TCM’s Subscription Agreement
THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) DESCRIBES THE TERMS AND CONDITIONS PURSUANT TO WHICH FULLCUBE, INC. (THE “COMPANY”) PROVIDES YOU (“YOU” or “MEMBER”) WITH THE RIGHT TO ACCESS AND PARTICIPATE IN THE TCM BACKLOT PROGRAM (THE “PROGRAM” OR “PROGRAM”) AS DESCRIBED BELOW. BY CLICKING THE “I HAVE READ AND AGREE" BUTTON IN THE REGISTRATION PATH, OR, IF ORDERING OVER THE PHONE BY PROVIDING YOUR CREDIT CARD INFORMATION TO THE CUSTOMER SERVICE REPRESENTATIVE, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE SUBSCRIPTION AGREEMENT, DO NOT CLICK THE "I HAVE READ AND AGREE" BUTTON, OR, IF NOT PURCHASING A SUBSCRIPTION ONLINE, DO NOT PROVIDE YOUR CREDIT CARD INFORMATION TO THE CUSTOMER SERVICE PRESENTATIVE.
OVERVIEW OF THE PROGRAM
The Program is offered by Company to allow members of the Program (“Members”) the opportunity to get greater access to the Turner Classic Movies network, which, with respect to the Program, is controlled by TCM Interactive Group, Inc. (hereinafter “TCM”). Members have the opportunity to take advantage of benefits and rewards through the Program from the Company and its participating Program sponsors, licensors, affiliates, partners and service providers, including, but not limited to, TCM, and Turner Classic Movies, Inc. (collectively, “Associates”).
PARTICIPATION IN THE PROGRAM
In order to participate in the Program, individuals must be eighteen (18) years of age or older and a resident of the U.S., Puerto Rico, or the U.S. Virgin Islands. If you do not qualify, do not attempt to participate. The Program is void where prohibited or restricted by law. To participate, you must complete the online registration path, or order the service over the phone, in both instances You may be required to provide your first and last name, a login name, password, date of birth, mailing and e-mail addresses, telephone number, country of residence, password hint, display name, gender, credit card information, and other information requested by Company. If the Company accepts your submission, and upon receipt of the membership dues described below, the Company will establish an account in your name (“Account” or “Membership”). Individuals may only become involved as Members in their own name and may not transfer benefits or rights under the Program to other parties. Members may not represent an act or proxy for other Members or other parties. Members are responsible for all use of their Accounts (under any screen name or password) and for ensuring that all use of their Account complies fully with this Agreement. Members shall be responsible for protecting the confidentiality of their password(s), if any. Each Member is responsible for ensuring that the information in his or her Account is accurate and is kept current.
Participation in the Program may be conditioned upon payment by Members of program dues, service charges, and other fees and expenses, in the sole discretion of the Company (collectively, the “Dues”). Unless otherwise specified by the Company, such Dues and other amounts may only be paid by credit card. You hereby authorize Company, directly or via a third party vendor, to charge your credit card the amount of $87.00 per year as Dues for the Membership, or any other amount that is stated as Dues for the Membership that You select on the Program Website. The Dues are payable in U.S. dollars, subject to any exchange rate that a credit card company or other financial institution may apply. Charges to your credit card may be in the name of Company or its credit card processing vendor.
If a person elects to join the Program on an annual basis, that Membership is valid for a term of one (1) year only and requires payment, each year, of the annual, non-refundable membership Dues. Each membership must be properly renewed by the Member each year in order to maintain the membership in force. The Company will send Members an annual renewal notice Seven (7) days prior to the expiration of their current membership term. Except where prohibited by applicable law, the Company will automatically renew the membership and charge the Member’s credit card of record for the annual membership Dues unless the Member notifies the Company by calling 1-844-822-2556 at least seven (7) days prior to the exercise of the membership term that the Member does not wish to renew their membership. If the charging of any annual Member dues is declined due to insufficient funds, Member authorizes the Company to automatically change the terms of Membership to monthly with equal installment charges calculated as annual Member dues divided by 12. If the Company cannot obtain credit card authorization when renewing the Membership, that Membership will not be renewed and such Member must re-apply for a new one. Gift memberships will be automatically renewed, but a renewal notice for gift Memberships will be sent to both the person who gave the gift Membership and the Member.
If the company offers the Program on a monthly basis, and a person accepts such monthly offer, then membership in the Program shall be made available on a month-to-month basis and shall require such person to pay the applicable Dues set forth on the Program Website in connection with such offer on a monthly and non-refundable basis. Except where prohibited by applicable law, the Company will automatically renew the membership and charge the Member’s credit card of record for the monthly membership Dues unless the Member notifies the Company by calling 1-844-822-2556 at least seven (7) days prior to the expiration of the current monthly term that the Member does not wish to renew their monthly membership. After a Member has enrolled and paid at least one monthly payment, in the event the Company cannot obtain a valid card for a subsequent monthly dues payment, the Company (or its designated collections agency) will try to obtain such payment from the applicable Member for a period of thirty (30) days (during which period the Member shall remain enrolled in the Program). If no payment is obtained after the expiration of such thirty (30) day period, such Member’s membership shall automatically be terminated. Gift monthly memberships will only be valid for one (1) month, but a renewal notice for gift monthly memberships will be sent prior to the expiration of such one (1) month period to both the person who gave the gift of membership and the Member.
Free Review Period Offers
The Company may offer promotional free review period memberships to persons that sign up for a free review period membership. Except where prohibited by applicable law, such free review period membership will be automatically renewed at the applicable normal annual or monthly membership rate at the end of the free review period, unless such persons cancel at least forty-eight (48) hours (or such longer period of time as specified by the Company in writing in the particular offer) before the end of the review period. Only one (1) free review period membership is allowed per person. Subsequent enrollments do not qualify for free review periods.
The Company may offer coupons or other promotional offers from time to time. In these situations, a special discounted price may be applicable for a term, followed by a higher price after the initial promotional term. By enrolling pursuant to any such offer, such Members will be responsible for all Dues and other payments specified in the offer, and agree that the Company may adjust the pricing of such plans, as specified in the applicable offer, promotional materials or coupon, without further notice or other communication to such Members.
The Company may occasionally combine other offers with the free review period offer. Persons enrolling in the Program pursuant to such offers must actually complete the free review period and be charged one time before they are eligible to receive the additional free offer.
Credit Card Authorization
You are responsible for paying the periodic Dues specified above, and You hereby authorize the Company to charge Your credit card to pay for the Dues (according to the terms set forth above) via automatic debit or credit. If the charging of any annual Member dues is declined due to insufficient funds, Member authorizes the Company to automatically change the terms of Membership to monthly with equal installment charges calculated as annual Member dues divided by 12. Each Member acknowledges and agrees that the authorization to charge the Member’s credit card for services shall automatically transfer to any successors or assigns of the Company for substantially similar services to those offered by the Program. You further agree to complete, and assent to the terms of, the Company’s then current credit card authorization form.
Memberships which are terminated by the Company or cancelled or not renewed by the Member cannot be “reactivated” and the applicable Member must resubmit for a new Membership. When cancellation of membership is requested by a Member, there is no refund for an unused portion of the current membership (except where required by applicable law).
USE OF INFORMATION
The Company will not be liable or responsible for any tax consequences, which may result from a Member’s participation in the Program. Each Member is solely responsible for the payment of all taxes payable and benefits acquired as a result of such Member’s participation in the Program.
CONDUCT OF MEMBERS
In addition to your consent to this Agreement by clicking “I agree” at the Website, you agree that your use of the Program constitutes your full and unconditional agreement to (a) TCM’s “Code of Conduct”, which may be found at http://www.tcm.com/code-of-conduct.html and (b) any other reasonable rules, guides, terms or policies designated by the Company from time-to-time pertaining to the Program (including the terms of trial membership offers and other promotional membership offers), all of which are deemed incorporated into this Agreement. Participation in the Program is contingent upon the Member’s compliance with the Code of Conduct, and Members who do not comply may be prohibited from participating in the Program. The Company reserves the right to cancel the Accounts of any Member who, as determined in the sole discretion of the Company, uses the Program for improper, deceitful or unethical purposes or in a manner inconsistent with this Agreement, the Code of Conduct, or any federal, state, provincial, territorial or local laws, statutes, by-laws, guidelines or ordinances. A Member terminated in this manner shall not be entitled to a refund of their Dues (except where required by applicable law). In addition to discontinuance of Program membership or participation, the Company shall have the right to take appropriate administrative and legal action, including criminal prosecution, as it deems necessary in its sole discretion. All questions or disputes regarding an individual’s eligibility for the Program or a Member’s compliance with this Agreement and the Code of Conduct will be resolved by the Company in its sole discretion.
In some cities and towns within the Territory, Members have organized themselves into local chapters to discuss classic film, TCM generally, and to socialize with each other (the “Local Chapters”). If you choose to join, or associate with, a Local Chapter, or attend one or more of their live events, you agree: (a) that Company is not responsible for the acts or omissions of any other Members or non-Members who attend Local Chapter meetings or events, or the acts or omissions of the Local Chapter generally; (b) Company has the right, but not the obligation, to develop, disseminate, and impose rules and regulations governing the Local Chapter, and you agree to abide by such rules and regulations to the extent you participate in Local Chapter activities once they have been posted within the Backlot website; (c) you will conduct yourself in a lawful manner, and comply with this Agreement to the extent applicable, while attending Local Chapter meetings or other activities; (d) that Company shall have the right, exercised in its sole discretion, to revoke your Membership without notice or a refund if you violate any laws, or this Agreement, while attending a Local Chapter activity; and (e) that you knowingly take on all risks associated with attending or participating in any Local Chapter activity and waive any legal claims against Company based on acts, omissions, or other occurrences that take place at Local Chapter events, meetings, or other activities.
MODIFICATION AND TERMINATION OF THE PROGRAM
The Company may modify this Agreement, including, but not limited to, Program eligibility requirements, application and enrollment procedures, applicable Member dues or charges, applicable Member benefits or privileges, the identity of the Associates, and any other applicable rules, guides, terms, or policies pertaining to the Program at any time, with or without notice (except where required by applicable law), even though these changes may affect a Member’s status or other rights, benefits, or privileges under the Program. The Program has no predetermined termination date and may continue until such time as the Company decides to terminate the Program. The Company may terminate the Program at any time, with notice to the Member using his or her current contact information on file under his or her Account with the Company. A Member’s continued participation in the Program constitutes that individual’s acceptance of any changes to this Agreement, the Code of Conduct, or related documents. Members are responsible for remaining knowledgeable as to any changes that the Company may make to these contracts. The most current version of this Agreement will be available on the Company’s web sites pertaining to the Program and will supersede all previous versions thereof.
You hereby agree to allow the Company and Associates, and any of their respective sponsors or co-promotional partners, to use your name, photograph and likeness, and any postings you may make within the Program or on the TCM websites, for any purpose relating to the Program, or the TCM Network, and all extensions thereof, including for advertising or promotional purposes, and as a direct endorsement of the TCM Network. For example, and not by way of limitation, photographs taken at or in connection with members-only events or uploaded to the Program might be used to promote the Program or an Associate’s services, products or benefits. You grant permission for any such use anywhere in the world and in any medium, without qualification or reservation of any rights and without the requirement of payment of any compensation to you or your family, except where prohibited by law.
DISCLAIMERS, LIMITATIONS; INDEMNIFICATION.
YOU EXPRESSLY ACKNOWLEDGE THAT THE PROGRAM AND ALL ASSOCIATED WEB SITES AND MATERIALS ARE PROVIDED “AS IS”, WITH EACH MEMBER PARTICIPATING AT HIS OR HER OWN RISK, AND THE COMPANY EXPRESSLY DISCLAIMS, ON BEHALF OF ITSELF, ITS AFFILIATES AND ITS ASSOCIATES AT EACH OF THEIR RELATED COMPANIES AND AFFILIATES, AND SUCH COMPANY’S RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, SHAREHOLDERS OR OTHER EQUITY INTEREST HOLDERS; AGENTS, SUCCESSORS AND ASSIGNS, ANY OTHER WARRANTIES REGARDING THE PROGRAM, THE ADMINISTRATION OF THE PROGRAM BY THE COMPANY, THE INVOLVEMENT OF ASSOCIATES, AND THE PARTICIPATION OR INABILITY TO PARTICIPATE OF MEMBERS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CLEAR TITLE, NONINFRINGEMENT, OR ANY WARRANTIES IMPLIED BY TRADE USAGE OR COURSE OF PERFORMANCE. All MEMBERSHIP DUES ARE NON-REFUNDABLE WITHOUT LIMITIING THE GENERALITY OF THE FOREGOING, THE COMPANY, OTHER ASSOCIATES, AND TURNER CLASSIC MOVIES SPECIFICALLY DO NOT WARRANT OR REPRESENT THAT THE OPERATION OR ACCESS TO THE PROGRAM OR ANY ASSOCIATED WEB SITES WILL BE UNINTERRUPTED OR ERROR FREE, THAT ADEQUATE SECURITY MEASURES WILL BE IN PLACE TO PREVENT UNAUTHORIZED ACCESS TO INFORMATION OR OTHER TORTUIOUS CONDUCT BY THIRD PARTIES, THAT PROGRAM ERRORS WILL BE CORRECTED, THAT PROGRAM INFORMATION IS CURRENT, RELIABLE OR ACCURATE, OR THAT ANY PARTICULAR PRIVILEGES OR BENEFITS GRANTED TO ANY MEMBER WILL BE DELIVERED OR HAVE ANY PARTICULAR VALUE. THE COMPANY, OTHER ASSOCIATES, AND TURNER CLASSIC MOVIES, ASSUME NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR AUTHORIZED OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ORDERS. THE COMPANY, OTHER ASSOCIATES, AND TURNER CLASSIC MOVIES ARE NOT RESPONSIBLE FOR ANY PROBLEMS, ERRORS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE-SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, OR SOFTWARE, OR ANY FAILURE OF E-MAIL ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEB SITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO MEMBER’S OR TO ANY OTHER PERSON’S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATING OR DOWNLOADING INFORMATION MATERIALS FROM THIS PROGRAM.
MEMBERS FURTHER ACKNOWLEDGE THAT THEIR PARTICIPATION IN THE PROGRAM MAY INVOLVE ATTENDANCE AT LIVE EVENTS, AND OTHER MEETINGS AND SCREENINGS, AND THAT NEITHER THE COMPANY, THE ASSOCIATES NOR TURNER CLASSIC MOVIES SHALL HAVE ANY RESPONSIBILITY OR LIABILITY WHATSOEVER IN CONNECTION WITH ANY SUCH ATTENDANCE (OR INABILITY TO ATTEND) OR ADMITTANCE OR ANY PROPERTY DAMAGE, PERSONAL INJURY (UP TO AND INCLUDING DEATH), OR OTHER DAMAGE, COST OR EXPENSE THAT MAY BE INCURRED OR SUFFERED BY ANY SUCH MEMBER IN CONNECTION THEREWITH.
EACH MEMBER ACCEPTS ALL RESPONSIBILITY FOR, AND HEREBY INDEMNIFIES AND HOLDS HARMLESS THE COMPANY, THE PROGRAM, AND THE ASSOCIATES, AND EACH OF THEIR RELATED COMPANIES AND AFFILIATES, AND EACH SUCH COMPANY’S RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, SHAREHOLDERS OR OTHER EQUITY INTEREST HOLDERS, AGENTS, SUCCESSORS AND ASSIGNS (THE “RELEASED PARTIES”), FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, RIGHTS, CLAIMS, AND ACTIONS OF ANY KIND INCLUDING, WITHOUT LIMITATION, PERSONAL INJURIES, DEATH, AND PROPERTY DAMAGE, AND CLAIMS BASED ON PUBLICITY RIGHTS, DEFAMATION, OR INVASION OF PRIVACY THAT MAY ARISE EITHER DIRECTLY OR INDIRECTLY FROM ACTIONS TAKEN BY SUCH MEMBER, SUCH MEMBER’S PARTICIPATION (OR INABILITY TO PARTICIPATE) IN THE PROGRAM IN ANY MANNER OR RECEIPT OR USE OF (OR LACK OF RECEIPT OF) ANY BENEFIT, OR PRIVILEGE PERTAINING THERETO, SUCH MEMBER’S ATTENDANCE AT (OR INABILITY TO ATTEND) ANY PROGRAM EVENTS OR OTHERWISE ARISING FROM THE PROGRAM, FOR ANY ACTIONS OR OMISSIONS BY THE COMPANY, OR FOR ANY TORTIOUS ACTS BY ANY THIRD PARTY. MEMBERS ACKNOWLEDGE THAT THE COMPANY’S PROVISION OF THE PROGRAM UNDER THIS AGREEMENT, INCLUDING THE AMOUNT OF ANY DUES CHARGED, IS BASED ON THE EXPECTATION THAT THE RISK OF ANY LOSS, INJURY OR DAMAGE THAT MIGHT BE INCURRED IN CONNECTION WITH THE PROGRAM WILL BE BORNE BY THE MEMBERS THEMSELVES AND NOT BY THE COMPANY OR THE RELEASED PARTIES.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE RELEASED PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THE PROGRAM IN ANY MANNER, EVEN IF ANY OR ALL OF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES; THEREFORE, SUCH EXCLUSIONS MAY NOT APPLY TO YOU. MEMBERS WAIVE ANY AND ALL RIGHTS TO BRING ANY CLAIM OR ACTION RELATED TO THE PROGRAM IN ANY FORUM BEYOND ONE (1) YEAR AFTER THE FIRST OCCURRENCE OF THE KIND OF ACT, EVENT, CONDITION OR OMISSION UPON WHICH THE CLAIM OR ACTION IS BASED.
IF, NOTWITHSTANDING THE ABOVE LIMITATIONS, MONETARY LIABILITY IS IMPOSED BY A COURT OF COMPETENT JURISDICTION ON THE COMPANY OR THE RELEASED PARTIES, MEMBERS AGREE THAT UNDER NO CIRCUMSTANCES SHALL THE COMPANY’S OR THE RELEASED PARTIES’ LIABILITY TO A MEMBER OR ANY OTHER PARTY EXCEED THE LESSER OF ACTUAL DAMAGES OR $100.
EACH LIMITATION OF DAMAGES, DISCLAIMER OF WARRANTIES, OR LIMITATION OF REMEDIES SET FORTH HEREIN IS SEVERABLE AND INDEPENDENT, AND SHALL BE ENFORCED INDEPENDENTLY OF ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS.
EACH MEMBER HEREBY AGREES TO RELEASE AND HOLD FULLCUBE, INC., AND ITS PARENT, AFFILIATE AND SUBSIDIARY COMPANIES, AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS AND REPRESENTATIVES HARMLESS FROM ANY AND ALL LOSSES, DAMAGES, RIGHTS, CLAIMS, AND ACTIONS OF ANY KIND INCLUDING, WITHOUT LIMITATION, PERSONAL INJURIES, DEATH, AND PROPERTY DAMAGE, AND CLAIMS BASED ON PUBLICITY RIGHTS, DEFAMATION, OR INVASION OF PRIVACY, EITHER DIRECTLY OR INDIRECTLY RELATED TO OR ARISING FROM THE PROGRAM, OR FROM ACCEPTANCE, POSSESSION, MISUSE, OR USE OF ANY PROGRAM BENEFIT OR PRIVILEGE. UNDER NO CIRCUMSTANCES SHALL FULLCUBE, INC. OR ITS RESPECTIVE PARENT, AFFILIATE AND SUBSIDIARY COMPANIES, OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS AND REPRESENTATIVES OR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM (1) YOUR PARTICIPATION IN THE PROGRAM, (2) YOUR USE OR MISUSE OF OR YOUR INABILITY TO USE ANY PROGRAM BENEFIT OR PRIVILEGE, OR (3) ANY FAILURE, DELAY, OR DECISION BY THE COMPANY IN ADMINISTERING THIS PROGRAM.
Program materials and web sites contain copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, all of which are protected under the United States copyright laws. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part, unless specifically authorized and enabled to do so. You may download copyrighted material for Your personal use only. Except as otherwise expressly permitted under copyright law and other applicable law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of the Company and the copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. You acknowledge that You do not acquire any ownership rights by downloading copyrighted material.
You shall not upload, post or otherwise make available on the Company’s web sites any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright rests with the Members. You shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission. By submitting material into the Program, its website, or Company’s or TCM’s websites, You automatically grants, or warrants that the owner of such material has expressly granted the Company and TCM the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. You also permit any other Member to access, view, store, or reproduce the material for that Member’s personal use. You hereby grants the Company and TCM the right to edit, copy, publish and distribute any material You made available on the Company’s or TCM’s website. The foregoing provisions are for the benefit of the Company, Fullcube, Inc. and each of their respective subsidiaries, parent companies, affiliates and third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.
Turner Classic Movies, and TCM Backlot and each of their logos are trademarks or service marks of TCM. All rights reserved. All other trademarks and service marks appearing on the Company’s materials or web site are the property of their respective owners.
MEMBER PROMOTIONS AND OFFERS
The Company may offer certain promotions, including, without limitation, Member experiences and other promotional prizes, items and random giveaways (collectively “Promotions”) to Members from time to time in the Company’s sole and absolute discretion. Such Promotions shall be subject to this Agreement, and any other directions or guidelines published within the Program by Company in connection with such Promotions, including any Official Rules when published. In the absence of specific Official Rules or other directions provided by Company in connection a particular Promotion, the terms of this paragraph, and any other applicable paragraph of this Agreement, shall apply. You acknowledge that the Company may, subject to applicable law and the terms and conditions of the applicable promotional offer, allocate such member experiences and other promotional prizes, items and giveaways in its sole and absolute discretion, including, without limitation, by random drawing without prior notice, or contest, or on a first-come first-serve or seniority basis, and accept that You may not have the opportunity to participate in every, or any particular, Promotion.
No purchases are necessary for You to enter any Promotions. You understand and agrees that the Dues charged for access to the Program are not charges to enter any particular Promotion, but are instead in exchange for use and enjoyment of the Program generally. Unless specified otherwise, Promotions are open to all active and fully paid Members of the Program, except for employees of Company and TCM. All Promotions are void wherever prohibited. Company shall use commercially reasonable efforts to communicate the applicable entry methods, entry dates, closing dates, awarding dates, and all other material details relating to a particular Promotion to all Members, but also reserves the right to award prizes without any such communication on a random or selective basis. Company shall have the right to disqualify any entries that they deem to be obscene, vulgar, sexually explicit, lewd, derogatory, inappropriate, or otherwise not in good taste or that are not in compliance with this Agreement or the Official Rules, as determined by the Company in its sole discretion.
Unless stated otherwise by Company, each potential prize winner will be notified by using the contact info Member has provided via the Program, and unless stated otherwise by Company, if such potential winner does not respond back to such notification within two (2) days of such notification, such potential winner may, in Company’s discretion, be disqualified and it shall have the right to select another entrant as the potential winner. Potential winners may be required to pass a civil, criminal and financial background check and may be disqualified if such check reveals anything in the Company’s discretion that merits such action. The potential winner may be required to execute an affidavit of eligibility, liability release and, except where prohibited by law, publicity release and return within five (5) days of date of issuance of notification. The decisions of the Company, and in the event of a Contest requiring judges, such judges, will be final and binding in all matters.
Incomplete or inaccurate entries are void, and false or deceptive submissions or acts will render the entrant ineligible. All Members hereby acknowledge and agree that the relationship between entrant and any Company and/or Associates is not a confidential, fiduciary, or other special relationship, and that entrant’s decision to submit his/her submission to Company or Associates for purposes of a Promotion does not place such entities in a position that is any different from the position held by members of the general public with regard to elements of Member’s submission. By entering any Promotion, or enjoying the Program generally, entrant acknowledges and agrees that Company or Associates may create on their own or obtain many submissions under any Promotion and that such submissions may be similar or identical in theme, idea, format or other respects to others submitted and waive any and all claims entrant Member may have had, may have, and/or may have in the future, that any submissions and/or other works accepted, reviewed and/or used by other entrants and/or Sponsors (or their designees) may be similar to entrant’s submission.
Company or Associates are not responsible for misdirected, delayed, incomplete, inaccurate, lost, late, illegible or undeliverable submissions, ratings, or comments, technical, hardware, or software failures of any kind, lost or unavailable network connections, or failed, incomplete, garbled or delayed computer transmissions, intellectual property theft or other unauthorized use of intellectual property, or other errors or problems that may limit or affect a person’s ability to participate in any Promotion, whether human, mechanical, typographical, printing, electronic, network or otherwise, relating to or in connection with any Promotion, including, without limitation, errors that may occur in connection with the administration of the Promotion, the processing or judging of submissions, the tabulation of ratings, the announcement of the prize(s) or in any Promotion-related materials. In the event of sabotage, acts of God, terrorism or threats thereof, computer virus or other events or causes beyond the Company or Associates control that corrupt the integrity, administration, security or proper operation of the Contest, Company or Associates reserves the right, in their sole discretion, to modify, cancel or suspend the Promotion (or a portion thereof).
All Members agree that Company and Associates are not liable for any damages if the Promotion cannot be completed, or any prize, or any part thereof, cannot be awarded due to travel cancellations, delays or interruptions due to any acts of God, action(s), regulations(s), order(s), or request(s) by any governmental or quasi-governmental entity (whether or not the action(s), regulation(s), order(s), or request(s) prove to be invalid), equipment failure, terrorist acts, earthquake, war, fire, flood, explosion, unusually severe weather, hurricane, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, civil disturbance, insurrection, riot, or any other cause beyond Company’s or Associate’s control, and shall not be responsible for any cancellations, delays, diversions, or substitutions or any acts or omissions whatsoever by the air carrier(s), hotel(s), or other transportation companies or any other persons providing any of these services and accommodations to passengers, including any results thereof such as changes in services or accommodations necessitated by same.
Company and Associates expressly disclaim any responsibility for, and entrants agree to indemnify and hold harmless the them from and against, any and all claims, actions, demands and/or liability for injury, damage or loss whatsoever, including, without limitation any death or disability to a winner and/or his/her guest relating to, in connection with, or arising out of participation in any Promotion (regardless of the cause of such injury, damage or loss) and/or the delivery and/or subsequent use or misuse of any prize awarded.
For a copy of the Official Rules (if one exists) or the winner list (available within three months of the end of any Promotion, send a self-addressed, stamped envelope (residents of VT need not include return postage on rules requests) to TCM Backlot, 8508 Park Road, Suite 181, Charlotte NC 28210.
CLASS ACTION WAIVER
You agree that You, Company, and Associates will resolve any disputes, claims or controversies relating to the Program on an individual basis, and that any claims brought under this Agreement in connection with the Program will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. You, Company, and Associates also agree that neither shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising under this Agreement. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in federal court located in Charlotte, North Carolina.
The Program is controlled and operated by the Company from its offices in Charlotte, North Carolina. This Agreement, and all other incorporated Program documentation shall be construed in accordance with the North Carolina law, without regard to any conflict of laws provisions, and shall constitute the complete and exclusive statement of the agreement of the parties with respect to the Program.
Any dispute arising in connection with the Program or this Agreement shall be resolved exclusively by the state and federal courts located in Mecklenburg County, North Carolina.
The Paragraphs of this Agreement are severable, such that the invalidity, in whole or part, of any term or provision contained herein shall not affect the validity of any other term or provision contained herein. Any such invalid term or provision shall be enforceable to the maximum extent permitted under applicable law.
No failure or delay by the Company in exercising any right hereunder shall operate as a waiver of such right and any written waiver in a given instance shall not be deemed to be a continuing waiver of any such right. All waivers by the Company must be embodied in a written document signed by the Company.
IT IS THE EXPRESS INTENT OF THE PARTIES THAT THIS AGREEMENT, AND ALL RELATED DOCUMENTS HAVE BEEN DRAWN UP IN ENGLISH. C’EST LA VOLONTÉ EXPRESSE DES PARTIES QUE LA PRÉSENTE CONVENTION AINSI QUE LES DOCUMENTS QUI S’Y RATTACHENT SOIENT RÉDIGÉS EN ANGLAIS.