Effective Date: May 10, 2021
Unless you have entered into a separate written agreement with SXM Media regarding the Site, this Agreement is the complete and exclusive agreement between you and SXM Media regarding your access to, and use of, the Site and supersedes any oral or written proposal, quote, or other communication between you and SXM Media regarding your access to, and use of, the Site. IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, SXM MEDIA IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO, OR USE OF, THE SITE, AND YOU MUST NOT ACCESS OR USE THE SITE. You will be responsible for the acts and omissions of any users of the Site who are accessing or using the Site on your behalf.
Words and phrases used in this Agreement have the definitions given in this Agreement or, if not defined herein, have their plain English meaning as commonly interpreted in the United States.
We reserve the right, at any time, to modify the Site, as well as this Agreement, by making those modifications available through the Site. We will give you notice of any modifications to this Agreement through the Site. All modifications will be effective 24 hours after being implemented. You may cease using the Site or terminate this Agreement at any time if you do not agree to any modification. However, you will be deemed to have agreed to any and all modifications through your continued use of the Site. Any modifications to the Site, including all updates, upgrades, new versions, and new releases, will be treated as part of the “Site” for purposes of this Agreement.
3. Ability to Use the Site
In order to accept this Agreement and access the Site, you must be at least 18 years of age (“Minimum Age”). The Site is not intended for users under the Minimum Age. You hereby affirmatively represent that you are at least the Minimum Age.
5. License and Restrictions
Use of the Site. Subject to the terms and conditions of this Agreement, SXM Media hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Site, to the extent permitted by its intended functionality, for individual, personal, or internal business purposes and not for the sublicense to or use by third parties. Any other use not authorized herein, or by SXM Media in writing, is strictly prohibited and a violation of this Agreement, including without limitation, (a) making any unauthorized commercial use of the Site; (b) misrepresenting your identity, impersonating any person or entity, falsely stating or otherwise misrepresenting your affiliation with any person or entity in connection with the Site, or expressing or implying that we endorse any statement that you make through the Site; (c) conducting fraudulent activities through the Site; (d) using the Site to defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others, including others’ privacy rights; and (e) harvesting or collecting personally identifiable data about users of the Site. SXM Media may revoke and/or terminate the foregoing license with respect to any aspect of the Site at any time, for any or no reason.
Technology, Marks, and Restrictions. As between SXM Media and you, SXM Media and its licensors shall own all right, title, and interest in and to the Site and any Site Materials (defined below), software, application programming interfaces (APIs), techniques, methodology, procedures, algorithms, protocols, routines, source code, and methods incorporated therein, including any modifications, updates, and improvements thereto (collectively, the “Technology”), and all intellectual property rights therein and thereto, including copyrights, trademarks, trade secrets, patents, and other proprietary rights (collectively, “IPR”). Except as otherwise specifically permitted in this Agreement, you shall not, and shall not permit any third party to: (a) copy, store, edit, modify, download, intercept, exploit, or create any derivative works of the Technology (in whole or in part), including any translations or localizations thereof; (b) license, sell, rent, lease, encumber, transfer, assign, distribute, disclose, post, make available, permit time sharing or simultaneous use of, or otherwise exploit the Technology to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, algorithms, underlying ideas, or structure or organization of the Technology (in whole or in part); (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols, or labels on the Technology; (e) use any systems or means, automated or otherwise, to access, acquire, copy, scrape, harvest, or monitor any part of the Technology; (f) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; or (g) use any other technologies or initiate any other activities that may impair the Technology or harm the interests or property of SXM Media or other users of the Site. We use reasonable means to protect the security of the Technology, but you acknowledge that perfect security on the internet is impossible and that, as a result, Your Information may be exposed in the event of a breach. The SXM Media names, logos, and product and service names are trademarks of SXM Media and its licensors, and you are granted no right or license to use them. Apart from your license to access and use the Site granted above, you are not granted any right or license to use the Technology itself, or any IPR therein and thereto.
ANY USE OF THE SITE AND OTHER TECHNOLOGY NOT SPECIFICALLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.
6. Site Materials
Ownership and Responsibility. All content included with the Site that we provide such as text, graphics, logos, images, audio clips, video, data, music, and other materials (collectively the “Site Materials“) is the owned or licensed property of SXM Media or its licensors and is protected by all applicable United States and international IPR laws. The collection, arrangement, and assembly of all Site Materials are the exclusive property of SXM Media and protected by United States and international copyright laws. You are solely responsible for verifying the accuracy, completeness, and applicability of all Site Materials and for your use of any Site Materials. Except as set forth in this Agreement, you are granted no licenses or rights in or to any Site Materials, or any IPR therein or related thereto.
Viewing Site Materials. Subject to your compliance with this Agreement, you may view Site Materials, solely as presented on the Site for any permitted use of the Site. You will not directly or indirectly use any of Site Materials for any other purpose.
7. Your Information
8. Links to Third-Party Websites
The Site may contain links to the websites of third parties. We are not responsible for, and have no liability for, the functionality, actions, inactions, settings, privacy policies, terms, or content of any such third-party websites. Before visiting any such third-party websites, we strongly recommend that you review and understand the terms and conditions, privacy policies, and settings of each such third-party website. The links for third-party websites through the Site do not constitute an endorsement by us of such third-party websites. Other websites may link to the Site with or without our authorization, and we may block any links to or from the Site in our sole discretion. YOUR USE OF THIRD-PARTY WEBSITES IS AT YOUR OWN RISK.
9. Term and Termination
This Agreement will remain in effect for as long as you use the Site and Site Materials (the “Term”). We may terminate this Agreement and your access to the Site at any time. Upon any termination of this Agreement, the rights and licenses granted to you hereunder will immediately terminate, and you shall immediately cease using any and all Site Materials in your possession or control. You agree that we will have no liability to you for any costs, losses, damages, or liabilities arising out of or related to the termination of this Agreement. Any provision of this Agreement that should, by its nature, survive termination of this agreement will survive its termination.
10. Representations and Warranties
Each party represents and warrants that (a) it has the full corporate right, power, and authority to enter into this Agreement, and to perform the acts required by such party hereunder and to grant the rights set forth herein; (b) this Agreement will constitute a legal, valid and binding obligation to which the parties will be bound, enforceable against either party in accordance with its terms; (c) you have the legal right and authority to grant the rights and licenses described in this Agreement; and (d) your access to, and use of, the Site will comply with all applicable laws, rules, regulations, and third-party rights and will not cause us to violate any applicable laws, rules, regulations, or third-party rights.
You agree to defend (at our option), hold harmless, and indemnify us, our affiliates, and our and their respective officers, directors, members, managers, shareholders, employees, agents, successors, and assigns from and against all claims, suits, demands, actions, liabilities, assessments, losses, judgments, settlements, fines, penalties, costs, expenses (including attorneys’ fees and dispute resolution costs), or damages resulting from or arising out of (a) your alleged or actual breach of this Agreement, including your express representations and warranties; (b) your use or misuse of the Technology; (c) Your Information; or (d) your alleged or actual infringement or violation of the rights of a third party, including without limitation any IPR, rights of publicity, and rights of privacy.
12. Warranty Disclaimer; Limitation of Liability
SOME JURISDICTIONS MAY NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OF CERTAIN LIABILITIES. TO THE EXTENT APPLICABLE LOCAL LAW SPECIFICALLY AND EXPRESSLY LIMITS SUCH EXCLUSIONS OR LIMITATION, THOSE SUCH EXCLUSIONS SET FORTH BELOW WILL APPLY TO YOU ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LOCAL LAW. THE TECHNOLOGY IS LICENSED (IF AT ALL) AND PROVIDED “AS IS” AND “AS AVAILABLE”. SXM MEDIA EXPRESSLY DISCLAIMS ANY ACCURACY OF, OR RESPONSIBILITY FOR, ANY PORTION OF THE TECHNOLOGY. ANY USE OF THE SITE WILL BE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SXM MEDIA DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SXM MEDIA MAKES NO REPRESENTATIONS OR GUARANTEES THAT THE TECHNOLOGY WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, OR WILL NOT CONTAIN CONTENT YOU DEEM OFFENSIVE, INDECENT, OR OTHERWISE OBJECTIONABLE, AND SXM MEDIA DISCLAIMS ANY LIABILITY RELATING THERETO. SXM MEDIA MAKES NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES THAT THE USE OF OR THE RESULTS OF THE USE OF THE SITE WILL MEET YOUR REQUIREMENTS, BE ACCURATE, RELIABLE, CURRENT, OR THAT OPERATION OF THE TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR FREE. IN NO EVENT WILL SXM MEDIA BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR USE OF THE SITE, OR FOR ANY CAUSES OF ACTION OR CLAIMS IN AN AGGREGATE AMOUNT THAT IS MORE THAN $100, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. IN NO EVENT SHALL SXM MEDIA BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFITS, OR LOST DATA, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF SXM MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
SXM Media may assign this Agreement or delegate any of our rights or obligations hereunder, or any part thereof, to any third party, including our successor in interest, without requiring your written consent. You may not assign this Agreement in whole or in part, for any reason. This Agreement will be binding upon and will inure to the benefit of the parties and their heirs, executors, administrators, successors, and assigns.
15. Governing Law and Choice of Forum
This Agreement shall be governed and construed as set forth in Section 25 of the , except to the extent that you are located outside of the United States, and local laws applicable to you would not recognize governing law of the State of Delaware, United States, in which case we will select a binding governing law for this Agreement as applies to you. All disputes that may arise out of, are connected with, or relate to this Agreement or the services shall follow the dispute resolution process outlined in Section 25 of the ; provided, however, that if you are located outside of the United States, any arbitration will be administered by the International Centre for Dispute Resolution (the “ICDR”), the international division of the American Arbitration Association (“AAA”), in accordance with the various sets of rules of the AAA and the ICDR that are applicable to the parties based on their locations and limitations imposed by local laws applicable to them. If any arbitration administered by the ICDR is required to be in person, the location of such arbitration will be selected by us, in accordance with all applicable arbitration rules.
In the event any provisions of this Agreement are found to be contrary to applicable law of an administrative or governmental agency or body with jurisdiction over the parties’ performance under this Agreement, such provision will be modified and interpreted to accomplish the objectives of such provision to the greatest extent possible under any applicable law, and the remaining provisions will continue in full force and effect. In the event that such a provision cannot be modified and becomes invalidated or unenforceable, its invalidation or unenforceability shall not affect the validity or enforceability of any other provision of this Agreement.
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.