Please read the following terms and conditions (“T&C”) carefully before downloading, installing, accessing or using any part of materials contained on any of our following platforms (“our Platforms”), which are derived in whole or in part by TVB (USA) Inc. (“TVB”, “we”, “us”, or “our”):
- http://www.encoretvb.com (“our SITE”), and/or
- encoreTVB Applications (“our APPs”)
If you are under 18 years of age, you must review the T&C with a parent or legal guardian to ensure the parent or legal guardian acknowledges and agrees to this T&C. If your parent or legal guardian does not agree to this T&C, you must immediately discontinue its use and exit our Platforms.
You must exit our Platform and/or Service immediately and discontinue its use if you are currently not residing or not located in the United States of America. See Section 2.1 for detail.
1.1 The Service is a Video-on-demand (“VOD”) service, which permits you to access to and/or view digital content (“Content”), including but not limited to programs, still picture, voice, moving images, whether animated or otherwise, video, text, articles, editorial works, data, information and/or other materials or goods that can be accessed through or on our Platforms, in compliance with the terms and conditions set forth in this T&C.
2. Requirements for Use of the Service
2.1 Unless with our prior written permission, the Service is available to you only in the United States of America. You agree not to use or attempt to use the Service in other locations. We may collect your IP address to confirm your geographical location.
2.2 Use of the Service require compatible devices, internet access, wireless network access and periodic updates (fees imposed by third parties may apply). The latest version of our Platforms is recommended and may be required to access the Service for certain features or transactions. You acknowledge that you are responsible to obtain and maintain at your own expense all equipment, systems or software, and services needed to access the Service. You shall bear any communication or data transmission charges incurred by accessing to the Service and updating the Software through a third party network.
2.3 You agree that the requirements under this Section 2 may change from time to time and you are responsible to ensure that all these requirements are met before accessing to or using the Service.
3.1 In general, registration is not required for using the Service of our Platforms. But the access to certain contents, and certain features of the Service of our Platforms is restricted to users who have successfully registered through our registration process (“Registered Member”).
3.2 When you try to access certain contents or certain features of the Service of our Platforms, you will be prompted to enter the pre-registered email address (“user-ID”) and password in order to gain access. To register as a Registered Member, you must complete the registration process by providing us with current, complete and accurate information as required on the Registration Form. We will then send a verification email to your email address. You must follow the instruction given on the email to verify your email address. Only when your email address is verified, you will then become our Registered Member. For those accounts that have not been verified, the accounts and their information will be discarded within 120 days.
3.4 We reserve the right not to accept your registration in our sole discretion without specifying reasons. After the registration process is completed, you will be able to use your user-ID and account password for accessing the certain contents and features.
3.5 You agree a) to accept responsibility for all activities that occur under your user-ID and password and maintaining the confidentiality of your password, b) In the event that there is suspicious of the use of the User-ID and password by unauthorized persons, you shall notify us in writing immediately, c) not to impersonate or misrepresent your affiliation with any person or entity, including using another person’s user-ID, password or other account information.
4. USER Obligations and Restrictions
4.1 You agree (a) not to use the service/information provided in our Platforms for any illegal purpose or in any manner inconsistent with the T&C, (b) not to use our Platforms on any device that you do not own or control, (c) not to preload our Platforms in any device and promote, sell, circulate or distribute such device in the market, (d) not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of our Platforms, use of our Platforms, or access to our Platforms, (e) not to modify, copy, reproduce, republish, upload, post, distribute, broadcast, download, store (in any medium), transmit, show or play in public, adapt or change in any way any material (including any information, program contents and video clips, code and software) from our Platforms for any other purpose whatsoever without the prior written permission of us, (f) not to attempt to extract the source code of our Platforms, and (g) not to translate our Platforms into other languages or make derivative versions.
4.2 You agree to use our Platforms in a manner which does not infringe the rights of, or restrict or inhibit the use and enjoyment of our Platforms by any third party. Such restriction or inhibition includes: distributing any threatening, violent, immoral, pornographic and defamatory statement, engaging in any conduct which is unlawful, or which may harass or cause distress or inconvenience to any person or disruption of normal flow of dialogue and/or interactive mode via our Platforms.
4.3 You must not use our Platforms in any way that causes, or may cause, damage to our Platforms or impairment of the availability or accessibility of our Platforms; or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.4 You must not use our Platforms to copy, store, host, transmit, send, use, publish or distribute any material including but not limited to any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software. And you must not conduct any systematic or automated data collection activities including but not limited to scraping, data mining, data extraction and data harvesting.
4.5 You must only access our Platforms via a device owned by or controlled by you for your non-commercial and private viewing purpose, provided that you shall keep intact all copyright and other proprietary notices and act in accordance with our timely instruction.
4.6 You acknowledge that:- (i) the information provided in our Platforms is for information purpose only and is not intended for trading purposes; (ii) none of the information and service contained in our Platforms constitutes an offer, opinion, recommendation by us regarding any use, including investment; (iii) the information and services provided by our Platforms are for personal use only and not intended for distribution to any person or entity; (iv) You have or will make your own assessment as to its suitability when you make use of the information provided in our Platforms (and you are qualified to make such assessment or have received suitable independent advice). (v) The provisions of certain information or services is subject to the terms and conditions of other agreements to which we are a party; and (vi) We do not guarantee the sequence, accuracy, completeness, or timeliness of the information contained in our Platforms.
4.7 You agree that certain content or service that is accessible through one viewing device may not be accessible through other viewing devices for various reasons (such as limitations or restrictions from third party), and we are not liable for such inaccessibility.
5. Intellectual Property Rights and License
5.1 Our Platforms are derived in whole or in part from materials supplied by us and/or other licensed sources, and are protected by all relevant intellectual property laws (including copyright and trade mark laws). All rights in the content of our Platforms are owned or controlled by us or our respective licensors.
5.2 The Trademarks, logos, and service marks (collectively the “Trademarks”) displayed on our Platforms are registered and unregistered Trademarks of us and other third parties. Nothing contained on our Platforms should be construed as granting, by implication or otherwise, any license or right to use any Trademark displayed on our Platforms without the written permission of us or such third party that may own the Trademarks display on our Platforms. Your misuse of the Trademarks displayed on our Platforms, or any other content on our Platforms, except as provided in these T&C, is strictly prohibited.
5.3 Software Applications & programs from our Platforms (“Software”) – TVB hereby grant to you a non-exclusive and non-transferable license for you to store, run and use the Software on your personal computer or viewing device for accessing of our Platforms in accordance with the terms in this T&C and any software license of the Software but not further or otherwise. We reserve the right to update the Software from time to time in our sole discretion, including but not limited to adding, changing or removing functionalities and features, and changing the user interface or the manner in which you are able to access the Service or the Content.
5.4 Copyright – you agree that TVB own and retain all rights to our Platforms, the Content, and you acknowledge that our Platforms, the Content are protected by copyright, trademark laws, and other Intellectual property right laws, and you further agree that you are being granted with a non-exclusive limited license to use our Platforms, the Content in compliance with the terms of this T&C. Nothing you do on or in relation to our Platforms, the Content, the materials contained in our Platforms, or the Software will transfer any intellectual property rights to you or license you to exercise any intellectual property rights unless expressly stated by us.
5.5 When you submit any Content to our Platforms or to us via our Platforms, you have irrevocably assigned to TVB all of your copyright and interest in such Content, and that you have agreed to grant to us the worldwide, irrevocable, non-exclusive, royalty-free license to use, reproduce, adapt, publish, translate and distribute such Content for whatever purposes in any existing or future media without your consent or payment of any fee to you. You also grant to TVB the right to sub-license these rights, and the right to bring an action for infringement of these rights. You are solely responsible for any Content posted to our Platforms by you. We reserve the right in our sole discretion to delete, remove or edit any of your Content submitted to our Platforms, or stored on our servers, or hosted or published upon our Platforms.
5.6 This Section 5. Intellectual Property Rights and License will survive the termination or expiry of this Agreement and/or the use of our Platforms by you.
6. Disclaimer of Warranties and Limitation of Liabilities
6.1 ALL MATERIALS ON OUR PLATFORMS ARE PROVIDED “AS IS” AND ON AN “IS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR ENDORSEMENT MADE BY US AND WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY AND ACCURACY. YOU AGREE THAT YOUR USE OF OUR PLATFORMS, THE SOFTWARE AND/OR THE CONTENTS OBTAINED THROUGH YOUR USE OF THE FOREGOING ARE OBTAINED AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING THEREFROM.
6.2 All services of our Platforms are subject to the T&C and we shall not be liable for the (i) the timeliness, deletion, non-delivery, errors, interruptions in the transmission or failure of the provision of any services of our Platforms; OR (ii) your inability to gain access in whole or in part to our services due to the delay or failure of any communication networks or any party providing such access.
6.3 We make no representation that materials on our Platforms are appropriate or available for use outside United States. Those who choose to access our Platforms from other locations do so on their own initiative and are responsible for compliance with their local laws, if and to the extent applicable.
6.4 In no event will we or our respective licensors be liable for any damages, whether direct or indirect, or consequential damages, or any damages whatsoever arising from use or loss of use, loss of data or profits, whether in action of contract, negligence or other tortuous action, arising out of or in connection with your use, or the omissions or conducts of any party in connection with or related to your use of our Platforms.
6.5 We do not warrant that the functions or material contained in our Platforms will be uninterrupted or error free, that defects will be corrected, or that the service or the software or the device or the server that makes it available are free of viruses or bugs or represents the full functionality, accuracy, reliability of the materials.
6.6 To the fullest extent permitted by applicable law, we and the providers of our Platforms and its services, the Software and/or the Content disclaim all representations and warranties of all kind, whether expressly or implied, including but not limited to the title, fitness for a particular purpose, merchantability, non-infringement, accuracy or standard of quality of our Platforms, the Software and/or the Content, that our Platforms or your access to our Platforms will be uninterrupted or error free, free of viruses, malicious code or other harmful components or otherwise secure. We further disclaim any representation or warranty that our Platforms, the Software and/or the Content will meet your requirements.
6.7 To the fullest extent permitted by applicable law, we are not liable to you or any other third party (including users of the Service, whether authorized or not) for the following:
a) Any damage to or loss of data and/or the consequences or effects on your Internet connection, its spend and/or bandwidth, arising from your use of our Platforms, the Software and/or any Content;
b) Any claim based on contract, tort, or otherwise or any loss of revenue (whether direct or indirect), loss of profits or any incidental or consequential damages, whether of an economic nature or not;
c) Any claim relating to any part of our Platforms, and/or Software or Content supplied, provided, sold or made available by or through our Platforms (or any failure or delay to so supply, provide, sell or make available);
d) Any injury, disease, seizure or loss of consciousness suffered by you, arising whether directly or indirectly from accessing and using our Platforms, the Software and/or the Content;
e) Any disruption, suspension, delay, failure or discontinuation of our Platforms or the service capacity (including but not limited to streaming capacity allocated by us for our Platforms), the Software and/or Content or any part thereof which is attributable to (a) an event or circumstance beyond our reasonable control; (b) our system maintenance, upgrading, testing and/or repairs, (c) the reliability and stability of your Internet connection and its speed, its bandwidth, its system and services and (d) any other third party’s software or services; or
f) Any infringement of intellectual property rights arising from your use of our Platforms, the Software, or the Content.
6.8 We make no representation about any software, materials, applications, media platforms, devices or services of third parties (e.g. our information suppliers or advertisers or Facebook service) that you may access through, or are linked to or embedded in our Platforms. We have no control over and accepts no liability for the content or accuracy of any other software, materials, applications, media platforms, devices or services linked to or embedded in our Platforms, including but not limited to advertisements or services provided or licensed by third parties and will not bear any legal responsibility for any acts of intellectual property and litigation arising from publication of any material by you via our Platforms. Any transaction or your dealings with any third parties via our Platforms or linked sites or applications including payment, delivery of the goods and services, the provisions, guarantee, warranties, terms and conditions etc. related to these transactions or dealings are solely between you and such third parties. We will not be liable or responsible for any loss or damage whatsoever and howsoever incurred as a result of any such transactions or dealings or arising from the use of our Platforms and those linked sites or applications.
6.9 Our Platforms may provide hyperlinks to third party websites/mobile applications but we shall not be responsible for the contents of these other websites/mobile applications. The links provided to you are for convenience only. We shall not be liable of any damages or injury resulting from your access to, any of the said other websites/mobile applications, or from your reliance on any information provided in the content of such other websites/mobile applications.
6.10 No advice or information, whether oral or written, obtained by you from us or through the provision of services of our Platforms shall create any warranty not expressly stated in the T&C.
6.11 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THESE TERMS, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES YOU HAVE ACTUALLY PAID TO US DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
6.12 This Section 6 – Disclaimer of Warranties and Limitation of Liabilities will survive the termination or expiry of this Agreement and/or your use of our Platforms.
7. ARBITRATION AGREEMENT AND WAIVER OF CERTAIN RIGHTS
7.1 You and TVB agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. You and TVB hereby waive any right to a jury trial of any Claim (defined below). All controversies, claims, counterclaims, or other disputes arising between you and TVB relating to these Terms or the Offerings (each a “Claim”) shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
7.2 If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, TVB will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
7.3 This arbitration agreement does not preclude you or TVB from seeking action by federal, state, or local government agencies. You and TVB also have the right to bring qualifying claims in small claims court. In addition, you and TVB retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
7.4 Neither you nor TVB may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or TVB’s individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
7.5 If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section of the Terms will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Terms. This Section of the Terms will survive the termination of your relationship with TVB.
7.6 THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR TVB WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
8. COPYRIGHT AND INTELLECTUAL PROPERTY POLICY
8.1 TVB responds to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:
a) Your address, telephone number, and email address.
b) A description of the copyrighted work that you claim has been infringed.
c) A description of where the alleged infringing material is located.
d) A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law.
e) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
f) A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
Copyright Agent: Legal Department – TVB (USA), Inc.
15411 Blackburn Ave, Norwalk CA 90650
8.2 For clarity, only copyright infringement notices should go to our Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section your notice may not be valid.
8.3 If you believe the content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content, you may submit a counter-notice to the address listed above containing the following information:
a) Your physical or electronic signature;
b) Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
c) A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
d) Your name, physical address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in [Los Angeles, California], and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
8.4 After TVB receives your counter-notification, TVB will forward it to the party who submitted the original claim of copyright infringement. Please note that when TVB forwards the counter-notification, it includes your personal information. By submitting a counter-notification, you consent to having your information revealed in this way. TVB will not forward the counter-notification to any party other than the original claimant.
8.5 After TVB sends out the counter-notification, the claimant must then notify TVB within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the content that was removed or disabled. If TVB receives such notification it will be unable to restore the material. If TVB does not receive such notification, it may reinstate the material.
10. Our Rights
10.1 You acknowledge and agree TVB has the following rights:
a) Expand, reduce and/or modify the whole or any part of our Platforms or any content of our Platforms.
b) Deactivate the whole or any part of our Platforms to carry out system maintenance, upgrading, testing and/or repairs.
c) Limit or suspend your access to the whole or part of our Platforms if we believe that such action is appropriate due to your improper use of our Platforms or breach of any T&C of this Agreement.
11.1 You agree to indemnify, defend and hold TVB and its parent, affiliates, and their respective directors, officers, owners, employees, agents, information providers and licensors (collectively the “Indemnified Party”) harmless from and against any and all claims, liability, losses, actions, suits, damages, costs and expenses (including attorneys’ fees) arising out of or incurred by: (a) any breach by you of this T&C, (b) Your use of our Platforms, the service, content and the software of our Platforms, (c) the contents or information you provided, (d) in connection with any dealings with you through our Platforms, (e) the personal information submitted by you, and (f) Your violation of any rights of another, and under which such third party demands from you any compensation, fees or damages including attorney fees.
11.2 This Section 11 – Indemnification will survive the termination or expiration of this Agreement and/or your use of our Platforms.
13. Breaches of T&C by YOU
13.1 Without prejudice to TVB other rights under the T&C, if you breach any of the T&C in any way, TVB may take such action as TVB deem appropriate to deal with the breach, including suspending your access to our Platforms, prohibiting you from accessing our Platforms, blocking computers using your IP address from accessing our Platforms, contacting your internet service provider to request that they block your access to our Platforms and/or bringing court proceedings against you.
14.1 TVB may, in its sole discretion, terminate your registered account and/or your access to our Platforms, or removes and discard any communication or contents transmitted by you or information stored, sent, or received via our Platforms without prior notice and for any reason, including, but not limited to: (i) any breach of the T&C in any way, (ii) the T&C is not accepted or performed in full by you, (iii) any other access or use of our Platforms except as expressly provided in this T&C, (iv) tampering with or alternation of any of the software and/or data files contained in or accessed through our Platforms.
14.2 You may also terminate this Agreement at any time by immediately discontinuing your use and exist our Platforms.
14.3 Upon termination, all access to our Platforms, licenses, rights and privileges granted to you under this Agreement shall cease. Any termination of this Agreement shall not affect any of our accrued rights and interest nor shall it affect the coming into force or the continuance in force of any provision contained in the Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
15.1 TVB may appoint agents, assign or sub-contract the whole or any part of our rights and/or obligations contained in this Agreement to any person or entity at any time without notifying you or obtaining your consent.
15.2 You may not assign, transfer, convey or otherwise dispose of any of your rights, obligations and/or liabilities under this Agreement to any person or entity without our prior written consent.
16. No Waiver
16.1 Failure of TVB at any time to enforce any provision of this Agreement or to require performance by you or any third parties of any provision hereof shall in no way affect the validity of the T&C or any part hereof or the right of TVB thereafter to enforce its rights hereunder; nor shall it be taken to constitute a waiver of that default or any other or subsequent default or breach by you or such other third parties.
17.1 If any part of the T&C shall be deemed unlawful or for any reason unenforceable, then that provision shall be deemed to be severable from the T&C and shall not affect the validity and enforceability of any of the remaining provisions of the T&C.
18. Interpretation and Modification of T&C
18.1 TVB has the sole discretion to interpret and determine the T&C.
18.2 TVB has the right to modify the T&C posted without prior notice. Please keep yourself updated by regularly viewing our Platforms. Your use of our Platforms following the posting of any changes to the T&C will constitute your acceptance of such changes.
19. Governing Law
19.1 The T&C and/or the Agreement shall be governed by and construed in accordance with the laws of California. You and TVB agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Los Angeles, California.
20. Contact Us
20.1 You may contact TVB by using email address listed on the “Contact US” of our Platforms.