TERMS OF USE

 

Last Updated: August 24, 2023

 

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE CREATING AN ACCOUNT (DEFINED BELOW) WITH OR USING THE SERVICES (DEFINED BELOW) FROM ARIVO ENTERTAINMENT, LLC D/B/A FTWIN360 BY USING THE SERVICES OR BY INDICATING YOUR ASSENT TO THESE TERMS OF USE BY REGISTERING YOUR ACCOUNT, CLICKING “I ACCEPT” OR ANY SIMILAR MECHANISM, YOU ARE CONSENTING TO BE BOUND BY THESE TERMS OF USE.

 

1. DESCRIPTION OF SERVICE AND ACCEPTANCE OF TERMS OF USE

 

1.                These Terms of Use (“ Terms ” or “ Terms of Use ”) form a binding agreement between Arivo Entertainment, LLC d/b/a FTWin360 (“ Arivo ”, “ we ”, “ us ”, “ our ”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “ you ”, “ you ”, “ your ”) as of the earliest date you first access the Services or indicate your assent, as set forth below, to these Terms (the “ Effective Date ”). The Arivo online video platform provides users (“ Users ”) with the ability to access and view a variety of live and on-demand programming, including television shows, movies, clips, and other audiovisual content and other information, data, and content (“ Content ”) through the Arivo website and all other websites web services, applications, and video players provided and operated by Arivo (collectively, the “ Platform ”). The Platform, Content and additional services, functionality and resources (“ Services ”) are made available solely under these Terms.

 

2.                Your access and use of the Services is conditioned on your acceptance of and compliance with these Terms, which incorporate by reference our Privacy Policy available at www.FTWin360.com/privacy (“ Privacy Policy ”). Therefore, by accessing, visiting, downloading, or using any of our Services, you confirm that you have read and agree to these Terms and to the terms of Arivo’s Privacy Policy and the collection, use and sharing of information, including without limitation your personal information, described therein. If you do not agree to these Terms or Privacy Policy, then do not access or use any of our Services

 

2. ACCOUNTS AND REGISTRATION

 

1.                The Services require you to register as a User of the Platform by creating an account in order to access certain Content and other Services (an “ Account ”). Approval of your request to establish and maintain any Account will be at the sole discretion of Arivo.

 

2.                Your Account and the User identification and password for Your Account (Your “ Account ID ”) is personal in nature. You may not distribute or transfer Your Account or Account ID or provide a third-party with the right to access your Account or Account ID. You are solely responsible for all use of the Platform and all Content and Services through your Account. You should safeguard your Account ID. Do not share your Account ID and take steps to prevent access to your Account by other persons.   You agree to notify Arivo immediately if your Account ID is lost, stolen, or otherwise compromised. You are solely responsible for all use of your Account and Account ID regardless of whether you authorized such access or use, and for ensuring that all use of your Account complies fully with these Terms. You are solely responsible for your own losses and losses incurred by Arivo and others (including other Users) due to any unauthorized use of your Account or Account ID (whether lawful or unlawful) and any transactions completed through your Account or under   your Account ID will be deemed to have been lawfully completed by you. We reserve the right to deny the creation of any Account in our discretion.

 

3.                In connection with establishing your Account, you will be asked to submit certain information about yourself to create and use log-in credentials, such as an email address or mobile phone number (“ Account Information ”). Arivo will use the Account Information you provide in accordance with Arivo’s Privacy Policy.   You acknowledge and agree that Arivo may rely on the subsequent use of your log-in credentials to provide access to your Account and the Account Information you have provided.   You agree that: (a) all Account Information you provide will be accurate, complete and current; and (b) you will maintain and promptly update your Account Information to keep it accurate, complete and current. You are solely responsible for confirming the set-up and configuration of your Account in all respects and for making all changes and updates thereto.

 

4.                By registering for an Account, you hereby consent to receive electronic communications from Arivo related to such Account and our Services. These communications may involve sending emails to the email address you provided during registration, or delivering electronic communications via your Account, and will include notices about your Account (e.g., payment authorizations, password or payment method changes, confirmation e-mails, notices, and other similar information); these communications are part of our Services and your relationship with us. You agree that any notice, agreements, disclosures, or other communications that we send to you electronically, as described herein, will satisfy any legal communication requirements. You also consent to receiving other electronic communications from us, such as newsletters about new Services features and content, special offers, promotional announcements, and customer surveys. If you no longer want to receive certain non-transactional communications via email, click on the “Unsubscribe” link contained in any email, or on any other link that indicates that you would like to be removed from future, similar non-transactional communications.

 

5.                 If you choose to use your mobile phone number in connection with the Services, you agree that we may contact you via phone or text message for administrative purposes. Even for Services for which Arivo does not charge, standard message and rates may apply from your mobile or wireless device carrier. Your carrier may charge you for each text message sent and received. Contact your carrier for text messaging rates and terms applicable to your plan. You are solely responsible for any fees or charges incurred from participating in the Services.

 

3. ACCESS AND USE OF SERVICES

 

1.                The Platform and all Content and Services are not intended to be used by children without involvement and approval of a parent or other legal guardian. If you are under the age of 13, then you are not permitted to register with us or provide your personal information to us. If you are between the ages of 13 and 18, you may register with us only if your parent or legal guardian has read and agreed to these Terms of Use and you have the consent of your parent or legal guardian.

 

2.                The Platform may be accessed through the Arivo website and other websites (each a “ Site ”) or using web services, applications, and video players (each, an “ Application ”) provided and operated by Arivo.

 

3.                Subject to Your compliance with these Terms, Arivo will permit you to download, install and operate Applications to access and use the Platform solely for your own lawful, personal, non-commercial uses and solely in accordance with these Terms.   You may install each Application only on devices or equipment owned or controlled by you.

 

4.                The Platform will provide you with the ability to access to a variety of Content, including, text, audio, video, recordings, graphics, charts, photographs, icons, stills, illustrations, and other data, information and content. Unless otherwise noted on the Platform, all Content available through the Platform is owned or controlled by Arivo and Arivo’s third-party licensors and providers. The Content and the Services are also protected by copyright, trademark, and other intellectual property laws. Arivo grants to you a non-exclusive limited license to use the Services, including accessing and viewing the Content on a streaming-only basis through the Platform, within the United States of America and its territories, possessions, and commonwealths only, for personal, non-commercial purposes, as set forth in these Terms. The periods during which you can view each piece of Content will vary based on the rights availability of such Content and the terms of your Subscription. The Services may include different Content offerings, features, and usage rules.

 

5.                 You agree to use our Services, including all features and functionalities associated therewith, in accordance with all applicable laws (e.g., public performance limitations or other restrictions on any use of our Services or contents therein).   You will not and will not permit any third-party to: to archive, download (other than through caching necessary for personal use), reproduce, distribute, modify, display, perform, publish, license, create derivative works from, offer for sale, or otherwise use or gain access to, index, frame or link to our Services or any portion of our Services (including the Content), except as explicitly authorized in these Terms, without express written permission from Arivo (including 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 the Services). You also agree not to: circumvent, remove, alter, deactivate, degrade, thwart or otherwise interfere with any of our Services; use any robot, spider, scraper or other automated means to access our Services; decompile, reverse engineer or disassemble any of our Services (e.g., software or other products); insert any code or product, or otherwise manipulate or interfere with our Services (e.g., running any of our Services on a device not permitted for use by us); or, use any data mining, data gathering, or extraction method. In addition, you agree not to upload, post, e-mail, or otherwise send or transmit any material designed to interrupt, interfere with, destroy, or limit the functionality of any of our Services, or other software, hardware, or telecommunications equipment associated with our Services (e.g., any software viruses or any other computer code, files, or programs).   In the event that we learn that you are using any Service in a manner that constitutes infringement of third-party intellectual property rights, including rights granted by U.S. copyright law, your Membership Account will be terminated.

 

6.                 You are solely responsible for obtaining and maintaining all equipment, mobile devices, facilities, and internet connectivity required to access or use the Platform, Services, Applications and Content provided through them. In order to access and use Arivo’s Platform, Services, Applications and Content, you must have a broadband, wireless or similar internet connection, and you will need to obtain such internet connection (including sufficient levels and required equipment related thereto) from a third-party internet or similar wireless service provider at your sole cost and expense (“ Internet Connectivity ”).   Arivo makes no representations or warranties about the speed or quality of your watching experience on your or any device, as that will depend on factors outside of Arivo’s control, such as your location, your Internet Connectivity, the available bandwidth at the time of your request, the format of our Content you are attempting to access, the device(s) you use to access the Platform and Services. Arivo also reserves the right change the format of the Content based on the specifications of your Internet Connectivity (e.g., if your Internet Connection or device do not meet our required standards for accessing and viewing high-definition (“HD”) content, then any HD content accessed by you may be automatically re-formatted by us in an attempt to improve your experience).

 

7.                You must only use devices permitted (“ Permitted Devices ”) for use with the Platform, Applications, Services and Content.   For a current list of such devices please visit and review the devices listed at: www.FTWin360.com/devices . Permitted Devices are manufactured and sold by entities other than Arivo. In order to use our Services, you must have a Permitted Device, and you will need to obtain such Permitted Device from a third-party provider of such device at your sole cost and expense. You can access the Platform and Content through different Permitted Devices, provided that Arivo permits no more than eight (8) eight (8) Permitted Devices to be associated with a single Subscriber account at any one time. We are not responsible for any issues relating to your device, its operating system or connectivity and/or its compatibility with any of our Services.

 

8.                The Platform may use adaptive bitrate streaming (“ ABS ”), which creates multiple versions of each video stream, recorded at different bitrates, to optimize playback of the applicable audiovisual content at any given time based upon the capabilities of the applicable playback device and available internet bandwidth.

 

9.                  Certain live Content, including sporting events, may be unavailable due to your location, blackouts, or device-specific restrictions set by sports leagues and other parties that control Content rights; if you circumvent or attempt to circumvent any of these “blackouts,” then you may be subject to legal action brought by us or third parties.

 

10.                  In addition to, and without limiting any other provisions in these Terms, we regularly make changes to the Services and reserve our right to continue to adjust our Services in any manner and at any time as we may determine in our sole and absolute discretion.   The availability of the Content, as well as Compatible Devices through which the Services are available, will change from time to time. Arivo reserves the right to replace or remove any Content available to you through the Services, including specific titles and networks/channels. Arivo may change, suspend, or discontinue - temporarily or permanently - some or all of the Services (including the Content and the Compatible Devices through which the Services are accessed), with respect to any or all users, at any time, and without notice. Additionally, Arivo reserves the right to make modifications to features or other elements of the Services, including prices, fees and/or charges, promotional features, user interfaces, availability of the DVR, product features and functionality, packages, and advertisements.   You acknowledge that Arivo may do so in Arivo’s sole discretion at any time without notice. We will post a notice of any changed prices via Arivo’s website and other communication channels available to us, and if you have an Account, we will send an email to the email address in your Account regarding the price change. Except as otherwise expressly provided for in these Terms, any price changes to your Subscription will take effect at the beginning of the next subscription period following notice to you. If you do not agree to the price change, your sole recourse is to terminate your Subscription prior to the end of the then current subscription period.   You agree that Arivo will not be liable to you for any modification, suspension, or discontinuance of the Services.

 

4. SUBSCRIPTIONS AND BILLING

 

1.                We provide access to the Services at no charge upon the creation of your account (each, a “ Subscription ”). Your Subscription will continue unless and until you cancel your Subscription, or your Account is otherwise suspended or terminated pursuant to these Terms. If you no longer wish to receive your Subscription, you must cancel your Subscription. We reserve the right to modify, terminate, or otherwise amend the terms of your Subscription.   We will give you advance notice of these changes.

 

2.                Arivo may offer “pay per view” and other one-time events for purchase in connection with the Services (“Pay Per View Content”). We will bill you for the Pay Per View Content at the time of selection and request of the specific title prior to initiating the start of the stream for such Pay Per View Content.

 

3.                The fees for all Pay Per View Content purchases will be billed to you upon your selection of a specific title from the Platform.

 

4.                You agree to pay all amounts billed for your purchases of Pay Per View Content, as well as all taxes, fees, and other charges, if any, that are now or may in the future be assessed in connection with Subscription, and any other charges due and owing to us.   Unless otherwise indicated, you will be required to provide a credit card or other payment method accepted by Arivo, as may be updated from time to time (“ Payment Method ”). You grant Arivo the right to charge your Payment Method you provided to Arivo for all Pay Per View Content purchases and any other fees incurred in connection with your use of the Services. Except as prohibited under applicable law, all amounts paid to Arivo for your use of the Services will be non-refundable once paid to Arivo (including upon any termination or suspension of your Account). When you register a Payment Method for a new Account, you authorize Arivo to place a pending charge to your Payment Method to verify your billing address and the validity of your Payment Method; such pending charges are temporary and will not be converted into an actual charge to you. Pending charges, while pending, will, however, reduce the available amount of credit or funds available on your Payment Method. You are solely responsible for any and all fees charged to your Payment Method by the issuer, bank, or financial institution, including fees for membership, any overdraft or other insufficient funds, or for exceeding any applicable credit limit. We may apply interest and late fees for any amounts paid following the date when due, and we may terminate or suspend your Account for any failure to timely pay any amounts or maintain up-to-date payment method information within your Account. Once your Account is authenticated, the Payment Method that you registered with your Account will be charged for each transaction without having to reenter your credit or debit card information. You agree that the issuer of any credit or debit card you registered with your Account will accept these Terms as your authorization and pay all amounts billed in connection with use of your account without Arivo submitting a signed receipt.

 

5.                 In the event of a failed attempt to charge to your Payment Method (e.g., if your Payment Method has expired), we reserve the right to retry billing your Payment Method. We may suspend or cancel your access to the Services if we remain unable to successfully charge a valid Payment Method. You also remain responsible for any amounts you fail to pay in connection with your subscription, including collection costs, bank overdraft fees, collection agency fees, reasonable attorneys' fees, and arbitration or court costs.

 

6.                 You can cancel your Subscription by logging into your Arivo Account and following the cancellation instructions. Cancellation requests are not accepted via mail, social media, email, Contact Us form, app reviews, etc. Cancellation will take effect immediately. If you have cancelled your Subscription, your Account will show that it has been cancelled. After the effective date of termination or cancellation, you will not be able to access content or services provided in your Subscription.  

 

7.                Arivo may suspend, disconnect, limit or terminate your access to your Account and the Platform and any Content or Services (including Your Content), with or without notice to you, upon any actual, threatened or suspected breach of these Terms (including, for the avoidance of doubt, non-payment of fees or a violation of Section III(E)) or applicable law or upon any other conduct deemed by Arivo, in its sole discretion, to be inappropriate or detrimental to the Platform, Arivo, or any other User or third-party. In such event, we will be immediately and forever wholly relieved from any and all of our duties and obligations to you under these Terms.   After your Account is suspended, disconnected, or terminated, you will not be able to access the Services.

 

8.                Upon termination, cancellation or expiration of your Subscription for any reason: (i) Arivo may terminate all access to or use of your Accounts; (ii) all rights and subscriptions granted to you under these Terms will terminate; (iii) you will immediately cease all use of and access to the Platform and all Content and Services; (iv) you will immediately delete any Applications you have downloaded or installed prior to termination; (v) all fees then owed by you (including any fees applicable to the remaining subscription term) will become immediately due and payable; and (vi) You will immediately either return to Arivo or, at Arivo’s discretion, destroy any Content of Arivo and any other information related to your use of the Services in your possession or control.   The provisions of these Terms which by their nature should survive cancellation or termination of your Account shall survive such cancellation or termination.

 

9.                  Refunds are not issued for any Pay Per View Content purchased once the charge to your Payment Method has been authorized and you begin playback of the Pay Per View Content title. YOU UNDERSTAND AND AGREE THAT ARIVO IS NOT OBLIGATED, AND YOU ARE NOT ENTITLED TO AND HEREBY WAIVE ANY RIGHT, TO ANY CREDIT, REFUND, PRICE ADJUSTMENT OR ANY OTHER DISCOUNT, COMPENSATION OR RECOMPENSE FOR ANY PARTIALLY VIEWED PAY PER VIEW CONTENT.

 

10.                  If your Account is disconnected for non-payment, or for any other reason whatsoever, then Arivo may require that you pay, and you agree to pay, any amount due (regardless of how long outstanding, and including all past due charges and all outstanding balances accrued through the date of such disconnection) before Arivo reconnects your access to the Platform and Services. Arivo is not obligated to reconnect your access to any of the Services. If your Services are disconnected for non-payment, or for any other reason whatsoever, then you may no longer be eligible, even if You pay to restart Your subscription, to receive any remaining credits or promotional pricing that You would have been eligible to receive had Your subscription, or any of our other Services, not been disconnected, suspended, limited, or terminated.

 

11.                From time to time, promotional offers may be presented to you by Arivo. These promotional offers may vary. They may be offered only to select subscribers or subscriptions, may be limited in time and/or geographic scope, or may require you to make a minimum purchase or to purchase particular content, or may exclude particular products. We may provide promotional offers to you directly or through our affiliates or other third parties; if from a third-party, you are also subject to any additional terms and conditions prescribed by those third parties, including their right to modify or cancel that particular promotional offer. Promotional offers may not be combined with other promotional offers associated with any account that you own, unless otherwise expressly permitted in the applicable promotional terms. Arivo reserves the right, in its sole and absolute discretion, to determine your eligibility for any promotional offer. Arivo reserves the right to change, amend and alter then-current promotional offers, as well as institute new promotional offers, from time to time and at any time, in its sole and absolute discretion. Arivo does not guarantee that any promotional offers are or will be available to you at all, or in connection with any Services desired by you.

 

11.                In addition to these Terms, your access to of certain Content and Services developed, provided, or maintained by Arivo’s third-party providers may require you to agree to the terms of an agreement with that third-party provider before being given access to their content and services. The terms of any third-party content and services agreement (which may include payment of additional fees) will apply to the applicable content and services provided under that agreement in addition to these Terms but will not apply to any other Content or Services you may access through the Platform. Except as set forth in these Terms, the terms of any third-party content and services agreement will control in the event of a conflict between these Terms and that agreement. ARIVO TAKES NO RESPONSIBILITY FOR ANY THIRD-PARTY CONTENT OR SERVICE.

 

12.                 Some Pay Per View Content may be offered through a third-party, in which case you may be required to complete your purchase through and view the event using a third-party service (see above). You will be charged for such events at the time of purchase. For clarity, such events may be subject to additional limitations provided to you during your purchase or in other materials made available to you.

 

13.              The Platform will provide you with access to data and other information provided by other Users of the Platform and other third parties (“ User Information ”). The User Information may contain sensitive personal information regarding those Users and other third parties. You agree that you will only collect, use and disclose User Information in strict accordance with these Terms and the current Privacy Policy for the Platform. Except as expressly provided in these Terms and the Privacy Policy, You are granted no licenses or rights in or to any User Information.

 

5. INTELLECTUAL PROPERTY

 

1.                The “Arivo” Services, including any and all content made available in connection with your access and use of our Services, is protected by domestic and international copyright, trade secret, trademark, and other intellectual property laws. Arivo™ and all other Arivo slogans, logos, and product and service names used on the Services are trademarks owned by Arivo. You agree not to display or use such trademarks, in any manner, without the written permission of Arivo. Names, brands, and marks of third parties may be the trademarks or registered trademarks of their respective owners and are used by Arivo subject to license or used for identification purposes only. You are expressly forbidden to misuse, reproduce or remove the trademarks.

 

2.                All copyrightable text, audio, video, recordings, graphics, charts, photographs, icons, and the design, selection, and arrangement of content on the Services are the proprietary materials of Arivo or its third-party licensors or suppliers, unless otherwise noted. The distinctive and original layout and presentation of the Services constitute protectable trade dress under applicable federal law.

 

3.                The Platform, and the databases, software, hardware, and other technology used by or on behalf of Arivo to operate the Platform, and the structure, organization, and underlying data, algorithms, information, and software code thereof (collectively, the “ Technology ”), are the property of and constitute valuable trade secrets of Arivo and its licensors. Arivo and its licensors retain all right, title and interest, including, without limitation, all intellectual property rights and any and all other legal rights protecting data, information, or intangible property throughout the world, in and to the Technology and any additions, improvements, updates and modifications thereto. You receive no ownership interest in or to the Technology and you are not granted any right or license to use the Technology itself, apart from your ability to access the Platform, under these Terms.

 

4.                Arivo respects your copyrights and other intellectual property rights and those of other third parties. If you believe in good faith that your or any other’s protected works have been reproduced or distributed in a way that constitutes copyright infringement, please notify us immediately by sending us a written statement to our designated copyright agent by mail to:

 

Attn: Arivo Copyright Agent

111 East Broadway, Suite 380

Salt Lake City, UT 84111

Email: legal@FTWin360.com

Please provide the following information in your written statement to Arivo: (i) the identity of the infringed work, and of the allegedly infringing work; (ii) Your name, address, Account number (if any), daytime phone number, and email address, if available; (iii) a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (iv) a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner; and (v) your electronic or physical signature. Please be advised that Arivo will not respond to complaints that do not meet these requirements.

 

6. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNIFICATION

 

1.                All Content made available to You through the Platform is for entertainment purposes only. Neither Arivo nor any licensor or provider of Arivo recommends or endorses any Content or any specific products, services, procedures, opinions, or recommendations that may be included on the Platform on in any content.

 

2.                YOUR USE OF OUR SERVICES AND YOUR RELIANCE ON ANY CONTENT IS AT YOUR SOLE RISK. OUR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THESE TERMS OF USE, ARIVO (ON BEHALF OF ITSELF AND THE OTHER PROVIDERS) HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF SATISFACTION, ENJOYMENT, QUALITY, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ARIVO DOES NOT TAKE ANY RESPONSIBILITY WHATSOEVER OR OTHERWISE WARRANT THE PERFORMANCE OF ANY DEVICE, INCLUDING THE CONTINUING COMPATIBILITY OF THE DEVICE (OR ITS OPERATING SYSTEM) WITH ANY OF OUR SERVICES, OR ANY INTERNET CONNECTION, INCLUDING ITS SPEED, BANDWIDTH OR COMPATIBILITY WITH ANY DEVICE OR ARIVO SERVICE. FURTHERMORE, ARIVO DOES NOT MAKE ANY PROMISES ON BEHALF OF ANY THIRD-PARTY, INCLUDING THE OTHER PROVIDERS, AND YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED ON ANY PROMISES MADE BY US RELATED TO SUCH PARTIES OR THE PRODUCTS AND SERVICES PROVIDED BY THEM.

 

3.                ARIVO ALSO EXPRESSLY DISCLAIMS ANY WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS OR REASONABLE SATISFACTION, (ii) THE SERVICES’ OPERATIONS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE SERVICES WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH, OR DATA-THROUGHPUT RATE, AND (iv) ANY INFORMATION OR COMMUNICATION THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE (AND THE COVERED PARTIES DISCLAIM ANY LIABILITY FOR DAMAGES THAT MAY ARISE FROM YOUR RELIANCE ON ANY SUCH INFORMATION OR COMMUNICATION). We do not warrant that any issues, errors, or other defects or failures in or related to the software or our Services will be corrected.

 

4.                The disclaimers set forth in these Terms expressly apply to any terms hyperlinked and incorporated herein, including Arivo’s Privacy Policy and any promotional terms, and including the software contained in our Services and your use of such software.

 

5.                 IN NO EVENT SHALL ARIVO OR ITS AFFILIATES, SUCCESSORS, AND ASSIGNS, AND EACH OF THEIR RESPECTIVE INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, AND SUPPLIERS (INCLUDING CONTENT PROVIDERS AND LICENSORS) (COLLECTIVELY, THE " ARIVO PARTIES "), BE LIABLE FOR ANY CLAIM FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH THESE TERMS OR OUT OF THE USE OF THE PLATFORM OR ANY CONTENT OR SERVICES, EVEN IF ARIVO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF CONTENT, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT, GOODS, OR SERVICES. IN NO EVENT SHALL THE ARIVO PARTIES’ TOTAL LIABILITY IN CONNECTION WITH THESE TERMS, THE PLATFORM, AND ALL CONTENT AND SERVICES PROVIDED UNDER THESE TERMS OR THROUGH THE PLATFORM TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU TO ARIVO FOR ACCESS TO YOUR SUBSCRIPTION IN THE 12 MONTH PERIOD PRECEDING THE CLAIM. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, ARIVO’s LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

 

6.                 NEITHER ARIVO NOR ANY OTHER CONTENT PROVIDER OR LICENSOR WILL BE LIABLE TO YOU FOR ANY FAILURE TO PERFORM THAT IS CAUSED BY OR OTHERWISE RESULTS FROM ANY ACTS OF GOD, FIRES, EARTHQUAKES, FLOODS, POWER OR TECHNICAL FAILURE, SERVER, INTERNET, SATELLITE OR UPLINK FAILURE, ACTS OF ANY GOVERNMENTAL BODY, OR ANY OTHER CAUSE BEYOND OUR REASONABLE CONTROL.

 

7.                You hereby agree to indemnify, defend and hold the Arivo Parties harmless from, against and with respect to any and all actions, claims, disputes or demands, including reasonable attorneys’ fees and costs, that are incurred in connection with, arising out of or relating to (i) the access and connection to or use of our Services by you or in connection with your Account, including any User; (ii) your unauthorized use of the Services or content or material obtained through the Services; (iii) any violation of any law or regulation by you; and (iv) your violation of these Terms or your violation of any rights of another User. Arivo reserves the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you.   Some jurisdictions restrict the use of indemnification clauses. Accordingly, some or all of this paragraph may not apply to you.

 

7. DISPUTE RESOLUTION

 

1.                Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to (i) these Terms (including formation, performance, or breach of them, and including the scope and enforceability of this arbitration provision); (ii) the Privacy Policy, which is incorporated in these Terms; (iii) any aspect of our relationship with each other; and (iv) use of the Services (each, a “ Dispute ”), in accordance with the procedures set forth in this paragraph. If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration rules of the JAMS (“ JAMS ”) then in effect (the “ Rules ”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “ Initial Period ”) after either party to these Terms delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Arivo in Salt Lake City, Utah, U.S.A. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues, or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.   Please note that YOU ARE GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY.

 

2.                YOU AND ARIVO AGREE TO ARBITRATE IN EACH OF OUR INDIVIDUAL CAPACITIES ONLY, NOT AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, AND EACH OF US EXPRESSLY WAIVES ANY RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. No arbitration or proceeding can be combined with another without the prior written consent of you, Arivo, and any other parties to the arbitration or proceedings.

 

3.                To help resolve any issues between us promptly, you and Arivo agree to bring any claim arising out of or relating to these Terms (including Arivo’s Privacy Policy), our relationship, or the use of the Services within one year after a claim arises; otherwise, the claim is waived. This limitation applies regardless of the venue in which such claim is or could otherwise be asserted.

 

8.    MODIFICATION OF THESE TERMS

 

Arivo reserves the right change, modify, or amend these Terms at any time, or to impose new conditions on the Services (collectively, the " Changes "). Any revised version of these Terms will be effective immediately for new Users, and solely with respect to existing Users, such revised version will be effective 30 days following the day on which the revisions were first posted, unless expressly and specifically stated otherwise. Any use of the Services by you after such notice shall be deemed to be your acceptance of the Changes. If any modification to these Terms is unacceptable to you, you may immediately terminate your use of the Services.

 

9. MISCELLANEOUS

 

1.                Unless otherwise specified in these Terms, any notices required or allowed under these Terms will be provided to Arivo by postal mail to the address for Arivo listed on the Platform. Arivo may provide you with any notices required or allowed under these Terms by sending you an email to any email address you provide to Arivo in connection with your Account, provided that in the case of any notice applicable both to you and other Users of the Platform, Arivo may instead provide such notice by posting on the Platform. Notices provided to Arivo will be deemed given when actually received by Arivo. Notice provided to you will be deemed given 24 hours after posting to the Platform or sending via email, unless (as to email) the sending party is notified that the email address is invalid.

 

2.                Unless otherwise amended as provided herein, these Terms will exclusively govern your access to and use of the Platform, including all Content and Services, and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding your access to and use of the Platform and all Content and Services.

 

3.                These Terms, including all matters relating to their validity, construction, performance and enforcement, and any claim, complaint or dispute arising out of or related to these Terms and your relationship with Arivo and/or otherwise related to our Services will be governed by the laws of the State of Utah without giving effect to its conflict of law provisions. If any provision in these Terms is declared to be illegal, invalid or is otherwise in conflict with any law, then such provision will automatically be considered modified to the minimum extent necessary to make such provision legal, binding and no longer in conflict with such law, without affecting the validity of any other provisions of such Terms of Use, and any and all other provisions will remain in full force and effect to the fullest extent permitted by law.

 

4.                You agree that any action at law, in equity, under contract (including under these Terms) or otherwise that is excluded from, or otherwise not subject to arbitration or small claims court must be filed, and that venue properly lies, only in the state or federal courts located in the city and county of Salt Lake City, Utah, United States of America and you hereby irrevocably consent and submit to the personal jurisdiction of such courts for the purpose of litigating such action.

 

5.                 All waivers by Arivo under these Terms must be in writing or later acknowledged by Arivo in writing. Any waiver or failure by Arivo to enforce any provision of these Terms on one occasion will not be deemed a waiver by Arivo of any other provision or of such provision on any other occasion.

 

6.                 If any provision of these Terms is held to be unenforceable, that provision will be removed to the extent necessary to comply with applicable Law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the applicable Law, and the remaining provisions will remain in full force.

 

7.                You agree that, except as otherwise expressly provided in these Terms, there are no third-party beneficiaries to your agreement to these Terms.

 

8.                The parties hereto are independent parties, not agents, employees, or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.

 

9.                  Neither these Terms nor any rights or obligations of you hereunder may be assigned or transferred by you (in whole or in part and including by sale, merger, consolidation, or other operation of law) without first obtaining our prior written consent, which consent may be withheld, delayed or conditioned for any reason whatsoever. You agree that Arivo may assign or otherwise transfer your agreement to these Terms with Arivo to any third-party without your prior consent. Any assignment in violation of the foregoing will be null and void.