BALLROOM DANCE CHANNEL, LLC SERVICE AND DANCE LESSONS VIDEO STORE TERMS AND CONDITIONS OF USE
Effective September 20, 2008
This document (the "Agreement") is a legal contract between you and Ballroom Dance Channel, LLC. (“Ballroom Dance Channel” “BDC” or “we” or “us”) that governs your use of Ballroom Dance Channel's websites, online Dance Lessons and Wedding Dance Lessons (“Dance Lessons”) streaming video store, Shopping channel, and services generally available at www.BallroomDanceChannel.com and other Ballroom Dance Channel-controlled, affiliated or partnered websites (together the "Service").
NOTICE
Ballroom Dance Channel may from time to time modify these terms and post a copy of the amended Agreement at http://www.BallroomDanceChannel.com/terms-of-use. If you do not agree to (or cannot comply with) the Agreement as amended, your only remedy is to stop using the Service and not purchase any additional BDC Dance Lessons. You will be deemed to have accepted the Agreement as amended if you continue to use the Service or purchase any additional BDC Dance Lessons after any amendments are posted.
AGE REQUIREMENT
You must be at least 18 years of age to agree to and enter into this Agreement on your own behalf and to register for use of the Service, including the purchase of BDC Dance Lessons. If you are under 18 but at least 13 years of age, you must present this Agreement to your parent or legal guardian, and he or she must check the “Agree to Terms” box during the account registration process to enter into this Agreement on your behalf. Children under the age of 13 may not register for this Service, and parents or legal guardians may not register on their behalf. By checking the box indicating your acceptance to this Agreement, you represent that (i) you have read, understood and agree to be bound by this Agreement and (ii) you are at least 18 years old, either entering into this Agreement for yourself or entering on behalf of your child or a child in your legal care. If you are a parent or guardian entering this Agreement for the benefit of your child, please be aware that you are fully responsible for his or her use of the Service, including all financial charges and legal liability that he or she may incur. If you do not agree to (or cannot comply with) any of these terms and conditions, do not check the acceptance box and do not attempt to access the Service.
DESCRIPTION OF SERVICE
The Service allows you to among other things, access Ballroom Dance Channel's websites and view / listen to dance lessons and purchase streaming videos of Dance Lessons and related digital content and other goods and services from or through the BDC Shop channel ("Materials"), as well as view and participate in public areas, community and social channels. To access certain elements of the Service, you may need to install or activate certain software application, such as applications that allow the playing of streaming video; from time to time, you may also be required to install other software made available through the Service (collectively this software is called the "Client"). You may also need to install certain third-party software. You are responsible for any hardware, systems and/or software program(s) you use and any associated fees and expenses (a) to connect to or use the Internet, and/or (b) other than the Client, to use any Materials. The Service and/or the Materials are only for your personal, non-commercial use and are non-transferable (except as otherwise expressly authorized by Ballroom Dance Channel). By using the Service, you acknowledge and agree that you have no right to provide any files obtained through the Service to any other party or through any other means.
REGISTRATION
To use certain aspects of the Service and Materials and purchase Dance Lessons you may be required to register and provide certain information, including a member (user) name, a password and a valid email address ("Registration Data"). You agree to provide completely accurate Registration Data and to update your Registration Data as necessary to keep it accurate.
You agree that you will not allow others to use your member name, password and/or account and you are solely responsible for maintaining the confidentiality and security of your account. You agree to notify Ballroom Dance Channel immediately of any unauthorized use of your password and/or account. Ballroom Dance Channel shall 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 and hold harmless Ballroom Dance Channel, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of the same.
USE OF SERVICE AND MATERIALS
Service and Materials. The Service and Materials are owned by Ballroom Dance Channel, its business partners, affiliates and/or licensors, as applicable, and are protected by copyright and other intellectual property and rights or publicity laws and your use of them is governed by this Agreement, applicable law, as well as any applicable end-user license agreements. You agree not to use the Service or Materials in a way that would violate any laws or rights and/or infringe the copyright(s) therein. You further agree that the content rights holders that license their musical compositions, performances, choreography, images, publicity, or other rights or content to Ballroom Dance Channel for use in the Service (including Dance Lessons) are intended third-party beneficiaries under this Agreement with the right to enforce the provisions that directly concern their content. You understand that your use of the Service and Materials is subject to the Usage Rules discussed below. You may not authorize, encourage or allow any Materials used or obtained by you to be reproduced, modified, displayed, publicly performed or displayed, broadcast, transferred, distributed or otherwise used by anyone else. You agree to advise Ballroom Dance Channel promptly of any such unauthorized use(s).
Usage Rules. Your access to and/or use of any Materials may be limited by the rules assigned to the Materials by Ballroom Dance Channel ("Usage Rules") and described in this section. You may not attempt (or support others' attempts) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with any Usage Rules or Materials. Ballroom Dance Channel reserves the rights to modify this Agreement and the Usage Rules at any time.
A "Demo" is a portion of the Materials (or Dance Lesson video) or, in some cases, an entire Dance Lesson or promotional video that you can play or perform (and, if applicable, view) directly from and while you are logged on to the Service on a promotional basis at no cost to you. You may play as many Demos as you like. You may not attempt (or support others' attempts) to capture, copy, download or transfer a Demo.
A "Stream" is a video of a Demo or Dance Lesson that you have purchased or licensed for your personal, non-commercial viewing directly from and while you are logged on to Ballroom Dance Channel. You may not attempt (or support others' attempts) to capture, copy, download or transfer a Stream of a Demo or Dance Lesson. Dance Lessons that you have purchased or licensed from us will be available for streaming to you for one year from your date of purchase, however, Ballroom Dance Channel reserves the right to alter this policy and limit or eliminate your ability to stream such Dance Lessons if, for example, your streaming of such Dance Lessons is excessive, or Ballroom Dance Channel generally discontinues streaming Dance Lessons. If we discontinue streaming Dance Lessons within two months of your having purchased such Dance Lessons we will attempt to provide you with an adequate substitute or, at our sole option, refund the purchase price to you.
All Sales Final; Risk of Loss. All sales or licenses of Dance Lessons, Materials and other products via the Service are final and we do not any accept any returns. Your sole remedy with respect to purchased digital Materials that are not successfully delivered due to the fault of Ballroom Dance Channel will be either replacement of such products or refund of the price paid for such content, at Ballroom Dance Channel's sole discretion. If you are unable to complete a the streaming of a Dance Lesson after having reviewed our online help resources, please contact Ballroom Dance Channel’s customer service.
All rights not expressly granted to you in this Agreement are reserved to Ballroom Dance Channel and/or its licensors.
Loss of Rights by Ballroom Dance Channel. Ballroom Dance Channel may at any time lose the right to make certain Materials available. In such event, you will no longer be able to view or perform these Materials. If this occurs you will not be entitled to a refund, however, we will attempt to substitute another Dance Lesson within a reasonable period of time.
Customer Support. Please direct any questions concerning the Service the Materials, billing and/or Usage Rules to a Ballroom Dance Channel customer service representative by visiting www.BallroomDanceChannel.com/ and using the contact us tab fill out the form.
Community, Social or Public Areas. The Service may have features that allow you to post messages and exchange messages with other members (via “Social Areas” "Public Areas" or “Forums”). Ballroom Dance Channel and its business affiliates (such as Ning, for example) may, but are not obliged to, restrict your use of any Social Areas or features, monitor any activity or edit or remove content in Social Areas, or restrict access by other members to your messages. Ballroom Dance Channel takes no responsibility and assumes no liability for any content, materials, messages and the like that you or any other member posts to or views in a Social Area or makes available via a "Public Profile." . Some aspects of the BDC Community are built on the Ning Platform, and are governed by agreements and policies found at the following links: Terms of Service, and Privacy Policy. You should review those Terms of Service and Privacy Policy. You agree to those Terms of Service, and Privacy Policy. All personal information you send or post via Social Areas, including in your Public Profile or any entry on the Ballroom Dance Channel site, becomes public information. Do not disclose your own or any person or entity’s personal and/or confidential information. Beware of predators, scam artists, phishers, etc. Do not provide personal information, such as, real full name, address, phone number, bank and financial information, social security number, etc. You agree not to select a User Name that has already been selected by another user or is (or BDC reasonably believes is) offensive, contains foul language, attacks, harasses or offends another individual or an individual’s belief or faith system or non-traditional lifestyle, is defamatory, is obscene or pornographic, contains any form of advertising, targets or is directed at minors or violates the rights of any person or entity (including but not limited to any patent, trademark, copyright, license or other proprietary right, or right of publicity or privacy). Remember your User Name will be made public. You agree not to select a User Name that includes any personally identifiable information. You agree not to impersonate anyone, including any forum moderators or users. You agree to indemnify and hold harmless Ballroom Dance Channel, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, from and against all claims (as set forth further below), including those resulting from content, messages, materials and the like that you post to any Social Area.
Additional Restrictions. You may not use the Service, including any Public Areas, to transmit, display, perform or otherwise make available any messages, content or materials (i) that are illegal, obscene, threatening, of a "spamming" nature, defamatory, or invasive of privacy; (ii) that constitute political campaigning or commercial solicitation or that contain software viruses or other computer code designed to interfere with the functionality of any computer systems; or (iii) that infringe third-party rights or harm minors in any way. You may not interfere with or disrupt the Service or any networks connected to or by the Service. In addition, you may not use a false email address or otherwise mislead other members as to your identity or to the origin of a message or content. By posting messages, inputting data, or engaging in any other form of communication through the Service, you agree that Ballroom Dance Channel may copy, sublicense, adapt, transmit, publicly perform or display any such content to provide and/or promote the Service and/or to respond to any legal requirement, claim or threat. If Ballroom Dance Channel's use of such content exploits any proprietary rights you may have in such material, you agree that Ballroom Dance Channel has an unrestricted, royalty-free, non-exclusive and perpetual worldwide right do so. You agree that any loss or damage of any kind that occurs as a result of the use of any messages, content or material that you upload, post, transmit, display or otherwise make available through your use of the Service is solely your responsibility.
CHARGES / BILLING
Agreement to Pay. You agree to pay for all Materials and any other items or services that you may purchase or license through the Service and Ballroom Dance Channel may charge your billing payment method for any such payment(s). Ballroom Dance Channel may, in its discretion, post charges to your billing payment method individually or may aggregate your charges with other purchases you make on or through the Service. You are responsible for keeping your account secure and confidential and you will be responsible for any charges that are incurred by any person through your account. All charges will be billed to the billing payment method you designate when you first make a purchase or incur a charge. If any of your billing information changes, you must update that information in the "Payment Information" section of the "My Account" area. If your credit card company or PayPal (or their intermediary service providers) updates your billing information for you by providing revised billing information to us for your existing account, we will use that information to continue to bill your existing account (for example, if you lost your credit card but maintained your Visa® or MasterCard® account with a new account number, Visa or MasterCard may automatically send us your new account number.)
Right to Change Prices. All prices for products within the Service are subject to change by Ballroom Dance Channel at any time without prior notice. Prices in effect when you purchased or licensed a product or Materials will remain if effect for six (6) months.
Taxes. Prices quoted are generally inclusive of any applicable taxes, including sales taxes. Ballroom Dance Channel reserves the right to change this policy at any time too.
Electronic Contracts. You agree that any submissions you make for electronic purchases constitute your intent and agreement to be bound by the terms of and to pay for such purchases. To the extent that such electronic purchases are offered to you by a third party, you acknowledge that Ballroom Dance Channel shall not be responsible or liable to you for the products or services purchased.
YOUR USE OF BALLROOM DANCE CHANNEL WEBSITES AND WEB-BASED ELEMENTS OF THE SERVICE
You may not use any “spider,” “deep-link,” “page-scrape,” “robot,” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of any Ballroom Dance Channel websites, the Service or any Materials or in any way reproduce or circumvent the navigational structure or presentation of the Service or Materials including to obtain or attempt to obtain any Materials, documents or information through any means not purposely made available through the Service. Ballroom Dance Channel prohibits any such activity, including via software and other electronic means. You may not attempt to gain unauthorized access to any portion or feature of the Service or Materials, or any other systems or networks connected to the Service or to any Ballroom Dance Channel server, or to any of the services offered on or through any Ballroom Dance Channel websites, by hacking, password “mining” or any other illegitimate means.
You may not probe, scan or test the vulnerability of any Ballroom Dance Channel websites and/or the Service or any connected network, nor breach any of Ballroom Dance Channel’s security or authentication measures. You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to any Ballroom Dance Channel website or the Services, or exploit the Service or any service or information made available or offered by or through the Site, in any way including where the purpose is to obtain or reveal any third party information. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of Ballroom Dance Channel’s websites, Service or other systems. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Service.
PRIVACY
For additional information regarding Ballroom Dance Channel's use of information collected in connection with the Service, please refer to Ballroom Dance Channel's Privacy Policy, a copy of which is available at http://www.BallroomDanceChannel.com/privacy-policy and which is expressly made part of this Agreement.
COPYRIGHT INFORMATION
General. As noted above, the Service and the Materials contain and/or comprise copyrighted or other proprietary subject matter, and your use of them is governed by this Agreement, certain end-user license agreements, and applicable law.
Notice for Claims of Intellectual Property Violations and Agent for Notice
Ballroom Dance Channel respects the intellectual property rights of others, and it expects you to do the same. If you are a rights holder and specifically know of any materials on or part of the Service, Materials and/or the Client that constitutes copyright infringement, please send a notice to Ballroom Dance Channel Copyright Agent
To file a notice of infringement with us, you must provide a written communication (by regular mail -- not by email, except by prior agreement) that sets forth the items specified below. Please note that you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is infringing your copyrights. In at least one case a company that sent an infringement notification seeking removal of online materials that were protected by the fair use doctrine was ordered to pay such costs and attorneys fees. (See http://www.onlinepolicy.org/action/legpolicy/opg_v_diebold/ The company agreed to pay over $100,000.) Accordingly, if you are not sure whether material available online or through Ballroom Dance Channel infringes your copyright, we suggest that you first contact an attorney.
To expedite our ability to process your request, please use the following format (including section numbers):
- 1. Identify in sufficient detail the copyrighted work that you hold rights to that you believe has been infringed upon (for example, "The copyrighted work at issue is the musical composition or performance of the song ‘The Star Spangled Banner’ by ‘Francis Scott Key’ in the Dance Lesson for the Tango”) or other information sufficient to specify the work that you assert is copyrighted work being infringed.
- 2. Identify the material that you claim is infringing the copyrighted work listed in item #1 above (for example, "The copyrighted work at issue is a Dance Lesson labeled ‘Brazilian Style Tango Advanced Lesson Number 3’ ”).
- 3. Provide information reasonably sufficient to permit us to contact you, including Name, Street Address, Phone Number and email address.
- 4. Provide information, if possible, sufficient to permit us to notify the purported owner/administrator of the allegedly infringing content (email address is preferred).
- 5. Include the following statement: "I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law."
- 6. Include the following statement: "I [swear or affirm], under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am duly authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
- 7. Sign the paper.
- 8. Send the written communication to the following address:
Ballroom Dance Channel, LLC
Attn: Copyright Infringement Notice Agent re Infringement
6221 East Vista Drive
Scottsdale, AZ 85253
Please note that a copy of each legal notice we receive may be sent to a third-party for publication and annotation. As such, your letter (with your personal information removed) may be forwarded to Chilling Effects (http://www.chillingeffects.org) for publication. You can see an example of such a publication at http://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=861. A link to your letter may be displayed in search results in place of the removed content.
Counter Notification
The administrator of an affected site or the provider of affected content may make a counter notification pursuant to sections 512(g)(2) and (3) of the Digital Millennium Copyright Act. When we receive a counter notification, we may reinstate the material in question.
To file a counter notification with us, you must provide a written communication (by regular mail -- not by email, except by prior agreement) that sets forth the items specified below. Please note that you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is not infringing the copyrights of others. Accordingly, if you are not sure whether certain material infringes the copyrights of others, we suggest that you first contact an attorney. A sample counter notification may be found at www.chillingeffects.org/dmca/counter512.pdf.
To expedite our ability to process your counter notification, please use the following format (including section numbers):
- 1. Identify the specific URLs or other unique identifying information of material that the Ballroom Dance Channel has removed or to which the Ballroom Dance Channel has disabled access.
- 2. Provide your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for Maricopa County, Arizona, and that you will accept service of process from the person who provided notification or an agent of such person.
- 3. Include whichever of the following statements is true: "I swear or affirm under penalty of perjury that I have a good faith belief that each search result, message, material, or other item of content identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled,” or “I swear or affirm under penalty of perjury that I have a good faith belief that each search result, message, material, or other item of content identified above does not infringe upon the rights of any copyright holder,” or “I swear or affirm under penalty of perjury that the material identified by the complainant has been removed or disabled at the URL identified and will no longer be shown."
- 4. Sign the paper.
- 5. Send the written communication to the following address:
Ballroom Dance Channel, LLC
Attn: Copyright Infringement Notice Agent re Infringement - Counter Notification
6221 East Vista Drive
Scottsdale, AZ 85253
Notice and Procedure for Making Claims of Trademark Infringement
As a licensee of providers of space for advertisements, and as a provider of space for advertisements Ballroom Dance Channel is not in a position to decide trademark disputes between advertisers and trademark owners. Advertisers are responsible for the words and ad content that they choose to use. Therefore, we encourage trademark owners to resolve their disputes directly with the advertisers, particularly because the advertisers may have similar advertisements on other sites.
As a courtesy to trademark owners, however, we may be willing to perform a limited investigation of reasonable complaints.
Please note: The following procedure applies only to the use of terms that may be trademarks in advertisements, which are clearly marked as sponsored links on our results pages. We do not take action on objections to the use of trademarks in sites that appear in general search results pages. For all such objections please contact the site owner directly and not us.
Trademark Complaint Procedure – Trademark rights in US and Canada
When we receive a complaint from a trademark owner, we may only investigate whether the advertisements at issue are using terms or marks corresponding to the trademarked term or mark in the advertisement's content in a manner which may be confusing to consumers or which might constitute trademark infringement. If the trademark is used in a non-infringing manner, such as to compare products or services such use may not be infringing. If the uses of a trademark owners mark may be infringing, we may require our licensee of search results or our advertiser to remove the trademarked term or mark from the content of the ad and prevent the advertiser from using the trademarked term or mark in ad content in the future. Please note that we will not disable keywords (the words used to return a search result) in response to a trademark complaint unless it is unlawful for an advertiser or search engine to use trademarked terms or marks as keywords, and so far no court has ruled that way. In addition, please note that any such investigation will only affect ads served on or by the Toolbar.
If you are a trademark owner (or represent a trademark owner) and have an objection to an advertiser's use of a term or mark corresponding to your trademark in ad content that is consistent with the foregoing, please provide the following information in numbered format in a signed letter on company stationery:
1. Name of company
2. Contact information (including name, address, telephone number, and email address)
3. For each trademark at issue, you must provide the following information:
o the exact mark (and specify whether it is a design mark or word mark),
o the country in which it is registered,
o the registration number (or indicate you are claiming common law rights in countries where rights are acquired through use).
o confirm that the mark is registered, and not pending (or indicate that the mark is in use, if claiming rights in a common law country)
4. Please indicate if your complaint is:
o A general objection to all advertisers. If so, and if any entities are authorized to use your trademark(s) in their ad content, please list the advertisers contact email and the company name.
o Limited to specific advertisers/advertisements. If so, please list the identity of the advertisement(s) at issue via the URL stated on the bottom line of the ad or other specific identifying information.
5. Include the following statement:
"I have a good faith belief that use of the trademarks described above with the advertisements described above are not authorized by the trademark owner or its agent, nor is such use otherwise permissible under law."
6. Include the following statement:
"I swear or affirm under penalty of perjury that the information in this notification is true and correct, that I am the trademark owner or authorized to act on behalf of the trademark owner as its attorney in fact, and I consent to the jurisdiction of the Federal District Court for Los Angeles County, California regarding any claims that might be brought against Ballroom Dance Channel (StreamCast Networks, Inc.) in connection with trademark infringement being complained of."
7. Your signature.
8. Send this written communication with the above information to the following address:
Ballroom Dance Channel, LLC
Attn: Trademark Notice Agent re Ballroom Dance Channel
6221 East Vista Drive
Scottsdale, AZ 85253
PATENT AND TRADEMARK
All trademarks, service marks, trade names, slogans, logos, and other indicia of origin that appear on or in connection with the Service are the property of Ballroom Dance Channel and/or its affiliates, licensors and/or licensees. You may not copy, display or use any of these marks without prior written permission of the mark owner. The Service and the Client (and portions of them) may be protected under copyright and /or patent law and may be the subject of issued patents and/or pending patent applications.
VIOLATION OF INTELLECTUAL PROPERTY RIGHTS
If Ballroom Dance Channel receives a notice alleging that you have engaged in behavior that infringes Ballroom Dance Channel's or other's intellectual property rights or reasonably suspects the same, Ballroom Dance Channel may suspend or terminate your account without notice to you. If Ballroom Dance Channel suspends or terminates your account under this paragraph, it shall have no liability or responsibility to you, including for any amounts that you have previously paid.
PROMOTIONS AND ADVERTISING
Ballroom Dance Channel and/or its business partners may present advertisements or promotional materials on or through the Service and on any Ballroom Dance Channel Websites. Your participation in any promotional event is subject to the terms and conditions associated with that event. Your dealings with, or participation in promotions of, any third-party advertisers on or through the Service or any Ballroom Dance Channel website are solely between you and such third-party. You agree that Ballroom Dance Channel shall not be 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 on the Service or any Ballroom Dance Channel website.
LINKS TO THIRD-PARTY SITES
The Service and any Ballroom Dance Channel website may present links to third-party websites not owned or operated by Ballroom Dance Channel. Ballroom Dance Channel is not responsible for the availability of these sites or their contents. You agree that Ballroom Dance Channel is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site.
MODIFICATIONS TO SERVICE
Ballroom Dance Channel reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice to you, without any liability to you or to any third party.
REMEDIES
You agree that any unauthorized use of any Ballroom Dance Channel website, the Service, or the Materials, would result in irreparable injury to Ballroom Dance Channel and/or its affiliates or licensors for which money damages would be inadequate, and in such event Ballroom Dance Channel, its affiliates and/or licensors, as applicable, shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against you, without the necessity of posting a bond or undertaking. Nothing contained in this Agreement shall be construed to limit remedies available pursuant to statutory or other claims that Ballroom Dance Channel, its affiliates and/or licensors may have under separate legal authority.
INDEMNITY
You agree to indemnify and hold harmless Ballroom Dance Channel and its agents, employees, representatives, licensors, affiliates, parents and subsidiaries from and against any and all claims, losses, demands, causes of action and judgments (including attorneys' fees and court costs) arising from or concerning your breach of this Agreement and your use of any Ballroom Dance Channel website, the Service, the Tracks, or the Materials and to reimburse them on demand for any losses, costs or expenses they incur as a result thereof.
TERMINATION
Ballroom Dance Channel may in its sole discretion terminate this Agreement or suspend your account at any time without notice to you in the event that you breach (or Ballroom Dance Channel reasonably suspects that you have breached) any provision of this Agreement. If Ballroom Dance Channel terminates this Agreement, or suspends your account for any of the reasons set forth in this paragraph, it shall have no liability or responsibility to you, and Ballroom Dance Channel will not refund any amounts that you have previously paid.
You understand and agree that your cancellation of your account and membership is your sole right and remedy with respect to any dispute with Ballroom Dance Channel.
DISCLAIMERS
LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT YOUR USE OF ANY BALLROOM DANCE CHANNEL WEBSITE, THE SERVICE, CLIENT, AND THE MATERIALS IS AT YOUR OWN SOLE RISK.
THE BALLROOM DANCE CHANNEL WEBSITE(S), SERVICE, MATERIALS AND PRODUCTS (THE "PRODUCTS") ARE PROVIDED "AS IS" AND WITHOUT WARRANTY BY BALLROOM DANCE CHANNEL OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS, ATTORNEYS, AND/OR SUPPLIERS (THE "BALLROOM DANCE CHANNEL ENTITIES"), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE BALLROOM DANCE CHANNEL ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NONINFRINGEMENT. THE BALLROOM DANCE CHANNEL ENTITIES DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY OR OTHERWISE. YOU WILL NOT HOLD ANY BALLROOM DANCE CHANNEL ENTITY RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING (INCLUDING ANY SOFTWARE OR SYSTEMS YOU USE TO ACCESS) THE SERVICE OR USING THE PRODUCTS INCLUDING, BUT NOT LIMITED TO, DAMAGE TO ANY COMPUTER, SOFTWARE OR SYSTEMS OR PORTABLE DEVICES YOU USE TO ACCESS THE SAME, OR TO YOURSELF OR OTHERS (FOR EXAMPLE, AS A RESULT OF VIEWING THE MATERIALS AND UNDERTAKING TO DANCE, INCLUDING YOUR CLUMSINESS, LACK OF RHYTHM OR INABILITY TO DANCE WELL OR AT ALL, AND, THEREFORE, FOR EXAMPLE, YOUR FALLING, TWISTING AN ANKLE, KNEE, HIP, BACK, OR STEPPING ON THE TOES AND FEET OF YOUR DANCE PARTNER (aka “having two left feet”). NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO ANY OF THE BALLROOM DANCE CHANNEL ENTITIES.
UNDER NO CIRCUMSTANCES SHALL ANY BALLROOM DANCE CHANNEL ENTITY BE LIABLE FOR ANY UNAUTHORIZED USE OF ANY BALLROOM DANCE CHANNEL WEBSITE, THE SERVICE, OR MATERIALS.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATIONS AND DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER, ECONOMIC AND NON-ECONOMIC, CAUSED BY OR RELATED TO THE USE OF, OR INABILITY TO USE THE PRODUCTS UNDER ANY CLAIM OR CAUSE OR ACTION WHATSOEVER, OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, SUPPOSED BREACH OF CONTRACT, OR TORT, AND NO BALLROOM DANCE CHANNEL ENTITY SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF THE BALLROOM DANCE CHANNEL ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ARE WAIVING ANY RIGHT YOU MIGHT OTHERWISE HAVE TO MONETARY DAMAGES, INCLUDING STATUTORY, AS WELL AS INJUNCTIVE OR OTHER EQUITABLE RELIEF. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, THE BALLROOM DANCE CHANNEL ENTITIES SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EXCEED US$5.00.
APPLICABLE LAW
The substantive laws of the State of Arizona in the United States of America, without regard to conflict of laws principles, shall govern all matters relating to or arising from this Agreement. Subject to the dispute resolution procedures set forth below, you hereby submit to the exclusive jurisdiction and venue of the appropriate State and Federal courts located Maricopa County, Arizona , with respect to all matters arising out of or relating to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Products, or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The prevailing party will be entitled to recover all reasonable attorneys’ fees and costs through final adjudication.
ARBITRATION
Any claim or controversy arising out of or related to this Agreement, or the Products we provide or distribute shall be settled by individual binding arbitration in accordance with the rules of the American Arbitration Association then effective, however, you will advance all fees and costs associated with any such arbitration, and you shall not request or make application for interim or final awards or security, fees, costs, or damages prior to the hearing on the claims in chief. Any such claim or controversy shall be arbitrated on an individual basis and shall not be consolidated with a claim of any other party. Further, in any such dispute, under all circumstances the Disclaimers and Limitation of Liability is applicable and under no circumstances will you be permitted to obtain awards for, and you hereby waive all rights to claim punitive, incidental or consequential damages, and you further waive all rights to have any damages multiplied or increased. This shall not preclude Ballroom Dance Channel from seeking any injunctive relief for protection of our Intellectual Property Rights or taking any other rights outlined herein, including termination of your Account. The arbitration shall take place Scotsdale Arizona or such other location as the parties may mutually agree in writing. The arbitrator(s) shall issue a written reasoned award, and any judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. The arbitrator(s) shall set forth in writing their evidentiary findings as well as findings of fact and conclusions of law and shall render their award based thereon. Upon application by either party to a court for an order confirming, modifying, or vacating the award, the court shall have the power to review: (i.) whether the findings of fact rendered by the arbitrator(s) are supported by the evidence, that such evidence was properly admissible according to the applicable Federal Rules of Evidence or the rules of evidence of the State of Arizona, and by the proper burden of proof; and, (ii.) whether, as a matter of law based on such evidentiary ruling and findings of fact, the award should be confirmed, modified or vacated. Upon such determination, judgment shall be entered in favor of either party consistent therewith. The arbitrator may not modify, change or excuse any term of this Agreement, except as allowed under the Severability provision herein. In the event an arbitration award or judgment is obtained, or settlement consent judgment is entered, the party against which the judgment is entered agrees to pay all reasonable attorneys' fees and costs incurred in enforcement of any such award or judgment. This provision is separate and apart from any other provision for attorneys' fees and costs incurred to enforce the agreement. This provision does not merge with any arbitration or judgment and may be used either (iii.) as a basis for obtaining reasonable attorneys' fees and costs in the same matter in which an award or judgment was obtained or (iv.) as a basis for obtaining reasonable attorneys' fees and costs in a separate action. The arbitrator(s) will each be a natural person who has never been employed (either as an employee or as an independent consultant) by either of the parties, or any parent, subsidiary or affiliate thereof, and will be generally familiar with the business of the parties. The arbitrator(s) may upon request exclude from use in the arbitration proceeding any evidence not made available to the other party pursuant to a proper discovery request. The prevailing Party to any arbitration, hearing or other action shall be entitled to its costs and fees (including without limitation reasonable attorneys' fees). The parties, their representatives, other participants, the arbitrator(s) and the administrator(s) of the arbitration will hold in strict confidence the existence, content and outcome of the arbitration, except as to taking the appropriate actions outlined herein in a court of law or equity. The parties understand that: (i) arbitration is final and binding on the parties; (ii) the parties are waiving their right to seek remedies in court (except as specifically set forth above), including the right to a jury trial; (iii) pre-arbitration discovery is generally more limited than and different from court procedures; and (iv) any party’s right to appeal or to seek modification of rulings by the arbitrators may be strictly limited.
No Waiver
The failure of BDC to enforce any of the provisions hereof shall not be construed to be a waiver of the right of BDC thereafter to enforce such provisions. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party as set out herein.
Severability
If any provision of this Agreement or its application to any person, place, or circumstance, is properly held by an arbitrator, or court of competent jurisdiction, as may be applicable, to be invalid, unenforceable for any reason, or void, such provision shall be such enforced to the greatest extent permitted by law and reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances or of the remaining provisions hereof under all circumstances and the remainder of this Agreement and such provision as applied to other persons, places, and circumstances shall remain in full force and effect.
Complete Agreement
This Agreement as modified from time to time as described above, and the Privacy Policy constitutes the complete and exclusive agreement between you and BDC with respect to its subject matter and supersedes any and all prior oral or written understandings, communications or agreements not specifically incorporated herein or therein.
General
Without limiting any other remedy available to us, we may suspend or terminate this Agreement and your use of the and access to our Web Sites or Services or Materials if we have reason to believe that you have failed to comply with your obligations under this Agreement. Upon termination, cancellation, suspension or expiration of this Agreement for any reason and by either party, you agree to cease all use of the Web Sites, Services and Materials. You shall not thereby be entitled to any refund or credit. No delay or failure to enforce any provision of this Agreement will constitute a waiver of such provision by BDC or act as estoppel against later enforcement. You may not assign any of your rights or delegate any of your obligations under this Agreement without the prior written consent of BDC, though BDC may do so without any additional approval or agreement by or from you. BDC shall not be deemed to be in breach of this Agreement due to any delay or failure of performance or interruption in the availability of the Web Sites or Services or Materials resulting directly or indirectly from any act of nature or other cause beyond the reasonable control of BDC. Certain Sections of this Agreement will survive any cancellation or termination of this Agreement, such as those relating to Remedies, Indemnity, Disclaimers, Applicable Law, Arbitration, and other sections which logically and typically survive cancellation or termination. The section headings used in this Agreement are for convenience only and have no legal or contractual effect. You hereby waive any and all defenses You may have based on the electronic form of this Agreement and the lack of physical signing by the parties by pen on paper hereto to enter into and execute this Agreement. YOU HAVE EITHER CONSULTED WITH AN ATTORNEY CONCERNING THIS AGREEMENT OR YOU KNOWINGLY WAIVE THE RIGHT TO DO SO.
I AGREE
