THIS CUSTOMER AGREEMENT ("e;CUSTOMER AGREEMENT"e;) CONTAINS THE TERMS OF YOUR USE OF XM SATELLITE RADIO AND XM RADIO ONLINE SERVICE. IF YOU DO NOT ACCEPT THESE TERMS, PLEASE NOTIFY US IMMEDIATELY AND WE WILL CANCEL YOUR SERVICES (OUR CONTACT INFORMATION IS LISTED BELOW). IF YOU DO NOT CANCEL YOUR SERVICES WITHIN 3 DAYS OF INITIATION OF YOUR SERVICES AND INSTEAD CONTINUE TO RECEIVE YOUR SERVICES, IT WILL MEAN THAT YOU ACCEPT THESE TERMS AND THAT THEY WILL BE LEGALLY BINDING ON YOU.
Thank you for choosing XM Satellite Radio ("e;XM"e;). XM broadcasts satellite radio programming only within the 48 contiguous United States. To become an XM subscriber, you must be at least 18 years old. If you are not yet 18 years old, you may still use XM, but only if the account was created by your parent or guardian. This is your copy of the XM Satellite Radio Customer Agreement. Please keep it for your records.
CONTACTING XM SATELLITE RADIO:
You may contact us between the hours of 6:00 am and 2:00 am Eastern Time Monday through Saturday and 8:00 am and 8:00 pm Eastern Time, Sunday, by calling 1-800-XM-RADIO (1-800-967-2346), or by writing to:
XM Satellite Radio Inc.
1500 Eckington Place, N.E.
Washington, D.C. 20002
ATTN: Listener Care
Hours of operation subject to change, at any time, without notice due to call volume and demand and other reasons beyond our control.
1. OUR SERVICE
The Satellite Radio Service ("e;Radio Service"e;) consists of a variety of full-time and part-time channels of music, news, talk, information, sports, children's and other entertainment. XM Radio Online ("e;Online Service"e; and collectively with Radio Service, the "e;Services"e;) consists of a selection of channels from the Radio Service, and may include other Online Service programming. XM reserves the right to change programming on either or both of the Services at any time and without notice, at our sole discretion, including canceling, modifying, moving or adding particular channels, with or without notice to you. If you are dissatisfied with the changes to the programming, you may terminate your service with notice to XM as outlined in Section 8. Certain programming services, functionality and/or other options may be offered for an additional cost from time-to-time. Not all content offered on XM's Radio Service is available on the Online Service and not all content offered on the Online Service is offered on the Radio Service. Similarly, not all content offered on either of the Services is available through the other modes of distribution of XM programming (such as through our internet, satellite TV, wireless, or other distribution partners we may engage from time to time). Use of XM programming through such other modes of distribution is governed by the terms and conditions offered by such distribution partner and not this Customer Agreement.
b) Recommended System Requirements for Online Service.
XM Radio Online is available to both PC and Mac users. Different system configurations will yield different results. We recommend the following system configurations:
- Internet Connection:Broadband
- Processor:Pentium III 1 GHz or better
- Memory:Minimum 256 MB RAM, minimum 64 MB Video RAM
- Operating System:Windows XP
- Sound:Soundcard w/ speakers or headphones
- Additional Software:Windows Media Player 10, Flash 7
- Browser Compatibility:Internet Explorer 6+, Firefox 1.0+, Netscape 7+ (Opera not supported); cookies must be enabled
- Internet Connection:Broadband
- Processor:PowerPC G3 processor or better
- Memory:128 MB RAM, 64 MB Video RAM
- Operating System:OS
- Sound:Soundcard w/ speakers or headphones
- Additional Software:Windows Media components for Quicktime, Flash 7
- Browser Compatibility:Firefox 1.0+ (Internet Explorer not supported); cookies must be enabled
These are recommendations only and changes in the Services may necessitate changes and/or upgrades in system configurations. We are not responsible for your system and/or any required changes and/or upgrades.
c) Eligibility. Use Limitations.
We offer the Services solely in the continental United States. To be a subscriber to the Services, you must possess a physical address in the United States of America. If your service address is not in the continental US, your XM Radio will not be activated to receive the Service. Unless you are a Commercial Subscriber you may use the Services only for your personal, non-commercial use. You may not make commercial use of, reproduce, rebroadcast, or otherwise transmit or redistribute the programming, create unauthorized recordings of the programming, charge admission specifically for the purpose of listening to the programming, or distribute play lists of the Services. If you use either Service for commercial purposes, we reserve, without limitation, the right to charge you our commercial Radio Service rate retroactively to the beginning of your subscription and/or cancel your subscription. Notwithstanding the provisions of Section 11, we or any of our programming partners may prosecute violations of the foregoing against you and other responsible parties in any court of competent jurisdiction, under the rules and regulations of the FCC, and other applicable laws. Subscription to the Services does not grant you the right to use any of our or our partners' trademarks. You also may not attempt to override or circumvent any of the usage rules, limitations, or security measures embedded into the Radio Service, the Online Service or any XM Radio (as defined in Section 5(a)). Only one concurrent login to the Online Service is permitted at any one time. You may login to the Online Service from any compatible Web Device (as defined in Section 6(a)), but not from more than one Web Device at any one time. XM will hold you fully liable for all claims and losses resulting from your use or misuse of any of the Services or any XM Radio.
e) User Safety/Reliance.
If you use either or both Services it is your responsibility to exercise prudent discretion and observe all safety measures required by law and your own common sense. You assume the entire risk related to your use of the Services. We are not responsible for accidents resulting from or associated with use of the Services. Your Radio Service includes traffic, weather, and other emergency alert information and data, and you acknowledge that such information and data is not for "e;safety for life"e;, but is merely supplemental and advisory in nature, and therefore cannot be relied upon as safety-critical in connection with any aircraft, sea craft, automobile, or any other usage. XM programming and on-air advertising is provided "e;as is"e; and "e;as available"e; and XM disclaims any and all warranties, express and implied, with respect thereto or the transmission or reception thereof. XM is not responsible for, and does not warrant the accuracy, reliability, completeness or timeliness, of any information disclosed on the Services. In no event will XM, its programming or data suppliers or partners, service providers, marketing/distribution, software or Internet suppliers or partners or hardware or software manufacturers, suppliers, or partners be liable to you or to any third party for any direct, indirect, incidental, consequential, special, exemplary or punitive damages or lost profits resulting from use of or interruptions in the transmission or reception of the Services.
f) Stock Ticker Usage (only applicable with certain XM receivers).
Certain stock quote data on the Radio Service is the intellectual property of the relevant provider or third parties that provide such data to the relevant provider. All data is currently delayed by approximately 25 minutes. The data is protected by copyright and other intellectual property laws and all ownership rights remain with the relevant information service provider. All stock quotes with 4 or 5 character symbols are NASDAQ traded companies.
You may only use stock quotes retrieved from the Radio Service for your own personal and non-commercial purposes. You may not sell or otherwise make any stock quotes available to anyone else. We are not responsible for any loss that may result from any use of any stock quotes.
Transmission of stock quotes may be subject to arbitrary delays beyond our control. Neither XM nor any stock quote provider is responsible for or warrants the accuracy, reliability, completeness or timeliness of the stock quote data. You acknowledge that XM and/or the information service provider is not responsible for and will not be liable to you or any third party for any losses arising from such delay and/or your use of and/or reliance on any such data. In no event will any information provider and/or XM be responsible for or otherwise liable to you for any direct, indirect, incidental, consequential, special, exemplary, or punitive damages or lost profits resulting from your use of and/or reliance on such data and/or any delay or loss of stock quotes on the Radio Service.
g) Channel Blocking. Programming Disclosure.
Some programming may include explicit language. Channels with a high frequency of explicit language are indicated on your channel line-up and on the channel display with an "e;XL"e; Some channels may also, from time to time, include incidental explicit language, but are not designated on the channel line-up or channel display with an "e;XL."e; Furthermore, some programming may broadcast in Spanish or French and are indicated on your channel line-up and on the channel display with an "e;SP"e; or "e;FR"e;, respectively. Additionally, certain music channels may contain commercials and are indicated on your channel line-up and on the channel display with a "e;CM"e;. See chart below:
PROGRAMMING DISCLOSURE GUIDE:
|XL||Channels with a high frequency of explicit language|
|SP||Channels broadcast in Spanish|
|FR||Channels broadcast in French|
|CM||These music channels include commercials.|
It is your responsibility to impose listening restrictions that you consider appropriate for yourself and/or others. Please contact our Listener Care Center 1-800-XM-RADIO (1-800-967-2346), or visit our website at XMRADIO.com for information on channel blocking. Channel blocking is not available with the Online Service; therefore it is your responsibility to impose listening restrictions that you consider appropriate for yourself and/or others.
h) Recording XM Content.
Certain types of XM Radios have the ability to record programming transmitted over the Radio Service ("e;Recorded Content"e;). Subject to your XM Radio's restrictions, you may access such Recorded Content as long as you pay your monthly subscription fee. XM reserves the right to charge a fee for this and/or related functionality.
i) Commercial Subscribers (Radio Service only).
1. In addition to the other terms of this Customer Agreement, this paragraph applies if you use the Radio Service in a commercial establishment. Channels with a high frequency of explicit language are indicated on your channel line-up and on the channel display with an "e;XL."e; These channels may not be appropriate for the patrons of a commercial establishment. If you use the Radio Service in a commercial establishment, you must inform us promptly of any complaints you receive from any patron about the content of our Radio Service. It is your responsibility to impose listening restrictions that you consider appropriate for yourself, your patrons and others. Please contact our Listener Care Center 1-888-689-2300 or visit our website XMRADIO.com for information on channel blocking. We reserve the right to block any channels from a commercial establishment based on listener complaints, FCC inquiry, negative publicity, or other factors.
2. If your commercial establishment uses XM's Radio Service as its sole music source and maintain an active commercial subscription, you are not responsible for the payment of any copyright royalties to ASCAP, BMI, SESAC or for any sound recordings, as these are included in your subscription fee, unless you operate an establishment that charges an admissions or membership fee (e.g. a theme park, skating rink, dance club, health club, etc.) or use music sources other than XM's Radio Service (e.g. CDs, DJs, live music or terrestrial radio, etc.), in which case you are responsible for payment of any and all copyright royalties to ASCAP, BMI, SESAC and/or for any sound recordings.
3. Our subscription fees and other charges and fees are subject to change. Please do not include comments or questions with your payment. If paying against invoices, mail all payments to the following address:
XM Satellite Radio Inc.
P. O. Box 830205
Baltimore, MD 21283-0205
4. Neither the Online Service nor any Recorded Content is intended for commercial use. They are intended for private use and enjoyment only, and you are not permitted to use the Online Service or Recorded Content for broadcast in a commercial establishment or for any other commercial purpose. If you use either Service or Recorded Content for commercial purposes, we reserve, without limitation, the right to charge you our commercial Radio Service rate retroactively to the beginning of your subscription, obtain reimbursement for rights and royalty fees, and/or cancel your subscription.
2. CHANGE IN TERMS.
Due to the evolving nature of our business, our competition, and the requirement and costs of programming suppliers, we reserve the right to change the terms on which we offer the Services from time to time, as we believe appropriate, including the fees and charges. Other than with respect to the programming changes referenced in Section 1(a), if we make any material changes that, in XM's judgment, would have an adverse effect on your use of the Services, we will either post a notice on our website that the Agreement has changed and the effective date of such change, send you a notice describing such changes and their effective date, in the manner described in Section 12(a), or send you a revised Customer Agreement to replace this Customer Agreement. Subject to any minimum term commitments, early termination fees and/or non-refundable pre-payments, you always have the right to cancel the Services at any time if these terms are not acceptable to you. If you elect not to cancel your Services after receiving our notice of a change, your continued receipt of Services from us will constitute acceptance of the changed terms. If you notify us that you do not accept such terms, then we may cancel your Services as provided in Section 8. In the event of any conflict between these terms and the terms of any promotional offers, the terms of such promotional offers shall govern.
3. RADIO SERVICE INTERRUPTIONS.
Radio Service may be unavailable or interrupted from time to time for a variety of reasons, such as environmental or topographic conditions and/or other things we cannot control. Radio Service might also not be available in certain places (e.g., in tunnels, parking garages, or within or next to buildings) or near other technologies. Home, portable and office-based receivers function best when the antenna is placed in or near a south-facing window with a clear view of the sky. Even if your antenna is near a south-facing window, certain window treatments could interfere with reception. We are not responsible for any noise and/or interruptions of Radio Service.
4. ONLINE SERVICE INTERRUPTIONS.
Online Service may be unavailable or interrupted from time to time for a variety of reasons, such as unavailability or difficulties with the Internet generally or your web browser, computer, home wiring, or Internet service provider and/or other situations that we cannot control. The Online Service is available at speeds of either 32 kbps or 64 kbps and functions best when streamed over a broadband connection. We do not guarantee continuous, uninterrupted or secure access to the Online Service and are not responsible for any noise and/or interruptions of Online Service that occur.
a) Authorized Suppliers.
You may access and use the Radio Service only with equipment authorized to receive the Radio Service. We do not make or install any of the equipment you may use to receive the Radio Service ("e;XM Radios"e;). We only provide the Radio Service. You must purchase your XM Radio, and/or any repairs, parts, installation or service for it, from authorized sellers, manufacturers or installers. We are not liable for any personal injury or damage to your vehicle or home, or any other property resulting from installation and/or use of any XM Radio. We are not responsible for and do not warrant any XM Radios in any way whatsoever and are NOT responsible for the advertising, statements, practices, promises, services or warranties of such sellers, manufacturers or installers. If you have any complaints about your XM Radio or your installation, you should direct them to your authorized seller, manufacturer or installer. Returns of XM Radios are subject to your authorized seller's, manufacturer's or installer's return policy.
b) Multiple XM Radios.
If you add additional XM Radios to your account, you must purchase a separate subscription for each one (see Section 7). Such additional subscriptions may be eligible for reduced rates, which may be offered by XM from time to time and a per radio activation fee may apply.
c) Loss of Radio.
You should report to XM and suspend or cancel your subscription if your XM Radio is lost, stolen, sold, transferred or otherwise removed from your possession without your permission. Otherwise you will continue to pay for the Services.
It is prohibited to, and you agree that you will not, copy, decompile, disassemble, reverse engineer, hack, manipulate, or otherwise access and/or make available any technology incorporated in receivers compatible with the XM Satellite Radio system. Furthermore, the AMBE (r) voice compression software included in this product is protected by intellectual property rights including patent rights, copyrights, and trade secrets of Digital Voice Systems, Inc. The software is licensed solely for use within this product. The music, talk, news, entertainment, data, and other content on the Services are protected by copyright and other intellectual property laws and all ownership rights remain with the respective content and data service providers. You are prohibited from any export of the content and/or data (or derivative thereof) except in compliance with applicable export laws, rules and regulations. The user of this or any other software contained in an XM Radio is explicitly prohibited from attempting to copy, decompile, reverse engineer, hack, manipulate or disassemble the object code, or in any other way convert the object code into human-readable form.
6. ONLINE SERVICE EQUIPMENT.
a) XM does not make or install any of the physical equipment, Internet connectivity or web browser software or other hardware or software you may use to receive the Online Service. We only provide the Online Service. You must purchase your computer, laptop, alternate web device, modem or router, and Internet service and/or any other appropriate hardware and/or software ("e;Web Devices'), from appropriate sellers, resellers, manufacturers or service providers. XM is not liable for any damage to your Web Devices resulting from use of the Online Service. XM does not warrant any Web Devices in any way whatsoever and we are not responsible for the advertising, statements, practices, promises, services or warranties of such sellers or manufacturers. If you have any complaints about your Web Devices, you should direct them to the applicable seller, reseller, manufacturer, or service provider.
b) Login and Password.
Once your Online Service registration has been processed you are responsible for maintaining the confidentiality of your Confirmation Code, Email Address and Password. You are also fully responsible for all activities that occur in connection with your Login ID. At the end of each online session, you must completely log out of the Online Service. Also, should your Login ID or Password be lost, stolen, sold, transferred or otherwise removed from your possession without your permission, contact XM immediately so that your Login ID and Password may be deactivated and reissued. To report compromised Login ID information contact:
Internet Service Support
XM Satellite Radio Inc.
1500 Eckington Place, NE
Washington, DC 20002
It is prohibited to, and you agree that you will not, copy, decompile, disassemble, reverse engineer, hack, manipulate, or otherwise make available any technology incorporated in receivers compatible with the XM Radio or that support the XM website, the Online Service or any of its content. Furthermore, the AMBE (r) voice compression software included in this product is protected by intellectual property rights including patent rights, copyrights, and trade secrets of Digital Voice Systems, Inc. The software is licensed solely for use within this product. You also agree not to upload, post, transmit or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, disable or limit the functionality of the XM website or the Online Service. Furthermore, the music, talk, news, entertainment, data and other content on the Services are protected by copyright and other intellectual property laws and all ownership rights remain with the respective content and data service providers. You are prohibited from any export of the data (or derivative thereof) except in compliance with applicable export laws, rules and regulations. The user of this or any other software contained in an XM Radio or the XM website and/or all hardware and/or software used in connection with either is explicitly prohibited from attempting to copy, decompile, reverse engineer, hack, manipulate or disassemble the object code, or in any other way convert the object code into human-readable form.
In return for receiving our Services, you agree to pay us as follows:
a) Subscription Fee.
You will pay in advance, preferably by credit or debit card, at the applicable consumer or commercial rates in effect at the time of payment, for any Services ordered for use with your XM Radio (including Services ordered by your children or other family members), with or without your permission, through all periods until the Services are canceled. You will be responsible for all subscription fees, other charges and fees and purchases under your account. Our subscription fees and other charges and fees are subject to change. Please do not include comments or questions with your payment. If paying against invoices, mail all payments to the following address:
XM Satellite Radio Inc.
P. O. Box 830205
Baltimore, MD 21283-0205
b) Billing Statements.
If you elect to make automatic credit or charge card (i.e., Visa, MasterCard, American Express) or electronic funds payments, you will not receive monthly statements unless you request them. Statements are sent via electronic mail unless otherwise requested. Statements will show:
- payments, credits, purchases, and any other charges to your account;
- the amount you owe us; and
- the payment due date.
If you are not using an electronic method of payment, we will send you a statement for the print billing payment cycle period available when subscribing. Statements are not sent with a zero or nominal balance due, or a nominal credit balance, on your account at the end of a billing cycle.
c) Administrative Fees.
We may charge you one or more of the following fees, all of which are subject to change:
- Activation Fee:For each XM Radio on your account, we may charge you a fee to activate, upgrade or modify your Radio Services. The addition of premium channels, if any, may require an additional transaction fee. The fee is payable with your first subscription fee payment.
- Late Fee:If we do not receive your payment by the billing due date we may charge you a late fee of the lesser of (a) $5.00 or (b) the maximum amount permitted under applicable law per month or partial month until the delinquent amount is paid in full, in each case, subject to applicable law. We do not extend credit to customers and this late fee is not an interest charge. This fee is reasonably related to the actual expense we incur due to late payment and may be subject to limitations set forth by law in your state.
- Deposits:If you wish to reactivate your Services after a deactivation for non-payment, you must pay your account in full and we may require a deposit before we reactivate your Services. Deposits will appear on your bills as credits, from which we will deduct our charges. .
- Returned Payment Fee:If any bank or other financial institution refuses to honor any payment of yours, we may charge you a collection fee that is the lesser of (i) $20.00 ($15.00 for residents of West Virginia); and (ii) the maximum amount permitted under applicable law. You acknowledge that this collection fee is not an interest charge, finance charge, time price differential or other such charge or payment of a similar nature and it is reasonably related to the actual expense we incur due to unsatisfied payment.
- Invoice Fee:If you elect to receive a paper copy of your invoice, we may charge you a fee of up to $2.00 per invoice.
d) Questions About Your Statement.
If you have a question about your Services or bill, or if you would like to change or reactivate your Services, call us at 1-800-XM-RADIO (1-800-967-2346), or write to email@example.com or regular mail at the address on the first page. We will respond to you as promptly as we can. If you write to us, please include the following information:
- Your name and XM account number;
- The dollar amount in question; and
- The details of your question.
Please do not include any payment with your correspondence. If you wish to dispute any charge, you must contact XM within 30 days after the date you receive the statement in question (see Section 11 "e;Resolving Disputes"e; for how to notify XM that you are disputing a charge): OTHERWISE YOU WAIVE YOUR RIGHT TO DISPUTE THE CHARGE. Undisputed portions of the statement must be paid by the due date to avoid a late fee and possible deactivation of the Services.
e) Payments.You must pay in U.S. dollars, by credit or debit card, electronic funds transfer, gift card, check or money order. Please make checks payable to XM Satellite Radio Inc. and reference your XM account number on the check or money order. We reserve the right to require payment via cashier's check or money order regardless of credit rating or any past practice. The outstanding balance is due in full each payment period. We may, in our discretion, accept partial payments, which will be applied to the oldest outstanding statement. No "e;payment in full"e; notation or other restrictive endorsement written on your payments will restrict our ability to collect all amounts owing to us.
f) If You Don't Pay On Time.,
We expect you to pay your account balance on time. If you don't pay your account balance on time, we may deactivate your Services after any applicable grace period. If you purchased an annual or multi-year subscription to any Services and your account is past due, we may convert your subscription to a quarterly or monthly subscription and/or deactivate your Services after any applicable grace period. If so, we will prorate your subscription and amounts owed to us and will apply your pre-payments to past due amounts and any remaining credit to future obligations.
g) Consents Regarding Credit.
In order to establish an account with us, you authorize us to inquire into your creditworthiness by checking with credit reporting agencies. If you are delinquent in any payment to us, you also authorize us to report any late payment or nonpayment to credit reporting agencies.
h) Change of Address or Credit or Charge Card Information.
You must notify us immediately of any change in your name, mailing address, residence address, e-mail address, telephone number or credit or charge card information, including new account numbers associated with renewal of expired charge card on file.
You will pay all taxes or other government fees and charges, if any, which are assessed based on your use of the Services and the billing address you provide to XM.
j) Annual and Multi-Month Commitments.
From time to time, we may offer the Services on an annual or other multi-month commitment basis. In such events, you agree to make payments for services to be received and that are ordered by you in accordance with the terms of the applicable billing plan that you agree to, including, without limitation, payments of any early termination fees if you terminate your Services prior to the end of such commitment period.
The term of this Customer Agreement is indefinite and Services will continue to renew on the same billing terms until canceled, terminated or discontinued by you or us.
b) Your Cancellation.
You may cancel Services by notifying us as indicated on the first page of this Customer Agreement. This notice will become effective at the end of your monthly billing cycle in our records. You are responsible for payment of all outstanding balances accrued through that effective date. We will refund amounts for any full months of Service fees you may have prepaid on a quarterly, annual or multi-year basis representing those months beyond the billing cycle month during which you cancelled your service. If your subscription was included in the financing of your purchase or lease of a vehicle, any refund will be payable to your finance company unless the finance company has notified us that your loan has been paid in full. Fees attributable to certain promotional offerings or Services received during trial periods may not be refunded. Service credits will not be refunded in cash, but will be honored in the form of Services for the remaining length of the credit. IF YOU ARE CANCELLING A SUBSCRIPTION COMMITMENT THAT REQUIRES THE PAYMENT OF AN EARLY TERMINATION FEE IF CANCELLED PRIOR TO THE END OF SUCH COMMITMENT, YOU WILL BE RESPONSIBLE FOR PAYMENT OF THE APPLICABLE EARLY TERMINATION FEE.
c) Our Cancellation.
We may cancel your Services at any time if you fail to pay amounts owied to us when due, subject to any grace periods, for breach of any other material provision of this Customer Agreement or for any other reason. In such case, you will still be responsible for payment of all outstanding balances accrued through that effective date. You must comply with all of the terms and conditions of this entire Customer Agreement or we may cancel your Services.
9. COLLECTION OF INFORMATION.
XM may collect personal information about your use of the Services that helps us customize our Services. XM will use your information to (i) provide and improve Services, (ii) enforce the Customer Agreement, (iii) offer you new products and services and (iv) perform market research for our own purposes. You acknowledge and agree that we will have the right to make our customer list, and portions thereof, and your information available to selected third parties that we believe offer products /or services that may be of interest to you. However, if you prefer that we not provide your information to third parties, please contact us at 1-800-XM-RADIO (1-800-967-2346) or at firstname.lastname@example.org. Notwithstanding the foregoing, we reserve the right to inform ASCAP, BMI, SESAC, and any other music royalty collection organization of your subscription for the purposes of confirming to them that you are not responsible for the payment of music royalties if your establishment is using XM Services as its sole music source.
10. LIMITS ON OUR RESPONSIBILITY
YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED "e;AS IS"e; AND "e;AS AVAILABLE"e;. WE MAKE NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE SERVICES OR YOUR XM RADIO OR OTHER EQUIPMENT. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE CONTENT AND FUNCTIONALITY OF THE SERVICES ARE PROVIDED "e;AS IS"e; AND "e;AS AVAILABLE"e; WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. ALL SUCH WARRANTIES OR REPRESENTATIONS (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT) ARE HEREBY DISCLAIMED.
b) LIMITATIONS OF LIABILITY.
WE ARE NOT RESPONSIBLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOSSES RELATING TO THE USE OR PURCHASE OF ANY XM RADIO, OTHER EQUIPMENT, WEB DEVICE, OR THE SERVICES, WHETHER BASED ON NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF. OUR TOTAL LIABILITY TO YOU AND ANY OTHER PERSONS RECEIVING OUR SERVICES, REGARDLESS OF THE CAUSE, WILL IN NO EVENT EXCEED THE AMOUNTS THAT YOU HAVE PAID TO US FOR THE SERVICE THAT YOU RECEIVED DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE SPECIFIC EVENT THAT GAVE RISE TO THE APPLICABLE DAMAGE OR LOSS. THIS ALLOCATION OF RISK AND THE DISCLAIMER OF WARRANTIES IN SECTION 10(a) ARE REFLECTED IN OUR PRICES AND ARE A FUNDAMENTAL ELEMENT OF OUR AGREEMENT TO PROVIDE THE SERVICES. YOU MAY HAVE GREATER RIGHTS THAN DESCRIBED ABOVE UNDER YOUR STATE'S LAWS.
c)You agree to indemnify and hold harmless XM from and against any claims arising out of your use of the Services or any XM Radio and any breach by you of this Customer Agreement. This indemnification obligation includes the acts or omissions of anyone accessing the Online Service using your Login ID, with or without your permission, and, if you are a commercial subscriber, this indemnity obligation includes claims arising out of the actions of your officers, directors, or agents, employees, or independent contractors.
11. RESOLVING DISPUTES.
In order to expedite and control the cost of disputes, you agree to the following dispute resolution procedures:
a) Informal Resolution.
In the event of any dispute, claim or controversy arising out of or relating to the Services, this Customer Agreement or the breach, termination, enforcement, interpretation or validity thereof (hereinafter referred to as a "e;Claim"e;), we will first try to resolve it informally. Accordingly, neither of us may start a formal proceeding (except for Claims described in Section 11(d)) for at least 60 days after one of us notifies the other of a claim in writing. To initiate a claim, you must send notice to the address on the first page of this Customer Agreement. If XM initiates a claim, we will send our notice to the billing address on file with us.
b) Formal Resolution.
Except as provided below in this Section 11(b) and in Section 11(d), if we cannot resolve a Claim informally, then upon notice of either of us to the other, any Claim, as well as any determination as to the scope, validity or applicability of this Customer Agreement to arbitrate, shall be resolved only by binding arbitration. The arbitration will be conducted under the Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes of the American Arbitration Association (collectively, the "e;AAA Rules"e;) that are in effect at the time the arbitration is initiated and under the rules set forth in this Customer Agreement. If there is a conflict between the AAA Rules and the rules set forth in this Customer Agreement, the rules set forth in this Customer Agreement will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. If you initiate an arbitration, you agree to pay a fee of $125 or, if less and you tell us in writing, the amount that you would pay to initiate a lawsuit against us in the appropriate court of your state. We agree to pay any additional fee or deposit required by the American Arbitration Association in excess of your filing fee. We also agree to pay the costs of the arbitration proceeding up to a maximum of one-half day (four hours) of hearings. Other fees, such as attorney's fees, expenses or travel to the arbitration and the costs of a proceeding that goes beyond one-half day will be in accordance with AAA rules. The arbitration will be held at a location within 100 miles of your residence unless you and we both agree to another location. To start the arbitration, you or we must do the following things:
- Write a demand for arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered;
- Send two copies of the demand for arbitration plus the appropriate filing fee to: American Arbitration Association, 1776 Eye Street, N.W., Suite 850, Washington, D.C. 20006;
- Send one copy of the demand for arbitration to XM SATELLITE RADIO INC. to the attention of the General Counsel
Notwithstanding the foregoing provisions of this subsection, you and we both retain the right to seek relief in an appropriate small claims court for disputes or claims that fall within the scope of its jurisdiction.
c) Binding Effect.
In the arbitration proceeding, the arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Otherwise, the arbitrator's decision is final and binding on all parties and may be enforced in any federal or state court that has jurisdiction. A court may sever any portion of this Section 11 that it finds to be unenforceable.
Notwithstanding the foregoing:
- any dispute over the validity of either party's intellectual property rights or our licenses to operate our business;
- any Dispute based on Section 11(c) above; and
- any dispute involving a violation of the Communications Act of 1934, 47 U.S.C. §605, or the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521 may be decided only by a court of competent jurisdiction.
Nothing in this Customer Agreement, including, without limitation, this Section 11, shall affect our ability to terminate your Services for non-payment of amounts owed to us when due.
|NOTICE OF ARBITRATION AGREEMENT:|
This agreement provides that all disputes between you and XM will be resolved byBINDING ARBITRATION.
You thus GIVE UP
YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (EXCEPT for matters that may be taken to SMALL CLAIMS COURT).
*Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.
*You are entitled to aFAIR HEARING, BUT the arbitration procedures areSIMPLER AND MORE LIMITEDTHAN RULES APPLICABLE IN COURT.
*Arbitrator decisions are as enforceable as any court order and are subject toVERY LIMITED REVIEWBY A COURT.
FOR MORE DETAILS,
See Section 11 above.
Notices to you will be deemed given when deposited in the mail or on the date that an e-mail is sent. Mailed notices may be included in our statements or emails to you. We may also provide notice to you by telephone, which will be deemed given when a message is left with you, someone answering the telephone at your residence or commercial establishment or on an answering machine or voicemail system at your phone number on record with us. Your notices to us will be deemed given when we receive them at the address (regular or e-mail) or telephone number set forth on the first page of this Customer Agreement.
b) Applicable Law.
The interpretation and enforcement of this Customer Agreement shall be governed by the rules and regulations of the Federal Communications Commission, other applicable federal laws, and the laws of the state and local area where Service is provided to you in that order. This Customer Agreement is subject to modification if required by such laws. Notwithstanding the foregoing, Section 11 shall be governed solely by the Federal Arbitration Act without reference to state law.
c) Assignment of Account or Customer Agreement.
We may assign your account or this Customer Agreement and all rights and/or obligations hereunder to any third party without notice for any purpose, including without limitation collection of unpaid amounts, in the event of an acquisition, corporate reorganization, merger or sale of substantially all of the party's assets to another entity. You hereby consent to such assignment. You must continue making all required payments to us in accordance with your billing statement, unless notified otherwise.
This Customer Agreement states our entire agreement relating to your XM subscription, the Services, and your relationship with XM. No salesperson or other representative is authorized to change it for you, although XM may modify it without prior notice to you (see Section 2). If any provision is declared by a competent authority to be invalid, that provision will be deleted or modified to the extent necessary, and the rest of this Customer Agreement will remain enforceable. The specific terms of this Customer Agreement that expressly or by their nature survive termination shall continue thereafter until fully performed.
THANK YOU FOR CHOOSING XM SATELLITE RADIO.