PLEASE NOTE: The NYA Service may include or be used in connection with certain Third Party Services (as defined in Section 18 below). Your access to or use of such Third Party Services may be governed by additional terms and conditions that are not set forth in this Agreement and that are made available by the particular providers of such Third Party Services.
This Agreement contains a mandatory arbitration provision that, as further set forth in Section 24 below, requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or any other court proceedings, or class actions of any kind.
Acceptance of Terms. By using the NYA Service, you agree to the terms of this Agreement and to any additional rules and guidelines that we post on the NYA Service. We may make changes to this Agreement from time to time; we may notify you of such changes by any reasonable means, including by posting the revised version of this Agreement on the NYA Service. You can determine when we last changed this Agreement by referring to the “LAST UPDATED” legend above. Your use of the NYA Service following changes to this Agreement will constitute your acceptance of those changes; provided, however, any material change to this Agreement shall not apply retroactively to any claim or dispute between you and us in connection with this Agreement that arose prior to the “LAST UPDATED” date applicable to that version of this Agreement in which we included such material change. We may, at any time, without liability, modify or discontinue all or part(s) of the NYA Service or related functionality, including by limiting access to the NYA Service or such functionality for use only on a paid subscription basis; charge, modify or waive fees required to use the NYA Service or related functionality, including on a paid subscription basis; or offer opportunities to some or all NYA Service users.
Jurisdiction. The NYA Service is controlled and/or operated from the United States, and is not intended to subject us to non-U.S. jurisdiction or laws, except as otherwise expressly stated in this Agreement. The NYA Service may not be appropriate or available for use in some jurisdictions outside of the United States. If you access the NYA Service, you do so at your own risk, and you are responsible for complying with all local laws, rules and regulations in doing so. We may limit the NYA Service' availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion and you agree not to circumvent, or attempt to circumvent, any such limitations we may impose from time to time.
Rules of Conduct. In using the NYA Service, you agree to obey the law, respect the rights of others and avoid objectionable, defamatory or disruptive behavior. In addition, you will comply with the following “Rules of Conduct” as updated from time to time by us. In connection with the NYA Service, you will not:
Post, transmit, or otherwise make available, through or in connection with the NYA Service:
Anything that is or may be (a) threatening, harassing, degrading, hateful or intimidating or otherwise fail to respect the rights and dignity of others; (b) defamatory or libelous; (c) fraudulent or otherwise tortious; (d) obscene, indecent, pornographic or otherwise objectionable; or (e) protected by copyright, trademark, trade secret, right of publicity or privacy or other proprietary right without the express prior written consent of the owner of such right.
Any material that would give rise to criminal or civil liability; that encourages conduct that constitutes a criminal offense; that promotes gambling; or that encourages or provides instructional information about illegal activities or activities such as “hacking,” “cracking” or “phreaking.”
Any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file, or program that is or is potentially harmful or invasive or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
Any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letter,” “pyramid scheme” or investment opportunity, or any other form of solicitation.
Any material non-public information about a company without the proper authorization to do so.
Use the NYA Service for any fraudulent or unlawful purpose.
Use the NYA Service to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including without limitation others' privacy rights or rights of publicity, or harvest or collect personally identifiable information about other users of the NYA Service.
Impersonate any person or entity, including any of our (or our Affiliates' (as defined in Section 6(b) below)) representatives; falsely state or otherwise misrepresent your affiliation with any person or entity; or express or imply that we endorse any statement or posting you make.
Interfere with, manipulate or disrupt the operation of the NYA Service or the servers or networks used to make the NYA Service available, including by artificially increasing play counts or otherwise using any automated processes to interfere with, manipulate or disrupt the operation of the NYA Service; or violate any requirements, procedures, policies or regulations of such networks.
Restrict or inhibit any other person from using the NYA Service (including by hacking or defacing any portion of the NYA Service).
Use the NYA Service to advertise or offer to sell or buy any goods or services without our express prior written consent.
Reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of, or access to the NYA Service.
Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the NYA Service except as expressly authorized herein, without our express prior written consent.
Except as expressly permitted by applicable law, reverse engineer, decompile or disassemble any portion of the NYA Service.
Remove any copyright, trademark or other proprietary rights notice from the NYA Service or materials originating from the NYA Service.
Frame or mirror any part of the NYA Service, or otherwise incorporate any portion of the NYA Service into any product or service, without our express prior written consent.
Systematically download and store all or any NYA Service content.
Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather NYA Service content or in any way reproduce or circumvent the navigational structure or presentation of the NYA Service, without our express prior, written consent.
Circumvent, or attempt to circumvent, any digital rights management or other technology used to protect against unauthorized access, copying or other use of the NYA Service or any Services.
Without limiting Section 23 below, we may terminate your use of the NYA Service for any conduct that we consider to be inappropriate, or for your breach of this Agreement, including the Rules of Conduct (including, without limitation, if you repeatedly engage in copyright infringement via or in connection with the NYA Service).
Registration. You may need to register to use certain part(s) of the NYA Service. We reserve the right to reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not us, are responsible for any use or misuse of your user name and/or password, and you agree to promptly notify us of any confidentiality breach or unauthorized use of your user name and/or password, or your NYA Service account.
Generally. The NYA Service may contain areas where you can, through or in connection with the NYA Service, post or make available certain information and materials, including, without limitation, text, images, photographs, graphics, music, videos, audiovisual works, data, files, links and other materials (each, a “Submission”). For purposes of clarity, you retain ownership of any Submissions that you post or make available, subject to the terms and conditions of this Agreement (including the license grant in Section 6(b) below). We have no control over and are not responsible for any use or misuse (including any distribution) by any third party of any Submissions.
License Grant. For each Submission that you post or make available, you hereby grant to us and to our affiliates (“Affiliates”)a world-wide, royalty free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable, and fully sub-licensable (through multiple tiers) license, without additional consideration to you or any third party, to: (i) reproduce, distribute, transmit, communicate to the public, perform and display (publicly or otherwise), edit, modify, adapt, create derivative works from and otherwise use, analyze and exploit such Submission, in any format or media now known or hereafter developed, on or in connection with the NYA Service; (ii) exercise all trademark, publicity and other proprietary rights with regard to such Submission; (iii) use your name, photograph, portrait, picture, voice, likeness and biographical information as provided by you in connection with your Submission for any promotional purposes related to the NYA Service, in each case, in connection with your Submission; and (iv) use your Submission (including the contents thereof) for any promotional or other business purposes related to the NYA Service. To clarify, we may sublicense these rights to Neil, to our licensors and service providers, and to Neil’s record label, including Warner Bros. Records, a Warner Music Group Company and its affiliates (collectively “Representatives”), for the limited purposes of use in connection with Neil’s, music business related activities. Also, nothing in this Agreement shall be deemed to authorize you to incorporate into any Submission any content or material owned by us, or by our Representatives. IF YOU DO NOT WISH TO GRANT THE RIGHTS GRANTED IN THIS SECTION 6, PLEASE DO NOT POST OR MAKE AVAILABLE ANY SUBMISSIONS ON, THROUGH OR IN CONNECTION WITH THE NYA SERVICE.
Disclaimers. It is possible that NYA Service visitors will post or make available information or materials on, through or in connection with the NYA Service that are wrong or misleading or that otherwise violate this Agreement. We, Neil, our Affiliates and our and their respective Representatives do not endorse and are not responsible for any information or materials made available through or in connection with the NYA Service or your use of such information or materials. All Submissions will be deemed to be non-confidential and may be used by us (i) without any confidentiality or other non-disclosure obligations and (ii) without attribution to you or any third party. We reserve the right, in our sole discretion and at any time, to set limits on the number and size of any Submissions that may be posted or made available on, through or in connection with the NYA Service or the amount of storage space available for Submissions.
Acknowledgement. You hereby acknowledge and agree that (i) you have received good and valuable consideration in exchange for the rights granted by you hereunder in and to any Submission that you post or make available, including, without limitation, the ability to participate in activities on, through or in connection with the NYA Service and the possibility that publicity or favorable exposure may arise from our or our Affiliates' use of such Submission or any derivative works incorporating or embodying such Submission; and (ii) you are not entitled to any further compensation for any use or other exploitation of such Submission by us or our Affiliates or any other party (including, without limitation, Neil and our or their Affiliates' , Representatives) pursuant to the rights in such Submission that have been granted hereunder and/or that are available under applicable law.
Representations and Warranties. You hereby represent and warrant that: (i) you have the legal right and authority to enter into this Agreement; (ii) you solely own, or otherwise have the full right and permission to exploit, all of the rights in, to, and under any Submission that you post or make available and to grant the rights and licenses set forth herein, and with respect to any third party materials that appear in or are otherwise incorporated or embodied in any Submission that you post or make available, you have obtained express, written clearances from all owners of and rights holders in such third party materials as necessary to grant the rights and licenses set forth herein; (iii) you have obtained the written consent, release, and/or permission of every identifiable individual who appears in any Submission that you post or make available, to use such individual's name and likeness for purposes of using and otherwise exploiting such Submission(s) in the manner contemplated by the Agreement, or, if any such identifiable individual is under the age of eighteen (18), you have obtained such written consent, release and/or permission from such individual's parent or guardian (and you agree to provide to us a copy of any such consents, releases and/or permissions upon our request); (iv) any Submission that you post or make available, and the use thereof by us, our Affiliates, and our and their respective designees (including, without limitation, Neil, our and their respective Representatives), do not and shall not infringe upon or violate any patent, copyright, trademark, trade secret, or other intellectual property rights or other rights of any third party; (v) any Submission that you post or make available is not confidential and does not contain any confidential information; and (vi) in creating, preparing and posting or making available any Submission, you (A) have complied and will comply in all respects with all applicable laws, rules (including, without limitation, our Rules of Conduct), and regulations and (B) have not violated and will not violate any understanding by which you are explicitly or implicitly bound (including without limitation any agreement with any third party). If you do post or make available a Submission that contains the likeness of an identifiable individual, we strongly encourage you not to include any identifying information (such as the individual's name or address) within such Submission.
Waiver; Further Assurances; Indemnity. To the extent permitted under applicable law, you agree to forever release, discharge and waive all claims against us, Neil, our Affiliates and our and their respective Representatives from, and covenant not to initiate, file, maintain, or proceed upon any suit, claim, demand, or cause of action against us, Neil, our Affiliates and our and their respective Representatives with respect to, any and all claims, demands, actions, losses, costs, damages, liabilities, judgments, settlements and expenses (including, without limitation, reasonable attorneys' fees) that relate in any way to this Agreement and/or the use of any Submission in a manner consistent with the rights granted under this Agreement, including, without limitation, any claim for idea misappropriation. Additionally, to the extent permitted under applicable law, you hereby waive any and all rights that you may have under laws worldwide that concern “moral rights” or “droit moral,” or similar rights with respect to attribution or authorship or integrity of materials, in connection with any Submission that you post or make available (and you hereby represent and warrant that you have obtained clear, express written waivers from any applicable third parties with respect to any and all rights that such third parties may have under such laws in connection with any Submission that you post or make available). At any time upon our request, you shall: (i) take or cause to be taken all such actions as we may reasonably deem necessary or desirable in order for us and our Affiliates to obtain the full benefits of this Agreement and any licenses granted by you hereunder, and (ii) execute a non-electronic hard copy of this Agreement. Without limiting any other provision herein, you agree to indemnify us, our Affiliates, Neil, and our and their respective Representatives as further set forth herein, including in Section 22 below.
No Obligation to Use. For the purpose of clarification, it shall be in our sole discretion whether or not to exercise any right granted to us under this Agreement, and we shall have no obligation to use or otherwise exploit any Submission.
Unsolicited Submissions. Notwithstanding anything to the contrary in this Agreement, we and our Affiliates do not accept, invite or consider unsolicited submissions of ideas, proposals or suggestions (“Unsolicited Submissions”), whether related to the NYA Service, our Products, Services or otherwise. We do not treat Unsolicited Submissions as confidential, and any Unsolicited Submission will become our or our Affiliates' sole property. We and our Affiliates have no obligations with respect to Unsolicited Submissions and may use them for any purpose whatsoever without compensation to you or any other person. You hereby acknowledge and agree that your provision of Unsolicited Submissions is gratuitous, unsolicited and without restriction, and does not place us under any fiduciary or other obligation.
Your Limited Rights.Subject to your compliance with the terms and conditions of this Agreement, and solely for so long as you are permitted by us to use the NYA Service, you may view one (1) copy of any portion of the NYA Service to which we provide you access under this Agreement, on any single device, solely for your personal, non-commercial use. In connection with your use of the NYA Service (including any Services), you agree that we (directly or through our service providers) may make use of certain features of your device, including processing, bandwidth and storage-related features, in order to facilitate your use of the NYA Service.
Products. All rights in any products available through the NYA Service, such as music, ring tones, ring back tones, SMS tones, images (e.g., screen savers), video, artwork, text, software and other copyrightable materials (collectively, the “Products”) are owned by us, our Affiliates and/or our (or their) licensors. If a separate agreement provided by us or an Affiliate governs a particular Transaction (as defined in Section 12 below) or Product, or your use of a particular Product, and the terms of such separate agreement conflict with the terms of this Agreement, the terms of such separate agreement will govern such Transaction (as defined in Section 12 below) or use of such Product. Subject to your compliance with the terms and conditions of this Agreement and any other applicable terms and conditions imposed by us, our Affiliates and/or our (or their) licensors, you have a limited right to use those Products that you purchase or access through the NYA Service solely for your personal, noncommercial use in accordance with the terms and conditions of this Agreement and any other terms and conditions that may apply to such Products, which right you cannot sublicense to others. Any burning or exporting capabilities, if any, of any Product shall not constitute a grant or waiver of any of our rights or those of any copyright or other rights owners in such Product, any other Product or any content, sound recording, underlying musical composition, artwork or other copyrightable matter embodied in or associated with such Product or any other Product. You understand that the NYA Service and the Products may include and/or rely on a security framework using technology that protects digital information and imposes usage rules established by us, our Affiliates and our (or their) licensors, and you hereby agree to abide by such usage rules, including those set forth below. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the purchase, possession and use of any Product. Unless we expressly provide otherwise, all Transactions, all Products and your use of such Products are subject to this Agreement.
Streaming Service. Subject to the terms of this Agreement, we may make available to you, in our sole discretion, a Service for the streaming of music through or in connection with the NYA Service (the “Streaming Service”). All rights in the Streaming Service (including any music made available through such service) are owned by us, our Affiliates and/or our (or their) licensors. If a separate agreement provided by us or any of our Affiliates governs a particular Transaction (as defined in Section 12 below) for a subscription to the Streaming Service, and the terms of such separate agreement conflict with the terms of this Agreement, the terms of such separate agreement will govern such Transaction and/or use of the Streaming Service. Subject to your compliance with the terms and conditions of this Agreement and any other applicable terms and conditions imposed by us from time to time, our Affiliates and/or our (or their) licensors, we hereby grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to stream music made available by us as part of the Streaming Service from the NYA Service to a personal computer or portable device under your ownership and control, solely for your own personal non-commercial use. You may not use the Streaming Service in connection with a business or for the benefit of any other person or entity. You agree not to download or otherwise make any copies of any streamed music. The Streaming Service, and any music made available pursuant to such service, is licensed, and not sold. All rights to the Streaming Service not specifically granted to you in this Section 11 are reserved to us, our Affiliates and/or our (or their) licensors. We reserve the right to limit (a) the number of devices with which you can access the Streaming Service or (b) simultaneous streaming to two or more devices. You understand that the Streaming Service may include and/or rely on a security framework using technology that protects digital information and imposes usage rules established by us, our Affiliates and our (or their) licensors, and you hereby agree to abide by such usage rules, including those set forth below. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding your access to and/or use of the Streaming Service. Unless we expressly provide otherwise, the Streaming Service and your use of the Streaming Service are subject to the terms of this Agreement, including the usage restrictions set forth in Section 14 below.
Purchases of Products or Services; Subscriptions and Autorenewals.
For any product or service that you order on or in connection with the Services, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order. We or our card processor will automatically bill your credit, debit or other payment card (the “Card”) or other form of payment submitted as part of the order process for such price. We may offer a number of membership plans, including special promotional plans or memberships with differing conditions and limitations. Any materially different terms from those described in this Agreement will be disclosed at your sign-up or in other communications made available to you. Some promotional memberships are offered by third parties in conjunction with the provision of their own products and services. We are not responsible for the products and services provided by such third parties. We reserve the right to modify, terminate or otherwise amend our offered membership plans.
Subscription Term and Termination. Except in the event of a free trial offer, your subscription will commence as of the date your payment for a subscription is received by us. Your subscription will continue in full force for the length of the term you specifically purchased or on a month-to-month term until such time as you cancel the subscription as further explained below (the “Subscription Term”). If you cancel a subscription in the middle of your Subscription Term, your right to a refund is set forth in Section 12(f) below. We will have the right, upon written notice to you, to terminate this Agreement, and suspend your access to their subscription, if: (a) you fail to pay us any amount due under this Agreement; and/or (b) you materially breach any term or condition of this Agreement. We shall have the right to terminate this Agreement and suspend your access to the subscription with or without cause, upon thirty (30) days written notice to you in which case you will no longer be charged for access to the subscription. Upon the expiration or termination of this Agreement for any reason, your access to, and use of, their subscription will terminate.
Free Trials/Promotional Offerings. We may offer promotional trial subscriptions to access the Services for free for a limited time or at special discounted prices. If you sign up for a trial use, your rights to use the Services are limited by the terms of such trial and will terminate or renew on the terms of your trial arrangement and/or any applicable Additional Terms. Please be aware that when you sign up for a free trial, you will be required to provide your Card number and we will confirm your Card is valid. When we process your Card, some credit card companies may place a temporary hold on your account for your first payment. Please contact your Card company if you have questions. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering.
ONCE YOUR FREE TRIAL ENDS , WE OR A THIRD PARTY PAYMENT PROCESSOR WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR SUBSCRIPTION (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES), UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR FREE TRIAL. IF YOUR FREE TRIAL ENDS AND YOUR SUBSCRIPTION BEGINS, YOUR SUBSCRIPTION WILL AUTORENEW AND YOU WILL BE BILLED ON A RECURRING BASIS FOR YOUR EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL. INSTRUCTIONS FOR CANCELING YOUR MEMBERSHIP SUBSCRIPTION ARE DESCRIBED BELOW. PLEASE NOTE THAT YOU WILL NOT RECEIVE A NOTICE FROM US THAT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR SUBSCRIPTION HAS BEGUN. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE FREE TRIALS AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION.
Autorenewals of Subscription Membership. Your subscription to the Services will automatically renew at the end of your Subscription Term continuously and indefinitely without action by you, and the subscription membership fee will be charged to you at the time of renewal. Once your membership fee has been paid you will be entitled to all privileges included in the membership until the membership is cancelled by you as set forth in the paragraph below. By providing your payment method information for your subscription, you are agreeing to pay a subscription fee (and any applicable taxes and service fees (collectively, “Fees”), that will automatically renew, at the then current rate, unless you cancel prior to the expiration of the current Subscription Term. The Fees will be charged to your original payment method automatically at the beginning of your Subscription Term, and at the beginning of each renewal Subscription Term thereafter on the calendar day corresponding to the commencement of your current Subscription Term, unless you cancel your subscription, or your account is suspended or terminated pursuant to this Agreement. The renewal Subscription Term will be the same length as your initial Subscription Term unless otherwise disclosed to you at the time of sale. The rate for the renewal Subscription Term will be the then current subscription-rate. The Fees charged to your payment method may vary from Subscription Term to Subscription Term due to changes in your subscription plan or applicable taxes, and you authorize us to charge your payment method for these amounts. We reserve the right to change the pricing of subscription at any time. In the event of a price change, we will post the new pricing on the Services and attempt to notify you in advance by sending an email to the address you have registered for your account. You agree that We may change the pricing We charge you for your subscription and any Products/Services offered in your subscription package by providing you with notice through an electronic communication from us and you agree that all agreements, notices, disclosures, and/or any other communications that We provide to you electronically satisfy any legal requirement that such communications be in writing. You consent to our ability to change our pricing and the details of our subscription packages through an electronic communication to you. If you do not wish to accept a price or subscription package change made by us, you may cancel your subscription as described below, otherwise you will be deemed to have consented to the price/subscription package change and authorize us to charge the new Fees to your payment method. If there are any discrepancies in billing, you hereby waive your right to dispute such discrepancies if you do not notify us within sixty (60) days after they first appear on an account statement.
Cancellation of Subscription Membership. You have the right to cancel your subscription membership at any time upon notice to us. To cancel your subscription membership: open your account in the NYA Service, and click “Subscription,” then click “Cancel Membership,” and then confirm your cancellation on the next page. To avoid a late cancellation fee or forfeiture of the membership renewal fee, membership must be cancelled prior to the end of the then current Subscription Term. Upon cancellation, you will lose access to the areas of the Services designated for subscription members only.
Refund Policy All purchase transactions made through or in connection with the Services are subject to our return policy in effect at the time of purchase. Currently, our refund policy is (i) for a month-to-month subscription, to provide a full month refund if you cancel within seven (7) days of the applicable renewal date, and (2) for annual subscriptions, to provide a pro-rata refund of the unused portion of the remainder of that Subscription Term (measured as of the end of the then-current month in which the cancellation occurs if you cancel within thirty (30) days of the applicable renewal date. Cancellation of your renewed membership any time after that time period will result in forfeiture of the remaining membership fee for that renewal period. There are no refunds or credits for partial months.
Order Acceptance Policy. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. We further reserve the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. your order will be deemed accepted by us upon our delivery of Products and/or Services that you have ordered. We may require additional verifications or information before accepting any order. Notwithstanding the foregoing, You agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that: (a) we will issue a credit to your Card account in the amount charged for the cancelled portion or the quantity not provided (if your Card has already been charged for the order); or (b) we will not charge your Card for the cancelled portion of the order or the quantity not provided. Do not assume that a cancellation or change of an order you have placed with us has been effected until you receive a confirmation from us via email or the Services. As stated above, you will be responsible for, and your Card or third-party payment account may be charged for, the payment of all fees associated with orders already processed or shipped before your cancellation/change request or a request to terminate your account was received.
Methods of Payment; Credit Card Terms and Taxes. You shall pay all charges that may be incurred by you or on your behalf through or in connection with the NYA Service, at the price(s) in effect when such charges are incurred, including without limitation all shipping and handling charges, and any applicable network, data or other charges in respect of mobile downloads. In addition, you remain responsible for any taxes (including, if applicable, VAT and/or any import duties) that may be applicable to your Transaction(s). Except to the extent applicable law provides otherwise, all sales through or in connection with the NYA Service are final, and all charges from those sales are nonrefundable, except as otherwise expressly set forth in this Agreement. All payments to us are made through a third party payment processor(s). We accept any and all methods of payment that our third party payment processor(s) accept. We currently do not accept cash, personal or business checks or any other payment form, although in the future we may change this policy. Your Card issuer agreement governs your use of your designated Card, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. You represent and warrant that you will not use any Card or other form of payment unless you have all necessary legal authorization to do so. YOU, AND NOT US, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CARD BY A THIRD PARTY. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless you notify us of any discrepancies within sixty (60) days after they first appear on your Card statement, you agree that they will be deemed accepted by you for all purposes. If we do not receive payment from your Card issuer or its agent, you agree to pay all amounts due upon demand by us or our agents.
Product Delivery; Service Access. Except to the extent prohibited by applicable law, we reserve the right to change Product delivery or Service access options without notice. On occasion, technical and other problems may delay or prevent delivery of a particular Product or Service. Except to the extent that applicable law provides otherwise, your sole and exclusive remedy with respect to any Product or Service that is not delivered within a reasonable period will be either replacement of such Product or Service or a refund of the purchase price paid for such Product or Service, as determined by us in our sole discretion.
Usage Restrictions for Products or Services.All Products or Services you purchase, obtain or access on, through or in connection with the NYA Service are solely for your personal, non-commercial use. Except as otherwise expressly provided herein, you may not reproduce, publish, transmit, distribute, display, broadcast, re-broadcast, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, directly or indirectly, any of the Products or Services (including any streamed music), or any related software. Except as permitted under applicable law, you may not reverse engineer, decompile, disassemble, modify or disable any Products or Services, or any copyright protection or use limitation systems associated with the Products or Services. You may not play and then re-digitize any Products or Services (including any streamed music), or upload any Products or Services, or derivatives thereof to the Internet. Unless expressly permitted by us, you may not use the Products or Services in conjunction with any other content, including without limitation, in conjunction with any other Products or Services (e.g., to provide sound for video). You may not transfer, sell or offer to sell the Products or Services, including, without limitation, posting any Product or Service-related content for auction on any Internet auction site or “trading” the Products or Services for money, goods or services. You are not granted any commercial sale, resale, reproduction, distribution or promotional use rights in connection with Products or Services (including any Services-related content) or any rights that require a synchronization or public performance license with respect to an underlying musical composition. Additionally, the following usage restrictions apply based on the type of Product you are purchasing or obtaining through the NYA Service:
PRODUCT OR SERVICE TYPE
TERMS OF USAGE
Full Permanent Non-MP3 Digital Audio Downloads
Personal Computers: You may not activate any audio track purchased or obtained via the NYA Service on more than three (3) desktop or laptop computers. CD Burning: You may not make more than seven (7) burns of a particular playlist (such as an album) to a CD or similar media. Portable Devices: You may not transfer audio tracks purchased or obtained via the NYA Service from a personal computer to more than three (3) mobile phones or tablets (or to any cellular telephone or other device capable of cellular or WAP communication).
Full Permanent Digital Video Downloads
Personal Computers: You may not activate any video purchased or obtained via the NYA Service on more than three (3) desktop or laptop computers. No DVD Burning: You may not burn to DVD or similar media any digital copy of a purchased video. Portable Devices: You may not transfer videos purchased or obtained via the NYA Service from a personal computer to more than three (3) mobile phones or tablets (or to any cellular telephone or other device capable of cellular or WAP communication).
Digital Video Rentals
Limited-time downloads or limited-access streaming to a personal computer or portable device, including mobile devices, is permitted for a period of 24 hours or such other limited time period as specified in the particular offering pursuant to which the rental occurs.
Digital Audio Streaming Service
Limited-access streaming to a personal computer or portable device is permitted solely through the NYA Service for so long as we make such streaming capability available to you or such other limited time period as specified in an applicable Transaction (including in a series of Transactions on a subscription basis). We reserve the right to limit (a) the number of devices with which you can access the Streaming Service or (b) simultaneous streaming to two or more devices
Any other types of digital products or services sold or offered on or in connection with this NYA Service are subject to the terms set forth in the specific offering pursuant to which the sale or other type of offering occurs. In the event of a conflict between these Terms of Usage and the terms and conditions set forth in such specific offering, the terms of the specific offering shall govern.
Product and Service Requirements; Compatibility. You acknowledge that use of our Products and Services requires other hardware and software tools (e.g., in the case of full permanent audio downloads, for making copies of Products on physical media and rendering performance of Products on authorized digital player devices), and that such hardware and software, including, without limitation, all charges therefor, are your sole responsibility. To the extent permissible under applicable law, we, Neil, our Affiliates and our (and their) Representatives shall not be responsible or liable for the loss or damage of any Product or Service. Except to the extent prohibited by applicable law, we reserve the right to change at any time, with or without prior notice to you, the software or hardware required to download, transfer, copy and/or use or limit the use of any Products or Services.
Our Proprietary Rights. Except and solely to the extent of any explicit license granted hereunder, we, our Affiliates and our respective licensors and suppliers (including our Representatives)own all right, title and interest in and to the NYA Service and the information and materials made available through or in connection with the NYA Service. Such information and materials are protected by copyright, trademark, patent and/or other proprietary rights and laws. Except as expressly authorized in advance by us, you agree not to reproduce, modify, rent, lease, loan, sell, distribute or create derivative works based on, all or any part of the NYA Service or any information or materials made available through or in connection with the NYA Service.
We, our Affiliates and/or our respective licensors or suppliers (including our Representatives) own the trade names, trademarks and service marks on the NYA Service, and any associated logos. All trade names, trademarks, service marks or logos on the NYA Service not owned by us or our Affiliates are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the NYA Service should be construed as granting any license or right to use any trade names, trademarks, service marks or logos without express prior written consent of the owner.
PLEASE NOTE THAT UNAUTHORIZED USE OF THE SITE OR ANY SERVICE OR PRODUCT, INCLUDING, WITHOUT LIMITATION, ANY SOFTWARE USED BY THE SITE OR ANY SERVICE, MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, (INCLUDING, WITHOUT LIMITATION, POSSIBLE MONETARY DAMAGES), INCLUDING, WITHOUT LIMITATION, FOR COPYRIGHT INFRINGEMENT.
Links and Feeds. The NYA Service may provide links to or feeds from other web sites and online resources. We and our Affiliates are not responsible for and do not endorse such external sites or resources. Other sites may link to the NYA Service with or without our authorization, and we may block any links to or from the NYA Service. YOUR ACCESS TO AND USE OF THIRD PARTY WEB SITES, CONTENT AND RESOURCES IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY WEB SITES, CONTENT AND RESOURCES (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY WEB SITES, CONTENT AND RESOURCES).
Limitations of Liability and Disclaimers. THE NYA SERVICE AND ALL GOODS, SERVICES, PRODUCTS, THIRD PARTY SERVICES, THIRD PARTY CONTENT, INFORMATION AND MATERIALS MADE AVAILABLE THROUGH THE NYA SERVICE ARE PROVIDED TO YOU “AS IS” WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND WE, NEIL, OUR AFFILIATES AND OUR AND THEIR RESPECTIVE REPRESENTATIVES DISCLAIM ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS WITH RESPECT TO THE NYA SERVICE AND ALL GOODS, SERVICES, PRODUCTS, THIRD PARTY SERVICES, THIRD PARTY CONTENT, INFORMATION AND MATERIALS MADE AVAILABLE THROUGH THE NYA SERVICE, INCLUDING THE REPRESENTATIONS AND WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. (CERTAIN REPRESENTATIVES MAY SEPARATELY PROVIDE LIMITED REPRESENTATIONS AND/OR WARRANTIES REGARDING THEIR THIRD PARTY SERVICES; PLEASE CHECK WITH SUCH REPRESENTATIVES FOR FURTHER INFORMATION.) WE, NEIL, OUR AFFILIATES AND OUR AND THEIR RESPECTIVE REPRESENTATIVES MAKE NO REPRESENTATION OR WARRANTY THAT THE NYA SERVICE (OR ANY PART THEREOF), OR ANY GOODS, SERVICES, PRODUCTS, THIRD PARTY SERVICES, THIRD PARTY CONTENT, INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE NYA SERVICE IS OR WILL BE ACCURATE, COMPLETE, ERROR-FREE, OR COMPATIBLE WITH ANY PARTICULAR SOFTWARE OR HARDWARE. FURTHER, WE, NEIL, OUR AFFILIATES AND OUR AND THEIR RESPECTIVE REPRESENTATIVES MAKE NO REPRESENTATION OR WARRANTY THAT ANY SOFTWARE, HARDWARE, EQUIPMENT OR OTHER DEVICE OR SYSTEM USING THE NYA SERVICE OR ANY GOODS, SERVICES, PRODUCTS, THIRD PARTY SERVICES, THIRD PARTY CONTENT, INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE NYA SERVICE WILL FUNCTION IN ANY MANNER. YOU HEREBY AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO (A) OBTAIN AND PAY FOR ANY SOFTWARE, HARDWARE OR SERVICES (INCLUDING INTERNET CONNECTIVITY) NEEDED TO USE THE NYA SERVICE AND (B) ENSURE THAT ANY SOFTWARE, HARDWARE, EQUIPMENT, DEVICES, SYSTEMS OR SERVICES THAT YOU USE WILL FUNCTION CORRECTLY WITH THE NYA SERVICE AND ANY GOODS, SERVICES, PRODUCTS, THIRD PARTY SERVICES, THIRD PARTY CONTENT, INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE NYA SERVICE. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE NYA SERVICE, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY THIRD PARTY SERVICES, THIRD PARTY CONTENT, INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE NYA SERVICE. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF US, NEIL, OUR AFFILIATES AND OUR AND THEIR RESPECTIVE REPRESENTATIVES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
WE, NEIL, OUR AFFILIATES AND OUR AND THEIR RESPECTIVE REPRESENTATIVES, AND OUR AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, WILL NOT BE LIABLE IN CONNECTION WITH THE NYA SERVICE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OR INTERRUPTION OF BUSINESS, LOSS OF USE, LOSS OF DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE NYA SERVICE (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH YOUR USE OR RECEIPT OF ANY THIRD PARTY SERVICES OR THIRD PARTY CONTENT OR IN CONNECTION WITH YOUR SUBMISSIONS), OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. FURTHER, WE, NEIL, OUR AFFILIATES AND OUR RESPECTIVE REPRESENTATIVES WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE NYA SERVICE OR FROM ANY THIRD PARTY SERVICES, THIRD PARTY CONTENT, INFORMATION OR MATERIALS ON THE NYA SERVICE, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE NYA SERVICE IS TO STOP USING THE NYA SERVICE. OUR MAXIMUM LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE SHALL BE THE GREATER OF (A) THE TOTAL AMOUNT PAID BY YOU TO US TO ACCESS AND USE THE NYA SERVICE AND (B) TEN DOLLARS ($10.00).
IT IS POSSIBLE THAT APPLICABLE LAW MAY NOT ALLOW FOR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES OR EXCLUSIONS OR LIMITATIONS OF CERTAIN DAMAGES; SOLELY TO THE EXTENT THAT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. IF YOU ARE A CONSUMER RESIDING IN NEW JERSEY, PLEASE SEE THE IMPORTANT NOTE IN SECTION 27 BELOW.
While we try to maintain the timeliness, integrity and security of the NYA Service, we do not guarantee that the NYA Service or any Third Party Services is or will be updated, complete, correct or secure or that any use of the NYA Service or any Third Party Services will be uninterrupted. The NYA Service or any Third Party Services may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the NYA Service or any Third Party Services. If you become aware of any such unauthorized third party alterations to the NYA Service, contact us at firstname.lastname@example.org with a description of the material(s) at issue and the URL or location of such materials.
Indemnity. Except to the extent prohibited under applicable law, you agree to defend, indemnify and hold harmless us, Neil, our Affiliates and our and their respective Representatives, from and against all claims, liabilities, damages, judgments, awards, losses, costs, fees and expenses (including attorneys’ fees) arising out of (a) your use of, or activities in connection with, the NYA Service (including all Submissions); (b) any violation or alleged violation of this Agreement by you; (c) any use or other exploitation, or failure or omission to use or otherwise exploit, any Submission (including any portion thereof) that you post or make available; or (d) any claim that your Submission or any use or exploitation thereof caused damage to or infringed upon or violated the rights of a third party, including without limitation past, present or future infringement, misappropriation, libel, defamation, invasion of privacy or right of publicity or violation of rights related to the foregoing.
Termination. This Agreement is effective until terminated. We may, at any time and for any or no reason (including if we believe you have violated or acted inconsistently with the letter or spirit of this Agreement), terminate or suspend your access to or use of: (a) the NYA Service, (b) your user name and password or (c) any files or information associated with your user name and password. If we terminate or suspend your access to or use of the NYA Service, you will not have the right to bring claims against us, Neil, our Affiliates or our or their respective Representatives with respect to such termination or suspension. We, Neil, and our Affiliates and our and their respective Representatives, shall not be liable for any termination or suspension of your access to the NYA Service or to any such information or files, and shall not be required to make such information or files available to you after any such termination or suspension. We may take steps that we believe are appropriate to enforce or verify compliance with any part of this Agreement (including our right to cooperate with any legal process relating to your use of the NYA Service, any Products or Services or any third party claim that your use of the NYA Service or Products or Services is unlawful or infringes such third party's rights). Sections 2, 6-8, 17-25, 27-29, 30 and 31 shall survive any expiration or termination of this Agreement.
Governing Law; Dispute Resolution. You hereby agree that this Agreement (and any claim or dispute arising in connection with this Agreement or your use of the NYA Service) is governed by and shall be construed in accordance with the laws of the United States (including federal arbitration law) and the State of New York, U.S.A., without regard to its principles of conflicts of law or the U.N. Convention of Contracts for International Sale of Goods, and regardless of your location. Except for disputes that qualify for small claims court, all disputes arising out of or related to this Agreement or any aspect of the relationship between you and us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury and you agree that each of you and us are waiving the right to trial by a jury. Except as provided below regarding the class action waiver, such disputes include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability or validity of the arbitration provision or any portion of the arbitration provision. All such matters shall be decided by an arbitrator and not by a court or judge. However, as set forth below, the preceding arbitration requirement shall not apply to disputes solely to the extent relating to the interpretation or application of the class action waiver below, including its enforceability, revocability or validity.
You agree that any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class action. Notwithstanding anything to the contrary in this Section or any other provision of this Agreement or in the American Arbitration Association’s Consumer Arbitration Rules, disputes regarding the enforceability, revocability or validity of the foregoing class action waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action, and (2) there is a final judicial determination that all or part of such class action waiver is unenforceable, then the class, collective, and/or representative action, to that extent, must be litigated in a civil court of competent jurisdiction, but the portion of such class action waiver that is enforceable shall be enforced in arbitration.
The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
Notwithstanding the foregoing, you agree that any unauthorized use of the NYA Service, Products or any related software or materials, or any Third Party Services, would result in irreparable injury to us, Neil, our Affiliates or our or their respective Representatives for which money damages would be inadequate, and in such event we, Neil, our Affiliates or our or their respective Representatives, as applicable, shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against you. Nothing contained in this section or elsewhere in this Agreement shall be construed to limit remedies or relief available pursuant to statutory or other claims that we, Neil, our Affiliates or our or their respective Representatives may have under separate legal authority, including, without limitation, any claim for intellectual property infringement.
Filtering. Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers.Please note that we do not endorse any products or services listed at this site.
Information or Complaints. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the NYA Service, please feel free to contact us via e-mail at email@example.com. E-mail communications are not necessarily secure, so please do not include credit card information or other sensitive information in any e-mail to us. You may also contact us by phone at (818) 953-2600 or by writing to us at Warner Bros. Records, 3300 Warner Blvd, Burbank, CA 91505. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445 1254 or (800) 952-5210.
Important Note to New Jersey Consumers. If you are a consumer residing in New Jersey, the following provisions of this Agreement do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) in Section 21 above, the disclaimer of liability for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code and New Jersey Consumer Fraud Act); (b) in Section 21 above, the limitation of liability for lost profits or loss or misuse of any data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) in Section 21 above, application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) in Section 22 above, the requirement that you indemnify us (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) in Section 24 above, the New York governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
Claims of Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the NYA Service infringe your copyright, you (or your agent) may send us a notice requesting that we remove the material or disable access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.govfor details. Notices and counter-notices should be sent to:
DMCA Agent-Litigation Department
New York, NY 10019
Telephone Number: (212) 275-2000
We suggest that you consult your legal advisor before filing a notice or counter-notice.
Ability to Enter Into This Agreement. By using the NYA Service, you affirm that you are of legal age to enter into this Agreement or, if you are not, that you have obtained parental or guardian consent to enter into this Agreement.
Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
Terms Applicable for Apple iOS.
If you are accessing or using the Service through a mobile phone, tablet or other device provided by Apple Inc. (“Apple”) and running on Apple’s iOS (an “Apple Device”), the following additional terms and conditions are applicable to you and are incorporated into the Terms by this reference:
(i)To the extent that you are accessing the Service through an Apple Device, you acknowledge that this Agreement are entered into between you and NYA and that Apple is not a party to this Agreement other than as third-party beneficiary as contemplated below.
(ii)The license granted to you in this Agreement is subject to the permitted Usage Rules set forth in the App Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Service.
(iii)You acknowledge that NYA, and not Apple, is responsible for providing the Service and content thereof.
(iv)You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.
(v)To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
(vi)Notwithstanding anything to the contrary herein, and subject to the terms in this Agreement, you acknowledge that, solely as between Apple and NYA, NYA, and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims; (ii) any claim that the Service fails to confirm to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vii)Further, you agree that if the Service, or your possession and use of the Service, infringes on a third party's intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(viii)You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
(ix)When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.