You may also be subject to additional terms and conditions when you use third-party content, services, or software (including Applications) accessed through or promoted on the Site.
1. REGISTRATION AND ORDERING OBLIGATIONS
In consideration of your use of the Site and/or Applications, you agree to provide true, accurate and complete information about yourself as prompted by the Site registration or ordering process, provided that in connection with registration, you do not need to, and should not, use your full or true name for your username. In addition, you agree to update that information in order to maintain its truth, accuracy and completeness. Switch.TV may deny you access to the Site or reject your order in the event that your information is untrue, inaccurate or incomplete.
2. AGREEMENT TO DEAL ELECTRONICALLY
All transactions with or through the Site or Switch.TV may, at Switch.TV's option, be conducted electronically. Switch.TV may keep records of any type of communication conducted via the Site. All electronic records are deemed sent when they are properly addressed to the recipient and the record enters an information processing system outside the control of the sender or the record enters a region of an information processing system under the recipient's control. All electronic records are received when the record enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent, in a form capable of being processed by that system, and from which the recipient is able to retrieve the electronic record.
3. OBLIGATION FOR USING YOUR PASSWORD
ALL CONTENT OR INSTRUCTIONS TRANSMITTED BY OR RECEIVED FROM ANYONE PRESENTING YOUR PASSWORD ON THE SITE WILL BE DEEMED BINDING ON YOU. You agree that you are solely liable for all actions taken via your password, whether or not made with your knowledge or authority. You agree to guard your password carefully, with the full awareness that a failure to keep it secure will enable others to engage in transactions through the Site for which you will be legally responsible. If you suspect that someone may have obtained access to your password who is not intended to have authority to act on your behalf, please contact Switch.TV immediately to authorize Switch.TV to deny access to the Site to anyone else presenting your password.
4. LIMITED NON-COMMERCIAL LICENCE TO USE SITE
Switch.TV hereby grants you the limited right to view and use the Site only for the purposes of viewing or using content such as films or animations, posting Materials, placing product orders or for accessing information, Applications and services. Switch.TV reserves the right to suspend or deny, in its sole discretion, your access to all or any portion of the Site as described in Section 18. This license is limited to personal and non-commercial uses by you. Any rights not expressly granted to you herein are reserved to Switch.TV. No portion of this Site is targeted to children, and any minor should seek consent of his or her legal guardian before using this site. Unless you have received specific written permission from Switch.TV, you may not (a) "frame" or otherwise impose editorial comment, commercial material or any information or content on, or in proximity to, content displayed on the Site or (b) alter or modify any content on the Site. Without limiting other restrictions, you agree not to reproduce, transmit, sell, or otherwise exploit the Site and/or Applications for any commercial purpose.
The Site may allow users to upload, post, and/or distribute user submitted content, and use of the Site for this purpose is subject to the following conditions:
- You understand that all postings, messages, user feedback, data, comments, suggestions, information, text, data, software, sounds, photographs, audio, audiovisual, video, artwork, graphics, files and other materials of any nature ("Materials") that are transmitted to or via the Site are the sole responsibility of the person from which the Materials originated. This means that the person who submitted the Materials, and not Switch.TV, is entirely responsible for the Materials transmitted through the Site. Further, you understand that by using the Site you may be exposed to Materials that are offensive, objectionable or indecent. You agree that you must evaluate, and bear all risks associated with, the use of any Materials, that you may not rely on said Materials, and that under no circumstances will Switch.TV be liable in any way for any Materials or for any loss or damage of any kind incurred as a result of the use of any Materials posted, emailed or otherwise made available via the Service.
- You shall not create a user name or screen name or upload to, distribute through or otherwise publish through the Site any Materials which are indecent, libelous, defamatory, obscene, threatening, invasive of privacy or publicity rights, abusive, illegal, harassing, contain expressions of hatred, bigotry, racism or pornography, or are otherwise objectionable, or that would constitute or encourage a criminal offense, violate the rights of any party or violate any law.
- Your Materials, user name and/or screen name will not disparage in any manner Switch.TV, its Licensors, or their Applications, products, or services and sites.
- Your Materials shall not infringe the copyright, trademark, publicity/privacy right or other intellectual property right of any third party.
- You shall not upload to, distribute through or otherwise publish through the Site any Materials that are directly or indirectly commercial in nature or contain any solicitation of funds, promotion, advertising or solicitation for goods or services, including but not limited to "chain letters" "promo-codes", "pyramid schemes" and "spam". You specifically acknowledge that soliciting other users to join or become users or members of any commercial online web site or other organization is expressly prohibited.
- You shall not upload to, distribute through or otherwise publish through the Site any Materials that contain viruses or any other computer code, corrupt files or programs designed to interrupt, destroy or limit the functionality or disrupt any software, hardware, telecommunications, networks, servers or other equipment.
- You agree not to post or otherwise make available Materials that disrupt the normal flow of message board dialogue with an excessive number of messages (i.e. flooding attack) or that otherwise negatively affects other users' ability to use message boards.
- You agree not to employ misleading email addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Materials transmitted through the Site.
- You agree not to post or otherwise make available Materials that impersonate any person or entity, including but not limited to a Switch.TV employee, or falsely state or otherwise misrepresent your affiliation with a person or entity.
- You agree not to post or otherwise make available Materials that include personal or identifying information about another person without that person's explicit consent or that is false, deceptive, misleading, deceitful, or misinformative.
- You agree not to use message boards to contact anyone who has asked not to be contacted; "stalk" or otherwise harass anyone; collect personal data about other users for commercial or unlawful purposes; to post repeatedly the same or similar messages or otherwise impose unreasonably large loads on our infrastructure; use automated means, including spiders, robots, crawlers, or other data-mining tools or the like to download data from the message boards.
You acknowledge that Switch.TV does not pre-screen any Materials posted by you or other users, but that Switch.TV and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Materials. Without limitation, Switch.TV and its designees shall have the right to remove any Materials that violate the Terms or are otherwise objectionable, as well as terminate your access to the Site.
Switch.TV may establish practices and limits concerning the use of the Site and Applications, including the maximum disk space that will be allotted to your use. You agree that Switch.TV has no liability or responsibility for the storage or deletion of any Materials that you submit or post. Switch.TV reserves the right to change these general practices and limits at any time in its sole discretion, with or without notice.
Violations of Terms and Liquidated Damages
Please report any violations of the Terms, by flagging the posting(s) for review, or by emailingOur failure to act with respect to a breach by you or others does not waive Switch.TV's right to act with respect to subsequent or similar breaches.
You understand and agree that, because damages are often difficult to quantify, if actual damages cannot be reasonably calculated then you will be liable to pay Switch.TV liquidated damages as follows:
- If you post a message that (1) impersonates any person or entity; (2) falsely states or otherwise misrepresents your affiliation with a person or entity; or (3) that includes personal or identifying information about another person without that person's explicit consent, you agree to pay Switch.TV one thousand dollars ($1,000) for each such message.
- If Switch.TV establishes limits on the frequency with which you may access the Service, or terminates your access to or use of the Site, you agree to pay Switch.TV one hundred dollars ($100) for each message posted in excess of such limits or for each day on which you access the Site in excess of such limits, whichever is higher.
- If you send unsolicited email advertisements to Switch.TV email addresses or through Switch.TV computer systems, you agree to pay Switch.TV twenty five dollars ($25) for each such email.
Otherwise, you agree to pay Switch.TV's actual damages, to the extent such actual damages can be reasonably calculated.
5. LIMITED NON-COMMERCIAL LICENCE TO USE APPLICATIONS
Switch.TV may offer you the ability to use Applications. For example, Switch.TV may provide chat areas, bulletin boards, e-mail functions, software that allows you to download specific content from the Sites to your computer. Without limiting your obligations and restrictions described in Section 4, your limited license to use the Applications is subject to the following conditions:
- The Applications that are made available to you are the copyrighted work of Switch.TV and/or its suppliers. The use of each Application is governed by the end user license agreement ("EULA") that accompanies or is included in the Application or is expressly stated on the Site pages accompanying the Application and these Terms. In the event that no EULA accompanies the Application, then the Terms shall govern your use of the Application. You may not download or use any Application from the Site without agreeing to the EULA, if any, and these Terms. Certain Applications may be owned by third parties and distributed under a third party EULA and you agree that Switch.TV shall not be responsible for any loss or damage of any sort relating to your dealings with such third parties.
- Unless expressly stated otherwise in the EULA, you are granted only a limited license to download and/or use the Application from a single computer for personal and non-commercial purposes. You may not make copies of or distribute the Application or electronically transfer the Application from one computer to another or over a network, nor may you separate any content from an associated Application. You may not decompile, reverse engineer, disassemble or otherwise reduce the Application to human perceivable form. You may not rent, lease or sublicense the Application. You may not create derivative works of the Application and you may not export the Application in violation of any New South Wales (Australia) or foreign law, rule or regulation. All rights in Applications not specifically granted to you in writing by Switch.TV are reserved to Switch.TV.
- Switch.TV may cease support of any Application at any time in its sole discretion, as further described in Section 18.
- Applications you use or download from the Sites may contain third party digital rights management systems ("DRMS") which may allow for communication between your software and the third party and utilize security features (e.g., preventing distribution of or access to the applications in the event of unauthorized use). These DRMS are subject to their own license agreements and you agree that Switch.TV shall not be responsible for any loss or damage of any sort relating to the use of the DRMS or your dealings with such third parties. The Applications may also contain DRMS produced by Switch.TV which allow for communication between the applications you use or download and our systems and which collect information describing your computer system in order to prevent illegal or unauthorized use of the applications. More specifically, the DRMS for subscription services and Applications licensed from the Site may transmit the following pieces of information, along with other information, when you either enter a purchase key or sign in with your subscription service user name and password: Operating System, CPU Version Information (including serial number from a serial-number-enabled Pentium III), BIOS Version Information, NetBIOS Computer Name, DOS HD Serial Number, Hard Drive Size / Geometry, S.M.A.R.T. IDE HD Serial Number, Network Card MAC Address, IP Address and Size of Physical Memory.
6. COPYRIGHTS AND TRADEMARKS
EXCEPT AS EXPRESSLY PROVIDED HEREIN BY THESE TERMS, NEITHER SWITCH.TV, ITS AFFILIATES, NOR ANY THIRD PARTY HAS CONFERRED UPON YOU BY IMPLICATION, ESTOPPEL OR OTHERWISE, ANY LICENCE OR RIGHT UNDER ANY PATENT, TRADEMARK, COPYRIGHT OR OTHER PROPRIETARY RIGHTS TO USE THE SITE OR ANY APPLICATIONS OFFERED ON THE SITE. NO OWNERSHIP RIGHTS ARE OR WILL BE ASSIGNED TO YOU.
Switch.TV will not tolerate copyright infringement and reserves the right to block, disable, or otherwise remove any content or materials uploaded to the Site as well as terminate access to the Site if you engage in copyright or other intellectual property infringement. The law provides for civil and criminal penalties for copyright and other intellectual property law infringements. Displaying, performing, storing, copying, distributing, or otherwise making available or using any content from the Site or Applications is prohibited, unless specifically authorized by Switch.TV. Accordingly no such content or Applications may be used on another web site without express written permission from Switch.TV.
8. SUBMITTING MATERIALS AND FEEDBACK
Unless you enter into a separate written agreement with Switch.TV, Switch.TV does not claim ownership in Materials you submit, however, by submitting Materials (other than films submitted via the "Submit A Film" process) in any form to Switch.TV, in addition to other provisions of the Terms, you automatically grant Switch.TV a royalty-free, world-wide, non-exclusive, and assignable right and license to use, copy, reproduce, publish, transmit, distribute, publicly display and publicly perform such Materials for the purpose of displaying and promoting the Materials on any website operated by, and in any related marketing materials produced by, Switch.TV and its affiliates. You obtain no rights in any form, media, or technology incorporating the Materials. If you want to submit films via the "Submit A Film" process, you should read the.
You agree to indemnify and hold Switch.TV, its parent company, affiliates, officers, agents, partners and employees harmless from any claim or demand, including reasonable legal fees, arising out of your content and materials, your use of the Site, your violation of these Terms or your violation of any third party's rights including such party's copyrights and trademarks.
10. DISCLAIMER OF WARRANTIES
EXCEPT IF EXPRESSLY PROVIDED OTHERWISE IN A WRITTEN AGREEMENT (SUCH AS A EULA) BETWEEN YOU AND SWITCH.TV, THE SITE AND APPLICATIONS OFFERED AT OR THROUGH THE SITE ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND AND WITH ALL RISKS. SWITCH.TV HEREBY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW :
(A) ALL WARRANTIES EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; AVAILABILITY OF THE SITE; LACK OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES; ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, CURRENCY, OR USEFULNESS OF ANY INFORMATION ON THE SITE; AND
(B) ANY DUTIES OF REASONABLE CARE, WORKMANLIKE EFFORT OR LACK OF NEGLIGENCE IN CONNECTION WITH THE SITE, APPLICATIONS, OR RELATED INFORMATION. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IN CONNECTION WITH THE SITE, APPLICATIONS, AND RELATED INFORMATION IS BORNE BY YOU. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN ADDITION, SWITCH.TV DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, TITLE OR QUIET ENJOYMENT IN CONNECTION WITH THE SITE, APPLICATIONS, AND RELATED INFORMATION.
11. ASSUMPTION OF RISKS AND MATURE CONTENT
YOU ASSUME ALL RISKS THAT THE SITE, APPLICATIONS, AND RELATED INFORMATION ARE SUITABLE OR ACCURATE FOR YOUR NEEDS AND WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. ANY APPLICATIONS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SITE ARE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR LOSS OF DATA. BY PARTICIPATING IN MULTI-PLAYER GAMES OR VISITING CHAT ROOMS YOU MAY BE EXPOSED TO RUDE, CRUDE, INDECENT, OR OTHER OFFENSIVE LANGUAGE OR REFERENCES. YOU AGREE THAT SWITCH.TV SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE OF ANY SORT RELATING TO YOUR DEALINGS WITH ANY THIRD PARTY ADVERTISER OR CONTENT PROVIDER ON THE SITE.
Switch.TV wishes to assist parents in their efforts to screen the material that their children can view online. We attempt to ensure that no content that might be given an "R" rating for viewing in New South Wales is shown on Switch.TV. While no parental software package replaces careful supervision of Internet use by children, these parental software products may be useful. Some sample parental software products include but are not limited to: Net Nanny (http://www.netnanny.com), Cyber Patrol (http://www.cyberpatrol.com), Cybersitter (http://www.solidoak.com). Please be advised that Switch.TV does not endorse any one parental software package and is not responsible for the malfunction of any parental software package that you may chose to use.
12. NO INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER DAMAGES
TO THE MAXIMUM EXTENT ALLOWED BY LAW, YOU AGREE THAT NEITHER SWITCH.TV NOR ANY OF SWITCH.TV'S AFFILIATES OR AGENTS WILL BE LIABLE TO YOU AND/OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF PRIVACY OR FOR FAILURE TO MEET ANY DUTY INCLUDING BUT NOT LIMITED TO ANY DUTY OF GOOD FAITH, LACK OF NEGLIGENCE OR OF WORKMANLIKE EFFORT) OR ANY OTHER INDIRECT, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER THAT ARISE OUT OF OR ARE RELATED TO THE SITE, APPLICATIONS OR RELATED INFORMATION, OR TO ANY BREACH OF THESE TERMS, EVEN IF SWITCH.TV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
13. LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY
YOU AGREE THAT YOUR SOLE REMEDY FOR ANY BREACH OF THESE TERMS BY SWITCH.TV OR ANY OF SWITCH.TV'S AFFILIATES OR AGENTS SHALL BE, AT SWITCH.TV'S OPTION, (1) SUBSTITUTION OR REPLACEMENT OF ALL OR PART OF THE APPLICATION OR PRODUCT THAT GIVES RISE TO DAMAGES INCURRED BY YOU IN REASONABLE RELIANCE ON SWITCH.TV; OR (2) REFUND OF THE AMOUNT THAT YOU PAID TO SWITCH.TV. YOU AGREE THAT THE DAMAGE EXCLUSIONS IN THESE TERMS SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant for the benefit of Switch.TV, Switch.TV's suppliers, and any third parties mentioned on the Site, in addition to other representations and obligations contained in these Terms, that: (a) you possess the legal right and ability to enter into and make the representations and warranties contained in these Terms; (b) all information submitted by you to the Site is true and accurate; (c) you will keep your registration information current; (d) you will be responsible for all use of your password even if such use was conducted without your authority or permission; (e) you will not use the Site for any purpose that is unlawful or prohibited by these Terms; (f) you are the owner of the Materials and they are original to you; (g) the Materials do not infringe any third party right, such as copyright, trademark, and publicity/privacy right; (h) the Materials do not constitute defamation or libel or otherwise violate the law, and (i) you agree to defend, indemnify, and hold Switch.TV (and its employees, representative, agents, and assigns) harmless from breaches of (a) through (h).
15. LINKS; ADVERTISERS
The Site contains links to third party sites that are not under the control of Switch.TV and Switch.TV is not responsible for any content on any linked site. If you access a third party site from the Site, then you do so at your own risk. Switch.TV provides links only as a convenience and the inclusion of the link does not imply that Switch.TV endorses or accepts any responsibility for the content on those third party sites. Additionally, your dealings with or participation in promotions of advertisers found on the Site, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Switch.TV shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
16. INTERNATIONAL USAGE
This Site is controlled and operated by Switch.TV from its offices within New South Wales, Australia. Switch.TV makes no representation that the Site, Applications, or related information offered by Switch.TV are appropriate or available in other locations. Those who choose to access the Site from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
The Site, Applications, and related information are the exclusive property of Switch.TV or its suppliers. All rights not licensed herein are hereby reserved to Switch.TV or its suppliers.
18. TERMINATION OR CANCELLATION OF SITE ACCESS; MODIFICATIONS TO SITE AND APPLICATIONS
If you violate these Terms, Switch.TV may terminate or cancel your access rights to the Site and/or Applications immediately without notice. Switch.TV may also block your use of the Site and/or Applications or direct you to cease using it. Switch.TV reserves the right at any time to modify or discontinue the Site, Applications, or any part thereof and you agree that Switch.TV shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site, Applications, or any part thereof, except you may receive a pro-rata refund in the event such modification, suspension, or discontinuance materially affects your access to those parts of the Site or Applications that you have paid for.
19. EXCLUSIVE JURISDICTION
These Terms shall be governed by the laws of the State of New South Wales without regard to its conflict of law provisions. Any disputes arising under or related in any way to these Terms, the Site or any Application shall be litigated or otherwise heard in the appropriate forum in New South Wales. The parties hereto hereby consent to the exclusive jurisdiction of the courts in New South Wales, and hereby waive any claim or defence that such forum is not convenient or proper, and consent to service of process by any means authorized by New South Wales law.
20. ENTIRE AGREEMENT
You agree that Switch.TV may amend or modify these Terms or impose new conditions at any time by updating these Terms on the Site or upon notice from Switch.TV to you as published through the Site or by email. Any use of the Site or order by you after such updating shall be deemed to constitute acceptance of such amendments, modifications, or new conditions. If you do not want to be bound by an amendment, you will need to terminate your registration, if any, and refrain from using the Site or using or ordering Applications after that date. No other amendments will be valid unless they are in a paper writing signed by Switch.TV and by you.
Except as expressly stated otherwise, any notices required or allowed under these Terms shall be given to Switch.TV by postal mail to: Switch TV Pty Ltd., P.O. Box R963, Royal Exchange, Sydney NSW 1225, Australia, or as to a successor address that Switch.TV makes available on the Site or through other reasonable manner. If applicable law requires that Switch.TV accepts email notices (but not otherwise), then you may send Switch.TV email notice using Switch.TV's. With respect to Switch.TV's notices to you, Switch.TV may provide notice of amendments by posting them in the Site and you agree to check for changes. Instead or in addition, Switch.TV may give notice by sending email to the email address you provide during registration. Notice shall be deemed given 24 hours after it is posted or an email is sent, unless (as to email) the sending party is notified that the email address is invalid.
Last Updated on April 25, 2006.