TERMS AND CONDITIONS
Last Modified: September 1, 2016.
1. User Accounts. You must be over the age of 13 to register with the Site. You also agree to provide true, accurate and complete registration information when you create a user account.
2. Changes to Terms. We may modify the Terms, or any part thereof, or add or remove terms at any time, and such modifications, additions, or deletions will be effective immediately upon posting. The most recent version of the Terms will be posted on the Site and replace any prior versions. Your continued use of the Site following such posting shall be deemed to constitute acceptance by you of such modifications, additions, or deletions. We also reserve the right to modify the content or access to any feature of the Site at any time.
4. Communication Preferences. If you register with the Site, you consent to receiving service messages relating to your account, such as payment confirmations, account verifications and transactional notices. You also consent to receiving other communications from us such as newsletters, special offers, announcements and surveys, which you may opt out of by clicking on the “unsubscribe” links contained therein.
5. Geographic Restrictions. You may not be able to access all or some of the content and services of the Site outside of the United States and such access may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you are responsible for compliance with local laws. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
6. Third Party Materials. The Site may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials“). You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright or trademark compliance, legality, decency, quality or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties’ terms and conditions. Once you choose to link to another site, you should read and understand that site’s privacy statement before disclosing any personal information.
7. Your Use of the Site. All of our content available through the Site, including the content, visual interfaces, interactive features, audio, video, audio-visual material, information, graphics, design, compilation, computer code, products, software, services, proprietary information, service marks, trademarks, trade names, distinctive information such as logos, the selection, sequence, “look and feel” and arrangement of items, and all other elements of the Site that are provided by us is owned by or licensed to us or our partners and/or users and is protected by copyright and/or trademark laws. You do not acquire ownership rights to any content viewed through the Site. If any of the content that we make available to you is software capable of being downloaded, then the software and all files, images and data relating to the software will be licensed to you by us. The license is a personal, limited, non-transferable, non-sublicensable, revocable license, and we reserve the right to alter or revoke the license at any time by providing notice to you. Our posting of content on the Site does not constitute a waiver of any right in such content. You may not use, store, display, publish, transmit, distribute, sell, license, copy, publicly perform or display, modify, reproduce, create derivative works of or in any way exploit any of this content (other than your own content), in whole or in part, outside of the specific usage rights granted to you by Company in connection with this Site. All other copying in any format or other unauthorized use of the Site or its contents may constitute a breach of copyright, trademark and/or other intellectual property laws and/or other international laws and may subject you to criminal or civil charges and penalties. Company reserves all other rights not expressly granted hereunder. In no event may the Site be used in a manner that (a) harasses, abuses, threatens, defames or otherwise infringes or violates the rights of others; (b) is unlawful, fraudulent or deceptive; (c) uses technology or other means to access Company’s proprietary information that is not authorized by Company; (d) uses or launches any automated system to access Company’s website or computer systems; (e) attempts to introduce viruses, trojans, worms, malware, or any other malicious computer code that interrupts, destroys or limits the functionality of any computer software, hardware or telecommunications equipment; (f) attempts to gain unauthorized access to Company’s computer network or user accounts; (g) encourages conduct that would constitute a criminal offense, or would give rise to civil liability; or, (h) violates these Terms. Company reserves the right, in its sole discretion, to terminate your user account.
8. Information and Press Releases. The Site contains information and press releases in connection with its content. While this information was believed to be accurate as of the date prepared, Company disclaims any duty or obligation to update this information or any press releases. Information about companies other than ours contained in the press release or otherwise, should not be relied upon as being provided or endorsed by us.
9. Content Posted on the Site. The Site may contain social networking components and interactive features (including but not limited to blogs, chat groups, bulletin boards, news groups, as well as, the display of content from linked third-party websites, which may allow you to submit, transmit or post information, including but not limited to audio recordings, video recordings, writings, and/or images. Company may monitor content posted on the Site, but Company is under no obligation to do so. If you submit your own creative modifications of the Site content to us, or if you submit your own copies of portions of previously recorded Howard Stern broadcasts (“Modified Content”), you acknowledge that such Modified Content constitutes a derivative work based on copyrighted works owned by us. If you choose to upload any Modified Content to the Site, Company, for itself and on behalf of HSP, hereby grants you a revocable, non-transferable, non-sublicensable, non-exclusive and limited license to (i) modify the content of the Site and previously recorded Howard Stern broadcasts in order to create Modified Content for the sole purpose of uploading the Modified Content to the Site, and (ii) upload such Modified Content to the Site only, provided in each case that you are able to, and by uploading such Modified Content that you agree to be, bound by these Terms. All rights not specifically granted in this limited license are retained by Company and HSP. You may be exposed to content on the Site that is inaccurate or deceptive, or that you find offensive or objectionable.
10. Objectionable Material. You understand that by using and accessing the Site, you may encounter material that you may deem to be offensive or objectionable, and that such content may or may not be identified as having explicit material. Nevertheless, you agree to the use of the Site at your sole risk and Company shall have no liability to you for material that may be found to be offensive or objectionable.
11. Content You Post.
A. Content you post via the Site may appear on other user’s devices. You are responsible for all content that you post through or download from the Site. You may not post content that:
· Is not your own original creation or that you do not have permission to use (keep in mind that just because something on the internet does not have a copyright notice on it doesn’t mean you can use it without permission);
· Infringes the copyright, trademark, patent right, or other proprietary right of any person or that is used without the permission of the owner;
· You know to be inaccurate;
· Is pornographic, sexually explicit, or obscene;
· Exploits children or minors;
· Violates the rights of privacy or publicity of any person;
· Is harassing, libelous, slanderous, or defamatory;
· Contains any personally identifying information about any person without their consent or about any person who is a minor;
· May be deemed generally offensive to the community, including blatant expressions of bigotry, prejudice, racism, hatred, profanity or religious or political radicalism;
· Includes advertisements, promotions, solicitations, spam, or offers to sell any goods or services for any commercial purpose;
· Is off topic;
· Is intended to provide professional advice, including but not limited to, the provision of medical treatment, or legal, financial or investment advice;
· Is intended to solicit, recommend, endorse, or offer to buy or sell any securities or other financial instruments, tout stocks, or recommend that any particular security, portfolio of securities, transaction, or investment strategy is suitable for you or any specific person;
· Violates any local, state, federal, and/or international laws or regulations;
· Promotes or provides instructional information about illegal or illicit activities;
· Contains software viruses or any other computer code, files, or programs designed to destroy, interrupt, or otherwise limit the functionality of any computer software, computer hardware, or other equipment; or,
· Is intended to overwhelm, cause technical disruptions of or denial of service to Company’s servers.
B. Company may remove any content that violates these Terms or that Company determines is otherwise not appropriate in Company’s sole discretion. Company may or may not exercise editorial control over content posted on the Site.
C. By posting or transmitting content on or through the Site, you
· represent and warrant that you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize Company and other users to use and distribute your content as necessary to exercise the licenses granted by you in these Terms and in the manner contemplated by Company and these Terms;
· you certify that you are (a) at least 18 years old, or (b) at least 13 years old and have obtained your parent’s or legal guardian’s express consent to submit content;
· agree to and do hereby grant Company and its affiliates and partners a nonexclusive, perpetual, irrevocable, worldwide, sublicensable, transferrable, royalty-free right and license to use, store, display, publish, transmit, transfer, distribute, reproduce, rearrange, edit, modify, aggregate, create derivative works of and publicly perform the content that you submit via the Site for any purpose, in any form, medium, or technology now known or later developed. You also acknowledge that (i) Company may have already created, or be in the process of creating, content that may be substantially similar to your ideas at the time you submit those ideas to us, and (ii) elements of your ideas may not be subject to protection under copyright laws. You also grant Company a license to use your user name in connection with Company’s use of any content you provide to Company. You also consent to the display of advertising within or adjacent to any of your content. Any comments or materials you send to Company, including feedback data, such as questions, comments, suggestions and any other response shall be deemed to be nonconfidential.
12. Limitation of Liability. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, (A) IN NO EVENT SHALL COMPANY OR HSP BE LIABLE TO YOU WITH RESPECT TO (1) USE OF THE SITE, CONTENT OR SERVICES OR (2) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU, IF ANY, FOR THE SUBSCRIPTION SERVICES OR US$100.00, AND (B) IN NO EVENT SHALL COMPANY OR HSP BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THESE TERMS OR THE USE OF OR INABILITY TO USE THE SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OR CORRUPTION OF DATA, BREACH OF PRIVACY OR SECURITY, TRANSMISSION OF PERSONAL DATA OR FAILURE OR MALFUNCTION OF YOUR DEVICE. YOUR SOLE REMEDY UNDER THESE TERMS IS TO CEASE USE OF THE SITE. COMPANY AND HSP DISCLAIM ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR PERSONALLY IDENTIFIABLE INFORMATION. BY ACCESSING THE SITE, YOU ACKNOWLEDGE AND AGREEE TO COMPANY’S AND HSP’S DISCLAIMER OF SUCH LIABILITY. IF YOU DO NOT AGREE, YOU SHOULD NOT ACCESS OR USE THE SITE.
13. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, NEITHER COMPANY NOR HSP MAKE, AND COMPANY AND HSP HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE SITE, CONTENT, AND SERVICES PROVIDED HEREUNDER OR OTHERWISE REGARDING THESE TERMS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUSES OR MALWARE, AND WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NEITHER COMPANY NOR HSP IS RESPONSIBLE FOR THE ACTIONS OR INFORMATION OF THIRD PARTIES, AND YOU RELEASE COMPANY AND HSP FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. SOME STATES AND COUNTRIES, INCLUDING MEMBER COUNTRIES OF THE EUROPEAN ECONOMIC AREA, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE LIMITATIONS OR EXCLUSIONS ABOVE MAY NOT APPLY TO YOU. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: 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.
14. Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT COMPANY AND HSP HAVE OFFERED THEIR PRODUCTS AND SERVICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU, ON THE ONE HAND, AND COMPANY AND HSP, ON THE OTHER HAND, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU, ON THE ONE HAND, AND COMPANY AND HSP, ON THE OTHER HAND. YOU ACKNOWLEDGE AND AGREE THAT COMPANY AND HSP WOULD NOT BE ABLE TO PROVIDE THE SITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
15. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
16. Indemnification. You agree to defend, indemnify, and hold harmless Company, HSP and their respective employees, contractors, officers, directors and successors from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, expenses (including attorney’s fees and costs) that arise from your use or misuse of the Site, violation of these Terms or violation of any rights (including, but not limited to intellectual property rights, right of privacy, right of publicity, etc.) of a third party. Company and HSP reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate at your own expense in asserting any available defenses. The indemnification in this section extends to any allegations of copyright infringement, violation of the Digital Millennium Copyright Act or other law based on your importation, exportation, manipulation, modification, distribution, sale or other use of text, still images, or audio or video recordings.
17. Contact Information. Should you wish to contact Company with any questions, complaints or claims with respect to the Site, email Company at Webmaster@HowardStern.com.
18. Third Party Agreements And Additional Terms. You agree to comply with all applicable third party terms of agreement when using the Site. There may be additional terms and conditions that apply to portions of the Site and to any purchases on the Site or services, including, without limitation, invitations, sweepstakes, contests and the like. All such additional terms and conditions shall be a part of these Terms and are incorporated by reference herein and you agree to be bound by such additional provisions. In the event of a conflict between these Terms and any additional terms and conditions applicable to any portion or offering on the Site, such additional terms and conditions with respect to that portion or offering shall control.
19. Governing Law. These Terms are governed exclusively by the laws of the State of California, without giving effect to its conflict of law rules. These Terms are not governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded. The parties further agree that the place of contract and performance of these Terms is Los Angeles, California, USA.
20. Waiver/Severability. The failure of Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is for any reason held unenforceable or invalid, then these Terms shall be construed as if such provision were not contained in these Terms.
21. Arbitration. Any dispute, claim or controversy arising out of or related to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be resolved by binding non-appearance-based arbitration. Either party shall initiate arbitration before a single arbitrator through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties, or, if no agreement is reached within ten (10) days of a request for agreement, then according to the rules (“Rules”) of the American Arbitration Association. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. All aspects of the arbitration shall be treated as confidential, as provided in the Rules. Before making any disclosure permitted by the Rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests. You agree that the Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Company are each waiving the right to a trial by jury and the right to participate in a class or representative action. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, the arbitrator may not consolidate more than one person’s claims with your or Company’s claims, and may not otherwise preside over any form of a class or representative proceeding.
22. Entire Agreement; Modifications. These Terms and any operating rules established by us constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede any other agreement or discussion, oral or written between the parties with respect to the subject matter of these Terms. There shall be no application of any rule of construction against the drafter as you have had an opportunity to have these Terms reviewed by your counsel.
23. Intellectual Property Rights Policy; DMCA Notification
We respect the rights of intellectual property holders. If you believe that any content on the Site violates your intellectual property rights, you can report such violation to us in accordance with the Digital Millennium Copyright Act (17 U.S.C. §512). In the case of an alleged infringement, please provide the following information:
A description of the copyrighted work or other intellectual property that you claim has been infringed;
A description of where the material that you claim is infringing is located on the Site (including the exact URL);
An address, a telephone number, and an e-mail address where we can contact you;
A statement that you have a good faith belief that the use is not authorized by the copyright or other intellectual property rights owner, by its agent, or by law;
A statement by you under penalty of perjury that the information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the owner’s behalf; and
Your electronic or physical signature, or that of the person authorized to act on behalf of the owner of the copyright or other right being infringed.
We may request additional information before we remove allegedly infringing material. You may report a copyright violation by providing the above information to the Whalerock designated agent listed below.
Legal Affairs, WRI Tx, Pacific Design Center, Red Building, 750 North San Vicente Blvd, 9th Floor, West Hollywood, CA 90069 U.S.A; Phone: (310) 255-7110 Fax: (310) 255-7058 Email: Webmaster@HowardStern.com.
We will terminate the user account of any user who repeatedly submits content that violates our intellectual property policies. A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had Content removed from the Site more than twice.
© The Howard Stern Production Company, Inc. All rights reserved.