Streaming Terms and Conditions
SUBSCRIBER AGREEMENT
IMPORTANT! READ CAREFULLY
THE PORTLAND TRAIL BLAZERS ONLINE STREAMING PROGRAM (THE “Service”) IS AN INTERACTIVE ON-LINE SERVICE OPERATED BY THE PORTLAND TRAIL BLAZERS AT TRAILBLAZERSLIVE.RAYV.COM (THE “Site”). THE PORTLAND TRAIL BLAZERS ARE REFERRED TO COLLECTIVELY HEREIN AS “We,” “Us” “Trail Blazers” AND/OR “Our.” THIS SUBSCRIBER AGREEMENT (“Agreement” OR “Subscriber Agreement”), ALONG WITH THE DOCUMENTS REFERENCED HEREIN, GOVERNS YOUR USE OF AND ACCESS TO THE SERVICE. THIS SUBSCRIBER AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND US. BY ACCESSING THE SERVICE, YOU AGREE TO BE BOUND BY THIS SUBSCRIBER AGREEMENT AND THE DOCUMENTS REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE SITE TERMS OF USE AND THE NBA.COM NETWORK PRIVACY POLICY. IF YOU DO NOT ACCEPT THIS SUBSCRIBER AGREEMENT, YOU SHALL NOT BE AUTHORIZED TO ACCESS OR USE SERVICE. CHANGES TO SUBSCRIBER AGREEMENT
We reserve the right to make changes, modifications, amendments and/or updates to the terms in this Subscriber Agreement from time to time and for any reason, by posting such changes in this document, which you can access at any time by visiting [insert link where agreement will be posted]. You acknowledge and agree that you shall be responsible for reviewing this Agreement from time to time for changes, and that changes to this Agreement shall be effective when posted. By continuing to use the Service after We have posted any such changes in the Subscriber Agreement or otherwise, you are agreeing to be bound by the terms of the Subscriber Agreement, as amended. Any amendments to the dispute resolution procedures set forth in this Agreement will not apply to any dispute of which the parties had actual notice on or prior to the date of the amendment.
PRIVACY OF INFORMATION AND SITE TERMS OF USE
You agree to the Trail BLazers Privacy Policy (“Privacy Policy”), posted at http://www.nba.com/blazers/privacy_streaming.html, each of which may be amended from time to time and are incorporated herein by this reference. To the extent of any conflict between the terms or conditions of this Agreement and the terms or conditions of the Terms and/or Privacy Policy, the terms and conditions of this Agreement will govern.
FEES AND PAYMENT; SUBSCRIPTIONS
Subscriptions: Purchasing a subscription to the Service entitles you to access and use the Service, subject to the terms and conditions of this Agreement, to stream certain individual Trail Blazers games or a package of games (as identified on the Site) during the NBA’s 2009-2010 season, depending on the subscription purchased.
Subscription Fees: You can always find the current subscription fees and other charges for the Service (the “Fees”) posted on the Site pages where the Service is located. You agree to pay all subscription Fees and other Fees (including any applicable taxes) incurred in connection with your access to the Service and/or your Service Password (defined below), at the rates in effect when the charges were incurred. We may change the Fees, or add new Fees, upon prior notice to you either by e-mail or publishing the changes on the Site pages where the Service is located. You acknowledge and agree that you shall be responsible for reviewing the Service’s schedule of Fees from time to time for changes, and you further agree that changes shall be effective when posted on the Site pages where the Service is located. We shall be the seller of record of Service subscriptions for sales tax purposes, and, without limiting the generality of the foregoing, you agree to pay Us any taxes imposed on the sale of subscriptions or other products or services via the Service, if any, for remission by Us to appropriate taxing authorities.
Payment: You authorize Us to bill subscription Fees based on any subscription you purchase to the credit card you designate during the registration process for the Service. You agree to provide Us with a valid credit card and accurate, complete and updated information required by the subscription registration form. By submitting your credit card account as the form of payment, you represent and warrant that your use of such credit card is authorized and that all information that you submit is true and accurate (including, without limitation, credit card and/or account number and expiration date). In doing so, you also authorize Us to charge to your credit card all amounts payable by you to us based on the subscription plan you selected, including, but not limited to, all Fees and any applicable taxes we are required to collect. Failure to comply may result in the immediate suspension or termination of your access to the Service.
Unable-to-be-processed payments: If We are unable to process your credit card, your Service account may be immediately suspended or terminated and you will remain responsible for all amounts payable by you to Us. Your agreement with your credit card issuer governs use of your credit card. You must refer to those agreements with respect to your rights and liabilities as a cardholder. We reserve the right to continue to collect payment (and to continue to attempt to collect payment) that has not been collected due to technical or other issues.
ALL SALES ARE FINAL. ANY REFUNDS FOR SUBSCRIPTIONS WILL BE IN THE SOLE DISCRETION OF THE PORTLAND TRAIL BLAZERS.
You also are responsible for any fees or charges incurred to access the Service through an Internet access provider or other third party service. AS BETWEEN YOU AND US, YOU, AND NOT US, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, EVEN IF NOT AUTHORIZED BY YOU.
BLACKOUT RESTRICTIONS
You acknowledge and agree that the Service may only be used and/or accessed from locations within the zip codes set forth here http://www.nba.com/blazers/streamingzipcodes.html (the “Authorized Locations”). By using the Service, you represent and warrant that you will only use and/or access the Service within the Authorized Locations. IF YOU CIRCUMVENT, OR ATTEMPT TO CIRCUMVENT, ANY BLACKOUT RESTRICTION OR OTHER USE RESTRICTION: YOUR SUBSCRIPTION WILL BE SUBJECT TO IMMEDIATE TERMINATION AND A CHARGE OF ONE HUNDRED DOLLARS ($100.00) FOR EARLY TERMINATION; AND YOU MAY BE SUBJECT TO LEGAL ACTION.
LIMITATION OF LIABILITY
NOTWITHSTANDING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF THE TRAIL BLAZERS, THE NATIONAL BASKETBALL ASSOCIATION (“NBA”), THEIR RESPECTIVE AFFILIATES AND/OR SUBSIDIARIES, AND ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND/OR SUPPLIERS, FOR ANY REASON AND UPON ANY CAUSE OF ACTION, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICE OR THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED BY YOU AND SHALL NOT EXCEED THE AMOUNT ACTUALLY RECEIVED BY US FROM YOU FOR THE USE OF THE SERVICE DURING THE MONTH IN WHICH THE EVENT GIVING RISE TO SUCH CLAIM OCCURRED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATION OF LIABILITY HEREIN APPLIES TO ALL LIABILITIES IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM YOUR USE OR YOUR INABILITY TO USE THE SERVICE, OR ANY OTHER MATTER ARISING FROM OR RELATING TO THIS AGREEMENT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TRAIL BLAZERS, THE NBA, THEIR RESPECTIVE AFFILIATES AND/OR SUBSIDIARIES, AND ANY OF THE RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND/OR SUPPLIERS OF THE FOREGOING SHALL NOT HAVE ANY LIABILITY FOR ANY INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER FOR ANY REASON ARISING IN CONNECTION WITH THIS AGREEMENT AND/OR THE SERVICE, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THIS LIMITATION IS INDEPENDENT OF ANY OTHER LIMITATION SET FORTH IN THIS AGREEMENT.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TRAIL BLAZERS, THE NBA, THEIR RESPECTIVE AFFILIATES AND/OR SUBSIDIARIES, AND ANY OF THE RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND/OR SUPPLIERS OF THE FOREGOING SHALL HAVE NO LIABILITY FOR ANY DAMAGES OR INJURY CAUSED, IN WHOLE OR IN PART, BY CONTINGENCIES OR ISSUES BEYOND THEIR REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO: THE ACTS OF THIRD PARTIES, ERRORS IN THE CONTENT OR SERVICE, NETWORK FAILURES, INTERNET FAILURES, SOFTWARE AND HARDWARE FAILURES, VIRUSES AND OTHER SYSTEM ATTACKS, LABOR STOPPAGES, RIOTS, ACTS OF GOVERNMENT OR GOD, NATURAL DISASTERS, ACTS OF TERRORISM, COMMUNICATION LINE FAILURE, OR THEFT, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, ALTERATION OF OR USE OF RECORDS. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER (I) LIABILITY OR DAMAGE IS ALLEGED FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER THEORY OR CAUSE OF ACTION, AND/OR (II) THE PARTY AGAINST WHICH LIABILITY OR DAMAGES IS SOUGHT WAS ADVISED OF THE POSSIBILITY THEREOF.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE AGREEMENT, THE SERVICE, OR ANY PART THEREOF, MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR IT SHALL BE FOREVER BARRED.
CONTENT OWNERSHIP; USAGE RESTRICTIONS; THIRD PARTY SOFTWARE
The content available through the Service is the property of the NBA (including, but not limited to, their respective affiliates), and is protected by copyright and other intellectual property laws of the United States and other jurisdictions. Such content may only be used or viewed by you for your personal, non-commercial use only, and provided that you: (i) keep intact all copyright and other proprietary notices; (ii) do not use the content in a manner that would achieve commercial gain, or that would damage the goodwill associated with or compete with the NBA or its affiliates including, without limitation, the Trail Blazers; (iii) do not use the content in a manner that suggests an association with any of the NBA’s services, brands, or products (unless otherwise authorized in writing by the NBA); and (iv) make no modifications to the content. Additionally, you agree to use the Service in a manner that complies with all applicable laws. You agree not to copy, deep link, reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate the content received through the Service to anyone, including, but not limited to, others in the same company or organization, without the express prior written consent of the NBA.
You may not attempt to circumvent technological measures employed to control access to, or the rights in, the Service, whether in conjunction with or through use of any device, software program, service or otherwise. In addition, without limiting the generality of the foregoing, you represent, warrant and covenant that:
1. You are only subscribing to the Service for individual, private, non-commercial household use and enjoyment and that no part of the Service will be viewed in areas open to the public or be received by any location which is a commercial establishment;
2. No trademarks of any provider of Service content (including, but not limited to, the Trail Blazers or the NBA) may be used by you and none of the Service content will be rebroadcast, retransmitted or otherwise used by you;
3. Running accounts of Service content/programming in progress will not be transmitted or distributed by you;
4. No admission will be charged by you for viewing any of the programming available through the Service;
5. We and/or certain of Our content providers (including the NBA) may enforce violations of clauses 1-4 immediately above;
6. Notwithstanding anything herein to the contrary, any violation of clauses 1-4 immediately above may be prosecuted by Us or certain of Our content providers (including the NBA) in any court of competent jurisdiction; and
7. Any such prosecution by Us or Our content providers shall be governed by, among other things, applicable federal law and the rules and regulations of the Federal Communications Commission.
FROM TIME TO TIME YOU MAY BE ABLE TO ACCESS CERTAIN THIRD PARTY SOFTWARE AND/OR OTHER MATERIALS VIA THE SERVICE. THE ACCESS AND/OR USE OF SUCH THIRD PARTY SOFTWARE AND/OR OTHER MATERIALS SHALL BE SUBJECT TO SUCH ADDITIONAL LICENSE OR OTHER AGREEMENTS AS MAY ACCOMPANY THE SOFTWARE OR OTHER MATERIALS OR OTHERWISE BE PUBLISHED BY THE APPLICABLE THIRD PARTY. ANY PERSONAL INFORMATION YOU PROVIDE TO A THIRD PARTY IN CONNECTION WITH YOUR USE OF THE THIRD PARTY’S SOFTWARE IS GOVERNED BY THAT THIRD PARTY’S PRIVACY POLICY, SOFTWARE LICENSE AND/OR OTHER LEGAL AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ARE NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY IN CONNECTION WITH (I) ANY SOFTWARE AND/OR OTHER MATERIALS SUPPLIED BY A THIRD PARTY, (II) USE AND/OR DISCLOSURE OF ANY INFORMATION YOU PROVIDE TO A THIRD PARTY, AND/OR (III) ANY OTHER ACTS OR OMISSIONS OF THIRD PARTIES.
DISCLAIMER OF WARRANTIES
DUE TO THE NUMBER OF SOURCES FROM WHICH CONTENT IN THE SERVICE IS OBTAINED, AND THE INHERENT HAZARDS OF ELECTRONIC DISTRIBUTION, THERE MAY BE DELAYS, INTERRUPTIONS, OMISSIONS OR INACCURACIES IN SUCH CONTENT AND THE SERVICE. THE SERVICE AND THE INFORMATION AND MATERIALS CONTAINED IN IT ARE PROVIDED BY US AND OUR SUBSIDIARIES, AFFILIATES AND/OR LICENSORS ON AN "AS IS" AND "AS AVAILABLE" BASIS. NEITHER THE TRAIL BLAZERS, THE NBA, THEIR AFFILIATES, SUBSIDIARIES OR PARENT COMPANIES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, THIRD PARTY CONTENT SUPPLIERS OR LICENSORS (COLLECTIVELLY, "INDEMNITEES") WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICE OR THE CONTENT AVAILABLE THROUGH THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APLICABLE LAW, IN NO EVENT WILL THE INDEMNITEES BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON THE SERVICE OR THE CONTENT AVAILABLE VIA THE SERVICE.
The Service includes facts, views, opinions and recommendations of third party individuals and organizations deemed of interest. Neither the Trail Blazers nor the NBA guarantee the accuracy, completeness or timeliness of, or otherwise endorse, these views, opinions or recommendations.
INDEMNIFICATION
To the maximum extent permitted by applicable law, you agree to defend (at Our election), indemnify and hold harmless each Indemnitee from and against all claims (including, but not limited to, claims for copyright infringement, defamation, invasion of privacy and infringement of rights of publicity, whether in tort, in contract or otherwise), damages and expenses (including, but not limited to, attorneys’ fees, court costs, judgments and settlements costs) that the Indemnitee may incur or become subject to by reason of or arising out of the use of the Service by you or under your Password(s).
TRADEMARKS
NBA, NBA.COM, PORTLAND TRAIL BLAZERS, TRAIL BLAZERS, BLAZERS, RIP CITY and each of their associated logos are trademarks of the NBA and/or their respective affiliates or licensors. All rights reserved. All other trademarks appearing on the Service are the property of their respective owners.
NOTICE
Except as otherwise expressly provided herein, all notices required under the terms and provisions hereof to Us shall be in writing and shall be transmitted by United States Postal Service ("USPS") or reputable express carrier (e.g., UPS) to Our address below. Except as otherwise expressly provided herein, all notices to Us are effective five (5) business days after deposit with USPS or reputable express carrier, assuming some confirmation of sending is retained. Except as otherwise expressly provided herein, all notices required under the terms and provisions hereof to you shall be in writing and shall be transmitted by USPS, reputable express carrier (e.g., UPS) or email to any address for you referenced below. Except as otherwise expressly provided herein, all notices to you sent by (i) USPS certified mail or reputable express carrier are effective five (5) business days after deposit with USPS or reputable express carrier, and (ii) email are effective one (1) business day after transmission, assuming some confirmation of transmission is retained. If to Us:
Trail Blazers, Inc., Suite 200, One Center Court, Portland, OR 97227 USA, attention “Legal Department”
If to you:
To the physical address or email address indicted in the Service or Site registration you submitted to Us.
PASSWORDS AND ACCESS TO SERVICE
To obtain access to the Service, you will be required to register with the Site, which may include providing your name, address, email address, age and gender, and to thereby create a Site account. You will also be required to choose a username and password or access code (collectively, the “Password”). You agree to: (i) provide current, complete, true and accurate information; (ii) maintain and update your information as required to keep it current, complete and accurate; and (iii) provide additional information about yourself as may be requested by Us from time to time. Please note that this information may be used in accordance with the Privacy Policy. We reserve the right to require you to periodically change your Password. You agree:
1. That you are and shall be responsible for maintaining the confidentiality and security of your Password, and for restricting access to your computer and your Password;
2. Not to transfer, lease, assign, sublicense, or share any Password without Our prior written consent;
3. Not to circumvent the password restrictions on the Site, nor allow others to do so on your behalf;
4. Not to use anyone else's Password; and
5. To notify Us immediately upon discovery or suspicion of compromise of the confidentiality of any Password.
You acknowledge and agree that only one individual may access the Service at the same time using your Password, unless agreed otherwise by Us. You further acknowledge and agree that you shall be solely liable and responsible for all activities that occur under your Password. You further agree that We shall not be responsible for your failure to comply with this Section or any loss or damage arising out of, or related to, your use of your Password by you or anyone other than Us. You may not use the Service for any unlawful purpose or for any purpose other than as expressly authorized herein. We shall have the right, in Our sole discretion, to refuse or restrict anyone from access to any or all of the Service at any time for any reason or to refuse to permit you to use a Password for any reason, including but not limited to, that your Password impersonates someone else, is protected by trademark or other intellectual property rights, or is vulgar or otherwise offensive, as determined solely by Us in Our absolute discretion. You may only receive the Service if you are a Service subscriber in good standing with a valid, authorized credit card account on file with Us.
TERMINATION OF SERVICE BY US
In addition to any other remedies available to Us, whether in equity, at law or otherwise, upon your failure to comply with any of the terms or conditions in this Subscriber Agreement, We shall have the right to terminate your access to the Service and this Agreement immediately. We further reserve the right to discontinue, suspend, terminate or change the Service, or its availability to you, at any time. If We terminate this Agreement or discontinue your Service subscription for cause (for example, due to your breach of this Agreement), you will not receive any refund or partial refund for any charges or Fees already incurred by or billed to you, and We reserve all other rights available to Us in connection with your breach.
ARBITRATION
Except as otherwise expressly set forth in this Agreement to the contrary, any and all disputes arising from or relating to this Agreement or the Service shall be solely and finally settled by arbitration. The arbitration will be governed by the Federal Arbitration Act. The arbitration will be conducted in Portland, Oregon, by a single arbitrator to be selected by Us. The arbitrator's authority shall be limited to resolving individual disputes between you and Us, and the arbitrator shall not determine, as an initial matter, whether class, mass or consolidated relief is permitted in arbitration. Notwithstanding the foregoing, without first seeking or obtaining any decision in arbitration (even if a similar or related matter has already been referred to arbitration in accordance with the terms of this paragraph), (i) We, and our respective affiliates and licensors, may bring any claim or suit for the purpose of evidencing, enforcing, registering or defending Our or their respective intellectual property rights in any court or forum of competent jurisdiction; and (ii) We, and our respective affiliates and licensors, shall be entitled to seek injunctive and other equitable relief in any court or forum of competent jurisdiction to enforce this Agreement.
GOVERNING LAW
This Agreement and any disputes relating to this Agreement and/or the Service will be governed by the laws of the State of Oregon, United States of America, without regard to its principles of conflicts of laws. Any action that you, any third party or We bring to enforce this Agreement or, in connection with, any matters related to the Service shall be brought only in a federal or state court of competent jurisdiction located within Multnomah County, Oregon, United States of America, and you hereby consent to the jurisdiction of such court solely for such purposes and you further waive any argument that any such court does not have jurisdiction over such dispute or that venue in any such court is not appropriate or convenient. You agree to accept service of process by reputable express carrier (e.g., UPS) and/or certified mail, return receipt requested, at the address designated by you. We will be entitled to recover costs and reasonable attorneys' fees and expenses incurred in successfully proving any breach of this Agreement.
INJUNCTIVE RELIEF
You acknowledge and agree that any violation of this Agreement relating to the disclosure, use, copying, distribution, display or publishing of the information and/or content on the Service and/or use of the Service may result in irreparable injury and damage to Us that may not be adequately compensable in money damages, and for which We will have no adequate remedy at law. You, therefore, consent and agree that We may obtain injunctions, orders or other equitable relief as may be reasonably necessary to ensure compliance with this Agreement. You waive any requirement of the posting of a bond that may apply for issuance of any injunctions, orders or other equitable relief.
MISCELLANEOUS
Use of the Service is not authorized in any jurisdiction that does not give effect to this Agreement. This Agreement is personal to you, and you may not assign your rights or obligations to anyone. We may assign our rights and obligations under this Agreement, without notice, (i) to any of Our affiliates, (ii) in connection with any change of control (e.g., by merger, exchange of stock or other equity interests, etc.) involving Us or one of Our affiliates or in connection with any sale of substantially all of the assets related to the Site, or (iii) to any of Our successors in interest or other assignees. This Agreement shall be binding on and inure to the benefit of Our successors and permitted assigns. The terms and conditions contained in this Agreement may not be modified by you except in a writing duly signed by you and an authorized representative of Us. If any provision in this Agreement is invalid or unenforceable under applicable law, the remaining provisions will continue in full force and effect. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. A waiver by Us of any right hereunder in any one instance shall not be deemed as a waiver of such right in any subsequent instance. You acknowledge and agree that the NBA shall be a third party beneficiary of this Agreement.
IMPORTANT! READ CAREFULLY
THE PORTLAND TRAIL BLAZERS ONLINE STREAMING PROGRAM (THE “Service”) IS AN INTERACTIVE ON-LINE SERVICE OPERATED BY THE PORTLAND TRAIL BLAZERS AT TRAILBLAZERSLIVE.RAYV.COM (THE “Site”). THE PORTLAND TRAIL BLAZERS ARE REFERRED TO COLLECTIVELY HEREIN AS “We,” “Us” “Trail Blazers” AND/OR “Our.” THIS SUBSCRIBER AGREEMENT (“Agreement” OR “Subscriber Agreement”), ALONG WITH THE DOCUMENTS REFERENCED HEREIN, GOVERNS YOUR USE OF AND ACCESS TO THE SERVICE. THIS SUBSCRIBER AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND US. BY ACCESSING THE SERVICE, YOU AGREE TO BE BOUND BY THIS SUBSCRIBER AGREEMENT AND THE DOCUMENTS REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE SITE TERMS OF USE AND THE NBA.COM NETWORK PRIVACY POLICY. IF YOU DO NOT ACCEPT THIS SUBSCRIBER AGREEMENT, YOU SHALL NOT BE AUTHORIZED TO ACCESS OR USE SERVICE. CHANGES TO SUBSCRIBER AGREEMENT
We reserve the right to make changes, modifications, amendments and/or updates to the terms in this Subscriber Agreement from time to time and for any reason, by posting such changes in this document, which you can access at any time by visiting [insert link where agreement will be posted]. You acknowledge and agree that you shall be responsible for reviewing this Agreement from time to time for changes, and that changes to this Agreement shall be effective when posted. By continuing to use the Service after We have posted any such changes in the Subscriber Agreement or otherwise, you are agreeing to be bound by the terms of the Subscriber Agreement, as amended. Any amendments to the dispute resolution procedures set forth in this Agreement will not apply to any dispute of which the parties had actual notice on or prior to the date of the amendment.
PRIVACY OF INFORMATION AND SITE TERMS OF USE
You agree to the Trail BLazers Privacy Policy (“Privacy Policy”), posted at http://www.nba.com/blazers/privacy_streaming.html, each of which may be amended from time to time and are incorporated herein by this reference. To the extent of any conflict between the terms or conditions of this Agreement and the terms or conditions of the Terms and/or Privacy Policy, the terms and conditions of this Agreement will govern.
FEES AND PAYMENT; SUBSCRIPTIONS
Subscriptions: Purchasing a subscription to the Service entitles you to access and use the Service, subject to the terms and conditions of this Agreement, to stream certain individual Trail Blazers games or a package of games (as identified on the Site) during the NBA’s 2009-2010 season, depending on the subscription purchased.
Subscription Fees: You can always find the current subscription fees and other charges for the Service (the “Fees”) posted on the Site pages where the Service is located. You agree to pay all subscription Fees and other Fees (including any applicable taxes) incurred in connection with your access to the Service and/or your Service Password (defined below), at the rates in effect when the charges were incurred. We may change the Fees, or add new Fees, upon prior notice to you either by e-mail or publishing the changes on the Site pages where the Service is located. You acknowledge and agree that you shall be responsible for reviewing the Service’s schedule of Fees from time to time for changes, and you further agree that changes shall be effective when posted on the Site pages where the Service is located. We shall be the seller of record of Service subscriptions for sales tax purposes, and, without limiting the generality of the foregoing, you agree to pay Us any taxes imposed on the sale of subscriptions or other products or services via the Service, if any, for remission by Us to appropriate taxing authorities.
Payment: You authorize Us to bill subscription Fees based on any subscription you purchase to the credit card you designate during the registration process for the Service. You agree to provide Us with a valid credit card and accurate, complete and updated information required by the subscription registration form. By submitting your credit card account as the form of payment, you represent and warrant that your use of such credit card is authorized and that all information that you submit is true and accurate (including, without limitation, credit card and/or account number and expiration date). In doing so, you also authorize Us to charge to your credit card all amounts payable by you to us based on the subscription plan you selected, including, but not limited to, all Fees and any applicable taxes we are required to collect. Failure to comply may result in the immediate suspension or termination of your access to the Service.
Unable-to-be-processed payments: If We are unable to process your credit card, your Service account may be immediately suspended or terminated and you will remain responsible for all amounts payable by you to Us. Your agreement with your credit card issuer governs use of your credit card. You must refer to those agreements with respect to your rights and liabilities as a cardholder. We reserve the right to continue to collect payment (and to continue to attempt to collect payment) that has not been collected due to technical or other issues.
ALL SALES ARE FINAL. ANY REFUNDS FOR SUBSCRIPTIONS WILL BE IN THE SOLE DISCRETION OF THE PORTLAND TRAIL BLAZERS.
You also are responsible for any fees or charges incurred to access the Service through an Internet access provider or other third party service. AS BETWEEN YOU AND US, YOU, AND NOT US, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, EVEN IF NOT AUTHORIZED BY YOU.
BLACKOUT RESTRICTIONS
You acknowledge and agree that the Service may only be used and/or accessed from locations within the zip codes set forth here http://www.nba.com/blazers/streamingzipcodes.html (the “Authorized Locations”). By using the Service, you represent and warrant that you will only use and/or access the Service within the Authorized Locations. IF YOU CIRCUMVENT, OR ATTEMPT TO CIRCUMVENT, ANY BLACKOUT RESTRICTION OR OTHER USE RESTRICTION: YOUR SUBSCRIPTION WILL BE SUBJECT TO IMMEDIATE TERMINATION AND A CHARGE OF ONE HUNDRED DOLLARS ($100.00) FOR EARLY TERMINATION; AND YOU MAY BE SUBJECT TO LEGAL ACTION.
LIMITATION OF LIABILITY
NOTWITHSTANDING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF THE TRAIL BLAZERS, THE NATIONAL BASKETBALL ASSOCIATION (“NBA”), THEIR RESPECTIVE AFFILIATES AND/OR SUBSIDIARIES, AND ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND/OR SUPPLIERS, FOR ANY REASON AND UPON ANY CAUSE OF ACTION, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICE OR THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED BY YOU AND SHALL NOT EXCEED THE AMOUNT ACTUALLY RECEIVED BY US FROM YOU FOR THE USE OF THE SERVICE DURING THE MONTH IN WHICH THE EVENT GIVING RISE TO SUCH CLAIM OCCURRED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATION OF LIABILITY HEREIN APPLIES TO ALL LIABILITIES IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM YOUR USE OR YOUR INABILITY TO USE THE SERVICE, OR ANY OTHER MATTER ARISING FROM OR RELATING TO THIS AGREEMENT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TRAIL BLAZERS, THE NBA, THEIR RESPECTIVE AFFILIATES AND/OR SUBSIDIARIES, AND ANY OF THE RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND/OR SUPPLIERS OF THE FOREGOING SHALL NOT HAVE ANY LIABILITY FOR ANY INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER FOR ANY REASON ARISING IN CONNECTION WITH THIS AGREEMENT AND/OR THE SERVICE, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THIS LIMITATION IS INDEPENDENT OF ANY OTHER LIMITATION SET FORTH IN THIS AGREEMENT.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TRAIL BLAZERS, THE NBA, THEIR RESPECTIVE AFFILIATES AND/OR SUBSIDIARIES, AND ANY OF THE RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND/OR SUPPLIERS OF THE FOREGOING SHALL HAVE NO LIABILITY FOR ANY DAMAGES OR INJURY CAUSED, IN WHOLE OR IN PART, BY CONTINGENCIES OR ISSUES BEYOND THEIR REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO: THE ACTS OF THIRD PARTIES, ERRORS IN THE CONTENT OR SERVICE, NETWORK FAILURES, INTERNET FAILURES, SOFTWARE AND HARDWARE FAILURES, VIRUSES AND OTHER SYSTEM ATTACKS, LABOR STOPPAGES, RIOTS, ACTS OF GOVERNMENT OR GOD, NATURAL DISASTERS, ACTS OF TERRORISM, COMMUNICATION LINE FAILURE, OR THEFT, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, ALTERATION OF OR USE OF RECORDS. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER (I) LIABILITY OR DAMAGE IS ALLEGED FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER THEORY OR CAUSE OF ACTION, AND/OR (II) THE PARTY AGAINST WHICH LIABILITY OR DAMAGES IS SOUGHT WAS ADVISED OF THE POSSIBILITY THEREOF.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE AGREEMENT, THE SERVICE, OR ANY PART THEREOF, MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR IT SHALL BE FOREVER BARRED.
CONTENT OWNERSHIP; USAGE RESTRICTIONS; THIRD PARTY SOFTWARE
The content available through the Service is the property of the NBA (including, but not limited to, their respective affiliates), and is protected by copyright and other intellectual property laws of the United States and other jurisdictions. Such content may only be used or viewed by you for your personal, non-commercial use only, and provided that you: (i) keep intact all copyright and other proprietary notices; (ii) do not use the content in a manner that would achieve commercial gain, or that would damage the goodwill associated with or compete with the NBA or its affiliates including, without limitation, the Trail Blazers; (iii) do not use the content in a manner that suggests an association with any of the NBA’s services, brands, or products (unless otherwise authorized in writing by the NBA); and (iv) make no modifications to the content. Additionally, you agree to use the Service in a manner that complies with all applicable laws. You agree not to copy, deep link, reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate the content received through the Service to anyone, including, but not limited to, others in the same company or organization, without the express prior written consent of the NBA.
You may not attempt to circumvent technological measures employed to control access to, or the rights in, the Service, whether in conjunction with or through use of any device, software program, service or otherwise. In addition, without limiting the generality of the foregoing, you represent, warrant and covenant that:
1. You are only subscribing to the Service for individual, private, non-commercial household use and enjoyment and that no part of the Service will be viewed in areas open to the public or be received by any location which is a commercial establishment;
2. No trademarks of any provider of Service content (including, but not limited to, the Trail Blazers or the NBA) may be used by you and none of the Service content will be rebroadcast, retransmitted or otherwise used by you;
3. Running accounts of Service content/programming in progress will not be transmitted or distributed by you;
4. No admission will be charged by you for viewing any of the programming available through the Service;
5. We and/or certain of Our content providers (including the NBA) may enforce violations of clauses 1-4 immediately above;
6. Notwithstanding anything herein to the contrary, any violation of clauses 1-4 immediately above may be prosecuted by Us or certain of Our content providers (including the NBA) in any court of competent jurisdiction; and
7. Any such prosecution by Us or Our content providers shall be governed by, among other things, applicable federal law and the rules and regulations of the Federal Communications Commission.
FROM TIME TO TIME YOU MAY BE ABLE TO ACCESS CERTAIN THIRD PARTY SOFTWARE AND/OR OTHER MATERIALS VIA THE SERVICE. THE ACCESS AND/OR USE OF SUCH THIRD PARTY SOFTWARE AND/OR OTHER MATERIALS SHALL BE SUBJECT TO SUCH ADDITIONAL LICENSE OR OTHER AGREEMENTS AS MAY ACCOMPANY THE SOFTWARE OR OTHER MATERIALS OR OTHERWISE BE PUBLISHED BY THE APPLICABLE THIRD PARTY. ANY PERSONAL INFORMATION YOU PROVIDE TO A THIRD PARTY IN CONNECTION WITH YOUR USE OF THE THIRD PARTY’S SOFTWARE IS GOVERNED BY THAT THIRD PARTY’S PRIVACY POLICY, SOFTWARE LICENSE AND/OR OTHER LEGAL AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ARE NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY IN CONNECTION WITH (I) ANY SOFTWARE AND/OR OTHER MATERIALS SUPPLIED BY A THIRD PARTY, (II) USE AND/OR DISCLOSURE OF ANY INFORMATION YOU PROVIDE TO A THIRD PARTY, AND/OR (III) ANY OTHER ACTS OR OMISSIONS OF THIRD PARTIES.
DISCLAIMER OF WARRANTIES
DUE TO THE NUMBER OF SOURCES FROM WHICH CONTENT IN THE SERVICE IS OBTAINED, AND THE INHERENT HAZARDS OF ELECTRONIC DISTRIBUTION, THERE MAY BE DELAYS, INTERRUPTIONS, OMISSIONS OR INACCURACIES IN SUCH CONTENT AND THE SERVICE. THE SERVICE AND THE INFORMATION AND MATERIALS CONTAINED IN IT ARE PROVIDED BY US AND OUR SUBSIDIARIES, AFFILIATES AND/OR LICENSORS ON AN "AS IS" AND "AS AVAILABLE" BASIS. NEITHER THE TRAIL BLAZERS, THE NBA, THEIR AFFILIATES, SUBSIDIARIES OR PARENT COMPANIES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, THIRD PARTY CONTENT SUPPLIERS OR LICENSORS (COLLECTIVELLY, "INDEMNITEES") WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICE OR THE CONTENT AVAILABLE THROUGH THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APLICABLE LAW, IN NO EVENT WILL THE INDEMNITEES BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON THE SERVICE OR THE CONTENT AVAILABLE VIA THE SERVICE.
The Service includes facts, views, opinions and recommendations of third party individuals and organizations deemed of interest. Neither the Trail Blazers nor the NBA guarantee the accuracy, completeness or timeliness of, or otherwise endorse, these views, opinions or recommendations.
INDEMNIFICATION
To the maximum extent permitted by applicable law, you agree to defend (at Our election), indemnify and hold harmless each Indemnitee from and against all claims (including, but not limited to, claims for copyright infringement, defamation, invasion of privacy and infringement of rights of publicity, whether in tort, in contract or otherwise), damages and expenses (including, but not limited to, attorneys’ fees, court costs, judgments and settlements costs) that the Indemnitee may incur or become subject to by reason of or arising out of the use of the Service by you or under your Password(s).
TRADEMARKS
NBA, NBA.COM, PORTLAND TRAIL BLAZERS, TRAIL BLAZERS, BLAZERS, RIP CITY and each of their associated logos are trademarks of the NBA and/or their respective affiliates or licensors. All rights reserved. All other trademarks appearing on the Service are the property of their respective owners.
NOTICE
Except as otherwise expressly provided herein, all notices required under the terms and provisions hereof to Us shall be in writing and shall be transmitted by United States Postal Service ("USPS") or reputable express carrier (e.g., UPS) to Our address below. Except as otherwise expressly provided herein, all notices to Us are effective five (5) business days after deposit with USPS or reputable express carrier, assuming some confirmation of sending is retained. Except as otherwise expressly provided herein, all notices required under the terms and provisions hereof to you shall be in writing and shall be transmitted by USPS, reputable express carrier (e.g., UPS) or email to any address for you referenced below. Except as otherwise expressly provided herein, all notices to you sent by (i) USPS certified mail or reputable express carrier are effective five (5) business days after deposit with USPS or reputable express carrier, and (ii) email are effective one (1) business day after transmission, assuming some confirmation of transmission is retained. If to Us:
Trail Blazers, Inc., Suite 200, One Center Court, Portland, OR 97227 USA, attention “Legal Department”
If to you:
To the physical address or email address indicted in the Service or Site registration you submitted to Us.
PASSWORDS AND ACCESS TO SERVICE
To obtain access to the Service, you will be required to register with the Site, which may include providing your name, address, email address, age and gender, and to thereby create a Site account. You will also be required to choose a username and password or access code (collectively, the “Password”). You agree to: (i) provide current, complete, true and accurate information; (ii) maintain and update your information as required to keep it current, complete and accurate; and (iii) provide additional information about yourself as may be requested by Us from time to time. Please note that this information may be used in accordance with the Privacy Policy. We reserve the right to require you to periodically change your Password. You agree:
1. That you are and shall be responsible for maintaining the confidentiality and security of your Password, and for restricting access to your computer and your Password;
2. Not to transfer, lease, assign, sublicense, or share any Password without Our prior written consent;
3. Not to circumvent the password restrictions on the Site, nor allow others to do so on your behalf;
4. Not to use anyone else's Password; and
5. To notify Us immediately upon discovery or suspicion of compromise of the confidentiality of any Password.
You acknowledge and agree that only one individual may access the Service at the same time using your Password, unless agreed otherwise by Us. You further acknowledge and agree that you shall be solely liable and responsible for all activities that occur under your Password. You further agree that We shall not be responsible for your failure to comply with this Section or any loss or damage arising out of, or related to, your use of your Password by you or anyone other than Us. You may not use the Service for any unlawful purpose or for any purpose other than as expressly authorized herein. We shall have the right, in Our sole discretion, to refuse or restrict anyone from access to any or all of the Service at any time for any reason or to refuse to permit you to use a Password for any reason, including but not limited to, that your Password impersonates someone else, is protected by trademark or other intellectual property rights, or is vulgar or otherwise offensive, as determined solely by Us in Our absolute discretion. You may only receive the Service if you are a Service subscriber in good standing with a valid, authorized credit card account on file with Us.
TERMINATION OF SERVICE BY US
In addition to any other remedies available to Us, whether in equity, at law or otherwise, upon your failure to comply with any of the terms or conditions in this Subscriber Agreement, We shall have the right to terminate your access to the Service and this Agreement immediately. We further reserve the right to discontinue, suspend, terminate or change the Service, or its availability to you, at any time. If We terminate this Agreement or discontinue your Service subscription for cause (for example, due to your breach of this Agreement), you will not receive any refund or partial refund for any charges or Fees already incurred by or billed to you, and We reserve all other rights available to Us in connection with your breach.
ARBITRATION
Except as otherwise expressly set forth in this Agreement to the contrary, any and all disputes arising from or relating to this Agreement or the Service shall be solely and finally settled by arbitration. The arbitration will be governed by the Federal Arbitration Act. The arbitration will be conducted in Portland, Oregon, by a single arbitrator to be selected by Us. The arbitrator's authority shall be limited to resolving individual disputes between you and Us, and the arbitrator shall not determine, as an initial matter, whether class, mass or consolidated relief is permitted in arbitration. Notwithstanding the foregoing, without first seeking or obtaining any decision in arbitration (even if a similar or related matter has already been referred to arbitration in accordance with the terms of this paragraph), (i) We, and our respective affiliates and licensors, may bring any claim or suit for the purpose of evidencing, enforcing, registering or defending Our or their respective intellectual property rights in any court or forum of competent jurisdiction; and (ii) We, and our respective affiliates and licensors, shall be entitled to seek injunctive and other equitable relief in any court or forum of competent jurisdiction to enforce this Agreement.
GOVERNING LAW
This Agreement and any disputes relating to this Agreement and/or the Service will be governed by the laws of the State of Oregon, United States of America, without regard to its principles of conflicts of laws. Any action that you, any third party or We bring to enforce this Agreement or, in connection with, any matters related to the Service shall be brought only in a federal or state court of competent jurisdiction located within Multnomah County, Oregon, United States of America, and you hereby consent to the jurisdiction of such court solely for such purposes and you further waive any argument that any such court does not have jurisdiction over such dispute or that venue in any such court is not appropriate or convenient. You agree to accept service of process by reputable express carrier (e.g., UPS) and/or certified mail, return receipt requested, at the address designated by you. We will be entitled to recover costs and reasonable attorneys' fees and expenses incurred in successfully proving any breach of this Agreement.
INJUNCTIVE RELIEF
You acknowledge and agree that any violation of this Agreement relating to the disclosure, use, copying, distribution, display or publishing of the information and/or content on the Service and/or use of the Service may result in irreparable injury and damage to Us that may not be adequately compensable in money damages, and for which We will have no adequate remedy at law. You, therefore, consent and agree that We may obtain injunctions, orders or other equitable relief as may be reasonably necessary to ensure compliance with this Agreement. You waive any requirement of the posting of a bond that may apply for issuance of any injunctions, orders or other equitable relief.
MISCELLANEOUS
Use of the Service is not authorized in any jurisdiction that does not give effect to this Agreement. This Agreement is personal to you, and you may not assign your rights or obligations to anyone. We may assign our rights and obligations under this Agreement, without notice, (i) to any of Our affiliates, (ii) in connection with any change of control (e.g., by merger, exchange of stock or other equity interests, etc.) involving Us or one of Our affiliates or in connection with any sale of substantially all of the assets related to the Site, or (iii) to any of Our successors in interest or other assignees. This Agreement shall be binding on and inure to the benefit of Our successors and permitted assigns. The terms and conditions contained in this Agreement may not be modified by you except in a writing duly signed by you and an authorized representative of Us. If any provision in this Agreement is invalid or unenforceable under applicable law, the remaining provisions will continue in full force and effect. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. A waiver by Us of any right hereunder in any one instance shall not be deemed as a waiver of such right in any subsequent instance. You acknowledge and agree that the NBA shall be a third party beneficiary of this Agreement.
