Please review these Terms carefully before using the Services because they affect your rights. By using any of the Services, you accept these Terms and agree to be legally bound by them.
Certain provisions of these Terms apply only to specified Services. For example, special provisions applicable to the Smithsonian Earth service ("Smithsonian Earth") are contained in Section 8. If you are a user of such Service, that section applies to you, in addition to other provisions of these Terms. References to Services throughout these Terms include Smithsonian Earth.
Additional terms may apply to your use of certain Services, including features of our Services that are provided by third parties. These terms will be provided to you or posted on the Services to which they apply, and they are incorporated by reference into these Terms. If there is a conflict between these Terms and any additional terms that apply to a particular Service, the additional terms will control.
Sweepstakes, contests, and promotions on the Services may also have additional rules and eligibility requirements, such as certain age or geographic area restrictions. You are responsible for complying with these rules and requirements.
3. Access to the Services: Territory, Age, Registration and Access Controls
The Services are intended solely and exclusively for residents of the United States, its territories and possessions ("U.S.") while they are located in the U.S. Use of and registration for the Services are void where prohibited. We may use technology to limit access to the Services from outside the U.S. Your location may not be identified accurately by the technology we use, so you may be unable to access the Services or parts thereof even if you are located in an area in which we intend to provide access. You consent to Provider and its third party providers determining your location for purposes of providing the Services. Software available in connection with Services may be subject to U.S. export control laws. You agree not to export or re-export such software in violation of U.S. export control laws.
All of our Services are designed for and targeted to adults. They may contain certain content that may not be appropriate for children or that you might find objectionable. To access and use any such Services, you must be at least 18 years of age (or whatever the applicable age of majority (legal adulthood) is where you are located. It is your sole responsibility to determine whether the content in the Services is suitable for you.
By using the Services, you certify that you meet applicable eligibility requirements.
If we request information from you to set up a user account, you must provide us with accurate and complete information and must update the information when it changes. As part of the registration process, you may be asked to choose a user name and password. We may refuse to grant you any particular user name in our sole discretion. You agree to maintain the confidentiality of your access credentials and not share them with any other person. You must notify us immediately if you become aware of any unauthorized use of your access credentials or any other breach of security. Even if you notify us, you are solely responsible for any and all use of your account and access credentials, including for any charges incurred. We are not responsible for any loss or damage resulting from unauthorized use. You may close your account at any time through the account management functionality of the applicable Service, or in any event you may contact our customer service department at (844)SMITHTV ((844) 764-8488). However, these Terms will continue to apply to your activity while you were registered, including information you provided while your account was active and our records of your activity. These terms also will apply to your subsequent use of the Services not requiring an account registration.
In connection with an account you register, we and the companies we work with to provide the Services may send you emails regarding the Services from time to time. You agree that we and such companies may send emails relating to the Services to the email address that you provide even if you have opted out of receiving other email from us.
4. Intellectual Property; License
The audio and video materials, photographs, text, graphics, logos, layouts, designs, interfaces, software, data and other content associated with the Services ("Content") are protected by intellectual property and other laws in the U.S. and in other countries. You must comply with all such laws and applicable copyright, trademark or other legal notices or restrictions. You shall not remove or alter any copyright, trademark, or other legal notices marked on the Content. As between you and Provider, Provider will retain all right, title, and interest in and to the Services and the Content. No transfer of ownership to any portion of the Content shall be made as a result of any access you are granted. Except as specifically provided below, we and our licensors reserve all rights to the Services and Content.
You are only permitted to access and view the Content for personal, non-commercial purposes in accordance with these Terms, and may not build a business or other enterprise utilizing any of the Content, whether for profit or not. Except as provided in Section 4(a) or otherwise expressly authorized by us in writing, you may not either directly or through the use of any software, device, Internet site, web-based service or other means download, stream capture, store in a database, archive or otherwise copy any part of the Services or Content; upload, sell, rent, lease, lend, broadcast, transmit or otherwise disseminate, distribute, display or perform any part of the Services or Content; license or sublicense any part of the Services or Content; or in any way exploit any part of the Services or Content. In addition, except as provided in Section 4(a) or otherwise expressly authorized by us in writing, you are strictly prohibited from modifying Content; creating, distributing or advertising an index of any significant portion of the Content; or otherwise creating derivative works or materials that otherwise are derived from or based in any way on the Content, including mash-ups and similar videos, montages, translations, desktop themes, fonts, icons, wallpaper, greeting cards, and merchandise. This prohibition from creating derivative works is applicable even if you intend to give away the derivative material free of charge.
Without limiting the foregoing, you may not modify, interfere with, enhance, remove, or otherwise alter in any way any portion of the Provider video player (the "Video Player"); any of the Video Player's underlying technology; or any digital rights management mechanism, device, or other content protection or access control measure incorporated into the Video Player. This restriction includes, without limitation, disabling, modifying, reverse engineering, interfering with or otherwise circumventing the Video Player in any manner that enables users to view Content without: (1) visibly displaying both the Video Player and all surrounding elements (including the graphical user interface, any advertising, copyright notices, and trademarks) of the webpage where the Video Player is located; and (2) having full access to all functionality of the Video Player, including, without limitation, all video quality and display functionality and all interactive, elective or click-through advertising functionality.
a. Viral Distribution
We may expressly authorize you to redistribute certain Content on a personal, non-commercial basis. We will identify the Content that you are authorized to redistribute and describe ways you may redistribute it (such as via email, blogs, or embedded players, or by producing Mash-Ups). We may revoke this authorization at any time. If you redistribute such Content, you must be able to edit or delete such publicly posted Content and you must edit or delete it promptly upon our request. When expressly authorized by us in writing, you may embed videos using the Video Player, provided you do not embed the Video Player on any website or other location that (1) contains or hosts content that is inappropriate, profane, vulgar, offensive, false, disparaging, defamatory, obscene, illegal, infringing, threatening, sexually explicit, racist, that promotes violence, racial hatred, or terrorism, or that we deem, in our sole discretion, to be otherwise objectionable or (2) links to infringing or unauthorized content, or any content described in above in clause (1). You may not embed the Video Player into any hardware or software application, even for non-commercial purposes. As determined by us in our sole discretion, we reserve the right to prevent embedding to any website or other location that we find inappropriate or otherwise objectionable as determined by us in our sole discretion.
b. Commercial Licenses
You must obtain our written permission for commercial use of the Content or the Services. If you wish to license Content from the Services, please contact us at firstname.lastname@example.org.
5. Legal Complaints
a. Copyright Claims
Provider respects intellectual property rights. If you believe that Content on any Service infringes your copyright, a notification of claimed copyright infringement pursuant to the Digital Millennium Copyright Act must be sent to our Designated Agent, as follows:
Name of Designated Agent: Sharon Whitt
Address of Designated Agent: SNI/SI Networks L.L.C. 1633 Broadway, New York, NY 10019
Telephone Number of Designated Agent: 212-708-1600
Facsimile Number of Designated Agent: 212-708-1391
Email Address of Designated Agent: email@example.com
DO NOT SEND ANY INQUIRIES UNRELATED TO COPYRIGHT INFRINGEMENT (E.G., REQUESTS FOR TECHNICAL ASSISTANCE OR CUSTOMER SERVICE, REPORTS OF E-MAIL ABUSE) TO THE CONTACT LISTED ABOVE. YOU WILL NOT RECEIVE A RESPONSE IF SENT TO THAT CONTACT.
Notifications of claimed copyright infringement on the Services must include the following:
An electronic or physical signature of the owner of the copyright interest that is allegedly infringed, or of a person authorized to act on the copyright owner's behalf;
Identification of the copyrighted work (or works) that you claim to have been infringed;
Identification of the material that you claim is infringing;
A clear description of where the infringing material is located on the Services so that we can locate the material;
Your name, address, telephone number, and email address;
A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
A statement by you that the information in your notification is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner's behalf.
b. Other Complaints
If you have a complaint regarding any Content on the Services that is not related to copyright infringement, but concerns Content that is objectionable and/or violates the terms of this Agreement, you may contact us at firstname.lastname@example.org. In your complaint please provide the reason for your complaint, identify the relevant Service and the location of the Content on the Service, the specific type of Content, and the name of the author, if available or applicable.
6. User Submissions
Some of the Services may allow you to submit or transmit to or through the Services audio, video, text, or other materials, including so-called "user generated content" and "feedback" and postings to third-party social media sites (collectively, "User Submissions"). When you provide User Submissions, you grant to Provider and its affiliates and partners a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, fully sublicensable license to use, reproduce, archive, edit, translate, create derivative works of, make available, distribute, sell, display, perform, transmit, broadcast and in any other way exploit those User Submissions, and any names, voices, likenesses and other identifying information of persons that is part of those User Submissions, in any form, media, software, or technology of any kind now known or developed in the future, including, without limitation, for developing, manufacturing, and marketing products. You hereby waive any moral rights you may have in your User Submissions. For clarity, we are not required to and will not provide any form of compensation for any use of your User Submissions.
We respect your ownership of User Submissions. If you owned a User Submission before providing it to us, you will continue owning it after providing it to us, subject to any rights granted in these Terms and any access granted to others. Please note that even where a Service provides a deletion capability for User Submissions, and you delete a User Submission from the Service:
The User Submission may still exist in our backup copies, which are not publicly available.
If your User Submission was shared with third parties, those third parties may have retained copies of your User Submissions, and neither we nor our affiliates have any responsibility for any uses of your User Submission that they might make.
We retain the license specified above. Thus, for example, if we or one of our sublicensees obtained your User Submission for use in creating a derivative work before you deleted it, we or our sublicensee would remain free to complete the creation of that derivative work and thereafter exploit that derivative work for all purposes and at all times.
We may impose limits on the size or number of User Submissions (e.g., limits on storage space or inbound or outbound messages) or otherwise refuse or remove a User Submission with or without cause and without notice to you. However, we have no obligation to monitor User Submissions, and you agree that neither we nor our affiliates will be liable for (1) User Submissions; (2) any failure to store, receive or deliver User Submissions; or (3) any loss or damage resulting from User Submissions.
You bear all responsibility for your User Submissions. You represent and warrant that you have all rights necessary to grant to Provider the license above and that your User Submissions do not violate Section 11.
7. Third-Party Content, Products and Services
8. Smithsonian Earth Subscriptions and Billing
This Section 8 contains additional provisions that apply if you subscribe to Smithsonian Earth.
8.1 Smithsonian Earth Account Information. You can access and edit specific details regarding your subscription to Smithsonian Earth (including information concerning your credit card or other available payment method ("Payment Method") if you purchase your subscription on Smithsonian Earth's website) on Smithsonian Earth's website under "Settings."
8.2 Device Requirements. To see if Smithsonian Earth is available for your device see its Help Center.
8.3 Payment and Pricing. By placing an order for Smithsonian Earth through an authorized third-party distributor or Provider (each a "Distributor") and providing a Payment Method to that Distributor, you are agreeing to pay a subscription fee and any applicable taxes and service fees ("Fees") for Smithsonian Earth on the payment cycle designated by the Distributor. The Fees will be charged to your Payment Method at the beginning of your subscription (or, as described in Section 8.8, at the end of your Trial Period, where applicable), and thereafter on a recurring basis in accordance with your designated payment cycle, unless you cancel your subscription or your account or Smithsonian Earth is suspended or terminated pursuant to these Terms. Billing policies are set by Distributors. If you purchase your subscription to Smithsonian Earth from Provider on Smithsonian Earth's website and your subscription begins after the 28th of a month, then in any subsequent month in which that day does not occur, we will charge your Payment Method on approximately the last day of such month. For example, if you started your subscription on January 31st, your next payment date will be approximately February 28th. If you do not purchase your subscription to Smithsonian Earth through Provider, you should confirm your Distributor's billing policies before subscribing to Smithsonian Earth. The Fees charged to your Payment Method may vary from time to time due to changes in your subscription plan or applicable taxes, and you authorize your Distributor to charge your Payment Method for these amounts. Each Distributor reserves the right to change the price for a subscription to Smithsonian Earth and will be responsible for communicating any price changes to you. If you do not wish to accept a price change, you may cancel your Smithsonian Earth subscription as described in Section 8.5. YOU ARE RESPONSIBLE FOR ALL INTERNET ACCESS CHARGES. PLEASE CHECK WITH YOUR INTERNET PROVIDER FOR INFORMATION ON POSSIBLE INTERNET DATA USAGE CHARGES.
8.4 No Refunds. ALL FEES ARE NON-REFUNDABLE. As described further in Section 8.5, even if you cancel Smithsonian Earth during a paid subscription period, you will not receive a refund for any portion of the Fees for the remainder of that subscription period. A Distributor may provide a credit, discount, or other consideration ("Credits") to certain subscribers in certain circumstances. The amount and form of such Credits, and the decision to provide them, are at the Distributor's sole discretion. The provision of Credits in one instance does not entitle you to Credits in the future for similar instances, nor does it obligate us or any Distributor to provide Credits in the future, under any circumstance.
8.6 Updating Payment Method; Unpaid Amounts. You may update your Payment Method for Smithsonian Earth through your account with your Distributor. If your Distributor is Provider, you may update your Payment Method for Smithsonian Earth on Smithsonian Earth's website under "Settings." If you fail to pay any Fees when due, as a result of expiration of your Payment Method, invalid account details, insufficient funds, or otherwise, (1) you will remain liable for all such amounts, as well as any costs that your Distributor incur in collecting any amounts you fail to pay in connection with Smithsonian Earth, including attorney and collections fees; (2) you authorize your Distributor to continue charging your Payment Method, as your Payment Method information may be updated as described above in this Section 8.6; and (3) your Distributor may suspend or terminate your subscription. Changing your Payment Method information may result in changes to your billing cycle.
8.7 Promo Codes. From time to time, promotional codes may be available, including those provided as part of a third party promotion. Promotional codes may be redeemed as described in the specifics of the promotion. Promotional codes can only be used once, cannot be redeemed for cash, and may be combined with other offers, subject to certain restrictions as determined by Provider in its sole discretion. If you received a promotional code through an offer by a third party, additional conditions may apply.
8.8 Trial Period. Smithsonian Earth may be offered to certain users on a free trial subscription basis for a limited time ("Trial Period"). Distributors are under no obligation to provide a Trial Period, and Trial Periods may not be available at all times. Each Distributor, as the case may be, reserves the right, in its absolute discretion, to determine your eligibility for a Trial Period. The specific terms of the Trial Period will be stated in the marketing material describing the particular Trial Period. Your subscription starts at the beginning of the Trial Period. Unless otherwise specified, (1) you may only have one Trial Period before you must begin paying for Smithsonian Earth, and if you exceed this limit, your Distributor may charge your Payment Method for any period after the first Trial Period, or suspend your use of Smithsonian Earth, in its sole discretion; (2) you must provide valid Payment Method information to use Smithsonian Earth during the Trial Period (although you will not be charged in connection with the Trial Period); (3) if you do not cancel Smithsonian Earth by the end of your Trial Period, you authorize your Distributor to automatically charge your Payment Method for the subscription period that follows immediately after the end of your Trial Period; (4) YOUR DISTRIBUTOR MAY NOT SEND YOU NOTICE THAT YOUR TRIAL PERIOD HAS ENDED OR THAT YOUR OBLIGATION TO PAY FOR YOUR SUBSCRIPTION HAS BEGUN; and (5) IF YOU WISH TO AVOID CHARGES TO YOUR PAYMENT METHOD, YOU MUST CANCEL THE SUBSCRIPTION PRIOR TO THE END OF YOUR TRIAL PERIOD.
8.9 Maximum Streams. You may only use a maximum of five simultaneous streams (measured across all Content available on Smithsonian Earth) at any time regardless of the number of devices that Provider permits you to use with Smithsonian Earth. Provider may change the maximum number of simultaneous streams of Smithsonian Earth that you may use at any time in its sole discretion.
8.10 Updates and Testing. Provider reserves the right to update and change Smithsonian Earth, including its features and the selection of Content available through Smithsonian Earth, at any time. In addition, Provider reserves the right to test various aspects of Smithsonian Earth. Provider reserve the right to, and by using our Services you agree that we may, include you in or exclude you from these tests without notice.
9. Other Fee-Based Offerings
If you accept fee-based Services other than Smithsonian Earth, you agree to the additional terms governing all such purchases as provided to you or posted on the Services to which they apply, including all requirements to pay applicable fees and taxes. Except as otherwise provided in such additional terms, the provisions of this Section 9 apply to such fee-based Services.
Unless otherwise stated, all fees and charges are non-refundable, including for unused portions of cancelled subscriptions. We do not provide price protection or refunds in the event of a price drop or promotional offering.
Provider reserves the right to change the pricing of all Services at any time. In the event of a price change, Provider will post the new pricing on the relevant Service and attempt to notify you by sending an email to the address you have registered. Billing for all mobile subscription services will be governed by the Mobile Features section of these Terms (Section 10) unless the terms of the subscription say otherwise.
We may offer trial subscriptions to paid Services for free or at special discounted prices. Unless otherwise stated, these trial subscriptions will automatically become paying subscriptions at the current subscription rate if you do not cancel before the end of the trial period.
The Services may offer various products for sale ("Products"). You are responsible for any taxes imposed on the sale or use of Products, and applicable taxes will be added to the amount charged for Products purchased on through the Services.
10. Mobile Features
This Section 10 contains additional provisions that apply to Services designed for wireless devices ("Mobile Features").
Your wireless provider may charge for use of Mobile Features, including fees for receipt of text messages or data transmission. In order to receive Mobile Features, your wireless provider may require you to subscribe to additional services, which may require additional fees. These fees are not charged by us, and you should contact your wireless provider before you sign up for Mobile Features to determine what fees, if any, will be charged. In addition, you agree that we may arrange for Mobile Features billing through your wireless provider and that your wireless provider may invoice you for the applicable fees or deduct them from your pre-paid balance.
You may not transfer or copy any Content from the wireless device on which you originally received Content to any other device, including, without limitation, any computer or another wireless device.
To cancel a Mobile Feature that involves a subscription fee, you must follow the instructions included in the terms and conditions applicable to that Mobile Feature; otherwise, you will continue to incur subscription charges. If you stop a subscription-based Mobile Feature in the middle of a billing cycle, you will not receive a refund for that billing cycle.
11. Acceptable Use
Without limiting any other provision in these Terms, you agree not to do the following, or assist others to do the following:
Access the Services using any interface other than ours, including by making any automated use of the Services such as using scripts to interact with the Services;
Maintain any link to the Services that we ask you to remove, in our sole discretion;
Frame the Services or Content, make the Services or Content available via in-line or "deep" links, otherwise display the Services or Content in connection with an unauthorized logo or mark, or do anything that could falsely suggest a relationship between the Provider or its affiliates and any third party or potentially deprive us of revenue (including, without limitation, revenue from advertising, branding, or promotional activities);
Threaten, defame, stalk, abuse, or harass other persons or engage in illegal activities, or encourage conduct that would constitute a criminal offense or give rise to civil liability;
Transmit any material that is inappropriate, profane, vulgar, offensive, false, disparaging, defamatory, obscene, illegal, sexually explicit, racist, that promotes violence, racial hatred, or terrorism, or that we deem, in our sole discretion, to be otherwise objectionable;
Violate any person's or entity's legal rights (including, without limitation, intellectual property, privacy, and publicity rights), transmit material that violates or circumvents such rights, or remove or alter intellectual property or other legal notices;
Transmit files that contain viruses, spyware, adware, or other harmful code;
Advertise or promote goods or services without our permission (including, without limitation, by sending unsolicited email through a Service or linking to a Service);
Remove, modify, disable, block or otherwise impair any advertising in connection with the Services;
Interfere with others using the Services or otherwise disrupt the Services;
Disassemble, decompile or otherwise reverse engineer any software or other technology included in the Content or used to provide the Services;
Transmit, collect, or access personally identifiable information about other users without the consent of those users and Provider;
Engage in unauthorized spidering, "scraping," data mining or harvesting of Content, or use any other unauthorized automated means to gather data from or about the Services;
Impersonate any person or entity or otherwise misrepresent your affiliation or the origin of materials you transmit;
Remove, avoid, interfere with, or otherwise circumvent any access control measures for the Services or Content, including password-protected areas and geo-filtering mechanisms, or any digital rights management measures used in connection with Content;
Access any portion of the Services that we have not authorized you to access (including password-protected areas), link to password-protected areas, attempt to access or use another user's account or information, or allow anyone else to use your account or access credentials; or
Manipulate the entry or registration process for contests, sweepstakes, surveys, opinion polls or other features of the Services.
If we believe you have violated this Section 11, we may immediately terminate your access to the Services, and take any other actions or seek any remedies permitted by law.
12. Access to Services and Accounts
To access the Services, your device must be connected to the Internet, and you are solely responsible for the cost and maintenance of your Internet connection. You are also responsible for ensuring that you have the hardware and software platforms that are necessary to access the Services.
The quality of the display of the Content available through the Services may vary from device to device, and may be affected by a variety of factors, including your location, the bandwidth available through and/or the speed of your Internet connection. Ultra HD availability is subject to your Internet service and device capabilities. Not all content is available in Ultra HD. A download speed of at least 25.0 Mbps per stream is recommended to receive Ultra HD content, which is defined as resolution greater than 1080p. Ultra HD is defined as (a) a resolution greater than 1920x1080p but not to exceed 7680x4320p (e.g., 4k or 8k), (b) a frame rate greater than 30 frames per second but not to exceed 120 frames per second and (c) color depth greater than 8 bits but not to exceed 48 bits. The time it takes to begin watching Content will also vary based on a number of factors, including your location, available bandwidth at the time and the configuration of your device. Provider makes no representations or warranties about the quality of your watching experience on your device.
Provider will not be liable to you for any blackouts, location-based limitations, device-based limitations, Content-viewing windows, availability of Content, or other restrictions or limitations in connection with the Services or the Content.
We may take any of the following actions in our sole discretion at any time, and without giving you prior notice:
Change or discontinue the Services;
Change how we offer and operate Services (e.g., to begin charging a fee to access features or Content that we previously made available without charge);
Remove Content from the Services;
Restrict, suspend or terminate your access to one or more Services or features thereof; and
Deactivate your accounts and delete all related information and files in your accounts.
We will not be liable to you or any third party for taking any of these actions and we will not be limited to the remedies above if you violate these Terms. If Provider terminates your access to any of the Services, you must immediately stop using such Service. In the case of Smithsonian Earth, any entitlement you may have to a refund will be determined by your Distributor. If Provider terminates your access to the Smithsonian Earth or another paid Service because you breached these Terms, you will not be entitled to any refund.
Provider reserves the right to test various aspects of the Services. Provider reserves the right to, and by using our Services you agree that we may, include you in or exclude you from these tests without notice.
To submit an unsolicited treatment/project for consideration, please register for Smithsonian Networks' online submissions portal and producer resource. We no longer accept submissions through e-mail or by mail.
You will defend, indemnify and hold harmless Provider, its affiliates, and their respective directors, officers, employees, shareholders, vendors, partners, contractors, agents, licensors or other representatives and all of their successors and assigns (collectively, the "Provider Parties") with respect to all third party claims, costs (including attorney's fees and costs), damages, liabilities, and expenses or obligations of any kind, arising out of or in connection with your use or misuse of the Services (including, without limitation use of your account, whether or not authorized by you, and claims arising from User Submissions). Provider retains the right to assume the exclusive defense and control of any claim subject to indemnification, and in such cases you agree to cooperate with us to defend such claim. You may not settle any claim covered by this Section 14 without Provider's prior written approval.
15. Disclaimers; Limitation of Liability
THE PROVIDER PARTIES DO NOT WARRANT: (1) THAT THE SERVICES, ANY OF THE SERVICES' FUNCTIONS OR ANY CONTENT WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OMISSIONS; (2) THAT DEFECTS WILL BE CORRECTED; (3) THAT THE SERVICES OR THE SERVERS HOSTING THEM ARE FREE OF VIRUSES OR OTHER HARMFUL CODE; OR (4) THAT THE SERVICES OR INFORMATION AVAILABLE THROUGH THE SERVICES WILL CONTINUE TO BE AVAILABLE. THE PROVIDER PARTIES SHALL HAVE NO LIABILITY FOR ANY SUCH ISSUES. THE PROVIDER PARTIES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND AS TO QUALITY, AVAILABILITY AND SUBJECT MATTER OF CONTENT. THE SERVICES, INCLUDING ALL CONTENT AND FUNCTIONS MADE AVAILABLE ON OR ACCESSED THROUGH OR SENT FROM THE SERVICES, ARE PROVIDED "AS IS," "AS AVAILABLE," "WITH ALL FAULTS" AND "AT YOUR OWN RISK." NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US, OR FROM OR THROUGH THE SITE, SHALL CREATE ANY WARRANTY.
YOUR ACCESS TO AND USE OF THE SERVICES (INCLUDING THEIR FUNCTIONS AND CONTENT) IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SERVICES.
THE PROVIDER PARTIES WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN THEIR PERFORMANCE DUE TO ANY CAUSE BEYOND THEIR REASONABLE CONTROL, INCLUDING ACTS OF WAR, ACTS OF GOD, ACTS OF THIRD PARTY SERVICE PROVIDERS, EARTHQUAKE, FLOOD, EMBARGO, RIOT, SABOTAGE, LABOR SHORTAGE OR DISPUTE, GOVERNMENTAL ACT, POWER FAILURE OR FAILURE OF THE INTERNET OR COMPUTER EQUIPMENT.
THE PROVIDER PARTIES WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE SERVICES (INCLUDING THEIR FUNCTIONS, CONTENT AND ANY PRODUCTS OR SERVICES ACQUIRED THROUGH THE SERVICES), YOUR USE OF THE SERVICES (INCLUDING THEIR FUNCTIONS AND CONTENT AND ANY PRODUCTS OR SERVICES ACQUIRED THROUGH THE SERVICES), THESE TERMS OR YOUR USER SUBMISSIONS, EVEN IF FORESEEABLE OR EVEN IF ONE OR MORE OF THE PROVIDER PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, GROSS NEGLIGENCE, OR OTHERWISE, BUT EXCLUDING WILLFUL MISCONDUCT). IN NO EVENT WILL THE PROVIDER PARTIES' LIABILITY FOR OTHER DAMAGES EXCEED THE AMOUNT PAID BY YOU TO PROVIDER FOR ACCESS TO THE RELEVANT SERVICE IN THE THREE MONTHS PRECEEDING THE CLAIM, OR FOR THE PURCHASE OF THE RELEVANT PRODUCT, AS APPLICABLE.
YOU ACKNOWLEDGE AND AGREE THAT IF YOU INCUR ANY DAMAGES THAT ARISE OUT OF THE PROVIDER PARTIES' ACTS OR OMISSIONS, THE DAMAGES, IF ANY, ARE NOT IRREPARABLE AND ARE NOT SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING OPERATION OF THE SERVICES OR ANY OTHER SERVICE, PROPERTY, PRODUCT, PROGRAM, TELEVISION SHOW, DOCUMENTARY, OR OTHER CONTENT OWNED OR CONTROLLED BY THE PROVIDER PARTIES.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
16. Governing Law, Venue, and Jurisdiction
These Terms and all claims arising from or related to your use of the Services will be governed by and construed in accordance with the laws of the State of California, except California's conflict of law rules. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, if applicable.
With respect to any disputes or claims not subject to arbitration (as set forth below), you agree to exclusive jurisdiction in the state and federal courts in Los Angeles, California. Notwithstanding any other provision of these Terms, we may seek injunctive or other equitable relief from any court of competent jurisdiction.
Regardless of any statute or law to the contrary, you must file any claim or action related to use of the Services or these Terms within one year after such claim or action accrued. Otherwise, you will waive the claim or action.
17. Disputes; Arbitration
If you have any dispute with or claim against us or any of our affiliates (a "Claim") arising out of or relating to the Services or these Terms, and the claim is not resolved by calling our customer service department at (844)SMITHTV ((844)764-8488), you and we each agree to resolve such disputes through an individual binding arbitration or an individual action in small claims court. Class arbitrations and class actions are not permitted, and your Claim may not be consolidated with any other person's claim. You and we agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and we are each waiving the right to a trial by jury or to participate in a class action. This Section 17 shall survive termination of these Terms or any subscription that you may have to any of the Services.
Before you commence an arbitration or file a small claims court action with respect to your Claim, you must first send to Provider a written notice of your claim ("Notice"). The Notice must (1) be sent by certified mail; (2) be addressed to: SNI/SI Networks L.L.C., 1633 Broadway, New York, NY 10019, Attn: Legal Department; (3) describe the nature of your Claim; and (4) specify the damages or other relief you seek. If we and you do not then resolve the Claim within 30 days after our receipt of your Notice is received, either you or we may commence an arbitration or file a small claims court action to resolve the Claim.
Any such arbitration shall be administered by the American Arbitration Association and be conducted in accordance with its Commercial Arbitration Rules, including the Consumer-Related Disputes Supplementary Procedures, if applicable (the "Rules"). Contact information for the American Arbitration Association, as well as copies of the Rules and applicable forms, are available at www.adr.org. In circumstances in which the Rules provide for an in-person hearing, such hearing will, at your request, take place in the U.S. county (or parish) of your residence, or otherwise in Los Angeles, California. For any non-frivolous Claim that does not exceed $50,000, Provider will pay all costs of the arbitration, and reimburse any filing fees you may be required to pay. If the arbitrator awards you damages that are greater than Provider's last written settlement offer communicated before commencement of the arbitration, Provider will pay you the greater of $1,000 or the amount of the award.
We may be required by state or federal law to notify you of certain events. You hereby acknowledge and agree that such notices will be effective upon our posting them in the relevant Service or delivering them to you via email. You may update your email address by visiting the Services where you have provided contact information. If you do not provide us with accurate information, we will not be responsible for failure to notify you. Our failure to exercise or enforce any right or provision in these Terms will not constitute a waiver of such right or provision. These Terms, including all additional terms, conditions, and policies on the Services, constitute the entire agreement between you and us and supersede all prior agreements with respect to the subject matter hereof. Nothing in these Terms affects any non-waivable statutory rights that apply to you. If any part of these Terms is determined to be invalid or unenforceable under applicable law, that provision will be removed, and the remainder of the Terms will continue to be valid and enforceable.
If you do not agree to these Terms, you should immediately stop using the Services. If you want to delete your account on a Service, you may be able to do so through the account management functionality of the applicable Service, or in any event you may contact our customer service department at (844) SMITHTV ((844)764-8488). If you are a Smithsonian Earth subscriber, you must first cancel your subscription before you will be able to delete your account. Any User Submissions you made while using the Services will continue to be governed by Section 6 of these Terms.
Sections 6 and 11-18 of these Terms will survive any termination of your access to the Services, whether we terminate your access or you voluntarily discontinue your use.
Please contact us with any questions regarding these Terms through the contact or help feature of the relevant Service or by calling our customer service department at (844) SMITHTV ((844)764-8488).