Fox Commute Terms of Use Agreement

April 2nd, 2015

 

Description of Fox Commute Services and Acceptance of Terms of Use Including Arbitration of Disputes

Fox Entertainment Group, Inc. and its affiliates, including Fox Networks Group, Inc. and Twentieth Century Fox Film Corporation (collectively “Fox,” “we” or “us”) have developed this Terms of Use Agreement (“Agreement”) to describe the terms that govern your use of the Fox Commute Services (defined below). This Agreement applies to the Fox Commute website (the “Fox Commute Site”), mobile sites, applications ("apps"), widgets, and other content and services that are linked to this Agreement (collectively, the "Fox Commute Services") that allow users to arrange, schedule and manage transportation and/or logistics services with third party providers of such Fox Commute Services. Fox is based in the United States and is a part of the United States based operations, Twenty-First Century Fox, Inc.

 

YOU ACKNOWLEDGE THAT FOX DOES NOT PROVIDE TRANSPORTATION OR LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION CARRIER. FOX COMMUTE'S SERVICES MAY BE USED BY YOU TO SEARCH AND SCHEDULE RIDESHARING OR CARPOOL/VANPOOL TRANSPORTATION OR LOGISTICS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT FOX HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION OR LOGISTICS PROVIDED TO YOU BY THIRD PARTY PROVIDERS THROUGH THE USE OF THE FOX COMMUTE SERVICES OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.

 

The Fox Commute Services are available only to: (1) full-time employees of Fox; and (2) qualifying day-hires of Fox (each, an “Authorized User”).  To determine if you are a qualifying day-hire, please contact your HR business partner.  Any use by a non-Authorized User is strictly prohibited.

 

Your access to and use of certain Fox Commute Services may require you to accept additional terms and conditions (e.g., Vanpool Terms and Incentives Guidelines) applicable to such Fox Commute Services, including any future modifications (collectively, "Additional Terms") in addition to this Agreement, and may require you to download software or Content (as defined below). The Additional Terms are made a part of this Agreement by this reference. In the event of a conflict, between any such Additional Terms and this Agreement, such Additional Terms will prevail over this Agreement with respect to your use of that specific Fox Commute Service.

Use of the Fox Commute Services is limited to users aged 18 years and above.

 

PLEASE NOTE THAT THE “ARBITRATION AGREEMENT” SECTION BELOW CONTAINS PROVISIONS THAT REQUIRE (i) WITH LIMITED EXCEPTIONS, ALL DISPUTES ARISING BETWEEN YOU AND FOX UNDER THIS AGREEMENT BE HANDLED BY ARBITRATION, AND (ii) YOU AND FOX WAIVE THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN CONNECTION WITH SUCH DISPUTES.  PLEASE CLICK HERE TO REVIEW THE ARBITRATION AGREEMENT.

 

By using any Fox Commute Service (whether or not you have an account) or by clicking a box that states that you accept and agree to this Agreement, you signify your agreement to be bound by this Agreement, including any future modifications, and any Additional Terms and to abide by all applicable laws, rules and regulations ("Applicable Law"). Please read through this Agreement carefully. If you do not agree to be bound by this Agreement and to abide by all Applicable Law, you may not use the Fox Commute Services and must discontinue use of the Fox Commute Services immediately. Fox may modify this Agreement at any time, and each such modification will be effective upon posting on or to the Fox Commute Services. All material modifications will apply prospectively only. Your continued use of the Fox Commute Services following any modification constitutes your acceptance of and agreement to be bound by this Agreement as so modified. It is therefore important that you review this Agreement regularly. Fox may also use third-party service providers, such as vendors, contractors, agents or sponsors, to operate, develop or help Fox manage and provide the Fox Commute Services and any other offline carpool or vanpool services.

 

Fox Commute Account Registration and Security

 

Fox Commute Services require you to create an account (including setting up a Fox Commute credential and password) to participate in or to secure additional Fox Commute Services, such as creating a new commute, searching for rideshare options, creating a Fox Commute Site profile and signing up for specific Fox Commute emails.  In addition to your Fox Commute credential, you will have the ability to create an account, which may include a Fox Commute Site username and profile, as part of your account. If you would like to subscribe to any of the Fox Commute emails, please visit http://www.foxcommute.com.

 

All registration information you submit directly to us or through a Third-Party Service (defined below) to create an account must be accurate and must be kept updated by you. It is your responsibility to notify us of any changes in such information, including, but not limited to your contact information. You are responsible for maintaining the confidentiality of all your passwords and are responsible for all use of your account. It is therefore critical that you do not share your account information with anyone. You may be held liable for losses incurred by Fox, Fox Affiliates (defined below) or any other Fox user or visitor in the event someone else uses your account as a result of your failure to keep your account information secure and confidential and you agree to indemnify Fox and all Fox Affiliates from any third-party claims arising from such actions.  You agree not to use the account, username, email address or password of another member or subscriber at any time and not to allow any other person to use your account. You agree to notify Fox immediately if you suspect any unauthorized use of, or access to, your account or password. Fox shall retain the right to change your username, but no obligation, for any reason, including, without limitation, if the username you have selected violates this Agreement.

 

Termination

 

Unless terminated by Fox in its sole discretion, this Agreement remains in full force and effect while you use the Fox Commute Services. You may terminate your account at any time, for any reason by sending an email to – acanova@rideshare.com, Subject: Terminate Fox Commute Account or by calling (877) 369-2369 Option #4.

Fox may terminate your account and/or access to all (or any portion of) the Fox Commute Services at any time, for any or no reason, with or without prior notice or any explanation, and without liability. Furthermore, even after your account  and/or access to the Fox Commute Services is terminated by you or Fox, this Agreement will remain in full force and effect with respect to your past and future use of the Fox Commute Services. If we terminate your user account and/or access to the Fox Commute Services (or any portion of the Fox Commute Services) you may not create a new account or try to access the Fox Commute Services without Fox's prior written approval. You agree that your account  is non-transferable. Any rights to your account and/or Fox Commute Services terminate upon your death.

 

Payments

 

In connection with the use of certain vanpool or carpool services (“Fox Commute Paid Service”), you may be required to  provide personal information, including credit card and billing information (“Personal Financial Information”), to an independent third-party selected by, but not affiliated with, Fox (the “Processor”) for such services. Where the Processor is responsible for collecting, transmitting and/or processing your Personal Financial Information and, in some instances, for fulfilling your order, the collection, use and transmission of your Personal Financial Information and any payment obligations for Fox Commute Paid Services shall be governed by the terms of use/service and privacy policy(ies) of the Processor. If you make a purchase through Fox Commute Services, you are warranting that you are authorized to make the purchase using the Personal Financial Information that you provide to the Processor.

 

Fox makes no warranty and accepts no liability for any loss or damages whatsoever, relating to, or in connection with, your placement of an order for a Fox Commute Site Product with the Processor. Fox provides no refunds for, makes no warranty for and accepts no liability, regarding purchases you make on or through any Fox Commute Service. You are solely responsible for any and all transactions utilizing your Personal Financial Information, including, but not limited to, any and all charges. You acknowledge and agree that in the event the Processor experiences a data breach that affects any of your information, Fox will in no way be responsible or liable to you for any such data breach.

 

If you have any questions regarding your purchases or transactions or believe that there is an error or unauthorized transaction or activity associated with transactions utilizing your information, you must contact the Processor.

 

Limited Content License

 

The Fox Commute Services contain information, text, files, images, video, sounds, musical works, works of authorship, materials, applications, software, product names, company names, trade names, logos, designs, and any other materials or content (collectively, "Content") of Fox and Fox Affiliates and their licensors and assignors ("Fox Content"), as well as materials and Content provided by users (“User Content”) or other third-parties. Fox Content contained in the Fox Commute Services is protected by copyright, trademark, patent, trade secret and other laws and, as between you and Fox, Fox, its licensors, or its assignors, own and retain all rights in the Fox Content and Fox Commute Services. Fox hereby grants you a limited, revocable, nonsublicensable, nontransferable license, to access and display or perform the Fox Content (excluding any software code) solely for your personal, non-commercial use, in connection with using the Fox Commute Services. The Fox Commute Services may also contain User Content. Except as provided in this Agreement or as explicitly allowed in the Additional Terms on the applicable Fox Commute Service, you may not copy, download, stream capture, reproduce, duplicate, archive, upload, modify, translate, publish, broadcast, transmit, retransmit, distribute, perform, display, sell, frame or deep-link, make available or otherwise use any Content contained in or through the Fox Commute Services.

 

Except as explicitly and expressly permitted by Fox or by the limited license set forth above, you are strictly prohibited from creating works or materials (including but not limited to fonts, icons, link buttons, wallpaper, desktop themes, on-line postcards, montages, mash-ups and similar videos, greeting cards and unlicensed merchandise) that derive from or are based on the Fox Content. This prohibition applies regardless of whether such derivative works or materials are sold, bartered or given away. Also, you may not, either directly or through the use of any device, software, internet site, web-based service or other means, remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notice marked on the Fox Content contained in the Fox Commute Services or any digital rights management mechanism, device, or other content protection, copy control, or access control measure associated with the Fox Content, including geo-filtering mechanisms. Except as necessary in order to make reference to Fox or Fox Commute Services in a purely descriptive capacity, you are expressly prohibited from using any Fox Content in any manner.

 

Restrictions on Use of the Fox Commute Services

Fox reserves the right to remove Content in its sole discretion. You understand that you are responsible for all User Content that you post, upload, transmit, email or otherwise make available on, through or in connection with the Fox Commute Services. Additionally, you acknowledge that you have no expectation of privacy in or confidentiality with respect to your User Content.  Accordingly, please choose carefully the information that you post on, through or in connection with the Fox Commute Services. You understand that Fox does not control the User Content posted by users via the Fox Commute Services and, as such, you understand you may be exposed to offensive, inaccurate or otherwise objectionable User Content. Fox assumes no responsibility or liability for any User Content. If you become aware of any misuse of the Fox Services, please report this immediately to FoxCommute.Feedback@fox.com.

 

Fox assumes no responsibility for monitoring the Fox Commute Services for inappropriate Content or conduct. If at any time, Fox chooses in its sole discretion to monitor the Fox Commute Services, Fox nonetheless assumes no responsibility for Content other than Fox Content, assumes no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of any user or visitor.

You agree not to use the Fox Commute Services to:

  • Post, upload or otherwise transmit or link to content that is: unlawful; threatening; abusive; obscene; vulgar; sexually explicit; pornographic or inclusive of nudity; offensive; excessively violent; invasive of another's privacy, publicity, contract or other rights; tortious; false or misleading; defamatory; libelous; hateful; or discriminatory;
  • Violate the rights of others including patent, trademark, trade secret, copyright, privacy, publicity or other proprietary rights;
  • Harass or harm another person;
  • Exploit or endanger a minor;
  • Impersonate or attempt to impersonate any person or entity;
  • Introduce or engage in activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of or access to a computer or a computer network;
  • Attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising the Fox Commute Services;
  • Interfere with, damage, disable, disrupt, impair, create an undue burden on, or gain unauthorized access to the Fox Commute Services, including Fox's servers, networks or accounts;
  • Cover, remove, disable, block or obscure advertisements or other portions of the Fox Commute Services;
  • Delete or revise any information provided by or pertaining to any other user of the Fox Commute Services;
  • Use technology or any automated system such as scripts, spiders, offline readers, or bots in order to collect or disseminate usernames, passwords, email addresses or other data from the Fox Commute Services, or to circumvent or modify any security technology or software that is part of the Fox Commute Services;
  • Send or cause to send (directly or indirectly) unsolicited bulk messages or other unsolicited bulk communications of any kind through the Fox Commute Services.  If you do so, you acknowledge you will have caused substantial harm to Fox, but that the amount of harm would be extremely difficult to measure. As a reasonable estimation of such harm, and by way of liquidated damages and not as a penalty, you agree to pay Fox $50 for each actual or intended recipient of such communication;  
  • Solicit, collect or request any personal information for commercial or unlawful purposes;
  • Post, upload or otherwise transmit an image or video of another person without that person's consent;
  • Engage in commercial activity (including, but not limited to, advertisements or solicitations of, business; sales; contests; sweepstakes; creating, recreating, distributing or advertising an index of any significant portion of the Fox Commute Content; or building a business using the Fox Commute Content) without Fox’s prior written consent; using technology or other means to access, index, frame, or link to the Fox Commute Services (including the Content) that is not authorized by Fox (including, without limitation, by removing disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized download, stream capture, linking, framing, reproduction, access to, or distribution of Fox Content);  
  • Accessing Fox Commute Services (including the Content) through any automated means, including “robots,” “spiders,” or “offline readers” (other than by individually performed searches on publicly accessible search engines for the sole purpose of, and solely to the extent necessary for, creating publicly available search indices – but not caches or archives – of Fox Commute Services and excluding those search engines or indices that host, promote, or link primarily to infringing or unauthorized content;
  • Use the Fox Commute Services to advertise or promote competing services;
  • Use the Fox Commute Services in a manner inconsistent with any and all Applicable Law;
  • Attempt, facilitate or encourage others to do any of the foregoing.
  • Fox reserves the right, but disclaims any obligation or responsibility, to remove User Content that violates this Agreement, as determined by Fox, or for any other reason in Fox’s sole discretion and without notice to you. You acknowledge that Fox reserves the right to investigate and take appropriate legal action against anyone who, in Fox's sole discretion, violates this Agreement, including but not limited to, terminating their account and/or reporting such User Content, conduct, or activity to law enforcement authorities.
  • You acknowledge, consent and agree that Fox may access, preserve or disclose information you provide to or through the Fox Commute Services or that we have collected about you, including registration information and User Content, when Fox has a good faith belief that such access, preservation or disclosure is necessary in order to: (i) protect, enforce, or defend the legal rights, privacy, safety, or property of Fox, our parents, subsidiaries or affiliates  (“Fox Affiliates”), or their employees, agents and contractors (including enforcement of this Agreement or our other agreements); (ii) protect the safety, privacy, and security of users of the Fox Commute Services or members of the public, including in urgent circumstances; (iii) protect against fraud or for risk management purposes; (iv) comply with Applicable Law or legal process; or (v) respond to requests from public and government authorities.  If Fox sells all or part of its business or makes a sale or transfer of its assets or is otherwise involved in a merger or transfer of all or a material part of its business, Fox may transfer your information to the party or parties involved in the transaction as part of that transaction. 
  • Fox reserves the right to limit the storage capacity of User Content.  You assume full responsibility for maintaining backup copies of your User Content, and Fox assumes no responsibility for any loss of your User Content due to it being removed by Fox or for any other reason.

 

 

Your Proprietary Rights in and License to Your User Content

Fox does not claim any ownership rights in the User Content that you post, upload, email, transmit, or otherwise make available (collectively, “Transmit”) on, through or in connection with the Fox Commute Services, except with respect to your unsolicited submissions, as described under “Unsolicited Submissions” below; provided, however, that User Content shall not include any Fox Content or content owned by a Fox Affiliate.  By posting or transmitting any User Content on, through or in connection with the Fox Commute Services, you hereby grant to Fox and our Fox Affiliates, licensees, assignees, and authorized users, a worldwide, perpetual, irrevocable, non-exclusive, fully-paid and royalty-free, freely sublicensable and transferable (in whole or in part) right (including any moral rights) and license to use, modify, excerpt, adapt, publish, translate, create derivative works and compilations based upon, publicly perform, publicly display, reproduce, sublicense, broadcast and distribute such User Content, including your name, voice, likeness and other personally identifiable information to the extent that such is contained in User Content, anywhere, in any form and on and through all media formats now known or hereafter devised, for any and all purposes including, but not limited to, promotional, marketing, trade or any non-commercial or commercial purposes. Additionally, Fox is free to use any ideas, concepts, know-how, or techniques contained within such User Content for any purpose including, but not limited to, developing, manufacturing, marketing and providing commercial products and services, including Fox Commute Services. Fox’s use of such User Content shall not require any further notice or attribution to you and such use shall be without the requirement of any permission from or any payment to you or any other person or entity. You hereby appoint Fox as your agent with full authority to execute any document or take any action, Fox may consider appropriate in order to confirm the rights granted by you to Fox in this Agreement.

 

You represent and warrant that: (i) you own the User Content Transmitted by you on, through or in connection with the Fox Commute Services and/or Third-Party Services, or otherwise have the right to grant the license set forth in this section, and (ii) the Transmission of User Content by you on, through or in connection with the Fox Commute Services and/or Third-Party Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity.  You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of the use of any User Content Transmitted by you on or through the Fox Commute Services or Third-Party Services. If you delete your User Content from any Fox Commute Service, Fox’s license to such User Content will end after a reasonable period of time necessary for the deletion to take full effect.  However, the User Content may be retained in Fox’s back-up copies of the applicable Fox Commute Service, which are not publicly available. Furthermore, to the extent that Fox made use of your User Content before you deleted it, Fox will retain the right to make such pre-existing uses even after your User Content is deleted.  You acknowledge that (i) deletion of your User Content from Fox Commute Services will not result in, and Fox assumes no responsibility for, the deletion of such User Content by any third-parties who were provided with or had access to such User Content prior to your deleting it from Fox Commute Services, and (ii) termination of your account or your use of the Fox Commute Services will not result in the immediate or automatic deletion of your User Content consistent with this Agreement.

 

Removal of Material that Infringes Copyrights

 

Fox respects the intellectual property of others and requires that our users do the same. Fox has a policy that provides for the termination in appropriate circumstances of users and account holders of Fox Commute Services who are repeat infringers.  Fox also reserves the right to remove or disable access to any transmission of Content that infringes the copyright of any person under the laws of the United States upon receipt of a notice that substantially complies with the requirements of 17 U.S.C. § 512(c)(3) as set forth above. 

 

If you believe materials on the F ox Commute Services infringes your copyright.

 

If you believe that any materials residing on or linked to from Fox Commute Services infringes your copyright, you must send a written notification of claimed infringement that contains substantially all of the following information to the Fox Copyright Agent: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit Fox to locate the material on the Fox Commute Services (such as the URL(s) of the claimed infringing material); (c) information reasonably sufficient to permit Fox to contact you, such as an address, telephone number, and an email address; (d) 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 Applicable Law; (e) a statement by you that the above information in your notification is accurate and a statement by you, made under penalty of perjury, that you are the owner of an exclusive right that is allegedly infringed or are authorized to act on the owner's behalf; and (f) your physical or electronic signature.  Fox's Copyright Agent for notification of a claimed infringement can be reached as follows: Copyright Agent, Fox Commute, 10201 W. Pico Blvd., Los Angeles, CA 90035; Facsimile: (310) 969-5660; Phone: (310)369-7069. Please be sure to send the notification to the attention of the Fox Commute Site on which your claimed infringement occurred. If you wish to notify the Fox Copyright Agent electronically, please submit an email toFoxCommute.DMCA@fox.com.   

 

If you posted materials to a F ox Commute Service that was removed due to notice by a copyright owner.

 

If you posted materials to the Fox Commute Services that Fox removed due to a notice of a claimed infringement from a copyright owner, Fox will take reasonable steps promptly to notify you that the material has been removed or disabled.  This notice may be by means of a general notice on Fox Commute Services or by written or electronic communication to such address(es) you have provided to Fox, if any. You may provide counter-notification in response to such notice in a written communication that includes substantially all of the following: (i) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (ii) a statement by you, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (iii) your name, address, telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which Fox may be found, and that you will accept service of process from the person who provided notification requesting the removal or disabling of access to the material or such person’s agent; and (iv) your physical or electronic signature.

 

Please note that, under 17 U.S.C. §512(f), any person who knowingly makes material misrepresentations in a notification of claimed infringement or any counter-notification may be liable for damages.

 

Third-Party Links and Services

 

The Fox Commute Services may provide, or third-parties may provide, links to other websites, apps, resources or other services created by third parties, including without limitation, any third party offline vanpool or carpool services (collectively, "Third-Party Services"). When you engage with a Third-Party Service, you are interacting with the third-party, not with Fox. If you choose to use a Third-Party Service and share information with it, the Third-Party Services may use and share your information in accordance with the Third-Party Service's privacy policy and your privacy settings on such Third-Party Service. In addition, the third-party providing the Third-Party Service may use other parties to provide portions of the apps or service to you, such as technology, development or payment services. Fox is not responsible for and makes no warranties, express or implied, as to the Third-Party Services or the providers of such Third-Party Services (including, but not limited to, the accuracy or completeness of the information provided by such Third-Party Service or the privacy practices thereof). Inclusion of any Third-Party Service or a link thereto on the Fox Commute Services does not imply approval or endorsement of the Third-Party Service. Fox is not responsible for the content or practices of any websites other than the Fox Commute Services that link to this Agreement, even if the website links to the Fox Commute Service and even if it is operated by a Fox Affiliate or a company otherwise connected with Fox. By using the Fox Commute Services, you acknowledge and agree that Fox is not responsible or liable to you for: (a) any content or other materials hosted and served from any website, mobile site or app other than Fox Commute Services, or (b) any offline vanpool or carpool services you elect to participate in or use. When you access or use Third-Party Services, you do so at your own risk. Fox encourages you not to provide any personally identifiable information to or through any Third-Party Service unless you know and are comfortable with the party with whom you are interacting. . In establishing hypertext links, you must not represent in any way, expressly or by implication, that you have received the endorsement, sponsorship or support of Fox, including its respective employees, agents, directors, officers or shareholders.

 

Sweepstakes and/or Contests

 

Sweepstakes, contests, games and other promotions run on the Fox Commute Services by Fox may require you to provide some information such as full name, zip code, e-mail address, and phone number, in order to participate. Fox may use a reputable third-party, selected by, but not affiliated with Fox, to manage and administer some or all of its sweepstakes, contests, games and other promotions. This third-party may have access to some or all of the information that you provided in order to participate in the sweepstakes, contests, games or other promotion. Our sweepstakes and/or contests are targeted to individuals 18 years of age and older, and individuals under 18 years of age are not eligible to participate unless specifically permitted by the official rules of the related sweepstakes or contest. Fox may require proof of age in order for an individual to collect any prizes awarded.

 

Member Disputes

 

You are solely responsible for your interactions with other Fox users and visitors, providers of Third-Party Services, Processors or any other parties with whom you interact on, through or in connection with the Fox Commute Services. Fox reserves the right, but has no obligation, to become involved in any way with these disputes.

 

Privacy

 

Use of the Fox Commute Services is also governed by our Privacy Policy , which is incorporated into this Agreement by this reference.

 

Disclaimers

 

THE FOX COMMUTE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND FOX DOES NOT GUARANTEE OR PROMISE ANY SPECIFIC RESULTS FROM USE OF OR CONTINUOUS AVAILABILITY OF THE FOX COMMUTE SERVICES.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FOX EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FOR A COURSE OF PERFORMANCE OR COURSE OF DEALING.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FOX MAKES NO WARRANTY THAT YOUR USE OF THE FOX COMMUTE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS TO THE FOX COMMUTE SERVICES WILL BE CORRECTED, THAT THE FOX COMMUTE SERVICES OR THE SERVERS ON WHICH THEY ARE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY INFORMATION OBTAINED BY YOU ON, THROUGH OR IN CONNECTION WITH THE FOX COMMUTE SERVICES OR THIRD-PARTY SERVICES (INCLUDING, BUT NOT LIMITED TO, THROUGH USER CONTENT OR THIRD-PARTY ADVERTISEMENTS) WILL BE ACCURATE, RELIABLE, TIMELY OR COMPLETE.  UNDER NO CIRCUMSTANCES WILL FOX OR OUR FOX AFFILIATES BE RESPONSIBLE FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) RESULTING FROM USE OF THE FOX COMMUTE SERVICES, PROBLEMS OR TECHNICAL MALFUNCTION IN CONNECTION WITH USE OF THE FOX COMMUTE SERVICES, ATTENDANCE AT A FOX EVENT, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH THE FOX COMMUTE SERVICES, ANY USER CONTENT, ANY THIRD-PARTY ADVERTISEMENT OR THIRD-PARTY SERVICE TRANSMITTED ON, THROUGH OR IN CONNECTION WITH THE FOX COMMUTE SERVICES, OR THE CONDUCT OF ANY USERS OF THE FOX COMMUTE SERVICES, WHETHER ONLINE OR OFFLINE.  YOUR USE OF USER CONTENT, THIRD-PARTY ADVERTISEMENTS, THIRD-PARTY SERVICES AND THE GOODS OR SERVICES PROVIDED BY ANY THIRD-PARTIES IS SOLELY YOUR RESPONSIBILITY AND AT YOUR OWN RISK.

YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE FOX COMMUTE SERVICES, AND ANY INFORMATION TRANSMITTED OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES.  YOU ASSUME RESPONSIBILITY FOR THE ENTIRE COST OF ANY MAINTENANCE, REPAIR OR CORRECTION TO YOUR COMPUTER SYSTEM OR OTHER PROPERTY OR RECOVERY OR RECONSTRUCTION OF LOST DATA NECESSITATED BY YOUR USE OF THE FOX COMMUTE SERVICES. User Content, third-party advertisements and Third-Party Services do not necessarily reflect the opinions or policies of Fox or our Fox Affiliates.

 

Limitation on Liability

 

IN NO EVENT WILL FOX OR OUR FOX AFFILIATES BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE FOX COMMUTE SERVICES, EVEN IF FOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN JURISDICTIONS THAT DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF SUCH DAMAGES, FOX AND OUR FOX AFFILIATES’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, FOX AND OUR FOX AFFILIATES’ 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 FOX, FOR THE FOX COMMUTE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM.

YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF FOX’S ACTS OR OMISSIONS OR YOUR USE OF FOX COMMUTE SERVICES ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE FOX COMMUTE SERVICES.

THE LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF FOX HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.

 

United States Jurisdiction

Fox provides the Fox Commute Services in the United States of America.  Fox does not represent that the Fox Content or Fox Commute Services are appropriate (or, in some cases, available) for use in other locations. If you use the Fox Commute Services from a jurisdiction other than the United States, you agree that you do so of your own initiative, and you are responsible for complying with local laws as applicable to your use of the Fox Commute Services.

 

Not all of the Fox Commute Services are available worldwide or nationwide, and Fox makes no representation that you will be able to obtain any Fox Commute Services in any particular jurisdiction, either within or outside of the United States.

 

U.S. Export Controls

 

Software available in connection with the Fox Commute Services (the "Software") is further subject to United States export controls. No Software may be downloaded from the Fox Commute Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.

 

Arbitration Agreement

 

(1) Fox, including its Fox Affiliates, agents, employees, predecessors in interest, successors, and assigns, and you agree that any and all disputes and claims that each of you and Fox may have against the other that arise out of or relate to the Fox Commute Services and your use of them, including the breach, termination, enforcement, interpretation or validity of this Agreement, including the agreement to arbitrate (the “Arbitration Agreement”) and the scope or applicability of this Arbitration Agreement (collectively, “Disputes”), including but not limited to the arbitrability of any and all Disputes, and even if the events giving rise to Disputes occurred before this Arbitration Agreement became effective, will be resolved in a binding, confidential, individual and fair arbitration process, and not in court.  Each of you and Fox agrees to give up the right to sue in court.  Each of you and Fox also agrees to give up the right to have Disputes heard by a jury and the ability to seek to represent, in a class action or otherwise, anyone but each of you and Fox (see paragraph 9 of this Arbitration Agreement below).  The only exceptions to this Arbitration Agreement are that (i) each of you and Fox retains the right to sue in small claims court and (ii) each of you and Fox may bring suit in court against the other to enjoin infringement or other misuse of intellectual property rights.

 

(2) This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration Agreement.  This Arbitration Agreement shall survive termination of this Agreement.

 

(3) Any arbitration between you and Fox will be conducted by the American Arbitration Association (the “AAA”) and will be governed by the AAA’s Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement.  The AAA Rules are available online at www.adr.org, or by calling the AAA at 1-800-778-7879.  The arbitration will be conducted by a single arbitrator.  If you and we cannot agree on who that single arbitrator should be, then the AAA shall appoint an arbitrator with significant experience resolving the type of Dispute at issue.  The arbitrator is bound by the terms of this Agreement.

 

(4) If either you or Fox wants to arbitrate a Dispute, you or Fox must first send by mail to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the Fox Commute Service to which the Notice relates, and the relief requested.  Your Notice to Fox must be sent by mail to Arbitration Notice of Dispute, 2121 Avenue of the Stars, 7th Floor, Los Angeles, California, 90067.  The Fox will send any Notice to you at the contact information we have for you or that you provide.  It is the sender’s responsibility to ensure that the recipient receives the Notice.  During the first 45 days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute.  If you and we do not resolve the Dispute within those first 45 days, either you or we may initiate arbitration in accordance with the rules and procedures provided for by the AAA.  A form for initiating formal arbitration may be found on the AAA’s website at www.adr.org (“Arbitration Form”).  In addition to filing this Arbitration Form with AAA in accordance with its rules and procedures, you must send a copy of this completed Arbitration Form to the Fox at the address listed above to which you sent your Notice of Dispute. 

 

 (5) AAA charges fees to conduct arbitrations.  Ordinarily, the claimant has to pay that fee to start a case, but if you wish to commence an arbitration against Fox, and you are seeking to recover less than $10,000 (inclusive of attorneys’ fees), you will not have to pay this filing fee; Fox will pay it on your behalf.  If you are seeking to recover $10,000 or more, you will have to pay the filing fee charged by AAA, but Fox will reimburse that fee if you win the arbitration.

 

(6) If you are seeking to recover $10,000 or less, AAA rules provide that the Dispute should be resolved without a hearing, by submission of documents only.  Either you or we may request a hearing, however, and be responsible for the fees associated with it.  If the arbitrator recommends a hearing even if neither you nor we request one, Fox will pay the arbitrator’s fees associated with the hearing.  If the claim is for more than $10,000, the manner and place of the hearing will be determined in accordance with the AAA Rules.

 

(7) Regardless of how the arbitration proceeds, the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions.

 

(8) Each of you and Fox may incur attorneys’ fees during the arbitration.  In addition to whatever rights you may have to recover your attorneys’ fees under Applicable Law, if you prevail in the arbitration, and if Fox failed to make a settlement offer to you before the arbitration or the amount you win is at least 25% greater than Fox’s highest settlement offer to resolve the Dispute, then Fox will pay your reasonable attorneys’ fees in addition to the amount the arbitrator awarded.  If Fox wins the arbitration, you will be responsible for your own attorneys’ fees.  In addition, if the arbitrator, at the request of the winning party, finds that the losing party brought a Dispute or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by Applicable Law.

(9) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.  The arbitrator may not order Fox to pay any monies to or take any actions with respect to persons other than you, unless Fox explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order.  YOU AND FOX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING.  Further, unless Fox agrees, the arbitrator may not consolidate other persons’ claims with yours, and may not otherwise preside over any form of a representative, multi-claimant or class proceeding.  If this specific provision is found to be unenforceable, then the entirety of this Arbitration Agreement shall be null and void, but the rest of this Agreement, including the provisions governing where actions against Fox must be pursued, will remain in effect.

 

(10) You and Fox agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation,  proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or court order.

 

Governing Law

 

This Agreement will be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of law provisions. Except with respect to Disputes to be resolved through an arbitration process in accordance with the Arbitration Agreement contained above, you and Fox agree to submit to the exclusive jurisdiction of the courts located in New York, New York to resolve any Dispute arising out of this Agreement or the Fox Commute Services.

 

YOU HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD-PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.

 

YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE FOX COMMUTE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ACCRUES. AFTER SUCH PERIOD, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

 

Indemnity

 

You agree to indemnify and hold Fox, its Fox Affiliates, subcontractors and other partners, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including, but not limited to, reasonable attorneys' fees, made by any third-party due to or arising out of or in connection with your use of the Fox Commute Services, your breach of this Agreement, your violation of any rights of another or any User Content that you post or otherwise submit on, through or in connection with the Fox Commute Services.

 

Unsolicited Submissions

 

Fox does not knowingly accept, via the Fox Commute Services or otherwise, unsolicited submissions including, without limitation, submissions by you of blog ideas, articles, scripts, story lines, fan fiction, characters, drawings, information, suggestions, proposals, ideas or concepts. Fox requests that you do not make any unsolicited submissions.  Any similarity between an unsolicited submission and any elements in any Fox or Fox Affiliate creative work, including without limitation, a film, series, story, title or concept would be purely coincidental. If you do send any submissions to Fox via the Fox Commute Services that are unsolicited (including but not limited to any Forum), however, you agree that (i) your unsolicited submissions are not being made in confidence or trust and that by making such submissions, no contractual or fiduciary relationship is created between you and Fox; (ii) any such unsolicited submissions and copyright becomes the property of and will be owned by Fox (and are not User Content licensed by you to Fox under “Your Proprietary Rights in and License to Your User Content”) and may be used, copied, sublicensed, adapted, transmitted, distributed, publicly performed, published, displayed or deleted as Fox sees fit; (iii) you are not entitled to any compensation, credit or notice whatsoever in connection with such unsolicited submissions; and (iv) by sending an unsolicited submission, you waive the right to make any claim against Fox or Fox Affiliates relating to any unsolicited submissions by you, including, without limitation, unfair competition, breach of implied contract or breach of confidentiality.

 

Other

The failure of Fox to exercise or enforce any right or provision of this Agreement will 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.  This Agreement operates to the fullest extent permissible by law.  Except as otherwise expressly provided herein, 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.

You agree that any notices Fox may be required by Applicable Law to send to you will be effective upon Fox’s sending an e-mail message to the e-mail address you have on file with Fox or publishing such notices on the informational page(s) of Fox Commute Services.

 

You agree that no joint venture, partnership, employment, or agency relationship exists between you and Fox as a result of this Agreement or your use of the Fox Commute Services.  A printed version of this Agreement and of any notice related to it shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other business documents and records originally generated and maintained in printed form.

 

Nothing contained in this Agreement limits Fox’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Fox Commute Services or information provided to or gathered by us in connection with such use.

 

If you would like to contact Fox with any questions regarding this Agreement, please contact us at FoxCommute.Feedback@fox.com.

I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.