Terms of Agreement

EFFECTIVE DATE: October 11, 2015
WELCOME

These terms are intended to make you aware of the rules and conditions of your use of BroadwayHD.com and any derivative website on which these terms are posted or linked to BroadwayHD.com (the "Sites") which are owned and operated by BroadwayHD LLC, a New York limited liability company (the "Company"). Certain other words which are capitalized in these terms may be specifically defined below.

These terms constitute a legal and enforceable agreement between the Company and you.

By using or otherwise accessing the Sites, creating, registering or accessing an account, Posting or downloading content or any other information to or from the Sites, purchasing any products or services offered by the Sites or manifesting your assent to these terms in any other manner, you hereby expressly agree, accept and shall be subject, to, these terms without reservation.

1.            Definitions

The following shall be defined in these terms, as follows:

"User" shall mean you or the entity you are authorized to bind to the Agreement.

"Account" shall mean an account established by User after providing accurate information required by Company during a registration process, including a user name or similar identifier and a password, in order to access one or more pages of the Sites.

"IP" SHALL MEAN INTELLECTUAL PROPERTY WHICH SHALL INCLUDE THE FOLLOWING LEGAL RIGHTS: (I) PATENTS, PATENT APPLICATIONS AND PATENT RIGHTS; (II) RIGHTS ASSOCIATED WITH WORKS OF AUTHORSHIP INCLUDING COPYRIGHTS, COPYRIGHT APPLICATIONS AND COPYRIGHT REGISTRATIONS; (III) RIGHTS RELATING TO THE PROTECTION OF TRADE SECRETS AND CONFIDENTIAL INFORMATION INCLUDING RIGHTS IN UNPATENTED KNOW-HOW; (IV) DESIGN RIGHTS; (V) MORAL RIGHTS; (VI) TRADEMARKS, TRADE NAMES, TRADEMARK APPLICATIONS AND REGISTRATIONS, SERVICE MARKS AND RIGHTS IN TRADE DRESS; AND (VII) ANY RIGHTS ANALOGOUS TO THE AFOREMENTIONED RIGHTS AND ANY OTHER PROPRIETARY RIGHTS RELATING TO INTELLECTUAL PROPERTY, ALONG WITH ANY DIVISIONS, CONTINUATIONS, RENEWALS, REISSUES AND EXTENSIONS OF THE AFOREMENTIONED RIGHTS (AS APPLICABLE) NOW EXISTING OR FILED, ISSUED OR ACQUIRED.

"IP Owners" shall mean Company and third parties, other than User, authorized or permitted by Company to post IP on the Sites or elsewhere as applicable, who own or control, or have applicable consent to use, such IP.

"Content" shall mean information, data, statistics, software, photos and other graphic images, video, text, graphics, music, sounds or other materials of a similar or dissimilar nature in all forms, media and technologies existing now or hereafter developed created or provided by Company or its affiliates, licensees or other associates. Without limiting the generality of the foregoing, Content shall include audio/visual materials, articles, social media content, blog postings, interviews, news, columns, editorials, punditry, features, scores, game progress and statistics.

"User Content" shall mean information, data, statistics, software, photos and other graphic images, video, text, graphics, music, sounds or other materials of a similar or dissimilar nature in all forms, media and technologies existing now or hereafter developed created or created by User or owned, controlled or provided by User. Without limiting the generality of the foregoing, User Content shall include articles, social media content, blog postings, interviews, news, columns, editorials, punditry, features, scores, game progress and statistics.

"Subscription Content" shall mean Content or services including Content made available by the Sites on a subscription basis upon payment of any applicable fees or other charges associated with the Subscription Content.

"Post" or "Posting" shall mean the manner of posting, transmitting, uploading, providing, making available or otherwise transferring Content, User Content or Feedback to the Sites.

"Feedback" shall mean comments, feedback, opinions, critical commentary, information, or materials regarding the Sites, Content, User Content or Company’s products or services Posted by User for possible inclusion in the Sites.

"Outside Links" shall mean websites or resources, or any content on the Internet which Company does not own or control.

"Order" shall mean any order placed by a User for licensing, products, subscriptions and/or services via the Sites that is accepted by Company.

"Payment Process" shall mean a "Shopping Cart," or similar ordering mechanism or other Internet-based payment processing system utilized to process payments by credit cards, debit cards, bank and other wire transfers and other customary methods of payment. Whether managed by Company or a third party with which Company maintains an agreement for such payment processing.

"Purchase" shall mean the buying or licensing of products, services, Content or Subscription Content or the resulting subject matter of such buying or licensing.

2.            Changes to Terms

Company reserves the right, at its discretion and from time to time, to change, modify, add or remove portions of these terms at any time by posting such changes to this page. In addition, if you have previously registered an Account, Company will endeavor to notify you of such changes via the email address you provided to Company or as an advisory on the Sites. Notwithstanding the immediately preceding sentence, it is your affirmative obligation to check these terms periodically for changes. Your continued use of the Sites following the posting of changes to these terms will constitute your acceptance of any such changes and a ratification of the resulting terms of use of the Sites.

3.            Company Intellectual Property

(a)          The Sites are proprietary and protected by copyright laws, international copyright treaties, and other intellectual property laws and treaties. All individual articles, blog postings, interviews, news, social media content, columns, editorials, punditry, features, scores, game progress and certain other elements making up the Sites are also copyrighted works. You agree to abide by all applicable copyright and other laws, as well as any additional copyright restrictions displayed on or in connection with the Sites.

(b)          The Sites were developed, compiled, prepared, revised, selected, and arranged by IP Owners through the expenditure of substantial time, effort, and financial resources and constitute valuable property of the IP Owners. You acknowledge and agree that you have no ownership rights in or to the Sites or IP and that no such rights are granted under these terms. You agree to protect the proprietary rights of the IP Owners during and after your use of the Sites. Should you be authorized to use IP as permitted herein, you shall comply with all restrictions or requests made by the applicable IP Owners to protect their contractual, statutory, and common law rights in the IP with reasonable care or the same degree of care used to protect your own proprietary rights, if greater. Company shall retain all rights to all data comprising or included in the Sites (including without limitation related information, such as instructional materials and videos). The granting of this license does not affect the ownership of any Content or IP whether tangible or intangible.

You shall not use any of Company’s trademarks, trade names, or service marks in any manner that creates the impression that such names and marks belong to or are identified with you or that you are associated with or licensed by Company to use such names or marks, and you acknowledge that you have no ownership rights in or to any of these names or marks. You shall not, at any time during or after the effective term of this agreement dispute or contest, directly or indirectly, Company's exclusive right and title to its trademarks or the validity thereof.

You may not copy, reverse engineer, disassemble, decompile, translate, modify, reproduce, republish, transmit, sell, offer for sale, disseminate or redistribute the IP included in or utilized in connection with the Sites or any part thereof or grant any other person or entity the right or access to do so.

4.            Limited License

Company hereby grants to you a limited, nonexclusive license (that may not be transferred or assigned) to access and use the Sites, including if applicable viewing Subscription Content for the duration of the applicable subscription, and other Content, solely for your noncommercial and personal use, subject to your agreement to and compliance with these terms. If you do not comply with these terms at any time, Company reserves the right to revoke the aforementioned license(s), limit your access to the Sites or restrict your ability to interact with the Sites or order products and services from the Sites. All rights not otherwise expressly granted to you by these terms are reserved by Company without limitation.

5.            Limitations on License

Other than User Content, you agree not to reproduce, duplicate, copy, distribute, transmit, sell, trade, resell or exploit for any purpose any portion of the Sites. You may not obscure or remove any proprietary rights notices contained in or on the Content. You are solely responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical and other physical requirements necessary for your access to and use of the Sites or any part thereof.

You agree that you must bear all risks associated with Content, including without limitation, any reliance on the accuracy, completeness, or usefulness of such Content.

Company may discontinue or alter any aspect of the Sites, remove Content from the Sites, restrict the time the Sites are available or restrict the amount of use permitted at Company’s sole discretion and without prior notice or liability.

6.            Suspension or Termination of Access

Company shall have the unrestricted right, under certain circumstances, to immediately suspend and/or terminate your access to the Sites or any parts thereof. Such actions may be taken in Company’s sole discretion and without liability to you or any third party.

Causes for such suspension or termination may include, without limitation:

(a)          your breach or violation of these terms or other incorporated agreements or guidelines;

(b)          you impersonate or misrepresent any person on or in connection with the Sites;

(c)           you engage in unacceptable use of the Sites or any part thereof: which shall include the Prohibited Uses specified below in these terms;

(d)          unexpected technical or security issues or problems;

(e)          extended periods of inactivity; or

(f)           discontinuance or material modification to the Sites.

7.            ACCOUNTS

The Account, if you establish one, is personal to you, and you will not allow any other person to utilize the Account. You shall be responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password in connection with the Account. You shall not interfere with anyone else’s use and enjoyment of the Sites. A User who violates systems or network security may incur criminal or civil liability.

You agree to immediately notify Company in the event your registration information changes or you learn of or have reason to suspect any unauthorized use of the Account or any other breach of security. Company may refuse to grant a particular username to you for any reason, including, without limitation, in the event Company determines that such username impersonates someone else, may be protected by trademark or other proprietary right, is vulgar or otherwise offensive.

8.            USER CONTENT

By Posting User Content on the Sites, User grants to Company a limited, transferable, nonexclusive, worldwide, perpetual, royalty-free license to use, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, sublicense and create derivative works and compilations incorporating such User Content. You grant the Company and its affiliates the right to use the name and any other information that you submit in connection with such User Content. If you disclose personal information on the Sites, that information may be collected and used by third parties without our knowledge and may result in unsolicited activities from third parties. Such activities are beyond the control of the Company and its affiliates and Company and its affiliates shall not be responsible for such unsolicited activities.

Company does not generally pre-screen, monitor or edit the content posted by users of communications services, chat rooms, message boards, newsgroups, software libraries, or other interactive services that may be available on or in connection with the Sites. However, Company has the right at its sole discretion to remove any User Content or other content that, in Company’s sole discretion, does not comply with these terms and any other rules of user conduct for the Sites, or is otherwise harmful, objectionable, or inaccurate. Company shall not be responsible for any failure or delay in removing such User Content or other content. You hereby consent to such removal and waive any claim against Company arising out of such removal of User Content or other content. You agree that you must bear all risks associated with User Content, including without limitation, any reliance on the accuracy, completeness, or usefulness of such User Content. You also permit any other user to access, review, store, or reproduce such User Content for that user's personal and non-commercial use. In the event you would like to request that your User Content be removed from the Sites, please notify Company as set forth below. If Company agrees, in its sole discretion, to remove your User Content, such User Content may not be completely removed or may otherwise still be available to others in the following circumstances: (a) your User Content has been incorporated into derivative works or compilations created by the Company or other parties; (b) the User Content has been retained in Company’s data backup systems or for archival purposes; or (c) to the extent the User Content has been sold to or downloaded by other persons and such persons retain your User Content.

9.            Feedback

Company welcomes your Feedback. If you post Feedback, please note that your Feedback shall become the property of Company. By submitting your Feedback, you agree to assign, and hereby irrevocably assign to Company, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. Company shall be free to use your Feedback on an unrestricted basis. You hereby assign and/or waive, as the case may be, any moral rights that you may have in or to the Feedback including all international copyrights regardless of any treaties, neighboring rights or moral rights. You agree that you bear all risks associated with Feedback, including without limitation, any reliance on the accuracy, completeness, lawfulness or usefulness of such Feedback.

10.          Social Media.

The Company may provide you the option to connect your Account to your account on some social networking sites (such as via Facebook Connect) for the purpose of logging in, uploading information or enabling certain elements on the Sites. When enabling this feature, the Company will disclose to you the information the Company collects from the connected social networking site, and will use such information in compliance with, the Company’s Privacy Policy. Once connected, some of the users of the Sites may also be able to see information about your social network, such as the size of your network and your friends, including common friends. By connecting your Account on any social networking site, you hereby consent to the continuous release of information about you to Company. Company will not send any of the Account information to the connected social networking site without first disclosing that to you. Each social network may allow you to set privacy controls around your information on their system and Company’s collection of information will always follow such controls and permissions. This feature is subject to continuous change and improvement by us and each social networking site involved, and therefore the available features and shared information are subject to change without notice to you.

11.          User Content Representations

In the event that you Post any User Content or provide any Feedback on or through the Sites, you hereby represent and warrant to Company: a) you own such User Content or Feedback or otherwise have the right to grant Company the licenses or assignments granted pursuant to these terms; (b) you have secured any and all consents necessary to Post the User Content or Feedback and to grant the foregoing licenses or assignments; (c) the User Content or Feedback does not violate the rights of any third party, including, without limitation, the IP, privacy or publicity rights of any third party, and such User Content or Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights; (d) Company’s use of any User Content or Feedback will not result in harm or personal injury to any third party; and (e) all factual information contained in the User Content or Feedback is true and accurate.

12.          Company’s Privacy Policy

You acknowledge that you read in full, and agree with, terms of our Privacy Policy, linked to and incorporated into this agreement by reference, which contains your consent to our collection, use, retention, and disclosure of personal information as well as other matters. The Privacy Policy also explains how and for what purposes Company collects, uses, retains, discloses, and safeguards the information you provide to Company.

13.          Links

The Sites or third parties authorized by Company may provide access to Outside Links. Because Company has no control over Outside Links, you acknowledge and agree that Company is not responsible for the availability of Outside Links and Company does not endorse and is not responsible or liable for any Outside Links or any advertising, products, services, content or other materials on or available from Outside Links or for any privacy or other practices of the Outside Links or their owners or operators. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any Outside Links. Company strongly encourages you to review any separate terms of use and privacy policies governing use of Outside Links.

14.          Promotions

From time to time, the Sites may include advertisements, promotions, sweepstakes, contests, games of skill, coupons, gifts and premiums offered by third parties unrelated to the Company (each, a "Third Party Offer"). You may enter into correspondence with or participate in Third Party Offers on or in connection with the Sites. Any such correspondence or Third Party Offers, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or Third Party Offers, are solely between you and the party providing the Third Party Offer. The Company assumes no liability, obligation or responsibility for any part of any such correspondence or Third Party Offer and you assume any and all risk of accepting or participating in any Third Party Offer.

15.          PURCHASES

Company may allow users to place Orders by way of the Sites or its website affiliates. Please note that in some cases you may be directed to an Outside Link to make Purchases. In such an event, the Order will be governed solely by the terms of such Outside Link. Company shall have no responsibility, and shall have no liability, for any claim related to your Purchases on Outside Links.

If you place an Order via the Sites, you shall pay to Company the Purchase price as set forth in the applicable Payment Process. Your Purchase is subject to any additional terms and conditions imposed by the Payment Process. The Purchase price and any applicable fees or taxes for which you may be responsible shall be applied to your chosen method of payment upon submission of your Order to the Payment Process.

Prices and availability of products and services are subject to change without notice. Errors will be corrected where discovered and Company reserves the right to revoke any stated offer and/or Order and to correct any errors, inaccuracies or omissions including after an Order has been submitted, confirmed, paid for or charged. In the event your payment has been accepted and charged, Company will issue you the appropriate credit or refund within a reasonable time after your Order has been revoked. Providing you with such credit or refund shall terminate any liability or responsibility Company may have to you with respect to the applicable Purchase.

In the event you Purchase a product that must be shipped to you, such products will be shipped by Company or its third-party contractors within a reasonable time after processing of your Order. Shipment time will vary depending on the shipping method and service you select. Company does not guarantee delivery at any certain time and is not responsible for shipping delays. You should review any additional terms provided at the point of sale.

In the event you Purchase products that embody or otherwise contain Content or Subscription Content you agree to the following restrictions regarding such products and the Content, Subscription Content or other information contained or embodied therein: (a) you may not resell any Content or Subscription Content or otherwise profit from use or display of either; (b) you may not, nor will you, allow any other party to reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, sublicense or create derivative works or compilations incorporating such Content or Subscription Content without the express permission, as applicable, of Company or its affiliates, licensees or other associates; (c) you will not otherwise violate any additional legal or contractual restrictions governing use of the Content or Subscription Content; and (d) you will not obscure or remove any proprietary rights notices contained in, on or in connection with the Content or Subscription Content. With respect to Subscription Content, you further agree to the following restrictions: (a) you may use the Subscription Content for your personal needs only in accordance with the terms of the Agreement; (b) you may not disclose the Subscription Content to third parties; and (c) you will use best efforts to safeguard such Subscription Content from unauthorized use or disclosure.

In the event a product ordered by you is inaccessible, unable to be viewed as intended or of poor quality that is not representative of the transmitted content upon receipt, Company, at its sole option, may provide a subsequent access for no additional charge or refund the Purchase price. Company cannot guarantee the quality of the products sold on the Sites that contain Content created by third parties or guarantee the lack of errors in such Content (including, without limitation, technical problems or other errors).

16.          USER REPRESENTATIONS

You hereby represent and warrant to Company that: (a) you (i) have reached the age of majority in the jurisdiction where you reside (generally 18, 19 or 21 years of age depending on the jurisdiction), (ii) are an emancipated minor under the laws of your jurisdiction of domicile and/or residence, or (iii) otherwise have the power and authority to enter into and perform your obligations under these terms; (b) all information provided by you to Company is truthful, accurate and complete; (c) you are an authorized signatory of the credit or debit card, bank account or other method of payment that you provide in connection with the Payment Process to pay the Purchase price and any applicable fees or taxes related to your Purchases of products or services from or in connection with the Sites; (d) you will comply with these terms and any other agreement to which you are subject that is related to your use of the Sites, Content or any part thereof; (e) you have provided and will maintain accurate and complete registration information with Company, including, without limitation, your legal name, email address and any other information Company may reasonably require; (f) your access to and use of the Sites or any part thereof or Purchase and use of any products or services will not constitute a breach or violation of any other agreement, contract, terms of use or any law or regulation to which you are subject; and (g) you will immediately notify Company in the event that you learn or suspect that your registration information, username or password has been disclosed or otherwise made known to any other person.

17.          PROHIBITED USES

You are solely responsible for any and all acts and omissions that occur under the Account or your password. You agree not to engage in unacceptable use of the Sites or any part thereof: which shall include (a) use of the Sites to post, store or disseminate material or information that is, or to a reasonable person may appear to be, false, fraudulent, unlawful, harmful, tortious, abusive, obscene, pornographic, defamatory, libelous, harassing, invasive of another’s privacy, offensive, vulgar, threatening, malicious, hateful or racially, ethnically or otherwise objectionable; (b) use of the Sites to post, store or disseminate Content, files, graphics, software or other material or information that actually or potentially infringes the rights of any person, including, without limitation, the copyright, trademark, service mark, patent, trade secret, trade dress, logo or other IP rights, or privacy, moral or publicity rights, of any person; (c) use of the Sites to interfere, disrupt or attempt to gain unauthorized access to other accounts on the Sites, to restricted portions of the Sites, to Content, or any other computer network or equipment; (d) use of the Sites to post, store or publicize advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or other fraudulent schemes, or any other form of solicitation; (f) use of any manual or automated software, devices or other processes to "crawl" or "spider" any web pages contained in the Sites (including, without limitation, the use of robots, bots, spiders, scrapers or any other means to extract pricing, product, service or other data from the Sites; (g) framing or otherwise simulating the appearance or functions of the Sites or any portion thereof; (h) threatening the damage of or damaging the Sites by means of a Trojan horse, malware or ransomware programs, malicious code and other actions that may result in loss or theft of data, money theft or possible system harm; (i) harvesting, cyber spying or otherwise collecting any information about other users, including, without limitation, email addresses or other contact information of other users or (j) use of the Sites to engage in any activity that, as determined by Company, may intentionally or unintentionally violate these terms, violate any applicable laws or regulations or conflict with the spirit or intent of these terms.

18.          Disclaimer

Company uses reasonable efforts to maintain the Sites, but Company is not responsible for any defects or failures associated with the Sites, any part thereof, any Content posted using the Sites, or any damages (such as lost profits or other consequential damages) that may result from any such defects or failures. The Sites may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment malfunctions, (b) periodic maintenance procedures or repairs which Company may undertake from time to time, or (c) causes beyond the control of Company or which are not foreseeable by Company.

Company does not control the User Content, nor does it have any obligation to monitor such User Content for any purpose. Despite the fact that it has no monitoring obligations, Company reserves the right to remove any and all material that is, in Company’s sole discretion, actually or potentially inappropriate, offensive, illegal or harmful in any respect or which may otherwise violate these terms. Company does not monitor or exercise control over the User Content or content or material from other third parties and does not make any warranties or representations regarding any of the User Content or content or material from other third parties offered through or in connection with the Sites or the quality thereof. Company does not necessarily approve, endorse, sanction, encourage, verify or agree with any message posted by its users or otherwise embodied in the Content. You understand that by using the Sites, you may be exposed to Content that may be offensive, indecent, vulgar, defamatory or otherwise objectionable, and that in no way shall Company be liable under any theory for such exposure.

Company is not a backup service for storing User Content and Company shall have no liability regarding any loss of User Content. You are solely responsible for creating backups of any User Content you post.

PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:

TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE SITES, ANY CONTENT AND ANY PRODUCTS OR SERVICES PROVIDED ON OR IN CONNECTION WITH THE SITES ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT ALLOWED BY LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE AND NON-INFRINGEMENT.

WITHOUT LIMITATION, COMPANY MAKES NO WARRANTY THAT THE SITES, ANY CONTENT OR ANY PRODUCTS OR SERVICES PROVIDED ON OR IN CONNECTION WITH THE SITES WILL MEET YOUR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION FOUND THEREON WILL BE ACCURATE OR RELIABLE, THAT YOUR RELIANCE ON THE EXPERTISE, COMMENTS OR OTHER CONTENT OF THE SITES MAY NOT BE HELPFUL AND THAT THE QUALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED THROUGH OR IN CONNECTION WITH THE SITES WILL MEET YOUR EXPECTATIONS.

ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITES IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR ANY OTHER DEVICE THROUGH WHICH YOU ACCESS THE SITES, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.

NO ADVICE OR INFORMATION OBTAINED BY YOU THROUGH OR IN CONNECTION WITH THE SITES OR ANY PRODUCT SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS.

19.          Limitation of Liability

TO THE MAXIMUM EXTENT ALLOWED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SITES, ANY CONTENT OR ANY PRODUCTS OR SERVICES PURCHASED ON OR IN CONNECTION WITH THE SITES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITES OR OTHERWISE OR SUBSCRIPTION CONTENT; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; OR (D) YOUR RELIANCE ON ANY CONTENT IN MAKING ASSESSMENTS, JUDGMENTS, DECISIONS AND CHOICES WITH RESPECT TO ANY GAME PLAY, CONTESTS AND OTHER SITE ACTIVITIES. IF YOU ARE DISSATISFIED WITH THE SITES, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USE OF THE SITES AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS. TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT [INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE] OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SITES, SUBSCRIPTION CONTENT OR PURCHASING COMPANY’S PRODUCTS OR SERVICES OR ANY AMOUNT RETAINED BY COMPANY FOR PROVIDING THE SERVICES.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. CCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

20.          Indemnification

You agree to defend, indemnify and hold harmless Company, its officers, members, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including attorneys’ fees and costs and expenses, arising out of or in any way connected with (a) your access to or use of the Sites or any part thereof, (b) any User Content or Feedback you Post, (c) a breach or alleged breach by you of any of your representations, warranties, covenants or obligations under these terms, (d) infringement or misappropriation of any IP or other rights of Company or third parties by you, (e) any negligence or willful misconduct by you, (f) any other claim related to your under these terms, or (g) your use of any Content, Subscription Content, services or products provided by Company.

21.          Term and Termination

These terms are effective upon your acceptance as set forth herein and shall continue in full force until terminated. You agree that Company, in its sole discretion, may terminate your use of the Sites or any part thereof upon prior notice and remove and discard any Content or User Content in the event you violate these terms. You agree that Company may immediately suspend the Account and your access to the Sites or any part thereof in order to conduct an investigation in the event Company believes you have violated these terms or if it determines that you are a repeat infringer of Company’s or third parties’ IP or other rights. Company may also, in its sole discretion and at any time, discontinue providing the Sites, any part thereof, any Content or any products or services advertised thereon, with or without notice. Further, you agree that Company shall not be liable to you or any third-party for any termination or suspension of your access to the Sites or any part thereof, removal of Content or sale of any products. You may terminate these terms at any time by immediately discontinuing your access to the Sites and by providing notice to Company of such discontinuance. Termination or cancellation of the Agreement shall not affect any right or relief to which Company may be entitled at law or in equity. Upon termination of the Agreement, you shall terminate all use of the Sites and any Content provided thereby. In the event of termination, you will not be entitled to any refund of any fees or other charges, if any, paid in connection with the Agreement.

22.          Independent Contractors

You and Company are and shall be independent contractors each with respect to the other and neither party by virtue of these terms shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.

23.          User Expenses

You acknowledge and agree that any expenses that you incur in furtherance of the agreement expressed by these terms are voluntary in nature and are made with the knowledge that such agreement may be terminated as provided herein. You shall not make a claim against Company, and Company shall not be liable with respect to, the recoupment of any expenditures or investment made by you in anticipation of the continuation of the Sites beyond the term hereof.

24.          Injunctive Relief

The parties agree that breach of these terms would cause irreparable harm and significant injury to Company which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that Company has the right to enforce these terms by injunction (without necessity of posting bond), specific performance or other equitable relief without prejudice to any other rights and remedies Company may have for your breach of these terms.

25.          Governing Law; Jurisdiction

The validity and effect of these terms shall be governed by, and construed and enforced in accordance with the laws of the State of New York without regard to its conflicts or choice of laws principles. ANY SUIT, ACTION OR PROCEEDING CONCERNING OR RELATING TO THE SITES, THEIR USE, THESE TERMS, ANY SALE OR ANY OTHER PRODUCT, SERVICE, POLICY OR PROCEDURE OF COMPANY, MUST BE BROUGHT EXCLUSIVELY IN A COURT OF COMPETENT JURISDICTION, FEDERAL OR STATE, IN THE CITY OF NEW YORK AND YOU HEREBY IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURT (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING, YOU IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH YOU MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT OR IMPROPER FORUM.

26.          Litigation Costs

If any action at law or in equity is necessary to enforce the terms of this agreement, each party shall bear their own costs and expenses except as may be awarded by a Court having jurisdiction over the subject matter.

27.          Paragraph Headings

The captions and headings of these terms are included for ease of reference only and will be disregarded in interpreting and construing the agreement these terms.

28.          Force Majeure

If the performance of any part of this agreement by either party (other than payment of money) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor dispute, act of God, telecommunications failure or any other cause beyond the control of either party, that party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause.

29.          Entire Agreement

These terms, constitute the complete and exclusive agreement between the parties with respect to the Sites, Content and products and services offered on or in connection with the Sites, and, unless otherwise expressly provided herein, it supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Sites, Content and products and services sold on or in connection with the Sites.

30.          Severability

If any provision of these terms is found unlawful or unenforceable in any respect, a court may reform such provision so as to render it enforceable or, if it is not possible to reform such provision so as to make it enforceable, then delete such provision. As so reformed or modified, the court shall fully enforce these terms. These terms that by their content are intended to survive the expiration or termination of the agreement such terms represent, including, without limitation, provisions governing ownership and use of IP, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination and interpretation of this agreement, will survive the expiration or termination of this agreement for their full statutory period.

Company makes no representation that the Sites, Content or other material or information on the Sites is appropriate to or available in locations outside of the United States and Canada. You may not use the Sites or export Content in violation of United States export laws, regulations or restrictions. If you access the Sites from outside of the United States, you are responsible for compliance with all applicable laws.

 

31.          Copyright and Digital Millennium Copyright Act ("DMCA") Notices

If you believe that Content or User Content has been copied in a way that constitutes copyright infringement, please provide Company’s Copyright Agent the following information:

·         an electronic or physical signature of the owner or person authorized to act on behalf of the owner of the copyright in question;

·         a description of the copyrighted work that you claim has been infringed;

·         a description of where the material that you claim is infringing is located on the Sites sufficient to allow us to locate the allegedly infringing material;

·         your address, telephone number and email address;

·         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

·         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 the copyright owner’s behalf.

Copyright owners and agents acknowledge that failure to comply with all of the requirements of the foregoing may result in an invalid notice under the DMCA.

If you believe that the User Content that was removed (or to which access was disabled) in accordance with a ‘take-down’ notice is not infringing, or that you have authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law to post and use such User Content, you may send a counter-notice containing the following information to the Copyright Agent:

·         your physical or electronic signature;

·         identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled;

·         a statement that you have a good faith belief that the User Content was removed or disabled as a result of mistake or a misidentification of the User Content; and

·         your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in New York and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Company may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed User Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the person providing such User Content, the removed User Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Company’s sole discretion.

Copyright Agent:

Thomas D. Selz, Esq.
488 Madison Avenue
10th Floor
New York, NY 10022
tselz@fkks.com

Other copyright or IP issues including requests for permission to use Content:

tselz@fkks.com

Contacting the Company:

__________________

For any matters related to these terms and end consumer correspondence:

tselz@fkks.com

Mail correspondence/Courier address for Company:

BroadwayHD LLC
36 West 44th Street
Suite 400
New York, NY 10036