Certain features, products, services and other offerings (including event registrations and subscription services) that you purchase or access through the Services may be subject to additional terms and conditions presented to you at the time that you use, purchase or access them. If you decide to enter a contest or sweepstakes, we present the terms and conditions for the contest or sweepstakes to you. In addition, some areas of the Services are provided by our third party partners and are subject to separate terms and conditions of use, which are posted within those areas.
This TOU, TOGETHER WITH any other terms and conditions or policies THAT this TOU refers to, FORMS a binding agreement between you and Hang. Please read this TOU carefully before ACCESSING, DOWNLOADING or using THE SERVICES. If you do not agree TO THIS TOU, you ARE NOT AUTHORIZED OR LICENSED TO USE THE SERVICES AND MUST IMMEDIATELY CEASE USING THE SERVICES.
PLEASE NOTE: THIS TOU CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN SECTION 18 BELOW THAT AFFECTS YOUR RIGHTS UNDER THIS TOU AND HOW DISPUTES BETWEEN YOU AND HANG WILL BE RESOLVED. YOU HAVE A TIME-LIMITED RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS, AS FURTHER DESCRIBED IN SECTION 18 BELOW.
PLEASE ALSO NOTE: THIS TOU CONTAINS A PARTICIPANT APPEARANCE RELEASE IN SECTION 1 BELOW THAT PROVIDES HANG WITH YOUR ABSOLUTE AND UNCONDITIONAL CONSENT, WAIVER, AND RELEASE OF LIABILITY, ALLOWING HANG TO PUBLICIZE AND COMMERCIALLY EXPLOIT YOUR NAME, LIKENESS, AND OTHER PERSONAL CHARACTERISTICS. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF SUCH RELEASE AND THAT YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE HANG.
We reserve the right, in our sole discretion and without notice, to amend this TOU at any time by posting an updated version of this TOU on this page, so you should periodically review this page for any updates. Such changes will be effective when posted, and the date on which this TOU was most recently updated is stated at the end of this TOU. To the fullest extent permitted by applicable law, each updated version of the TOU will apply to all past and current users of the Services and will replace any prior version of the TOU. By continuing to use the Services after we post any updated version of the TOU, you accept and agree to this TOU as amended.
By participating in any event on or available through the Services (each, an “Event”), for the intangible value you will gain by participating in the Event and other good and valuable consideration, the receipt and sufficiency of which you hereby acknowledge, you consent and agree to the following Participant Appearance Release (“ Release”):
· You acknowledge and agree that Events are public forums accessible to the public and that, as a result, any or all aspects of your participation and Appearance (as defined below) may be accessed by other participants in such Events, users of the Services, members of the general public and other third parties.
· You hereby irrevocably grant to Hang and its affiliates, along with their licensees, agents, successors, and assigns (“ Hang Related Parties”), the right (i) to film, record and photograph you, including audio, visual, and audiovisual footage, screenshots, and other materials depicting you, as part of the Event (“ Footage”) and (ii) to digitize, modify, alter, edit, adapt, create derivative works, display, publicly perform, exhibit, transmit, broadcast, reproduce, exploit, sell, rent, license, otherwise use, and permit others to use, in whole or in part, your name, likeness, image, appearance, voice, biography, interview, performance contained in the Footage and other personal characteristics (collectively, your “ Appearance”) in perpetuity throughout the world, in all manner, media and platforms now known or hereafter invented or discovered, without further consent from you or any royalty, payment, or other compensation to you. Hang is not obligated to use your Appearance.
· You hereby irrevocably permit, authorize, and license the Hang Related Parties to identify you by name and use your Appearance, and all materials created by or on behalf of the Hang Related Parties that incorporate your Appearance (“Materials”), in connection with any Events and the Services, and promotion, publicity and advertising of any Events, Services, and the businesses and offerings of the Hang Related Parties, in perpetuity throughout the world, in all manner, media and platforms now known or hereafter invented or discovered, without further consent from you or any royalty, payment, or other compensation to you.
· You agree that the Hang Related Parties may make any modifications, deletions, adjustments, alterations, adaptations, or other changes to the Footage or Materials (including to your Appearance as incorporated therein) as Hang (or its designee) deems desirable.
· You acknowledge and agree that you have no right to review or approve any Footage or Materials.
· You agree that Hang exclusively owns and shall own all right, title and interest, including all copyright and other intellectual property rights, in and to the Footage and Materials, to be used and disposed of throughout the world in perpetuity without limitation as Hang shall determine in its sole discretion.
· You shall, and hereby do, (i) assign, transfer, and otherwise convey to Hang, irrevocably and in perpetuity, throughout the world, all of your right, title, and interest, if any, in and to the Footage and Materials, including all copyright and other intellectual property rights, including all registration, renewal, and reversion rights, and the right to register and sue to enforce such copyrights against infringers and alleged infringers, and (ii) irrevocably waive any and all claims you may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral in the Footage and Materials.
· You acknowledge and agree that Hang does not control third parties, such as participants in the Event, users of the Services and members of the public, and that Hang is not responsible for the actions of such third parties, including any access, copying, distribution or exploitation of your Appearance by such third parties.
· To the fullest extent permitted by applicable law, you hereby irrevocably waive all legal and equitable rights relating to all liabilities, claims, demands, actions, suits, damages, and expenses, including but not limited to claims for copyright or trademark infringement, infringement of moral rights, libel, defamation, invasion of any rights of privacy, violation of rights of publicity, physical or emotional injury or distress, or any similar claim or cause of action in tort, contract, or any other legal theory, now known or hereafter known in any jurisdiction throughout the world (collectively, “Claims”) arising directly or indirectly from the Hang Related Parties’ exercise of their rights under this Release or the production, exhibition, advertising, promotion, exploitation, or other use of the Footage, your Appearance and/or materials incorporating your Appearance, and whether resulting in whole or in part by the negligence of Hang or any other person, covenant not to make or bring any such Claim against any Hang Related Party or its agents, employees, and representatives, and forever release and discharge the Hang Related Parties from liability under such Claims. You agree that this Release cannot be terminated, rescinded, or modified, in whole or in part. You waive your right to injunctive and other equitable relief in the event of a dispute with Hang. You will not have the right to enjoin or interfere with the production, distribution, exploitation, advertising, or promotion of the Footage, your Appearance, or materials incorporating your Appearance. If you are a California resident, you acknowledge and agree that you are specifically waiving unknown Claims and the statutory protections of California Civil Code Section 1542.
· You represent and warrant to Hang that you are over the age of eighteen and have the full right, power and authority to agree to this Release.
2. OUR TRADEMARKS AND OTHER PROPRIETARY RIGHTS
Except for your Submitted Materials (as defined in Section 5), we and our licensors own, solely and exclusively, all rights, title and interest (including, but not limited to, copyrights) in and to the Services, all content (including, but not limited to, all audio, video, visuals, photographs, images, illustrations, renderings, drawings, webcasts, RSS feeds, podcasts, other services, graphics, logos, games, widgets, gadgets, applets, other distributable applications, copy and software), code, data and other materials available on the Services, the look and feel, design and organization of the Services, and the compilation and organization of the foregoing (collectively, the “Content”), including but not limited to any copyrights, trademark rights, patent rights, database rights, moral rights, sui generis rights and other intellectual property and proprietary rights therein. Your use of the Services does not transfer, assign or grant to you any right, title or interest in or to any Content or any other part of the Services, nor does it grant you any license to use or display any of the foregoing.
3. LIMITED LICENSE
Subject to this TOU and your compliance with this TOU, we grant to you a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to access, view, use and display the Services on your computer or other personal device for your personal, non-commercial use only. No part of the Services or Content (or any of our products or services advertised or sold on or through the Services) may be copied, reproduced, republished, exploited, downloaded, uploaded, posted, transmitted, modified, derived, exploited, distributed or used in any manner whatsoever, without our prior written consent or that of the applicable third-party rights owner.
4. RULES OF CONDUCT AND LIMITATIONS ON USE
You agree to comply with the following rules of conduct and limitations when you use the Services:
· If you communicate, transit, post or upload anything to or through the Services (including to other participants through Events or offerings on the Services), such as a message, comment (verbally or in writing), or other content, do not communicate, transmit, post or upload anything that:
o violates, infringes or otherwise misappropriates any person’s rights (such as intellectual property rights or their right of publicity),
o is defamatory (e.g., something that is negative and untrue about another person or entity),
o is fraudulent, unlawful, threatening, harassing, hateful, inflammatory, violent, abusive, obscene, indecent, discriminatory or otherwise objectionable,
o divulges another person’s or entity’s confidential or private information or trade secret,
o is likely to deceive another person;
o promotes sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
o promotes any illegal activity, or advocates, promotes, or assists any unlawful act;
o causes annoyance, inconvenience, or needless anxiety or is likely to upset, embarrass, alarm, or annoy any other person;
o impersonates any person, or misrepresents your identity or affiliation with any person or organization;
o gives the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case;
o advertises or solicits business for products or services other than those that are offered by Hang on the Services,
o otherwise involves commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising; or
o contains any virus, malware, spyware or other harmful content or code.
· Do not use or attempt to use another’s account without authorization, or allow anyone else to use your account or Event registration.
· Do not remove any copyright, trademark or other proprietary notice from any Content.
· Do not “harvest”, “scrape”, “mine” or otherwise collect information from the Services using an automated software tool or manually on a mass basis. This includes, for example, information about other users of the Services and information about the offerings and services on the Services.
· Do not use automated means to access the Services, and do not gain or attempt to gain unauthorized access to the Services or to any account or computer system connected to the Services. This prohibition does not apply to search engines accessing the Services solely for web indexing purposes.
· Do not solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes.
· Do not “stream catch” (download, store or transmit copies of streamed content).
· Do not obtain, or attempt to obtain, access to areas of the Services or our systems that are not intended for access by you.
· Do not “flood” the Services with requests or otherwise overburden, disrupt or harm the Services or its systems.
· Do not circumvent or reverse engineer the Services or their systems.
· Do not develop or use any third-party applications that interact with the Services, other than web browsers for the purposes of viewing the Services for your personal use in accordance with this TOU.
· Do not “frame” the Services or otherwise make it look like you have a relationship to us or that we have endorsed you for any purpose.
· Do not restrict or inhibit any other user or users from using and enjoying the Services.
Although Hang has no obligation to monitor any user conduct on the Services (including participation in Events), Hang reserves the right and has absolute discretion to monitor any user conduct on the Services at any time and for any reason without notice. We have the right to remove or restrict your access to the Services (including your participation in an Event you registered for) or any content if we determine your conduct or such content is in violation of this TOU, may harm our community of users, compromise or interfere with the integrity or operation of the Services, or to avoid or mitigate adverse legal or regulatory impacts to Hang.
5. SUBMITTED MATERIALS
Unless specifically requested by us, we neither solicit nor wish to receive any confidential, secret or proprietary information or other material from you. Any information, proposals, requests, creative works, pictures, photographs, documents, letters, demos, ideas, know-how, suggestions, concepts, methods, systems, designs, drawings, renderings, plans, techniques, comments, criticisms, reports, reviews, ratings, feedback or other information, content or materials that you communicate, submit, post, upload, distribute, store, send or transmit to, on or through the Services in any manner (collectively, “Submitted Materials”) will be deemed not to be confidential, secret or proprietary and may be used by us in any manner, without restriction.
By communicating, submitting, posting, uploading, distributing, storing, sending or transmitting Submitted Materials to, on or through any Services, you: (i) represent and warrant that your Submitted Materials comply with this TOU (including, without limitation, Section 4); (ii) represent and warrant that either (a) your Submitted Materials are original to you and no other party has any rights thereto, or (b) that you have all licenses, rights, consents and permissions necessary to use such Submitted Materials, to submit them to the Services for our use, and to validly grant to us (and our affiliates) the license set forth in the following clause (iii), and that any “moral rights” in the Submitted Materials have been waived; and (iii) hereby grant to us (and our affiliates) a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sub-licensable (through multiple tiers) right and license to use, copy, reproduce, modify, store, adapt, publish, translate, create derivative works from, distribute, perform, display, make, exploit, sell, export and incorporate into other works, products or services (including, but not limited to, the Services and advertising and promotional materials for us or third parties), in whole or in part, such Submitted Materials, in any form, media, or technology now known or later developed, for any purpose. We are not responsible for maintaining or storing, and may delete or destroy, any Submitted Material that you provide. You agree to keep copies of all necessary supporting documentation and to make such records available to us upon our request.
6. RESPONSIBILITY FOR USER POSTINGS AND CONTENT
Responsibility for what is communicated or posted in Events, video chats, forums, comment or chat features, or other public areas of the Services (“ Forums”) lies with each user. You alone are responsible for the reviews or other Submitted Materials you post, communicate or otherwise make available in any Forum. You alone are responsible for assessing the credibility of other user postings. We do not control the communications or other materials that you or others may post or otherwise make available in any Forums, and you understand that we have no obligation to monitor any such Forums or to edit or delete communications and other materials generated by users. However, we reserve the right do so. We are not a publisher of user reviews or other posts, and we are not responsible for their accuracy or legality.
You also understand and agree that any action or inaction by us or any of our directors, employees, consultants, agents or representatives (collectively, “Our Representatives”) to prevent, restrict, redress or regulate content, or to implement other enforcement measures against any content, conduct or potential TOU violation is undertaken voluntarily and not out of any obligation, and you expressly agree that (i) we and Our Representatives shall have the right to take (or not take) such actions or inactions in our or their sole discretion, and (ii) neither we nor any of Our Representatives shall be liable to you or anyone else for any action or inaction to prevent, restrict, redress, or regulate content, or to implement other enforcement measures against any content, conduct or potential violation of this TOU.
Although Our Representatives may moderate content and conduct audits of TOU compliance on the Services at our discretion, Our Representatives have no authority to make binding commitments, promises or representations to anyone that they or anyone else on our behalf will “take care” of any alleged problem or complaint, or that they or anyone else on our behalf will otherwise stop, cure or prevent any problem, content, conduct or purported TOU violation from occurring or recurring. Accordingly, you further agree that any representation (written or verbal) by any of Our Representatives (or by anyone purportedly acting on our behalf) that we would or would not prevent, restrict, redress or regulate content (including, but not limited to, screen, block, moderate, review, remove, terminate, delete, edit or otherwise stop, cure or exclude any content), or would implement other enforcement measures against any content, conduct or potential or purported TOU violation is superseded by this provision and is nonbinding and unenforceable. Specifically, you agree that we, Our Representatives and anyone else authorized to act on our behalf shall in no circumstance be liable as a result of any representation that we, Our Representative or anyone else acting on our behalf would or would not restrict or redress any content, conduct or potential or purported TOU violation. This Section 6 may not be waived or released by Hang except by a written agreement, dated and signed by our Chief Executive Officer and dated and signed by the individual or entity to whom the waiver or release is granted.
7. USER INTERACTIONS
Hang is not responsible or liable for the conduct of, or your interactions with, other users of the Services (whether online or offline), nor is Hang responsible or liable for any associated loss, damage, injury or harm. Hang recommends exercising caution before contacting or meeting anyone (online or offline) that is unfamiliar to you.
8. REGISTRATION AND LOG-IN
To register for Events or to access certain features or areas of the Services, you may be required to provide personal and/or demographic information as part of a registration or log-in process. In addition, certain features of the Services are only available to our customers, and to access those areas of the Services you will be required to log in using your username and password.
You agree to provide true, accurate, current and complete information about yourself as prompted by the applicable registration or log-in form, and you are responsible for keeping such information up-to-date (this includes your contact information, so that we can reliably contact you). The information you submit must describe you (you may not impersonate another person or entity), and you may not sell, share or otherwise transfer your account information.
You are responsible for all activity occurring when the Services are accessed through your account, whether authorized by you or not. Therefore, if you create an account, be sure to protect the confidentiality of your account password. We are not liable for any loss or damage arising from your failure to protect your password or account information.
9. ELECTRONIC COMMUNICATIONS
When you visit the Services or send e-mails to us, you are communicating with us electronically. By doing so, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
10. NOTICES OF CLAIMED COPYRIGHT INFRINGEMENT (DMCA TAKEDOWN NOTICES)
We respect the intellectual property rights of others, and we require that users of the Services do the same. We also maintain a policy that provides for the termination in appropriate circumstances of the Services use privileges of users who are repeat infringers of intellectual property rights. If you believe that any work you own the copyright to is being used on the Services in a way that constitutes copyright infringement, please send the following information to our Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2) (the “DMCA”), named below:
· A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
· Identification of the copyrighted work that you claim has been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
· Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that you are requesting to be removed or access to which you are requesting to be disabled, and information reasonably sufficient to enable us to locate such material;
· Your postal 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 therefore constitutes copyright infringement; and
· A statement by you, under penalty of perjury, that all information in your notification is accurate and that you are the owner of the exclusive right that allegedly has been infringed or are authorized to act on behalf of such owner.
Our Copyright Agent for notices of claims of copyright infringement pursuant to the DMCA can be reached as follows:
Registered Copyright Agent
Hang Media, LLC
P.O. Box 41
Mt. Kisco, NY 10549
11. MODIFICATION OR DISCONTINUATION OF SERVICES
Hang reserves the right to modify or discontinue, temporarily or permanently, the Services or any features or portions thereof at any time, without prior notice. You agree that Hang will not be liable for any modification, suspension or discontinuance of the Services or any part thereof.
12. SUSPENSION OR TERMINATION OF ACCESS
We reserve the right to deny access to, and to suspend or terminate your access to, the Services (including Events), or to any features or portions of the Services (including Events), and to remove and discard any Submitted Materials that you have submitted to the Services, at any time and for any reason, including, without limitation, for any violation by you of this TOU. In addition, we have a policy of terminating the Services usage privileges of users who are repeat infringers of intellectual property rights. In the event that we suspend or terminate your access to and/or use of the Services, you will continue to be bound by the version of this TOU that was in effect as of the date of your suspension or termination.
13. LINKS TO THE SERVICES
We permit links to the Services so long as: (i) the Services opens in a new browser window which displays the full version of a web page of the Services (not merely one of its frames, and not an “in-line” link to a particular image or object on the Services); (ii) the link to the Services does not state or imply any sponsorship or endorsement by us of any product, service, content or material; and (iii) the Services are not display framed within, surrounded by or obfuscated by other content. We reserve the right to revoke your right to link to the Services upon notice. If you receive such a notice from us, you agree to immediately discontinue your link to the Services. You will not link to any Services other than in accordance with this Section 13.
14. LINKS TO THIRD PARTY SITE
The Services may contain links to website controlled by parties other than Hang, including, but not limited to, those of the franchisees or licensees of Hang (“Operators”), and social media platforms, such as Facebook, Twitter, Snapchat or Instagram (all third party websites and social medial platforms are collectively referred to herein as “ Third Party Sites”). Hang may work with certain partners and affiliates whose Third Party Sites are linked with the Services. Hang is not responsible for and does not endorse or accept any responsibility for the availability, contents, products, services or use of any Third Party Site, any website accessed from a Third Party Site or any changes or updates to any such Third Party Site. Hang makes no guarantees about the content or quality of the products or services provided by such Third Party Site. Hang provides links to Third Party Site only as a convenience, and the inclusion of any link does not imply endorsement by Hang of any Third Party Site. You acknowledge that you bear all risks associated with access to and use of a Third Party Site and agree that Hang is not responsible for any loss or damage of any sort you may incur from dealing with a third party. You should contact the website administrator for the applicable Third Party Site if you have any concerns regarding such links or the content located on any such Third Party Site. Third Party Sites and your use of them and any content available on or through them may be subject to separate terms and conditions between you and the provider(s) of such Third Party Sites. You should read and understand those terms and conditions before commencing such use.
You agree to defend, indemnify and hold harmless Hang and its affiliates, and Hang’s and its affiliates’ respective officers, directors, owners, stockholders, partners, members, employees, independent contractors, agents, service providers, consultants, and featured talent, from and against any and all claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees and expenses) arising out of or related to (i) your participation in Events and any other use of the Services, (ii) any Submitted Materials, (iii) your violation of this TOU, (iv) your violation of any rights of another, or (v) your conduct in connection with the Services. This indemnification, defense and hold harmless obligation will survive this TOU and the termination of your use of the Services.
16. JURISDICTIONAL ISSUES
We control and operate the Services from our facilities in the United States of America, and unless otherwise specified, the materials displayed on the Services are presented solely for the purpose of promoting products and services available in the United States of America, its territories, possessions, and protectorates. We do not represent that the Services or Content, products or services available on the Services are appropriate or available for use in or from other geographic locations. If you choose to access the Services from other locations, you are responsible for compliance with local laws, if and to the extent local laws are applicable.
17. GOVERNING LAW; NO WAIVER; SEVERABILITY
This TOU, and the relationship between you and us, will be governed by the laws of the State of New York, without giving effect to any principles of conflicts of law. Hang reserves the right to pursue any and all legal and equitable remedies against anyone violating this TOU. Our failure to exercise or enforce any right or provision of this TOU will not constitute a waiver of such right or provision. If any provision of this TOU is found by a court of competent jurisdiction to be invalid, unlawful, void or otherwise unenforceable, you and we nevertheless agree that the court should endeavor to give effect to the intentions as reflected in the provision and reform such provision such that it is enforceable to the maximum extent permissible under applicable law, and the other provisions of this TOU will remain in full force and effect.
18. BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER
A. Disputes . The term “Dispute” (i) means any dispute, claim, or controversy between you and us or any of our affiliates regarding the Services or any Event, product or service thereon, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section 18 (with the exception of the enforceability of the Class Action Waiver clause below), and (ii) is to be given the broadest possible meaning that will be enforced. If you have a Dispute with us or any affiliate of ours or any of our or their officers, directors, owners, stockholders, partners, members, employees or agents that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, other than those matters listed in the Exclusions from Arbitration clause, you and the entity with which you have a Dispute agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section 18, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
B. Exclusions from Arbitration. YOU AND WE AND OUR AFFILIATES AGREE THAT ANY CLAIM FILED BY YOU OR BY US OR OUR AFFILIATE IN SMALL CLAIMS COURT ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 18.
C. Right to Opt Out of Binding Arbitration and Class Action Waiver within 30 Days. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 18, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU FIRST ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO HANG MEDIA, LLC, PO Box 41, Mt. Kisco, NY 10549 AND MUST INCLUDE: (I) YOUR NAME, (II) YOUR ADDRESS AND EMAIL ADDRESS, (III) YOUR ACCOUNT NUMBER, IF YOU HAVE ONE, AND (IV) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US OR OUR AFFILIATES THROUGH ARBITRATION.
D. Notice of Dispute . If you have a Dispute with us or any of our affiliates, you must send written notice to Hang Media, LLC, PO Box 41, Mt. Kisco, NY 10549 to give us or our affiliate with which you have a Dispute the opportunity to resolve the Dispute.
E. Informally Through Negotiation . You agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute, unless the Dispute is resolved within 60 days. If we or our affiliate with which you have a Dispute does not resolve your Dispute within 60 days from receipt of notice of the Dispute, you, we or our affiliate with which you have a Dispute may pursue your claim in arbitration pursuant to the terms in this Section 18.
F. Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION, UNLESS BOTH YOU AND THE ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
G. Initiation of Arbitration Proceeding/Selection of Arbitrator . If you or the entity with which you have a Dispute elect to resolve your Dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association (“ AAA”), www.adr.org, or JAMS, www.jamsadr.com. The terms of this Section 18 govern in the event they conflict with the rules of the arbitration organization selected by the parties.
H. Arbitration Procedures . Because the Services or products or services provided to you by Hang concern interstate commerce, the Federal Arbitration Act (“ FAA”) governs the arbitrability of all related Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“ Supplementary Procedures”) shall apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to and negotiated in good faith with the entity with which you had a Dispute as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to the entity with which you have a Dispute or to you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
I. Location of Arbitration . You or the entity with which you have a Dispute may initiate arbitration in either New York County, New York or the county in which you reside. In the event that you select the county of your residence, the entity with which you have a Dispute may transfer the arbitration to New York County, New York in the event that it agrees to pay any additional fees or costs you incur as a result of the change in location as determined by the arbitrator.
J. Severability . If any clause within this Section 18 is found to be illegal or unenforceable, that clause will be severed from this Section 18, and the remainder of this Section 18 will be given full force and effect.
K. Continuation . This Section 18 shall survive any termination of this TOU or your use of the Services.
ANY DISPUTE NOT SUBJECT TO ARBITRATION AND NOT INITIATED IN SMALL CLAIMS COURT WILL BE LITIGATED BY EITHER PARTY ONLY IN the United States District Court for the Southern District of New York or, if such court would not have jurisdiction over the matter, then only in a FEDERAL OR New York State court sitting in the Borough of Manhattan, City of New York. Each Party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this TOU IN any other court or forum. Each Party waives any objection to the laying of the venue of any legal action brought under or in connection with the subject matter of this TOU IN the Federal OR state courts sitting in the Borough of Manhattan, City of New York, and agrees not to plead or claim in such courts that any such action has been brought in an inconvenient forum.
20. DISCLAIMER OF WARRANTIES
THE SERVICES AND ALL EVENTS AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND NON-INFRINGEMENT). THIS MEANS, FOR EXAMPLE, THAT WE MAKE NO PROMISES THAT:
· THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME,
· THE SERVICES WILL MEET ANY PARTICULAR REQUIREMENTS OR PROVIDE ANY PARTICULAR RESULTS,
· THE SPORTING EVENTS AND OTHER THIRD PARTY OFFERINGS THAT ARE FEATURED OR DISCUSSED IN OUR EVENTS WILL BE COMPLETED OR OCCUR AT ALL,
· THE INFORMATION ON THE SERVICES WILL BE ACCURATE OR UP TO DATE,
· THE SERVICES OR THE INFORMATION TRANSMITTED TO OR FROM IT OR STORED ON IT WILL BE SECURE FROM UNAUTHORIZED ACCESS,
· INFORMATION AND MATERIALS THAT YOU STORE IN YOUR ACCOUNT OR ON THE SERVICES WILL REMAIN RETRIEVABLE AND UNCORRUPTED (UNLESS WE PROMISE THIS IN A SEPARATE AGREEMENT WITH YOU), OR
· THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED.
WITHOUT LIMITING THE FOREGOING, HANG DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES REGARDING THE AVAILABILITY, SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF ANY SERVICES AND ANY EVENTS, CONTENT, FEATURES, INFORMATION, PRODUCTS OR SERVICES ON OR AVAILABLE THROUGH THE SERVICES OR THROUGH ANY LINKS ON THE SERVICES.
IF YOU REQUEST OR OBTAIN A PRODUCT, SERVICES OR OTHER OFFERING FROM A THIRD PARTY AFTER FOLLOWING AN ADVERTISEMENT OR LINK ON THE SERVICES, THE TERMS AND CONDITIONS FOR YOUR TRANSACTION ARE BETWEEN YOU AND THE THIRD PARTY WITH WHOM YOU ENTERED INTO THE TRANSACTION. WE ARE NOT RESPONSIBLE FOR SUCH THIRD PARTY PRODUCTS, SERVICES OR OTHER OFFERINGS OR FOR DISPUTES BETWEEN YOU AND THEIR PROVIDERS.
YOU AGREE THAT USE OF THE SERVICES IS AT YOUR OWN RISK. ALTHOUGH WE TRY TO ENSURE THAT THE INFORMATION POSTED ON THE SERVICES IS ACCURATE AND UP TO DATE, WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION (INCLUDING, BUT NOT LIMITED TO, PRICING) AT ANY TIME. WE CANNOT, AND DO NOT, GUARANTEE THE CORRECTNESS, TIMELINESS, PRECISION, THOROUGHNESS OR COMPLETENESS OF ANY OF THE INFORMATION AVAILABLE ON THE SERVICES, NOR WILL WE BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE SERVICES. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WE HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE (I) IN ANY SOLUTIONS OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS OR SUPPORT DOCUMENTATION, (II) BY OUR CUSTOMER SERVICE AND SUPPORT AGENTS, OR (III) OTHERWISE ON THE SERVICES OR IN CORRESPONDENCE WITH US OR OUR AGENTS. WE ARE NOT RESPONSIBLE FOR ANY CONTENT OR MATERIALS POSTED TO OR OTHERWISE COMMUNICATED THROUGH THE SERVICES BY USERS (INCLUDING OUR FEATURED TALENT), NOR FOR DISPUTES BETWEEN USERS, OR BETWEEN USERS AND THIRD PARTIES.
THESE DISCLAIMERS APPLY TO US AND OUR AFFILIATED AND RELATED COMPANIES AS WELL AS THIRD PARTIES THAT ARE INVOLVED IN THE ADMINISTRATION, CREATION, PRODUCTION OR DISTRIBUTION OF THE SERVICES, AND ANY OF THEIR EMPLOYEES AND AGENTS.
21. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW:
· Neither Hang nor its affiliates shall be liable for any direct, indirect, incidental, consequential, special or other damages or losses of any kind whatsoever arising out of your access to, or use of, the Services, including but not limited to any failure of performance, error, omission, interruption, defect or computer virus, or the deletion, failure to store, misdelivery or unavailability of any information, material, products, services, applications or features, even if advised of the possibility of such damages or losses.
· IF AND TO THE EXTENT HANG’S AND ITS AFFILIATES’ MAXIMUM LIABILITY CANNOT, UNDER APPLICABLE LAW, BE ENTIRELY DISCLAIMED PURSUANT TO THE PARAGRAPH IMMEDIATELY ABOVE, HANG’S AND ITS AFFILIATES’ AGGREGATE maximum liability to you for ANY AND all claims, including, but not limited to, THOSE BASED ON negligence, shall in no event exceed the amount you paid to Hang for any EVENTS FOR WHICH YOU REGISTERED OR OTHER products OR SERVICES which you purchased and paid for through the Services.
· By using the Services, you agree to release and hold harmless Hang, its affiliates, officers, owners, affiliates, directors and employees from any and all claims, demands, damages, costs and expenses of any kind whatsoever relating in any way to use of the Services or any CONTENT ACCESSED OR downloaded from the Services.
Certain jurisdictions may not allow the exclusion of implied warranties or certain forms of damages, so some of the above exclusions may not apply to you.
22. LIMITATION ON TIME TO FILE CLAIMS
YOU AGREE THAT, REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICES OR THE USE THEREOF (INCLUDING, WITHOUT LIMITATION, ANY CONTENT, PRODUCTS OR SERVICES AVAILABLE ON OR THROUGH THE SERVICES), OR THIS TOU, MUST BE FILED BY YOU WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ACCRUED OR ELSE IT WILL BE PERMANENTLY BARRED AND YOU WILL BE DEEMED TO HAVE WAIVED ANY RIGHTS YOU MAY HAVE TO SUCH CLAIM OR CAUSE OF ACTION.
23. NOTICE TO CALIFORNIA CONSUMERS
Under California Civil Code Section 1889.3, California users of the Services receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
24. ENTIRE AGREEMENT
This TOU and any additional terms and conditions that are referenced herein constitute the entire agreement between us and you with respect to the Services. This TOU is personal to you and you may not assign it to anyone.
LAST UPDATED: January 19, 2021