IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW.
Last Updated: April, 08, 2019
The “MSGN Family” means and includes MSG Networks Inc., MSGN Holdings, L.P. and each of their respective parent companies, subsidiaries, divisions, affiliated entities and business units as may change from time to time (including, without limitation, MSG Network, MSG Plus and MSGN Interactive, LLC).
The Terms apply regardless of the device used to access the Services, including without limitation a personal computer, mobile device, consumer electronics device, or any other technology or software known today or developed in the future.
2. ACCEPTANCE OF TERMS
BY CLICKING “ACCEPT” OR “REGISTER” OR ANY SIMILAR ACTION, CONNECTING TO THE SERVICES THROUGH A THIRD PARTY SUCH AS FACEBOOK (OR A SIMILAR THIRD PARTY OPTION), USING OR ACCESING THE SERVICES, OR DOWLOADING, INSTALLING OR USING ANY OF THE SERVICES IN ANY WAY, YOU, YOUR HEIRS, AND ASSIGNS (COLLECTIVELY, “YOU”) AGREE TO BE BOUND BY THESE TERMS.
3. MODIFICATION TO TERMS
Except as explicitly described in Section 24 (Arbitration and Class Action Waiver), MSGN reserves the right, at its sole discretion, to modify or replace the Terms at any time. You shall be responsible for reviewing and becoming familiar with any such modifications. Any changes will be incorporated into the Terms and you should check the Terms periodically for updates. Except as explicitly described in Section 24 (Arbitration and Class Action Waiver), changes will be effective immediately unless otherwise provided. Use of the Services by you following such modification constitutes your acceptance of the Terms as modified.
Access to and use of the Services is available only to individuals who are at least 13 years old and can form legally binding contracts under applicable law. By accessing or using any of the Services, you represent and warrant that you are eligible.
If the Services offer you the option to purchase products or services, you represent and warrant that: (i) you are 18 years of age or older, or the age of majority in the jurisdiction where you live, whichever is older; and (ii) you will abide at all times by these Terms and any other agreements between you and MSGN regarding your use of the Services.
If you do not meet the eligibility requirements of this section, then you are not permitted to use the Services and you agree that you will not use the Services. In addition to any other rights that MSGN may have in law or equity, MSGN reserves the right to suspend or terminate the account of any purported user of the Services that does not meet the foregoing requirements.
6. REGISTRATION, ACCOUNT SECURITY AND DISCLOSURES
You may access some of the Services without registering for an account. You may, however, have the option to create an account when you use the Services. By creating such account, you agree to: (i) provide accurate, current and complete information about yourself as prompted (such information being the “Registration Data”); (ii) maintain the security and confidentiality of the Registration Data; (iii) promptly update the Registration Data to keep it accurate, current and complete; (iv) ensure that others do not use your account; and (v) notify MSGN immediately in the event of unauthorized use of, or any other breach of your Registration Data.
If you provide any Registration Data that is inaccurate, not current or incomplete, or MSGN has reasonable grounds to suspect that such Registration Data is inaccurate, not current or incomplete, MSGN may deny you access to areas requiring registration or terminate your account, at its sole discretion. You agree that MSGN is not liable for any loss or damage resulting from your failure to maintain the confidentiality of your account as provided herein. MSGN may assume that any communications MSGN receives under your password have been made by you.
You also may be asked for credentials, such as a user name and password, to demonstrate that you are a subscriber to a particular Pay TV Provider (as defined below) (“Subscription Data”). You agree that you are the subscriber to the applicable Pay TV Provider’s service and that you are responsible for the security and confidentiality, and any misuse of, the Subscription Data. You are responsible for all activity under your account that is accessed using the Subscription Data, even if the inappropriate activity was committed by a friend, family member, guest, employee or any other person with access to the Subscription Data.
You acknowledge and agree that MSGN is authorized to act on instructions received through use of your username and password (and/or the Subscription Data, if applicable), and that MSGN may, but is not obligated to, deny access or block any transaction made through use of your username and password (and/or Subscription Data, if applicable) without prior notice if we believe in our sole discretion such information is being used by someone other than you, or for any other reason.
7. ACCESS TO THE SERVICES
You must provide at your own expense the equipment, Internet connections or devices and/or service plans, which may include, without limitation, subscriptions to video services from your cable, satellite, telco or other provider of video programming services (each a “Pay TV Provider”), as may be required to access and/or use the Services. MSGN does not guarantee that the Services or all portion(s) thereof can be accessed on all devices or wireless service plans, or (to the extent a subscription to video services from a Pay TV Provider is required) in connection with all Pay TV Providers. MSGN does not guarantee that all Services are or will continue to be available in all geographic locations. You acknowledge that when you use the Services, your wireless carrier, Pay TV Provider and/or other telecommunications provider may charge you fees for content, access, data, messaging, and/or other wireless access. Check with your applicable provider(s) to determine if there are any such fees that apply to you.
8. USER CONTENT
The Services may enable you to submit, post, upload, or otherwise make available through the Services content such as video clips, photographs, public messages, ideas, comments and other content (collectively, “User Content”) that may or may not be viewable by other users.
You acknowledge and agree that all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom the User Content originated. You further agree that you have all required rights to submit, post, upload or otherwise use or disseminate such User Content without violation of any third-party rights.
When you submit User Content on or through your use of any of the Services, you grant MSGN a world-wide, perpetual, irrevocable, royalty-free, non-exclusive, and sub-licenseable license to use, copy, distribute, reproduce, modify, edit, adapt, publicly perform, publicly display, translate, create derivative works from, and publish such User Content, in whole or in part, in any format or medium now known or developed in the future, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. Notwithstanding the above, you shall maintain your intellectual property rights in your User Content.
You acknowledge and agree that your user Registration Data and/or Subscription Data may be associated with any User Content that you post. You represent and warrant to MSGN that you own or otherwise control all rights to any User Content you post on or through the Services, and have received any and all consents that may be necessary for the posting of any such User Content and MSGN’s use thereof in accordance with these Terms. You agree that you will indemnify, defend, and hold harmless MSGN for all claims resulting from User Content you post. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.
You acknowledge and agree that MSGN and its designees may or may not, at MSGN’s discretion, pre-screen User Content before its appearance on the Services, but that MSGN has no obligation to do so. You further acknowledge and agree that MSGN reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit or remove any User Content that is contributed to the Services. Without limiting the foregoing, MSGN and its designees shall have the right to remove any User Content that violates the Terms or is otherwise objectionable in MSGN’s sole discretion. You are solely responsible for your interactions with other users of the Service. MSGN reserves the right, but has no obligation, to monitor disputes between you and other users and to resolve such disputes in its sole judgment.
You acknowledge and agree that MSGN does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content. You understand that by using the Services, you may be exposed to User Content that you may consider offensive or objectionable. You also acknowledge that MSGN is a provider of an interactive computing service as set forth in the Communications Decency Act, 47 U.S.C. §230. MSGN expressly reserves its rights to not be treated as the publisher or speaker of any information provided by another information content provider on or through the Services.
9. CODE OF CONDUCT
You promise not to use the Services for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably intended by MSGN. By way of example, and not as a limitation, you agree:
• that you will not abuse, harass, impersonate, intimidate or threaten other users.
• that you will not post any content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification.
• that you will not post any content that is unlawful, harmful, tortious, defamatory, libelous, obscene, or invasive of another’s privacy.
• that you will not post any content nor make available through the Services any information that infringes any intellectual property, privacy, publicity or other proprietary rights of any other person or entity.
• that you will not copy, download (other than through page caching necessary for personal use, downloading a mobile application, or as otherwise expressly permitted by these Terms), modify, distribute, transmit, display, perform, reproduce, broadcast, duplicate, publish, license, create derivative works from, or offer for sale any content or other information contained on or obtained from or through the Services, by any means except as provided for in these Terms or with the prior written consent of MSGN.
• that you will not scrape, access, monitor, index, frame, link, or copy any content or information on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or using any method of access other than manually accessing the publicly-available portions of the Services through a browser or accessing the Services through any approved mobile application or API.
• that you will not violate the restrictions in any robot exclusion headers of the Services, if any, or bypass or circumvent other measures employed to prevent or limit access to the Services.
• that you will not post material that advocates illegal activity or discusses illegal activities with the intent to commit them (in either case as determined by MSGN in its sole discretion).
• that you will not post or otherwise make available any material that contains any software, device, instructions, computer code, files, programs and/or other content or feature that is designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment (including without limitation any time bomb, virus, software lock, worm, self-destruction, drop-device, malicious logic, Trojan horse, trap door, “disabling,” “lock out,” “metering” device or any malicious code).
• that you will not post or do anything that could disable, overburden, or impair the proper working of the Services.
• that you will not post material that impedes or otherwise prohibits communication; disrupts the discussion including, without limitation, using fan names in topical boards that are offensive to the topic, the team, the sport and/or its fans, and repeatedly posting off-topic messages in a topical message board.
• that you will not post, utilize or otherwise make available any other party’s intellectual property unless you have the right to do so, whether through an assignment of rights, use waiver, license, fair-use exception, or under generally accepted news practices.
• that you will not post any trade secrets or other confidential or proprietary information, or post any material that you do not have a right to make available under any law or under contractual or fiduciary relationships, including but not limited to inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements.
• that you will not falsely state or otherwise misrepresent your affiliation with a person or entity, or impersonate any person or entity in a manner that does not constitute parody.
• that you will not through misrepresentation or otherwise, solicit personal or sensitive information from other users such as address, credit card or financial account information, or passwords.
• that you will not violate the law or encourage conduct that would constitute a criminal offense or give rise to civil liability.
• that you will not download or use the Services if you are under the age of 13, regardless of any age rating that is given to the Services by any third party.
• that you will deny access to the Services to children under the age of 13, and you will monitor the use of Services so that it may not be used by children under the age of 13.
• that you will be responsible for any use of your credit card or other payment instrument in the Services by anyone under the age of 18.
• that you will use the Services for personal and non-commercial purposes only.
• that you will not use the Services to advertise, solicit or transmit commercial advertisements, including without limitation junk e-mail, spam, spim, or any other unsolicited messages regardless of the medium (e.g., email, text, SMS, chat, etc.)
• that you will use the Services only for lawful purposes. This means that you will not use the Services to directly or indirectly violate any applicable law, rule or regulation or use the Services in any manner that would promote, aid or abet the violation of any applicable law, rule or regulation.
• that you will not transfer, sell or trade the Services to anyone without written permission from MSGN.
• that you will not sell or otherwise transfer your Registration Data or Subscription Data.
• that you will not use or access a version of the Services that has been transferred, sold or traded from another user without written permission from MSGN, except as permitted by these Terms.
• that you will not use the Services a way that violates these Terms, any Other Governing Agreement or any guidelines or policies posted by MSGN.
• that you will not use the Services in a way that interferes with any other party’s use and enjoyment of the Services.
Violation of this Code of Conduct may result in the removal of your content from the Services and/or the canceling of your account or right and ability to use the Services. You acknowledge and agree that MSGN may in its sole discretion remove any User Content, block access to the Services or the content therein, and terminate any account at any time for any reason or no reason. To report abuse of the Terms, please contact us at email@example.com.
10. LIMITED LICENSE GRANT
This section sets forth your limited license to use the Services (“License”). The Services are licensed to you, not sold.
A. Grant. Through your access, use, downloading, and/or installation of the Services, you are acquiring and MSGN grants you a personal, limited, non-exclusive, non-transferable license to install, use and access the Services for your non-commercial use as set forth in this License. Your acquired rights are subject to your compliance with this License. Any commercial use is prohibited. You are expressly prohibited from sub-licensing, renting, leasing, transferring or otherwise distributing the Services or any rights to use the Services (including, without limitation, your Registration Data, Subscription Data and/or any other similar information). The term of your License shall commence on the date that you install or otherwise access or use the Services, and shall end on the earlier of the date that you dispose of the Services, or MSGN’s termination of this License.
B. Further Restrictions. Your right to use the Services is limited to the license grant above, and you may not otherwise copy, display, seek to disable, distribute, perform, publish, modify, transfer, create works from, or use the Services or any component of it, except as expressly authorized by MSGN. Unless expressly authorized in writing by MSGN, you are prohibited from making the Services (and/or a copy of the Services) available on or over a network where it could be used and/or downloaded by multiple users. You may not remove or alter any of MSGN’s trademarks and/or logos, any legal notices included in the Services and/or any related assets. Your right to use the Services is also predicated on your compliance with any applicable terms of agreements you have with third parties when using the Services.
C. Reservation of Rights. You have obtained a license to the Services and your rights are subject to this License. Except as expressly licensed to you herein, MSGN and its licensors reserve all right, title and interest in the Services (including, without limitation, all video, footage, characters, storyline, images, photographs, animations, statistics, graphics, music, text, and any other materials in the Services), and all associated copyrights, trademarks, and other intellectual property rights therein. This License is limited to the intellectual property rights of MSGN and its licensors in the Services and does not include any rights to other patents or intellectual property. Except to the extent permitted under applicable law, you may not decompile, disassemble, or reverse engineer the Services, or any component thereof, by any means whatsoever. You may not remove, alter, or obscure any product or brand identification, copyright, or other intellectual property notices in the Services. All rights not expressly granted herein are reserved by MSGN.
D. Termination. This License is effective until terminated. Your rights under this License will terminate immediately and automatically without any notice from MSGN if you fail to comply with any of provision of these Terms. Promptly upon termination, you must cease all use of the Services and destroy all copies of the Services in your possession or control. Termination will not limit any of MSGN’s other rights or remedies under these Terms, at law or in equity. Sections 4, 6, 8, 10(D), and 11-26, and any supplemental terms of this License shall survive termination or expiration of this License for any reason.
11. PURCHASES; AVAILABILITY; FEES
The provisions of this Section shall apply in the event and to the extent that functionality to purchase products or services is made available to you by or through the Services:
A. Purchases; Order Processing. You may purchase products or services using the Services if you are 18 years of age or older, or the age of the majority in the jurisdiction where you live, whichever is older. You agree to pay in full all prices and fees (including, without limitation, all applicable taxes) for any purchases you, or anyone using your account, make using the Services, via the credit, debit or charge card or other payment means acceptable to MSGN that you provide concurrently with your order or is associated with your account. If payment is not received by MSGN from your credit, debit or charge card issuer or its agents or other payment service provider, you agree to promptly pay all amounts due upon demand by MSGN. MSGN may, in its sole discretion, choose to not process or to cancel your order in certain circumstances. This may occur, for example, when the product you wish to purchase is out of stock or is unavailable, or if MSGN suspects the request is fraudulent. MSGN will either not charge you or refund the charges for orders that MSGN does not process or cancels.
B. Prices; Product Descriptions. MSGN may revise any or all of the fees and prices associated with products or services at any time for any or no reason. Further, MSGN does not guarantee that product descriptions or other content will be accurate or timely. Verification of information may be required prior to acceptance of any order through the Services. Descriptions and images of, and references to, products or services do not imply our or any of our affiliates’ endorsement thereof. Moreover, MSGN and its third party operational service providers reserve the right, with or without prior notice, for any or no reason, to: (i) change product descriptions, images, and references; to limit the available quantity of any product or service; honor, or refuse to honor, any coupon, coupon code, promotional code or other similar promotions; and/or refuse to provide any visitor to, or use of the Services with any product or service.; (ii) bar you and/or any other user from conducting any or all transaction(s); and/or (iii) refuse to provide you and/or any other user with any product. Further, if MSGN terminates your use of or registration to the Services because you have breached these Terms, you shall not be entitled to a refund of any unused portion of any fees, payments or other consideration.
C. Order Changes and Cancellations. MSGN CANNOT CHANGE OR CANCEL AN ORDER ONCE IT HAS BEEN PROCESSED AND THEREFORE, YOU WILL REMAIN RESPONSIBLE FOR ALL FEES ASSOCIATED WITH ANY SUCH ORDER.
D. Returns and Exchanges. UNLESS OTHERWISE STATED IN AN MSGN REFUND AND EXCHANGE POLICY, ALL SALES ARE FINAL. ANY AND ALL PRODUCTS OR SERVICES PURCHASED VIA THE SERVICES ARE NOT ELIGIBLE FOR RETURN OR EXCHANGE. Price and availability of any product or service offered via the Services is subject to change without notice. Refunds and exchanges shall be subject to MSGN’s refund and exchange policies, as may be made available by MSGN and updated by MSGN from time to time. You agree to pay all charges that may be incurred by you or on your behalf through the Services, at the price(s) in effect when such charges are incurred, including all shipping and handling charges.
E. Your Representations for Purchases. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT MEANS USED BY YOU OR THROUGH YOUR REGISTRATION DATA OR SUBSCRIPTION DATA TO PURCHASE ANY SUCH PRODUCT AND/OR SERVICE.
12. EMAILS AND OTHER COMMUNICATIONS FROM MSGN
You may receive certain commercial communications from MSGN and/or the MSGN Family. You understand and agree that these communications are part of your use of the Services, and that you may opt out of receiving these communications at any time by either using the unsubscribe functionality in such communications or sending an email to firstname.lastname@example.org.
13. LOCATION AND PUSH NOTIFICATIONS AND OTHER TECHNOLOGIES
The Services also may make use of push notifications to devices that support the transmission of such notifications or alerts. Push notifications are used to send notification messages to you regarding offers, products, events, and other promotions and related alerts, as well as informational and/or administrative messages. After downloading the Services, you may be asked to accept or deny push notifications. If you deny, you will not receive any push notifications. If you accept, push notifications will be automatically sent to you. If you no longer wish to receive push notifications from the Services, you may opt out by changing your notification settings on your device. The device manufacturer, not MSGN, controls these notification settings.
The Services may provide links to third-party websites or resources, such as those that sell tickets. Because MSGN has no control over such sites and resources, you acknowledge and agree that MSGN is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that MSGN shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources.
15. UPDATES TO THE SERVICES
You agree that the Services may automatically download and install updates, upgrades and additional features that MSGN deems reasonable, beneficial to you and/or reasonably necessary. You acknowledge and agree that any obligation MSGN may have to support the previous version(s) of any Service(s) may be ended upon the availability of the update, upgrade and/or implementation of additional features. This License shall apply to any updates, upgrades and/or additional features that are not distributed with a separate license or other agreement.
16. COPYRIGHT COMPLAINTS/DIGITAL MILLENNIUM COPYRIGHT ACT
MSGN has a policy of, in appropriate circumstances and at its discretion, terminating the accounts of users who infringe the intellectual property of others, including accounts of repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide MSGN’s Copyright Agent a notice containing the following information:
A. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that has allegedly been infringed;
B. identification of the copyrighted work or other intellectual property that you claim has been infringed, or, if multiple copyrighted works at a single online location are covered by a single notification, a representative list of such works at that location;
C. 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;
D. your address, telephone number, and email address;
E. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
F. a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
You may send your claims of copyright or other intellectual property infringement to MSGN’s Copyright Agent at the following address:
MSGN Holdings, L.P.
11 Pennsylvania Plaza, 3rd Floor
New York, NY 10001
17. CLOSED CAPTIONING OF VIDEO PROGRAMMING
If you have any questions, concerns or complaints regarding the closed captioning of video programming on the Services, please contact us by email at email@example.com or write to us at MSGN Holdings, L.P., 11 Pennsylvania Plaza, 3rd Floor, New York, New York 10001, Attn: Digital Products Department, with a copy to Legal Department, at the same address.
18. INDEMNIFICATION AND RELEASE
By using the Services, you agree to indemnify, defend (at MSGN’s option) release and hold harmless MSGN, each member of the MSGN Family and each of their respective parents, subsidiaries, affiliates, partners, sponsors, licensees, agents, successors and assigns, as well as the officers, directors, employees, shareholders and representatives of any of the foregoing entities from and against any claims, liabilities, damages, losses, actions, costs and/or expenses (including without limitation reasonable legal and accounting fees, costs, judgments and/or amounts paid in settlement), of any kind, arising out of or in any way connected with (i) your breach or violation of these Terms (including without limitation the Code of Conduct); (ii) your User Content; (iii) your interaction with any other users; or (iv) any claims made by any third party in connection with your use of the Services, the receipt, ownership, use or misuse of any products or services made available on or through the Services.
MSGN reserves the right, at our own expense to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold MSGN, each member of the MSGN Family and each of their respective parents, subsidiaries, affiliates, partners, co-sponsors, and agencies, as well as the officers, directors, employees, shareholders and representatives of any of the foregoing entities, harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your breach or violation of these Terms (including without limitation the Code of Conduct).
If you are a California resident, you waive California Civil Code Section 1542, which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
19. WARRANTY DISCLAIMERS
THE SERVICES AND ALL RELATED CONTENT, PRODUCTS, SERVICES AND MATERIALS PROVIDED OR MADE AVAILABLE ON OR THROUGH THE SERVICES ARE PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. MSGN, THE MSGN FAMILY AND ITS AND THEIR RESPECTIVE LICENSORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AND REPRESENTATIVES (COLLECTIVELY “MSGN” FOR PURPOSES OF THIS SECTION AND SECTION 20) DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. MSGN DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT THE SERVICES WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER SERVICES OR EQUIPMENT; THAT ANY ERRORS IN THE SERVICES WILL BE CORRECTED; OR THAT THE SERVICES WILL BE AVAILABLE FOR REINSTALLATION TO THE SAME OR MULTIPLE DEVICES OR EQUIPMENT. NO ORAL OR WRITTEN ADVICE PROVIDED BY MSGN, APPLE INC. (“APPLE”), GOOGLE INC. OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
20. LIMITATION ON LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL MSGN BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE FAILURE OR MALFUNCTION OR ANY OTHER FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, THE LICENSE, OR THE SERVICES WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MSGN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEMDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MSGN’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO MSGN FOR GENERAL USE OF THE SERVICES DURING THE TERM OF YOUR USE OF THE SERVICES.
THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO NEW JERSEY RESIDENTS.
21. OUR PROPRIETARY RIGHTS
All title, ownership and intellectual property rights in and to the Services are owned by MSGN, another member of the MSGN Family or its or their respective licensors. You acknowledge and agree that the Services contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by MSGN, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services, in whole or in part.
22. FORCE MAJEURE
The failure of MSGN to comply with any provision of these Terms due to any cause outside MSGN’s reasonable control, including, without limitation, an act of God, hurricane, fire, flood, earthquake or other natural disaster, war or other military action, civil disturbance, riot, terrorism, act of public enemy, strikes or labor disputes, failure of essential services (e.g. power failures), actions of governmental authorities outside of the control of MSGN (excepting compliance with applicable codes and regulations) or other force majeure event will not be considered a breach of these Terms.
MSGN reserves the right at any time to modify or discontinue, temporarily or permanently, the Services or associated services (or any part thereof), with or without notice. You agree that MSGN shall not be liable to you or any third party for any modification, suspension or discontinuance of the Services or associated services.
24. ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS
A. Federal Arbitration Act. The parties agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
B. Initial Dispute Resolution. Most disputes can be resolved without resort to litigation. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with MSGN, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. To commence this procedure, you agree to contact us by sending written notice to us at MSGN Holdings, L.P., 11 Penn Plaza, 3rd Floor, New York, NY 10001, Attn: Legal Department, or MSGN may contact you using the last available information it has for you.
C. Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then the parties agree to resolve by arbitration subject to the provisions in this Section 24. Specifically, all claims arising out of or relating to these Terms (including its formation, performance, and breach), the parties’ relationship with each other, and/or your download of, access to, or use of the Services shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS rules in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to any claim that all or any part of these Terms is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To start an arbitration, you must do the following: (A) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover. You may find a copy of a Demand for Arbitration at www.jamsadr.com; (B) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 620 Eighth Ave. (NY Times Building), 34th Floor, New York, NY 10018; and (C) Send one copy of the Demand for Arbitration to us at MSGN Holdings, L.P., 11 Penn Plaza, 3rd Floor, New York, NY 10001, Attn: Legal Department.
You will be required to pay $250 to initiate an arbitration against us. If the arbitrator finds the arbitration to be non-frivolous, we will pay all other filing and arbitrator fees for the arbitration. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration may take place at any reasonable location within the United States convenient for you. For residents outside the United States, arbitration shall be initiated in the State of New York, United States of America.
Residents of the United States and those who reside outside the United States and we further agree to submit to the personal jurisdiction of any federal or state court in the Borough of Manhattan, New York, NY in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
D. Class Action Waiver. The parties further agree that the resolution of any disputes between the parties shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND MSGN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
E. Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through initial dispute resolution or binding arbitration, either party may bring an action in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
F. 30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to firstname.lastname@example.org with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of your first download of, access to, or use of the Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, we also will not be bound by them.
G. Changes to this Section. MSGN will provide 60-days’ notice of any changes to this section. Changes will become effective on the 60th day, and will apply prospectively only to any claims arising after the 60th day. If a court or arbitrator decides that this subsection on “Changes to this Section” is not enforceable or valid, then this subsection shall be severed from the Section entitled Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Arbitration and Class Action Waiver (or similarly named) section in existence after you first downloaded, accessed, or used the Services.
H. Survival. This Arbitration and Class Action Waiver section shall survive any termination of your account or the Services.
25. GOVERNING LAW
These Terms and the relationship between you and MSGN shall be governed by the laws of the State of New York without regard to conflict of law provisions. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to these Terms or to any dispute or transaction arising out of these Terms.
26. GENERAL INFORMATION
A. Severability and Survival. If any provision of the Terms is found by an arbitrator or a court of competent jurisdiction to be invalid, illegal or unenforceable under applicable law, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, the remainder of the provision shall be interpreted to achieve as closely as possible the effect of the original term and all other provisions of the Terms remain in full force and effect.
B. Limitation of Liability and Disclaimer of Warranties are Material Terms of these Terms. You agree that the provisions in these Terms that limit liability and disclaim warranties are essential terms of these Terms.
C. Entire Agreement. The Terms constitute the entire agreement between you and MSGN with respect to the Services and supersedes any prior agreements, oral or written, between you and MSGN.
E. Waiver. The failure of MSGN to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
F. Section Titles. The section titles in these Terms are for convenience only and have no legal or contractual effect.
G. Taxes. You are solely responsible for any and all duties, taxes, levies and/or fees (including any sales, use or withholding taxes) imposed on or in connection with these Terms and/or your access to and/or use of the Services, by any authority of any applicable jurisdiction.
H. Export. You agree to abide by U.S. and other applicable export control laws and agree not to transfer the Services to a foreign national or national destination, which is prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You certify that you are not a person with whom MSGN is prohibited from transacting business under applicable law.
I. No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third party beneficiaries to these Terms.
Any information provided to MSGN by e-mail, including but not limited to feedback, data, answers, questions, comments, suggestions, plans, ideas or the like, shall be deemed to be non-confidential, and MSGN assumes no obligation to protect such information from disclosure. The submission of such information to MSGN shall in no way prevent the purchase, manufacture or use of similar products, services, plans and ideas by MSGN for any purpose whatsoever, and MSGN shall be free to reproduce, use, disclose and distribute the information to others without restriction.
If you have any questions, concerns, requests or comments regarding these Terms, we invite you to contact us by email at email@example.com or write to us at MSGN Holdings, L.P., 11 Pennsylvania Plaza, 3rd Floor, New York, New York 10001, Attn: Marketing and Promotions Department and with a copy to Legal Department, at the same address.
27. ADDITIONAL TERMS FROM THIRD PARTY PLATFORM PROVIDERS
If any of the Services that you download, access and/or use runs on Apple’s iOS operating system:
• Your license to use such Services is limited to a non-transferable license to use such Services on an iPhone or other iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
• You acknowledge and agree that:
o these Terms are between you and MSGN, and not with Apple, and Apple is not responsible for the Services and the content thereof;
o Apple has no obligation at all to provide any support or maintenance services in relation to the Services, and if you have any maintenance or support questions in relation to the Services, please contact MSGN, not Apple;
o except as otherwise expressly set forth in these Terms, any claims relating to the possession or use of the Services are between you and MSGN (and not between you, or anyone else, and Apple);
o in the event of any claim by a third party that your possession or use (in accordance with these Terms) of the Services infringes any intellectual property rights, Apple will not be responsible or liable to you in relation to that claim;
o You may not use the applicable Services in any manner that is in violation of or inconsistent with the Usage Rules set forth for such Services in, or otherwise be in conflict with, the App Store Terms of Service;
o MSGN and you acknowledge that MSGN, not Apple, is responsible for addressing any claims of you or any third party relating to the Services or your possession and/or use of such Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and
o although these Terms are entered into between you and MSGN (and not Apple), Apple, as a third party beneficiary under these Terms, will have the right to enforce these Terms against you.
• You represent and warrant that:
o you are not, and will not be, located in any country that is the subject of a United States Government embargo or that has been designated by the United States Government as a “terrorist supporting” country; and
o you are not listed on any United States Government list of prohibited or restricted parties; and
o if any of the Services does not conform to any warranty applying to it, you may notify Apple, which will then refund the purchase price of such Services (if any) to you. Subject to that, and to the maximum extent permitted by law, Apple does not give or enter into any warranty, condition or other term in relation to the Services and will not be liable to you for any claims, losses, costs or expenses of whatever nature in relation to the Services or as a result of you or anyone else using any of the Services or relying on any of its content.
© Copyright 2019 MSGN Holdings, L.P., 11 Pennsylvania Plaza, 3rd Floor, New York, NY 10001. All rights reserved.