FBC APPLICATION END USER LICENSE AGREEMENT

 

1.1   Fox Broadcasting Company, Inc. (“FBC” “we” or “us”) has developed this end-user license agreement (“FBC License”) to describe the terms that govern your use of any FBC application (including any FBC Content or other FBC Services incorporated therein, and any updates, upgrades, enhancements or modifications provided by FBC,  in its sole discretion, that replace and/or supplement the original Application) (collectively the “Application”) that links to or references this FBC License, including, without limitation, FOX NOW. Subject to Section 7.11, this FBC License is between you and FBC and not between you and any Application Partner (as defined below).  FBC is based in the United States and is a part of the United States based operations of Twenty-First Century Fox, Inc., located at P.O. Box 900, Beverly Hills, CA 90213-0900. This FBC License is subject to and incorporates the terms and conditions of the FBC Terms of Use (the “TOU”) located at  http://www.fox.com/terms.php and the FBC Privacy Policy (the “Privacy Policy”) located at  http://www.fox.com/policy.php. BY DOWNLOADING, INSTALLING OR USING THE APPLICATION, YOU SIGNIFY YOU HAVE READ AND AGREE TO BE BOUND BY AND ABIDE BY THE TERMS AND CONDITIONS OF THIS FBC LICENSE, THE TOU, THE PRIVACY POLICY, INCLUDING ANY FUTURE MODIFICATIONS OR ADDITIONAL TERMS AND TO ABIDE BY ALL APPLICABLE LAWS, RULES AND REGULATIONS (“APPLICABLE LAW”). FURTHER, YOU HAVE READ AND AGREE TO BE BOUND BY AND ABIDE BY THE TERMS AND CONDITIONS OF ALL APPLICALBE APPLICATION PARTNERS FROM WHOM YOU MAY ACCESS THE APPLICATION.  If you do not agree to be bound by and to abide by this FBC License, the TOU and the Privacy Policy, FBC does not grant you a license to download, install or use the Application and you must immediately discontinue use of the Application and remove the Application and any related Content or data from your device. Use of the Application is limited to users aged 13 years and above. 

1.2   FBC reserves the right to update and change, from time to time, any aspect of the Application and this FBC License and all documents incorporated by reference herein. FBC may modify this FBC License at any time, and each such modification will be effective upon linking to, posting or referencing the modified FBC License on or through the Application or FBC Service. All material modifications will apply prospectively only. Your continued use of the Application following any modification constitutes your acceptance of and agreement to be bound by this FBC License as so modified. It is therefore important that you review this FBC License regularly. FBC may also use third-party service providers, such as vendors, contractors, agents or sponsors, to operate, develop or help FBC manage and provide the Application.

1.3   In the ordinary courses of our business, we may share information that we collect from or about you with third parties in order to process your requests and fulfill your orders for video content offered through the Application, including, to provide you with access to localized content and provide video content recommendations.

 

1.4   PLEASE NOTE THAT THE “ARBITRATION AGREEMENT” SECTION CONTAINS PROVISIONS THAT REQUIRE (i) WITH LIMITED EXCEPTIONS, ALL DISPUTES ARISING BETWEEN YOU AND FBC UNDER THIS FBC LICENSE BE HANDLED BY ARBITRATION, AND (ii) YOU AND FBC WAIVE THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN CONNECTION WITH SUCH DISPUTES.  PLEASE VISIT: [link to section 6 below] or GO TO Section 6 below TO REVIEW THE ARBITRATION AGREEMENT.

1.5   To access certain video content via the Application, you will be redirected to your television content provider’s registration page where you will be required to register directly with your television content provider.  Please contact your television content provider directly for questions on your account, including how to access or cancel your account.  Any information that you provide to your television content provider will be subject to the applicable television content provider’s privacy policy, rather than the FBC Privacy Policy.  We have no control over, and are not responsible for, any television content provider’s use of information collected via the Application.

2. Licensed Uses; Restrictions
   1. The Application (including, without limitation, any software, documentation, and local files installed or utilized by the installer application) is owned by FBC and, with respect to their applicable contributions to the Application, FBC’s licensors, including content, technology and data providers (collectively, “FBC Licensors”), and are licensed to you on a non-exclusive, non-sublicenseable, revocable basis, in the United States, on the service where the Application is made available to you, on the terms and conditions set forth herein. This FBC License defines legal use of the Application and all updates, revisions, substitutions and copies of the Application made by or for you. All rights not expressly granted to you herein are reserved by FBC or applicable FBC Licensors.

 

1. You may:

• install and personally use the Application on a device that is supported by the Application and owned or controlled by you;
• only use the Application, the Licensor Software and any data accessed through the Application for your own personal, non-commercial use;
• use the Application until this FBC License is terminated by you or FBC; and
• terminate this FBC License by discontinuing all use of the Application.
  1. You may not, and you may not authorize others to:
• decompile, copy, reverse engineer, disassemble, modify, rent, lease, loan, distribute, or create derivative works (as defined by the U.S. Copyright Act) or improvements (as defined by U.S. patent law) based on the Application, any updates or any portion thereof;
• distribute or make the Application available over a network where it could be used by multiple devices at the same time;
• incorporate the Application into any device manufactured by or for you;
• use the Application outside of the United States;
• use the Application in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this FBC License;
• use or export or re-export the Application in violation of Applicable Law;
• sell, lease, loan, distribute, transfer, or sublicense the Application or access thereto or derive income from the use or provision of the Application, whether for direct commercial or monetary gain or otherwise, without FBC’s prior, express, written permission; or
• assign, copy, transfer, or transmit the Application, the Licensor Software or any data obtained through the Application to any third party.

3. Ownership
   1. The Application is protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in this FBC License. FBC and FBC’s Licensors own all rights, title, and interest in and to their applicable contributions to the Application. This FBC License grants you no right, title, or interest in any intellectual property owned or licensed by FBC, including, without limitation, the Application and FBC trademarks, and creates no other relationship between you and FBC or between you and FBC’s Licensors.
   2. The Application and its components contain software licensed from FBC Licensors (“Licensor Software”) which enables the Application to perform certain functions. All rights in and to any third-party data, software, and servers are reserved and remain with the applicable third parties. You agree that such FBC Licensors and any other third parties may enforce their rights under this FBC License against you directly in their own name.

 

4. Support; Updates; Termination
   1. FBC, in its sole discretion, may elect to provide you with customer support and/or software updates, upgrades, enhancements or modifications for the Application (collectively, “Support”).
   2. FBC, in its sole discretion, may elect to use third-party entities to manage the service through which the Application is available, channel partners, associated service providers, airtime service providers and merchants of record (collectively, “Application Partners”).  Application Partners shall have no obligation to provide Support or respond to any product claims regarding the Application.
   3. Unless terminated by FBC in its sole discretion, this FBC License remains in full force and effect while you use the FBC Application. FBC may terminate your access to all (or any portion of) the Application at any time, for any or no reason, with or without prior notice or any explanation, and without liability. Furthermore, even after your access to the Application is terminated by you or FBC, this Agreement will remain in full force and effect with respect to your past and future use of the Application. If we terminate your access to the Application (or any portion of the Application) you: (1) must immediately cease any and all use of the Application and remove the Application from your device; (2) may not try to access, use or download the Application without FBC’s prior written approval. You agree that your account is non-transferable. Any rights to the Application terminate upon your death. This FBC License terminates automatically if you violate any of its terms and conditions.
   4. FBC may change, suspend, or discontinue any aspect of the Application including, without limitation, the availability of any Support or Application feature, database, or content at any time without prior notice or liability to you. FBC may also impose limits on certain Application features or restrict your access to parts or all of the Application or Support without notice or liability.
   5. FBC reserves the right in its sole discretion to charge fees for use of or access to any aspect of the Application or any feature(s) thereof. You will not be entitled to a refund of any unused portion of such fees or other payments if FBC suspends or terminates your account, and/or access to the Application (or any portion of the Application), due to your breach of this FBC License or violation of Applicable Law, as determined by FBC, in its sole discretion.

 

5. Disclaimers; Limitation of Liability

 

1. THE APPLICATION AND ANY APPLICATION FEATURE ACCESSED THROUGH THE APPLICATION ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND ANY USE THEREOF IS AT YOUR SOLE RISK AND FBC DOES NOT GUARANTEE OR PROMISE ANY SPECIFIC RESULTS FROM USE OF OR CONTINUOUS AVAILABILITY OF THE APPLICATION. FBC DOES NOT REPRESENT THAT THE APPLICATION OR ANY APPLICATION FEATURE ACCESSED VIA THE APPLICATION IS APPROPRIATE OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FBC EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FOR A COURSE OF PERFORMANCE OR COURSE OF DEALING.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FBC MAKES NO WARRANTY THAT YOUR USE OF THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS TO THE APPLICATION WILL BE CORRECTED, THAT THE APPLICATION OR THE SERVERS ON WHICH THEY ARE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY INFORMATION OBTAINED BY YOU ON, THROUGH OR IN CONNECTION WITH THE APPLICATION OR THIRD-PARTY SERVICES (INCLUDING, BUT NOT LIMITED TO, THROUGH LICENSOR SOFTWARE, APPLICATION PARTNERS, USER CONTENT OR THIRD-PARTY ADVERTISEMENTS) WILL BE ACCURATE, RELIABLE, TIMELY OR COMPLETE.  UNDER NO CIRCUMSTANCES WILL FBC OR OUR PARENTS, SUBSIDIARIES OR AFFILIATES (“FBC AFFILIATES”) BE RESPONSIBLE FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) RESULTING FROM USE OF THE APPLICATION, PROBLEMS OR TECHNICAL MALFUNCTION IN CONNECTION WITH USE OF THE APPLICATION, ATTENDANCE AT AN FBC EVENT, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH THE APPLICATION, ANY USER CONTENT, ANY THIRD-PARTY ADVERTISEMENT OR THIRD-PARTY SERVICE TRANSMITTED ON, THROUGH OR IN CONNECTION WITH THE APPLICATION, OR THE CONDUCT OF ANY USERS OF THE APPLICATION, WHETHER ONLINE OR OFFLINE.  YOUR USE OF USER CONTENT, THIRD-PARTY ADVERTISEMENTS, THIRD-PARTY SERVICES AND THE GOODS OR SERVICES PROVIDED BY ANY THIRD-PARTIES IS SOLELY YOUR RESPONSIBILITY AND AT YOUR OWN RISK.
2. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE APPLICATION, AND ANY INFORMATION TRANSMITTED OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES.  YOU ASSUME RESPONSIBILITY FOR THE ENTIRE COST OF ANY MAINTENANCE, REPAIR OR CORRECTION TO YOUR COMPUTER SYSTEM OR OTHER PROPERTY OR RECOVERY OR RECONSTRUCTION OF LOST DATA NECESSITATED BY YOUR USE OF THE APPLICATION. User Content, third-party advertisements, Licensor Software, Application Partners and their Third-Party Services do not necessarily reflect the opinions or policies of FBC or our FBC Affiliates.
3. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FBC, OUR FBC AFFILIATES, FBC LICENSORS, ADVERTISERS, SPONSORS OR APPLICATION PARTNERS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS (COLLECTIVELY, “COMPANY ENTITIES”), BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE APPLICATION, EVEN IF FBC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FBC’S AND THE COMPANY ENTITIES’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO FBC, FOR THE APPLICATION DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM.
4. YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF FBC’S OR COMPANY ENTITIES’ ACTS OR OMISSIONS OR YOUR USE OF THE APPLICATION ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE APPLICATION. THE LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF FBC HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.

 

6. Arbitration Agreement

 

1. FBC, including its Company Entities, 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.  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 and all claims between you and FBC in any way related to or concerning this Arbitration Agreement, any other aspect of this FBC License (including their applicability and their conformance to applicable law), any products or services provided by FBC, 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.  Each of you and FBC agrees to give up the right to sue in court.  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 Section 6.9 of this Arbitration Agreement below).   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).
2. This FBC License, including, without limitation, the Arbitration 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 FBC License.
3. 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 http://www.jamsadr.com/rules-streamlined-arbitration/.  The Consumer Arbitration Minimum Standards are available at http://www.jamsadr.com/consumer-arbitration/. The arbitrator is bound by the terms of this FBC License.
4. If either you or FBC wants to arbitrate a Dispute, 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 FBC must be sent by mail to Arbitration Notice of Dispute, 2121 Avenue of the Stars, 7th Floor, Los Angeles, California, 90067.  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.  If you and we do not resolve the Dispute within those first 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 Form with JAMS in accordance with its rules and procedures, you must send a copy of this completed Demand for Arbitration Form to FBC at the address listed above to which you sent your Notice of Dispute. 
5. You and the FBC acknowledge and agree to abide by the following rules for arbitration: (a) 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; (b) FBC will pay arbitration costs as required by the JAMS Consumer Arbitration Minimum Standards and consistent with paragraph 6.6 below; (c) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (d) each side pays his, her or its own attorneys' fees, except as otherwise provided in paragraph 6.8 below.
6. 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 FBC acknowledge and agree to abide by the following:

1. 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.
2. 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.
3. 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.
4. 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.
   1. 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.
   2. 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 to resolve the Dispute, 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 Dispute 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.
   3. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.  The arbitrator 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 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
   4. 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, or unless otherwise required by law or court order.
   5. With the exception of subpart (a) in paragraph (6.5) (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 (a) in paragraph (6.5) 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.

 

7.  Additional Terms

 

1. Indemnification. You agree to indemnify and hold FBC, the Company Entities, 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 of the Application, your breach of this Agreement, your violation of any rights of another or any User Content that you post or otherwise submit on, through or in connection with the Application.
2. Government End Users. If the Application and related documentation are supplied to or purchased by or on behalf of the United States Government, then the Application is deemed to be a "commercial item" as defined by 48 C.F.R. § 2.101, and consisting of "commercial computer software" and "commercial computer software documentation" for purposes of compliance with 48 C.F.R. § 12.212 or § 227.7202. Rights of the United States Government shall not exceed the minimum rights set forth in 48 C.F.R. § 52.227-19. All other terms and conditions of this FBC License apply.
3. Governing Law. This FBC License will be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of law provisions. Except with respect to Disputes to be resolved through an arbitration process in accordance with the Arbitration Agreement contained above, you and FBC agree to submit to the exclusive jurisdiction of the courts located in New York, New York to resolve any Dispute arising out of this FBC License, the Application or any other FBC Services. YOU HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD-PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS FBC LICENSE.
4. No General Waiver; Severability. The failure of FBC to exercise or enforce any right or provision of this FBC License shall not constitute a waiver of such right or provision. If any provision of this FBC License is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this FBC License remain in full force and effect.

 

1. Complete Agreement. This FBC License constitutes the entire understanding between the parties respecting use of the Application. In the event of any conflict between the terms and conditions of this FBC License and those in the TOU or Privacy policy, the terms and conditions of this FBC License will control, except to the extent that the TOU or Privacy Policy impose additional restrictions and liabilities on your actions.
2. Statute of Limitations. YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS FBC LICENSE OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ACCRUES.  AFTER SUCH PERIOD, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
3. Interpretation. The headings of the paragraphs in this FBC License are for convenience of reference only and do not affect the meaning or interpretation of this FBC License.
4. Software available in connection with the Application (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Application or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
5. Third Party Beneficiaries. Except with respect to Company Entities (as applicable) and Apple (if you are accessing the Application via iOS products), this FBC License is for the sole benefit of the parties hereto and not for the benefit of any third party.
6. You represent and warrant that you (i) are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
7. If you have downloaded or use the Application on an Apple branded product or device, the following additional terms apply: 

1. Your access and use of the Application is subject to the Apple Store Terms of Service in addition to this FBC License.
2. Intellectual Property. You acknowledge that Apple is not responsible for any third-party intellectual property infringement claims relating to the Application or your possession and use of the Application.
3. Warranty.  You acknowledge that in the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application to you; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be your sole responsibility.
4. Product Claims.  You acknowledge that Apple is not responsible for addressing any claims relating to the Application or your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.