Live365 VIP Membership Agreement
This VIP Membership Agreement ("the Agreement") is made by and between Live365, Inc. ("Live365"), with its principal place of business at 950 Tower Lane, Suite 1550, Foster City, California 94404, and you, a Live365 user who seeks to be a Live365 VIP member ("VIP Member" or "Member"). Live365 and VIP Member (collectively "the Parties") agree as follows:
1. VIP Membership Benefits
As part of the VIP Membership experience (as described in the VIP Membership Order Form and made a part hereof), Live365 will remove Live365-placed third-party ads – including audio ads, banner ads, and pop-up ads – from the transmissions provided to a VIP Member, provided that (1) Member's monthly fees have been timely paid to Live365, and (2) Member is logged in appropriately. The VIP Membership is subject to 200 hours per month of listening without Live365-placed third-party ads. Upon reaching this 200-hour limit, the VIP Member may continue to access and listen to Live365 stations, but those transmissions above the 200-hour limit will include Live365-placed ads. (Alternatively, upon reaching the 200-hour limit, Member may choose to purchase for a fee additional hours that do not contain Live365-placed third-party ads, but only if such option is made available by Live365.) Notwithstanding the foregoing, Live365 may insert Live365 network identifications and reserves the right to insert other audio announcements if Live365 determines that they are needed in order to inform Member of urgent information. Live365 reserves the right to modify – at any time and in its sole discretion – the services and benefits described in this Agreement.
2. Fees and Payment
Member shall pay Live365 a fee for the VIP membership benefits described in this Agreement. Live365 reserves the right to increase the fees on the provision of seven (7) days' notice to the Member via email to member's registered email address or through an announcement on Live365.com. If Member disagrees with such increase, Member may discontinue the VIP Membership. Live365 reserves the right to charge Member for credit or debit card charges, where applicable. Member is responsible for payment of all taxes, duties or levies imposed, other than Live365's income taxes. If the fees are not paid within eight (8) days of the due date, Live365 may elect to charge interest on outstanding fees at the rate of 1.5% per month or the maximum amount allowed by law, and may terminate this Agreement. Member must provide notice of billing discrepancies within thirty (30) days after receipt of invoice; otherwise, Member shall be deemed to have accepted the amounts due and releases Live365 from any liability and claims of loss resulting from any error or discrepancy.
4. Limitation of Liability
IN NO EVENT SHALL LIVE365 BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR ANTICIPATED PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, EVEN IF LIVE365 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LIVE365'S LIABILITY FOR MONETARY DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT RECEIVED BY LIVE365 FROM THE MEMBER DURING THE TERM OF THIS AGREEMENT.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, LIVE365 PROVIDES ITS TECHNOLOGY AND SERVICES – INCLUDING THE VIP MEMBERSHIP – "AS IS," WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. LIVE365 EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS SECTION CONTAINS THE ONLY WARRANTIES, EXPRESS OR IMPLIED, MADE BY LIVE365. ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED AND DECLINED. LIVE365 DISCLAIMS ANY IMPLIED WARRANTIES, PROMISES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NON-INFRINGEMENT, WHETHER AS TO ANY LIVE365 TECHNOLOGY OR SERVICES (INCLUDING VIP MEMBERSHIPS) RENDERED BY LIVE365 AND/OR THE TECHNOLOGY DEPLOYED IN CONNECTION THEREWITH. LIVE365 MAKES NO REPRESENTATION THAT THE OPERATION OR PROVISION OF THE SERVICES OR THIS MEMBERSHIP WILL BE UNINTERRUPTED OR ERROR-FREE, AND LIVE365 WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
If Live365 ceases, discontinues, suspends, deletes or terminates Member's VIP Membership, Live365 shall provide Member with at least five (5) days notice sent via email to Member's registered email address. If, in Live365's sole opinion, the Member is in breach of any part of this Agreement, Live365 reserves the right to cease, discontinue, suspend, delete or terminate Member's VIP Membership without advance written notice.
7. Term; Termination
This Agreement commences on the date on which Member accepts the terms of this Agreement and makes appropriate payment for such VIP Membership and, subject to Parties' rights of discontinuance or termination, shall continue unless either party terminates such Agreement. Member can request termination of the VIP Membership by following instructions at www.live365.com/cancel
. Live365 shall have no obligation whatsoever to repay any amounts (including payments in advance) received from Member with respect to services or benefits provided hereunder.
8. Refund and Cancellation Policy
(a) There will be no refunds for VIP Memberships after three (3) days of the commencement of the VIP Membership services. Member may request a refund via email to email@example.com
within three (3) days of the commencement of the VIP Membership services. Live365 may choose, but is not obligated, to issue a refund. In addition, Live365 may choose, but is not obligated, to offer prorated credits toward new service upon change or upgrade to existing pre-paid service(s) in lieu of a refund.
(b) Cancellation of all VIP Membership services requires following the instructions at www.live365.com/cancel
or going through the following procedures:
- Log in to the Live365 website;
- Click on "My Account" link on the top of the website;
- On the "Member Profile" page, click on "Billing Profile" link; and
- Choose the service or package to be cancelled (e.g., VIP Membership), and click the "Cancel" link.
Member's service will be terminated when Member completes the cancellation procedures and receives confirmation of service cancellation via email from Live365. Upon such confirmation, the subscription to Live365's VIP Membership will close at the end of the current billing cycle and the Member will not be billed for any future billing cycles. No refunds will be issued for any payments received for the then-current billing cycle, other prepaid services, set-up fees, rush charges or change fees. In addition, the Member may be required to complete a short Web form upon cancellation.
9. Representations and Warranties
In addition to any other representations and warranties contained herein, Member represents and warrants that:
- Member has full right and power to enter into and perform this Agreement;
- All factual assertions that Member has made and will make to Live365 are true and complete; and
- Member is not a minor and has the full and complete right to agree to the terms contained in this Agreement.
This Agreement, including the rights and obligations herein, may be assigned by Live365 for any reason without notice to Member or Member's consent. In the event that such assignment occurs, Live365, its successors or assigns may terminate this Agreement by giving immediate written notice to Member. Notwithstanding such termination, the indemnities, warranties and representations set forth herein shall remain in full force and effect. Member may not assign this Agreement without Live365's prior written approval.
11. Choice of Law; Venue
The interpretation and enforcement of this Agreement shall be governed by the laws of the State of California, without regard to choice of law rules. For any disputes arising out of or relating to this Agreement, the Parties consent to the exclusive jurisdiction of the state courts located in San Mateo County, California or the federal courts located in the Northern District of California.
Member's sole remedy for any breach of this Agreement by Live365 shall be an action at law for money damages, if any. In no event shall Member be entitled to injunctive or other equitable relief based on any act or omission of Live365, or any breach of this Agreement by Live365.
13. Entire Agreement
This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof. There are no understandings, agreements, conditions or representations, oral or written, express or implied, with reference to the subject matter hereof, that are not merged herein, expressly referenced herein, or superseded hereby.
14. Independent Contractor
Nothing contained in this Agreement shall be construed as creating any agency, employer-employee relationship, partnership, joint venture or other form of joint enterprise between Member and Live365.
The provisions of this Agreement are independent of each other and the invalidity of any provision or a portion thereof shall not affect the validity or enforceability of any other provision. In the event that any particular provision is found to be invalid or unenforceable, such provision shall be deemed to have been replaced with a valid and enforceable provision that approximates as closely as possible the intent of the Parties as reflected in the original provision.
16. No Waiver
Any delay or failure on the part of Live365 to enforce any rights hereunder to which it may be entitled shall not be construed as a waiver of the right and privilege to do so at any subsequent time. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party
All provisions that must survive in order to give effect to their meaning shall survive any expiration or earlier termination of this Agreement, including, without limitation all of Member's representations, warranties and/or indemnification obligations.
The Agreement may be modified from time-to-time by Live365. Member should check the Agreement from time-to-time for modifications and additions. The Parties each agree to take all actions and execute all documents as may be necessary or desirable to carry out or implement and give full effect to the provisions and intent of this Agreement.