Effective Date: February 9, 2229
Welcome to the network of interactive and premium content services provided by Mooncast Enterprises, its affiliates or its subsidiaries (collectively “Mooncast Enterprises,” “us,” or “we”). These Terms of Use (“Terms”), including the “Dispute Resolution; Arbitration Agreement” provisions in Section 1 below, govern your use of our websites, applications, and other products or services that include an authorized link to these Terms (collectively, the “Services”).
Please review these Terms carefully before using the Services because they affect your rights. By using any of the Services, you accept these Terms and agree to be legally bound by them. Please consult our Privacy Policy for information regarding our privacy practices.
Certain Services are provided to you free of charge, while other Services require payment before you can access them. If you choose to subscribe to a fee-based Service, please also review such Service’s subscription terms (see Section 7 below). Note that these Terms shall not apply to the use of Services by subscribers who signed up for them in regions where different terms apply.
These Terms are effective as of the Effective Date above or, if required by law, 30 days after notice to you. If you have not reviewed the Terms of Use applicable to a Service since the Effective Date, please review these updated Terms carefully before using any Service. If you do not agree with these Terms, your sole remedy is to not use our Services, and you may receive a pro-rated refund for any of your pre-paid fees for our Services you do not use by contacting us at refunds@mooncast.enterprises within 30 days of the Effective Date.
We may change these Terms in the future, so we encourage you to review periodically the Terms of Use applicable to each Service you use. The most current version of the applicable Terms of Use (along with its effective date) will be posted on each of the Services. Changes to these Terms will be effective immediately or, if required by law, 30 days after notice to you, which may be given by posting the updated Terms on our Services or by email. If you continue to use the Services after we change these Terms, you accept all changes.
IF YOU OR WE HAVE ANY DISPUTE WITH OR CLAIM AGAINST THE OTHER (A “CLAIM”) ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES OR THESE TERMS, AND THE CLAIM IS NOT RESOLVED BY CALLING OUR CUSTOMER SERVICE DEPARTMENT AT (888) 274-5343 AND BY FOLLOWING THE INFORMAL DISPUTE RESOLUTION PROCEDURE SET FORTH BELOW, YOU AND WE EACH AGREE TO RESOLVE SUCH DISPUTES THROUGH AN INDIVIDUAL BINDING ARBITRATION OR AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT. Class arbitrations and class actions are not permitted, and a Claim may not be consolidated with any other person’s claim. You and we agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and we are each waiving the right to a trial by jury or to participate in a class action. You and we agree that any arbitrations between you and us will be subject to this Section 1 and not to any prior arbitration agreement you had with us. This Section 1 shall survive termination of these Terms or any subscription that you may have to any of the Services.
1.1 Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure
Before a party commences an arbitration or files a small claims court action with respect to a Claim, the party must first send to the other a written notice of dispute (“Notice”). A Notice from you to us must (1) be sent by certified mail; (2) be addressed to: Mooncast Enterprises, 123 Galactic Way, New Metropolis, Americaland, Attn: Legal Department (the “Notice Address”); (3) contain your name, address, and email address; (4) describe the nature and basis of your Claim; (5) if you are submitting the Notice, include any relevant facts regarding your use of the Services, including without limitation whether you have created an account; (6) specify the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation of them; and (7) include a personally signed statement from you (and not your counsel) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person’s dispute.
After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the dispute for a period of 60 days (which can be extended by agreement). You and we agree that, after receipt of the completed Notice, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually-convenient time and to seek to reach a resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).
Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this Section 1.1. All of the requirements of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure are essential so that you and we have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure. If the arbitration is already pending prior to the completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure, the arbitration shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure in arbitration.
1.2 Arbitration Procedure
Any such arbitration shall be governed by the rules of Mooncast Enterprises and will be administered by in-house Mooncast Enterprises lawyers. The rules are available by contacting us at the Notice Address. You and we agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedure requirements referenced in Section 1.1 and that they are a party to the Arbitration Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented).
All issues, including the scope and enforceability of this Arbitration Agreement, are for the arbitrator to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s decision is binding only between you and us and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
As in court, you and we agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions under the applicable rules, Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.
Except as expressly provided in this Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys’ fees and costs, in accordance with applicable law. Unless otherwise provided by applicable law, the parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator awards sanctions or finds that either the substance of the claim, the defense, or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
The payment of arbitration fees (the fees imposed by the arbitration administrator including filing, arbitrator, and hearing fees) will be governed by the applicable rules, unless you qualify for a fee waiver under applicable law.
In circumstances in which the rules provide for an in-person hearing, such hearing will take place in the U.S. county (or parish) of your residence, or otherwise in New Metropolis, Americaland. If the Mass Filing process described in Section 1.7 is triggered, then the location of any hearing will be determined by the arbitrator.
1.3 Discovery During Arbitration
The parties shall each be limited to a maximum of one (1) fact witness deposition per side, unless the arbitrator determines that more depositions are warranted based on the totality of circumstances, including the amount in controversy, the complexity of the factual issues, the number of parties and the diversity of their interests, and whether any or all of the claims appear, on the basis of the pleadings, to have sufficient merit to justify the time and expense associated with the requested discovery. Document requests shall be limited to documents that are directly relevant to the matter(s) in dispute or to its outcome; shall be reasonably restricted in terms of time frame, subject matter and persons or entities to which the requests pertain; shall not include broad phraseology such as “all documents directly or indirectly related to”; and shall not be encumbered with extensive “definitions” or “instructions.” The Arbitrator may edit or limit the number of document requests based on the totality of circumstances, including the factors listed above.
Electronic discovery, if any, shall be limited as follows. Absent a showing of compelling need: (i) electronic documents shall only be produced from sources used in the ordinary course of business, and not from backup servers, tapes or other media; (ii) the production of electronic documents shall normally be made on the basis of generally available technology in a searchable format that is usable by the requesting party and convenient and economical for the producing party; (iii) the parties need not produce metadata, with the exception of header fields for email correspondence; (iv) the description of custodians from whom electronic documents may be collected should be narrowly tailored to include only those individuals whose electronic documents may reasonably be expected to contain evidence that is material to the dispute; and (v) where the costs and burdens of e-discovery are disproportionate to the nature of the dispute or to the amount in controversy, or to the relevance of the materials requested, the arbitrator may either deny such requests or order disclosure on the condition that the requesting party advance the reasonable cost of production to the other side, subject to the allocation of costs in the final award.
1.4 Confidentiality
Upon either party’s request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.
1.5 Offer of Settlement
In any arbitration between you and us, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If the award is issued in the other party’s favor and is less than the defending party’s settlement offer or if the award is in the defending party’s favor, the other party must pay the defending party’s costs incurred after the offer was made, including any attorney’s fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the claim may be entitled for the cause of action under which it is suing.
1.6 Mass Filing
If, at any time, 25 or more claimants (including you) submit Notices or seek to file demands for arbitration raising similar claims against the other party or related parties by the same or coordinated counsel or entities, you and we agree that the additional procedures set forth below shall apply. The parties agree that throughout this process, their counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing. The parties acknowledge and agree that by electing to participate in a Mass Filing, the adjudication of their dispute might be delayed. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled beginning when the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are initiated, so long as the pre-arbitration Notice complies with the requirements in Section 1.1, until your Claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.
Stage One:
Counsel for the claimants and counsel for Mooncast Enterprises shall each select 25 claims per side (50 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and Mooncast Enterprises shall pay the mediator’s fee.
Stage Two:
If the remaining claims are not resolved at this time, counsel for the claimants and counsel for Mooncast Enterprises shall each select 50 claims per side (100 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and Mooncast Enterprises shall pay the mediator’s fee.
Stage Three:
If the remaining claims are not resolved at this time, counsel for the claimants and counsel for Mooncast Enterprises shall each select 100 claims per side (200 claims total) to be filed and to proceed in individual arbitrations as part of a third staged process, subject to any procedural changes the parties agreed to in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. Following this third set of staged proceedings, counsel for claimants may elect to have the parties participate in a global mediation session of all remaining claims with a retired federal or state court judge.
If your claim is not resolved as part of the staged process identified above, either:
Option One:
You and Mooncast Enterprises may separately or by agreement, opt out of arbitration and elect to have your claim heard in court consistent with these Terms. You may opt out of arbitration by sending Mooncast Enterprises your individual, personally signed notice of your intention to opt out by certified mail addressed to Mooncast Enterprises, 123 Galactic Way, New Metropolis, Americaland, Attn: Legal Department. Such an opt out notice must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to opt out of arbitration within 30 days after the conclusion of Stage 3 or the elective mediation associated with Stage 3. Mooncast Enterprises may opt your claim out of arbitration by sending an individual, personally signed notice of its intention to opt out to your counsel within 14 days after the expiration of your 30-day opt out period. Counsel for the parties may agree to adjust these deadlines.
OR
Option Two:
If neither you nor Mooncast Enterprises elect to have your claim heard in court consistent with Option One, then you agree that your claim will be resolved as part of continuing, staged individual arbitration proceedings as set forth below. Assuming the number of remaining claims exceeds 200, then 200 claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining claims is fewer than 200, then all of those claims shall be filed and proceed in individual arbitrations. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of 200 claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and with the Procedural Arbitrator to explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining claims.
A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees. If these additional procedures apply to your Claim, and a court of competent jurisdiction determines that they are not enforceable as to your Claim, then your Claim shall proceed in a court of competent jurisdiction consistent with these Terms.
You and Mooncast Enterprises agree that we each value the integrity and efficiency of arbitration and wish to employ the process for the fair resolution of genuine and sincere disputes between us. You and Mooncast Enterprises acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of such cases.
1.7 Severability
If any portion of this Arbitration Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The other portions of this Arbitration Agreement shall continue to be enforceable and valid according to the terms contained herein.
Additional terms may apply to your use of certain Services. We will provide these terms to you or post them on the Services to which they apply, and they are incorporated by reference into these Terms. If there is a conflict between these Terms and any additional terms that apply to a particular Service, the additional terms will control.
Sweepstakes, contests, and promotions on the Services may also have additional rules and eligibility requirements, such as certain age or geographic restrictions. You are responsible for complying with these rules and requirements.
If we request registration information from you to set up a user account, you must provide us with accurate and complete information and must update the information when it changes. You may not access any age-restricted Services unless you are above the required age.
You are responsible for maintaining the confidentiality of your user account login names and passwords, and must not permit use of your account by anyone other than members of your household. You accept responsibility for all activities, charges, and damages that occur under your account, including use of your account by other members of your household, and unauthorized use of your account. If you have reason to believe that someone is using your account without your permission, you should contact us immediately. We are not responsible for any loss or damage resulting from unauthorized use.
The audio and video materials, photographs, text, graphics, logos, layouts, designs, interfaces, software, data and other content associated with the Services (“Content”) are protected by intellectual property and other laws in Americaland and in other countries. You must comply with all such laws and applicable copyright, trademark or other legal notices or restrictions. You shall not remove or alter any copyright, trademark, or other legal notices marked on the Content. As between you and Mooncast Enterprises, Mooncast Enterprises will retain all right, title, and interest in and to the Services and the Content. No transfer of ownership to any portion of the Content shall be made as a result of any access you are granted. Except as specifically provided below, we reserve all rights in and to the Services and Content.
You are only permitted to access and view the Content for personal, non-commercial purposes in accordance with these Terms, and may not build a business or other enterprise utilizing any of the Content, whether for profit or not. Except as provided in Section 4.1 or otherwise expressly authorized by us in writing, you may not either directly or through the use of any software, device, internet site, web-based service or other means download, stream capture, store in a database, archive or otherwise copy any part of the Services or Content; upload, sell, rent, lease, lend, broadcast, transmit or otherwise disseminate, distribute, display or perform any part of the Services or Content; license or sublicense any part of the Services or Content; or in any way exploit any part of the Services or Content. In addition, except as provided in Section 4.1 or otherwise expressly authorized by us in writing, you are strictly prohibited from modifying Content; creating, distributing or advertising an index of any significant portion of the Content; or otherwise creating derivative works or materials that otherwise are derived from or based in any way on the Content, including, without limitation, mash-ups and similar videos, montages, translations, desktop themes, fonts, icons, wallpaper, greeting cards, and merchandise. This prohibition from creating derivative works is applicable even if you intend to give away the derivative material free of charge.
Without limiting the foregoing, you may not modify, interfere with, enhance, remove, or otherwise alter in any way any portion of the Mooncast Enterprises video player (the “Video Player”); any of the Video Player’s underlying technology; or any digital rights management mechanism, device, or other content protection or access control measure incorporated into the Video Player. This restriction includes, without limitation, disabling, modifying, reverse engineering, interfering with or otherwise circumventing the Video Player in any manner that enables users to view Content without: (i) visibly displaying both the Video Player and all surrounding elements (including the graphical user interface, any advertising, copyright notices, and trademarks) of the webpage where the Video Player is located; and (ii) having full access to all functionality of the Video Player, including, without limitation, all video quality and display functionality and all interactive, elective or click-through advertising functionality.
4.1 Viral Distribution
We may expressly authorize you to redistribute certain Content on a personal, non-commercial basis. We will identify the Content that you are authorized to redistribute and describe ways you may redistribute it (such as via email, social media posts, blogs, or embedded players, or by producing Mash-Ups). We may revoke this authorization at any time. If you redistribute such Content, you must be able to edit or delete such publicly posted Content and you must edit or delete it promptly upon our request. When expressly authorized by us in writing, you may embed videos using the Video Player, provided you do not embed the Video Player on any website or other location that (i) contains or hosts content that is inappropriate, profane, vulgar, offensive, false, disparaging, defamatory, obscene, illegal, infringing, threatening, sexually explicit, racist, that promotes violence, racial hatred, or terrorism, or that we deem, in our sole discretion, to be otherwise objectionable or (ii) links to infringing or unauthorized content, or any content described in (i). You may not embed the Video Player into any hardware or software application, even for non-commercial purposes. As determined by us in our sole discretion, we reserve the right to prevent embedding to any website or other location that we find inappropriate or otherwise objectionable as determined by us in our sole discretion.
Some Services may include “Mash-Up Tools” that allow you to manipulate Content or combine User Submissions (as defined in Section 6) with Content to create “Mash-Ups.” The following terms apply to your use of Mash-Up Tools, except as specifically provided in other terms accompanying the Mash-Up Tools:
You may only use designated Content with the Mash-Up Tools, and we may revoke permission to use the designated Content at any time.
You may manipulate or combine the designated Content using the Mash-Up Tools only as authorized and only for personal, non-commercial purposes.
As between you and us, we own all compilation rights in the Mash-Ups and may make perpetual and unrestricted use of the Mash-Ups, and you will only retain whatever prior rights you had in your User Submissions.
With our permission, other users of the Services may make subsequent Mash-Ups using your Mash-Ups.
You must include any required or existing trademark, copyright or other legal notices in the Mash-Ups and you must comply with any other usage or attribution guidelines we provide.
If we expressly allow you to do so, you may distribute Mash-Ups under the Viral Distribution guidelines above in this Section 4.1.
4.2 Commercial Licenses
You must obtain our written permission for commercial use of the Content or the Services. If you wish to license Content from the Services, please contact our legal department.
4.3 Dated Materials
Content offered through the Services or in links from the Services is dated as of the date originally issued or indicated on the Content and may no longer be accurate. We assume no obligation to update such Content.
We respect intellectual property rights. If you believe that Content on the Services infringes your copyright, please follow our procedures for making a copyright infringement claim. If you have a legal complaint other than a copyright claim, please follow our procedure for making other legal complaints.
Some of the Services may allow you to submit or transmit audio, video, text, or other materials, including so-called “user generated content” and “feedback” (collectively, “User Submissions”) to or through the Services. When you provide User Submissions, you grant to Mooncast Enterprises and its affiliates and partners a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, fully sublicenseable license to use, reproduce, archive, edit, translate, create derivative works of, make available, distribute, sell, display, perform, transmit, broadcast and in any other way exploit those User Submissions, and any names, voices, likenesses and other identifying information of persons that is part of those User Submissions, in any form, media, software, or technology of any kind now known or developed in the future, including, without limitation, for developing, manufacturing, and marketing products. You hereby waive any moral rights you may have in your User Submissions.
We respect your ownership of User Submissions. If you owned a User Submission before providing it to us, you will continue owning it after providing it to us, subject to any rights granted in these Terms and any access granted to others. Please note that if you delete a User Submission from the Services:
The User Submission may still exist in our backup copies, which are not publicly available.
If your User Submission was shared with third parties, those third parties may have retained copies of your User Submissions, and neither we nor our affiliates have any responsibility for any uses of your User Submission that they might make.
We retain the license specified above. Thus, for example, if we or one of our sublicensees obtained your user Submission for use in creating a derivative work before you deleted it, we or our sublicensee would remain free to complete the creation of that derivative work and thereafter exploit that derivative work for all purposes and at all times.
We may refuse or remove a User Submission without notice to you. However, we have no obligation to monitor User Submissions, and you agree that neither we nor our affiliates will be liable for User Submissions or any loss or damage resulting from User Submissions.
We do not guarantee that User Submissions will be private, even if the User Submission is in a password-protected area. Accordingly, you should not provide User Submissions that you want protected from others.
You bear all responsibility for your User Submissions. You represent and warrant that you have all rights necessary to grant to Mooncast Enterprises the license above and that your User Submissions do not violate Section 10.
If you accept fee-based Services, you agree to the additional terms governing all such purchases as provided to you or posted on the Services to which they apply, including all requirements to pay applicable fees and taxes. Except as otherwise provided in such additional terms, the provisions of this Section 7 apply to such fee-based Services.
Unless otherwise stated, all fees and charges are non-refundable, including for unused portions of cancelled subscriptions. We do not provide price protection or refunds in the event of a price drop or promotional offering.
We reserve the right to change the pricing of all Services at any time. In the event of a price change, we will post the new pricing on the relevant Service and attempt to notify you by sending an email to the address you have registered. Billing for all mobile subscription services will be governed by the Mobile Features section of these Terms (Section 9) unless the terms of the subscription say otherwise.
We may offer trial subscriptions to fee-based Services for free or at special discounted prices. Unless otherwise stated, these trial subscriptions will automatically become paying subscriptions at the current subscription rate if you do not cancel before the end of the trial period.
We may provide third party content (including advertisements) or link to third party websites on the Services. We do not necessarily endorse or evaluate third party content and websites, and we do not assume responsibility for third parties’ actions or omissions. In certain instances, you may be able to connect and/or link your account to certain third party social media sites (“Social Media Sites”), including, without limitation, Facebook and Twitter. If you connect with us through a social media platform or navigate to a social media platform from one of our services, the social media platform will collect your information separately from us. You should review third party site and platform terms of service and privacy policies to understand how they are using your information and your rights in relation to such information.
In addition to the general terms applicable to the Services, the following terms apply to Services designed for wireless devices (“Mobile Features”), which we offer only to users who are 18 years of age or older and located in Americaland unless otherwise noted.
Your wireless provider may charge for use of Mobile Features, including fees for receipt of text messages or data transmission. To receive Mobile Features, your wireless provider may require you to subscribe to additional services, which may require additional fees. These fees are not charged by us, and you should contact your wireless provider before you sign up for Mobile Features to determine what fees, if any, will be charged. In addition, you agree that we may arrange for Mobile Features billing through your wireless provider and that your wireless provider may invoice you for the applicable fees or deduct them from your pre-paid balance.
You may not transfer or copy any Content from the wireless device on which you originally received Content to any other device, including, without limitation, any computer or another wireless device.
To cancel a Mobile Feature that involves a subscription fee, you must follow the instructions included in the terms and conditions applicable to that Mobile Feature; otherwise, you will continue to incur subscription charges. If you stop a subscription-based Mobile Feature in the middle of a billing cycle, you will not receive a refund for that billing cycle.
Without limiting any other provision in these Terms, you agree not to do the following, or assist others to do the following:
Access the Services using any interface other than ours.
Maintain any link to the Services that we ask you to remove, in our sole discretion.
Frame the Services or Content, make the Services or Content available via in-line links, otherwise display the Services or Content in connection with an unauthorized logo or mark, or do anything that could falsely suggest a relationship between the Mooncast Enterprises or its affiliates and any third party or potentially deprive us of revenue (including, without limitation, revenue from advertising, branding, or promotional activities).
Threaten, defame, stalk, abuse, or harass other persons or engage in illegal activities, or encourage conduct that would constitute a criminal offense or give rise to civil liability.
Transmit any material that is inappropriate, profane, vulgar, offensive, false, disparaging, defamatory, obscene, illegal, sexually explicit, racist, that promotes violence, racial hatred, or terrorism, or that we deem, in our sole discretion, to be otherwise objectionable.
Violate any person’s or entity’s legal rights (including, without limitation, intellectual property, privacy, and publicity rights), transmit material that violates or circumvents such rights, or remove or alter intellectual property or other legal notices.
Transmit files that contain viruses, spyware, adware, or other harmful code.
Advertise or promote goods or services without our permission (including, without limitation, by sending unsolicited email).
Interfere with others using the Services or otherwise disrupt the Services.
Disassemble, decompile or otherwise reverse engineer any software or other technology included in the Content or used to provide the Services.
Transmit, collect, or access personal information about other users without the consent of those users and Mooncast Enterprises.
Engage in unauthorized spidering, “scraping,” data mining or harvesting of Content, or use any other unauthorized automated means to gather data from or about the Services.
Impersonate any person or entity or otherwise misrepresent your affiliation or the origin of materials you transmit.
Remove, avoid, interfere with, or otherwise circumvent any access control measures for the Services or Content, including password-protected areas and geo-filtering mechanisms, or any digital rights management measures used in connection with Content.
Access any portion of the Services that we have not authorized you to access (including password-protected areas), link to password-protected areas, attempt to access or use another user’s account or information, or allow anyone else to use your account or access credentials.
If you violate this Section 10, we may terminate your access to the Services without notice, and take any other actions or seek any remedies permitted by law.
We may take any of the following actions in our sole discretion at any time, and without giving you prior notice:
Change or discontinue the Services.
Change how we offer and operate Services (e.g., to begin charging a fee to access features or Content that we previously made available without charge).
Remove Content from the Services.
Restrict, suspend or terminate your access to one or more Services or features thereof.
Deactivate your accounts and delete all related information and files in your accounts.
We will not be liable to you or any third party for taking any of these actions and we will not be limited to the remedies above if you violate these Terms. If we terminate your access to any of the Services, you must immediately stop using such Service. However, if you have paid for a subscription to any fee-based Service, and we discontinue the Service before the end of a paid subscription period, or we terminate your account before the end of a paid subscription period for reasons other than your breach of these Terms, we will refund a prorated portion of the applicable subscription fee corresponding to the portion of the paid subscription period for which our action caused you not to have access to the relevant Service. If we terminate your access to any fee-based Service because you breached these Terms, you will not be entitled to any refund.
We do not accept unsolicited submissions, including scripts, story lines, articles, fan fiction, characters, drawings, suggestions, ideas or concepts. It is our policy to delete any such submission without reading it. Any similarity between an unsolicited submission and any elements in any Mooncast Enterprises creative work would be purely coincidental.
You will defend, indemnify and hold harmless Mooncast Enterprises, its affiliates, and their respective directors, officers, employees, shareholders, vendors, partners, contractors, agents, licensors or other representatives and all of their successors and assigns (collectively, the “Mooncast Enterprises Parties”) with respect to all third party claims, costs (including attorney’s fees and costs), damages, liabilities, and expenses or obligations of any kind, arising out of or in connection with your use or misuse of the Services (including, without limitation use of your account, whether or not authorized by you, and claims arising from User Submissions). Mooncast Enterprises retains the right to assume the exclusive defense and control of any claim subject to indemnification, and in such cases you agree to cooperate with us to defend such claim. You may not settle any claim covered by this Section 13 without Mooncast Enterprises’ prior written approval.
THE MOONCAST ENTERPRISES PARTIES DO NOT REPRESENT OR WARRANT: (1) THAT THE SERVICES, ANY OF THE SERVICES’ FUNCTIONS OR ANY CONTENT WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OMISSIONS; (2) THAT DEFECTS WILL BE CORRECTED; (3) THAT THE SERVICES OR THE SERVERS HOSTING THEM ARE FREE OF VIRUSES OR OTHER HARMFUL CODE; OR (4) THAT THE SERVICES OR INFORMATION AVAILABLE THROUGH THE SERVICES WILL CONTINUE TO BE AVAILABLE. THE MOONCAST ENTERPRISES PARTIES SHALL HAVE NO LIABILITY FOR ANY SUCH ISSUES. THE MOONCAST ENTERPRISES PARTIES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND AS TO QUALITY, AVAILABILITY AND SUBJECT MATTER OF CONTENT. THE SERVICES, INCLUDING ALL CONTENT AND FUNCTIONS MADE AVAILABLE ON OR ACCESSED THROUGH OR SENT FROM THE SERVICES, ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.”
YOUR ACCESS TO AND USE OF THE SERVICES (INCLUDING THEIR FUNCTIONS AND CONTENT) IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SERVICES.
THE MOONCAST ENTERPRISES PARTIES WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN THEIR PERFORMANCE DUE TO ANY CAUSE BEYOND THEIR REASONABLE CONTROL, INCLUDING ACTS OF WAR, ACTS OF GOD, ACTS OF THIRD PARTIES, EARTHQUAKE, FLOOD, EMBARGO, RIOT, SABOTAGE, LABOR SHORTAGE OR DISPUTE, GOVERNMENTAL ACT, POWER FAILURE OR FAILURE OF THE INTERNET OR COMPUTER EQUIPMENT.
YOU ACKNOWLEDGE AND AGREE THAT IF YOU INCUR ANY DAMAGES THAT ARISE OUT OF THE MOONCAST ENTERPRISES PARTIES’ ACTS OR OMISSIONS, THE DAMAGES, IF ANY, ARE NOT IRREPARABLE AND ARE NOT SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING OPERATION OF THE SERVICES OR ANY OTHER SERVICE, PROPERTY, PRODUCT, PROGRAM, TELEVISION SHOW, MOTION PICTURE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE MOONCAST ENTERPRISES PARTIES.
These Terms and all claims arising from or related to your use of the Services will be governed by and construed in accordance with the laws of the State of New Metropolis, except its conflict of law rules. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, if applicable.
With respect to any disputes or claims not subject to arbitration or small claims court (as set forth in Section 1 above), you agree to exclusive jurisdiction in the state and federal courts in New Metropolis, Americaland.
Regardless of any statute or law to the contrary, you must file any claim or action related to use of the Services or these Terms within one year after such claim or action accrued. Otherwise, you will waive the claim or action.
We may be required by state or federal law to notify you of certain events. You hereby acknowledge and agree that such notices will be effective upon our posting them in the relevant Service or delivering them to you via email. You may update your email address by visiting the Services where you have provided contact information. If you do not provide us with accurate information, we will not be responsible for failure to notify you. Our failure to exercise or enforce any right or provision in these Terms will not constitute a waiver of such right or provision. These Terms, including all additional terms, conditions, and policies on the Services, constitute the entire agreement between you and us and supersede all prior agreements with respect to the subject matter hereof. Nothing in these Terms affects any non-waivable statutory rights that apply to you. If any part of these Terms is determined to be invalid or unenforceable under applicable law, that provision will be removed, and the remainder of the Terms will continue to be valid and enforceable.
You authorize us to provide information concerning you and your activities to comply with applicable laws or respond to court order, subpoenas, or other lawful requests, or if we believe doing so would protect your safety or that of another person or protect the security of the Services, or as otherwise described in the Privacy Policy, subject to your right to make certain choices about our use of your personal information as described in the Privacy Policy.
Sections 1, 6 and 10-16 of these Terms will survive any termination of your access to the Services, whether we terminate your access or you voluntarily discontinue your use.
