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GEKTV Service Agreement
Congratulations on getting GEKTV! You will enjoy top quality digital entertainment programming directly on your television monitor in the comfort of your surroundings. This service agreement explains the terms and conditions that apply to your use of the GEKTV service and constitutes a legally binding agreement between you and GEK Entertainment, Inc. (“GEKTV”). By using the GEKTV service, you agree to all the terms and conditions in this agreement which together with your GEKTV Subscription Order Form shall constitute the agreement (“Agreement”) between you and GEKTV.
1. The GEKTV Service. The GEKTV service consists of limited program guide information and the following features depending on your chosen user/subscriber package: (a) Internet Protocol Television (“IPTV”) with various content for viewing, (b) Video On Demand (“VOD”) with various content choices for viewing, and (c) hard disk drive downloading and recording. Each of these features is part of the “GEKTV service.” The “GEKTV service” means these features and any additional features and functionality that GEKTV may at its discretion and from time to time offer. Features such as VOD, if available under your subscription plan, may require additional fees.
2. Terms of Service. The GEKTV IPTV RECEIVER (the “RECEIVER”) bearing the GEKTV logo is a network-enabled GEKTV IPTV RECEIVER which has an established network connection through the Ethernet; runs a GEKTV software version that supports networking; and is connected to a television monitor; and has an active subscription to the GEKTV service. The activation and continued use of the GEKTV service is subject to the terms and conditions of this Agreement. GEKTV may at its discretion change the terms of this Agreement at any time. Such changes shall be effective upon notification by GEKTV. We encourage you to check www.GEKTV.com or call GEKTV Customer Service at 1-888-435-8866 for a copy of the current GEKTV service agreement.
3. Eligible Subscribers. You must be a U.S. resident with a U.S. address location or a Canadian resident with a Canadian address location to receive the GEKTV service. Not all program networks on GEKTV are available in Canada. You must be at least 18 years of age and competent to assume the responsibilities of this Agreement. Minors may use the GEKTV service only if one of their parents or legal guardians assumes the responsibilities of this Agreement and thereby assumes full responsibility for the minor’s use of the GEKTV service.
4. Subscriber Fees. You agree to pay your subscription fees according to your agreed GEKTV Subscription Order Form as well as all applicable taxes, whether local, state, provincial or federal. Your fees will cover the GEKTV service received via a GEKTV IPTV RECEIVER authorized by GEKTV to enable the GEKTV service. You have a choice of subscription packages and payment options that may change over time. GEKTV reserves the right to discontinue any subscription package or payment option at any time without notice. You may switch package or payment options at the end of each period. If for any reason you need to reactivate your subscription, you may be charged a reactivation fee. If you are signing up for the GEKTV service under a promotional subscription fee, additional restrictions may apply. If you have multiple GEKTV service subscriptions under the same account information, additional terms and conditions may apply. Whatever your subscription payment option, your subscription fee does not include any services, features or functionality other than the GEKTV service and the subscription plan you choose.
5. Changes to Your GEKTV Service. GEKTV may at its discretion and from time to time change, add or remove features and functionality of the GEKTV service without notice. GEKTV reserves the right to discontinue one, some, or all of the features of the GEKTV service you receive at any time at its discretion. GEKTV may at its discretion discontinue the provision of software updates to certain GEKTV RECEIVERS. This means that while other GEKTV RECEIVERS may receive continued software updates and functionality; GEKTV is not required to provide such updates to your GEKTV RECEIVER. Additionally, the level of service GEKTV provides may not be the same on each GEKTV RECEIVER; a given GEKTV RECEIVER may support different features and functionality, and GEKTV is under no obligation to provide all features and functionality to your GEKTV RECEIVER.
6. Third-Party Content. The GEKTV service gives you the ability to access and view audio, video, and other media over which GEKTV exercises no editorial or programming control (“Third Party Content”). You understand that: (a) GEKTV does not guarantee the access to or the ability to record, display, or transfer any particular program; (b) programming is not under GEKTV’s control; (c) program providers may restrict or limit the ability to record, display, view or transfer particular programs by using a variety of copy protection mechanisms; (d) content providers may restrict or revoke access to their content at any time; (e) GEKTV is not responsible for and has no editorial control over any Third Party Content; and (f) GEKTV has no control over the distribution of such content. You agree that GEKTV will have no liability to you, or anyone else who uses your account and GEKTV, with regard to any Third Party Content.
7. Third Party Content Is Copyrighted. You also understand that the Third Party Content is the copyrighted material of the third party that supplies it, is protected by international, U.S. and/or Canada copyright law and other applicable laws, and may not be used in any manner which is not authorized by GEKTV or the copyright owner(s) of the content. Any and all Third Party Content accessed or transferred using the GEKTV service are for personal, non-commercial use and the GEKTV service application shall not be used for Third Party Content to be copied or displayed before a public audience without authorization from the appropriate rights holder. Unauthorized copying or distribution of copyrighted works may constitute an infringement of the copyright holders’ rights. GEKTV reserves the right to terminate the accounts of users of any GEKTV service or software who infringe the copyrights of others. In addition, steps intended to defeat or bypass security measures which are designed to prevent infringement of copyrighted works may be illegal under U.S. law or comparable foreign laws. GEKTV reserves the right to terminate the GEKTV service accounts of users who develop or use any method to defeat or bypass such security measures and to take any other necessary or appropriate action to prevent infringement of copyright holders’ rights.
8. Title to Software and Intellectual Property. You may need to use certain software programs in your GEKTV RECEIVER to use or have full access to certain features of the GEKTV service. You received certain software in your GEKTV RECEIVER at the time of purchase and other software programs may be delivered to your GEKTV RECEIVER by GEKTV from time to time, which you are obligated to accept. You may use such software solely in executable code form and solely in conjunction with your GEKTV RECEIVER. Your use of such software is subject to the terms of this Agreement. GEKTV retains title to and ownership of all the software for the GEKTV SET and certain intellectual property rights in the GEKTV SET. GEKTV also retains ownership of all GEKTV copyrights and trademarks. In the case of third party software delivered by GEKTV to the GEKTV RECEIVER, the applicable third party retains title to and ownership of its software, copyrights and trademarks. Any attempt to disassemble, decompile, create derivative works of, reverse engineer, modify, sublicense, distribute or use for other purposes either the GEKTV RECEIVER or the software of the GEKTV RECEIVER is strictly prohibited, except as expressly set forth in Section 17 (“Open Source Software”).
9. Advertising. The GEKTV service may have advertiser support. The hard disk drive of your GEKTV RECEIVER contains reserved space in addition to the recording capacity. GEKTV reserves the right to send content (including advertising and promotional material) to such reserved portions of your GEKTV RECEIVER’S hard disk drive as part of the GEKTV service.
10. Using the GEKTV Service. You may access and use the GEKTV service only with a GEKTV IPTV RECEIVER that is authorized to receive the GEKTV service at the user/subscription package level you agree to and pay for. You agree not to tamper with or otherwise modify your GEKTV IPTV RECEIVER. The GEKTV service is provided for your personal residential use or if you are under a commercial subscription plan by the use of your business for public viewing at no charge and the GEKTV service may not be resold, in whole or in part. You may not transfer the GEKTV service to another IPTV receiver or any unauthorized devices. By using the GEKTV service, you agree to receive programming including but not limited to software updates, upgrades, advertising, promotions, notices and/or push VOD selections that GEKTV sends to your GEKTV IPTV RECEIVER. If your GEKTV IPTV RECEIVER accesses the GEKTV service, you acknowledge and agree that you are a subscriber to the GEKTV service and are bound by the terms of this Agreement and any subscription plan you agree to.
11. Network Connection. Your connection to the network must meet certain minimum technical requirements to receive the GEKTV service for viewing. You must have adequate broadband connection to the Internet of at least a speed level of 1.5 Mbps with 3.0 Mbps recommended for maximum enjoyment. You agree that GEKTV is not responsible for your inability to access the GEKTV service due to your network connection’s failure to meet the minimum technical requirements.
12. Termination of Service. Notwithstanding anything to the contrary in this Agreement, GEKTV retains the absolute right to immediately suspend or terminate your use of the GEKTV service, and terminate this Agreement, if you breach any provision in this Agreement, if you misuse the GEKTV service, and/or if you alter your GEKTV IPTV RECEIVER or use the GEKTV service in such a manner as to infringe upon the intellectual property rights of GEKTV or any third party. In addition, GEKTV reserves the right to terminate your use of the GEKTV service and this Agreement for any other reason or no reason if GEKTV gives you at least 30 days advance notice of such termination.
13. Indemnity. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS GEKTV FROM AND AGAINST ANY AND ALL CLAIMS, PROCEEDINGS, INJURIES, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS FEES), INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING NEGLIGENCE, COPYRIGHT INFRINGEMENT AND/OR TRADEMARK INFRINGEMENT AGAINST THE GEKTV SERVICE, RELATING TO OR ARISING OUT OF YOUR BREACH OF ANY TERM OF THIS AGREEMENT, YOUR MISUSE OF THE GEKTV SERVICE, OR YOUR UNAUTHORIZED MODIFICATION OR ALTERATION OF THE GEKTV RECEIVER OR SOFTWARE FOR THE GEKTV RECEIVER.
14. Warranty Disclaimer. YOU UNDERSTAND AND AGREE THAT THE GEKTV SERVICE IS PROVIDED ON AN AS IS AND AS AVAILABLE BASIS. GEKTV MAKES NO WARRANTY THAT THE GEKTV SERVICE WILL MEET YOUR REQUIREMENTS, ALLOW YOU TO RECORD, VIEW OR TRANSFER ANY PARTICULAR PROGRAMMING, OR THAT USE OF THE GEKTV SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DOES GEKTV MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE GEKTV SERVICE (INCLUDING THIRD PARTY CONTENT), THAT ANY DEFECTS IN THE GEKTV SERVICE WILL BE CORRECTED OR THAT THE GEKTV RECEIVER OR GETV SERVICE WILL BE COMPATIBLE WITH ANY OTHER SPECIFIC HARDWARE OR SERVICE. FURTHER, GEKTV DOES NOT WARRANT THAT THE GEKTV SERVICE OR THE GEKTV SERVERS THAT PROVIDE YOU WITH DATA AND CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT USE OF THE GEKTV SERVICE OR SERVICES WOULD NOT AFFECT YOUR BROADBAND CONNECTION OR ABILITY TO ACCESS OTHER PROGRAMMING OR SERVICES ON THE INTERNET. YOU (AND NOT GEKTV) ASSUME THE ENTIRE COST OF ALL NECESSARY MAINTENANCE, REPAIR OR CORRECTION FOR YOUR HARDWARE AND SOFTWARE COMPONENTS. GEKTV ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT YOUR GEKTV RECEIVER, GEKTV SOFTWARE, OR OTHER HARDWARE. GEKTV AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE GEKTV PLUS SERVICE OR GEKTV SOFTWARE, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS. Because some jurisdictions do not permit the exclusion of implied warranties, the last sentence of this section may not apply to you.
15. Limitations of GEKTV’s Liability. IN NO EVENT WILL GEKTV OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, USE OF USER INFORMATION, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES OF ANY NATURE ARISING FROM OR RELATING TO YOUR USE OF THE GEKTV SERVICE OR USE OF THE GEKTV SERVICE THROUGH YOUR ACCOUNT BY ANYONE ELSE, EVEN IF GEKTV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE WILL GEKTV’S TOTAL CUMULATIVE LIABILITY TO YOU AND ANYONE WHO USES THE GEKTV SERVICE THROUGH YOUR ACCOUNT, FOR ANY AND ALL CLAIMS UNDER ANY THEORY OF LAW, EXCEED THE AGGREGATE AMOUNT YOU PAID TO GEKTV IN THE PRECEDING TWELVE MONTHS. YOU UNDERSTAND THAT THESE LIMITATIONS OF GEKTV’S AND GEKTV’S SUPPLIERS LIABILITY ARE A FUNDAMENTAL PART OF THIS AGREEMENT. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Additionally, this provision is not intended to limit GEKTV’s liability in the event of GEKTV’s willful or intentional misconduct. Moreover, if GEKTV mistakenly or wrongfully overcharges your account, this section does not limit GEKTV’s obligation to refund such mistakenly or wrongfully overcharged amounts.
16. GEKTV’s Privacy Policy. You must provide us with accurate and complete information when you activate your GEKTV service. GEKTV reserves the right to terminate your account if you give GEKTV inaccurate or incomplete information. GEKTV respects the privacy of your User Information (as defined in GEKTV’s Privacy Policy) and will not disclose any of your User Information except as permitted in GEKTV’s Privacy Policy. A copy of GEKTV’s Privacy Policy is included at our website at www.GEKTV.com. Please read it carefully before using the GEKTV service. By using the GEKTV service, you agree to the terms and conditions of our Privacy Policy and affirm that you understand the options GEKTV provides to you with regard to your information. GEKTV will notify you of any substantial and material changes to the Privacy Policy and the latest Privacy Policy can always be accessed through our web site at www.GEKTV.com.
17. Miscellaneous. All dollar amounts stated in this Agreement shall be in United States legal tender. This Agreement will be governed by the laws of the State of California as such laws apply to agreements between California residents performed entirely within California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You and GEKTV agree to submit to the exclusive personal jurisdiction of the courts located within the county of San Francisco, California. If any provision of this Agreement is invalid or unenforceable under applicable law, such provision will be deemed modified to the extent necessary to render such provision valid and enforceable and the other provisions of this Agreement will remain in full force and effect. The official text of this Agreement or notice submitted hereunder shall be in English. In the event of any dispute concerning the construction or meaning of this Agreement, reference shall be made only to this Agreement as written in English and not to any translation into another language. This document represents the entire agreement governing your use of the GEKTV service and supersedes any prior or contemporaneous written or oral statements by GEKTV or its representatives or resellers. GEKTV’s failure to enforce any of the terms of this Agreement shall not constitute a waiver or relinquishment of GEKTV’s right to do so at any time.
BY USING THE GEKTV SERVICE, I REPRESENT THAT I HAVE READ AND UNDERSTOOD THIS ENTIRE AGREEMENT AND I AGREE TO ALL THE TERMS OF THIS AGREEMENT AS STATED ABOVE.
GEKTV Entertainment
170 South Spruce Avenue, Suite 200, South San Francisco, CA 94080
Tel: (650) 871-8138 Fax: (650) 871-1790
www.GekTV.com
Other Terms & Conditions
PROGRAMMING AGREEMENT: Within 21 days of the receipt OR shipping date of your GEKTV IPTV RECEIVER, whichever is earlier, you agree to activate your subscription plan(s). GEKTV will begin charging your credit card after 21 days of the receipt OR shipping of your GEKTV IPTV RECEIVER, whichever is earlier. An initial fee advance equal to the amount of your monthly subscription fee plan will be charged to the credit card account you provided to us. This fee advance will be applied towards your bill for the last month of your subscription fee. In addition, you will be charged a deposit for the GEKTV IPTV Receiver you receive as follows: Wired Receiver - $50 and Wi-Fi (Wireless) Receiver - $150 (the “Receiver Deposit”). The Receiver Deposit will be refunded to you upon confirmation of receipt by GEKTV of the return of the GEKTV IPTV Receiver and cancellation of the service by you. However, if you fail to return the GEKTV IPTV Receiver after 30 days of termination, or if the GekTV IPTV Receiver is not returned in good working condition, you will be charged $269.99 for the GekTV Receiver (the Receiver Deposit will not be returned and you will be charged for the remaining balance of the cost of the GEKTV IPTV Receiver as follows: $219.99 for a Wired GekTV IPTV Receiver and $119.99 for a Wi-Fi GekTV IPTV Receiver).
The subscription plan must be maintained for a period of twelve consecutive months without interruption for each GEKTV IPTV RECEIVER shipped or received by you. An additional monthly service fee of $5.99 and applicable taxes will be charged as well as any other applicable fees including but not limited to Video-On-Demand (“VOD”) charges made by you from time to time.
CONSEQUENCES OF YOUR FAILURE TO MAINTAIN PROGRAMMING AGREEMENT: If you agree to a twelve month subscription and you fail to maintain and pay for twelve consecutive months of the required subscription plan, GEKTV shall charge you an early termination fee of $180 regardless of the number of month(s) remaining on your plan. Regardless of the amount of time remaining on your subscription plan, you must give GEKTV 30 days notice prior to termination and deactivation of your account. Your termination notice must be acknowledged and accepted by GEKTV and you will be provided with a return authorization number (“Return Authorization”) to accompany the return of the GEKTV IPTV RECEIVER along with each set of two connecting cables and remote control (the “Receiver Accessories”) at your own expense. The GEKTV IPTV RECEIVER and Receiver Accessories must be delivered to GEKTV in good working condition less normal wear and tear within 30 days of GEKTV’s acceptance of your termination whereby your GEKTV Service will be deactivated (the “Termination Date”). If you fail to return the devices or if the devices are returned in poor condition, you will be charged $269.99, less the Receiver Deposit (as described above). It is recommended that delivery shall be made with a tracking service which can be verified by GEKTV such as United Parcel Service or Federal Express. Any other delivery service used by you without verified tracking shall be at your own risk. Upgrading or renewal of subscription plans shall not constitute early termination for purposes of this section.
GEKTV TERMS OF SERVICE: You hereby agree and acknowledge that this GEKTV Annual Programming Agreement sets forth additional terms and conditions regarding your receipt of GEKTV IPTV RECEIVER and shall be applied to in conjunction with the GEKTV Service Agreement, a copy of which is printed on the backside of this document as well as provided at GEKTV.com.
THIS IS A LEGALLY BINDING CONTRACT
THIS AGREEMENT IS FULLY ENFORCEABLE UNDER THESE TERMS EVEN THOUGH IT MAY BE SEPARATE AND DIFFERENT FROM ANY OTHER AGREEMENT YOU MAY HAVE PREVIOUSLY MADE WITH GEKTV.
BY USING THE GEKTV SERVICE, I REPRESENT THAT I HAVE READ AND UNDERSTOOD THIS ENTIRE AGREEMENT AND I AGREE TO ALL THE TERMS OF THIS AGREEMENT AS STATED ABOVE.
