October 13, 2023

This Terms of Use and Usage Agreement (the “Agreement”) sets forth the terms and conditions which apply to your use of this FOXFLASH website (the “Site”) and Materials (as defined in Section 1), which are offered by Fox Broadcasting Company, LLC (“FBC” or “we”). All references to “you” or “your” in this Agreement will be deemed to refer to you personally and your agency and/or your employer, as applicable.  You represent and warrant that you are authorized to act and grant to FBC consent(s) and authorization(s) hereunder, on behalf of your agency or employer, as applicable, and use the Site, obtain Material and use such Material solely in accordance with this Agreement.  By visiting the Site or downloading information and/or photographs (subject to FBC’s further approval) from the Site, you agree that you will abide by the terms of this Agreement just as if you had signed this Agreement. If you do not agree to be bound by the terms of this Agreement, do not use this Site or the Material. FBC reserves the right to change or modify this Agreement in FBC’s sole discretion and reserves the right to withdraw or update any portion of the Site or Materials, including but not limited to information or photographs available on the Site, or to suspend your right(s) to use Material for any reason in FBC’s sole discretion.  If you disagree with any modifications to this Agreement made by FBC, please do not make any further use of the Site or Material.

  1. By completing the registration process and obtaining a password, you represent and warrant that you are authorized to request a non-exclusive, limited license to obtain and use FBC promotional material, consisting of FBC written publicity materials and FBC photographs, available through the Site (individually and collectively, the “Material”). You agree, on behalf of yourself and your agency (or employer, as applicable), that you are authorized to obtain, secure and use Material solely for promotional, informational, and publicity purposes only (collectively, “Limited Publicity Uses”) on your agency’s (or employer’s, as applicable) Internet website (“Licensee’s Site”) and/or in your (or your employer’s, as applicable) editorial printed materials (“Licensee Publications”). FBC hereby grants you a non-exclusive, limited license to download and use a single copy of the Material in accordance with this Agreement and strictly for the Limited Publicity Uses on Licensee’s Site and/or in Licensee Publications. You agree to reference the origin of the Material accurately. You agree that you will not (and will not enable any third party to) sell, redistribute, repurpose, relicense or sublicense the Material in any manner.  You agree that Licensee’s Site maintains industry standard security measures and protections and that License’s Site provides standard HTML viewed by users connected to the Internet in real time. All other uses of the Material, including, but not limited to, those involving advanced technologies, online services, artificial intelligence or machine learning, push technology, broadcast, and all other mediums are expressly reserved by and for the exclusive use by FBC. Passwords are non-transferable and you are responsible for the storage and security of your password and related credentials. You agree to notify FBC immediately if you suspect any unauthorized use of, or access to, your account or password.
  2. You agree not to use the Material in any manner that is in any way objectionable or in conjunction with other material or information that is in any way objectionable. As used herein, “objectionable” means any material or information in any medium or format, including, without limitation, text, data, graphics, audio or video content (or use of the content) that: (a) is libelous or defamatory, pornographic, sexually explicit, unlawful or plagiarized; (b) a reasonable person would consider harassing, abusive, threatening, harmful, vulgar, profane, obscene, excessively violent, racially, ethnically or otherwise objectionable or offensive in any way; (c) constitutes a breach of any person´s privacy or publicity rights, a misrepresentation of facts, hate speech or an infringement of any third party´s intellectual property rights of any kind, including, without limitation, copyright, patent, trademark, industrial design, trade secret, confidentiality or moral rights; (d) violates or encourages others to violate any applicable law; (e) promotes software or services that deliver unsolicited email; or (f) contain direct links (by a single click) to web sites that contains information of the kind described in this definition.
  3. You agree that FBC or, as applicable, FBC Affiliate(s), as determined by FBC is the exclusive owner of all rights, title and interest in and to the Material, including without limitation, all copyright, trademark and publicity rights therein. You agree not to use the Material in any way that may violate FBC’s rights hereunder or in a way that is inconsistent with the terms of this Agreement or in violation of applicable law. FBC shall, at all times, anywhere in the world and in all media, and whether or not in conflict or competition with Licensee’s Site, have the right to use and authorize others to use the Material in any manner in FBC’S sole discretion. For purposes of this Agreement: (a) “FBC Affiliate(s)” shall be defined as any entity that directly or indirectly controls, is controlled by, or is under common control with FBC, and (b) all references to FBC in this Agreement will be deemed to also refer to FBC Affiliate(s), where applicable.
  4. The term of this license to Material shall commence upon your registration with FOXFLASH and FBC’s written approval, subject to FBC’s right of termination under Section 9 of this Agreement. You represent and warrant that any information you provide on or through the Site or in connection with registration for FOXFLASH is true, complete and accurate, and will be kept up to date.
  5. You agree that you will not use the Material in advertisements or promotions of any kind, including, without limitation, in connection with promotional or marketing tie-ins.
  6. You agree that any use of any Material will only be for Limited Publicity Uses and/or in the Licensee Publications and shall not be altered or manipulated in any way.
  7. You agree that you will not take or use still "screen grab" images from moving segments of Material on the Site or elsewhere without FBC’s prior written consent in each instance. You understand and agree that if the Material contains audio and/or video elements from any television show, film or other media, then you shall not be entitled to use any such audio and/or video Material without FBC´s prior written approval.
  8. Except as otherwise expressly provided in this Agreement, you agree not to use FBC logos, names or other proprietary marks or graphics of FBC to link to the Site.
  9. This Agreement may be terminated by FBC at any time at its sole discretion. Immediately upon the termination of this Agreement, you shall cease all use(s) of the Material, and remove all Material from Licensee’s Site and/or Licensee Publication, take down all hyperlinks to FOXFLASH, delete all saved Material from your archives and computers and securely destroy all Material in physical, printed format (unless directed by FBC to return to FBC).
  10. You agree to indemnify and hold FBC, FBC Affiliates, stations affiliated with FBC, producers of FBC content, each advertiser, sponsor and their advertising agencies, subcontractors and other partners, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including, but not limited to, reasonable attorneys' fees, made by any third party due to or arising out of or in connection with your use or misuse of the Site or the Material (including, without, limitation, any use of your Site account, whether or not authorized by you), your breach of this Agreement or applicable law, or your violation of any rights of another.
  11. Privacy. Use of this Site is also governed by our Privacy Policy located at https://www.foxflash.com/page/privacy-policy, which is incorporated into and is a part of this Agreement by this reference.
  12. DISCLAIMER. FBC intends to provide the most current information available about FBC’s programming and events and to make efforts to ensure that the Materials on the Site are updated on a regular basis. However, programming and schedules are subject to sudden changes without notice, and FBC makes no guarantee that the Materials on the Site are accurate and is not responsible for any errors or omissions in the Materials provided. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE MATERIALS ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND FBC DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE OPERATION OF THIS SITE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. FBC makes no guarantees with respect to the Materials provided on this Site, and neither FBC nor any of its employees, staff, officers, directors or agents, shall have any liability as a result of your use of Material or the Site, including, without limitation, internet disruption, interrupted service, errors or delays in providing the Site. In no event shall FBC be liable for indirect, exemplary, special, incidental or consequential damages, or costs, including, but not limited to, any lost profits or revenues, loss of use or goodwill, or any third-party claims, even if such party has been advised of the possibility of such damages.
  13. Limitation of Liability

IN NO EVENT SHALL FBC, ITS DIRECTORS, MEMBERS, EMPLOYEES, LICENSORS OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITE, THE SERVICES, THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM FBC OR MATERIAL, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE OR THE SITE OR MATERIAL, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORISED ACCESS TO RECORDS, PROGRAMMES, THE SITE, MATERIAL OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FBC, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE SITE OR MATERIAL EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO FBC FOR ACCESS TO OR USE OF THE SITE.

  1. Arbitration Agreement and Class Action Waiver

(a) FBC, including FBC Affiliates, agents, employees, predecessors in interest, successors, and assigns, and you agree that any Dispute (as defined herein) between you and FBC, regarding any aspect of your relationship with FBC, will be resolved in a binding, confidential, individual and fair arbitration process, and not in court.  Each of you and FBC agrees to give up the right to sue in court. 

(b) The term “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any dispute, claim, demand, count, cause of action, or controversy between you and FBC, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory.  The term “Dispute” specifically includes, but is not limited to, any disputes, actions, claims, or controversies between you and the FBC that arise from or in any way relate to or concern any products or services provided by FBC, including but not limited to your Limited Publicity Use of the Material on the Site (as defined above), this Arbitration Agreement, any other aspect of this Terms of Use and Usage Agreement (including their applicability and their conformance to applicable law), any billing disputes, and any disputes relating to telephonic, text message, or any other communications either of us received from the other.  The only exceptions to this Arbitration Agreement are that (i) each of you and FBC retains the right to sue in small claims court and (ii) each of you and FBC may bring suit in court against the other to enjoin infringement or other misuse of intellectual property rights.  Disputes over whether these exceptions apply shall be resolved by the court in which such action has been brought; all other disputes over arbitrability shall be resolved by the arbitrator. 

(c) Each of you and FBC also agrees to give up the ability to seek to represent, in a class action or otherwise, anyone but each of you and FBC (see paragraph i below).  

(d) There is no judge or jury in arbitration, and court review of an arbitration award is limited.  An arbitrator must follow this Agreement.  The arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages) provided that they are recoverable under this Agreement.  

(e) This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration Agreement.  This Arbitration Agreement shall survive termination of this Agreement.

(f) Any arbitration between you and FBC will be conducted by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”), as modified by this agreement to arbitrate.  The arbitration shall be conducted by a single, neutral arbitrator, and if you and FBC cannot agree on who that single arbitrator will be, the arbitrator will be appointed pursuant to the JAMS Rules, with the participation and involvement of FBC and you pursuant to JAMS Rule 12.  The JAMS Rules are available on its website at https://www.jamsadr.com/consumer-minimum-standards/.  The Consumer Arbitration Minimum Standards are available at https://www.jamsadr.com/consumer-minimum-standards/. The arbitrator is bound by the terms of this Agreement.

(g) If either you or FBC wants to arbitrate a claim, you or FBC must first send by mail to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the FBC Service to which the Notice relates, and the relief requested.  Your Notice to the FBC must be sent by mail to: Arbitration Notice of Dispute, 2121 Avenue of the Stars, 12th Floor, Los Angeles, California, 90067.  The FBC will send any Notice to you at the contact information we have for you or that you provide.  It is the sender’s responsibility to ensure that the recipient receives the Notice.  During the first 45 days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute. 

(h) If you and we do not resolve the Dispute within 45 days, either you or we may initiate arbitration in accordance with the JAMS Rules.  Further instructions on submitting a Demand for Arbitration may be found at http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf.  In addition to filing this Demand for Arbitration with JAMS in accordance with its rules and procedures, you must send a copy of this completed Demand for Arbitration to the FBC at the address listed above to which you sent your Notice of Dispute. 

 (i) You and the FBC acknowledge and agree to abide by the following rules for arbitration:

 (i) YOU AND FBC MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING, AND THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF; (ii) the FBC will pay arbitration costs as required by the JAMS Consumer Arbitration Minimum Standards and consistent with paragraph f above; (iii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law and the terms of this Agreement; and (iv) each side pays his, her or its own attorneys' fees, except as otherwise provided in paragraph l below.

(j) JAMS charges filing and other fees to conduct arbitrations.  Ordinarily, the claimant has to pay the filing fee to initiate arbitration, but if you wish to commence an arbitration against FBC, you and the FBC acknowledge and agree to abide by the following:

If you are seeking to recover less than $10,000 (inclusive of attorneys’ fees), FBC will pay the filing fee on your behalf or reimburse your payment of it.

If you are seeking to recover $10,000 or more, you will have to pay the filing fee charged by JAMS, but FBC will reimburse the filing fee if you prevail on all claims decided upon by the arbitrator.

FBC and you agree that, if the claims to be arbitrated total less than $10,000 (inclusive of attorneys’ fees), the claim ordinarily should be decided on written submissions only, without a telephonic or in-person hearing. FBC will not request a hearing for any claims totaling less than $10,000.  This provision shall not be construed by the arbitrator to deprive you of any rights you may have to a telephonic or in-person hearing in your hometown area pursuant to the JAMS Rules.

FBC and you agree that, if the claims to be arbitrated total $10,000 or more, the arbitration will occur in a manner and place consistent with the JAMS Rules.

(k) Regardless of how the arbitration proceeds, each of you and FBC shall cooperate in good faith in the exchange of non-privileged documents and information as necessary in accordance with the JAMS Rules, and the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions.

(l) Each of you and FBC may incur attorneys’ fees during the arbitration.  Each side agrees to pay his, her or its own attorneys' fees unless the claim(s) at issue permit the prevailing party to be paid its attorneys' fees, and in such instance, the fees awarded shall be determined by the applicable law(s). In addition to whatever rights you may have to recover your attorneys’ fees under applicable law, if you prevail in the arbitration, and if FBC failed to make a settlement offer to you before the arbitration or the amount you win is at least 25% greater than FBC’s highest settlement offer, then FBC will pay your reasonable attorneys’ fees in addition to the amount the arbitrator awarded.  If FBC wins the arbitration, you will be responsible for your own attorneys’ fees.  In addition, if the arbitrator, at the request of the winning party, finds that the losing party brought a claim or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by applicable law.

(m) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief, only to the extent necessary to provide relief warranted by that party's individual claim, only as permitted by applicable law, and only to the extent that declaratory and injunctive relief are permitted by this Agreement.  The arbitrator shall have no authority to award punitive, exemplary, multiplied or consequential damages or any other relief not allowed under this Agreement.  The arbitrator also may not order FBC to pay any monies to or take any actions with respect to persons other than you, unless FBC explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order.  Further, unless FBC expressly agrees, the arbitrator may not consolidate other persons’ claims with yours, and may not otherwise preside over any form of a representative, multi-claimant or class proceeding. 

(n) You and FBC agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation,  proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, an order confirming the award, or unless otherwise required by law or court order. In keeping with the confidential nature of the arbitration, You and FBC agree that an order confirming award is only necessary if the obligations of the award have not been performed.  Therefore, before taking any steps to confirm the arbitration award, the party seeking confirmation of the award must give the other party notice of its intention to confirm the award.  If the party who would be the respondent in any such confirmation proceeding performs its obligation under the terms of the arbitration award within 15 business days of such notice, the party who gave notice of its intent to confirm the award shall not seek to confirm or otherwise enforce the award.

(o) With the exception of subpart (i) in paragraph (i) (i.e., the waiver of the ability to proceed on behalf of multiple claimants or a purported class), if any part of this Arbitration Agreement is deemed invalid, unenforceable, or illegal, then the balance of this Arbitration Agreement shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (i) in paragraph (i) is found invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, but the rest of this Agreement, including the provisions governing where actions against FBC must be pursued, the choice of governing law, and our mutual waiver of the right to a trial by jury, will remain in effect and apply to any claim that, for this or any other reason, proceeds in court rather than in arbitration.

15.Other

The failure of FBC to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The Section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. Except as otherwise expressly provided herein, if any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.

You agree that any notices FBC may be required by Applicable Law to send to you will be effective upon FBC sending an e-mail message to the e-mail address you have on file with FBC or publishing such notices on the informational page(s) of FOXFLASH.

You agree that no joint venture, partnership, employment, or agency relationship exists between you and FBC as a result of this Agreement or your use of Material. A printed version of this Agreement and of any notice related to it shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other business documents and records originally generated and maintained in printed form.

  1. FBC reserves the right to modify or amend this Agreement without notice at any time, and such modification will be effective upon posting by FBC on this Site. You agree to be bound by any changes to this Agreement when you use the Site after any such modification is posted. It is therefore important that you read this page regularly to ensure you are updated as to any changes. If you become aware of misuse of this Site by any person, please contact the Site Administrator at [email protected] with your concerns.
  2. Application on the Site to use Material does not guarantee access.
  3. Non-compliance with any terms or conditions in this Agreement will result in immediate revocation of the license to Material.

FOR AVOIDANCE OF DOUBT, YOUR USE OF THE MATERIAL AFFIRMS YOUR ACCEPTANCE OF, AND AGREEMENT TO, THE TERMS AND CONDITIONS OF THIS AGREEMENT.