The following terms (“API Terms”) govern your access to and use of the APIs, XML data feed and the accompanying documentation, code, and related materials on Flixster’s developer web site (the “Developer Site”)(collectively, the “Flixster API”) for the access and use of Flixster’s movie ratings, reviews and movie related content and information (“Flixster Content”), which may be used by you in connection with the applications and services you provide (your “Service”).  Flixster is willing to grant such a license to you, subject to and in accordance with these API Terms.  By accessing and using the Flixster API, you are agreeing to abide and be bound by these API Terms.  . 

If you are agreeing to these API Terms on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to these API Terms.  If you do not have the requisite authority, you may not accept these API Terms or use the Flixster API on behalf of your employer or other entity.  If you have (or your employer has) entered into a separate written agreement with Flixster governing the access and use of the Flixster API, then the terms of that agreement will prevail and govern over these API Terms (and any conflicting terms of these API Terms will not apply).

1.     Access to Flixster API.  Subject to your compliance with these API Terms, Flixster grants you a nonexclusive, revocable license to access and use the Flixster API, solely for purposes of developing, implementing, and integrating interfaces to the Flixster API, which will permit you to search, retrieve, and display Flixster Content through your Service.

(a)    Support.  Flixster will make support services for the Flixster API available through the Developer Site.  You are responsible for providing all support and/or technical assistance to your end users regarding the use of your Service (including any issues related to the Flixster Content and the Flixster API).  Flixster will not provide support and/or technical assistance directly to your end users.

(b)    Updates.  You acknowledge that Flixster may update or revise the Flixster API from time to time and that such updates and revisions may adversely affect the manner in which your Service accesses or communicates with the Flixster API.  Accordingly, you agree to implement and use the most current version of the Flixster API and to make any changes to your Service that are required as a result of Flixster’s updates and revisions to the Flixster API, at your sole cost and expense.  Flixster will attempt to provide thirty (30) days’ advance notice of any revisions to the Flixster API that are not backward compatible or remove significant functionality by posting such notice on the Developer Site, unless circumstances require Flixster to make an immediate change, in which case Flixster will attempt to provide you with as much advance notice as possible.

2.     Flixster Content.  Subject to your compliance with these API Terms, Flixster grants you a nonexclusive, revocable license to use, reproduce, distribute, transmit, publicly display and publicly perform the Flixster Content made available through the Flixster API, solely on and through your Service and to modify the Flixster Content in order to format it for and display it on your Service.

(a)    Use.  Your use of the Flixster Content must comply at all times with the Flixster Rules.

(b)    Updates.  You must maintain and make the most current Flixster Content available on your Service.  The availability of Flixster Content is subject to change and Flixster may restrict access to, modify, suspend or terminate any or all of the Flixster Content or the Flixster API at any time and possibly without prior notice.

(c)    Attribution.  You will include an appropriate Flixster name or logos that Flixster makes available for use with Flixster Content (“Flixster Marks”) where Flixster Content is displayed or used with your Service.  You must comply with the Brand Guidelines when using the Flixster Marks.  Subject to your compliance with these API Terms, Flixster grants you a nonexclusive, revocable license to use and display the Flixster Marks in order to identify that the Flixster Content is from Flixster. 

3.     Restrictions.  Your license to use the Flixster API, Flixster Marks and Flixster Content is contingent upon your compliance with the following terms and conditions, and You may not use any of the foregoing for any purpose not expressly permitted in this Agreement. 

(a)    No Resell.  You do not have the right to resell any Flixster Content.  In addition, except as permitted herein (and unless you have been specifically permitted to do otherwise by Flixster in writing), you may not (and you may not permit anyone else to): (i) sell or otherwise charge users specifically for the access or use of the Flixster Content; (ii) create any derivative works of the Flixster Content; (iii) copy any of the Flixster Content and/or extract any data from it; or (iv) remove, alter or obscure any copyright or other proprietary notice, credit-line or date-line (or any source identifier) included in the Flixster Content.

(b)    No Conflicting Uses.  You may not use the Flixster API to develop (or instruct any third party to develop) a service that may reasonably be deemed to be directly competitive with Flixster’s products and services, unless you have been specifically permitted to do so in a separate written agreement with Flixster prior to the undertaking of the development and launch of such service. You may not use the Flixster API, the Flixster Marks or any words, symbols or logos that are similar to the Flixster Marks in any way that conflicts with the terms of this Agreement or that may confuse end users as to the ownership of the Flixster Marks or Flixster Content, including but not limited to use in metadata and URLs.

(c)    No Benchmarking.  You may not use or access the Flixster API for purposes of monitoring the availability, performance or functionality of any of Flixster’s products and services or for any other benchmarking or competitive purposes.  You may not (or attempt to) interfere, disrupt or disable any features or functionality that is embedded or included with the Flixster Content or Flixster API.

(d)    Compliance.  You acknowledge and agree that Flixster may monitor your access and use of the Flixster API and Flixster Content.  You may not interfere with such monitoring or in any way attempt to conceal your activities hereunder.  You agree to and will make available to Flixster any data, usage statistics or other information (in the aggregate) regarding your access and use of the Flixster API and/or Flixster Content as reasonably requested by Flixster.

(e)    No Interference.  Except as expressly specified in these API Terms, you may not: (i) interfere with or disrupt the Flixster API, circumvent the rate limits on use of the Flixster API, or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Flixster API); (ii) use the Flixster API to replicate, frame or mirror the web site; (iii) transfer, sublicense, lease, lend, distribute or otherwise make available the Flixster API to any third party; or (iv) use the Flixster API or Flixster Content in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these API Terms. 

4.     Additional Distribution Rights.  If you have been granted the ability to distribute Flixster Content (or a data feed of the Flixster Content through the Flixster API) as part of and through your Services to your licensees and partners, who may incorporate and distribute Flixster Content to their end user customers (“Licensees”) as part of their products and services, through a separate written agreement and/or approval of Flixster, you may distribute Flixster Content in such a manner, subject to you and your Licensees compliance with the API Terms and the following terms and conditions.

(a)    Terms.  You may only provide Flixster Content to Licensees and as part of your Service and only to those Licensees that have entered into a content license agreement with you under the same terms as in Section 2 and with terms no less protective than those set forth in Section 3 specifically and in general, consistent with the rest of these API Terms.

(b)    Reporting.  You will provide Flixster with a monthly report providing details of your distribution of the Flixster Content to Licensees and any other related information that Flixster may reasonably request.  You acknowledge and agree that Flixster may monitor your (and your Licensee’s) access and use of the Flixster Content.

(c)    Data Feed.  You may not provide or permit any Licensee (or anyone else) to have direct access to the Flixster API through your Services.

(d)    Monitoring.  You must promptly stop providing Flixster Content to any Licensee that you are aware of who is using the Flixster Content contrary to the terms of your agreement or where Flixster has informed you that such Licensee is no longer authorized to receive Flixster Content.  You agree to notify Flixster promptly if you are aware of any use of Flixster Content by any Licensee or third party in violation of these API Terms.

5.     Termination.  You may terminate your licenses at any time by ceasing your access to the Flixster API and/or use of any Flixster Content.  Flixster may immediately suspend your access to the Flixster API and/or any Flixster Content (or if necessary, terminate your licenses) at any time, and without notice to you if you breach any term or condition in these API Terms.  Flixster may also terminate any licenses hereunder for any reason with thirty (30) days notice (including by email) to you.  Flixster will not be liable for any costs, expenses, or damages as a result of its termination of your licenses.  Upon termination, you will promptly cease accessing and using the Flixster API and Flixster Content and will remove all Flixster Content and all copies and portions thereof, in all forms and types of media from your Service.

6.     Ownership.  You expressly acknowledge that Flixster and its users own all worldwide right, title and interest in and to the Flixster API, Flixster Marks and Flixster Content, including all intellectual property rights therein.  You agree not to do anything inconsistent with such ownership.  All use of the Flixster Marks, and all goodwill arising out of such use, inures to Flixster’s benefit.  Any and all rights not specifically granted herein to you are reserved by Flixster.

7.     Confidential Information.  You may be given access to certain non-public information, software and/or specifications relating to the Flixster API (“Confidential Information”), which is confidential and proprietary to Flixster.  You may use this Confidential Information only as necessary in exercising your rights granted in these API Terms.  You may not disclose any of this Confidential Information to any third party without Flixster’s prior written consent.  You agree that you will protect this Confidential Information from unauthorized use, access, or disclosure in the same manner that you would use to protect your own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.

8.     Disclaimer.  You assume all responsibility and risk of use of the Flixster Content and the Flixster API.  The Flixster Content and Flixster API are provided “AS IS” on an “AS AVAILABLE” basis without warranty or condition of any kind.  FLIXSTER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  Flixster is not responsible or liable (and makes no representation or warranty) for the accuracy, content, completeness, legality, reliability, or availability of the Flixster Content.

9.     Indemnification.  You will indemnify, defend (or settle) and hold Flixster harmless from any and all claims, damages, losses, liabilities, actions, judgments, costs and expenses (including reasonable attorneys’ fees) brought by a third party arising out of or in connection with (i) your use of the Flixster Content, the Flixster API or the Flixster Marks (except to the extent expressly permitted by these API Terms); (ii) your breach or alleged breach of any of the terms, restrictions, obligations or representations under these API Terms; or (iii) your Service.

10.   Limitation of Liability.  IN NO EVENT WILL FLIXSTER BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THESE API TERMS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT FLIXSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE API TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  IN ANY CASE, FLIXSTER’S ENTIRE LIABILITY UNDER ANY PROVISION OF THESE API TERMS SHALL NOT EXCEED $500.

11.   Updates. Flixster may modify any of these API Terms, at any time and in its sole discretion, by posting notice on the Developer Site or by otherwise notifying you. If any change is unacceptable to you, your recourse is to terminate your license. Your continued access and/or use of the Flixster API and/or your continued access and/or use of any Flixster Content following such notice will constitute your acceptance of the change.

12.   General.  These API Terms constitute the entire agreement between us with respect to the subject matter and supersedes and merges any prior proposals, understandings and contemporaneous communications.  Any modification to these API Terms by you must be in a writing signed by Flixster.  You may not assign any of the rights or obligations granted hereunder, except with the express written consent of Flixster, and any attempted assignment in violation of this paragraph is void.  These API Terms do not create or imply any partnership, agency or joint venture.  These API Terms will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflicts of law rules or principles.  All claims arising out of or relating to these API Terms will be brought exclusively in the federal or state courts of San Francisco County, California, USA, and you consent to personal jurisdiction in those courts.  If any part of these API Terms is determined to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the remaining provisions of these API Terms will remain in full force and effect. 

FLIXSTER RULES

These Rules apply to you, as a user of the Flixster API and to your use of Flixster Content.  Flixster may immediately suspend and/or terminate your access to the Flixster API and your use of Flixster Content if you violate these terms and conditions.

• You may not use the Flixster Content or Flixster API to: (i) engage in a business activity that directly conflicts with, or places you in a conflicting position to that of Flixster or with Flixster’s products and services, or that may reasonably be deemed to be intended to divert and/or drive audience traffic away from Flixster’s products and services, or (ii) develop (or instruct any third party to develop) a service that may reasonably be deemed to be directly competitive with Flixster’s products and services.

• You must include an appropriate Flixster Mark and abide by Flixster’s Brand Guidelines where Flixster Content is displayed or used with your Service.

• You must ensure that each movie page on your Service links to the appropriate Flixster website and that Flixster receives search engine credit for any such link. 

• You may not insert “noindex” or “nofollow” meta tags on the source page on which any Flixster Content or Flixster Marks (and links) appear, place any Flixster links within JavaScript or rich internet applications (e.g., flash, AJAX or images) or include any redirects or tracking parameters in such Flixster links or otherwise interfere with the operation of any Flixster links.

• You must remove within in a reasonable time and not archive or display any Flixster Content that has been removed by Flixster or the user that created the Flixster Content.

• You cannot use Flixster Content:

-        To impersonate others or to mislead, confuse or deceive others;

-        To promote obscene and/or pornographic materials;

-        To promote violence, hate, discrimination or any illegal activities;

-        To be libelous, defamatory (or false light), or misrepresentative of others;

-        To offer or disseminate any fraudulent, illicit or misleading goods or services;

-        To be used in a manner that reflects unfavorably on Flixster, its products and services or our users;

-        To violate the privacy, publicity, moral or any other proprietary right of others; or

-        To be harmful to Flixster’s or any third party’s systems and networks.