EFFECTIVE DATE: SEPTEMBER 8, 2019
Welcome to the KellyClarksonShow.com web site. NBCUniversal Domestic Television Distribution, a division of Universal Television LLC, its parent, subsidiary and affiliated companies ("NBCTD") maintain this site ("Site") for your personal entertainment, information, education, and communication. Please feel free to browse the Site at any time; however, by browsing this Site, you are subject to the terms and conditions ("Terms and Conditions") of this Site. By accessing this Site, you accept, without limitation or qualification, the following Terms and Conditions. If you do NOT accept the Terms and Conditions, then please discontinue your use of this Site.
PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE NBCUNIVERSAL SERVICES. THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS INCLUDING MANDATORY ARBITRATION, NO CLASS RELIEF AND WAIVER OF YOUR RIGHT TO A JURY TRIAL.By accessing or using any of the NBCUniversal Services you agree to these Terms. If you do not agree to these Terms, please do not access or use the NBCUniversal Services.
These Terms are a contract between you and NBCUniversal. These Terms include our Privacy Policy, which is hereby incorporated by reference (“Privacy Policy”). Our Privacy Policy explains how we may collect, maintain and disclose data regarding you and others.
TERMS AND CONDITIONS
Use of Site
NBCTD reserves the right, in its sole discretion, to amend the Terms and Conditions, and to modify, add or discontinue any aspect, content, or feature of the Site. Such amendments, modifications, additions, deletions shall become effective upon notice thereof, which may be provided to you by posting on the Site, via e-mail or any other means. Continued use of the Site by you shall constitute your binding acceptance of any such amendments, modifications, additions or deletions. The Site is owned and operated by NBCTD and its affiliated companies and contains material that is derived in whole or in part from material supplied and owned by NBCTD and other sources. Such material is protected by copyright, trademark, and other applicable laws. You may not modify, copy, reproduce, republish, upload, post, transmit, publicly display, prepare derivative works based on, or distribute in any way any material from the Site, including but not limited to text, audio, video, code and software. During your visit, however, you may download material displayed on the Site for non-commercial, personal use only (provided that you also retain all copyright and other proprietary notices contained on the materials). NBCTD neither warrants nor represents that your use of materials displayed on the Site will not infringe rights of third parties not owned by or affiliated with NBCTD.
Disclaimer of Warranties
While NBCTD uses reasonable efforts to include up to date information on the Site, NBCTD makes no warranties or representations as to its accuracy, timeliness, reliability, completeness or otherwise. NBCTD has provided links and pointers to Internet sites maintained by third parties ("Third Party Sites") and may from time to time provide third party materials on the Site. Neither NBCTD, its parent, subsidiary companies, affiliates, or suppliers operate or control in any respect the information, products or services on these Third Party Sites. The content, materials, and products or services available in or accessible through the Site are AS IS and, to the fullest extent permissible pursuant to applicable law, NBCTD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING. NBCTD DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN SUCH MATERIALS AND PRODUCTS, OR IN THE SITE, WILL BE UNINTERRUPTED OR ERROR-FREE, WILL BE AVAILABLE FOR USE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, INCLUDING THE STORAGE SERVICES AND THEIR CONTENTS, OR THE SERVER THAT MAKES THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Limitation of Liability
YOUR USE OF, AND BROWSING IN, THE SITE IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKS TO SATISFY YOUR REQUIREMENTS FOR THE ACCURACY AND SUITABILITY OF THE SITE, INCLUDING THE INFORMATION, AND FOR MAINTAINING ANY MEANS THAT YOU MAY REQUIRE FOR THE RECONSTRUCTION OF LOST DATA OR SUBSEQUENT MANIPULATIONS OR ANALYSES OF THE INFORMATION PROVIDED HEREUNDER. YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE AND ANY INFORMATION SENT OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. YOU ASSUME RESPONSIBILITY FOR THE ENTIRE COST OF ALL NECESSARY MAINTENANCE, REPAIR OR CORRECTION TO YOUR COMPUTER SYSTEM OR OTHER PROPERTY. IN NO EVENT SHALL NBCTD, ITS PARENT OR SUBSIDIARY COMPANIES OR ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITE OR WITH THE DELAY OR INABILITY TO USE THE SITE, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ADVERTISED IN OR OBTAINED THROUGH THE SITE, NBCTD'S REMOVAL OR DELETION OF ANY MATERIALS OR RECORDS SUBMITTED OR POSTED ON ITS SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF NBCTD OR ANY OF ITS SUBSIDIARY COMPANIES, AFFILIATES OR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THIS WAIVER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY RECORD. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NBCTD, ITS PARENT OR SUBSIDIARY COMPANIES, AFFILIATES OR SUPPLIERS SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SITE.
Submissions
While we are always happy to hear from you, it is NBCTD’s policy not to accept or consider creative materials, ideas, or suggestions other than those we specifically request. This is to avoid any misunderstandings if your ideas are similar to those we have developed independently. Therefore, we must request that you do NOT send to us any original creative materials such as screenplays, stories, original artwork, etc. Any communication or material you do transmit to the Site by electronic mail or otherwise will be treated as non-confidential and non-proprietary. Anything you transmit or post shall be deemed the property of and may be used by NBCTD, or its affiliates, for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Furthermore, NBCTD is free to use and shall be deemed to own, any ideas, concepts, know-how, or techniques contained in any communication you send to the Site for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products using such information. Disclosure, submission, or offer of any submissions to the Site shall constitute an assignment to NBCTD of all worldwide rights, titles, and interests in all copyrights and other intellectual property rights in such submission. NBCTD may edit, copy, publish, distribute, translate, and otherwise use in any medium any submission that you forward to NBCTD and will own exclusively all such rights, titles, and interest and shall not be limited in any way in its use, commercial or otherwise, of the submission. NBCTD is and shall be under no obligation to: (1) maintain any of your or any user's submissions in confidence; (2) to pay to you or any user any compensation for any submissions; or (3) to respond to any of your or any other user's submissions.
Trademarks
The trademarks, logos, and service marks (collectively the "Trademarks") displayed on the Site are registered and unregistered Trademarks of NBCTD and others. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site without the written permission of NBCTD or such third party that may own the Trademarks displayed on the Site. Your misuse of the Trademarks displayed on the Site, or any other content on the Site, except as provided in these Terms and Conditions, is strictly prohibited. You are also advised that NBCTD will aggressively enforce its intellectual property rights to the fullest extent of the law, including seeking of criminal prosecution.
Merchants
Your correspondence or business dealings with, or participation in promotions of, merchants found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such merchant. NBCTD will NOT be responsible or liable for any loss and/ or damage of any sort incurred as the result of any such dealings or as the result of the presence of such merchants on the Site.
Chat Rooms / Message Boards / Bulletin Boards
The Site may provide you and other users an opportunity to submit, post, display, transmit and/or exchange information, ideas, opinions, photographs, images, video, creative works or other information, messages, transmissions or material to us, the Site or others ("Post" or "Postings"). Postings do not reflect the views of NBCTD; and NBCTD does not have any obligation to monitor, edit, or review any Postings on the Site. NBCTD assumes NO responsibility or liability arising from the content of any such Postings nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any information within such Postings on the Site. You are strictly prohibited from posting or transmitting any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. NBCTD will fully cooperate with any law enforcement authorities or court order requesting or directing Universal to disclose the identity of anyone posting any such information or materials.
Indemnification
You agree to indemnify, defend and hold NBCTD and its parent, affiliates, and their respective officers, directors, owners, employees, agents, information providers and licensors (collectively the "Indemnified Parties") harmless from and against any and all claims, liability, losses, actions, suits, costs and expenses (including attorneys' fees) arising out of or incurred by any breach by you of these Terms and Conditions. NBCTD reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with NBCTD's defense of such claim.
Registration
Should NBCTD choose to provide member-based services ("Services") on the Site, when you register to use these Services, you may be required to provide certain personally identifiable information about yourself. You agree to provide true, accurate and complete information about yourself, and to update the information when it changes. If you provide any information that is untrue or inaccurate, not current, or incomplete, or if NBCTD suspects that your information is untrue, inaccurate, or incomplete, then NBCTD may, in its sole discretion, suspend, terminate, or refuse future access to your membership in these Services. Any personally identifiable information provided at points of registration on the Site will be subject to the Kelly Clarkson Show Web Site Privacy Policy which can be read by clicking here.
Termination
NBCTD may, in its sole discretion, terminate your password, account (or any part thereof) or your access to the Site, or remove and discard any Communication transmitted by you, or information stored, sent, or received via the Site without prior notice and for any reason, including, but not limited to: (i) concurrent access of the Site with identical user identification numbers, (ii) permitting another person or entity to use your user identification number to access the Site, (iii) any other access or use of the Site except as expressly provided in this Agreement, (iv) any violation of the terms and conditions of this Agreement or the rules and regulations relating to the use of, the software and/or data files contained in, or accessed through, the Site, (v) tampering with or alteration of any of the software and/or data files contained in, or accessed through, the Site, or (vi) failure to use the Site or portion thereof on a regular basis. You may terminate your membership hereunder upon thirty (30) days written notice by you to NBCTD of your intent to terminate this Agreement. Termination, suspension, or cancellation of this Agreement or your access rights shall not affect any right or relief to which NBCTD may be entitled, at law or in equity. Upon termination of this Agreement, all rights granted to you will automatically terminate and immediately revert to NBCTD and its licensors.
Children Online Protection Act Notification
Pursuant to 47 U.S.C. Section 230 (d) as amended, NBCTD hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at the American Links Up web site, http://www.netparents.org. To view information on our policy regarding the privacy of information from children under the age of 13, please click here to read The Kelly Clarkson Show Web Site Privacy Policy.
Export Control
You are responsible for complying with local laws, if and to the extent local laws are applicable. You specifically agree to comply with all applicable laws concerning the transmission of technical data exported from the United States or the country in which you reside.
The NBCUniversal Services are controlled and operated by us from our offices within the State of New York. You hereby represent and warrant that: (a) you are not located in a country that is (i) subject to a U.S. government embargo (e.g., Crimea, Cuba, Iran, North Korea or Syria) or (ii) on Title 15, Part 740 Supplement 1 Country Group E of the U.S. Code of Federal Regulations; (b) you are not listed on any U.S., United Nations Security Council (UNSC), UK or EU government list of prohibited or restricted parties, including the list of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department or the U.S. Commerce Department’s Denied Persons List; and (c) you are not otherwise the target of U.S., UNSC, UK or EU economic sanctions. You may not access, download or otherwise use any NBCUniversal Services in violation of United States, UNSC, UK or EU export control or economic sanctions laws and regulations. Software in or from the NBCUniversal Services are further subject to U.S. export controls. No software may be downloaded or otherwise exported or re-exported in violation of applicable laws, including without limitation to any end user in a U.S. embargoed country or territory or an end user included on any U.S., UNSC, UK or EU government list of prohibited or restricted parties.
Infringement Policy
NBCTD, pursuant to 17 U.S.C. Section 512 as amended by Title II of the Digital Millennium Copyright Act (the "Act"), reserves the right, but not the obligation, to terminate your license to use the Site if it determines in its sole and absolute discretion that you are involved in infringing activity, including allege acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing. NBCTD accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials. In addition, pursuant to 17 U.S.C. Section 512 (c), NBCTD has implemented procedures for receiving written notification of claimed infringements and for processing such claims in accordance with the Act. All claims of infringement must be submitted to NBCTD in a written complaint that complies with the requirements below and delivered to our designated agent to receive notification of claimed infringement by mail:
Gillian M. Lusins
NBC Law Department
30 Rockefeller Plaza, RM. 1081E
New York, NY 10009
Email: dmca.agent@nbcuni.com
In addition, any written notice regarding any defamatory or infringing activity, whether of a copyright, patent, trademark or other proprietary right must include the following information:
A. A physical or electronic signature of a person authorized to act on behalf of (1) the owner of an exclusive right that is allegedly infringed or (2) the person defamed.
B. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. Similarly, for materials that are defamatory or infringe patent, trademark, or other proprietary rights of a third party, please submit a list of such materials.
C. Identification of the material that is claimed to be infringing, to be the subject of infringing activity, or that is claimed to be defamatory and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
D. Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and/ or e-mail address.
E. A statement that you have a good faith belief that use of the material, in the manner complained, of is not authorized by the copyright or other proprietary right owner, its agent, or the law.
F. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed or on behalf of the person defamed.
Governance
This agreement shall be governed by, construed and enforced in accordance with the laws of the State of New York, as it is applied to agreements entered into and to be performed entirely with such state. Any action you, any third party or NBCTD bring to enforce this agreement or, in connection with, any matters related to this Site shall be brought only in either the state or Federal Courts located in New York County, New York and you expressly consent to the jurisdiction of said courts. If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions. This agreement and any posted operating rules constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all prior or contemporaneous communications and proposals, whether oral or written, between the parties with respect to such subject matter.
TERMS OF SUBMISSIONS
The Kelly Clarkson Show (the "Show") may give you the opportunity to submit your own video, photograph, musical composition, tweet, post, comment and/or any other form of original content (the "Submission"). Your Submission should be original and not infringe on any third party rights, including without limitation, copyright, trademark, or patent, or create claims for idea misappropriation or breach of contract. You must have the permission of any person who appears in your Submission or who you identify or otherwise refer to in your Submission. In order to participate, you must be eighteen (18) years old. If you are under the age of eighteen (18) years old, you must obtain prior permission from your parent or legal guardian before submitting your Submission. If you are submitting a photo and/or video of a minor, you must be the parent or legal guardian of any minor who appears in your Submission.
You understand that although you may believe your Submission to be unique and novel, there may be pre-existing ideas, concepts, or proposals that are similar to your Submission. By submitting your Submission, you recognize that other persons, including NBCU's own employees, may have submitted to NBCU or others, or made public, or may in the future originate and submit or make public, similar or identical ideas, concepts, or proposals that NBCU may have the right to use, and you understand that you will not be entitled to any compensation because of NBCU's use of such similar or identical ideas, concepts, or proposals in any manner. You understand and agree that NBCU's use of material containing features or elements similar or identical to those contained in your Submission will not obligate NBCU to negotiate with you or entitle you to any compensation if NBCU determines that it has an independent legal right to use that other material for any reason (for example, because the features or elements are not new or novel, were not originated by you, or were or may hereafter be independently created and submitted by other persons, including your employees).
By submitting your Submission, you agree that your Submission may be broadcast on-air, on the Show's website located at KellyClarksonShow.com (the "Website"), and in promotion and advertising for the Show on-air and off-air and on the Website (together, the "Materials") and that NBCU may exploit your Submission and the Materials howsoever it chooses in any and all markets and media now known or hereafter devised, throughout the world in perpetuity, without additional notification, permission, approval, or compensation.
You grant NBCU and its licensees, successors and assigns the non-exclusive, royalty-free, and irrevocable rights to use, reproduce, copy, publish, display, distribute, perform, translate, adapt, modify, and otherwise exploit your Submission and to incorporate your Submission in other works in any and all markets and media, now known or hereafter devised, throughout the world in perpetuity, without additional notification, permission, approval, or compensation. You warrant that you have the sole and exclusive right to grant such rights to NBCU and that NBCU's reproduction, publishing, displaying, and/or other use of your Submission will not infringe on any rights of third parties, including, without limitation, copyright, trademark, patent, privacy, or publicity, or create claims for defamation, false light, idea misappropriation, intentional or negligent infliction of emotional distress, or breach of contract.
By submitting your Submission, you consent to the recording, use, and reuse by NBCU and its licensees, successors, and assigns of your social media user name, your and/or your child's voice, actions, likeness, name, appearance, biographical material, and any other identifying information, including without limitation, any information contained in your Submission or social media profile, as used, edited, altered, fictionalized, or modified by NBCU, in its sole discretion, in any and all markets and media, now known or hereafter devised, throughout the world in perpetuity, including, without limitation, in and in connection with NBCU, the Website, or related sites or services, in and in connection with any television programs and other productions, and in and in connection with advertising, promotion, and publicity. You acknowledge and agree that NBCU, its licensees, successors, and assigns will be entitled to retain any and all revenue generated from any sales, licenses, assignments, and other transfers of the rights granted by you hereunder, as well as any and all revenue generated by the display of any advertising, publicity, promotional materials, or distribution rights in connection with your Submission or the Materials. Nothing in these Terms of Submission obligates or may be deemed to obligate NBCU or any other person or entity to exercise any of the rights granted by you under these Terms of Submission. NBCU and its successors, licensees, and assigns, will have the unlimited right to assign these Terms of Submission and the rights granted by you under these Terms of Submission at any time, in whole or in part, to any party. Your Submission may not be identifiable. NBCU will have the right to make any changes to your Submission as it determines in its sole discretion. Your Submission should not contain material that is violent, pornographic, obscene, illegal, inappropriate, or racially or morally offensive. Your Submission must be your own original work. You agree that NBCU and its licensees, successors, and assigns shall have no obligation to give you credit for your Submission but in their sole discretion may elect to do so.
Your Submission will not be acknowledged or returned. You acknowledge and agree that you are sending your Submission voluntarily and not in confidence and that no confidential relationship is intended or created between NBCU and/or any other person or entity, on the one hand, and you, on the other hand, by your submission of your Submission. You understand that there will be no payment for your submission or the use of your Submission. You understand that no industry custom or practice applies to your agreement that you will not be paid for your Submission. You understand that if your Submission is selected for use, such use will not be considered an employment opportunity. If you do not want your Submission to be used and broadcast by NBCU, then please do not participate.
This Section is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and we agree that we intend that this Section 24 satisfies the “writing” requirement of the Federal Arbitration Act. If binding arbitration is adjudged by a tribunal to be unenforceable, the provisions of Section 25 shall apply to all relevant disputes between you and us.
We believe that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that you may have with us. Therefore, pursuant to these Terms, if you have any dispute or disagreement with us regarding (i) your use of or interaction with the NBCUniversal Services, (ii) any purchases or other transactions or relationships related to your use of the NBCUniversal Services, or (iii) any data or information you may provide to us or that we may gather in connection with such use, interaction or transaction (collectively, “NBCUniversal Transactions or Relationships”), you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the NBCUniversal Services, or engaging in any other NBCUniversal Transactions or Relationships with us, you agree to binding arbitration as provided below.
We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with us. If those efforts fail, by using the NBCUniversal Services, you agree that any complaint, dispute, or disagreement you may have against us, and any claim that we may have against you, arising out of, relating to, or connected in any way with these Terms or any NBCUniversal Transactions or Relationships shall be resolved exclusively by final, confidential and binding arbitration (“Arbitration”) before a single arbitrator administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances). If JAMS (or, if applicable, AAA) at the time the arbitration is filed has Minimum Standards of Procedural Fairness for Consumer Arbitrations in effect which would be applicable to the matter in dispute, we agrees to provide the benefit of such Minimum Standards to you to the extent they are more favorable than the comparable arbitration provisions set forth in this Section 24, provided, however, that in no event may such Minimum Standards contravene or restrict the application of subpart (e) or (i) below. Furthermore, this Section 24 shall not prevent any party from seeking provisional remedies (that is, a temporary restraining order or preliminary injunction) from a court of appropriate jurisdiction. You further agree that:
(a) Single Arbitrator. The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and us (the “Arbitrator”);
(b) Arbitrator Will Interpret This Agreement. The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms and/or these arbitration provisions in Section 24 hereof, including but not limited to any claim that all or any part of these Terms is void or voidable;
(c) Location of Arbitration. The Arbitration shall be held either: (i) at a location determined pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and us; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission.
(d) Governing Law. The Arbitrator (i) shall apply internal laws of the State of New York consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with New York or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;
(e) No Class Relief. The Arbitration can resolve only your and/or our individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;
(f) Written Award. The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;
(g) Arbitration Costs. In the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;
(h) Reasonable Attorney’s Fees. In the event you recover an Award greater than our last written settlement offer, the Arbitrator shall also have the right to include in the Award our reimbursement of your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but we shall in all events bear our own attorneys’ fees; and
(i) Interpretation and Enforcement of Arbitration Clause. With the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitrate any dispute between us and you, and must instead bring any claims subject to subsection (k) below and Section 25.
(j) Modification of Arbitration Clause With Notice. We may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after we have given notice of such modifications and only on a prospective basis for claims arising from NBCUniversal Transactions and Relationships occurring after the effective date of such notification. If any modification pursuant to this subpart (j) is deemed to be invalid, unenforceable, or illegal, then the arbitration provisions effective at the time of your agreement to these Terms shall govern any dispute or disagreement between you and us regarding NBCUniversal Transactions or Relationships.
(k) Small Claims Matters are Excluded. No Class Relief or Joinder of Claims. Notwithstanding the foregoing arbitration provisions, and subject to Section 18, at your option, you may bring any claim for damages you have against us in your local small claims court within the U.S., if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.
(l) Confidentiality of Arbitration. You and we agree to maintain the confidential nature of the Arbitration and shall not disclose the fact of the Arbitration, any documents exchanged as part of any mediation, proceedings of the Arbitration, the Arbitrator’s decision and the existence or amount of any Award, except as may be necessary to prepare for or conduct the Arbitration (in which case anyone becoming privy to such confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or court order.
25. Dispute Resolution Only if a Tribunal has Ruled that Arbitration is Prohibited by Law
This Section 25 applies only where applicable law, as determined by a court with appropriate jurisdiction, prohibits arbitration of disputes in accordance with Section 24.
(a) Section 25 disputes. If any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the NBCUniversal Services, the Content, these Terms or to any of our actual or alleged intellectual property rights (collectively, a “Section 25 Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Section 25 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 25(a). Your notice to us must be sent to:
By mail:
NBCUniversal Media, LLC
NBC Universal Law Department
30 Rockefeller Plaza, Rm. 1087E
New York, New York 10112
By e-mail: dmca.agent@nbcuni.com
For a period of sixty (60) days from the date of receipt of notice from the other party, we and you will engage in a dialogue in order to attempt to resolve the Section 25 Dispute, though nothing will require either you or us to resolve the Section 25 Dispute on terms with respect to which you and us, in each of our sole discretion, are not comfortable.
(b) Jurisdiction. The parties agree that the state or federal courts in New York shall have non-exclusive jurisdiction of any Section 25 Dispute.
(c) Governing Law. To the maximum extent permitted by the mandatory laws in your country of residence, these Terms and any Section 25 Dispute arising out of or in connection with these Terms or their subject matter or formation (including non-contractual disputes), will be governed by, and construed in accordance with, the laws of the U.S. and the State of New York without regard to its conflicts of law provisions.
(d) Injunctive Relief. The foregoing provisions of this Section 25 will not apply to any legal action taken by us 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 NBCUniversal Services, any Content, your User Content and/or our intellectual property rights (including such as we may claim may be in dispute), our operations, and/or our products or services.
26. Notice for California Users
Under California Civil Code Section 1789.3, California users of the NBCUniversal Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
27. Terms Applicable to Third Party Platform Providers
If you access or download the NBCUniversal Services via an Apple, Inc. (“Apple”), Amazon.com, Inc., Google, Inc., Microsoft Corporation, Samsung Electronics America, Inc. (“Samsung”) or any other third party app store or platform (each a “Third Party Platform Provider”),such Third Party Platform Providers, shall be third-party beneficiaries to these Terms. However, these Third Party Platform Providers are not party to these Terms and have no obligation to provide maintenance and/or support of the NBCUniversal Services. NBCUniversal, not such Third Party Platform Providers, are solely responsible for the NBCUniversal Services. Your access to the NBCUniversal Services using the Third Party Platform Providers’ app stores or platforms are subject to the usage terms set forth in the applicable Third Party Platform Provider’s terms of service.
In the case of any NBCUniversal applications accessed or downloaded via the Apple app store or platform, if such application fails to conform to any applicable warranty in these Terms, then you may notify Apple and Apple will refund to you the purchase price (if any) of the application. NBCUniversal, not Apple, is responsible for addressing any claims you or a third party may have relating to such application, or your possession and/or use of such application, including, but not limited to: (a) product liability claims; (b) any claims that such application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. In the event of any third party claim that such application, or your possession and use of such application, infringes that third party’s intellectual property rights, NBCUniversal, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
In the case of any NBCUniversal applications accessed or downloaded via the Samsung app store or platform, if you wish to assert a claim against Samsung in connection with a NBCUniversal application, such claim must be brought by you as an individual and not as a member of a class.
28. General
(a) Applicable law. These Terms, any Additional Terms and the relationship between you and us shall be governed by the laws of the U.S. and the State of New York without regard to its conflicts of law provisions. The Convention on Contracts for the International Sale of Goods does not apply to your access or use of the NBCUniversal Services or these Terms.
(b) Venue. Subject to the arbitration provisions above, and other than small claims actions as permitted therein, any action or proceeding arising from, relating to or in connection with these Terms will be brought exclusively in the federal or state courts located in New York, New York, and you irrevocably consent to the personal jurisdiction of such courts and agree that it is a convenient forum and that you will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise.
(c) No Waiver. No failure or delay by us in exercising any right, power or privilege under these Terms will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under these Terms.
(d) Severability. Unless otherwise expressly provided herein, the invalidity or unenforceability of any provision of these Terms will not affect the validity or enforceability of any other provision, all of which will remain in full force and effect.
(e) Limited Time to File Claims. You agree that regardless of any statute or law which establishes a different statute of limitations, to the maximum extent permitted under applicable law, any claim or cause of action (including any arbitration) arising out of, related to or connected with the use of the NBCUniversal Services, or these Terms, or other NBCUniversal Transactions or Relationships must be filed within one (1) year after such claim or cause of action arose or be forever barred.
(f) Paragraph and Section Titles are For Your Convenience. The paragraph or section titles in these Terms are for convenience only and have no legal or contractual effect.
(g) This is the Entire Agreement. These Terms represent the entire understanding of the parties regarding its subject matter, and supersede all prior and contemporaneous agreements and understandings between the parties regarding its subject matter, and may not be amended, altered or waived except in writing by the party to be charged.
(h) Assignment. These Terms are binding upon and shall ensure to the benefit of parties and their respective successors, heirs, executor, administrators, personal representatives and assigns. You shall not assign your rights or obligations hereunder without our prior written consent and any such assignment shall be void and invalid at the outset.
To the extent that the Website's Terms and Conditions of Use and Terms of Submission (together, the "Website Terms"), are not in conflict with these Terms, the Website Terms apply. These Terms shall be subject to and governed by the laws of the State of New York, excluding its conflicts of law rules. You agree to ARBITRATE ANY DISPUTES WITH THE ADMINISTRATORS and to WAIVE JURY TRIAL and CLASS ACTIONS as more fully set forth in the Website Terms.