Big Live, Inc. Terms of Service
Last Updated: September 9, 2010
Welcome to the Big Live, Inc. (“Big Live”) web site and online services (the “Big Live Service”). The following Terms of Service for the Big Live Service creates a legal contract between you, either an individual subscriber, customer, member, or user (“You”), and Big Live regarding your use of the Big Live Service. Visitors and users of the Big Live Service are referred to individually as “User” and collectively as “Users”. The Big Live Service allows you to view and listen to images, performances, and other content transmitted to you via Big Live (the “Big Live Content”).
PLEASE READ THE FOLLOWING TERMS OF SERVICE AND ANY OTHER RULES AND GUIDELINES THAT MAY FROM TIME TO TIME BE COMMUNICATED TO YOU THROUGH THE BIG LIVE SERVICE (COLLECTIVELY, THE “TERMS”) CAREFULLY, AS THESE TERMS CREATE A BINDING LEGAL CONTRACT BETWEEN YOU AND BIG LIVE. BY AVAILING YOURSELF OF THE BIG LIVE SERVICE IN ANY MANNER, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS, INCLUDING AS AMENDED BY BIG LIVE IN ITS SOLE DISCRETION FROM TIME TO TIME (AS NOTED AT THE TOP OF THE TERMS AS OF THE DATE “LAST UPDATED”). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, INCLUDING AS AMENDED OR SUPPLEMENTED BY BIG LIVE, YOU SHOULD IMMEDIATELY TERMINATE YOUR USE OF THE BIG LIVE SERVICE.
NOTE TO CHILDREN UNDER 13 YEARS OF AGE: THE BIG LIVE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13. If you are under 13 years of age, then you are not permitted to use the Big Live Service.
BY CLICKING ON THE “JOIN” BUTTON, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.
TABLE OF CONTENTS
- ACCESSING THE BIG LIVE SERVICE
- INTELLECTUAL PROPERTY RIGHTS NOTICE
- USER CREATED CONTENT
- MONITORING USER SUBMISSIONS; REMOVAL OF CONTENT
- PROHIBITED USE OF THE BIG LIVE SERVICE
- ACCOUNT INFORMATION & RESPONSIBILITIES OF REGISTERED USERS
- MODIFICATION OF THE TERMS
- THIRD PARTY CONTENT AND LINKS
- AVAILABILITY OF SERVICE
- USER DISAGREEMENTS
- LIMITATION OF LIABILITY
- LIMITATIONS; BASIS OF THE BARGAIN
- DIGITAL MILLENNIUM COPYRIGHT ACT
- DISPUTE RESOLUTION
- UNITED STATES EXPORT CONTROLS
2. ACCESSING THE BIG LIVE SERVICE
You represent that you are 18 years of age or older and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms and to abide by and comply with these Terms. In any case, you affirm that you are over the age of 13, as the Big Live Service is not intended for children under the age of 13. If you are using or opening an account on the Big Live Service on behalf of a company, entity, or organization (collectively “Subscribing Organization”), then you represent and warrant that you: (i) are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms and (ii) agree to be bound by these Terms on behalf of such Subscribing Organization.
The Big Live Service will permit you to consumer different forms of rich media and communicate with other Users while doing so. The Big Live Service may from time-to-time permit you to do one or more of the following: (a) play games, create and broadcast your own concerts, and act as a virtual DJ; (b) buy merchandise, tickets, exclusive MP3s, virtual goods, and videos; (c) communicate with other Users, either one-on-one, in private groups or with everyone viewing a similar channel of programming; (d) publish your location on other social media websites; (e) meet new people and network by finding people with similar tastes and interests; and (e) such other functionalities as Big Live may offer in its sole discretion.
(a) Big Live grants you permission to access and use the Big Live Service as set forth in these Terms, provided that: (i) you use the Big Live Service and Big Live Content solely for your personal, private, noncommercial use unless expressly authorized otherwise by Big Live, either directly or through a third party; (ii) you do not reproduce, publicly display, publicly perform, or distribute any part of the Big Live Service or Big Live Content, including any materials obtained from the Big Live Service, in any medium without Big Live"s prior written authorization, or as authorized in these Terms or any separate end user license agreement; (iii) you do not alter or modify any part of the Big Live Service other than as may be reasonably necessary to use the Big Live Service for its intended purposes; (iv) you do not engage in any of the prohibited uses described below; and (v) you will otherwise fully comply with these Terms.
(b) The Big Live Service is controlled and offered by Big Live from its facilities in the United States of America. Big Live makes no representations that the Big Live Service is appropriate or available for use in other locations, and use of or access to the Big Live Service from territories where any content or features that are available on or through the Big Live Service may be illegal is prohibited. Those who access or use the Big Live Service from other jurisdictions do so at their own risk and are solely responsible for compliance with local laws.
Certain functions on the Big Live Service may now or in the future have fees associated with them. Before using any of the Big Live Service for which a fee will be required or charged, you will have an opportunity to review and accept the fees that you will be charged based on our stated fees, which we may change from time to time in our sole discretion. Big Live may choose to temporarily change the fees for Big Live"s services for promotional events or new services without liability to users who have already paid higher fees for the same services, and such changes are effective immediately upon posting through the Big Live Service. Any changes for such fees will be effective as described in Section 10 (“Modification of the Terms”
), below. Unless otherwise stated, all fees are in U.S. Dollars.
2.5 Virtual Currency
Certain functions on the Big Live Service may allow you to earn and use virtual currency on the Big Live Service. Big Live may allow Users to purchase virtual currency, for a fee, rather than earning them on the Big Live Service. The virtual currency represents a limited license right governed solely under these Terms, and is not redeemable for any sum of money or monetary value from Big Live or any other party at any time. You agree that Big Live has the absolute right to manage, regulate, control, modify, and/or eliminate the virtual currency as it sees fit in its sole discretion, in any general or specific case, and that Big Live will have no liability to you based on its exercise of such right.
3. INTELLECTUAL PROPERTY RIGHTS NOTICE
The Big Live Service is owned and operated by Big Live. The content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Big Live Service and Big Live Content (collectively, the “Big Live Products”), are the valuable proprietary and intellectual property of Big Live or its licensors. Big Live Products are protected by any and all applicable international, federal, and state laws, rules, orders and regulations relating to intellectual or proprietary property, including, but not limited to, patent, copyright, trademark and trade secret. You agree not to reproduce, distribute, display, revise, create derivatives of, copy, publish, sell, license, or edit any such content, information or software contained in any Big Live Products. You may view and download a single copy of the Big Live Products for your own personal, noncommercial use to the extent Big Live has authorized such Big Live Products for download. Any attempt to download, print, publish or maintain a significant portion of the content, information, or software from the Big Live Service in violation of these Terms or any applicable license, to distribute copies of such content, information or software, or to otherwise exploit the Big Live Products in violation of the intellectual property or proprietary rights of Big Live or others is strictly prohibited by these Terms. Any additional software or Big Live Products made available for download is subject to these Terms, and may be further subject to the provisions of any additional end user license agreement specific to such download.
All aspects of the Big Live Service, are licensed, not sold or otherwise transferred to you. Subject to your acceptance of, and ongoing compliance with, these Terms (including payment of any applicable license fees), Big Live hereby grants you a limited, non-transferable, non-sublicensable, revocable license to (a) access and use Big Live Content through the Big Live Service and as otherwise permitted by these Terms and the features of the Big Live Service, for your own personal enjoyment; and (b) access, use, and share works you create using the Big Live Service, subject to and consistent with these Terms and the intended features of the Big Live Service.
4.2Safe and Responsible Use
You, and not Big Live, are solely responsible for your use of Big Live Products, and you should use common sense and exercise good judgment when making choices concerning such use. Without limiting the generality of the preceding sentence, the following are some examples of particular considerations you should keep in mind: (a) activities that involve prolonged screen viewing time may lead to eye strain; (b) you should never use the Big Live Service while driving a motor vehicle or operating other machinery, or while engaging in other activities that require focused attention to accomplish safely; and (c) you should consult a doctor if experiencing any adverse medical symptoms while using the Big Live Products.
4.3Disclosure of Personal Information
Users of the Big Live Service should use the Service responsibly and with awareness of the potential dangers that may exist when disclosing one"s personal information to others on the Internet, including personal information that may disclose your identify, residential address, place of employment or school, and current location. Using the Big Live Service or any social media website may expose you to or increase your risk of identity theft, cyber stalking, cyber bullying, spamming, financial scams, and other dangers, including physical injury. Scam artists, sexual predators, and other criminal elements have been exploiting the anonymity that the Internet can provide to victimize unsuspecting or overly trusting individuals. You should be circumspect in the information you disclose or transmit to other Users of the Big Live Service. All disclosures that you make about yourself on or through the Big Live Service are made at your own risk and Big Live shall not be responsible for any damages, injury or harm that may arise from such disclosures.
5. USER CREATED CONTENT
The Big Live Products may now or in the future provide features for you and other users to create, submit, post, and share content on the Big Live Service, including, but not limited to, musical works, sound recordings, photographs, audiovisual works, text, chat, commentary, or any other content submitted by you and other users through the Big Live Service (“User Submissions”), and provide for the hosting, sharing, reproduction, distribution, public performance, public display, and creation of derivative works of such User Submissions. You must be a registered Big Live user to submit content to the Big Live Service. User Submissions are displayed for entertainment and informational purposes only and are not controlled by Big Live. Big Live cannot guarantee any anonymity or confidentiality with respect to any User Submissions, and content you upload to the Big Live Service may be embarrassing to you, either now or in the future, and Big Live strongly recommends that you think carefully about what you upload to the Big Live Service. You understand that all User Submissions are the sole responsibility of the person from whom such User Submission originated. This means that you, and not Big Live, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit or otherwise make available through the Big Live Service.
5.2 No Obligation to Publish
Big Live makes no representations that it will publish or make available on the Big Live Service any User Submissions, and reserves the right, in its sole discretion, to refuse to allow any User Submissions on the Big Live Service, or to remove any User Submission at any time with or without notice and without any liability to you. Without limiting the generality of the preceding sentence, Big Live complies with the Digital Millennium Copyright Act, and will remove User Submissions upon receipt of a compliant takedown notice (see Section 19, “Digital Millennium Copyright Act,”
5.3 Retention of Rights
You retain all of your ownership rights in original aspects of your User Submissions, subject to Big Live"s or any third party"s underlying rights in any Big Live Content or third-party content embodied within any content you upload to the Big Live Service as a User Submission.
5.4 License Grant by You to Big Live
By submitting User Submissions to the Big Live Service, you hereby grant Big Live and its affiliates, sublicensees, partners, designees, and assignees of the Big Live Service (collectively, the “Big Live Licensees”) a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license, throughout the universe, to use, reproduce (including by making mechanical reproductions), distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, communicate to the public, and otherwise exploit (collectively, “Exploit”) your User Submissions, and any derivatives thereof, in connection with the Big Live Service and Big Live"s (and its successor"s) business, including, without limitation, for marketing, promoting, and redistributing all or part of the Big Live Service. The right to Exploit your User Submissions shall extend to any manner, process or format and for any purpose whatsoever, whether such manner, process, format or purpose is now known or hereinafter developed.
5.5 License Grant by You to Other Users
You hereby grant to each user of the Big Live Service a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, non-sublicensable, and transferable license, throughout the universe, to access, share, and Exploit your User Submissions as permitted by the functionality of the Big Live Service and these Terms, as amended from time to time, in all manner, process or format and for any purpose whatsoever, whether such manner, process, format or purpose is now known or hereinafter developed.
5.6 Additional License Grants.
You grant the Big Live Licensees the right to use your name and/or likeness and the name and/or likeness of any individual visible in any of your User Submission, and/or any name and/or likeness that you submit in connection with your User Submissions, in any way they should choose, without compensation or need for your prior approval, or to exercise any of the rights licensed by you hereunder, in connection with a fictional name or persona or without any attribution at all. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions. By accepting any prize from Big Live for participation in any contest, you hereby grant Big Live a non-exclusive, perpetual license to print, publish, broadcast and use, worldwide, in any media or format, whether now know or hereafter developed, and at any time, your name, picture, voice, likeness, and/or biographical information for promotional, advertising or related purposes without any additional compensation to you.
5.7 Third Party Licensed Materials
Additional Restrictions May Apply. Notwithstanding any rights and licenses granted to you in these Terms, portions of Big Live Content may contain copyrighted musical works, sound recordings, audiovisual works, photographs, images or other rights protected by law, owned by third parties and licensed to Big Live (the “Third-Party Content”) for certain limited uses within the Big Live Service, and your rights to access, use, and share the Third-Party Content, and any content that contains, incorporates, adapts, or otherwise utilizes such Third-Party Content, may be subject to certain restrictions including, but not limited to, prohibitions on saving such Third-Party Content or any derivative works based thereon to your device or other storage media, or on sharing such content through the Big Live Service, whether alone or as a part of any derivative work based thereon.
5.8 User Submissions Representations and Warranties
You are solely responsible for your own User Submissions and the consequences of posting or publishing them to the Big Live Service. In connection with User Submissions, you affirm, represent, and warrant that: (a) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Big Live to use all patent, trademark, copyright, or other proprietary rights in and to any and all User Submissions to enable inclusion and use of User Submissions in the manner contemplated by Big Live and these Terms, and to grant the rights and license set forth above (including all rights necessary for the use of any musical works, sound recordings, literary works, photographs, audiovisual works or other works embodied in any User Submissions), and (b) your User Submissions, Big Live"s or any Big Live Licensee"s use of such User Submissions pursuant to these Terms, and Big Live"s or any Big Live Licensee"s exercise of the license rights set forth above, do not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other proprietary rights of any other person; (iii) violate any applicable law or regulation; or (iv) require obtaining a license from or paying royalties to any third party for the exercise of any rights granted in these Terms, including, by way of example and not limitation, the payment of any royalties to any sound recording copyright owners or musical work copyright owners, including any so-called master use, mechanical, or synchronization royalties, any public performance royalties (including those payable to a performing rights organization (e.g., ASCAP, BMI, SESAC)), or any other payments to any unions, guilds, artists, performers, agents, engineers, producers, directors or other third parties.
5.9 User Submissions Prohibited Uses
In connection with your User Submissions, you further agree that you will not: (a) publish falsehoods or misrepresentations that could damage Big Live or any third party; (b) use any copyrighted content owned or controlled by a third party, including, but not limited to, musical works, sound recordings, literary works, photographs, audiovisual works, or any other works without obtaining the necessary permissions, licenses, and authorizations for the use of such third-party content; (c) submit material that is unlawful, defamatory, libelous, slanderous, threatening, pornographic, obscene, vulgar, harassing, harmful, hateful, abusive, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (d) post advertisements or solicitations of business; (e) impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; (f) post User Submissions that would be harmful to minors in any manner; or (g) reproduce, distribute, publicly display, publicly perform, adapt, or otherwise publish or cause to be published any User Submission except as permitted by these Terms and the features of the Big Live Service.
YOU MAY NOT UPLOAD TO THE BIG LIVE SERVICE, WHETHER IN WHOLE OR IN PART, ALONE OR IN COMBINATION WITH OTHER MATERIALS, ANY COPYRIGHTED SOUND RECORDINGS, MUSICAL WORKS, LITERARY WORKS, PHOTOGRAPHS, AUDIOVISUAL WORKS OR ANY OTHER WORKS THAT YOU DO NOT OWN, CONTROL OR HAVE AN EXPRESS WRITTEN LICENSE TO USE ON THE BIG LIVE SERVICE. IF YOU UPLOAD CONTENT FOR WHICH YOU DO NOT HAVE THE RIGHT OR AUTHORIZATION, THEN YOU MAY BE SUBJECT TO LIABILITY TO THIRD PARTIES FOR COPYRIGHT INFRINGEMENT OR OTHER DAMAGES, IN ADDITION TO ANY LIABILITY YOU MAY HAVE PURSUANT TO OTHER CAUSES OF ACTIONS BIG LIVE MAY BRING AGAINST YOU. BIG LIVE MAY, WITHOUT LIABILITY TO YOU, DEACTIVATE YOUR ACCOUNT AND/OR REMOVE ALL OF YOUR USER SUBMISSIONS FROM THE BIG LIVE SERVICE AT ANY TIME FOR ANY VIOLATION OF THIS SECTION.
5.10 Content Disclaimer
YOU UNDERSTAND THAT WHEN USING THE BIG LIVE SERVICE, YOU WILL BE EXPOSED TO THIRD-PARTY CONTENT AND USER SUBMISSIONS FROM A VARIETY OF SOURCES, AND THAT BIG LIVE IS NOT RESPONSIBLE FOR THE ACCURACY, INTEGRITY, QUALITY, LEGALITY, USEFULNESS, SAFETY, OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO SUCH THIRD-PARTY CONTENT AND USER SUBMISSIONS. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO THIRD-PARTY CONTENT AND USER SUBMISSIONS THAT ARE INACCURATE, OFFENSIVE, INDECENT, OR OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST BIG LIVE WITH RESPECT THERETO. BIG LIVE DOES NOT ENDORSE ANY THIRD-PARTY CONTENT OR USER SUBMISSION OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED THEREIN. UNDER NO CIRCUMSTANCES WILL BIG LIVE BE LIABLE IN ANY WAY FOR OR IN CONNECTION WITH ANY THIRD-PARTY CONTENT OR USER SUBMISSIONS, INCLUDING, BUT NOT LIMITED TO, FOR ANY INACCURACIES, ERRORS OR OMISSIONS IN ANY CONTENT, ANY INTELLECTUAL PROPERTY INFRINGEMENT WITH REGARD TO ANY CONTENT, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED OR OTHERWISE DISPLAYED OR TRANSMITTED VIA THE BIG LIVE SERVICE. BY ACCESSING OR USING ANY THIRD-PARTY CONTENT OR USER SUBMISSIONS THROUGH THE BIG LIVE SERVICE, YOU WAIVE ANY AND ALL CLAIMS AGAINST BIG LIVE THAT YOU MAY HAVE ARISING OUT OF OR RELATING TO SUCH THIRD-PARTY CONTENT OR USER SUBMISSIONS.
6. MONITORING USER SUBMISSIONS; REMOVAL OF CONTENT
Big Live does not control Third-Party Content or User Submissions and does not have any obligation to monitor such Third-Party Content or User Submissions for any purpose. Big Live may choose, in its sole discretion, to monitor, review, or otherwise access some or all Third-Party Content or User Submissions, but by doing so Big Live nonetheless assumes no responsibility for the Third-Party Content or User Submissions, no obligation to modify or remove any inappropriate Third-Party Content or User Submissions, or to monitor, review, or otherwise access other Third-Party Content or User Submissions, and Big Live assumes no responsibility for the conduct of the third party or user submitting any Third-Party Content or User Submissions. You acknowledge that Big Live may or may not pre-screen Third-Party Content or User Submissions, but that Big Live and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Third-Party Content or User Submission that is available via the Big Live Service. Without limiting the foregoing, Big Live and its designees may, at any time and without prior notice, remove any Third-Party Content or User Submission that in the sole judgment of Big Live violates these Terms or is otherwise objectionable, or for any other reason, with or without notice and with no liability of any kind. You agree that you must evaluate, and bear all risks associated with the use of any Third-Party Content or User Submissions or other content available on the Big Live Service, including any reliance on the accuracy, completeness, usefulness or legality of such Third-Party Content or User Submission. You should exercise good judgment before downloading any Third Party Content or User Submissions.
7. PROHIBITED USE OF THE BIG LIVE SERVICE
You agree not to use the Big Live Service for any unlawful purpose or in any way that might harm, damage, or disparage any other party. Without limiting the preceding sentence and by way of example, you agree that you will not, whether through the Big Live Service or your User Submissions, do or attempt any of the following:
7.1 Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Big Live Service, Big Live Products, Third-Party Content, User Submissions, or any other part thereof, except and solely to the extent permitted by these Terms, the features of the Big Live Service, or by law, or otherwise attempt to use or access any of the Big Live Service other than as intended;
7.2 Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Big Live Service, use of the Big Live Service, access to the Big Live Service, or Big Live Content, Third-Party Content, and User Submissions obtained through the Big Live Service, for any purpose other than for your personal, noncommercial purposes, except and solely to the extent permitted by these Terms;
7.3 Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Big Live Service, features that prevent or restrict the use or copying of any part of the Big Live Service, or features that enforce limitations on the use of the Big Live Service, Third-Party Content, and User Submissions;
7.4 Use any robot, spider, scraper, or other automated means of any kind to access the Big Live Service, except and solely to the extent permitted by these Terms and the features of the Big Live Service, deep-link to any feature or content on the Big Live Service, frame or otherwise enclose any Big Live trademark or any portion of the Big Live Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Big Live Service;
7.5 Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (such as rights of privacy and publicity) of third parties;
7.6 Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;
7.7 Create a false identity, impersonate another, or misrepresent one"s age or gender for the purpose of misleading others as to the identity of the sender or the origin of a message, including, but not limited to, providing misleading information to any feedback system employed through the Big Live Service;
7.8 Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful, damaging or deleterious software programs;
7.9 Interfere with or disrupt the Big Live Service, networks or servers connected to the Big Live Service, or violate the regulations, policies or procedures of such networks or servers;
7.10 Upload or otherwise transmit any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in your User Submissions;
7.11 Upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation (commercial or otherwise);
7.12 Use the Big Live Service in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.
8. ACCOUNT INFORMATION & RESPONSIBILITIES OF REGISTERED USERS
In order to access some features of the Big Live Service, including certain content, you will have to create an account. You hereby represent and warrant that the information you provide to Big Live upon registration and, at all other times, will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times.
As a registered user, you will have login information, including a username and password. Your account is personal to you, and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you should take care to preserve the confidentiality of your username and password, and any device that you use to access the Big Live Service. You agree to notify us immediately of any breach in secrecy of your login information. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Big Live by e-mail to firstname.lastname@example.org. You will be solely responsible for the losses incurred by Big Live and others (including other users) due to any unauthorized use of your account that takes place prior to notifying Big Live that your account has been compromised.
10. MODIFICATION OF THE TERMS
11. THIRD PARTY CONTENT AND LINKS
The Big Live Service may contain references or links to third-party materials (including, without limitation, web sites) not controlled by Big Live or its suppliers or licensors. Big Live provides such information and links as a convenience to you and should not be considered endorsements of such sites or any content, products or information offered on such sites. You acknowledge and agree that Big Live is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked from the Big Live Service.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Big Live Service are solely between you and such advertiser.
YOU AGREE THAT BIG LIVE WILL 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 ADVERTISERS ON THE BIG LIVE SERVICE.
When you leave the Big Live Service, these Terms no longer govern. You should review applicable terms and policies, including any relevant privacy policies, associated with any third party web sites, software or services you utilize.
12. AVAILABILITY OF SERVICE
Big Live may make changes to or discontinue any of the features, media, content, communities, products, software, or services available within the Big Live Service at any time, and without notice. The features, media, content, communities, products, software, or services on the Big Live Service may be out of date, and Big Live makes no commitment to update any materials on the Big Live Service. Big Live makes no representations and warranties with respect to the availability of the Big Live Service and may discontinue the service at any time with or without notice. You are solely responsible for maintaining back-up copies of any User Submissions you upload to the Big Live Service.
13. USER DISAGREEMENTS
Your use of the Big Live Service may bring you into contact with other users of the Big Live Service, and their User Submissions. You are solely responsible for your involvement with other users. If you have a dispute with one or more users, you release Big Live (and Big Live"s officers, directors, employees, agents, subsidiaries, joint ventures, and assigns) from any and all claims, demands, and damages (including, but not limited to, actual, direct, special, consequential, and punitive) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
14.1 By Big Live
Big Live, in its sole discretion and for any reason or no reason, may terminate any user or user account (or any part thereof) you may have on the Big Live Service, disable your access to the Big Live Service (or any part thereof), discontinue the Big Live Service and any related services including support (or any part thereof), or terminate any license granted to you hereunder (including licensed rights to any content or materials downloaded by you during your use of the Big Live Service, including User Submissions), at any time, with or without notice. You agree that any termination of your access to the Big Live Service or any account you may have or portion thereof may be effected without prior notice, and you agree that Big Live shall not be liable to you or any third-party for any such termination, including for the unavailability of any User Submissions (including those uploaded by you). Big Live does not permit unlawful, infringing, fraudulent or otherwise illegitimate activities on the Big Live Service, and reserves the right to terminate access to the Big Live Service, or halt, suspend, or terminate prizes (whether proposed, pending or past) in cases of actual or suspected fraud, or violations of these Terms or other laws or regulations. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Big Live may have at law or in equity.
14.2 By You
If you are dissatisfied with the Big Live Service, then please let us know by e-mailing us at email@example.com
. Your only remedy with respect to any dissatisfaction with (a) the Big Live Service, (b) any provision of these Terms, (c) any policy or practice of Big Live in operating the Big Live Service, or (d) any content or information transmitted through the Big Live Service, is to terminate your use of the Big Live Service. You may terminate your use by closing your account, discontinuing your use of any and all parts of the Big Live Service, or providing Big Live with notice of termination at firstname.lastname@example.org.
), Section 3 (“Intellectual Property Rights Notice”
), Section 5 (“User Created Content”
), Section 9 (“Password”
), Section 11(“Third Party Content and Links”
), Section 13 (“User Disagreements”
), Section 14.3 (“Survival”
), Section 15 (“Indemnity”
), Section 16 (“Disclaimers”
), Section 17 (“Limitation of Liability”
), Section 18 (“Limitations; Basis of the Bargain”
), Section 20 (“Dispute Resolution”
), and Section 23 (“Miscellaneous”
). Notwithstanding the survival of Section 5, your rights under any licenses granted to you by Big Live or by any other Big Live Users pursuant to these Terms, shall terminate immediately upon termination by Big Live pursuant to Section 14.1, and licenses granted to you with respect to any piece of content removed from the Big Live Service pursuant to Section 19 will terminate immediately upon such removal.
You agree to indemnify and hold harmless Big Live and its parent, subsidiaries, affiliates or any related companies, licensors and suppliers, and their respective directors, officers, employees, agents, representatives, contractors, and assigns and other Big Live Users who use any User Submissions you upload to and make available on the Big Live Service, from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, legal and accounting fees) arising from or in any way related to (i) your use or misuse of the Big Live Service; (ii) your User Submissions, including Big Live"s or any User"s reproduction, distribution, public performance, public display, modification, editing, adaptation, or other Exploitation of your User Submissions consistent with these Terms; (iii) your breach or other violation of these Terms including any representations, warranties, and covenants herein; (iv) your violation of the rights of any other person or entity, including, but not limited to, claims that any User Submission infringes or violates any third party intellectual property rights or other proprietary rights, including any claims for the payment of so-called mechanical royalties, synchronization royalties, master use royalties, public performance royalties, use or re-use guild or union fees, or any other royalties or fees claimed by any owner or other party claiming any right in or claim for compensation arising from all or any portion of any User Submission. Big Live reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent from Big Live. Big Live will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
THE BIG LIVE SERVICE, USER SUBMISSIONS AND ANY THIRD-PARTY CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE BIG LIVE SERVICE, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BIG LIVE AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BIG LIVE OR THROUGH THE BIG LIVE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. BIG LIVE AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE BIG LIVE SERVICE OR ANY PART THEREOF, OR ANY BIG LIVE PRODUCTS OR CONTENT, INCLUDING BIG LIVE CONTENT, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE BIG LIVE SERVICE OR ANY ASSOCIATED SITES OR APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM, HANDSET, OR ANY OTHER DEVICE OR PERIPHERAL USED IN CONNECTION WITH THE BIG LIVE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
BIG LIVE MAKES NO REPRESENTATIONS OR WARRANTIES, IMPLICIT OR EXPLICIT, AS TO YOUR LEGAL RIGHT TO PARTICIPATE IN ANY CONTEST OFFERED ON THE BIG LIVE SERVICE NOR SHALL ANY PERSON AFFILIATED, OR CLAIMING AFFILIATION, WITH BIG LIVE HAVE AUTHORITY TO MAKE ANY SUCH REPRESENTATIONS OR WARRANTIES.
17. LIMITATION OF LIABILITY
IN NO EVENT WILL BIG LIVE OR ITS OFFICERS, DIRECTORS, LICENSORS OR SUPPLIERS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR ACCESS OF OR INABILITY TO USE OR ACCESS THE BIG LIVE SERVICE OR ITS CONTENT, INCLUDING USER SUBMISSIONS, OR ANY OTHER LINKED WEB SITE, APPLICATION, OR OTHER SERVICE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, OR OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF BIG LIVE OR ITS LICENSORS OR SUPPLIERS IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BIG LIVE OR ITS LICENSORS OR SUPPLIERS BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES INCURRED BY YOU THAT EXCEED THE GREATER OF THE AMOUNT OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID BIG LIVE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
18. LIMITATIONS; BASIS OF THE BARGAIN
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND BIG LIVE, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND BIG LIVE, BIG LIVE"S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT BIG LIVE WOULD NOT BE ABLE TO OFFER THE BIG LIVE SERVICE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
19. DIGITAL MILLENNIUM COPYRIGHT ACT
If you are a copyright owner or an agent thereof, and you believe any User Submission or other Content hosted on the Big Live Service infringes your copyright, then you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Big Live"s Designated Copyright Agent with the following information in writing:
· a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
· identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Big Live Service are covered by a single notification, a representative list of such works on the Big Live Service;
· identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Big Live to locate the material;
· information reasonably sufficient to permit Big Live to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
· a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (for example, “I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law.”);
· a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is/are allegedly infringed by the aforementioned content.”).
Big Live does not permit copyright infringing activities and infringement of intellectual property rights on the Big Live Service, and Big Live will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another"s intellectual property rights. It is Big Live"s policy to respond promptly to notices of alleged infringement that comply with the DMCA. In addition, Big Live will promptly terminate without notice the accounts of Users that are determined by Big Live to be “repeat infringers.” A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had a User Submission removed from the Website more than twice.
Big Live"s Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows:
Attention: Copyright Agent
Big Live, Inc.
930 Montgomery St. Suite 300
San Francisco, CA 94133
or by electronic mail email@example.com
For clarity, only DMCA notices should go to the Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Big Live customer service through firstname.lastname@example.org
. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
20. DISPUTE RESOLUTION
Generally, if a dispute arises between Big Live and you, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Big Live agree that the parties will resolve any claim or controversy at law or equity that arises out of these Terms or the Big Live Service (a “Claim”) in accordance with one of the subsections below or as you and we otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
20.2 Choice of Law; Forum
These Terms shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Big Live must be resolved by a court located in San Francisco County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the federal and state courts located within San Francisco County, California for the purpose of litigating all such claims or disputes.
20.3 Arbitration Option
For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding, non-appearance-based arbitration administered by the American Arbitration Association (“AAA”
) under its Commercial Arbitration Rules. In the event a party elects arbitration, the party shall initiate such arbitration through the AAA in San Francisco County, California, and the arbitrator to resolve the dispute between the parties must be located in San Francisco County, California. The parties agree to waive oral hearings in any case to be decided by an arbitrator under this section. The arbitrator 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 require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
20.4 Equitable Relief
The foregoing provisions of this Dispute Resolution Section do not apply to any Claim in which Big Live seeks equitable relief of any kind.
You and Big Live agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms or the Big Live Service must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
20.6 Improperly Filed Claims
All claims you bring against Big Live must be resolved in accordance with this Dispute Resolution Section. All claims filed or brought contrary to this Dispute Resolution Section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution Section, Big Live may recover attorneys" fees and costs up to $15,000, provided that Big Live has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
Big Live may provide you with notices by electronic mail, regular mail or postings through the Big Live Service. If Notice is provided by electronic mail, notice will be deemed given twenty-four hours after electronic mail is sent, unless Big Live is notified that the electronic mail address is invalid. If notice is provided by posting through the Big Live Service, then notice will be deemed given upon such posting. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Big Live Service. In such case, notice will be deemed given three days after the date of mailing. You are obligated to provide Big Live with a valid e-mail address for so long as you continue to use the Big Live Service and for twelve months after your termination of use of the Big Live Service.
22. UNITED STATES EXPORT CONTROLS
You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by you that you will not export such technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under these Terms are contingent on your compliance with this provision.
A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Big Live to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Big Live without restriction. Any assignment attempted to be made by you in violation of these Terms shall be void. These Terms will inure to the benefit of, and be binding upon, the parties, together with their respective representatives, successors, and assigns (if applicable).
23.4 No Agency
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Big Live as a result of these Terms or use of the Big Live Service. You further acknowledge that by submitting User Submissions, no confidential, fiduciary, contractually implied or other relationship is created between you and Big Live other than pursuant to these Terms.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
23.6 Entire Agreement
This is the entire agreement between you and Big Live relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. These Terms shall not be modified except in a writing, signed by both parties, or by a change to these Terms made by Big Live as set forth in Section 10 above.
The services hereunder are offered by:
Big Live, Inc.
930 Montgomery St. Suite 300
San Francisco, CA 94133
If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for this information or by e-mailing us at email@example.com.