RadioSparx Terms of Service
Thank you for choosing to become a subscriber ("Subscriber"). This customer agreement ("Agreement") between you and Navarr Enterprises Inc (dba RadioSparx) ("RadioSparx", "the Company", "us" or "we") applies to your paid, trial or other subscription ("Subscription") in the Service Area (defined below) to the Internet radio service relating thereto, and the web site ("Site") available to Subscribers and others at www.radiosparx.com & radiosparx.co. The Internet radio service and any other programming or data for radio, television, online, portable, wireless, mobile, and other receivers now known or later developed ("Receivers"), will be collectively referred to here as the "Service".
Your Subscription automatically renew sunder this Agreement. Your Subscription will continue for the length of the initial term you select on your plan and at the end of your prepaid Subscription, it will automatically renew for additional prepaid periods of the same length unless you choose to cancel prior to that renewal, by cancelling via your online account at www.radiosparx.com. Your account will automatically be charged (or you will be billed, as applicable) at the rates in effect at the time of renewal if you have not previously cancelled service.
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SITE OR THE SERVICE. BY ACCESSING OR USING THE SITE OR THE SERVICE, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. PLEASE DO NOT USE THE SITE OR THE SERVICE IF YOU DO NOT AGREE WITH THIS AGREEMENT.
A. CHANGES IN TERMS AND SERVICE:
1. Changes To Terms: WE RESERVE THE RIGHT TO CHANGE THE TERMS OF THIS AGREEMENT AT ANY TIME. ANY CHANGES WILL BE EFFECTIVE UPON POSTING OF THE REVISIONS ON THE SITE REFLECTING THE NEW EFFECTIVE DATE. YOUR CONTINUED USE OF THE SERVICE FOLLOWING THE POSTING OF THE CHANGES ONLINE WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. YOU SHOULD FREQUENTLY REVIEW THE AGREEMENT (INCLUDING THE EFFECTIVE DATE) AND APPLICABLE POLICIES FROM TIME TO TIME TO UNDERSTAND THE TERMS THAT APPLY TO YOUR USE OF THE SERVICE AND/OR USE OF THE SITE. Other than with respect to programming changes referenced in subsection 2 below, if we make any material changes that, in our sole judgment, would have an adverse effect on your use of the Service, we will either post a notice on the Site that this Agreement has changed and the effective date of such change, provide you a notice describing such changes and their effective date, in the manner described below, or send you the revised Agreement. In the event of any potential conflict between this Agreement and the terms of any offer for the Service, this Agreement will govern.
2. Change To Programming: The Service consists of a variety of music and entertainment programming. We reserve the right to change, rearrange, add, or delete programming, including canceling, moving or adding particular channels or stations, at any time, with or without notice to you. Your continued use of the Service following any programming changes will constitute your acceptance of such changes.
B. USE OF SERVICE:
1. Eligibility For Use of Service: You must be at least 18 years old, or the age of majority, as determined by the laws of your state of residency, to assume the obligations set forth in this Agreement.
2. Service Area: We offer the the Service throughout the World. The Service area is collectively referred to as the "Service Area".
3. Service Access: For a single-user Subscription, you may listen to the Service on a single Internet enabled device for which you purchase subscription service. If you have purchased a multi-user Subscription to the Service, you may listen to the Service on Internet enabled devices for up to the number of users for which you have purchased subscription service. You should not provide your username and password to anyone, and you have the obligation to protect your username and password from unauthorized use. You will not be able to access the Service unless your account for your Subscription is in good standing and you are in compliance with this Agreement. For a multi-user Subscription, multiple sign-in accounts will be activated by you which you can distribute to the various users for sign-in and use of their Subscription service on their Internet enabled device.
We do not make or install any of the Internet connectivity or web browser software or other hardware or software ("Web Devices") you need to use to receive the Service . The Service may be unavailable or interrupted from time to time for a variety of reasons, such as unavailability or difficulties with the Internet generally or with your web browser, computer, home wiring or network, or Internet service provider and/or other things that we cannot or do not control. The Service functions best when streamed over a broadband connection. We do not guarantee continuous, uninterrupted or secure access to the Service and are not responsible for any noise and/or interruptions that occur. Your manipulation or "spoofing" of a Web Device or any other activities undertaken to deliver to our servers a false geographical location is a violation of this Agreement. If you disable the geographical location tools on your Web Device and no other method of determining your location is available to us then you will not have access to the geographically restricted channels on your Internet-enabled device regardless of your location.
4. Subscription Types (Personal, Commercial, or Re-Broadcast): The Service may be used in accordance with the type of subscription you purchase:
Personal Subscription - A Personal Subscription may be used strictly for background music for your personal and private enjoyment and to play for friends, family and private guests, in a private setting, and may not be used or played in a setting that is accessed by the public, such as in shops, stores, restaurants, cafes, malls, or other business venues or premises. A personal subscription is strictly limited to play 1,000 tracks per month at a maximum. If more tracks than this are played, we reserve the right to upsize the subscription to a Commercial Subscription at a commercial pay rate.
Commercial Subscription - A Commercial Subscription may be used in a commercial business establishment, venue, or premise strictly as background music. This includes use in such locations as shops, stores, malls, restaurants, cafes, spas, grocery stores, hotels, airlines, lobbies, government buildings or facilities, and any other type of business establishment (whether for-profit or non-profit), and whether entrance to the establishment is free or requires payment.
Rebroadcast Subscription - A Rebroadcast Subscription provides for your use of the Service strictly as a music source to provide music content and programming to your own Internet-based or broadcast-based radio service. The Rebroadcast Subscription may not be used within any commercial business establishments, venues, or premises, and may be rebroadcast only by you and only for the purpose of providing personal-use listening music for the end clients of your service. You may rebroadcast the music provided by our Service "as is", or you may integrate other audio content, including DJ announcements, advertisements, messages, announcements, and any other type of content you wish to include to augment the Service's content. To clarify, a Rebroadcast Subscription may not be used to provide music to businesses for use as in-store or in-premise music. Pricing for Rebroadcast Subscription service is negotiated on a custom basis that is based on either the geographic broadcast scope and/or estimated audience size of your station's listeners. Please contact RadioSparx to discuss pricing and to commence a Rebroadcast Subscription.
5. Restrictions on All Subscription Options: You may not make other commercial use of, reproduce, rebroadcast (does not apply to Rebroadcast Subscriptions), or otherwise transmit our programming, or record, charge admission for listening to or distribute play lists of our programming without our express written consent. Neither the Service nor any Recorded Content (defined below) is intended for any commercial use other than to play as background music. We or any of our content providers may prosecute violations of the foregoing against you and other responsible parties in any court of competent jurisdiction for any unlicensed and unauthorized uses made of the Service or the Content available in the Service. Such unlicensed and/or unauthorized uses are considered to be willful copyright infringement will expose you and the other responsible parties to legal claims for statutory copyright infringement. You assume all responsibility for use of the Site. You agree that any person using your sign-in identification issued for the Site will be treated by us as having been authorized by you to access your information as contained on the Site, and take any other actions on your behalf. You agree to indemnify and hold harmless RadioSparx and its affiliates from all damages, costs, expenses, liabilities and claims incurred by them arising out of any action taken by any person or entity using your username/password on the Site. You also agree to waive all claims against RadioSparx and its affiliates that may arise from the utilization of the Site. Should your sign-in ID or username or password be lost, stolen, sold, transferred or otherwise removed from your possession without your permission, contact us immediately so that your personal identifiers may be deactivated and reissued. You also may not attempt to override or circumvent any of our usage rules, limitations, or security measures embedded into the Service or any Receiver.
6. Service Interruptions: The Service may be unavailable or interrupted from time to time for a variety of reasons, such as environmental or topographic conditions, many of which we cannot control. The Service might also not be available in certain places that lack Internet service or where Internet service is impaired or restricted. We are not responsible for any noise and/or interruptions of the Service.
7. Service Cancellation: We reserve the right to cancel your Subscription at any time if you fail to pay amounts owing to us when due, violate or breach any of this Agreement, or for any other reason in our sole discretion. If your Subscription is cancelled, you will still be responsible for payment of all outstanding balances accrued through the cancellation date, including any fees described herein.
8. Advisory Nature of Services; User Responsibility; User Safety/Reliance; Parental Control: It is your responsibility to exercise prudent discretion and observe all safety measures required by law and your own common sense in using the Service. All actions and judgments taken with respect to the Service are your sole responsibility. You assume the entire risk related to your use of the Service. Some programming may include explicit language. It is your responsibility to use your discretion in selecting which stations, channels or playlists to play for your intended audience. We are not responsible for content that you or anyone else may find inappropriate.
9. Copyright: If you are authorized to act on behalf of a copyright owner, and any material on the Site infringes on the rights of the owner, please notify us either in writing by mail, or via fax, or via email:
Attention: Legal Department
2800 N 6th St
Saint Augustine , FL 32084
Email: [email protected]
To be effective, your notification must provide us with information that meets the requirements of the U.S. Copyright Act, which are summarized as follows:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- A detailed identification of the copyrighted work or works claimed to have been infringed;
- Information sufficient to permit us to locate the allegedly infringing material;
- Information sufficient to permit us to contact you, such as an address, telephone number or email address;
- A statement that you have a good faith belief that the use of the allegedly infringing material in the manner complained of is not authorized by the copyright owner, its agent or the law;
- Your sworn statement that the information in your notification is accurate; and
- Your sworn statement that you are authorized to act on behalf of the copyright owner of the allegedly infringing material.
10. Use of the Service: You may not rebroadcast the Service in any way without first purchasing a Rebroadcast Subscription from RadioSparx. For the Personal and Commercial Subscription options, depending on the type of subscription you have purchased (personal vs. commercial), you may play the Service through speakers or headphones for your personal listening pleasure and/or within your business premises as background music for the entertainment of your clients and patrons. You may not make any recordings of, or otherwise duplicate, the content provided by the Service. In addition, you may not re-transmit or otherwise distribute the content provided by the Service in any way, including online streaming such content or making such content available for download without prior written consent from Company. You may not re-skin, re-package, decompile, reverse engineer, or disassemble the Service software or web site, or construct a media player or interface that accesses the Service without prior written consent from the Company. In addition, your use of any products or services that access the Service and which are provided by third parties not authorized by us constitutes a violation of this Agreement, even if you did not create such product or services and/or do not understand how they were created. Furthermore, for paid subscriptions, use of the service at more than the number of service locations, computers or users than you have purchased service for constitutes a violation of this Agreement and is grounds for service termination without refund.
In return for receiving the Service, you agree to pay us as follows:
1. Subscription Fee: You must pay in advance by credit card or debit card or other acceptable payment method as indicated on the website. You may also pay by cheque, money order or wire transfer. Please do not include comments or questions with your cheque or money order payment. If paying by cheque or money order against invoices, mail all payments to the address contained on your invoice and include your Account Number on your check or money order.
By sending your completed, signed cheque to us, you authorize us to copy your cheque and to use the account information from your cheque to make a one-time electronic fund transfer from your account for the same amount as the cheque. Funds will be withdrawn from your account within 24 hours and you will not receive your chequeback from your financial institution. The electronic fund transfer from your account will be on the account statement you receive from your financial institution.
2. Automatic Renewal: Your Subscription will continue for the length of the initial term you select on your Plan ("Subscription Term") and at the end of your prepaid Subscription Term, it will automatically renew for additional prepaid periods of the same length unless you choose to cancel prior to that renewal, or your Service is cancelled, terminated, or discontinued by you or by us, or you select a different Plan. Your account will automatically be charged (or you will be billed, as applicable) at the rates in effect at the time of renewal. We may, at our option, process your renewal on a month-to month basis instead of your chosen Subscription Term.
3. Changes in Fees: Our fees and other charges are subject to change without notice.
4. Change of Address or Account Information: You must notify our Customer Service group immediately of any change in your name, billing address, service address, email address, telephone number, credit card or other account information.
5. Payments: We accept all payments through the payment gateway. Your outstanding balance is due in full each payment period. Undisputed portions of your account must be paid by the due date to avoid a late fee and possible deactivation of the Service. No "payment in full" notation or other restrictive endorsement written on your payments will restrict our ability to collect all amounts owing to us. We expect you to pay your account balance on time. If you are delinquent in any payment to us, we reserve the right to suspend or terminate your Subscription and report any late payment or non-payment to credit reporting agencies. If your account is past due, and if we deactivate your Service, we will prorate your Subscription and amounts owed to us and will apply your pre-payments to past due amounts and any remaining credit to future obligations. WE MAY RECEIVE UPDATED CREDIT CARD INFORMATION FROM YOUR CREDIT CARD ISSUER. Your credit card issuer may give you the right to opt out of the update service.
6. Taxes: You are responsible for all taxes or other government fees and charges, if any, which are assessed based on the Service address on your account.
7. Fees: We will charge you one or more of the following fees, all of which are subject to change without notice:
- Late Fee: If we do not receive your payment by the billing due date, we may charge you a late fee. The late fee shall be 5% per month until the delinquent amount is paid in full, in each case, subject to applicable law. We do not extend credit to customers and you acknowledge that this fee is not an interest charge, finance charge, or other charge of a similar nature and it is reasonably related to the actual expense we incur due to unsatisfied payment and may be subject to limitations set forth by applicable law.
- Returned Payment Fee: If any bank or other financial institution refuses to honor any payment of yours, we may charge you a fee that is the lesser of (i) $20.00 ($15.00 for residents of West Virginia); and (ii) the maximum amount permitted under applicable law. You acknowledge that this fee is not an interest charge, finance charge, or other charge of a similar nature and it is reasonably related to the actual expense we incur due to unsatisfied payment.
- Taxes: All amounts charged to your account may be subject to tax, which will vary according to your billing address and applicable law.
We reserve the right to waive any of these fees, in whole or in part, at our discretion. Our failure to enforce any of these fees or any other provisions of this Agreement shall not be construed as a waiver of the right to assert any such terms on any future occasion.
8. Changes to Packages and Plans: You also have the right to change your subscription "Plan" (e.g., ask us to change from a Monthly Plan to a One-Year Plan. or to change from a single-user plan to a multi-user plan). How the change will affect your account and charges will depend upon the choices you make. All of your Subscriptions may be combined on a single account. Service fees and balances are account-related.
9. Customer Service: If you have a question about the Service, Subscription, Subscription Fees, fees, charges or your bill, or if you would like to change or reactivate your Subscription, please contact Customer Service. If you contact Customer Service in writing, please include the following information:
- Your name, service address, and account number;
- The dollar amount in question; and
- The details of your question.
If you wish to dispute any charge, you must contact us by mail or phone (by following the instructions in this Agreement) within 30 days after the date you receive the statement in question. OTHERWISE YOU WAIVE YOUR RIGHT TO DISPUTE THE CHARGE. Undisputed portions of the statement must be paid by the due date to avoid a late fee and possible deactivation of the Service.
The term of your Subscription will automatically renew for additional terms of the same length as your initial Subscription Term or, at our option, on a month-to-month basis until you cancel the Service. You are responsible for payment of all outstanding balances accrued through that date. You must comply with this Agreement or we may cancel the Service.
1. Cancellation: You may cancel your Subscription at any time by using the online service cancellation option under the "MyAccount" option on the RadioSparx.com web site, or by notifying Customer Service. Your cancellation will become effective on your next Subscription "cycle date," which is the start date of the subscription renewal period from your initial activation date (i.e., if you activated an annual subscription on January 15th and cancel on November 1st, your subscription will remain active until January 15 in the new subsequent new year). Once cancelled, your service will remain active and accessible by you until the next renewal period for your subscription, at which time service will terminate automatically.
2. Refunds: If you cancel your Subscription prior to its expiration, please note that we do not issue refunds for pre-paid service. ALL PREPAID SUBSCRIPTIONS ARE TREATED AS NONREFUNDABLE.
E. DISCLAIMERS/LIMITATION OF LIABILITY:
1. Disclaimers: YOU UNDERSTAND AND AGREE THAT THE SITE AND THE CONTENT AND FUNCTIONALITY OF THE SERVICE, INCLUDING PROGRAMMING AND ALL AUDIO CONTENT, ARE PROVIDED "AS IS" AND "AS AVAILABLE." RADIOSPARX AND ITS AFFILIATES AS WELL AS NAVARR ENTERPRISES INC (DBA RADIOSPARX) MAKE NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, REGARDING THE SERVICE, THE RELIABILITY, PREDICTIVE VALUE, COMPLETENESS, TIMELINESS, RELIABILITY, OR ACCURACY OF THE INFORMATION CONTAINED WITHIN THE SERVICE, OUR TRANSMISSION, YOUR RECEPTION, OR THAT YOUR ACCESS TO OR YOUR USE OF THE SERVICE OR THE SITE WILL BE UNINTERRUPTED, ERROR FREE OR TIMELY WITH ALL UPDATES. ALL SUCH WARRANTIES (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT) ARE HEREBY DISCLAIMED.
2. Limitations of Liability: IN NO EVENT ARE RADIOSPARX, ITS AFFILIATES OR NAVARR ENTERPRISES INC (DBA RADIOSPARX) LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, OR LOSSES RELATING TO THE USE, LOSS OF USE OR DATA, OR PURCHASE OF ANY RECEIVER OR EQUIPMENT, OR YOUR PURCHASE OR USE OF THE SERVICE, OR FROM ANY CONTENT POSTED ON THE SITE BY US OR ANYONE ELSE, WHETHER BASED ON NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF, WHETHER ARISING OUT OF BREACH OF THIS AGREEMENT, TORT OR ANY OTHER CAUSE OF ACTION RELATING TO THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT.
IN NO EVENT WILL THE AGGREGATE OF EACH OF RADIOSPARX, ITS AFFILIATES AND NAVARR ENTERPRISES INC (DBA RADIOSPARX)’S LIABILITY FOR ANY AND ALL OF YOUR CLAIMS, OR ANY THIRD PARTY CLAIMS, AGAINST US AND OUR PROGRAMMING OR DATA SUPPLIERS, SERVICE PROVIDERS, MARKETING/DISTRIBUTION SOFTWARE OR INTERNET SUPPLIERS OR HARDWARE OR SOFTWARE MANUFACTURERS, OR SUPPLIERS, CONTRACTORS AND LICENSORS, OR INDEPENDENT SELLERS, ARISING OUT OF OR RELATED TO, DIRECTLY OR INDIRECTLY, THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS PURSUANT TO THIS AGREEMENT OR BY THE NEGLIGENCE, ACTIVE OR PASSIVE, OF RADIOSPARX, ITS AFFILIATES AND/OR RADIOSPARX OR YOUR ACCESS TO OR USE OF OR INABILITY TO USE THE SERVICE OR SITE, EXCEED THE PRICE PAID BY YOU TO RADIOSPARX HEREUNDER FOR THE MOST RECENT MONTH OF SERVICE IMMEDIATELY PRIOR TO THE SPECIFIC EVENT WHICH GAVE RISE TO THE APPLICABLE DAMAGE OR LOSS. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. THIS ALLOCATION OF RISK AND THE DISCLAIMER OF WARRANTIES HEREIN ARE REFLECTED IN OUR PRICES AND ARE A FUNDAMENTAL ELEMENT OF THIS AGREEMENT. YOU MAY HAVE GREATER RIGHTS THAN DESCRIBED ABOVE UNDER YOUR STATE'S LAWS.
3. Your Risk: YOU AGREE THAT YOUR ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE THE SERVICE OR THE SITE IS AT YOUR SOLE RISK. YOU WILL NOT HOLD US, OUR PROGRAMMING OR DATA SUPPLIERS, SERVICE PROVIDERS, MARKETING/DISTRIBUTION, SOFTWARE OR INTERNET SUPPLIERS, OR HARDWARE OR SOFTWARE MANUFACTURERS, OR SUPPLIERS, OR OUR CONTRACTORS OR LICENSORS, AS APPLICABLE, RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR LOST PROFITS RESULTING FROM YOUR ACCESS TO OR USE OF, OR INTERRUPTIONS IN THE TRANSMISSION OR RECEPTION OF THE SERVICE OR SITE, INCLUDING ANY DAMAGE TO ANY OF YOUR COMPUTERS OR DATA, AND/OR ANY RECEIVER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY OR GUARANTEE IN ANY WAY WHATSOEVER RELATING TO THE SERVICE OR SITE.
4. Third Parties: THE THIRD PARTY LINKS, SERVICES, GOODS, RESOURCES AND CONTENT AVAILABLE ON THE SERVICE AND THROUGH LINKS ON THE SITE ARE NOT CONTROLLED BY US. ACCORDINGLY, WE MAKE NO WARRANTIES REGARDING SUCH THIRD-PARTY SERVICES, GOODS, RESOURCES, AND CONTENT, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. WE WILL NOT BE LIABLE FOR YOUR ACCESS TO, USE OF OR DOWNLOADING OF CONTENT AVAILABLE ON OR THROUGH, THE SERVICE OR THE SITE. WE ARE NOT LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES OR LOSSES CAUSED BY YOUR USE OF THIRD-PARTY WEBSITES. YOU ASSUME FULL RESPONSIBILITY WHEN YOU CHOOSE TO FOLLOW ANY LINKS ON THE SITE THAT LEAD TO THIRD-PARTY WEBSITES.
5. State Law: SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
6. Miscellaneous: UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. OUR LICENSORS AND CONTRACTORS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS.
7. Indemnification: EXCEPT FOR WILLFUL MISCONDUCT ON THE PART OF RADIOSPARX, ITS AFFILIATES AND/OR NAVARR ENTERPRISES INC (DBA RADIOSPARX), YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS RADIOSPARX, ITS AFFILIATES, SUBSIDIARIES, SHAREHOLDERS, OFFICERS, AGENTS, EMPLOYEES, LICENSORS AND SERVICE PROVIDERS, AND NAVARR ENTERPRISES INC (DBA RADIOSPARX). ("INDEMNIFIED PARTIES") FROM ANY AND ALL CLAIMS, LIABILITY AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES), WHETHER IN TORT, CONTRACT OR OTHERWISE, RELATING TO OR ARISING OUT OF YOUR USE OF THE SERVICE AND ANY BREACH OF THIS AGREEMENT, APPLICABLE LAW OR ANY RIGHT OF THE INDEMNIFIED PARTIES OR ANY THIRD PARTY. THIS INDEMNIFICATION OBLIGATION INCLUDES THE ACTS OR OMISSIONS OF ANYONE ACCESSING THE SERVICE USING YOUR SIGN-IN ID, WITH OR WITHOUT YOUR PERMISSION.
E. RESOLVING DISPUTES:
PLEASE READ THIS PROVISION OF THIS SECTION CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE RESOLVED BY BINDING ARBITRATION. BY AGREEING TO ARBITRATION, YOU ARE HEREBY WAIVING THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR, OR A PANEL OF ARBITRATORS, INSTEAD OF A JUDGE OR JURY. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE THEIR CASE, BUT THEY CHOOSE (BY THEIR ACCEPTANCE OF THIS AGREEMENT, IN ACCESSING OR USING THE SERVICE OR THE SITE) TO HAVE ANY DISPUTES RESOLVED THROUGH ARBITRATION.
In order to expedite and control the cost of disputes, you agree that any legal or equitable claim relating to the Service, the Site, or your Subscription or this Agreement (a "Claim"), will be resolved as follows:
1. Informal Claim Resolution: To initiate an informal resolution to a Claim, you must send a notice (a "Notice") by express trackable mail to:
Attention: Customer Service
2800 N 6th St
Saint Augustine , FL 32084
Neither of us may start a formal proceeding (except for Claims described in subsection 3 below) for at least 60 days after one of us notifies the other of a Claim in writing. If we initiate a Claim, we will send our notice to the billing address on file with us.
2. Formal Resolution: If we cannot resolve a Claim informally, including any Claim between us, and any Claim by either of us against any agent, employee, successor, or assign of the other, including, to the full extent permitted by applicable law, third parties who are not party to this Agreement, whether related to this Agreement or otherwise, including past, present, and future Claims and disputes, and including any dispute as to the validity or applicability of this arbitration clause, then these Claims shall be resolved, upon election by either party, exclusively and finally by binding arbitration. The party initiating arbitration must follow the rules and procedures of the American Arbitration Association ("AAA") in effect at the time the Claim is filed, and the parties agree that the arbitration shall be administered by the AAA. You may obtain copies of the current rules, forms and instructions for initiating an arbitration by contacting:
American Arbitration Association
1633 Broadway, 10th Floor New York, New York 10019
Web site: www.adr.org
This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act ("FAA"), and not by any state law concerning arbitration.
3. Exceptions: Notwithstanding the foregoing, any dispute involving a violation of the Communications Act of 1934, 47 U.S.C. §605, the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521, or a violation of our intellectual property rights may be decided only by a court of competent jurisdiction.
4. Small Claims: Instead of proceeding to arbitration, either you or we have the option to pursue a Claim in small claims court (or the equivalent) so long as 1) the Claim remains in that court, and 2) is made solely on our behalf (if brought by us), or on your behalf. However, if that Claim is transferred or appealed to a different court, we reserve our right to elect arbitration.
5. Cost Sharing: Whoever files the arbitration pays the initial filing fee. If we file, we pay; if you file, you pay, unless you get a fee waiver under the applicable arbitration rules. If you have paid the initial filing fee and you prevail, we will reimburse you for that fee. If there is a hearing, we will pay any fees of the arbitrator and arbitration firm for the first day of that hearing. All other fees will be allocated as provided by the rules of the arbitration firm and applicable law. In no event will you be required to reimburse us for any arbitration filing, administrative, or hearing fees in an amount greater than what your court costs would have been if the Claim had been resolved in a state court with jurisdiction. However, we will advance or reimburse your fee if the arbitration firm or arbitrator determines there is good reason requiring us to do so, or if you ask us and we determine there is good reason for doing so. Each party will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.
6. Class Actions and Severability: If either party elects to resolve a claim by arbitration, that Claim shall be arbitrated on an individual basis. There shall be no right or authority for any claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other subscribers, or other persons similarly situated. No Claim submitted to arbitration is heard by a jury or may be brought as a private attorney general. You do not have the right to act as a class representative or participate as a member of a class of claimants with respect to any Claim submitted to arbitration ("Class Action Waiver"). The parties to this Agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from this agreement to arbitrate Claims. Claim does not include any challenge to the validity and effect of the Class Action Waiver, which must be decided by a court. The parties acknowledge and agree that under no circumstances will a class action be arbitrated.
If any portion of this arbitration agreement or the Class Action Waiver is limited, voided or cannot be enforced, then the parties' agreement to arbitrate (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver, that portion will be severed, and the rest of the arbitration agreement will continue to apply. If this entire agreement to arbitrate shall be null and void, then the parties agree that any actions shall be brought in the State or Federal courts of San Francisco, California.
7. Binding Effect: In the arbitration proceeding, the arbitrator must follow applicable law, and any award may be challenged, as set forth in the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award. The arbitrator's decision is final and binding on all parties and may be enforced in any federal or state court with jurisdiction.
1. Notices: Notices to you will be deemed given when deposited in the mail or when sent by email, or when faxed or transmitted via email. Notices may be included in statements or other communications to you. We may also provide notice to you by telephone, which will be deemed given when a message is left with you, someone answering the telephone at your residence or on an answering machine or voice mail system at your phone number on record with us. Your notices to us will be deemed given when we receive them at the telephone number or, in writing at the address set forth above, or via fax or email as set forth below:
Attention: Legal Department
2800 N 6th St
Saint Augustine , FL 32084
Email: [email protected]
2. Assignment of Account: We may assign your account and all rights and/or obligations hereunder to any third party without notice for any purpose, including collection of unpaid amounts, in the event of an acquisition, corporate reorganization, merger or sale of substantially all of our assets to another entity. You hereby consent to such assignment. You must continue making all required payments to us in accordance with your billing statement, unless notified otherwise.
3. Termination: We may terminate your right to use the Site or Service at any time and without notice. We will terminate your right to use the Site if you violate this Agreement or any other policy posted on the Site.
4. Full Agreement: This Agreement constitutes the entire agreement between us concerning your access to and use of the Service or Site and may be modified by the unilateral amendment of this Agreement and the posting by us of such amended version. No salesperson or other representative is authorized to change it for you. If any provision is declared by a competent authority to be invalid, that provision will be deleted or modified to the extent necessary, and the rest of this Agreement will remain enforceable. Any specific terms that expressly or by their nature survive termination shall continue thereafter until fully performed. A waiver of any terms or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
5. Applicable Law: The interpretation and enforcement of this Agreement shall be governed by the rules and regulations of the State of California and other applicable federal laws.
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