(EFFECTIVE AS OF SEPTEMBER 22, 2020)
PLEASE READ CAREFULLY
Should you have any questions concerning this Agreement or need technical support, you may contact BYO Channel support by visiting our Contact Us section.
In addition, we are solely responsible for the BYO Channel Services, not any Third Party Providers. Without limiting the foregoing, you and we acknowledge and specifically agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
1. AUTHORIZED USERS.
a. Residents in Authorized Jurisdictions; Age Requirement; Authority. In order to use any of the BYO Channel Services, you must be a resident in the Authorized Jurisdictions and at least 13 years of age. You represent that: (i) you have read and understood, and that you agree to be bound by, this Agreement; (ii) you are at least 13 years old; (iii) you are a resident in the Authorized Jurisdictions; (iv) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (v) and you are not listed on any US Government list of prohibited or restricted parties. If you do not agree to, or cannot comply with, any of these terms and conditions of this Agreement, please do not attempt to access any of the BYO Channel Services.
BYO Network, LLC
P.O. Box 27740
Las Vegas, NV 89147
Opting out may prevent you from receiving non-service related messages regarding us or special offers.
Additionally, our Applications may, in some circumstances, offer the ability for you to receive push notifications in connection with those Applications. If you would like to modify your ability to receive push notifications from our Applications, you can control those settings within the settings or preferences apps of each respective device. By accepting this Agreement and using the BYO Channel Services, you expressly consent to the receipt of all such communications from us or on our behalf. You may modify your communication preferences at any time by changing your settings or preferences within your device.
c. Account Confidentiality. You agree that you will not allow others to use any aspect of your Account Information. You have responsibility for taking steps to maintain the confidentiality and security of your account. You agree to notify us immediately of any unauthorized use of your password and/or account. We will not be responsible for any losses arising out of the unauthorized use of your member name, password and/or account and you agree to indemnify us and hold us harmless, our partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of the same.
d. Security. To prevent unauthorized access, to maintain data accuracy, and to ensure the appropriate use of Account Information, we use appropriate physical, technical and administrative procedures to safeguard the information we collect.
2. ACCESS TO BYO CHANNEL SERVICES.
a. License Granted.We grant to you a limited, non-exclusive, non-transferable license to access and use the BYO Channel Services in the Authorized Jurisdictions for personal non-commercial purposes only. We also grant to you a non-transferable license to use the Applications on any Apple Devices that you own or control as permitted by the usage Rules set forth in Apple’s App Store Terms of Service at http://www.apple.com/legal/itunes/us/terms.html#SERVICE. If you register for any of the BYO Channel Services, this license is contingent upon your compliance with any other terms and conditions applicable to you as a registered user. Any violation by you of the license provisions contained in this Section 2(a) may result in the immediate termination of your right to use the BYO Channel Services. We reserve all right, title and interest not expressly granted under this license to the fullest extent possible under applicable laws. ANY USE OF THE BYO CHANNEL SERVICES NOT SPECIFICALLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.
b. Authorized Jurisdictions. The BYO Channel Services are currently available in the United States (each, an “Authorized Jurisdiction“, and collectively, the “Authorized Jurisdictions“). We may add or remove countries and/or territories from the list of Authorized Jurisdictions at any time and without any notice, liability, or obligation to you with respect to each such territory. Use of the BYO Channel Services outside of the Authorized Jurisdictions is strictly prohibited, outside the scope of the license granted herein, and may subject your account to termination and other legal action.
c. Updates, Maintenance & Support. We may from time to time make available to all users of the BYO Channel Services, updates at no cost or subject to additional fees in our sole discretion. “Updates” means any updates, upgrades or error corrections to the BYO Channel Services that we make available generally to users of the BYO Channel Services. Notwithstanding anything else contained in this Agreement, we will have no obligation to continue producing or releasing new versions of the BYO Channel Services or any updates thereto. You and we agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Applications for Apple Devices. Any customer support questions may be directed to us visiting our Contact Us section or by mail as follows:
BYO Network, LLC
P.O. Box 27740
Las Vegas, NV 89147
3. GENERAL RESTRICTIONS. You agee that you will not:
a. use the BYO Channel Services to reproduce copyrighted materials;
b. copy, store, edit, change, prepare any derivative work of or alter in any way any of the tracks streamed through the BYO Channel Services;
c. make the BYO Channel Services available over a network (other than our network) where it could be used by others;
d. provide your password to any other person;
e. translate, reverse engineer, decompile, disassemble, modify or create derivative works based on the BYO Channel Services or any portion of them;
f. circumvent any technology used by us or our licensors, including Third Party Licensors, to protect content accessible via the BYO Channel Services, including any of the usage rules embedded into the BYO Channel Services;
g. rent, lease or sublicense any of the BYO Channel Services; or
h. use the BYO Channel Services in any way that violates the terms of this Agreement or the applicable terms of any agreements of our licensors, including Third Party Providers to which you are bound in connection with your use of the BYO Channel Services.
4. USER CONTENT.
a. Generally.You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials that you upload, post, email, transmit or otherwise make available via the BYO Channel Services (“User Content”), whether publicly posted or privately transmitted, is your sole responsibility. We do not control the User Content posted via the BYO Channel Services and, as such, do not guarantee the accuracy, integrity or quality of such User Content. You understand that by using the BYO Channel Services, you may be exposed to User Content that is offensive, indecent or objectionable. Under no circumstances will we be liable in any way for any User Content, including, but not limited to, for any errors or omissions in any User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content posted, emailed, transmitted or otherwise made available via the BYO Channel Services.
b. DiJi Content. Via our DiJi service, we permit you to act as your own “digital DJ”, hosting your own channels with your own voice, by recording and uploading digital audio tracks featuring your own voice audio and inserting such personalized audio into your BYO channels (“DiJi Content”). DiJi Content is subject to all of the same terms applicable to User Content hereunder. Further, users may only record and submit DiJi Content consisting of spoken-word, non-musical content. We reserve the right to remove or disable access to any DiJi Content which violates the terms of this Agreement.
c. License of User Content. By providing User Content through the BYO Channel Services, you are automatically giving us a limited, non-exclusive (meaning that you are free to license User Content to anyone else in addition to us as long as you do not give them an exclusive license or ownership), sub-licensable (solely so we can use our affiliates, partners and other subcontractors such as Internet content delivery networks and wireless carriers to provide the BYO Channel Services), worldwide, fully-paid and royalty-free (meaning that we are not required to pay you or anyone else any money for use of the User Content) license to use, modify (every effort will be made to preserve the integrity of User Content, but occasionally a technical modification such as compressing the file is necessary), publicly perform, publicly display (for editorial or promotional purposes), reproduce, and distribute User Content on or through the BYO Channel Services, including to promote and market the BYO Channel Services and our business, generally, without the requirement to seek your permission or permission of anyone else. You hereby irrevocably waive any and all rights to seek or obtain any injunctive or other equitable or compensatory relief against us for our use or exploitation of User Content as licensed herein, as well as any claims under “moral rights” or similar theories. For the avoidance of doubt, we will not use User Content for any out-of-context marketing or promotion purposes. Your license to us will last as long as User Content is available on or through the BYO Channel Services until you terminate your account or remove any particular item of User Content by following the account termination or content removal procedures described elsewhere in this Agreement; provided, however, that after such termination we shall maintain right store User Content solely for archival and other internal purposes. You understand that any communication or User Content you do transmit to or through the BYO Channel Services by electronic mail or otherwise will be treated as non-confidential and non-proprietary. Furthermore, we are free to use any ideas, concepts, know how or techniques contained in any communication or User Content you transmit to and/or through the BYO Channel Services for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing any and all products incorporating any such information. For clarity, our license to use User Content is limited to uses which are solely in connection with providing the BYO Channel Services to you and other users. It does not give us any license to use User Content in any manner other than as described in this Agreement (for example, we won’t sell or let a third party sell your User Content as individually packaged product unless that becomes something that we offer to our users as a part of the BYO Channel Services and you want us to do that for you).
d. Restrictions.You agree to not use the BYO Channel Services to:
i. Upload, post, email, transmit or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; harm minors in any way; impersonate any person or entity, including, but not limited to, any one from our company, moderator, personality or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
ii. Upload, post, email, transmit or otherwise make available any User Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
iii. Upload, post, email, transmit or otherwise make available any User Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
iv. Upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas (such as shopping rooms) that are designated for such purpose;
v. Upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
vi. Interfere with or disrupt the BYO Channel Services or servers or networks connected to the BYO Channel Services, or disobey any requirements, procedures, policies or regulations of networks connected to the BYO Channel Services;
vii. Intentionally or unintentionally violate any applicable local, state, national or international law, and any regulations having the force of law; “stalk” or otherwise harass another; or
viii. Collect or harvest any personally identifiable information, including account names, from the BYO Channel Services, nor to use the communication systems provided by the BYO Channel Services for any commercial solicitation purposes.
e. Right to Remove.You acknowledge that we may or may not pre-screen User Content. However, in either event, we and our designees reserve the right (but not the obligation) in our sole discretion to refuse or remove any User Content that is available via the BYO Channel Services. Without limiting the foregoing, we and our designees shall have the right to remove any User Content that violates this Agreement or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content. In this regard, you acknowledge that you may not rely on any User Content, including without limitation information in any of our public forums, and in all other parts of the BYO Channel Services. You may also remove any User Content submitted or posted by you to your account at any time by logging in to your account with us and using the edit/delete prompts for the particular content you wish to change.
f. Access. You acknowledge, consent and agree that we may access, preserve, and disclose your Account Information and User Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any User Content violates the rights of third-parties; (iv) respond to your requests for customer service; or (v) protect the rights, property, or personal safety of our users and the public as well as our employees.
5. PAYMENTS, FEES AND OTHER CHARGES
a. If you elect to access any paid component of the BYO Channel Services, such as becoming a subscriber, you agree to pay all fees and charges associated with that paid component on a timely basis. Unless otherwise stated, all fees and charges are due and payable in advance, are non-refundable, and are exclusive of any applicable federal, state, or local taxes. All such fees and charges (including any taxes and late fees, as applicable) will be charged to the payment method you provided when you elected to access that paid component of the BYO Channel Services. You agree to maintain a valid payment method during the term of your use of such paid component of the BYO Channel Services.
b. Carrier & Data Charges. Use of the BYO Channel Services may involve transmission of data through your carrier or service provider’s network. You are responsible for all carrier, text/SMS, data, or other related fees or charges you incur from your carrier or service provider in connection with, or related to your use of the BYO Channel Services. We assume no liability or responsibility for the payment of any charges you may incur.
c. Subscription Policy. For information about our current subscription plans, auto-renewal policy and free trials, please see our Subscription Policy. The terms of the Subscription Policy are incorporated into this Agreement, and accordingly, by your agreement to this Agreement, you hereby acknowledge and affirm your agreement to the Subscription Policy.
6. INTELLECTUAL PROPERTY
a. Copyrights.As between you and us, you acknowledge that we own or have a license to all title and copyrights in and to the BYO Channel Services. All title and intellectual property rights in and to the licensed content in the BYO Channel Services is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties and subject to use restrictions under such laws or treaties.
b. Trademarks. The following are our registered trademarks: BYO Channel, and its design logo, Gizmo, as well as certain other BYO Channel trademarks, service marks, graphics, and logos used in connection with the BYO Channel Services (collectively, the “BYO Channel Trademarks”). The BYO Channel Services may contain third-party trademarks, service marks, graphics, and logos. You are not granted any right or license with respect to BYO Channel Trademarks or the trademarks of any third party.
c. Notice and Procedure For Making Claims of Infringement; Counterclaims and Repeat Infringers
i. If you are a copyright owner or an agent thereof and believe that any item of material on the BYO Channel Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):\
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- 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;
- 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;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail address;
- A statement that you have 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; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
ii. Our designated Copyright Agent to receive notifications of claimed infringement is Copyright Agent, 4730 South Fort Apache Road, Suite 300, Las Vegas, NV 89147; Email: firstname.lastname@example.org; Telephone: 702-939-5326. For clarity, only DMCA notices should go to the Copyright Agent Other feedback, comments, requests for technical support, and other communications should be directed to our support visiting our Contact Us section. You acknowledge that if you fail to comply with all of the requirements of this Section 5(c)(i), your DMCA notice may not be valid.
iii. If you believe that your material has been removed by mistake or misidentification, please provide the Copyright Agent with a written counter-notification containing the following information:
- Your name, address, and telephone number.
- A description of the material that was removed and the location on the Site or Application where it previously appeared.
- 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.
- A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, any judicial district in which we may be found, and that you will accept service of process from the person who filed the original DMCA notice or an agent of that person.
- Your electronic or physical signature.
Please note that we will send any complete counter-notifications we receive to the person who submitted the original DMCA notice. That person may elect to file a lawsuit against you for copyright infringement. If we do not receive notice that a lawsuit has been filed within ten (10) business days after we provide notice of your counter-notification, we will restore the removed materials. Until that time, your materials will remain removed. We will provide a copy of the original DMCA takedown notice upon request.
iv. If you are the owner of any intellectual property other than copyrighted materials (such as, for example, a trademark), or an agent thereof, and believe that any item of content or other materials on the BYO Channel Services infringes upon your rights in such intellectually property, you must submit a notification to us in the same manner as provided above in respect of notice of alleged copyright infringement, including providing the same information in writing to the designated Copyright Agent set forth above.
v. We will terminate user accounts that have been the subject of three (3) separate DMCA notices. In the event a user’s materials are removed due to a DMCA notice and then subsequently restored due to the filing of a DMCA counter-notification, we will treat the underlying DMCA notice as withdrawn. We reserve the right to terminate user accounts that are the subject of fewer than three (3) DMCA notices in appropriate circumstances, such as where the user has a history of violating or willfully disregarding this Agreement.
6. SECURITY. We use technology to protect the digital information provided by us from unauthorized use. Your use of the BYO Channel Services may be limited by such technology. You acknowledge that, from time to time, we may modify or discontinue using such technology. Security modifications made by us may from time to time include required updates to the BYO Channel Services. IF YOU ATTEMPT TO VIOLATE OR CIRCUMVENT ANY SYSTEM OR NETWORK SECURITY COMPONENTS OR TECHNOLOGY, YOU MAY BE SUBJECT TO CIVIL OR CRIMINAL LIABILITY.
8. TERM AND TERMINATION. This Agreement will remain effective until terminated by you or us. You may cancel your account and terminate this Agreement at any time and for any reason by visiting our Contact Us section and following the Delete Account prompts. You agree that we may for any reason and without prior notice, immediately terminate your account and access to the BYO Channel Services. Reasons for such termination shall include, but not be limited to, (a) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the BYO Channel Services (or any part thereof), (e) unexpected technical or security issues or problems, and (f) extended periods of inactivity. Further, you agree that all terminations shall be made in our sole discretion and that we shall not be liable to you or any third-party for any termination of your account, any associated email address, or access to the BYO Channel Services.
a. THE BYO CHANNEL SERVICES (INCLUDING ANY SOFTWARE CONTAINED THEREIN) AND ANY UPGRADES OR PLUG-INS AND ANY LICENSED CONTENT ARE LICENSED TO YOU “AS IS.” ANY USE OF THE BYO CHANNEL SERVICES WILL BE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE MAKE NO REPRESENTATIONS OR GUARANTEES THAT THE BYO CHANNEL SERVICES WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND WE DISCLAIM ANY LIABILITY RELATING THERETO.
b. WE MAKE NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES THAT USE OR RESULTS OF THE USE OF THE BYO CHANNEL SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED OR WITHOUT ERRORS. WITHOUT PRIOR NOTICE, WE MAY MODIFY, SUSPEND, OR DISCONTINUE THE BYO CHANNEL SERVICES (INCLUDING ANY CONTENT) OR YOUR USE OF THEM. WHENEVER WE ELECT TO MODIFY, SUSPEND, OR DISCONTINUE THE BYO CHANNEL SERVICES, IT WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY.
c. YOU ACKNOWLEDGE THAT YOUR SUBMISSION OF ANY INFORMATION TO US IS AT YOUR OWN RISK. WE DO NOT ASSUME ANY LIABILITY TO YOU WITH REGARD TO ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
d. YOU UNDERSTAND THAT YOU MAY ENCOUNTER OFFENSIVE, INDECENT OR OTHER OBJECTIONABLE CONTENT WHEN USING THE BYO CHANNEL SERVICES. WE WILL HAVE NO LIABILITY TO YOU FOR ANY SUCH CONTENT.
e. SOME OF THE CONTENT, PRODUCTS, AND SERVICES AVAILABLE THROUGH THE BYO CHANNEL SERVICES MAY INCLUDE MATERIALS THAT BELONG TO THIRD PARTIES. YOU ACKNOWLEDGE THAT WE ASSUME NO RESPONSIBILITY FOR SUCH CONTENT, PRODUCTS OR SERVICES.
f. IN THE EVENT OF ANY FAILURE OF THE APPLICATIONS FOR APPLE DEVICES TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY APPLE, AND APPLE WILL REFUND THE PURCHASE PRICES FOR THE APPLICATION TO YOU, IF APPLICABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE BYO CHANNEL SERVICES OF THE APPLICATIONS FOR APPLE DEVICES, AND ANY OTHER CLAIMS, LOSSES, LIABILITY, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY WILL BE OUR SOLE RESPONSIBILITY.
10. LIMITATION OF LIABILITY.
a. IN NO EVENT WILL WE BE LIABLE TO YOU FOR INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, CORRUPTION OF FILES, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OTHERS WILL CREATE A WARRANTY AND NEITHER YOU NOR ANY THIRD PARTY MAY RELY ON ANY SUCH INFORMATION OR ADVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY OR MAY NOT APPLY TO YOU.
b. OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY YOU FOR THE APPLICABLE BYO CHANNEL SERVICES AT ISSUE.
11. INDEMNITY. YOU WILL INDEMNIFY AND HOLD US AND OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY SUITS OR CLAIMS ARISING OUT OF (A) YOUR BREACH OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY INFRINGEMENT BY YOU OF THE COPYRIGHT OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; OR (B) YOUR USE OF THE BYO CHANNEL SERVICES. YOU AND WE ACKNOWLEDGE THAT IN THE EVENT OF ANY THIRD PARTY CLAIM THAT THE APPLICATIONS FOR APPLE DEVICES OR YOUR POSSESSION AND USE OF THE APPLICATIONS FOR APPLE DEVICES INFRINGES THAT THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, WE, NOT APPLE, WILL BE SOLELY RESPONSIBLE FOR THE INVESTIGATION, DEFENSE, SETTLEMENT AND DISCHARGE OF ANY SUCH INTELLECTUAL PROPERTY INFRINGEMENT CLAIM.
12. DISPUTE RESOLUTION.
a. Governing Law. This Agreement, including all claims relating to or arising hereof or breach thereof, whether sounding in contract, tort, or otherwise, will be governed and construed in accordance with the laws of the state of California, excluding its choice-of-law principles.
b. Applicability of Section. The terms of this section 12 will apply to all disputes that may arise out of, are connected with, or relate to this Agreement or the BYO Channel Services, subject only to the following exceptions: (1) if we reasonably believe that you have in any manner acted or failed to act in any manner that may cause harm to us or any third party, we may seek injunctive or other appropriate relief in any court of competent jurisdiction; or (2) any dispute may, at the option of the claiming party, be resolved in small claims court in Los Angeles County, California, provided that all claims by all parties in the dispute (i) fall within the jurisdiction of the small claims court, and (ii) were unsuccessfully resolved through the Informal Resolution procedure required in section 12(c) below. Furthermore, in no event will the terms of this section limit our ability to investigate complaints or reported violations of this Agreement, or to take any action we deem necessary and appropriate to mitigate actions against us, including reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties such as music rightsholders.
c. Informal Resolution. If you have any dispute with us or any related third party, arising out of, relating to, or connected with this Agreement or the BYO Channel Services, you agree to contact us directly and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account); and give us thirty (30) days from the date of filing your written description with us within which to resolve the dispute to your reasonable satisfaction. If we do not resolve the dispute through good faith negotiations under this informal process, you may pursue the dispute in accordance with the arbitration agreement below.
d. Arbitration Agreement. Any claims by us, or claims by you that are not resolved by the Informal Resolution procedure described in section 12(c) above, arising out of, relating to, or connected with this Agreement or the BYO Channel Services must be asserted individually in binding arbitration at a mutually agreed location in Los Angeles County, California, administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (including utilizing desk, phone, or video conference proceedings where appropriate and permitted to mitigate costs of travel). This Agreement and each of its parts evidence a transaction involving interstate commerce, and the Federal Arbitration Act (9 U.S.C. Â§ 1 et seq.) will apply in all cases and govern the interpretation and enforcement of the arbitration rules and arbitration proceedings. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. In addition to and notwithstanding the terms stated above, the following will apply to your disputes: (1) the arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including any claim that all or any part of this Agreement is void or voidable; (2) the arbitrator will not have the power to conduct any form of class or collective arbitration, nor join or consolidate claims by or for individuals; and (3) you hereby irrevocably waive any right you may have to a court trial (other than small claims court as provided above) or to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit, arbitration, or other proceeding against us or related third parties arising out of, relating to, or connected with this Agreement.
The arbitration proceeding and the results thereof will be kept confidential by each party and not used for any purpose other than a party exercising its rights and fulfilling its obligations with respect to the other party; provided, however that either party may disclose the existence and results of the proceeding: (1) as required by law, rule, or regulation; (2) to its accountants, attorneys, and other fiduciaries; and (3) to an arbitrator or third party who has exercised its rights under this section 12 for use as persuasive authority in other proceedings brought pursuant to this section 12.
If the class action waiver in this section 12(d) is found to be unenforceable in arbitration or if the entirety of this section 12(d) is found to be unenforceable, then the entirety of this section 12(d) shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue of State and Federal courts located in Los Angeles County, California, to resolve any dispute, claim, or controversy that arises in connection with this Agreement the BYO Channel Services.
e.Limitation of Actions. Regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of the BYO Channel Services, must be filed within twelve (12) months of the date the facts giving rise to the suit were known or should have been known by you, or forever be barred.
13. GENERAL INFORMATION.
a. You will be responsible for providing the DSL, cable modem and any other hardware and software necessary to use the BYO Channel Services.
b. We or our business partners may present advertisements or promotional materials via the BYO Channel Services. Your dealings with, or participation in promotions of any third-party advertisers via the BYO Channel Services are solely between you and such third party and your participation is subject to the terms and conditions associated with that advertisement or promotion. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties via the BYO Channel Services.
c. The BYO Channel Services may present links to third-party web sites or third-party services not owned or operated by us. We are not responsible for the availability of these third-party sites or services or their contents. You agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with your use of or reliance on any content of any such third-party site or services or goods or services available through any such third-party site or service.
d. The BYO Channel Services are owned or licensed by us and are protected by United States copyright laws and international treaty provisions. You will not sublicense, assign, or transfer the license granted to you under this Agreement. Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations in violation of the provisions of this Agreement is void.
e. We may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email, mobile text message, written or hard copy notice, or through conspicuous posting of such notice on Site, as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to you, provided that you may opt out of certain means of notification as described in this Agreement.
f. We, not Apple, are responsible for addressing any claims of the end-user or any third party relating to the Applications for Apple Devices or your possession and/or use of the Applications for Apple Devices, including, but not limited to: (i) product liability claims; (ii) any claim that any Application for Apple Devices fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
g. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND WILL BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER ACKNOWLEDGE THAT THIS AGREEMENT REPRESENTS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND US AND THAT IT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN YOU AND US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
More questions? Visit our Contact Us section.