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PBS AMERICAN PORTRAIT TERMS OF USE

Effective Date: December 8, 2019


1.   Introduction and Overview.

These Terms of Use (“Terms”) set forth a legally binding agreement between you and the Public Broadcasting Service (“PBS”, “we”, “our”, or “us”), and govern your use of the PBS American Portrait project website and online services, and all features, content, and other services that we own, control and make available through the PBS American Portrait project website and online services (collectively, “AP Project”).

In some instances, both these Terms and separate terms elsewhere on the AP Project will apply to your use of the AP Project (“Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.

By using the AP Project, you agree to these Terms, and consent to our collection, use and disclosure practices, and other activities as described in our PBS American Portrait Privacy Policy. If you do not agree and consent, discontinue use of the AP Project.


PLEASE NOTE THAT THESE TERMS CONTAIN PROVISIONS THAT GOVERN THE RESOLUTION OF DISPUTES BETWEEN US AND YOU AND LIMIT OUR LIABILITY TO YOU (SEE “AGREEMENT TO ARBITRATE DISPUTES” BELOW). THESE PROVISIONS SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.


2.    AP Project Use.


        A. Content.

The AP Project contains: (i) UGC as defined below; (ii) materials and other items relating to PBS and its products and services, and similar items from our licensors and other third parties, including all layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the AP Project, and the compilation, assembly, and arrangement of the materials of the AP Project and any and all copyrightable material; (iii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of PBS; and (iv) other forms of content, technology, and intellectual property (all of the foregoing, collectively "Content"). All right, title, and interest in and to the AP Project and the Content is the property of PBS or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.


        B. Limited License.

Subject to your strict compliance with these Terms and any applicable Additional Terms, PBS grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download, display, view, use, and play the Content on a personal computer, browser, laptop, tablet, mobile phone, or other internet-enabled device (each, a “Device”), in each case for your personal, non-commercial use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be suspended or terminated for any reason, in PBS’s sole discretion, and without advance notice or liability. Your unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. 

        C. Accounts.

Certain features of the AP Project may require you to register an account. When registering an account, you agree to: (i) provide true, accurate, current, and complete information; (ii) maintain and update this information to keep it true, accurate, current, and complete; (iii) protect and prevent unauthorized access to your account; (iv) not transfer or share your account with any third party; and (v) immediately notify us of any suspected or actual unauthorized use of your account or breach of security. Please note that you are solely responsible for all activities that occur under your account, whether or not you authorized the activity, and we are not liable for any loss or damage to you or any third party arising from your failure to comply with any of the foregoing obligations.

        D. Restrictions.

You may not use the AP Project unless you are at least thirteen (13) years old.

You may not, unless expressly authorized in writing by PBS: (i) use the AP Project or Content for any political or commercial purpose; (ii) engage in any activity in connection with the AP Project or Content that is unlawful, harmful, offensive, sexually explicit, obscene, violent, threatening, harassing, abusive, falsely representative of your persona, invasive of someone else’s privacy, or otherwise objectionable to PBS; (iii) copy, download, or harvest any information from the AP Project or Content; (iv) reproduce, distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of the Content or the Service except as explicitly authorized under these Terms; (v) reverse engineer or modify the AP Project or Content; (vi) interfere with the proper operation of or any security measure used by the AP Project or Content; (vii) take any action that imposes an unreasonable or disproportionately large load on AP Project’s network or infrastructure; (viii) distribute any unauthorized materials or advertise or promote goods or services through the AP Project or Content; (ix) infringe any intellectual property or other right of any third party; (x) use the AP Project or Content in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; (xi) engage in conduct that restricts or inhibits any person from using or enjoying the AP Project or Content or that, in PBS’s sole judgment, exposes PBS or any of PBS’s users, affiliates, or any other third party to any liability, damages, or detriment of any type, including causing damage to PBS’s reputation; (xii) otherwise violate these Terms or any applicable Additional Terms; or (xiii) assist any person in doing any of the above.

You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the AP Project and Content.

Any material or content other than your UGC are the property of PBS and/or the relevant party who made such material or content available, and is or may be subject to copyright, trademark rights or other intellectual property or proprietary rights. Such material or content may not be downloaded, reproduced, distributed, transmitted, re-uploaded, republished, displayed, sold, licensed, made available or otherwise communicated to the public or exploited for any purposes except via the features of the AP Project from time to time and within the scope of license set by the owner of such Content. If you repost, share, or link to another user’s UGC, you acquire no ownership rights whatsoever in that Content or any trademarks, logos, trade names, trade dress, service marks, and/or trade identities of various parties contained within the UGC. Subject to the rights expressly granted in this Section 2, all rights in Content are reserved to the relevant owner.

        E. Availability, Suspension, and Termination.

PBS may suspend or terminate the availability of the AP Project and Content, in whole or in part, to any individual user or all users, for any reason, in PBS’s sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the AP Project, or upon notice from PBS, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the AP Project and Content.

       i. Repeat Infringers

We reserve the right to suspend or terminate your access to the AP Project if we determine, in our sole discretion, that you have repeatedly breached these Terms. If we receive a valid notification from a third party in accordance with our DMCA reporting procedure or applicable law that any of your UGC infringes the copyright or other rights of a third party, we will send you a written warning to this effect. We reserve the right to suspend or terminate your access to the AP Project if you receive more than two of these warnings.

We will also suspend or terminate your account without warning if ordered to do so by a court of competent jurisdiction, and/or in other appropriate circumstances, as determined by PBS in our discretion.

       ii. Other Grounds for Termination

In addition to the suspension or termination of repeat infringers, we may suspend your access to the AP Project and/or terminate your account at any time if: (1) you are in breach of any of the material provision of these Terms; (2) we elect, at our discretion, to cease providing access to the AP Project in the jurisdiction where you reside or from where you are attempting to access the AP Project; or (3) in other reasonable circumstances as determined by PBS in our discretion.

Once your account has been terminated, any and all UGC residing in your account, or pertaining to activity from your account (for example, data relating to the distribution or consumption of your UGC), may be irretrievably deleted, except to the extent that we are obliged or permitted to retain such content, data or information for a certain period of time in accordance with any Additional Terms, applicable laws and regulations and/or to protect our legitimate business interests. You are advised to save or back up any material that you have uploaded to your account before terminating your account, as PBS assumes no liability for any material that is irretrievably deleted following any termination of your account.

        F. Reservation of Rights.

All rights not expressly granted to you are reserved by PBS and its licensors and other third parties. Except for the rights expressly granted to you hereunder, no right or license may be construed as being granted hereunder, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Content or AP Project for any purpose is prohibited.

3.    User Generated Content and User Feedback.

         A. User Generated Content

The AP Project permits you to create and/or make available via the AP Project material which you own, have created or otherwise have appropriate rights in (which we refer to as “User Generated Content” or “UGC”), subject to the Submission Guidelines. In the event of any conflict between these Terms of Use and the Submission Guidelines, the Submission Guidelines shall control. UGC includes, for example, music, audio recordings, images, pictures, writings, video, and any other content or materials contributed by users to, on, or through the AP Project. In order to distribute UGC through the AP Project, you must first register an account with PBS through the AP Project. You are solely responsible for your UGC and the consequences of posting or publishing UGC through the AP Project. By posting or publishing UGC on or through the AP Project, you agree not to provide UGC that:

         
  • Degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification;
  • Is unlawful, defamatory, libelous, inaccurate, deceiving, or that could reasonably be considered objectionable, profane, obscene, sexually explicit, indecent, pornographic, harassing, abusive, threatening (to others or self), embarrassing, hateful, intended to intimidate or incite violence, or otherwise inappropriate;
  • Promotes illegal activity, or advocates, promotes, or assists in any unlawful act;
  • Impersonates any person, or misrepresents your identity or affiliation with any person or organization.

  • In addition, you affirm, represent, and warrant that:


  • You are the creator of or otherwise own or have the necessary licenses, rights, consents, and permissions to provide the UGC that you make available to or through the AP Project to PBS and to authorize PBS to make such UGC publicly available through the AP Project;

  • No element of UGC, nor the exploitation of such UGC through the AP Project, infringes the intellectual property rights or privacy or any other rights of anyone else or is illegal or breaches the Terms;
  • You waive and agree not to assert any so-called “moral rights” or similar rights you may have in UGC;
  • To the extent you are the songwriter of any or all of the musical works embodied in your UGC, whether in whole or in part (e.g. as a co-writer), you have the full right, power, and authority to grant the rights set forth in these Terms notwithstanding the provisions of any agreement you may have entered into with any performing rights organization, whether based in the United States (e.g. ASCAP, BMI etc.) or elsewhere, or any music publisher, and that you will take all necessary steps to inform such organization or music publisher of your grant of a royalty-free license to PBS for the public performance and communications to the public of the musical works embodied in your UGC, and that no fees or payments of any kind whatsoever shall be due to any such organization or music publisher for the public performance or communication to the public of your UGC;
  • No fees of any kind shall be due to any third party including, without limitation, any union, guild, non-featured vocal artists or musician, engineer or production staff, for the exploitation of your UGC;
  • You are solely responsible for your UGC, and acknowledge that PBS may not necessarily pre-screen all UGC before it is available online, and does not endorse or approve of any UGC that you or other users may contribute to the AP Project;
  • You shall not in any way claim or suggest that any UGC is endorsed or supported by PBS; and
  • Your use of the AP Project or Content, including your UGC, complies with all applicable laws and legislation and the Submission Guidelines available at https://www.pbs.org/american-portrait/submission-guidelines.

Your use of the AP Project, including the creation, download, of use of UGC, is at your own risk. We are under no obligation to monitor, edit, or control UGC that you or other users post or publish, and will not be in any way responsible or liable for UGC.  You understand that when using the AP Project you will be exposed to UGC from a variety of sources and acknowledge that UGC may be inaccurate, offensive, indecent or objectionable. You agree to waive, and do hereby waive, any legal or equitable rights or remedies you have or may have against PBS with respect to UGC. We expressly disclaim any and all liability in connection with UGC.

Nevertheless, if PBS believes that your UGC breaches any of the terms and conditions set forth herein, then we may remove, block, edit, move or disable such UGC, in our sole discretion, and to take any other steps which we consider appropriate including termination of your account. If notified by a user or content owner that UGC allegedly does not conform to the Terms herein, we may investigate the allegation and determine, in our sole discretion, whether to remove the UGC, which we reserve the right to do at any time and without notice. For clarity, PBS does not permit copyright-infringement activities on the AP Project.

        B. Your License Grant to Your User Generated Content.

For clarity, you continue to own any UGC that you make available through the AP Project, but by making your UGC available through the AP Project, you grant us a royalty-free, irrevocable, perpetual, non-exclusive, worldwide, fully sublicensable license to publish, reproduce, distribute, publicy display, publicly perform, edit, adapt, modify, and otherwise use your UGC (or any portion thereof) in any manner, and in any form, media, or technology now known or later developed.

By making UGC available through the AP Project, you also grant a limited, worldwide, non-exclusive, royalty-free, fully-paid, license to other users of the AP Project, and to operators and users of any other websites, apps and/or platforms to which UGC has been shared or embedded using the AP Project (“Linked Services”), to use, copy, transmit or otherwise distribute, publicly display, publicly perform, adapt, prepare derivative works of, compile, make available and otherwise communicate to the public, your UGC utilizing the features of the AP Project from time to time, and within the parameters set by you using the AP Project. You understand that you will not receive any fees sums, consideration, or remuneration for any rights granted in this Section.

The licenses granted in this section are granted separately with respect to each item of UGC that you make available through the AP Project. Licenses with respect to video or audio UGC, and any images or text within your account, will survive termination of your Account or any actions you take to remove such UGC from your account.

Further, you hereby acknowledge and agree that once your UGC is distributed to a Linked Service, we are not obligated to ensure the deletion of your UGC from any servers or systems operated by the operators of any Linked Service, or to require that any user of the AP Project or any Linked Service deletes any item of your UGC.

        C. Feedback

You agree that if you submit to PBS any ideas, comments, suggestions or feedback regarding the AP Project, UGC(for example, adding comments to your or another's UGC), or your use of the AP Project (“Feedback”) you grant us a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable and royalty-free right and license to use and exploit in any manner whatsoever, or grant third parties the right to do any of the foregoing, all or any portion of your Feedback for any purpose. You further irrevocably grant us the right, but not the obligation, to use your name in connection with your Feedback. You also agree to waive any right of approval for our use of the rights granted herein and agree to waive any moral rights that you may have in any Feedback, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocable agree not to exercise such rights in a manner that interferes with any exercise of the granted rights.

You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section. Our receipt of your Feedback is not an admission of its novelty, priority, or originality, and it does not impair our right to existing or future intellectual property rights relating to your Feedback. You waive any and all rights and claims in connection with our consideration, use, or development of any product, content, or other materials similar or identical to your Feedback now or in the future.

You represent and warrant that you own or have the necessary rights, licenses, consents, and permissions to grant us the rights granted in this Section. You alone, though, retain whatever legally cognizable right, title, and interest that you have in your Feedback and remain responsible for it.

4.    Copyright Infringement.

         A. DMCA Notification

PBS responds to copyright notifications submitted under the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). Our designated agent is:

[Scott Griffin, Assistant General Counsel
Public Broadcasting Service (PBS)
2100 Crystal Drive
Arlington, Virginia 22202-3785

Phone:             (703) 739-5000
Facsimile:        (703) 837-3300

(IMPORTANT: This contact information is intended specifically for the receipt of "Notifications of Claimed Infringement" under the Digital Millennium Copyright Act of 1998, 17 U.S.C. 512. It is not intended for the general inquiries and permission requests concerning the use of PBS programs or materials.)

Policy on Repeat Infringers, pursuant to 17 U.S.C. 512(i): 
PBS has adopted and implemented a policy respecting the copyright law that provides for the termination in appropriate circumstances of users of the PBS online system or network who are repeat infringers. PBS may terminate access for content providers or forum participants who are found repeatedly to provide or post protected material without necessary rights and permissions.

Elements of Notification

If you are a copyright owner or agent thereof and believe that any content infringes upon your copyright, then you may submit a notification pursuant to the Digital Millennium Copyright Act by providing our agent with the following information in writing:

    (i)  A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    (ii)  Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

    (iii)  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 the service provider to locate the material.

    (iv)  Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

    (v)  A statement that the complaining party has 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.

    (vi)  A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Elements of Counter-Notification

If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content, then you may send a counter-notice containing the following information to our agent:

    (i)  A physical or electronic signature.

    (ii)  Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

    (iii)  A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

    (iv)  Your name, address, telephone number, and e-mail address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which the service provider may be found, and that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received, PBS may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member, or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at PBS’s sole discretion.


Contact Copyright Agent

You can obtain further information from the Copyright Office’s online directory at www.dmca.copyright.gov/osp.


5.    Customer Support.

If you have any questions or comments, please send an e-mail to us at americanportrait_support@pbs.org. You acknowledge that the provision of support is at PBS’s sole discretion and that we have no obligation to provide you with customer support of any kind. All legal notices to us must be mailed to: Public Broadcasting Service (PBS), 2100 Crystal Drive, Arlington, Virginia 22202-3785 Attn: Office of Chief Legal Officer. When you communicate with us electronically, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.


6.    Third Party Services.

Our AP Project contains content from and hyperlinks to websites, locations, platforms, and services operated and owned by third parties (“Third Party Services”), e.g., social media sites. We may also integrate third party technologies into our AP Project and host our content on Third Party Services. These Third Party Services are not owned, controlled, or operated by us, and you acknowledge and agree that we are not responsible or liable for the information, content, products, technologies, or services on or available from such Third Party Services, or for the results to be obtained from using them. If you choose to access, transact with, or otherwise interact with any such Third Party Services, you do so at your own risk. For more information on Third Party Services, see our PBS American Portrait Privacy Policy.


7.    AP Project Mobile Use.


The AP Project may offer features that are available to you via your wireless Device including the ability to access the AP Project’s features and upload content to the AP Project. By using the AP Project, you agree that PBS may collect information as described in our PBS American Portrait Privacy Policy, which includes information related to your participation in the AP Project, and that PBS may change, alter, or modify the settings or configurations on your Device in order to allow for or optimize your use of the AP Project. Data rates and other carrier fees may apply.


8.    Agreement to Arbitrate Disputes and Choice of Law.

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS.  IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.


        A. We Both Agree to Arbitrate.

You and PBS agree to resolve any claims relating to these Terms through final and binding arbitration, except to the extent you have in any manner violated or threatened to violate PBS’s intellectual property rights (for example, trademark, trade secret, copyright, or patent rights). Under such circumstances PBS may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the AP Project, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described herein.


        B. What is Arbitration.

Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.


        C. Arbitration Procedures.

The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS.  Any dispute, controversy, or claim arising out of or relating to these Terms shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures in front of one arbitrator.  If there is a conflict between JAMS Rules and the rules set forth in these Terms, the rules set forth in this Terms will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267.  To initiate arbitration, you or PBS must do the following things:

   (1)    Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a demand for Arbitration at www.jamsadr.com.

   (2)    Send three copies of the demand for Arbitration, plus the appropriate filing fee to: JAMS to your local JAMS office or to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111.

   (3)    Send one copy of the demand for Arbitration to the other party.

Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). Arbitration under this agreement may be held by telephone or in person, or via document submission to the fullest extent allowable by the arbitrator. To the extent necessary, the locale of the hearing will be the county of your home address, such other locale as mutually agreed by the parties, or as determined by the arbitrator. The arbitrator may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.


        D. Authority of Arbitrator.

The arbitrator will decide the rights and liabilities, if any, of you and PBS, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and PBS.


        E. Waiver of Class Actions.

You waive any right to pursue an action on a class-wide basis against us and may only resolve disputes with us on an individual basis, and may not bring a claim against us as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.


        F. Waiver of Jury Trial.

THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and PBS in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND PBS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.


        G. Choice of Law/Forum Selection.

In any circumstances where the Agreement to Arbitrate Disputes permits the parties to litigate in court, these Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, excluding its conflict of law rules. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in the Commonwealth of Virginia.


        H. Exceptions To Arbitration.

This Agreement to Arbitrate shall not require arbitration of the following types of disputes (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (2) a representative action brought on behalf of others under private attorneys general acts, to the extent the representative Waiver of such action is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA.


9.    Disclaimer of Representations and Warranties.

THE AP PROJECT IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS. NEITHER PBS NOR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, MEMBER STATIONS EMPLOYEES OR AGENTS (COLLECTIVELY, THE "PBS PARTIES") MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER AS TO THE CONTENT OR OTHER SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND FREEDOM FROM COMPUTER VIRUS. BY ACCESSING OR USING THE AP PROJECT YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE AP PROJECT.

NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM PBS INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.


10.    Limitations of Our Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE PBS PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE AP PROJECT, (B) THESE TERMS OR (C) YOUR MISUSE OF THE AP PROJECT OR ANY CONTENT AVAILABLE ON OR THROUGH THE AP PROJECT. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY.

NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS HEREIN DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM PBS INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.


11.    Idemnification.

You agree to defend, indemnify and hold harmless the PBS Parties from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) your UGC or Feedback; (iii) your misuse of the AP Project; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (vi) your use of a Third Party Service; or (vii) any misrepresentation made by you. PBS reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with PBS’s defense of any claim. You will not in any event settle any claim without the prior written consent of PBS.

This provision does not require you to indemnify us for any unconscionable commercial practice by us or for our fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the AP Project.


12.    Waiver of Injunctive or other Equitable Relief.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, UGC, FEEDBACK, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY PBS OR A LICENSOR OF PBS.


13.    Updates to Terms.

We reserve the right, at any time in our sole discretion, to modify or replace any part of these Terms and any applicable Additional Terms, without prior notice. You agree that we may notify you of any updated Terms and any applicable Additional Terms by posting them on the AP Project so that they are accessible via a link from the home page, and/or to send you an e-mail to the last e-mail address you provided to us. All such changes are effective immediately when we post them, or such later date as may be specified in the notice of updated Terms and any applicable Additional Terms. If you object to any such changes, your sole recourse is to cease using the AP Project.


14.    General Provisions


         A. Consent or Approval

No PBS consent or approval may be deemed to have been granted by PBS without being in writing and signed by an officer of PBS.


         B. Survival.

The provisions of these Terms and any applicable Additional Terms, which by their nature should survive termination of your use of the AP Project, including sections on AP Project Use (except for the limited license), User Generated Content and Feedback, Copyright Infringement, Subscriptions and Products, Customer Support, Third Party Services, AP Project Features, Agreement to Arbitrate Disputes and Choice of Law, Disclaimer of Representations and Warranties, Limitations of Our Liability, Indemnification, Waiver of Injunctive or Other Equitable Relief, Updates to Terms, and General Provisions, will survive.


         C. Severability; Interpretation; Assignment.

If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. PBS may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of PBS.


         D. Complete Agreement; No Waiver

These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the AP Project and supersede any prior agreements, representations, warranties, assurances or discussion related to the AP Project. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or PBS in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.


         E. International Issues

PBS controls and operates the AP Project from the U.S., and PBS makes no representation that the AP Project is appropriate or available for use beyond the U.S. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the AP Project.  Software related to or made available by the AP Project may be subject to export controls of the U.S., and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.


         F. Investigations; Cooperation with Law Enforcement

PBS reserves the right to investigate and prosecute any suspected breaches of these Terms or the AP Project. PBS may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.


         G. California Consumer Rights and Notices.

Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.