Terms of Service
1. GENERAL RULES AND DEFINITIONS
3. USER GENERATED CONTENT: SUBMISSIONS INCLUDING COMMENTS, PHOTOS, CONTEST ENTRIES AND MORE
4. ACCESS AND AVAILABILITY OF SERVICE AND LINKS
5. REPRESENTATIONS AND WARRANTIES
6. DISCLAIMER OF WARRANTIES; EXCLUSIONS AND LIMITATIONS OF LIABILITY
7. INDEMNIFICATION
8. REGISTRATION AND SECURITY
9. FEES AND PAYMENTS
10. COMMUNICATIONS BETWEEN NESN AND USERS
11. THIRD-PARTY AUTHENTICATION; THIRD-PARTY SERVICES
12. DEVICES AND CHARGES
13. SOFTWARE LICENSES
14. BINDING ARBITRATION OF ALL DISPUTES. NO CLASS RELIEF
15. TERMINATION
16. MISCELLANEOUS
1. GENERAL RULES AND DEFINITIONS
1.1 Compliance with Terms. If you choose to use the NESN 360 service or application, any of the features of the service or app, including, but not limited to RSS, API, software and other downloads, and the NESN website (the “Site”) located at http://www.nesn.com (collectively, “the Services”), you will be agreeing to abide by all of the terms and conditions of these Terms of Service between you and New England Sports Network (“NESN”, “us”, or “we”).
1.2 Changes to Service. We may change, add or remove portions of these Terms of Service at any time, which shall become effective immediately upon posting. It is your responsibility to review these Terms of Service prior to each use of the Services and by continuing to use the Services, you agree to any changes.
1.3 Changes to Terms. IF ANY OF THESE RULES OR ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, YOU MAY CANCEL YOUR NESN USER PROFILE OR YOUR PAID SUBSCRIPTION BY VISITING YOUR ACCOUNT SETTINGS AT NESN.COM PURSUANT TO THE TERMS OF SERVICE (SEE SECTION 15.1 REGARDING TERMINATION OF SERVICE). YOUR CONTINUED USE OF THE SERVICES NOW, OR FOLLOWING THE POSTING OF NOTICE OF ANY CHANGES IN THESE OPERATING RULES, WILL INDICATE ACCEPTANCE BY YOU OF SUCH RULES, CHANGES, OR MODIFICATIONS.
1.4 Additional Terms. We may change, suspend or discontinue any aspect of the Services at any time, including the availability of any Services feature, database, or content. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. Separate, additional terms may also apply to your use of the Services (“Additional Terms”). Any Additional Terms will be posted in connection with the applicable Services. Applicable Additional Terms form a part of these Terms of Service. Where any direct conflict exists between these Terms of Service and any Additional Terms, the Additional Terms will control, provided that our Privacy Policy will control over any contradictory Additional Terms or provisions of these Terms.
2.1 Personal, Noncommercial Use. The contents of the Services are intended for your personal, noncommercial use. All materials published on the Services (including, but not limited to, game broadcasts, rebroadcasts and highlights, feature shows, news articles, photographs, images, illustrations, audio and video files of any size, also known as the “Content”) are protected by copyright, and owned or controlled by NESN or the party credited as the provider of the Content. You shall abide by all additional copyright notices, information, or restrictions contained in any Content accessed through the Services.
2.2 Commercial Licenses. In order for you to use or display the Content for commercial purposes, including at restaurants, bars or other commercial establishments, you will need a commercial license from NESN. If you are interested in obtaining such a license please contact NESN 360 Commercial Sales at NESN360Commercial@NESN.com. 2.3 Copyright. The Services and Contents are protected by copyright pursuant to U.S. and international copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided in Section 2.4 of these Terms of Service), create new works from, distribute, perform, display, or in any way exploit, any of the Content or the Services (including software) in whole or in part.
2.4 Copyright Notices. You may download or copy the Content and other downloadable items displayed on the Services for personal use only, provided that you maintain all copyright and other notices contained therein. Copying or storing of any Content for other than personal use is expressly prohibited without prior written permission from NESN Programming, or the copyright holder identified in the copyright notice contained in the Content (e.g., National Hockey League, Major League Baseball or other copyright holder).
2.5 Ownership of Content. The Content of the Services is owned by, or licensed to, NESN. Certain Content is furnished by agencies, which will not be liable for any delays, inaccuracies, errors or omissions in any such Content, or in the transmission or delivery of all or any part thereof, or for any damages arising therefrom.
2.6 Content Suggestions; No Advice. Content types, ratings, reviews, genres, categories, and descriptions are provided as suggestions to help navigation. We do not guarantee that you will agree with these suggestions. You should not rely on the Content you view for advice. If you are susceptible to photosensitive epilepsy or other photosensitivities, please be aware that some Content may contain flashing lights or sequences of patterns.
2.7 Displaying Content; Simultaneous Streams. Some aspects of the display of Content (for example, high definition or ultra high definition for TV shows or movies and speed to initiate viewing) may vary from device to device, and may be affected by factors such as your location, the configuration of your device and the speed of your internet connection. We make no representations or warranties about the quality of your viewing experience on your device or other display. The Services may limit your viewing to a maximum number of simultaneous streams and may limit your ability to view certain Content, including live Red Sox and Bruins game broadcasts, outside of the Red Sox and Bruins home television territories (currently comprising New England except for Fairfield County, Connecticut). NESN may change the maximum number of simultaneous streams of Content at any time in our sole discretion.
2.8 Temporary Downloads. Some of the Services may provide you functionality to temporarily download Content to your device for off-line viewing within the Services, for instance within the NESN mobile application. If your subscription permits temporary downloads, you acknowledge that (i) you have no right to distribute such Content or view or otherwise use such Content through any means other than the Services, (ii) downloads may be subject to limitations, which may change from time to time, including with respect to Content type and amount, device limitations, accessibility of temporary downloads, and geographic restrictions on playback, (iii) NESN makes no guarantee that the Content will be available off-line. For the avoidance of doubt, downloaded Content will no longer be available to you if you terminate or change your subscription to a subscription that does not permit temporary downloads.
3. USER GENERATED CONTENT: SUBMISSIONS INCLUDING COMMENTS, PHOTOS, CONTEST ENTRIES AND MORE
3.1 Community Forum Standards of Conduct. You shall not upload to, or distribute or otherwise publish onto, the Services any libelous, defamatory, obscene, pornographic, abusive, or otherwise illegal material. You agree that you will not threaten or verbally abuse other users of the Services, use defamatory language, or deliberately disrupt discussions with repetitive messages, meaningless messages or “spam.”
You agree not to use language that abuses or discriminates on the basis of race, religion, nationality, gender, sexual preference, age, region, or disability. Hate speech of any kind is grounds for immediate and permanent suspension of access to all or part of the Services.
NESN encourages active discussions and welcomes debate on the Services, but personal attacks are a direct violation of these Terms of Service and are grounds for immediate and permanent suspension of access to all or part of the Service. If your attack contains a threat of violence or may incite violence or unlawful behavior, we may report it and you to law enforcement.
You may not impersonate another user or a NESN staff member by choosing a similar screen name. You must disclose conflicts of interest.
3.2 No Solicitation. The Services shall be used only in a noncommercial manner except in accordance with Section 2. You shall not, without the express approval of NESN, distribute or otherwise publish any material containing any solicitation of funds, advertising or solicitation for goods or services.
3.3 Submissions. You acknowledge that any submissions you make to the Services (i.e., user-generated content, including, but not limited to: comments, forum messages, reviews, text, video, audio and photographs, as well as computer code and applications) (each, a “Submission”) may be edited, removed, modified, published, transmitted, and displayed by NESN, and you waive any rights you may have in having the material altered or changed in a manner not agreeable to you. Submissions made to the Services may also be included in our RSS feeds and APIs, and made available for republishing through other formats.
3.4 License of Submissions. You grant NESN a perpetual, nonexclusive, world-wide, royalty free, sub-licensable license to the Submissions, which includes without limitation the right for NESN or any third party it designates, to use, copy, transmit, excerpt, publish, distribute, publicly display, publicly perform, create derivative works of, host, index, cache, tag, encode, modify and adapt (including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies) in any form or media now known or hereinafter developed, any Submission posted by you on or to the Services or any other website owned by NESN, including any Submission posted on or to the Services through a third party.
3.5 Content of Submissions. You are solely responsible for the content of your Submissions and agree not to include content to which you are not the authorized rights holder. However, while NESN does not and cannot review every Submission and is not responsible for the content of these messages, NESN reserves the right to delete, move, or edit Submissions that it, in its sole discretion, deems abusive, defamatory, obscene, in violation of copyright or trademark laws, or otherwise unacceptable.
3.6 Display and Publication. By making a Submission, you are consenting to its display and publication on the Site and in the Services and for related online and offline promotional uses.
3.7 Corrective Action. By making a Submission, you acknowledge that if your comment threatens violence, may incite violence or unlawful behavior, or is otherwise potentially illegal, we may take all appropriate action. Such action may include, among other actions, conducting an investigation, contacting law enforcement and cooperating with any resulting investigation, or providing information about your identity to law enforcement at their request, whether or not we are legally compelled to do so.
4. ACCESS AND AVAILABILITY OF SERVICES AND LINKS
4.1 Availability of Third-Party Resources. The Services may contain links to other related websites, resources, and advertisers. Since we are not responsible for the availability of these outside resources, or their contents, you should direct any concerns regarding any external link to the site administrator or Webmaster of that site.
4.2 Wireless Features. The Services may offer certain features and services that are available via your wireless device, such as the ability to access certain features, or download applications to your wireless device (collectively, “Wireless Features”). Your carrier may prohibit or restrict certain Wireless Features, certain Wireless Features may be incompatible with your carrier or wireless device, and your carrier may charge you fees based on your use of the Wireless Features. We are not responsible for any charges from your carrier or other third parties. If you register for or use any Wireless Features, you agree that (i) we may send communications to your device regarding us or other parties in connection with those Wireless Features, and (ii) you will update your account on the Services to notify us of any changes to your contact information.
4.3 Location-Based Features; Availability of Content. The availability of Content on the Services may change from time to time and from place to place. Some Services may not function without access to location information and we will not be liable to you for limitations or restrictions on access to Content, including any blackouts, location or device-based limitations, Content-viewing windows, or other limitations regarding availability of Content to you.
5. REPRESENTATIONS AND WARRANTIES
You represent, warrant and covenant (a) that no materials of any kind submitted through your account will (i) violate, plagiarize, or infringe upon the rights of any third party, including copyright, trademark, privacy or other personal or proprietary rights; or (ii) contain libelous or otherwise unlawful material; and (b) that you are at least thirteen years old.
6. DISCLAIMER OF WARRANTIES; EXCLUSIONS AND LIMITATIONS OF LIABILITY
We make no representations or warranties as to the Services (which, for purposes of this Section 6 only, shall include the Third Party Services) with respect to their accuracy, timeliness, reliability, completeness or otherwise.
NESN PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NESN, ITS PARENT COMPANIES, EACH OF ITS AFFILIATES, AND ALL SUCH PARTIES’ DIRECTORS, OFFICERS, EMPLOYEES, MEMBERS, PARTNERS, AGENTS AND LICENSORS (COLLECTIVELY, THE “NESN PARTIES”) DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL APPLE, AMAZON.COM, INC., GOOGLE, INC., MICROSOFT CORPORATION, SAMSUNG ELECTRONICS AMERICA, INC., OR ANY OTHER THIRD PARTY THAT OWNS OR OPERATES THE APP STORE OR PLATFORM THROUGH WHICH YOU ACCESS AND/OR DOWNLOAD THE SERVICES, OR THEIR RESPECTIVE AFFILIATES, VENDORS, AGENTS AND SUPPLIERS, AS APPLICABLE, GIVE ANY WARRANTY, HAVE ANY RESPONSIBILITY OR HAVE ANY LIABILITY WITH RESPECT TO YOUR USE OF THE SERVICES, OR ANY CONTENT OR FUNCTIONALITY IN THE SERVICES, NOR SHALL THEY BE RESPONSIBLE FOR PROVIDING SUPPORT SERVICES WITH RESPECT TO THE SERVICES. NONE OF THE NESN PARTIES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) OR ANY DAMAGES WHATSOEVER THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE SERVICES. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND EVEN IF NESN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NONE OF THE NESN PARTIES SHALL BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, THE NESN PARTIES WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF (1) YOUR FAILURE TO COMPLY WITH THE TERMS OR (2) CONTENT POSTED TO THE SERVICES BY YOU OR ANY THIRD PARTY.
IN NO EVENT WILL THE NESN PARTIES’ AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THE SERVICES OR THESE TERMS EXCEED (A) THE AMOUNT (IF ANY) PAID BY YOU TO NESN IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE LIABILITY OR (B) ONE HUNDRED DOLLARS ($100), WHICHEVER IS LESS.
YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF THE ACTS OR OMISSIONS OF THE NESN PARTIES OR YOUR USE OF THE SERVICES ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE SERVICES.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SOME OF THE LIMITATIONS SET FORTH IN THESE TERMS MAY NOT APPLY TO YOU. THE NESN PARTIES’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAW OF SUCH JURISDICTION. THIS PARAGRAPH WILL ONLY APPLY IF AN ARBITRATOR OR COURT WITH APPLICABLE JURISDICTION IN ACCORDANCE WITH THESE TERMS FINDS EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY TO BE UNCONSCIONABLE OR OTHERWISE VIOLATE APPLICABLE LAWS. NOTHING IN THESE TERMS SHALL EFFECT A WAIVER OF ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
7. INDEMNIFICATION
You agree to defend, indemnify and hold harmless the NESN Parties from and against any and all claims, demands, actions, suits or proceedings, as well as any and all losses, liabilities, damages,costs and expenses (including reasonable legal fees and costs)arising out of or related to (i) any breach of these Terms, (ii) your User Content, and/or content or materials uploaded by any other subscriber or user of your account that infringes any intellectual property right of any person or entity or defames any person or violates their rights of publicity or privacy, and (iii) any misrepresentation made by you in connection with your use of the Services.
8. REGISTRATION AND SECURITY
8.1 Login Credentials. As part of the registration or account creation process, you will create login credentials by selecting a password and providing an e-mail address. You must also provide certain registration information, all of which must be accurate and updated. (a) You may not (i) select or use the login credentials of another person with the intent to impersonate that person; (ii) use login credentials in which another person has rights without such person’s authorization; (iii) use login credentials that NESN, in its sole discretion, deems offensive; or (iv) use login credentials that have been altered from those previously provided for the purpose of circumventing NESN’s promotional policies and rules. Failure to comply with the foregoing shall constitute a breach of these Terms of Service, which may result in immediate termination of your account. (b) You shall be responsible for maintaining the confidentiality of your password, which you will not have to reveal to any representative or agent of NESN.
8.2 Notification of Breach of Security. You shall notify data@nesn.com of any known or suspected unauthorized use(s) of your account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or credit card information.
8.3 Age. You must be 13 years or older to use or subscribe to all parts of the Services.
8.4 Responsibility for Account Usage. You are responsible for all usage or activity on your NESN account, including use of the account by any third party authorized by you to use your login credentials. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your account, at our sole discretion, and we may refer you to appropriate law enforcement agencies. It is NESN’s policy, in appropriate circumstances, to terminate the accounts of users who are repeat infringers of third parties’ intellectual property rights or who are repeatedly accused of infringement.
9. FEES AND PAYMENTS
We reserve the right at any time to charge fees for access to portions of the Services or the Services as a whole. However, in no event will you be charged for access to the Services unless we obtain your prior agreement to pay such charges. Thus, if at any time we require a fee for portions of the Services that are now free, we will give you advance notice of such fees. You may cancel your account at any time, but will be obligated for all payments covering the term for which you subscribed . All new fees, if any, will be posted prominently on the Site and in other appropriate locations on the Services. You shall pay all fees and charges incurred through your account at the rates in effect for the billing period in which such fees and charges are incurred, including, but not limited to, charges for any digital products or services offered for sale through the Services by us or by any other vendor or service provider. All fees and charges shall be billed to and paid for by you. You shall pay all applicable taxes relating to use of the Services through your account. By signing up for a subscription, you agreed that your subscription will be automatically renewed and, unless you cancel your subscription, you authorized us to charge your payment method for the renewal term.
As set forth in our Terms of Purchase for NESN 360, if you cancel your NESN 360 subscription, you cancel only future charges associated with your subscription. Cancellations are effective beginning after the term of your current subscription (i.e., the month or year of your subscription). You will continue to have the same access and benefits of your product for the remainder of the current subscription term. You may notify us of your intent to cancel at any time, but the cancellation will become effective at the end of your current subscription term. Payments are non-refundable and there are no refunds or credits for partially used billing periods. If you cancel your subscription, you will still be obligated to pay other charges incurred by you in the course of using NESN 360 prior to the date of cancellation.
We reserve the right to issue refunds or credits, at our sole discretion. If we issue a refund or credit, we are under no obligation to issue the same or similar refund or credit in the future.
From time to time, we may offer a promotional trial subscription for the NESN 360 product on a free or discounted basis. If you register for a free or discounted promotional trial subscription, we will begin to bill your account at the applicable full subscription rates when the promotional trial subscription expires, unless you cancel your subscription before that time.
10. COMMUNICATIONS BETWEEN NESN AND USERS
10.1 Third-Party Vendors. If you indicate on your registration form that you want to receive such information, we, our owners and assigns, will allow certain third-party vendors to provide you with information about products and services. For more information, please read our Privacy Policy.
10.2 Digital Communications (email, text, mobile push notifications, etc.). NESN may send you digital communications through electronic mail, text, and/or mobile push notifications for the purpose of informing you of changes or additions to the Services or other reasons relating to the Services. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. You can opt out of promotional communications by following the “Unsubscribe” directions for emails, through the NESN 360 Settings, or, if via text message, by responding STOP. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING NESN 360.
10.3 User Surveys. NESN may contact you via e-mail regarding your participation in user surveys, asking for feedback on current Services or prospective products and services. This information will be used to improve the Services and better understand NESN’s users, and any information we obtain in such surveys will not be shared with third parties, except in aggregate form and except that NESN may share such information with its affiliates.
10.4 App Permissions. When you use NESN 360, you may grant certain permissions to us relating to your device and/or accounts. Most mobile device platforms provide additional information regarding these permissions and how, if possible, to changes your permission settings. By downloading, installing or using the NESN 360 app, you agree to receive automatic software updates (as applicable).
10.5 Affiliate Advertising Programs. NESN is a participant in affiliate advertising programs designed to provide a means for websites, apps, or services to earn advertising fees by advertising and linking to third party retail sites. For further information, please refer to our Privacy Policy.
11. THIRD-PARTY AUTHENTICATION; THIRD-PARTY SERVICES
Use of the Services, or certain features or services provided in the Services, may require authentication by third-party service providers, such as your cable, satellite or wireless provider or multichannel video programming distributor through which you receive video programing services (a “Third-Party Service Provider”), if any. In such event, the authentication process and any information you provide therewith is strictly between you and the Third-Party Service Provider, and NESN shall have no responsibility or liability with respect to such process. Any information you provide in connection with the authentication process shall be subject to the terms of use and privacy policies of the applicable Third-Party Service Provider.
For your convenience, the Services may include or provide links to websites, widgets, software or other products or services of other persons or entities (“Third-Party Services”) that may interact with the Services. Third-Party Services are provided solely as a convenience to you, and we are not responsible for Third-Party Services. The inclusion on any Services of a link to or other integration with a third-party service does not imply an endorsement by us. Please understand that your rights and obligations while accessing those Third-Party Services will be governed by the agreements and policies relating to the use of those Third-Party Services.
12. DEVICES AND CHARGES
You are responsible for obtaining and maintaining all devices and other equipment and software, and all internet and wireless connectivity, mobile service, and other services needed for your access to and use of the Services, and you will be solely responsible for all charges related to them. NESN does not take responsibility for the performance of devices, including the ongoing compatibility of devices with Services. By using the Services, you agree to look solely to the entity that manufactured and/or sold or leased you the device for any issues related to your device.
You are responsible for obtaining and maintaining all internet services, mobile service, and other services needed for your access to and use of the Services. You are responsible for any charges incurred in obtaining access to the Services. Please check with your internet service provider for information on possible data usage charges.
13. SOFTWARE LICENSES
You shall have no rights to the proprietary software and related documentation, or any enhancements or modifications thereto, provided to you in order to access the Services (“Software”). You may not sublicense, assign or transfer any licenses granted with respect to the Services, and any attempt at such sublicense, assignment or transfer shall be null and void. You may not otherwise copy, distribute, modify, reverse engineer, or create derivative works from Software.
14. BINDING ARBITRATION OF ALL DISPUTES. NO CLASS RELIEF
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
14.1 Initial Dispute Resolution. NESN is available at one of the modes of communication outlined at support.NESN.com to address any concerns you may have regarding your use of the Services. Most concerns may be quickly resolved in this manner. You agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration; documentation showing that you or NESN pursued this initial dispute resolution process must be included with any arbitration demand.
14.2 Agreement to Binding Arbitration. If you and NESN do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 14.1 above, then either you or NESN may initiate binding arbitration. Except for any disputes excluded below in Section 14.4, all claims arising out of or relating to these Terms (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered on a confidential basis by JAMS (Judicial Arbitration and Mediation Services, Inc), in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity, including public injunctive relief. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms shall be subject to the Federal Arbitration Act and applicable federal case law. The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250) and except for any claim determined by an arbitrator or court to be frivolous, brought in bad faith, or where the initiating party failed to follow the initial dispute resolution process, NESN will pay the additional cost up to a maximum of $1,000, unless the arbitrator or court determines that a higher amount is appropriate in order to ensure that the costs of arbitration for you are not prohibitive. If NESN is required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and NESN will make arrangements to pay all necessary fees directly to JAMS. NESN will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. NESN will also pay JAMS to reimburse you for any portion of the $250 filing fee that is more than what you would otherwise have to pay to file suit in a court of law. You understand that the right to discovery may be more limited in arbitration than in court.
14.3 Class Action and Class Arbitration Waiver. You and NESN each further agree that any arbitration shall be conducted in our respective individual capacities only and not as a class action, and you and NESN each expressly waive our respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 14.2 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
14.4 Exceptions. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
14.5 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Section 14.2 and Section 14.3 by sending written notice of your decision to opt-out by using one of the modes of communication outlined at support.NESN.com. The notice must be sent within thirty (30) days of your first use of the Services, or the effective date of the first set of Terms containing an Arbitration and Class Action and Class Arbitration Waiver section, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, NESN also will not be bound by them.
14.6 Term for Cause of Action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
14.7 Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in Section 14.2 do not apply or if you have opted out of arbitration, you agree that any litigation shall be filed exclusively in state or federal courts located in Middlesex County, Massachusetts (except for small claims court actions, which may be brought in the county where you reside). You and we expressly consent to exclusive jurisdiction in Middlesex County, Massachusetts for any litigation other than small claims court actions. In the event of litigation relating to these Terms or the Services, you agree to waive, to the maximum extent permitted by law, any right to a jury trial, except where a jury trial waiver is not permissible under applicable law.
15. TERMINATION
15.1 Account Termination. You may terminate your account at any time. Your access will be suspended within two business days. Termination of paid digital products will be governed by our Cancellation and Refund Policy included in the Terms of Purchase.
15.2 Termination of Access to Services. NESN may, in its sole discretion, terminate or suspend your access to all or part of the Services for any reason, including, without limitation, breach or assignment of these Terms of Service.
16. MISCELLANEOUS
16.1 Governing Law. These Terms of Service have been made in, and shall be construed and enforced in accordance with, Massachusetts law. Any action to enforce these Terms of Service shall be brought in the federal or state courts of Massachusetts.
16.2 Interpretation with Privacy Policy. Notwithstanding any of the foregoing, nothing in these Terms of Service will serve to preempt the promises made in NESN’s Privacy Policy.
16.3 Notices. Correspondence should be sent to one of the modes of communication outlined at support.NESN.com.
16.4 Reporting Violations. You agree to report any violations of the Terms of Service to NESN as soon as you become aware of them. In the event you have a claim of copyright infringement with respect to material that is contained in the Services, please notify NESN via one of the modes of communication outlined at support.NESN.com. (You may use this for general questions as well.)
16.5 No Waiver. No failure or delay by NESN in exercising any right, power or privilege under these Terms of Service will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under these Terms of Service.
16.6 Severability. Unless otherwise expressly provided herein, the invalidity or unenforceability of any provision of these Terms of Service will not affect the validity or enforceability of any other provision, all of which will remain in full force and effect.
16.7 Copyright Infringement Notices. If you believe that your work has been copied on the Site or in the Services in a way that constitutes copyright infringement, please provide us with all of the following information:
1. a physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed;
2. a description of the copyrighted work that you claim has been infringed;
3. a description of where the material that you claim is infringing is located on the Site;
4. your address, telephone number, and email address and all other information reasonably sufficient to permit us to contact you;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
6. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notices of claimed copyright infringement should be sent to:
NESN
480 Arsenal Way, Building 1
Watertown, MA 02472
Contact NESN by phone or e-mail by visiting: support.NESN.com.
16.8 Survival. Sections 2, 5-7, 9, and 14-16 of these Terms of Service, and any other terms that by their nature survive these Terms, shall survive any termination of these Terms.