Last updated on October 11, 2011.
1 – CHANGES TO TERMS; PERSONAL INFORMATION/PRIVACY
1.1 – CHANGES TO TERMS
UAP may add to, change or remove any part of the Website, including, without limitation, any Content (as defined below) therein, at any time without prior notice to you. UAP also reserves the right to modify this Agreement at any time. When we make changes to the Agreement, we will revise the "Last updated" date at the top of the Agreement and we will notify you of the changes by prominently posting a notice of such changes on the Website or by sending you an email. We encourage you to review this Agreement whenever you visit the Website. By continuing to access and use the Website after any such changes have been posted, you are indicating your acceptance of such changes, even if you have not reviewed the changes.
1.2 – PERSONAL INFORMATION/PRIVACY
2 – PASSWORDS; USE OF SITE; SYSTEM REQUIREMENTS: PROHIBITIONS; INDEMNIFICATION
2.1 – PASSWORDS
If you do not use Third Party Site Log in Credentials to log in to this Website, you will need a password specific to this Website to use certain functions and areas within this Website ("UAP Password"). You are responsible for maintaining the confidentiality of your passwords, and you are responsible for all activities that occur using your passwords. You agree not to share your passwords, let anyone else access your passwords or do anything else that might jeopardize the security of your passwords. You agree to notify UAP if your UAP Password is lost, stolen or disclosed to an unauthorized third party, if there is any unauthorized use of your password on this Website or if you know of any other breach of security in relation to this Website.
2.2 – USE OF SITE AND CONTENT
Subject to your compliance with this Agreement and your payment of any applicable fees, UAP hereby grants you a limited, personal, revocable, non-transferable, non-sublicensable, and non-exclusive license to access the Website and use the audio clips, video clips, files, editorial content, information, text, images, graphics, user and visual interfaces, applications, software, and other materials displayed on the Website (collectively, the "Content"), solely for your personal, non-commercial use. In no event shall the term Content be construed to include any Submissions (as defined in Section 5.2 below). You may not copy, modify, reproduce, publicly display or perform, distribute, or otherwise use the Content except as expressly set forth in this Agreement. You may not remove any copyright or other proprietary notices from any Content. If you breach any term of this Agreement, your authorization to use the Website, Content and your Membership, if applicable, automatically terminates without notice to you, and you must immediately destroy any copies of the Content in your possession.
2.3 - SYSTEM REQUIREMENTS
You must have a broadband Internet connection, Flash 9 and at least one of the following supported browser versions: Internet Explorer 8+, Firefox 3.0+, Safari 3.0+ or Chrome 4+, as well as any software or hardware necessary for the playing of digital audio and video files in order to obtain and make full use of the Website and Content. The minimum display resolution when using the Site and viewing the Content is 1024x768 for computers and 960x480 for mobile devices. UAP reserves the right to change any of the minimum system requirements at any time. For best viewing of the Website and Content, the recommended: (i) computer processor speed is 1GHz Intel/1.5GHz PPC, (ii) RAM is 512MB and (iii) Internet connection speed is 2.5MB per second or faster. In addition, the display resolution for computers can be optimized at 1280x1024.
Notwithstanding the foregoing, any minimum system requirements necessary to obtain and make full use of a specific Product (as defined below) shall be solely specified by MyPlay and subject to any applicable terms and conditions of the MyPlay Terms and Conditions.
2.4 – PROHIBITIONS
You hereby represent and warrant that you will not, and will not induce any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Website, Content or otherwise attempt to gain unauthorized access to any portion or feature of the Website or Content or any other systems or networks connected to the Website, or to any server of UAP or its third party service providers, by hacking, password "mining", or any other illegal means; (b) use any "deep-link", "page-scrape", "robot", "spider", or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Website or Content; (c) use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Website, or with any other person's use of the Website; (d) breach any security measures implemented on the Website or in the Content; (e) track or seek to trace any information on any other person who visits the Website; (f) use the Website or Content for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data; or (g) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to, the Website or Content, or otherwise made available to you in connection with the Website or Content.In addition to any restrictions on the use of Products that are set forth in the MyPlay Terms and Conditions (if any), You further hereby represent and warrant that you will not, and will not include any third party to: (i) copy any Products or share any digital download of a Product (a "File") with other individuals, (ii) attempt to disable or circumvent any security mechanisms used by any Product (including any File) or otherwise attempt to gain unauthorized access to any portion or feature of any Product (including any File) or (iii) use any Product (including any File), in connection with any illegal purpose, or to solicit, facilitate, encourage, condone, or induce any illegal activity, or in violation of this Agreement or any applicable laws, rules or regulations. The commercial use, copying or sharing of Files by any Customer is strictly forbidden, and UAP reserves the right to inform law enforcement agencies of suspected misuse of Files. Customer agrees to download Files only to machines that he or she owns, or to a machine owned by someone else but for which they are the authorized primary user and have permission to download Files. UAP accepts no responsibility for the loss of files, or the loss of earnings, arising from Customer's downloading of Files to machines that they do not own or to which they do not have the authority to download Files.
2.4 – INDEMNIFICATION
You hereby agree to defend, indemnify and hold each of the UAP Parties (as defined in Section 7.1 below) harmless from and against, any and all losses, liabilities, damages, and/or claims (including, without limitation, attorneys' fees and costs) arising from your breach of this Agreement, or otherwise arising from your use or misuse of the Website, Content or Products, including, without limitation, through your participation in, and Submissions (as defined in Section 5.2 below) to, the posting areas on the Website.
3 - MEMBERSHIPS
3.1 – TERMS FOR SALE FOR MEMBERSHIPS
UAP sells, through this Website, yearly "Ultimate Access Pass" memberships to the Website that provide end-user customers with personal access to certain exclusive Content, ticket pre-sales and other member benefits ("Membership(s)"). You may not purchase a Membership for further distribution or resale or for any other commercial or business purpose or share them with any other person. The Membership and all rights and privileges conferred are personal and non-transferable.
3.2 – MEMBERSHIP FEE PAYMENT METHODS; AUTOMATIC MEMBERSHIP RENEWALS AND MEMBERSHIP CANCELLATION POLICY.
UAP accepts credit and debit card payments only (Visa, MasterCard, American Express, and Discover). We will charge your credit or debit card for your first Membership fee on the date that we process your order for your Membership (or if you sign-up for a Membership that includes a free-trial period, we will charge your credit or debit card for your first Membership fee upon the expiration date of the applicable free-trial period). Once your credit or debit card is charged the first Membership fee (or if you sign-up for a Membership that includes a free-trial period, once we have processed your order for your Membership), you will receive a confirmation e-mail notifying you of your ability to access those Membership-only portions of, and Content on, the Website. All sales and payments of Membership fees will be in US Dollars. All Membership fees are non-refundable under any circumstances.
IMPORTANT NOTICE TO CONSUMER: UAP WILL AUTOMATICALLY RENEW YOUR MEMBERSHIP ON EACH YEARLY ANNIVERSARY OF THE DATE THAT UAP FIRST CHARGES YOUR CREDIT OR DEBIT CARD FOR THE FIRST MEMBERSHIP FEE AND, AS AUTHORIZED BY YOU DURING THE MEMBERSHIP SIGN-UP PROCESS, UAP WILL CHARGE YOUR CREDIT OR DEBIT CARD WITH THE APPLICABLE YEARLY MEMBERSHIP FEE AND ANY SALES OR SIMILAR TAXES THAT MAY BE IMPOSED ON YOUR MEMBERSHIP FEE PAYMENT (UNLESS YOU CANCEL PRIOR TO THE ANNIVERSARY DATE). IF YOU SIGN UP FOR A MEMBERSHIP THAT INCLUDES A FREE-TRIAL PERIOD, UNLESS YOU HAVE CANCELLED YOUR MEMBERSHIP PRIOR TO THE EXPIRATION OF THE FREE-TRIAL PERIOD, AS AUTHORIZED BY YOU DURING THE MEMBERSHIP SIGN-UP PROCESS, UAP WILL AUTOMATICALLY CHARGE YOU FOR THE FIRST YEARLY MEMBERSHIP FEE UPON THE EXPIRATION OF THE FREE-TRIAL PERIOD AND FOR EACH SUBSEQUENT YEARLY MEMBERSHIP FEE ON THE YEARLY ANNIVERSARY OF THE DATE OF THE FIRST BILLING. EACH MEMBERSHIP RENEWAL PERIOD IS FOR ONE YEAR. YOU MAY CANCEL YOUR MEMBERSHIP AT ANY TIME BY SENDING AN EMAIL TO CANCEL@ULTIMATEACCESS.COM, PROVIDED THAT ANY MEMBERSHIP FEES CHARGED PRIOR TO THE EFFECTIVE DATE OF CANCELLATION WILL NOT BE REFUNDED, IN WHOLE OR IN PART. UAP REQUIRES A REASONABLE AMOUNT OF TIME TO PROCESS YOUR MEMBERSHIP CANCELLATION REQUEST. IF YOU CANCEL YOUR MEMBERSHIP, YOU WILL ENJOY YOUR MEMBERSHIP BENEFITS UNTIL THE EXPIRATION OF THE THEN-CURRENT YEARLY MEMBERSHIP TERM FOR WHICH YOU HAVE PAID, AND YOUR MEMBERSHIP BENEFITS WILL EXPIRE AT THE END OF THE THEN-CURRENT YEARLY MEMBERSHIP TERM. YOU WILL NOT BE ELIGIBLE FOR A PRO-RATED REFUND OF ANY PORTION OF THE MEMBERSHIP FEES PAID FOR ANY UNUSED DAYS OF THE THEN-CURRENT YEARLY MEMBERSHIP TERM.
3.4 – MEMBERSHIP PRICING
The yearly fee that we will charge you for your Membership will be the price posted on the Website on the date that you submit your order. UAP reserves the right to change prices for Memberships at any time, and does not provide price protection or refunds in the event of promotions or price decreases.
You will be liable for paying any and all applicable sales and use taxes for the purchase of your Membership based on the mailing address that you provide with your order, and you authorize UAP to charge your credit or debit card for any such applicable taxes.
4 – SALE FOR PRODUCTS
IMPORTANT NOTICE TO CONSUMER: EXCEPT FOR THE SALE OF MEMBERSHIPS AS SET FORTH ABOVE IN SECTION 3, ALL COMPACT DISCS, DIGITAL MUSIC FILES AND OTHER MERCHANDISE (COLLECTIVELY AND INDIVIDUALLY, THE "PRODUCT(S)") OFFERED ON THE WEBSITE SHALL BE DIRECTLY ORDERED FROM, SOLD BY AND SUPPLIED BY MYPLAY AND NOT UAP, AND ALL SALES OF PRODUCTS ARE SUBJECT TO THE THEN-CURRENT MYPLAY TERMS AND CONDITIONS (WHICH CAN BE REVIEWED HERE: WWW.MYPLAYDIRECT.COM/TERMSANDCONDITIONS), INCLUDING, WITHOUT LIMITATION, ANY TERMS AND CONDITIONS THAT GOVERN CANCELLATION OF ORDERS, REFUNDS AND/OR SHIPMENT AND DELIVERY OF THE PRODUCTS. YOU ACKNOWLEDGE AND AGREE THAT WHEN YOU ORDER AND PURCHASE ANY PRODUCTS, YOU WILL BE AUTOMATICALLY TRANSFERRED THROUGH A LINK TO A DIFFERENT WEBSITE THAT IS OWNED AND OPERATED BY MYPLAY OR AN AFFILIATED COMPANY OF MYPLAY (LOCATED AT THE FOLLOWING URL: WWW.MYPLAYDIRECT.COM/TONY-BENNETT) EVEN THOUGH IT MAY APPEAR THAT YOU ARE STILL ON THIS WEBSITE, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT SUCH WEBSITE THAT IS OWNED AND OPERATED BY MYPLAY OR AN AFFILIATED COMPANY OF MYPLAY IS A THIRD PARTY SITE (AS THAT TERM IS DEFINED BELOW IN SECTION 6.2) AND SUBJECT TO SECTION 6.2 OF THIS AGREEMENT. YOU FURTHER ACKNOWLEDGE AND AGREE THAT ANY INTERACTIONS AND DEALINGS WITH RESPECT TO ANY PRODUCTS ARE SOLELY BETWEEN YOU AND MYPLAY. UAP IS NOT RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS ANY OBLIGATION TO DEFEND, INDEMNIFY OR HOLD YOU HARMLESS, FOR ANY LOSS, DAMAGE, LIABILITY OR COST OF ANY SORT INCURRED AS A RESULT OF YOUR INTERACTIONS OR DEALINGS WITH MYPLAY. FURTHERMORE, UAP HAS NO OBLIGATION TO BECOME INVOLVED IN ANY RESULTING DISPUTE BETWEEN YOU AND MYPLAY (PROVIDED THAT THE FOREGOING SHALL IN NO WAY LIMIT UAP'S RIGHTS UNDER SECTION 8.1 BELOW).
5 – PROPRIETARY RIGHTS; SUBMISSIONS; COPYRIGHT INFRINGEMENT
5.1 – PROPRIETARY RIGHTS
You hereby acknowledge and agree that UAP or its licensors own all legal right, title and interest in and to the Website and Content, including, without limitation, any and all intellectual property and other proprietary rights (including, without limitation, all patent rights, copyright rights, trademark rights and trade secret rights) which subsist in the Website and Content, whether such rights are registered or unregistered, and wherever in the world those rights may exist. As between you and UAP, all Content, together with the design, structure, selection, coordination, expression, ‘look and feel', and arrangement of the Website and Content, and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Website and in the Content. In addition, the music, musical compositions, lyrics, arrangements, artistic expression, artwork, and other features of the songs and related content contained in the Products are all owned by UAP or its licensors.
Nothing in this Agreement gives you any right to use any of UAP's or its licensors' trade names, trade marks, service marks, logos, domain names, or other distinctive brand features. Any burning or exporting capabilities are solely an accommodation to Customer and shall not constitute a grant or waiver (or other limitation or implication) of any rights of the copyright owners in any audio or video content, sound recording, underlying musical composition, or artwork embodied in any Product (including any File). Customer's purchase of any Products (including any Files) does not transfer any commercial or promotional use rights to Customer. All rights not expressly granted by UAP under this Agreement are reserved. There are no implied rights.
5.2 – SUBMISSIONS
You acknowledge that you are responsible for the information, opinions, messages, comments, photos and other content or material that you submit, upload, post or otherwise make available on or through the Website (each, a "Submission"), including, without limitation, on or through message boards, comment sections or similar fora on the Website, and that you, and not UAP, have full responsibility for each Submission that you make, including its legality, reliability, appropriateness, and trademark and copyright ownership.
You agree that UAP is free to use your Submissions on an unrestricted basis for any purpose, and you hereby grant to UAP a non-exclusive, perpetual, worldwide, irrevocable, fully paid-up, royalty-free, sublicensable (with the right to sublicense through multiple tiers of licensees) license (in any media, whether known or not currently known and invented) to link to, use, reproduce, create derivative works from, syndicate, distribute, transmit, broadcast, and otherwise communicate, publicly display and publicly perform your Submissions, or any portion thereof, without notice or payment of any kind to you or any third party. You hereby waive, and agree not to assert against UAP or any of its successors any moral or similar rights that you may have in the Submissions.
You further agree that you will not upload, post or otherwise make available on or through the Website any material protected by copyright, trademark or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting from any Submission that you make.
You represent and warrant that: (i) you own all Submissions posted by you on or through the Website or otherwise have the right to grant the license to UAP set forth above in this Section 5.2, and (ii) the posting of your Submissions on or through the Website does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, damages and any other monies owing any person or entity by reason of any Submissions posted by you on or through the Website.
When submitting Submissions to, or otherwise using, the Website, you agree not to, without limitation:
• Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
• Use racially, ethnically, or otherwise offensive language;
• Discuss or incite illegal activity;
• Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
• Post anything that exploits children or minors or that depicts cruelty to animals;
• Post any copyrighted or trademarked materials without the express permission from the owner;
• Disseminate any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation;
• Use any robot, spider, scraper or other automated means to access the Website;
• Take any action that imposes an unreasonable or disproportionately large load on our infrastructure; or
• Alter the opinions or comments posted by others on the Website.
This list of prohibitions provides examples and is not complete or exclusive. UAP reserves the right to (a) terminate your access to your account, your ability to post to the Website and (b) refuse, delete or remove any Submissions, with or without cause and with or without notice, for any reason or no reason, or for any action that UAP determines is inappropriate or disruptive to the Website or to any other user of the Website. UAP may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at UAP's discretion, UAP will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Website or on the Internet. These prohibitions do not require UAP to monitor, police or remove any Submissions or other information submitted by you or any other user.
5.3 – COPYRIGHT AND TRADEMARK INFRINGEMENT
UAP respects the intellectual property and other proprietary rights of others and has a policy of removing Content and Submissions from the Website that infringe third party copyrights and/or trademarks and suspending and/or terminating the account or other access of any user who uses the Website in violation of copyright and/or trademark law, and where appropriate, blocking such user's access to the Website. If you are a copyright and/or trademark owner, or an agent thereof, and believe that your work is the subject of copyright and/or trademark infringement and appears on our Website, you may submit a notification to us pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our designated agent (identified below) with the following information in writing: (a) your physical or electronic signature; (b) identification of the copyrighted and/or trademarked work claimed to have been infringed; (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 UAP to locate such material; (d) information reasonably sufficient to permit UAP to contact you, such as an address, telephone number, and, if available, an email address; (e) 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 and/or trademark owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are, or that you are authorized to act on behalf of, the owner of an exclusive right that is allegedly infringed. UAP's designated agent to receive notifications of claimed infringement under the DMCA is set forth below. Only DMCA or other copyright-related or trademark-related notices should be sent to the designated agent; any other communications sent to the designated agent will be destroyed.
Attn: DMCA Agent
48 West 10th Street, Suite B
New York, New York 10011
6 – FEEDBACK; THIRD PARTY WEBSITES
6.1 – FEEDBACK
If you send or transmit any communications, comments, questions, suggestions, or related materials to UAP, whether by letter, email, telephone, or otherwise (collectively, "Feedback"), suggesting or recommending changes to our Website, Content, Products or Memberships, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and UAP is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that UAP is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
6.2 – THIRD PARTY WEB SITES
7 – DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
7.1 – DISCLAIMER OF WARRANTIES
THE WEBSITE, CONTENT, PRODUCTS, MEMBERSHIPS AND SUBMISSIONS ARE FURNISHED TO YOU "AS IS" AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. UAP, ON BEHALF OF ITSELF AND ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS AND THIRD PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE "UAP PARTIES"): (A) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, CONTENT, PRODUCTS, MEMBERSHIPS OR SUBMISSIONS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE WEBSITE, CONTENT OR SUBMISSIONS WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE OR FREE FROM VIRUSES, INTERFERENCE, HACKING, LOSS, OR CORRUPTION; (C) DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, CONTENT, PRODUCTS, MEMBERSHIPS OR SUBMISSIONS WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D) DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WEBSITE, CONTENT OR SUBMISSIONS IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE WEBSITE, CONTENT, PRODUCTS, MEMBERSHIPS AND SUBMISSIONS IS ENTIRELY AT YOUR OWN DISCRETION AND RISK AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE WEBSITE, CONTENT, PRODUCTS, MEMBERSHIPS AND SUBMISSIONS. YOU HEREBY ACKNOWLEDGE THAT THE WEBSITE, CONTENT, PRODUCTS AND SUBMISSIONS MAY INCLUDE CONTENT THAT MIGHT BE JUDGED AS OFFENSIVE, OBJECTIONABLE, OR MAY CONTAIN EXPLICIT LANGUAGE, AND UAP ACCEPTS NO LIABILITY FOR CONTENT THAT YOU OR OTHERS MAY JUDGE TO BE OFFENSIVE, INDECENT, OR OBJECTIONABLE. UAP ACCEPTS NO LIABILITY FOR ANY HEALTH RISKS THAT MAY BE EXACERBATED BY USE OF THE WEBSITE, CONTENT, PRODUCTS AND SUBMISSIONS. THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND UAP. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY UAP OR ANY PERSON ON BEHALF OF UAP SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY. NOTHING IN THIS SECTION 7.1 SHALL EXCLUDE OR LIMIT THE UAP PARTIES' WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
7.2 – LIMITATION OF LIABILITY
IN NO EVENT SHALL ANY UAP PARTY BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE WEBSITE, CONTENT, PRODUCTS, MEMBERSHIPS OR SUBMISSIONS, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF A UAP PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF, NOTWITHSTANDING THE FOREGOING, A UAP PARTY IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE WEBSITE, CONTENT, PRODUCTS, MEMBERSHIPS OR SUBMISSIONS, THE RELEVANT UAP PARTY'S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID UAP FOR THE PRODUCTS OR MEMBERSHIP, AS APPLICABLE; AND (B) THE SUM OF ONE HUNDRED US DOLLARS (US$100). NOTHING IN THIS SECTION 7.2 SHALL EXCLUDE OR LIMIT ANY UAP PARTY'S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH UAP PARTY'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
8 – DISPUTE AND ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW
8.1 - DISPUTE AND ARBITRATION; CLASS ACTION WAIVER
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer's satisfaction by calling our customer service department at 212-228-9937. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction (or if we have not been able to resolve a dispute we have with you after attempting to do so informally), WE EACH AGREE TO RESOLVE THOSE DISPUTES ARISING OUT OF THIS AGREEMENT (OTHER THAN THOSE RELATED TO UAP'S ENFORCEMENT AND PROTECTION OF ITS INTELLECTUAL PROPERTY RIGHTS) THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT INSTEAD OF IN COURTS OF GENERAL JURISDICTION. This includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third party vendors, including, without limitation, MyPlay) whenever you also assert claims against us in the same proceeding.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. The arbitrator must follow this Agreement and can award the same damages and relief that a court can award.
We each also agree that this Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law apply (despite the choice of law provision in Section 8.2 below). ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
Agreement to Arbitrate:
(1) UAP and you agree to arbitrate all disputes and claims between us (other than those related to UAP's enforcement and protection of its intellectual property rights). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including, but not limited to, claims relating to advertising); claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and claims that may arise after the termination of this Agreement. References to "UAP," "you," and "us" include our respective parents, affiliates, subsidiaries, agents, employees, third party vendors, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of services or products under this Agreement or prior agreements between us.
Notwithstanding the foregoing, either party may bring an individual action in small claims court. You agree that, by entering into this Agreement, you and UAP are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive the termination of this Agreement.
(2) A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to UAP should be addressed to: UAP, LLC, Attn: Dawn Olejar, 48 West 10th Street, Suite B, New York, New York, 10011, with a copy to: DLA Piper LLP (US), Attn: Leon Medzhibovsky and Michele Matsubara, 1251 Avenue of the Americas, New York, New York 10020-1104 (collectively, the "Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If UAP and you do not reach an agreement to resolve the claim within forty-five (45) calendar days after the Notice is received, you or UAP may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by UAP or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or UAP is entitled.
(3) After UAP receives Notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee. If you are unable to pay the filing fee, UAP will pay it directly upon receiving a written request from you at the Notice Address. The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879.
All issues are for the arbitrator to decide, including the scope of this arbitration provision, but the arbitrator is bound by the terms of this Agreement. Unless UAP and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Except as otherwise provided for herein, UAP will pay all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse UAP for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules.
(5) The right to attorneys' fees and expenses discussed in Paragraph 4 supplements any right to attorneys' fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys' fees or costs. Although under some laws UAP may have a right to an award of attorneys' fees and expenses if it prevails in an arbitration, UAP agrees that it will not seek such an award.
(6) The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND UAP 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. Further, unless both you and UAP agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific proviso is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
(7) Notwithstanding any provision in this Agreement to the contrary, we agree that if UAP makes any change to this arbitration provision (other than a change to the Notice Address), you may reject any such change and require UAP to adhere to the language in this provision if a dispute between us arises.
8.2 – CHOICE OF LAW
This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of New York, without regard to its conflicts of laws rules. Foreign laws do not apply. Arbitration or court proceedings must be in New York County, New York. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods, and any law based on the Uniform Computer Information Transactions Act (UCITA), are expressly excluded from this Agreement.
9 – ELECTRONIC COMMUNICATIONS; GENERAL TERMS
9.1 – ELECTRONIC COMMUNICATIONS
Whenever you visit our Website or send emails to us, you are communicating with us electronically. For that reason, you also consent to receive communications from us electronically. We will communicate with you by email (if you have provided your email address to us), by posting notices on our Website or by such other means as we may determine from time-to-time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.
9.2– GENERAL TERMS