PLUG.DJ TERMS OF SERVICE
Last Updated: May 31, 2016
In some instances, both these Terms and separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions will apply to your use of the Site or to a service or product offered via the Site (in each such instance, and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
2. Description of Service
plug.dj is an online platform that melds social media and entertainment. In other words, plug.dj is designed to allow you and your friends to watch videos or listen to music together. It’s like being in the same room, only not. As part of our platform you will create a unique profile that will allow others to find you and for you to express yourself. As of now, we require all of our users to be at least 13 years old. If you are between the ages of 13 and 17 then we may require you to obtain permission from your parents to agree to these Terms. If you are under the age of majority in your state or jurisdiction of residence, you may use the Site only with involvement of a parent or guardian who agrees to these Terms and to be responsible for your use.
3. Accounts and Profiles
We may also allow you to use a third party API to sign up for our Site, like Facebook Connect. Whenever you use this feature, certain information will be transferred from the third party account and will populate your profile here at plug.dj. It is important to read and understand that third parties privacy and information sharing practices and principles. More importantly, you will be making certain information publicly viewable.
If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an e-mail notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive. We may reject the use of any password, username, or e-mail address for any other reason in our sole discretion; (ii) You will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it including on your Profile Page, continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your account, password, and username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Site using your name, username, or password; (v) You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your account or any account rights.
We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.
If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.
Your Site page where you maintain a profile (“Profile Page”) may not include any form of prohibited User-Generated Content (defined below), as outlined in Section 6 below. Without limiting the foregoing, Profile Pages may not include content that you are attempting to sell through the Site, and cannot be used to conduct commercial activities, including, but not limited to, transactions, advertising, fundraising, contests or other promotions absent our prior written consent. We may offer you the ability to set preferences relating to your profile or Site activities, but settings may not become effective immediately or be error free, and options may change from time-to-time. We assume no responsibility or liability for users’ Profile material.
Profile Pages may only be set up by an authorized representative of the individual that is the subject of the Profile Page. We do not review Profile Pages to determine if they were created by an appropriate party, and we are not responsible for any unauthorized Profile Pages that may appear on the Site. If there is any dispute as to whether a Profile Page has been created or is being maintained by an authorized representative of the individual who is the subject of that Profile Page, then we shall have the sole right, but are not obligated, to resolve such dispute as we determine is appropriate in our sole discretion. Such resolution may include, without limitation, deleting or disabling access to Profile Pages, or any portion thereof, at any time without notice.
4. Site Content, Ownership, Limited License and Rights of Others
A. Content. The Site contains a variety of: (i) materials and other items relating to Plug DJ and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Site, and the compilation, assembly, and arrangement of the materials of the Site and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Plug DJ (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
B. Ownership. The Site (including past, present, and future versions) and the Content are owned or controlled by Plug DJ and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Site is the property of Plug DJ or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Plug DJ owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Site.
C. Limited License. Subject to your strict compliance with these Terms and the Additional Terms, Plug DJ grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to: (i) download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only, and (ii) to use certain Content that we may from time to time make available on the Site explicitly for you for use as part of your User-Generated Content. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Plug DJ’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.
D. Rights of Others. In using the Site, you must respect the intellectual property and other rights of Plug DJ and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. Plug DJ respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Site, then please see Section 8 below.
5. Content You Submit
A. General. Plug DJ may now or in the future offer users of the Site the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Site (collectively, “submit”) messages, avatars, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “User-Generated Content”). Plug DJ may allow you to do this through forums, blogs, message boards, social networking environments, content creation tools, gameplay, social communities, contact us tools, e-mail, and other communications functionality. Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.
C. License to Plug DJ of Your User-Generated Content. Except as otherwise described in any applicable Additional Terms (such as a contest official rules), which specifically govern the submission of your User-Generated Content, you hereby grant to Plug DJ, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license that you grant to Plug DJ to your User-Generated Content, you also hereby grant to Plug DJ, and agree to grant to Plug DJ, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 5(C).
D. Exclusive Right to Manage Our Site. Plug DJ may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and Plug DJ may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including, without limitation, the content restrictions set forth below in Section 6. Such User-Generated Content submitted by you or others need not be maintained on the Site by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Site or elsewhere.
E. Representations and Warranties Related to Your User-Generated Content. Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content, (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant Plug DJ the rights to it that you are granting by these Terms and any Additional Terms, all without any Plug DJ obligation to obtain consent of any third party and without creating any obligation or liability of Plug DJ; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to Plug DJ’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate these Terms (including the Rules) or any Additional Terms, or cause injury or harm to any person.
F. Enforcement. Plug DJ has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at Plug DJ’s cost and expense, to which you hereby consent and irrevocably appoint Plug DJ as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
6. Our Rules
We may, but are not obligated to, provide our users with the ability to post and receive messages from other plug.dj-listed users or allow you to participate in video or live chats with your friends or other users. If we do, you will not use the messaging system or your username to spam, defame, harass, or do anything we find to be objectionable (which is up to us), including, but not limited to, language that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status and sexual orientation or gender identity. It is your responsibility to maintain proper etiquette, and we reserve the right to terminate the account for anyone who violates our policies. We also do not monitor any particular chat, but reserve the right to edit, modify, ban, or filter any User-Generated Content or username for any reason. If someone posts something that is offensive or objectionable please let us know and we will do our best to accommodate you. We do not, however, assume any obligation to remove such User-Generated Content.
You may share videos and music that is hosted on a third party website (i.e., Youtube, Soundcloud, etc.) but only if it does not conflict with their terms or any applicable law. You may not, however, share, post or otherwise communicate any content (video, audio, or text) that is unlawful, threatening, violent, pornographic, harassing, obscene, racist, defamatory, or otherwise objectionable. We reserve the right to determine what is objectionable at our sole discretion.
In addition to the above, you agree that you will not:
- Infringe on anyone's intellectual property or other legal rights (i.e. invasion of privacy).
- Hack, crack, phish, SQL inject, or otherwise compromise the security of our website or its servers.
- Solicit business, spam, or otherwise use our service for commercial purposes unless expressly authorized by us.
- Defraud or threaten any of our users through any method, whether it be through our website or through another method of communication.
- Create more than one active user account, or create a new user account if we have previously banned, suspended, or otherwise terminated your first user account.
- Harass anyone.
- Impersonate anyone.
- Do anything unlawful or bad (we define what is bad)
How we react to your violation of any of these Terms does not mean we will treat everyone the same. We may do anything from yell at you, temporarily suspend your account, ban you, or haul you into Court.
7. Sharing Videos and Music
plug.dj may permit you to share videos and music with your friends. We may also allow you to use video or live chat to discuss the video or music as it is playing. Please note, however, that we do not host any User-Generated Content ourselves. Instead, you must use our platform to share your video or music from the third party video hosting website. You agree that you will be responsible for the User-Generated Content you upload, and that nothing you share will infringe on the rights of anyone. Furthermore, you warrant you have the ability to grant the right to share such User-Generated Content without any obligation to pay any royalties to any copyright owner. You will be responsible for the payment of any royalty and any associated damages, fees, fines or penalties, in the event we find out you have shared User-Generated Content in violation of another’s intellectual property rights.
Not to sound like a broken record, but we have to make sure you understand that you will be responsible for any User-Generated Content that you upload, including the consequences of any infringement. By sharing any User-Generated Content you are, in essence, utilizing a third party license to distribute and share User-Generated Content. You may only do this if the Site from which you are linking has given you a license to share such User-Generated Content in the manner contemplated. If it does not, then you cannot share that User-Generated Content.
For further clarity, you must only distribute videos or music that you are legally permitted to...meaning you cannot share videos or music that violates anyone’s third party intellectual property rights. For example, you must not share anything that the third party site would prohibit. In addition you will not modify, edit, disassemble, or create derivatives of anything that you do not own the rights to.
Should you believe that your rights are being infringed on by, please note that we are not responsible for hosting it and it is the third party site which is serving the file, and until is removed from the third party site, it will still be available through their search engine. As such, copyright notices should be sent to both us and the third party site, and you should visit their terms for more information.
8. DMCA Notices
We will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. We have registered a Copyright Agent with the United States Copyright Office, which limits our liability under the DMCA. If you believe that your copyright has been infringed, please send us a message that contains:
- Your name.
- The name of the party whose copyright has been infringed, if different from your name.
- The name and description of the work that is being infringed.
- The location on our website of the infringing copy.
- A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
- A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
Plug DJ’s designated Copyright Agent to receive notifications of claimed infringement is Plug Technologies, Inc., 9595 Wilshire Blvd., Suite 900. Beverly Hills, CA 90212 (Attn: Legal Department); email: email@example.com. For clarity, only DMCA notices should go to the Copyright Agent; am other feedback, comments, requests for technical support, and other communications should be directed to plug.dj customer service at http://support.plug.dj.
If sending the notification by e-mail, an electronic signature is acceptable.
Upon notification of claimed infringement, we will respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity. We will also notify the person who posted, uploaded or otherwise placed the allegedly infringing material on the Site that we have removed or disabled access to such material.
If you believe that material has been removed improperly, you must send a written counter notification to the Agent, and include:
- a. a physical or electronic signature of the subscriber;
- b. identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- c. a statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- d. the subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided the original notification or an agent of such person.
Upon receipt of a counter notification complying with the foregoing requirements, we will promptly provide the person who I provided the original notification with a copy of the counter notification, and inform that person that we will replace the removed material or cease disabling access to it in ten (10) business days, unless we receive notice that the original notifier has notified the designated agent for the counter notifier that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on our system or network.
It is our policy, in appropriate circumstances, to disable and/or terminate the accounts of users who are repeat infringers. It is also our policy to accommodate and not interfere with standard technical measures we determine are reasonable under the circumstances, i.e., technical measures that are used by copyright owners to identify or protect copyrighted works. We retain the discretion to handle non-compliant notices in whatever manner appears to be reasonable given the circumstances presented. There are penalties for submission of misleading information in connection with the process described herein.
The Site may include virtual, in-game currency (“Virtual Currency”), such as credits, coins, cash, or points (e.g., Experience Points, Plug Points and Plug Notes), that may be purchased with “real world” money or obtained through spending time on the Site or otherwise interacting with a third-party service. Virtual Currency may be used to purchase virtual, in-game digital items (“Virtual Goods”). Your purchase or award of Virtual Currency and Virtual Goods are merely a grant by us to a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable right to use the Virtual Currency and Virtual Goods as part of the Site under these Terms and any applicable Additional Terms we provide at the time. Accordingly, you have no property, proprietary, intellectual property, ownership, or monetary interest in your Virtual Currency and Virtual Goods, which remain our Content and property. The right may be immediately suspended or terminated for any reason, in our sole discretion, and without advance notice or liability. We reserve the absolute right, at any time and in our sole discretion, to manage, regulate, control, modify or eliminate Virtual Currency and/or Virtual Goods.
Virtual Currency or Virtual Goods cannot be redeemed by you for “real world” money, goods, or other items of monetary value from any party. Transfers of Virtual Currency or Virtual Goods by you outside of what we permit on the Site are strictly prohibited. This means you may not buy or sell Virtual Currency or Virtual Goods for “real world” money or otherwise exchange items for value outside of the Site. Any such attempted transfer will be null and void.
You also agree that all sales of Virtual Currency and Virtual Goods are final unless otherwise detailed in the applicable Additional Terms. No refunds will be given by us. You agree that you will be solely responsible for paying any applicable taxes related to the acquisition of, use of or access to Virtual Currency or Virtual Goods.
We have the absolute right, but not the obligation, to manage, regulate, control, modify, delete, alter, move, remove, transfer and/or eliminate Virtual Currency and/or Virtual Goods, in whole or in part, as we see fit, at any time in our sole discretion, including the right to terminate or suspend your account or discontinue the Site (in whole or in part) for any reason, and we shall have no liability to you or anyone for the exercise of such rights. If we suspend or terminate any Virtual Currency or Virtual Goods, then you will forfeit the suspended or terminated subscription or items, except as may be set forth in any Additional Terms (such as any refund policies that may apply to the Site). Likewise, except as may be set forth in any Additional Terms or as required by applicable law, we are not responsible for repairing or replacing same, or providing you any credit or refund or any other sum, in the event of our modification of any Virtual Currency or Virtual Goods, or for loss or damage due to error, or any other reason.
As we feel necessary, in our sole and absolute discretion, we may limit the total amount of Virtual Currency that may be purchased at any one time, and/or limit the total Virtual Currency that may be held in your account in the aggregate. Additionally, price and availability of certain types of Virtual Currency and/or Virtual Goods are subject to change without notice. You are solely responsible for verifying that the proper amount of Virtual Currency has been added to or deducted from your account during any given transaction, so please notify us immediately should you believe that a mistake has been made with respect to your Virtual Currency balance. If we choose, in our discretion, to investigate your claim, in doing so, may request some additional information and/or documentation to verify your claim. We will let you know the results of any investigation, however, you acknowledge and agree that we have the sole and absolute discretion in determining whether or not your claim is valid, and if so, the appropriate remedy.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN YOUR ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO THE ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF PLUG DJ. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NO CLAIM, RIGHT, TITLE, OWNERSHIP OR OTHER PROPRIETARY INTEREST IN THE VIRTUAL CURRENCY, VIRTUAL GOODS OR PLUG POINTS THAT YOU ACQUIRE, REGARDLESS OF THE CONSIDERATION OFFERED OR PAID IN EXCHANGE FOR VIRTUAL CURRENCY OR VIRTUAL ITEMS. FURTHERMORE, WE SHALL NOT BE LIABLE IN ANY MANNER FOR THE DESTRUCTION, DELETION, MODIFICATION, IMPAIRMENT, “HACKING,” OR ANY OTHER DAMAGE OR LOSS OF ANY KIND CAUSED TO THE VIRTUAL CURRENCY, VIRTUAL GOODS OR PLUG POINTS, INCLUDING, BUT NOT LIMITED TO, THE DELETION OF THEREOF UPON THE TERMINATION, ABANDONMENT OR EXPIRATION OF YOUR ACCOUNT.
10. Terms of Sale
A. Generally. To purchase any products or services (including Virtual Currency) on our Site, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence. If you wish to purchase any products or services on the Site and are under the applicable age of majority in your jurisdiction of residence, you must have your parents’ permission to do so. Prior to the purchase of any products or services on our Site, you may be required to provide us or our credit card processing company with a valid credit card number and associated payment information, including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card. By submitting that information to us or directly to our credit card processor, you hereby agree that you authorize us and/or our processor (as applicable) to charge your card at our convenience but within thirty (30) days of credit card authorization. For any product or service that you order on the Site, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order. We will automatically bill your credit card or other form of payment submitted as part of the order process for such price. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering.
B. Methods of Payment, Credit Card Terms and Taxes. All payments must be made through your PayPal account or through Visa, MasterCard or American Express (or other form of payment specifically accepted on the Site) and also be in a currency permitted to be used on the Site. We currently do not accept cash, personal or business checks or any other payment form through the Site, although in the future we may change this policy. Your card issuer agreement governs your use of your designated card, and you must refer to that agreement and not these Terms to determine your rights and liabilities as a cardholder. You hereby represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. YOU, AND NOT US, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. For example, if you purchase with a credit card that is issued through a bank that is based outside of the United States, your bank or our bank may charge foreign transaction fees and other similar currency exchange fees and you agree to reimburse us for any such fees or charges, if charged to us, upon our demand. Unless you notify us of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If we do not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by us or its agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use or value-added taxes. We shall automatically charge and withhold the applicable tax for orders to be delivered to addresses within and any states or localities that it deems is required in accordance with our order policy in effect at the time of purchase.
C. Return Policy. All purchase transactions made through the Site are subject to our return policy in effect at the time of purchase. Our current return policy does not permit any returns at this time.
D. Order Acceptance Policy. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. We further reserve the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Your order will be deemed accepted by us upon our delivery of products or services that you have ordered. We may require additional verifications or information before accepting any order. Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that: (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion or the quantity not provided (if your credit card has already been charged for the order); or (b) we will not charge your credit card for the cancelled portion of the order or the quantity not provided. Do not assume that a cancellation or change of an order you have placed with us has been effected until you receive a confirmation from us via email or the Site. As stated above, you will be responsible for, and your credit card or third-party payment account may be charged for, the payment of all fees associated with orders already processed or shipped before your cancellation/change request or a request to terminate your account was received.
E. No Responsibility to Sell Mispriced Products or Services. We do our best to describe every item, product or service offered on this Site as accurately as possible. However, we are human, and therefore we do not warrant that specifications or pricing on the Site is complete, accurate, reliable, current or error-free. In the event of any errors relating to the pricing or specifications of any item, product or service, we have the right to refuse or cancel any orders, in its sole discretion. If we charged your credit card or other account prior to cancellation, we will issue a credit to your account in the amount of the charge. Additional terms may apply.
F. Modifications to Prices or Billing Terms. The purchase of products and services on the Site is subject to availability. PRODUCTS AND SERVICES DISPLAYED ON THE SITE MAY NOT BE AVAILABLE AT ALL TIMES AND MAY BE SUBSTITUTED OR DISCONTINUED AT ANY TIME. WE RESERVE THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR SERVICES SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON THE SERVICE OR BY E-MAIL DELIVERY TO YOU.
G. Subscription Offerings. Certain features on the Site provide members digital access (a “Subscription”) to our premium avatars, badges and extra Site features we make available from time to time on a Subscription basis (collectively, “Subscription Content”), and are subject to the terms and conditions in this Section 10(G) and any Additional Terms posted on the Site relevant to Subscription Content. Access to Subscription Content first requires you to purchase a Subscription. Users shall receive access to the Subscription Content for a monthly fee, the amount of which is disclosed on the Site, payable in advance. For each Subscription, or other product or service that you order on the Site, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submitted the order. Plug DJ will automatically bill your credit card or other form of payment submitted as part of the Subscription order process for such price. We will generally charge you on the day that you sign-up for your Subscription, and for future months or years (depending on the type of Subscription you purchase), on that same day of the month or year (as applicable) of your initial purchase (however if you sign-up on the 31st of a month and a month does not have 31 days, you will instead be charged on the last day of that month).
- (i) Access Rights To Subscription Content. Subject to compliance with the terms and conditions set forth in these Terms, during the Subscription Term (defined below), a user who has purchased a Subscription will have a limited, revocable, non-transferable and non-exclusive license for a user’s personal access to the Subscription Content via one (1) Site account. User will use their username and password for purposes of accessing the Subscription Content. User shall: (a) be responsible for the security and/or use of his or her username and password; (b) not disclose that information to any person or entity; (c) not permit any other person or entity to use his or her username or password; and (d) use their Subscription in accordance with the terms and conditions of this Agreement. Plug DJ reserves the right to deny, suspend or revoke access to the Subscription Content, in whole or in part, if Plug DJ believes a user is in breach of this Agreement or is otherwise using or accessing the Subscription Content in a manner inconsistent with the terms and conditions of this Agreement. Users acknowledge and agree that Plug DJ is providing access to and use of the Subscription Content to multiple customers and those services are non-exclusive and non-transferable by user.
- (ii) Subscription Term & Termination. Your Subscription will commence as of the date your payment for a Subscription is received by Plug DJ and will continue in full force for the length of the term you specifically purchased or on a month-to-month term until such time as the user cancels the Subscription through the account functionality on the Site (the “Subscription Term”). Users can cancel their subscription at any time by emailing firstname.lastname@example.org. In the event that a user cancels a Subscription in the middle of their Subscription, the user will not be entitled to receive a refund for the unused portion of the remainder of that Subscription. Plug DJ will have the right, upon written notice to user, to terminate this Agreement, and suspend user’s access to the Subscription Content, if: (a) user fails to pay Plug DJ any amount due to Plug DJ under this Agreement; and/or (b) user materially breaches any term or condition of these Terms. Plug DJ shall have the right to terminate this Agreement and suspend user’s access to the Subscription Content with or without cause, upon thirty (30) days written notice to user in which case user will no longer be charged for access to the Subscription Content. Upon the expiration or termination of these Terms for any reason, user’s access to, and use of, the Subscription Content will terminate.
- (iii) Free Trials/Promotional Offerings. We may offer promotional trial Subscriptions to access the Subscription Content for free for a limited time or at special discounted prices. If you sign up for a trial use, your rights to access and use the Subscription Content are limited by the terms of such trial and will terminate or renew on the terms of your trial arrangement and/or any applicable Additional Terms. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering.
11. Disclaimer and Limitation of Liability
THE SITE AND OUR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU EXPRESSLY AGREE THAT USE OF THE SITE AND OUR SERVICES IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE DO NOT MAKE ANY WARRANTY THAT THE SITE OR OUR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR OUR SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH USE OF THE SITE OR OUR SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR OUR SERVICES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES; SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL WE OR OUR PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SITE OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO BY MEANS OF OR THROUGH THE SITE, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR OTHER INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT WE ARE NOT LIABLE FOR ANY FAILURE TO DELIVER, HOLD OR STORE DATA, INFORMATION OR EMAIL TRANSMITTED THROUGH THE SITE. IF YOU ARE DISSATISFIED WITH THE SITE OR OUR SERVICES, YOUR EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND OUR SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; SO SOME OF THE ABOVE MAY NOT APPLY TO YOU. IN NO EVENT WILL WE BE LIABLE TO YOU FOR MORE THAN THE ACTUAL DOLLAR AMOUNT THAT YOU PAID FOR THE USE OF THE SITE.
Without limiting any of the foregoing, we are not responsible for any of your materials and data residing on our network hardware. You are responsible for backing-up your materials and data that may reside on our network, whether or not such materials and data are produced through the use of the Site.
You agree to indemnify, defend and hold harmless us, our parents, subsidiaries, affiliates, officers, directors, employees, members, partners, agents, and suppliers, and their respective affiliates, officers, directors, employees, members, shareholders, partners, and agents, from any claim, action, demand, liability, judgment, or damage, including reasonable attorneys’ fees, arising out of or related to your use of the Site and/or your violation of these Terms, including, without limitation, the infringement by you in your User-Generated Content or any other user of your account, of any intellectual property or other right of any person or entity. We may, at our sole discretion, assume the exclusive defense and control of any matter subject to indemnification by you. The assumption of such defense or control by us, however, shall not excuse any of your indemnity obligations.
13. Choice of Law
We wish to make things as simple as possible in applying this Agreement to our users, and we can’t do that if a different jurisdiction’s law applies for each user who signs up based on where they live. Therefore, you agree that this Agreement is subject solely to and shall be interpreted in accordance with the laws applicable in the State of California, USA, without regard to its conflicts of law provisions.
14. Dispute Resolution
Certain portions of this Section 14 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Plug DJ agree that we intend that this Section 14 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 14 can only be amended by mutual agreement.
A. First – Try To Resolve Disputes and Excluded Disputes.. If any controversy, allegation, or claim arises out of or relates to the Site, the Content, your User-Generated Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Plug DJ’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 14.D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 14.A. Your notice to us must be sent to: Plug Technologies, Inc., 9595 Wilshire Blvd., Suite 900. Beverly Hills, CA 90212 (Attn: Legal Department). For a period of sixty (60) days from the date of receipt of notice from the other party, Plug DJ and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Plug DJ to resolve the Dispute or Excluded Dispute on terms with respect to which you and Plug DJ, in each of our sole discretion, are not comfortable.
B. Forums For Alternative Dispute Resolution.
(i) Arbitration. If we cannot resolve a Dispute as set forth in Section 14.A within sixty (60) days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration in accordance with this Section 14.B. If we cannot resolve an Excluded Dispute as set forth in Section 14.A within sixty (60) days of receipt of the notice, then either you or we may submit the Excluded Dispute to formal arbitration only if you and Plug DJ consent, in a writing signed by you and an officer or legal representative of Plug DJ, to have that Excluded Dispute subject to arbitration. In such a case, (and only in such a case), that Excluded Dispute will be deemed a “Dispute” for the remainder of this Section 14.B.
Upon expiration of the applicable sixty-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than fifteen (15) years’ experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Plug DJ elects, in its sole discretion, to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three-member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party-appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of these Terms and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If you and Plug DJ do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 14.B(i), then this paragraph and the remainder of this Section 14.B will not apply to the Excluded Dispute.
If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration Site that you and an officer or legal representative of Plug DJ consent to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for a the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration Site.
You can obtain AAA and JAMS procedures, rules, and fee information as follows:
AAA: 800.778.7879 http://www.adr.org
JAMS: 949.224.1810 http://www.jamsadr.com
(ii) Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of these Terms (and any Additional Terms) and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Plug DJ to pay a greater portion or all of such fees and costs in order for this Section 14 to be enforceable, then Plug DJ will have the right to elect to pay the fees and costs and proceed to arbitration, or to decline to do so and have the matter resolved through the courts. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
C. Limited Time To File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 14.A) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.
D. Injunctive Relief. The foregoing provisions of this Section 14 will not apply to any legal action taken by Plug DJ to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site, any Content, your User-Generated Content and/or Plug DJ’s intellectual property rights (including such Plug DJ may claim that may be in dispute), Plug DJ’s operations, and/or Plug DJ’s products or services.
E. Small Claims Matters Are Excluded From Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Section 14.G.
F. No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitration or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 14.B(i) holds that this restriction is unconscionable or unenforceable, then our agreement in Section 14.B to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 14.G.
G. Federal and State Courts in Los Angeles. Except to the extent that arbitration is required in Section 14.B, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Los Angeles County, California. Accordingly, you and Plug DJ consent to the exclusive personal jurisdiction and venue of such courts for such matters.
15. Waiver of Injunctive or Other Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, USER-GENERATED CONTENT, PRODUCT, SITE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY PLUG DJ (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF PLUG DJ.
16. Force Majeure
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), any third party site being down, communication disruption, failure or shortage of infrastructure, zombie attacks, shortage of materials, or any other event beyond our control.
17. Cancellation of Service
You agree that we may cancel our service or the Site at any time, for any reason, without warning or compensation, even if we have been advised that it may result in a loss to you or any other party.
In the event that a provision of this Agreement is found to be unlawful or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unlawful or unenforceable provision being included in it.
19. Update to Terms
These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the Site to which it applies, shall govern such use (including transactions entered during such use). AS OUR SITE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SITE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SITE UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SITE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SITE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SITE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted terms of Site and any applicable Additional Terms each time you use the Site (at least prior to each transaction or submission). The Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously used the Site will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page, your message account and the e-mail you associated with your account for notices, all of which you agree are reasonable manners of providing you notice. You can reject any new, revised or Additional Terms by discontinuing use of the Site and related services.
20. Investigations; Cooperation with Law Enforcement; Termination; Survival
Plug DJ reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Site security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by Plug DJ in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Site, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Plug DJ under these Terms or any Additional Terms. Upon suspension or termination of your access to the Site, or upon notice from Plug DJ, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Site. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Plug DJ in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.