MightyTV Terms of Service

Last updated:  April 13, 2016

IMPORTANT

As explained in more detail in Section 18 below, by entering this agreement:

• YOU AGREE TO RESOLVE ALMOST ALL DISPUTES WITH MIGHTYTV THROUGH BINDING ARBITRATION; AND
• YOU GIVE UP YOUR RIGHT TO SUE IN COURT (IN ALMOST ALL CASES); AND
• YOU WAIVE CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS.

1. Introduction

MightyTV, Inc. (“MightyTV,” “we,” “our”) operates the “Service,” which in this document is defined to include all of the following:

• mighty.tv
• our official MightyTV app for iOS
• other official MightyTV websites and software from which we link to these Terms of Service
• the Content, services, activity and transactions that are offered, made available or facilitated through any of the above

These Terms of Service apply to the Service, and they govern your use of the Service and your relationship with us in connection with the Service.  You accept and agree to these Terms of Service by doing any one of the following:

• Accessing or using the Service
• Clicking to accept these Terms of Service
• Accepting these Terms of Service through any other method we specify

If you violate these Terms of Service, or if you do not agree to these Terms of Service, you are not allowed to access or otherwise use the Service

These Terms of Service contain many important points, such as warranty disclaimers and limitations on MightyTV’s liability (including as explained in sections 16 and 17) and an explanation of how these Terms of Service will be updated (as detailed in section 2 below).

As used in these Terms of Service:

• The term “Content” includes likes/dislikes, ratings, text, images, video and other material.
• The term “posting” refers to any act of submitting or sending Content to the Service, or creating Content on the Service.

2. Changes to the Terms of Service

MightyTV may amend these Terms of Service at any time and at MightyTV’s sole discretion, by posting the updated version on mighty.tv (such as via a link to the update in the footer).  Unless you reject the update as described below, you will be deemed to accept the updated version, and it will take effect, at the earlier of:

• 12:00 p.m. Eastern time on the 10th day after posting to mighty.tv (if there is no update to Section 18) or on the 60th day (if there is an update to Section 18); or
• your acceptance of the updated version via a click-through process or some other method that we specify.   

To reject a proposed update, you must, by the deadline on the day specified above, and without accepting the update, take all of the following steps:

1. Request deactivation of your account as described in the Privacy Policy (including by following any deactivation instructions we email you); and
2. Stop using the Service;

If you follow the process above to reject the update, then the update will not take effect between us and you, and your account on the Service will be closed as described in Section 7.

If you do not follow the process above to reject the update, then it will apply on a going-forward basis as of the date and time it takes effect.  

3. Changes to the Service

We reserve the right to change and improve the features and functionality of the Service at any time and at our sole discretion. This includes adding, modifying or removing specific features and functionality of the Service, or updating our iOS app or other Service software (including remotely).  The Terms of Service will apply to the changed version of the Service.  Additionally, we reserve the right to suspend or stop the Service altogether.  We reserve the right to impose fees for new or existing aspects of the Service and to modify existing fees.  

4. Eligibility Restrictions

To use the Service, you must (i) have reached the age of majority in the jurisdiction where you live (in most U.S. states, that’s 18 years old), (ii) 13 or older and have valid consent from your parent or legal guardian to use the Service and be bound by these Terms of Service, or (iii) be 13 or over and an emancipated minor.  If you are the parent or legal guardian of a minor that creates an account, you accept these Terms of Service on the minor’s behalf and are jointly responsible with the minor for all use of the Service and compliance with the Terms of Service.

5. Privacy Policy

You consent to the collection, use, disclosure and other handling of information described in our Privacy Policy, which we may update from time to time.

6. General Requirements and Prohibitions

You must:

• Comply any policies or requirements we post on the Service.  
• Provide us with only accurate information about yourself, and keep it up-to-date.
• Protect the confidentiality of your password (and of any social network account you use to login to the Service).  You will be responsible for any and all statements and transactions made, and any other acts or omissions that occur, through your account.
• Use a unique password that never has or will be used anywhere else.
• Access our Service only from devices that have an up-to-date operating system.

You must not do any of the following:

• Violate any applicable law or legal requirement.
• Engage in fraud or misuse of the Service.
• Engage in conduct that is harmful to anybody.
• Attempt to access, search or otherwise use the Service (such as by attempting to retrieve information from or about the Service) through the use of any engine, software, tool, agent, device or mechanism (including spiders, scrapers, robots, crawlers, data mining tools or the like) other than (i) generally available third-party web browsers that provide accurate and complete User-Agent information in the HTTP header, such as Chrome, Safari, Firefox and Internet Explorer and (ii) our apps.
• Access our Service using anything that has been created (or modified with plugins or otherwise) in a manner that facilitates automated or faster-than-normal access to, searching of or other use of the Service.
• Disregard our robots.txt files (but in the event of a conflict between these Terms of Service and a robots.txt file, the relevant provisions of the one that is more restrictive of your actions shall apply).  
• Submit content that (i) infringes, misappropriates or violates a third party’s copyright, trademark, trade secret, patent, moral rights or other intellectual property rights, rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any legal requirement; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, dishonest, obscene, sexually explicit, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity;  or (vii) a third party might consider to be their private or confidential information (such as their credit card number, social security number, or their non-public phone number or email address).  
• Create or show ads that look like or could be confused with our Service (for example, embedding Service actions like add to watchlist, skip, or dislike in your ads).
• Misrepresent your relationship with us or with the Service.
• Otherwise impersonate or misrepresent your affiliation with any person or entity.
• Compensate or incentivize users to take actions on the Service such as liking or adding to your watchlist.
• Sell, transfer, license or assign your account, followers, username, or any account rights, or offer to do so, or resell, re-license or sub-license the Service (in whole or in part).
• Stalk, bully, abuse, harass or threaten anybody.
• Display to others, mirror or frame the Service, or any individual element within the Service, except that you may use embedding tools that we may choose to provide specifically to permit the embedding of aspects of our Service, consistent with any additional restrictions we impose for the use of such tools.
• Alter the way that an aspect of the Service is displayed or delivered to other users.
• Access, tamper with, or use non-public areas of the Service, our computer systems, or the technical delivery systems of us or our providers.
• Attempt to access any API we may provide without first obtaining our written permission and agreeing to our API-specific terms.
• Attempt to probe, scan, or test the vulnerability of the Service or breach any security or authentication measures.
• Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Service.
• Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure intended to protect, limit access to or control the Service;
• Disclose your password or other login credentials to third parties or permit third parties to use them or the Service on your behalf or under your account.  
• Permit third parties to observe your logging into the Service or to collect information about the login process.
• Request, receive or use third party’s password or other access credentials.
• Access the Service to determine whether a third party holds any type of account or to learn about or verify information about the account.  
• Disclose any of the following confidential information without our prior written consent:
• all MightyTV software, algorithms (including the optimization or manipulation of said algorithms), technology and non-public documentation relating to the Service;
• the existence of, and information about, non-public beta features in the Service; and
• any other information made available by MightyTV that is marked confidential or would normally be considered confidential under the circumstances in which it is presented.
• Access the Service if we have requested that you refrain from such access.
• Send any unsolicited or unauthorized advertising, promotional materials, junk email, spam or other form of solicitation.
• Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service.
• Collect from the Service or use any information found on the Service about an identified or identifiable individual.
• Assist or permit anybody to violate these Terms of Service.

7. User Account Termination or Modification

We reserve the right to terminate the Service or your access to the Service, or close your account, for any reason or no reason, without notice, at any time, and without liability to you.  You can request deactivation of your account at any time for any or no reason by following the instructions for this in our Privacy Policy. We reserve the right to permanently erase your account from our systems immediately or at any time before or after we receive the request or to preserve a record of the account for legitimate business purposes and as required by law.  When your account is deactivated, closed or deleted, all licenses and other permissions granted to you in these Terms of Service end.

8. Content

You grant us an irrevocable, non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, distribute, display, modify and perform the Content you post or derivatives of it, with or without attribution, including for advertising-related purposes.  You agree that we are forever free to use any ideas, concepts or know-how that you provide to us.

You agree that MightyTV is not responsible for the use or other handling of your Content by third parties.

You represent and warrant that: (a) you own the Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms of Service; (b) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; and (c) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service.

MightyTV reserves the right to take down or delete any Content from the Service for any or no reason, without prior notice.

You agree that the Service is not a backup service, and you will not rely on the Service for the purposes of backup or storage. You agree to make a secure copy of any important Content before posting it to the Service. MightyTV will not be liable to you for any modification, suspension, or discontinuation of the Service, or the loss of any Content. You acknowledge that the Service may be subject to breaches of security, and that the submission and storage of Content may not be secure.

You agree that MightyTV is not responsible for, and does not endorse, Content posted within the Service. MightyTV does not have any obligation to prescreen, monitor, edit, or remove any Content. You bear legal responsibility for your Content and for any violation by your Content of these Terms of Service.  Likewise, you agree that MightyTV does not control, is not responsible for, and will not be liable to you based on other users’ Content.  

Except to the extent specified in the Service's Privacy Policy, we may treat any of your Content as non-confidential and non-proprietary, and we will not be liable for any use or disclosure of Content. You acknowledge and agree that your relationship with MightyTV is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any Content does not place MightyTV in a position that is any different from the position held by members of the general public, including with regard to your Content.

The Service contains links to third-party websites and services that are not owned or controlled by MightyTV.  The Service also makes available embedded Content from such services, such as embedded videos that are hosted by a third-party website.  We do not endorse or assume any responsibility for any such third-party websites, services or Content.  If you view, access or otherwise interact with any such websites, services or Content, you do so at your own risk and you agree that MightyTV will have no liability arising from such access.

9. Communications Decency Act Notice

Commercially available parental control protections (such as computer hardware, software or filtering services) may assist you in limiting access to material on the Internet that is harmful to minors.  Current providers of such protections include McAfee and Symantec, as well as others available from this Google search.  Please note that we did not create these parental control tools, we have not tested or evaluated them and we do not endorse them.  Any use of such tools is at your sole risk. You should not assume that these or any other third-party parental control protections will work well or at all in connection with the Service.

10. Account Security

We make no representations or promises regarding security.  Despite our security efforts, it is possible that unauthorized individuals will obtain your information.  You are solely responsible for maintaining the confidentiality of your account information, such as your username and password, and for restricting access to your computer and other devices.  In addition, you accept full responsibility and liability for all activities that occur under your account or password.  Please notify us immediately at support@mighty.tv regarding any compromise, unauthorized use of your account or other potential security issue.

11. Advertising

You agree that MightyTV may in its sole discretion place advertising and promotions on the Service, including on, about, or in conjunction with your Content.  The manner, mode and extent of such advertising and promotions are subject to change without notice to you.

12. Ownership of the Service and Related Rights

As between you and MightyTV, all rights, title and interest in and to the Service, including, without limitation, patents, copyrights, trademarks, trade names, service marks, trade secrets and other intellectual property rights, and any goodwill associated therewith, are owned by or licensed to MightyTV.

The MightyTV and MightyTV names and logos are trademarks of MightyTV, and may not be copied, imitated or used, in whole or in part, without the prior written permission of MightyTV. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks and/or trade dress of MightyTV, and may not be copied, imitated or used, in whole or in part, without prior written permission from MightyTV.

The Terms of Service do not grant you any right, title or interest in any of the above.

The relationship between you and us is that of independent contractors, and nothing in these Terms of Service shall be construed to create or imply any other relationship such as a partnership or an employer/employee or agency relationship.

13. Reporting Suspected Copyright Infringement

Pursuant to the Digital Millennium Copyright Act (“DMCA”), MightyTV has adopted and implemented a policy that provides for the termination in appropriate circumstances of users who are repeat copyright infringers.  If you believe that your copyright or the copyright of a person on whose behalf you are authorized to act has been infringed, please provide MightyTV’s Copyright Agent a written Notice containing the following information:

1. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works.
2. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
3. Contact information for the notifying party, including your name, address, telephone number, and email address.
4. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
5. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
6. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

You must send that written Notice to MightyTV’s Copyright Agent, Alison Kurdock Adams, through one of the following three contact points:

• Mail:  MightyTV, Inc., 205 E 42nd St, New York, NY 10017
• Email:  dmca@mighty.tv
• Fax: +1 (914) 292-0392

Our Copyright Agent’s telephone number is +1 (646) 580-9452, but you cannot use this number to submit a Notice or to otherwise inform us of alleged copyright infringement. To be valid, a Notice must be in writing and must follow the instructions above.

14. Additional Terms For Our iOS App

You acknowledge and agree that (i) these Terms of Service are concluded between you and MightyTV only, and Apple is not a party hereto, and (ii) as between MightyTV and Apple, it is MightyTV that is responsible for the app and the content thereof. You must use the iOS app only on an Apple-branded product that runs iOS. Your use of the app must comply with the terms of use applicable to the Apple source from which you obtain it (including the Usage Rules set forth in the Apple App Store Terms of Service). You acknowledge that Apple has no obligation to furnish you with any maintenance and support services with respect to the app.

You acknowledge that Apple is not responsible for addressing any claims you have or any claims of any third party relating to the app or your possession and use of the app, including, but not limited to (i) product warranty or liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; or (iv) claims that the app infringes a third party’s intellectual property rights.

In the event of any failure of the iOS version of the app to conform to any applicable warranty that has not been effectively disclaimed by these Terms of Service, you may notify Apple, and Apple will refund the purchase price for the app (if any) to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the app, and, as between Apple and MightyTV, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty of MightyTV will be MightyTV’s responsibility, but only to the extent provided by these Terms of Service. Please read the entire Terms of Service, as other sections of these Terms of Service limit MightyTV’s liability in this regard.

Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service. Upon your acceptance of the Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service against you as a third party beneficiary thereof.

15. Indemnification

You agree to indemnify and hold harmless MightyTV and the members of its corporate family, and their agents, partners, employees, contractors and advertisers, at your own expense and immediately after receiving a written notice from us, from and against any damages, loss, costs, settlements, expenses and payments, including reasonable attorney’s fees and legal expenses, resulting from any third-party complaint, claim, demand or liability arising out of or related to any of your Content or your acts or omissions in relation to the Service, your breach of these Terms of Service, or your violation of any law or third party rights.  The members of MightyTV’s corporate family, and the agents, partners, employees, contractors and advertisers of them and of MightyTV, are third-party beneficiaries of this paragraph.  Other than them, Apple and Apple’s subsidiaries, there are no other third-party beneficiaries of the Terms of Service.

16. Disclaimer of Representations and Warranties

YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (2) OF INFORMATIONAL CONTENT OR ACCURACY, (3) OF NON-INFRINGEMENT, (4) OF PERFORMANCE, (5) OF TITLE, (6) THAT THE SERVICE WILL OPERATE IN AN ERROR FREE, TIMELY, SECURE, OR UNINTERRUPTED MANNER, IS CURRENT AND UP TO DATE AND ACCURATELY DESCRIBES ANYTHING, OR IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (7) THAT ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED, (8) THAT THE SERVICE IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM, OR (9) THAT WE WILL ENFORCE THE TERMS OF SERVICE AGAINST OTHERS TO YOUR SATISFACTION. EFFORTS BY MIGHTYTV TO MODIFY THE SERVICE SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS OR ANY OTHER PROVISION OF THESE TERMS OF SERVICE.  Some jurisdictions limit or do not allow the disclaimer of implied warranties, and as a result some or all of this section may not apply to you.  In cases where such laws apply, the warranties will be disclaimed only to fullest extent permitted by law.

17. Disclaimer of Liability

IN NO EVENT SHALL MIGHTYTV OR ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, INTERNAL OPERATING UNITS, AFFILIATES, PARENTS, SUBSIDIARIES, SUBLICENSEES, SUCCESSORS AND ASSIGNS, INDEPENDENT CONTRACTORS, AND RELATED PARTIES (COLLECTIVELY, WITH MIGHTYTV, THE “MIGHTYTV ENTITIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR WITH THE DELAY OR INABILITY TO USE SAME, OR FOR ANY BREACH OF SECURITY, OR FOR ANY CONTENT, PRODUCTS, AND SERVICES OBTAINED THROUGH OR VIEWED ON THE SERVICE, OR OTHERWISE ARISING OUT OF THE USE OF SAME, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, REGULATION, COMMON LAW PRECEDENT OR OTHERWISE, EVEN IF THE MIGHTYTV ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES AND EVEN IF SUCH DAMAGES RESULT FROM ANY MIGHTYTV ENTITY’S NEGLIGENCE OR GROSS NEGLIGENCE. IN NO EVENT SHALL THE MIGHTYTV ENTITIES’ AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICE EXCEED ONE HUNDRED U.S. DOLLARS (U.S. $100.00).  ADDITIONAL DISCLAIMERS BY MIGHTYTV APPEAR WITHIN THE SERVICE AND ARE INCORPORATED HEREIN BY REFERENCE. TO THE EXTENT ANY SUCH DISCLAIMERS PLACE GREATER RESTRICTIONS ON YOUR USE OF THE SERVICE OR THE MATERIAL CONTAINED THEREIN, SUCH GREATER RESTRICTIONS SHALL APPLY.  Some jurisdictions restrict or do not allow the limitation of liability in contracts, and as a result the contents of this section may not apply to you.  In cases where such laws apply, liability of the MightyTV Entities shall be limited to the fullest extent permitted by law.

18. Arbitration, Class Action Waiver and Applicable Law

PLEASE READ THIS SECTION CAREFULLY.  IT HAS SIGNIFICANT LEGAL CONSEQUENCES.

19. Other

These Terms of Service constitute the entire and exclusive understanding and agreement between us and you regarding the Service, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between us and you regarding such topic.  If we fail to enforce any part of these Terms of Service, it will not be considered a waiver.  Any amendment to or waiver of these Terms of Service by us must be made in writing and signed by us.  All of our rights and obligations under these Terms of Service (including any license rights) are freely assignable by us in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.  Nothing in these Terms of Service shall prevent us from complying with the law. We reserve all rights not expressly granted to you.