message boards, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and material that are relevant and proper to the applicable forum. For the safety and integrity of the FilmPatch Platform, you may not share your personal contact information with other Users.
Without limitation, while using the FilmPatch Platform, you may not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including FilmPatch staff, or use information learned from the FilmPatch Platform or during the performance of Requests to otherwise defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of any other User or FilmPatch staff outside of the FilmPatch Platform.
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information.
- Use the FilmPatch Platform for any purpose, including, but not limited to posting or completing a Request, in violation of local, state, national, or international law.
- Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
- Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer.
- Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
- Advertise or offer to sell any goods or services for any commercial purpose through the FilmPatch Platform which are not relevant to the Request services offered through the FilmPatch Platform.
- Post or complete a Request requiring a User to engage in harmful or illegal activity.
- Conduct or forward surveys, contests, pyramid schemes, or chain letters.
- Impersonate another person or a User or allow any other person or entity to use your identification to post or view comments.
- Post the same Request repeatedly (“Spamming”). Spamming is strictly prohibited.
- Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the FilmPatch Platform.
- Restrict or inhibit any other User from using and enjoying the Public Areas.
- Imply or state that any statements you make are endorsed by FilmPatch, without the prior written consent of FilmPatch.
- Use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the FilmPatch Platform in any manner.
- Hack or interfere with the FilmPatch Platform, its servers or any connected networks.
- Adapt, alter, license, sublicense or translate the FilmPatch Platform for your own personal or commercial use.
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by FilmPatch.
- Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
- Upload content that provides materials or access to materials that exploit people under the age of eighteen (18) in an abusive, violent or sexual manner.
- Use the FilmPatch Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the FilmPatch Platform as set forth herein.
- Use the FilmPatch Platform to collect usernames and or/email addresses of Users by electronic or other means.
- Use the FilmPatch Platform in a manner which is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining FilmPatch’s trade secret information for public disclosure or other purposes.
- Attempt to circumvent the payments system or service fees in anyway including, but not limited to, processing payments outside of the platform, including inaccurate information on invoices, or otherwise invoicing in a fraudulent manner;
- Register under different usernames or identities, after your account has been suspended or terminated or register under multiple usernames or identities.
- Cause any third party to engage in the restricted activities above.
You understand that all submissions made to Public Areas will be public and that you may be publicly identified by your name or login identification when communicating in Public Areas, and FilmPatch will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
8. Termination and Suspension
If FilmPatch terminates or suspends your right to use the FilmPatch Platform as a Client for a User Breach, you will not be entitled to any refund of unused balance in your account, and you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, FilmPatch reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
FilmPatch reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the FilmPatch Platform at its sole discretion. Except for refundable fees you have advanced to FilmPatch (if any), FilmPatch is not liable to you for any modification or discontinuance of all or any portion of the FilmPatch Platform. Notwithstanding anything to contrary in this Section 8, FilmPatch has the right to restrict anyone from completing registration as a Service Provider if FilmPatch believes such person may threaten the safety and integrity of the FilmPatch Platform, or if, in FilmPatch’s discretion, such restriction is necessary to address any other reasonable business concern, or for any other reason.
9. Account, Password, Security
You must register with FilmPatch and create an account to use various features of the FilmPatch Platform. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password and account number provided by you or FilmPatch for accessing the FilmPatch Platform. You are solely and fully responsible for all activities that occur under your password or account. FilmPatch has no control over the use of any User’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you will contact FilmPatch immediately.
10. Your Information and Likeness
“Your Information” is defined as any information and materials you provide to FilmPatch or other Users in connection with your registration for and use of the FilmPatch Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for Your Information, and we act merely as a passive conduit for your online distribution and publication of Your Information. The information and materials described in this Section, as provided by each User, is collectively referred to herein as “User Generated Content.”
You hereby represent and warrant to FilmPatch that Your Information (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain child pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for FilmPatch or cause FilmPatch to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
The FilmPatch Platform hosts User Generated Content relating to reviews and ratings of specific Service Providers (“Feedback”). Such Feedback is such User’s opinion and not the opinion of FilmPatch, has not been verified or approved by FilmPatch and each Client should undertake their own research to be satisfied that a specific Service Provider is the right person for a Request. You agree that FilmPatch is not liable for any Feedback or other User Generated Content. FilmPatch encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. FilmPatch does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that FilmPatch do so.
You hereby grant FilmPatch a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in Your Information, in any media now known or not currently known in order to perform and improve upon the FilmPatch Platform.
Each Service Provider hereby waives all rights and releases FilmPatch from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such Service Provider’s identity, likeness or voice in connection with the FilmPatch Platform.
Each Service Provider acknowledges that FilmPatch shall not owe any financial or other remuneration for using the recordings provided hereunder by such Service Provider, either for initial or subsequent transmission or playback, and further acknowledges that FilmPatch is not responsible for any expense or liability incurred as a result of such Service Provider’s recordings or participation in any recordings, including any loss of such recording data.
11. Links to Other Websites
The FilmPatch Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute the endorsement by FilmPatch of those sites or their content. They are provided as an information service, for reference and convenience only. FilmPatch does not control any such websites, and is not responsible for their (1) availability or accuracy, or (2) content, advertising, or products or services. The existence of links on the FilmPatch Platform to such websites (including without limitation external websites that are framed by the FilmPatch Platform as well as any advertisements displayed in connection therewith) does not mean that FilmPatch endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites.
12. Worker Classification and Withholdings
AS SET FORTH IN SECTION 1, FILMPATCH DOES NOT PERFORM REQUESTS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM REQUESTS.
Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines. Users do not have authority to enter into any written or oral—whether implied or express— agreements, arrangements or contracts on behalf of FilmPatch. Each User acknowledges that FilmPatch does not, in any way, supervise, direct, or control a Service Provider’s work or Requests performed in any manner. FilmPatch does not set a Service Provider’s work hours or location of work. FilmPatch will not provide any equipment, labor or materials needed for a particular Request. FilmPatch does not provide any supervision to Users.
The FilmPatch Platform is not an employment service and FilmPatch is not an employer of any User. As such, FilmPatch is not responsible for and will not be liable for any tax payments or withholding, including but not limited to unemployment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with your use of Users’ Request services.
Client agrees to indemnify, hold harmless and defend FilmPatch from any and all claims that a Service Provider who performed a Request for that Client was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that such Service Provider was misclassified as an employee (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that FilmPatch was an employer or joint employer of such Service Provider, any claims under any applicable employment-related laws, such as, without limitation, those relating to employment termination, employment discrimination, harassment or retaliation, as well as, without limitation, any claims for unpaid wages, withholdings, overtime pay, failure to provide meal and rest breaks, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits.
13. Client and Service Provider Exclusivity Agreement
14. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the FilmPatch Platform is owned by FilmPatch, excluding User Generated Content that FilmPatch has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. FilmPatch owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the FilmPatch Platform without FilmPatch’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of FilmPatch and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of FilmPatch, including without limitation FilmPatch and FilmPatch logos are service marks owned by FilmPatch. Any other trademarks, service marks, logos and/or trade names appearing via the FilmPatch Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
15. Copyright Complaints and Copyright Agent
FilmPatch respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the FilmPatch Platform infringe upon your copyright or other intellectual property right, please send the following information to FilmPatch’s Copyright Agent at: FilmPatch, LLC, 4947 Marathon St., Los Angeles, California 90029 or admin@FilmPatch.com:
- A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the FilmPatch Platform where the material you claim is infringed is located. Include enough information to allow FilmPatch to locate the material, and explain why you think an infringement has taken place;
- A description of the location where the original or an authorized copy of the copyrighted work exists — for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
- Your address, telephone number, and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
16. Confidential Information
The term “Confidential Information” shall mean any and all of FilmPatch’s trade secrets, confidential and proprietary information and all other information and data of FilmPatch that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical, financial, strategic and other proprietary and confidential information relating to FilmPatch’s business, operations and properties, including information about FilmPatch’s Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
17. Disclaimer of Warranties
USE OF THE SITE AND FILMPATCH PLATFORM ARE ENTIRELY AT YOUR OWN RISK.
THE FILMPATCH PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FILMPATCH MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE FILMPATCH PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE FILMPATCH PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE FILMPATCH PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. FILMPATCH DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE OFFERED BY A SERVICE PROVIDER THROUGH THE FILMPATCH PLATFORM, ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE FILMPATCH PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND FILMPATCH WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
WITHOUT LIMITING THE FOREGOING, NEITHER FILMPATCH NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE FILMPATCH PLATFORM WILL BE UNINTERRUPTED OR THAT THE FILMPATCH PLATFORM WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE FILMPATCH PLATFORM, OR AS TO THE TIMELINESS, QUALITY, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY REQUEST OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE FILMPATCH PLATFORM. NEITHER FILMPATCH NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER.
NEITHER FILMPATCH NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE FILMPATCH PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.
FILMPATCH AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS. IN ADDITION, NOTWITHSTANDING ANY FEATURE A CLIENT MAY USE TO EXPEDITE FILMPATCH SELECTION, EACH CLIENT IS RESPONSIBLE FOR DETERMINING THE REQUEST AND SELECTING THEIR SERVICE PROVIDER AND FILMPATCH DOES NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A CLIENT AND DOES NOT RECOMMEND ANY PARTICULAR SERVICE PROVIDER. FILMPATCH DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY SERVICE PROVIDER’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
18. No Liability
YOU ACKNOWLEDGE AND AGREE THAT FILMPATCH IS ONLY WILLING TO PROVIDE THE FILMPATCH PLATFORM IF YOU AGREE TO LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD FILMPATCH, ITS MEMBERS, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE FILMPATCH PLATFORM (OTHER THAN IN THE CASE OF INTENTIONAL MISCONDUCT BY THE PARTY YOU MIGHT SEEK TO HOLD LIABLE), INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY FILMPATCH OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION.
UNDER NO CIRCUMSTANCES WILL FILMPATCH, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE FILMPATCH PLATFORM OR THE REQUEST SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
FILMPATCH DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE FILMPATCH PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT FILMPATCH OR ITS PARTNERS IN PROMOTIONS, AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED $1,000.
20. Dispute Resolution
ARBITRATION AGREEMENT; CLASS WAIVER; WAIVER OF TRIAL BY JURY. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH FILMPATCH, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
- Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected as provided above, the arbitration shall be conducted by telephone, online, and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
- Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/aaa/ShowPDF?doc=ADRSTG0 04175 and a separate form for California residents at www.adr.org/aaa/ShowPDF?doc= ADRSTG015822). The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
- Arbitration Location. Unless you and FilmPatch otherwise agree, the arbitration will be conducted in Los Angeles County, California.
- Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
- Waiver of Jury Trial. YOU AND FILMPATCH HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and FilmPatch in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND FILMPATCH WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Confidentiality. No part of the procedures shall be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order or unless required by law. Notwithstanding the foregoing, no party shall be prevented from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Small Claims Court. Notwithstanding the foregoing, either you or FilmPatch may bring an individual action in small claims court.
- m. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in Los Angeles County, California, for such purpose.
- Survival. This Arbitration Agreement will survive the termination of your relationship with FilmPatch.
FORUM AND VENUE.
21. Governing Law
FilmPatch controls and operates the FilmPatch Platform from its principal place of business in the United States of America, and the FilmPatch Platform is hosted in the United States. If you are a User visiting the United States from the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure that differ from United States laws, please be advised that through your continued use of the FilmPatch Platform, which is governed by U.S. law, you are transferring your personal information to the United States and you consent to that transfer.
22. No Agency
23. General Provisions
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