THIS CUSTOMER AGREEMENT (“AGREEMENT”) CONTAINS THE TERMS OF THE USE BY YOU (“CUSTOMER”) OF THE SATELLITE SERVICES TO BE PROVIDED BY PLAYNETWORK, INC. (THE “COMPANY”). THE COMPANY IS AN AUTHORIZED SERVICE PROVIDER OF XM SATELLITE RADIO INC. ("XM"). IF CUSTOMER DOES NOT ACCEPT THESE TERMS, PLEASE NOTIFY THE COMPANY IMMEDIATELY AND THE COMPANY WILL CANCEL CUSTOMER’S SERVICES (THE COMPANY’S CONTACT INFORMATION IS LISTED BELOW). FAILURE TO CANCEL CUSTOMER’S SERVICES WITHIN 3 DAYS OF INITIATION WILL BE DEEMED ACCEPTANCE OF THE SERVICES.
This is Customer’s copy of the Company’s Satellite Radio Agreement. Customers should keep a copy for their records.
Customers may contact the Company by calling toll free at 1-(888)-XM4-BUSI (1-888-964-2874) or by writing to:
Attention: XM for Business
8727 - 148th Avenue NE
Redmond, WA 98052
Online support: firstname.lastname@example.org
1. SERVICES. During the Term (as defined in Section 3) of this Agreement, Company shall provide the “Services” to Customer. The “Services” means the satellite delivery to Customer’s Radio (as defined below) of audio content consisting of a variety of full-time and part-time channels of music, news, talk, information, sports, children’s and other entertainment as described on the XM Satellite Radio Website (www.xmradio.com) under “Channel Lineup.” The Company reserves the right to change programming on the Services at any time and without notice, at its sole discretion, including canceling, modifying, moving or adding particular channels, with or without notice to Customer. Certain programming services, functionality and/or other options may be offered for an additional cost from time-to-time. If Customer adds additional Radios to its account, Customer must purchase a separate subscription for each Radio.
- Authorized Equipment. Customer may access and use the Services only with equipment authorized to receive the Services (each, a “Radio”). The Company does not manufacture any of the Radios and is not liable for any personal injury or damage to Customer or any of its property resulting from use of any Radio. The Company is not responsible for and do not warrant any Radios in any way whatsoever.
- Risk of Loss. Upon Customer’s receipt of a Radio, Customer solely and exclusively bears the entire risk of loss, theft, damage or destruction of the Radio from any cause whatsoever.
- Loss of Radio. Customer should report to the Company and cancel its subscription if Customer’s Radio is lost, stolen, sold, transferred or otherwise removed from Customer’s possession without Customer’s permission. Otherwise Customer will continue to pay for the Services.
Technology; Content. It is prohibited to, and Customer agrees that it will not, copy, decompile, disassemble, reverse engineer, hack, manipulate, or otherwise access and/or make available any technology incorporated in receivers compatible with the Services and the Radio system. Furthermore, the AMBE (r) voice compression software included in the Radio and the Services is protected by intellectual property rights including patent rights, copyrights, and trade secrets of Digital Voice Systems, Inc. The software is licensed solely for use in the Radio and the Services. The music, talk, news, entertainment, data, and other content included within the Services are protected by copyright and other intellectual property laws and all ownership rights remain with the respective content and data service providers. Customer is prohibited from any export of the content and/or data (or derivative thereof) except in compliance with applicable export laws, rules and regulations.
3. TERM; TERMINATION
- Term. The “Initial Term” of this Agreement shall begin on the date that Customer’s Radio first receives the Services and shall continue for a period of twelve (12) months and thereafter, this Agreement shall automatically renew for successive periods of the same length as the Initial Term (each a “Renewal Term”); provided, however, that automatic renewal will not apply if either party notifies the other party in writing of its intention not to renew at least thirty (30) days prior to the expiration of the applicable term. The Initial Term and all Renewal Terms are collectively referred to as the “Term.”
Termination by Customer. Customer may cancel the Services at any time within the first thirty (30) days after activation of the Services without penalty, Activation Fees associated with the Services are not refundable in the event of cancellation. After the first thirty (30) days, Customer may cancel the Services at any time by notifying the Company at the address (regular or email) or telephone number as indicated on the first page of this Agreement. Any cancellation notice will become effective at the end of Customer’s assigned monthly billing cycle in which Customer cancels. Customer is responsible for payment of all outstanding balances accrued through that date. The Company will refund amounts for any full months of Fees that Customer may have prepaid on a quarterly, annual or multi-year basis representing those months beyond the billing cycle month during which Customer cancelled its service (subject to the Company’s right to deduct from such refund any termination fees that may owing as set forth below). Service credits will not be refunded in cash, but will be honored in the form of Services for the remaining length of the credit.
- Termination by the Company. The Company may cancel the Services at any time if Customer fails to pay amounts owing to the Company when due, for breach of any other provision of this Agreement or for any other reason. In such case, Customer will still be responsible for payment of all outstanding balances accrued through the effective date of cancellation. Customer must comply with all of the terms and conditions of this Agreement or the Company may cancel the Services.
- Effect of Termination. Upon termination or expiration of this Agreement, Customer shall cease using the Services, and at such time the Company shall not be responsible for any music royalties (including performance royalties) related to the playback of music in Customer’s locations thereafter.
IF, PRIOR TO THE END OF THE SIXTH (6TH) MONTH OF THE INITIAL TERM, (A) CUSTOMER TERMINATES THIS AGREEMENT OR (B) THE COMPANY TERMINATES THIS AGREEMENT AS A RESULT OF CUSTOMER’S FAILURE TO PAY AND/OR BREACH, CUSTOMER SHALL BE OBLIGATED TO PAY TO THE COMPANY AN EARLY TERMINATION FEE EQUAL TO THE REMAINING BALANCE OF THE MONTHLY FEES DUE THROUGH THE FIRST SIX MONTHS OF THE AGREEMENT.
FEES, TAXES AND PAYMENT TERMS.
- Fees; Taxes. Customer shall pay Company the following monthly “Fees”: $29.95 per month for basic Services for the first Radio in a Customer commercial location and $14.99 per month for the second or any additional Radio in a Customer commercial location, plus applicable sales and use taxes. For each Radio on Customer’s account, the Company shall charge an activation fee of $14.95, and may charge additional fees to upgrade or modify the Services. The addition of premium channels or services, if any, may require an additional activation fee.
- Payment Terms. Prior to the date that Customer’s Radio first receives the Services, Customer shall pay to the Company by credit card a deposit equal to three months of Fees and taxes as well as any activation fees. Following the third month of the Services, Customer shall thereafter pay the Fees in advance on a monthly basis by credit card. Customer must provide its authorization for the Company to apply recurring charges to the valid credit card at activation. Such recurring charges will continue until Customer or the Company cancels the Services as set forth above. If any bank or other financial institution refuses to honor any payment of Customer, the Company may charge a collection fee that is the lesser of (i) $20.00 and (ii) the maximum amount permitted under applicable law. Customer acknowledges that this collection fee is not an interest charge, finance charge, or other such charge or payment of a similar nature and it is reasonably related to the actual expense the Company incurs due to unsatisfied payment. Customer shall pay all costs of collection, before and after judgment, including, but not limited to, court costs, and reasonable attorney fees (including those incurred in defense of any claim brought by Customer or incident to settlement or any action or proceeding involving Customer brought pursuant to the United States Bankruptcy Code). In order to establish an account with the Company, Customer authorizes the Company to inquire into Customer’s creditworthiness by checking with credit reporting agencies. If Customer is delinquent in any payment to the Company, Customer also authorizes the Company to report any late payment or nonpayment to credit reporting agencies. Customer must notify the Company immediately of any change in Customer’s name, mailing address, residence address, e-mail address, telephone number or credit card information.
MUSIC RIGHTS FEES. If Customer’s commercial establishment uses the Services as its sole music source, Customer is not responsible for the payment of any copyright royalties to ASCAP, BMI, SESAC or for any sound recordings, as these are included in the Fees, unless Customer operates an establishment that charges an admissions or membership fee (e.g. a theme park, skating rink, dance club, health club, etc.) or use music sources other than the Services (e.g. CDs, DJs, live music or terrestrial radio, etc.), in which case Customer shall be responsible for payment of any and all copyright royalties to ASCAP, BMI, SESAC and/or for any sound recordings.
6. RESTRICTIONS. Customer must possess a physical address in the United States of America. If Customer’s service address is not in the continental US, Customer’s Radio will not be activated to receive the Services. Customer shall use a Radio only to play the Services as foreground or background music and/or messaging at the Customer’s premises and shall not amplify, transmit or retransmit the broadcast of the Services so as to be audible outside any such premises (beyond ordinary patio or other outdoor speaker usage), nor transmit outside any such premises. Customer shall not, without the prior written consent of the Company, (i) use the Services in conjunction with any advertising or commercial message or entertainment or other public event at a Customer location for which Customer or any other person receives consideration of any kind (including, without limitation, a physical activity event or entertainment at the premises for any Customer location for which an admission fee is charged) or (ii) transmit, retransmit, rebroadcast, alter, redistribute, record or reproduce (or permit the transmission, retransmission, rebroadcast, alteration, redistribution, recording or reproduction of) the Services other than as expressly permitted under this Agreement. Customer shall defend, hold harmless and indemnify Company and XM for any liability that Company incurs, including costs and reasonable attorneys’ fees, arising from Customer’s breach of this Section.
7. COMPLIANCE; SAFETY. Customer shall comply with all laws and regulations applicable to Customer’s possession or use of a Radio, and shall be solely responsible for all assessments applicable to Customer’s use of a Radio, including sales, use and property taxes. It is Customer’s responsibility to exercise prudent discretion and observe all safety measures required by law and common sense. Customer assumes the entire risk related to use of the Services. The Company and XM are not responsible for accidents resulting from or associated with use of the Services. The Services may include traffic, weather, and other emergency alert information and data, and Customer acknowledges that such information and data is not for “safety for life”, but is merely supplemental and advisory in nature, and therefore cannot be relied upon as safety-critical in connection with any aircraft, sea craft, automobile, or any other usage. The Services are provided “as is” and “as available” and the Company disclaims any and all warranties, express and/or implied, with respect thereto or the transmission or reception thereof. The Company is not responsible for, and does not warrant the accuracy, reliability, completeness or timeliness, of any information disclosed on the Services. In no event will the Company, its programming or data suppliers or partners, service providers, marketing/distribution, software or Internet suppliers or partners or hardware or software manufacturers, suppliers, or partners be liable to Customer or to any third party for any direct, indirect, incidental, consequential, special, exemplary or punitive damages or lost profits resulting from use of or interruptions in the transmission or reception of the Services and/or any Radio.
CHANNEL BLOCKING. Some programming included in the Services may include explicit language, which may not be appropriate for the Customer’s patrons. Channels with a frequent use of explicit language are indicated on the channel line-up and on the channel display with an “XL.” Some other channels may also, from time to time, include explicit language, but are not designated on the channel line-up or channel display with an “XL.” It is Customer’s responsibility to impose listening restrictions that Customer considers appropriate for its environment. The Company and XM reserve the right to block any channels from a Customer in their sole discretion based on listener complaints, FCC inquiry, negative publicity or other factors. Furthermore, some programming may broadcast in Spanish or French or in XM High Definition sound and are indicated on the channel line-up and on the channel display with an “SP”, “FR” or XMHD, respectively. Additionally, certain music channels may contain commercials and are indicated on the channel line-up and on the channel display with a “CM”. See chart below:
PROGRAMMING DISCLOSURE GUIDE:
XL - May include frequent explicit language
SP - Channels broadcast in Spanish
FR - Channels broadcast in French
CM - These channels include commercials
Available in XMHD in Surround Sound on select XM Ready home receivers
RADIO SERVICE INTERRUPTIONS. The Services may be unavailable or interrupted from time to time for a variety of reasons, such as environmental or topographic conditions and/or other things the Company cannot control. The Services might also not be available in certain places (e.g., within or next to buildings) or near other technologies. Radios installed in or near offices, retail or other commercial locations will function best when the antenna is placed either in or near a south-facing window, or mounted, south-facing, outside the business location, with a clear view of the sky. Even if the antenna is near a south-facing window, certain window treatments could interfere with reception. The Company is not responsible for any noise and/or interruptions of the Services.
COLLECTION OF INFORMATION. The Company and/or XM may collect personal information about Customer’s use of the Services that helps the Company and/or XM customize the Services. The Company and XM will use Customer’s information to (i) provide and improve the Services, (ii) enforce this Agreement, (iii) offer new products and services and (iv) perform market research. Customer acknowledges and agrees that the Company will have the right to make its customer list, and portions thereof, and Customer’s information available to selected third parties that the Company believes offer products and/or services that may be of interest to Customer. However, if Customer prefers that the Company not provide its information to third parties, please contact the Company at the address (regular or email) or telephone number as indicated on the first page of this Agreement. Notwithstanding the foregoing, the Company reserves the right to inform ASCAP, BMI, SESAC, and any other music royalty collection organization of Customer’s subscription for the purposes of confirming to them that Customer is not responsible for the payment of music royalties if Customer’s establishment is using the Services as its sole music source.
LIMITATION OF LIABILITIES; INDEMNIFICATION. (a) CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” THE COMPANY MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE SERVICES AND/OR THE RADIO OR OTHER EQUIPMENT. CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. THE CONTENT AND FUNCTIONALITY OF THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. ALL SUCH WARRANTIES OR REPRESENTATIONS (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT) ARE HEREBY DISCLAIMED. (b) THE COMPANY IS NOT RESPONSIBLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOSSES RELATING TO THE USE OR PURCHASE OF ANY RADIO, OTHER EQUIPMENT AND/OR THE SERVICES, WHETHER BASED ON NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE COMPANY’S TOTAL LIABILITY TO CUSTOMER AND ANY OTHER PERSONS RECEIVING THE SERVICES, REGARDLESS OF THE CAUSE, WILL IN NO EVENT EXCEED THE AMOUNTS THAT CUSTOMER HAS PAID TO THE COMPANY FOR THE SERVICES THAT CUSTOMER RECEIVED DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE SPECIFIC EVENT THAT GAVE RISE TO THE APPLICABLE DAMAGE OR LOSS. THIS ALLOCATION OF RISK AND THE DISCLAIMER OF WARRANTIES ARE REFLECTED IN THE PRICES AND ARE A FUNDAMENTAL ELEMENT OF THE COMPANY’S AGREEMENT TO PROVIDE THE SERVICES. (c) Customer agrees to defend, indemnify and hold harmless the Company from and against any claims arising out of Customer’s use of the Services and/or any Radio and/or any breach by Customer of this Agreement.
12. GENERAL PROVISIONS. The validity, interpretation and legal effect of this Agreement shall be solely and exclusively governed by the laws of the State of Washington applicable to contracts entered into and performed entirely within the State of Washington, without reference to conflict of laws’ principles. Customer may not assign or otherwise transfer this Agreement or any of the rights or obligations hereunder, without Company’s prior written consent. This Agreement is fully assignable by Company. If a court of competent jurisdiction deems any provision of this Agreement unenforceable, such provision shall be deemed amended to the extent necessary to make it enforceable and the rest of this Agreement shall remain unaffected. This Agreement states the entire agreement relating to the Services and Customer’s relationship with the Company. No salesperson or other representative is authorized to change it for Customer, although the Company may modify it without prior notice to the Customer. If any provision is declared by a competent authority to be invalid, that provision will be deleted or modified to the extent necessary, and the rest of this Agreement will remain enforceable. The specific terms of this Agreement that expressly or by their nature survive termination shall continue thereafter until fully performed. Notices to Customer will be deemed given when deposited in the mail or on the date that an e-mail is sent. Mailed notices may be included in the Company’s statements or emails to Customer. The Company may also provide notice to Customer by telephone, which will be deemed given when a message is left with Customer, someone answering the telephone at Customer’s commercial establishment or on an answering machine or voicemail system at Customer’s phone number on record with the Company. Customer’s notices to the Company will be deemed given when the Company receives them at the address (regular or e-mail) or telephone number set forth on the first page of this Agreement. If it becomes necessary for any party to file a lawsuit or to take any other action to protect its interests hereunder, the prevailing party shall be entitled to recover from the other party reasonable attorneys’ fees, court costs and other expenses incurred by the prevailing party in the course of such lawsuit or action, in addition to any other relief to which such prevailing party may be entitled.