Effective: August 31, 2007
WhereverTV is an online service that allows our members to set up individual program guides that can be linked together through networks of friends. The services offered by WhereverTV, Inc. (“WhereverTV” or “we”) include the WhereverTV website (the “WhereverTV Website”), the WhereverTV widget, the WhereverTV Internet messaging service, and any other features, content, or applications offered from time to time by WhereverTV in connection with the WhereverTV Website (collectively, the “WhereverTV Services”). The WhereverTV Services are hosted in the United States of America.
WhereverTV may modify this Agreement from time to time and such modification shall be effective upon posting by WhereverTV on the WhereverTV Website. You agree to be bound to any changes to this Agreement when you use the WhereverTV Services after any such modification is posted. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.
Please choose carefully the information you post on WhereverTV and that you provide to other Users. Your WhereverTV profile may not include the following items: telephone numbers, street addresses, and any photographs containing nudity, or obscene, lewd, excessively violent, harassing, sexually explicit or otherwise objectionable subject matter. Despite this prohibition, information provided by other WhereverTV Members (for instance, in their Profile) may contain inaccurate, inappropriate, offensive or sexually explicit material, products or services, and WhereverTV assumes no responsibility or liability for this material. If you become aware of misuse of the WhereverTV Services by any person, please contact WhereverTV.
WhereverTV reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages, videos, or links to videos) by you, or to restrict, suspend, or terminate your access to all or any part of the WhereverTV Services at any time, for any or no reason, with or without prior notice, and without liability. WhereverTV expressly reserves the right to remove your profile and/or restrict, suspend, or terminate your access to any part of WhereverTV Services if WhereverTV determines, in its sole discretion, that you pose a threat to WhereverTV and/or its Users.
Use of and Membership in the WhereverTV Services is void where prohibited. Byusing the WhereverTV Services, you represent and warrant that:
- All registration information you submit is truthful and accurate
- You will maintain the accuracy of such information
- You are 18 years of age or older
- Your use of the WhereverTV Services does not violate any applicable law or regulation
Your profile may be deleted and your Membership may be terminated without warning, if we believe that you are less than 18 years of age.
This Agreement shall remain in full force and effect while you use the WhereverTV Services or are a Member. You may terminate your Membership at any time, for any reason, by following the instructions on the Member’s Account Settings page. WhereverTV may terminate your Membership at any time, without warning. Even after Membership is terminated, this Agreement will remain in effect, including sections 5-17.
3.- Fee-Based Service Charges.
Some of the Content on the WhereverTV Website is available on a recurring subscriber fee basis (i.e., all packages are set for automatic recurring renewal); the timeframe of the recurring billing period will be selected upon signup to the service. These services are sometimes referred to herein as the “Fee-Based Services” or “Subscription Services” or “Channel Packages”. Payment of a recurring subscription fee entitles you to watch the applicable channel(s)/package during the applicable billing period, according to the plan selected and paid for.
- General Terms.
- Using a valid credit card that WhereverTV accepts, you agree to pay the subscription plan and/or download charges set forth on the WhereverTV website or mobile apps, applicable taxes, and any other charges that may be incurred on your account in order to access these services. WhereverTV reserves the right to increase fees, surcharges, and site subscription fees, or to institute new fees at any time, upon reasonable notice posted in advance on the WhereverTV Website or mobile apps. WhereverTV will automatically charge your account for renewal of your recurring subscription services. The renewal charge will be according to the base price currently advertised on site unless your subscription terms state otherwise. In the event WhereverTV cannot charge your account, we reserve the right to terminate your access to all Fee-Based Services.
- In addition to the charges set forth above, you are responsible for all charges associated with connecting to WhereverTV Services, including (but) without limitation (to) all telephone and Internet access lines (including long-distance and data charges, when applicable), telephone and computer equipment and any other third-party service fees necessary to access the Fee-Based Services.
- WhereverTV will charge additional taxes, according to the regulations governing the laws of the State of Florida. Any taxes that are required will be added to the subscription price and will be explicitly mentioned prior to the charge.
- Free Trial Period. WhereverTV may, from time to time and at its sole discretion, offer a free trial period (“Free Trial”). The length of the Free Trial will be decided by WhereverTV and will be published on the Site so that all knows it. During the Free Trial you will have access to certain channels, which shall be made available at WhereverTV own discretion, free of charge, subject to the following:
- You agree to submit WhereverTV your valid email address, and any other personal information requested for this purpose. The Free Trial will commence on the day and time you have submitted WhereverTV with the aforesaid information (“Commencement Date”).
- You agree that upon completion of the Free Trial WhereverTV shall automatically activate your account and charge your credit card on file for the first month’s service (or for a longer period if you selected 6-month or 12-month at the time you registered for your Free Trial).
- To cancel a Free Trial, you must email firstname.lastname@example.org and include your order #, name and complete address. For account security reasons, WhereverTV will not accept verbal account cancellation requests.
- WhereverTV grants you one (1) Free Trial in order to test the streaming quality and the content that you will receive when viewing the Service in your home environment.
- Only one Free Trial per household. If you are caught attempting to register for more than one Free Trial or successive Free Trials, you WhereverTV account could be suspended.
- Your use of the Free Trial is also given to assess the streaming quality that will be available when using a ConnectedTV or streaming media player (i.e. GoogleTV, Android or iOS app). The streaming quality received on a PC is the same streaming quality received when viewing on a ConnectedTV or mobile device.
- Subscription Services.
- WhereverTV Subscription Services are available at different prices, as presented on our website, and are updated from time to time. We reserve the right to change those prices at any time. In any event, whatever the price, it will always be clearly marked on the subscription page for the channel/package/downloadable content and clearly marked when you enter your credit card information.
- A valid credit card is required to pay for the subscription services. Fees will be charged only after you submit credit card information to us.
- Once you subscribe to our channel(s)/package, we will bill your credit card account on the same date at the beginning of each new billing cycle (the “Payment Date”). For example, if you subscribe for a monthly subscription that commences on August 18, we will bill your credit card on August 18 and again on September 18 and again on October 18, etc. If the date on which you subscribed does not exist in certain future months/years, for instance, if you subscribe on January 31, we will bill your credit card on the closest available day in months that do not have 31 days. For example, we would bill your credit card February 28, April 30, etc. in months that do not have 31 days.
- Once you subscribe to a particular channel/package, you are not limited to watching it on one device (ConnectedTV or PC), but you are limited to watching it on one device at a time. We do, however, reserve the right to change that policy at any time and from time-to-time.
- Subscriptions are set to automatic recurring charges so that service is not interrupted. YOU WILL CONTINUE TO BE CHARGED FOR THE SUBSCRIPTION WITH EACH RENEWED BILLING CYCLE UNTIL YOU REQUEST TO STOP THE SUBSCRIPTION (or until we decide to stop, whichever comes first).
- Cancelling Subscription Services.
- To cancel your subscription, you cancel by going under user profile and follow the instructions to cancel subscription or request to cancel by contacting our Customer Support department VIA EMAIL ONLY at email@example.com. For account security reasons, we do NOT accept cancellations on the phone.
- Plans require 5 days’ notice before the cancellation becomes effective.
- Please note that once you cancel your subscription, it will not actually cancel or expire until your next billing cycle. WhereverTV will not provide you with a refund for the current cycle. Once we have charged you for a billing cycle, this cycle cannot be cancelled and you will have access to the subscription for the full duration of this cycle. In cases where your request for cancellation is within 5 days of the end of a monthly billing cycle, you will be charged an additional month and your effective cancellation date will be in the following month.
- Because we offer discounted rates for multiple-month packages, when a multiple-month (i.e. 6-month or 12-month) subscription is cancelled, the subscription will be cancelled at the end of the current billing term, according to the date of subscription. For example, if a 12-month subscription was purchased on the 10th of March & is cancelled on the 25th of June, it will be closed at the end of that subscription period which is the 9th of March the following year. In cases where your request for cancellation is within 14 days of the end of your current multiple-month billing cycle, you will be charged an additional month and your effective cancellation date will be in the following month. Refunds are not issued for multiple-month prepaid plans.
When you sign up to become a Member, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another Member at any time or to disclose your password to any third party. You agree to notify WhereverTV immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account.
5.- Non-commercial Use by Members.
The WhereverTV Services are for the personal use of Members only and may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by WhereverTV. Illegal and/or unauthorized use of the WhereverTV Services, including collecting usernames and/or email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the WhereverTV Website is prohibited. Commercial advertisements, affiliate links, and other forms of solicitation may be removed from Member profiles without notice and may result in termination of Membership privileges. Appropriate legal action will be taken for any illegal or unauthorized use of the WhereverTV Services.
6.- Proprietary Rights in Content on WhereverTV.
- WhereverTV does not claim any ownership rights in the text, files, videos, sounds, musical works, works of authorship, or any other materials (collectively, “Content”) that you post to the WhereverTV Services. After posting your Content to the WhereverTV Services, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose. By displaying, linking, or publishing (“posting”) any Content on or through the WhereverTV Services, you hereby grant to WhereverTV a limited license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content solely on and through the WhereverTV Services. Without this license, WhereverTV would be unable to provide the WhereverTV Services. For example, without the right to modify Member Content, WhereverTV would not be able to digitally compress video files that Members submit or otherwise format Content to satisfy technical requirements, and without the right to publicly perform Member Content, WhereverTV could not allow Users to watch videos posted by Members. The license you grant to WhereverTV is non-exclusive (meaning you are free to license your Content to anyone else in addition to WhereverTV), fully-paid and royalty-free (meaning that WhereverTV is not required to pay you for the use on the WhereverTV Services of the Content that you post), sub-licensable (so that WhereverTV is able to use its affiliates and subcontractors such as Internet content delivery networks to provide the WhereverTV Services), and worldwide (because the Internet and the WhereverTV Services are global in reach). This license will terminate at the time you remove your Content from the WhereverTV Services. The license does not grant WhereverTV the right to sell your Content, nor does the license grant WhereverTV the right to distribute your Content outside of the WhereverTV Services.
- You represent and warrant that:
- You own the Content posted by you on or through the WhereverTV Services or otherwise have the right to grant the license set forth in this section
- The posting of your Content on or through the WhereverTV Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any Content posted by you to or through the WhereverTV Services.
- The WhereverTV Services contain Content of WhereverTV (“WhereverTV Content”). WhereverTV Content is protected by copyright, trademark, patent, trade secret and other laws, and WhereverTV owns and retains all rights in the WhereverTV Content and the WhereverTV Services. WhereverTV hereby grants you a limited, revocable, non-sub-licensable license to reproduce and display the WhereverTV Content (excluding any software code) solely for your personal use in connection with viewing the WhereverTV Website and using the WhereverTV Services.
- The WhereverTV Services contain Content of Users and other WhereverTV licensors. Except for Content posted by you, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the WhereverTV Services.
7.- Content Posted.
- WhereverTV may delete any Content that in the sole judgment of WhereverTV violates this Agreement or which may be offensive, illegal or violate the rights, harm, or threaten the safety of any person. WhereverTV assumes no responsibility for monitoring the WhereverTV Services for inappropriate Content or conduct. If at any time WhereverTV chooses, in its sole discretion, to monitor the WhereverTV Services, WhereverTV nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
- You are solely responsible for the Content that you post on or through any of the WhereverTV Services, and any material or information that you transmit to other Members and for your interactions with other Users. WhereverTV does not endorse and has no control over the Content. Content is not necessarily reviewed by WhereverTV prior to posting and does not necessarily reflect the opinions or policies of WhereverTV. WhereverTV makes no warranties, express or implied, as to the Content or to the accuracy and reliability of the Content or any material or information that you transmit to other Members.
8.- Content/Activity Prohibited.
The following is a partial list of the kind of Content that is illegal or prohibited to post on or through the WhereverTV Services. WhereverTV reserves the right to investigate and take appropriate legal action against anyone who, in WhereverTV’s sole discretion, violates this provision, including without limitation, removing the offending communication from the WhereverTV Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to Content that, in the sole discretion of WhereverTV:
- Is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- Harasses or advocates harassment of another person;
- Exploits people in a sexual or violent manner;
- Contains violence or offensive subject matter;
- Solicits personal information from anyone under 18;
- Provides any telephone numbers, street addresses, last names, URLs or email addresses;
- Promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
- Promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated video or links to pirated video files;
- Involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, or “spamming”;
- Contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
- Furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, terrorism, violating someone’s privacy, or providing or creating computer viruses;
- Solicits passwords or personal identifying information for commercial or unlawful purposes from other Users;
- Involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
- Includes a video of another person that you have posted without that person’s consent; or, uses sexually suggestive imagery or any other unfair, misleading or deceptive Content intended to draw traffic to the profile.
The following is a partial list of the kind of activity that is illegal or prohibited on the WhereverTV Website and through your use of the WhereverTV Services. WhereverTV reserves the right to investigate and take appropriate legal action against anyone who, in WhereverTV’s sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to:
- Criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
- Advertising to, or solicitation of, any Member to buy or sell any products or services through the WhereverTV Services. You may not transmit any chain letters or junk email to other Members. It is also a violation of these rules to use any information obtained from the WhereverTV Services in order to contact, advertise to, solicit, or sell to any Member without their prior explicit consent. In order to protect our Members from such advertising or solicitation, WhereverTV reserves the right to restrict the number of emails which a Member may send to other Members in any 24-hour period to a number which WhereverTV deems appropriate in its sole discretion. If you breach this Agreement and send unsolicited bulk email, instant messages or other unsolicited communications of any kind through the WhereverTV Services, you acknowledge that you will have caused substantial harm to WhereverTV, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay WhereverTV $50 for each such unsolicited email or other unsolicited communication you send through the WhereverTV Services;
- Covering or obscuring the banner advertisements on your personal profile page, or any WhereverTV page via HTML/CSS or any other means;
- Any automated use of the system, such as using scripts to add friends or send comments or messages;
- Interfering with, disrupting, or creating an undue burden on the WhereverTV Services or the networks or services connected to the WhereverTV Services;
- Attempting to impersonate another Member or person;
- Using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account;
- Selling or otherwise transferring your profile;
- Using any information obtained from the WhereverTV Services in order to harass, abuse, or harm another person;
- Displaying an advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity on or through the WhereverTV Services on behalf of that person, such as placing commercial content on your profile, posting blogs or bulletins with a commercial purpose, selecting a profile with a commercial purpose, or sending private messages with a commercial purpose;
- Using the WhereverTV Services in a manner inconsistent with any and all applicable laws and regulations.
9.- Copyright Policy.
You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of WhereverTV to terminate Membership privileges of any Member who repeatedly infringes the copyright rights of others upon receipt of proper notification to WhereverTV by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the WhereverTV Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the WhereverTV Services;
- Your address, telephone number, and email address;
- A written 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 above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. WhereverTV’s Copyright Agent for notice of claims of copyright infringement can be reached as follows:Copyright Agent
WhereverTV Broadcasting Corporation.
11390 Palm Beach Blvd Fort Myers, Florida 33905
10.- Member Disputes.
You are solely responsible for your interactions with other WhereverTV Members. WhereverTV reserves the right, but has no obligation, to monitor disputes between you and other Members.
WhereverTV is not responsible for any incorrect or inaccurate Content posted on the WhereverTV Website or in connection with the WhereverTV Services, whether caused by Users of the WhereverTV Services or by any of the equipment or programming associated with or utilized in the WhereverTV Services. Profiles created and posted by Members on the WhereverTV Website may contain links to other websites. WhereverTV is not responsible for the Content, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored or checked for accuracy or completeness by WhereverTV. Inclusion of any linked website on the WhereverTV Services does not imply approval or endorsement of the linked website by WhereverTV.
When you access these third-party sites, you do so at your own risk. WhereverTV takes no responsibility for third party advertisements which are posted on this M WhereverTV Website or through the WhereverTV Services, nor does it take any responsibility for the goods or services provided by its advertisers. WhereverTV is not responsible for the conduct, whether online or offline, of any User of the WhereverTV Services. WhereverTV assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or Member communication. WhereverTV is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the WhereverTV Services or combination thereof, including any injury or damage to Users or to any person’s computer related to or resulting from participation or downloading materials in connection with the WhereverTV Services.
Under no circumstances shall WhereverTV be responsible for any loss or damage, including personal injury or death, resulting from use of the WhereverTV Services, attendance at a WhereverTV event, from any Content posted on or through the WhereverTV Services, or from the conduct of any Users of the WhereverTV Services, whether online or offline. The WhereverTV Services are provided “AS-IS” and as available and WhereverTV expressly disclaims any warranty of fitness for a particular purpose or non-infringement. WhereverTV cannot guarantee and does not promise any specific results from use of the WhereverTV Services.
13.- Limitation on Liability.
IN NO EVENT SHALL WHEREVERTV BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF WHEREVERTV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, WHEREVERTV’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO WHEREVERTV FOR THE WHEREVERTV SERVICES DURING THE TERM OF MEMBERSHIP.
14.- U.S. Export Controls.
Software available in connection with the WhereverTV Services (the “Software”) is further subject to United States export controls. No Software may be downloaded from the WhereverTV Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
If there is any dispute about or involving the WhereverTV Services, you agree that the dispute shall be governed by the laws of the Commonwealth of Pennsylvania, USA, without regard to conflict of law provisions and you agree to exclusive personal jurisdiction and venue in the state and federal courts of the United States located in Fort Myers, Florida. Either WhereverTV or you may demand that any dispute between WhereverTV and you about or involving the WhereverTV Services must be settled by arbitration utilizing the dispute resolution procedures of the American Arbitration Association (AAA) in Fort Myers, Florida USA, provided that the foregoing shall not prevent WhereverTV from seeking injunctive relief in a court of competent jurisdiction.
You agree to indemnify and hold WhereverTV, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the WhereverTV Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above and/or if any Content that you post on the WhereverTV Website or through the WhereverTV Services causes WhereverTV to be liable to another.
This Agreement is accepted upon your use of the WhereverTV Website or any of the WhereverTV Services and is further affirmed by you becoming a Member. This Agreement constitutes the entire agreement between you and WhereverTV regarding the use of the WhereverTV Services. The failure of WhereverTV to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. WhereverTV is a trademark of WhereverTV, Inc. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.