Up Here Radio Services Terms of Use

Last Updated: October 17th 2017

Thank you for choosing to become a subscriber (“Subscriber”). This customer agreement (“Agreement”) between you and Up Here Radio (“the Company,” “us” or “we”) applies to your paid, trial or other subscription ("Subscription") to the internet radio service ("Internet Radio Service"), any software or applications, and the web site (“Site”) available to Subscribers and others at www.uphereradio.com. The Internet Radio Service and any other programming or data for radio, online, portable, wireless, or mobile, will be collectively referred to here as the "Service."

PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SITE, MOBILE APPLICATION(S), OR THE SERVICE. BY ACCESSING OR USING THE SITE OR THE SERVICE, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. PLEASE DO NOT USE THE SITE OR THE SERVICE IF YOU DO NOT AGREE WITH THIS AGREEMENT.

IF YOU DO NOT ACCEPT THESE TERMS, PLEASE NOTIFY US IMMEDIATELY AND WE WILL CANCEL YOUR SUBSCRIPTION. IF YOU DO NOT CANCEL YOUR SUBSCRIPTION WITHIN THREE BUSINESS DAYS OF THE START OF YOUR PLAN, IT WILL MEAN THAT YOU AGREE TO THIS AGREEMENT WHICH WILL BE LEGALLY BINDING ON YOU.

Our Privacy Policy governs the treatment by us of both anonymous and personally identifiable information that we collect when you use the Site or the Service and when you provide information to us in any medium for the Service, or any other services we may offer. Be sure to ready our Privacy Policy which is found at www.uphereradio.com/privacy_policy.

A. SUBSCRIPTION:

1. Paid Subscription Service: Up Here Radio is a monthly Paid Subscription Service. Before you register for a Paid Subscription Service, Up Here Radio will provide notice of any charges.  By registering for a Paid Subscription Service (which includes “Direct Purchases” and “In-App Purchases,” as defined below), you agree to pay all fees and charges associated with the Paid Subscription Service on a timely basis and are responsible for any charges incurred by your account. All payments must be made in U.S. Dollars.  You warrant that the Stripe or credit card information that you provide is correct and is your account.  We are not liable for any loss that you may incur as a result of someone else using your password or account, whether with or without your knowledge.

By registering for a Paid Subscription Service and providing your Stripe or credit card information, you authorize us (in the case of a Direct Purchase) or the App Store Provider (in the case of an In-App Purchase) to charge your credit card for the Paid Subscription Service fee at the then-current rate and any additional charges (including late charges and applicable federal, state, or local taxes).

If you make an in-app purchase of the Paid Subscription Service (an “In-App Purchase”) via the applicable app store provider (e.g., Apple App Store, Google Play, etc.) (an “App Store Provider”), then the App Store Provider will charge your account the applicable fees or charges.  Billing for In-App Purchases will be handled by the App Store Provider, according to their terms.

If you purchase a Paid Subscription Service directly from us (a “Direct Purchase”), we may use a third party that is not affiliated with us to process your payments as merchant of record (“Processor”).  You agree that this Processor is solely responsible for controlling, handling and processing your payments.  For a monthly paid subscription, you will be billed one day after each month on the calendar day that corresponds with the commencement of your subscription.  If your payment date falls on a date that does not exist in that month (e.g., the 31st day of a month), we will bill your Stripe account or credit card on the last day of the applicable month.  However, you acknowledge that we reserve the right to change our billing methods effective upon notice to you.  You may visit your Stripe account to update your payment or credit card information, and you agree to maintain a valid credit card during the subscription term.  You are liable for any amounts that are unsettled and overdue.  We may deactivate your subscription account without notice if your payment is past due.  Any current or delinquent payments are due in full within thirty (30) days of the termination or cancellation of a Direct Purchase Paid Subscription Service.

2. Paid Subscription Service—Free Trial: Up Here Radio may offer a free trial subscription for a specified free trial period without payment (a “Free Trial”).  To initiate the Free Trial, you will be required to provide your Stripe or credit card information, and you must cancel your subscription before the end of the Free Trial to avoid incurring any charges. 

Free Trials are limited to a single Paid Subscription Service, and you may not obtain more than a single Free Trial using the same Stripe account or credit card. If you have previously used the same Stripe account or credit card to obtain a Free Trial, then that card will immediately be charged applicable fee upon registration. Up Here Radio may, at its sole discretion and to the fullest extent permitted by law, revoke or alter a Free Trial without notice to you and at any time.

Upon expiration of your Free Trial, unless you cancel the Paid Subscription Service for which you registered, you acknowledge that you will be automatically enrolled in the Paid Subscription Service you selected during registration and your Stripe account or credit card will automatically be charged the applicable fees (including applicable federal, state, or local taxes) for that Paid Subscription Service.

3. Paid Subscription Service—Automatic Renewal: Your Paid Subscription Service will automatically renew unless you cancel your subscription before the end of your current subscription term.  Cancellation will be effective the day after the end of your current subscription term.  Your failure to cancel your subscription during the current term will result in the renewal of your subscription at the then-current subscription rate and for the same term as your current subscription (e.g., monthly, quarterly, yearly).  The cancellation of a Paid Subscription Service will deactivate your account and you will not be able to access the service.

4. Paid Subscription Service—Subscription Rate Changes: We may change the subscription rate from time to time.  If we do, we will provide you advance notice of any change in the subscription rate.  If you do not agree with the new subscription rate, you may cancel your subscription prior to the new subscription rate taking effect.  If you continue to use the Paid Subscription Service after the subscription rate has gone into effect, this will constitute your acceptance of the new rate, and you will be charged the new rate until you cancel or the rate changes.

5. Paid Subscription Service—Data: As part of your purchase of a Paid Subscription Service, data collected through the registration and payment process may be shared with our applicable payment service provider.  If you purchase the Paid Subscription Service online, such information will be shared with Processor.  If you make an in-app purchase of the Paid Subscription Service, such information will be shared with the applicable app store provider (e.g., Apple App Store, Google Play, etc.).  Your data will be handled in accordance with our Privacy Policy (https://uphereradio.com/privacy_policy).

6. Paid Subscription Service—Member Account and Password: You are responsible for any membership account details, including but not limited to, the name and password that is associated with your account during registration.  If the Paid Subscription Service does not recognize your device from a previous sign-in, you will be asked for information that will help us to identify your registration.  It is your responsibility to maintain the confidentiality of your password, if one is established.  You are entirely responsible for any and all activities that occur under your account, and agree to notify us immediately of any unauthorized use of your account. 

7. Paid Subscription Service - Account Ownership: Accounts or subscriptions are non-transferable.

B. CHANGES IN TERMS AND SERVICE:

1. Changes To Terms: WE RESERVE THE RIGHT TO CHANGE THE TERMS OF THIS AGREEMENT AT ANY TIME. ANY CHANGES WILL BE EFFECTIVE UPON POSTING OF THE REVISIONS ON THE SITE REFLECTING THE NEW EFFECTIVE DATE. YOUR CONTINUED USE OF THE SERVICE FOLLOWING THE POSTING OF THE CHANGES ONLINE WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. YOU SHOULD FREQUENTLY REVIEW THE AGREEMENT (INCLUDING THE EFFECTIVE DATE) AND APPLICABLE POLICIES FROM TIME TO TIME TO UNDERSTAND THE TERMS THAT APPLY TO YOUR USE OF THE SERVICE AND/OR USE OF THE SITE.

If we make any material changes to this Agreement that, in our sole judgment, would have an adverse effect on your use of the Service, we will either post a notice on the Site that this Agreement has changed and the effective date of such change, provide you a notice describing such changes and their effective date, or send you the revised Agreement. In the event of any potential conflict between this Agreement and the terms of any offer for the Service, this Agreement will govern.

2. Change To Programming: The Service consists of a variety of music, interviews, teaching, and entertainment programming. We reserve the right to change, rearrange, add, or delete programming, including canceling, moving or adding particular channels, at any time, with or without notice to you and in our sole and absolute discretion. Your continued use of the Service following any programming changes will constitute your acceptance of such changes.

C. USE OF SERVICE:

1. Eligibility For Use of Service: You must be at least 18 years old, or the age of majority, as determined by the laws of your country of residency, to assume the obligations set forth in this Agreement.

2. Internet Radio Service: After subscribing to Up Here Radio, you may log in and listen to the Internet Radio Service on up to three (3) Internet enabled devices at one time. You should not provide your username and password to anyone, and you have the obligation to protect your username and password from unauthorized use. You will not be able to access the Internet Radio Service unless your account for your Subscription is in good standing and you are in compliance with this Agreement.

We do not make or install any of the physical equipment, computers, mobile phones, tablets, Internet connectivity or web browser software or other hardware or software you may need to use to receive the Internet Radio Service (“Web Devices”). The Internet Radio 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 with your web browser, computer, home wiring or network, or Internet service provider and/or other things that we cannot or do not control.

You must have a mobile communications subscription with a participating carrier or otherwise have access to a mobile communications network or internet service as well as any carrier services necessary to download content, and pay any service fees associated with any such access. We provide only the Internet Radio Service. You must purchase your computer, tablet, mobile device, smartphone, alternate Web Device, modem or router, and Internet service and/or any other appropriate hardware and/or software, from appropriate sellers, resellers, manufacturers or service providers. We are not responsible for and do not warrant any Web Devices 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 Web Device, you should direct them to the applicable seller, reseller, manufacturer, or service provider.

The Internet Radio Service functions best when streamed over a broadband connection. We do not guarantee continuous, uninterrupted or secure access to the Internet Radio Service and are not responsible for any noise and/or interruptions that occur.

3. Personal Use of the Service: The Service is provided only for your personal, non-commercial enjoyment. You may not make commercial use of, reproduce, rebroadcast, or otherwise transmit our programming, or record, charge admission for listening to, or distribute play lists of our programming. Neither the Internet Radio Service nor any Recorded Content (defined below) is intended for commercial use. We, or any of our programming providers, may prosecute violations of the foregoing against you and other responsible parties in any court of competent jurisdiction. You assume all responsibility for use of the Site. You agree that any person using your identification issued for the Site will be treated by us as having been authorized by you to access your information as contained on the Site, and take any other actions on your behalf. You will indemnify and hold harmless the Company and its affiliates from all damages, costs, expenses, liabilities and claims incurred by them arising out of any action taken by any person or entity using your username/password on the Site. You also waive all claims against the Company and its affiliates that may arise from the utilization of the Site. At the end of each online session you should completely log out of the Internet Radio Service. Should your login ID or username/password be lost, stolen, sold, transferred or otherwise removed from your possession without your permission, contact us immediately so that your personal identifiers may be deactivated and reissued. You also may not attempt to override or circumvent any of our usage rules, limitations, or security measures embedded into the Service or any Receiver.

4. Service Interruptions: The Service may be unavailable or interrupted from time to time for a variety of reasons, such as environmental or topographic conditions, internet connectivity, many of which we cannot control. The 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. We are not responsible for any noise and/or interruptions of the Service.

5. Service Cancellation: We reserve the right to cancel your Subscription at any time if you fail to pay amounts owing to us when due, violate or breach any of this Agreement, or for any other reason at our sole discretion. If your Subscription is cancelled, you will still be responsible for payment of all outstanding balances accrued through the cancellation date, including any fees described herein.

6. Advisory Nature of Services; User Responsibility; User Safety/Reliance; Parental Control: It is your responsibility to exercise prudent discretion and observe all safety measures required by law and your own common sense in using the Service. All actions and judgments taken with respect to the Service are your sole responsibility. You assume the entire risk related to your use of the Service.

It is your responsibility to impose listening restrictions that you consider appropriate on your family members and guests. We are not responsible for content that you or anyone else may find inappropriate.

7. Interactive Services: You acknowledge and agree that (a) we are not responsible for material submitted to us or posted to the Site by users (“user content”); (b) we have no obligation to pre-screen, monitor, review or edit any user content; (c) we, or our designees, have the right (but not the obligation) in our sole discretion to refuse or remove any user content that, in our judgment, does not comply with this Agreement or is otherwise undesirable, inappropriate or inaccurate; (d) user content you view, submit or post is at your own discretion and risk, including any reliance on the accuracy, completeness, or usefulness of such user content; (e) user content does not necessarily reflect the views of the Company or its affiliates; and (f) we may preserve user content and may disclose user content if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any user content violates the rights of third-parties; or (iv) protect the rights, property, or personal safety of the Company or its affiliates, its users or the public.

You agree not to post user content which is harassing, abusive, vulgar, hateful, defamatory, sexually explicit, inflammatory, profane, racially or ethnically objectionable, political, or that encourages inappropriate or unlawful conduct or imposes an unreasonable or disproportionately large load on the Site or otherwise interferes with the Site or infringes the rights of any third party. We may, at our sole and absolute discretion, immediately terminate your access to the Site should your conduct fail to conform with this Agreement. We do not solicit nor do we wish to receive any confidential, secret or proprietary information or other material through the Site or mail, or in any other way. Any user content posted on the Site or material submitted or sent to the Company or its affiliates will be deemed not to be confidential or secret. By posting user content, or sending any other material to us (“Material”), you represent and warrant that the Material is original to you and that no other party has any rights to the Material and you grant the Company and its affiliates the royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Material (in whole or part), including any information, suggestions, ideas, drawings or concepts contained in such material, worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed. You are and will remain responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of such material.

D. EQUIPMENT TECHNOLOGY:

1. Technology: You agree not to copy, decompile, disassemble, reverse engineer, make derivative works of, or manipulate any technology or data or content stored or incorporated in any Up Here Radio applications, website, or other technology used to receive the Service (collectively, “Equipment Technology”), or otherwise modify or tamper with, any such equipment or technology. 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 Site or the Internet Radio Service.

Furthermore, content on the Service 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). The user of software contained in the Equipment Technology or the Site 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.

2. Content: All music, programming, text, software (including source and object codes), data, information, visual, oral or other digital material, and all other content of any description available on the Site or included in the Service and/or in the Equipment Technology (collectively, the "Content"), and all worldwide copyrights, trademarks, service marks, patents, patent registration rights, trade secrets, know-how, database rights and all other rights in or relating to the Content (collectively, the "Intellectual Property") are owned by the Company or are the property of our licensors and suppliers who have given us permission to use it. Neither your access to and use of the Service nor does this Agreement grant you any right, title or interest or license in or to any such Content, and you may not use such Content without the express written permission of the owner(s). You may not reproduce, perform, distribute, display or create derivative works from the Content. You may only use the Content and the Intellectual Property, access the Site and use any the Services we provide as expressly permitted in this Agreement and for no other purpose.

3. Trademarks: Up Here Radio and the Up Here Radio logo are trademarks, service marks or registered marks of Up Here Radio ("Marks"). Other trademarks, service marks, graphics, logos and domain names appearing on the Service or the Site may be the trademarks of third parties. Neither your access to and use of the Service or the Site nor does this Agreement grant you any right, title or interest or license to reproduce or otherwise use the Marks or any third-party trademarks, service marks, graphics, logos or domain names. Any goodwill in the Marks generated as a result of your use of the Service will inure to our benefit. You shall not at any time, nor shall you assist others to, challenge our right, title, or interest in or to, or the validity of, the Marks or any other intellectual property rights of ours.

4. Copyright: If you are authorized to act on behalf of a copyright owner, and any material on the Site infringes on the rights of the owner, please notify us via mail at Up Here Radio Attention: Copyright Department 22 Kilsby Place Levin, Horowhenua 5510 New Zealand.

To be effective, your notification must provide us with information that meets the requirements of the New Zealand Copyright Act, which are summarized as follows:

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

• A detailed identification of the copyrighted work or works claimed to have been infringed;

• Information sufficient to permit us to locate the allegedly infringing material;

• Information sufficient to permit us to contact you, such as an address, telephone number or email address;

• A statement that you have a good faith belief that the use of the allegedly infringing material in the manner complained of is not authorized by the copyright owner, its agent or the law;

• Your sworn statement that the information in your notification is accurate; and

• Your sworn statement that you are authorized to act on behalf of the copyright owner of the allegedly infringing material.

5. Internet Radio: You may not rebroadcast the Internet Radio Service in any way. You may play the Internet Radio Service through speakers or headphones for your personal listening pleasure. You may not make any recordings of, or otherwise duplicate, the content provided by the Internet Radio Service. In addition, you may not re-transmit or otherwise distribute the content provided by the Internet Radio Service in any way, including online streaming such content or making such content available for download. You may not re-skin, re-package, decompile, reverse engineer, or disassemble the Internet Radio Service, or construct a media player or interface that accesses the Internet Radio Service. In addition, your use of any products or services that access the Internet Radio Service and which are provided by third parties not authorized by us constitutes a violation of this Agreement, even if you did not create such product or services and/or do not understand how they were created.

E. DISCLAIMERS/LIMITATION OF LIABILITY:

1. Disclaimers: YOU UNDERSTAND AND AGREE THAT THE SITE AND THE CONTENT AND FUNCTIONALITY OF THE SERVICE, INCLUDING PROGRAMMING AND ON-AIR ADVERTISING, ARE PROVIDED "AS IS" AND "AS AVAILABLE." THE COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, REGARDING THE SERVICE, THE RELIABILITY, PREDICTIVE VALUE, COMPLETENESS, TIMELINESS, RELIABILITY, OR ACCURACY OF THE INFORMATION OR CONTENT CONTAINED WITHIN THE SERVICE, YOUR RECEIVER OR OTHER EQUIPMENT, OUR TRANSMISSION, YOUR RECEPTION, OR THAT YOUR ACCESS TO OR YOUR USE OF THE SERVICE OR THE SITE WILL BE UNINTERRUPTED, ERROR FREE OR TIMELY WITH ALL UPDATES. ALL SUCH WARRANTIES (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT) ARE HEREBY DISCLAIMED.

YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES SHOULD A USER OF THE SERVICE MAKE DECISIONS BASED SOLELY OR IN PART ON NEWS, MUSIC, TALK RADIO, INTERVIEWS, OR OTHER INFORMATION OR CONTENT CONTAINED WITHIN THE SERVICE. NEITHER THE COMPANY, OR ITS AFFILIATES ASSUME ANY RESPONSIBILITY FOR ACCIDENTS, INJURY, DEATH, DAMAGES OR OTHER LOSSES RESULTING FROM OR ASSOCIATED WITH USE AND/OR MISUSE OF THE SERVICE OR THE INFORMATION OR CONTENT ACCESSED THROUGH THE SERVICE.

2. Limitations of Liability: IN NO EVENT ARE THE COMPANY, OR ITS AFFILIATES, LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, OR LOSSES RELATING TO THE USE, LOSS OF USE OR DATA, OR PURCHASE OF ANY RECEIVER OR EQUIPMENT, OR YOUR PURCHASE OR USE OF THE SERVICE, OR FROM ANY CONTENT POSTED ON THE SITE BY US OR ANYONE ELSE, WHETHER BASED ON NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF, WHETHER ARISING OUT OF BREACH OF THIS AGREEMENT, TORT OR ANY OTHER CAUSE OF ACTION RELATING TO THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT.

IN NO EVENT WILL THE AGGREGATE OF EACH OF THE COMPANY, ITS AFFILIATES LIABILITY FOR ANY AND ALL OF YOUR CLAIMS, OR ANY THIRD PARTY CLAIMS, AGAINST US AND OUR PROGRAMMING OR DATA SUPPLIERS, SERVICE PROVIDERS, MARKETING/DISTRIBUTION SOFTWARE OR INTERNET SUPPLIERS OR HARDWARE OR SOFTWARE MANUFACTURERS, OR SUPPLIERS, CONTRACTORS AND LICENSORS, OR INDEPENDENT SELLERS, ARISING OUT OF OR RELATED TO, DIRECTLY OR INDIRECTLY, THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS PURSUANT TO THIS AGREEMENT OR BY THE NEGLIGENCE, ACTIVE OR PASSIVE, OF THE COMPANY, OR ITS AFFILIATES, OR YOUR ACCESS TO OR USE OF OR INABILITY TO USE THE SERVICE OR SITE, EXCEED THE PRICE PAID BY YOU TO THE COMPANY HEREUNDER FOR THE MOST RECENT SIX MONTHS OF SERVICE IMMEDIATELY PRIOR TO THE SPECIFIC EVENT WHICH GAVE RISE TO THE APPLICABLE DAMAGE OR LOSS. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. THIS ALLOCATION OF RISK AND THE DISCLAIMER OF WARRANTIES HEREIN ARE REFLECTED IN OUR PRICES AND ARE A FUNDAMENTAL ELEMENT OF THIS AGREEMENT. YOU MAY HAVE GREATER RIGHTS THAN DESCRIBED ABOVE UNDER YOUR COUNTRY LAWS.

3. Your Risk: YOU AGREE THAT YOUR ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE THE SERVICE OR THE SITE IS AT YOUR SOLE RISK. YOU WILL NOT HOLD US, OUR PROGRAMMING OR DATA SUPPLIERS, SERVICE PROVIDERS, MARKETING/DISTRIBUTION, SOFTWARE OR INTERNET SUPPLIERS, OR HARDWARE OR SOFTWARE MANUFACTURERS, OR SUPPLIERS, OR OUR CONTRACTORS OR LICENSORS, AS APPLICABLE, RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR LOST PROFITS RESULTING FROM YOUR ACCESS TO OR USE OF, OR INTERRUPTIONS IN THE TRANSMISSION OR RECEPTION OF THE SERVICE OR SITE, INCLUDING ANY DAMAGE TO ANY OF YOUR COMPUTERS, PERSONAL ELECTRONIC DEVICES, OR DATA, AND/OR ANY RECEIVER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY OR GUARANTEE IN ANY WAY WHATSOEVER RELATING TO THE SERVICE OR SITE.

4. Third Parties: THE THIRD PARTY LINKS, SERVICES, GOODS, RESOURCES AND CONTENT AVAILABLE ON THE SERVICE AND THROUGH LINKS ON THE SITE ARE NOT CONTROLLED BY US. ACCORDINGLY, WE MAKE NO WARRANTIES OR ENDORSEMENT REGARDING SUCH THIRD-PARTY SERVICES, GOODS, RESOURCES, AND CONTENT, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. WE WILL NOT BE LIABLE FOR YOUR ACCESS TO, USE OF OR DOWNLOADING OF CONTENT AVAILABLE ON OR THROUGH, THE SERVICE OR THE SITE. WE ARE NOT LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES OR LOSSES CAUSED BY YOUR USE OF THIRD-PARTY WEBSITES. YOU ASSUME FULL RESPONSIBILITY AND SUBJECT TO THE TERMS OF USE OF THE THIRD PARTY SITE WHEN YOU CHOOSE TO FOLLOW ANY LINKS ON THE SITE THAT LEAD TO THIRD-PARTY WEBSITES.

5. Miscellaneous: UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. OUR LICENSORS AND CONTRACTORS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS.

6. Indemnification: EXCEPT FOR WILLFUL MISCONDUCT ON THE PART OF THE COMPANY OR ITS AFFILIATES, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS UP HERE RADIO, ITS AFFILIATES, SUBSIDIARIES, SHAREHOLDERS, OFFICERS, AGENTS, EMPLOYEES, LICENSORS AND SERVICE PROVIDERS (“INDEMNIFIED PARTIES”) FROM ANY AND ALL CLAIMS, LIABILITY AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES), WHETHER IN TORT, CONTRACT OR OTHERWISE, RELATING TO OR ARISING OUT OF YOUR USE OF THE SERVICE AND ANY BREACH OF THIS AGREEMENT, APPLICABLE LAW OR ANY RIGHT OF THE INDEMNIFIED PARTIES OR ANY THIRD PARTY. THIS INDEMNIFICATION OBLIGATION INCLUDES THE ACTS OR OMISSIONS OF ANYONE ACCESSING THE SERVICE USING YOUR LOGIN ID, WITH OR WITHOUT YOUR PERMISSION.

F. User Code of Conduct

In accessing and using this Up Here Radio Site and/or the Up Here Radio Services, you agree that you will not:

  • Deliver any unsolicited advertisement, promotional materials, junk email, bulk email (also known as “spam”), chain letters, surveys or contests, or solicit participation in any pyramid schemes (unless it is on a page that explicitly states that such postings are allowed on that page).
  • Deliver any unlawful (according to local, state, federal, or international law or regulation) postings to or through this Up Here Radio Site, or any postings which advocate illegal activity.
  • Deliver, or provide links to, any postings containing material that could be considered harmful, obscene, pornographic, indecent, lewd, violent, abusive, profane, insulting, threatening, harassing, hateful or otherwise objectionable.
  • Deliver, or provide links to, any postings containing material that harasses, victimizes, degrades, or intimidates an individual or group of individuals on the basis of religion, race, ethnicity, sexual orientation, gender, age, or disability.
  • Deliver, or provide links to, any postings containing defamatory, false or libelous material.
  • Deliver any posting that infringes or violates any intellectual property or other right of any entity or person, including, without limitation, copyrights, patents, trademarks, laws governing trade secrets, rights to privacy, or publicity.
  • Deliver any posting to that you do not have a right to make available under law or contractual or fiduciary relationships.
  • Impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity, or adopt a false identity if the purpose of doing so is to mislead, deceive, or defraud another.
  • Manipulate identifiers, including by forging headers, in order to disguise the origin of any posting that you deliver.
  • Deliver any posting containing personal information, such as phone numbers, social security numbers, account numbers, addresses or employer references.

Use this Up Here Radio service in any manner which could damage, disable, overburden, or impair or otherwise interfere with the use of this Up Here Radio Site or other users’ Devices, or cause damage, disruption or limit the functioning of any software, hardware, or telecommunications equipment.

Attempt to gain unauthorized access to this Up Here Radio Site, any related website, other accounts, computer system, or networks connected to this Up Here Radio Site, through hacking, password mining, or any other means.

Obtain or attempt to obtain any materials or information through any means not intentionally made available through this Up Here Radio Site, including harvesting or otherwise collecting information about others such as email addresses.

G. International Use/Export Controls

Accessing materials on this Up Here Radio Site by certain persons in certain countries may not be lawful, and Up Here Radio makes no representation that materials on this Up Here Radio Site are appropriate or available for use in locations outside New Zealand. If you choose to access this Up Here Radio Site from outside New Zealand, you do so at your own risk and initiative, and are responsible for compliance with any applicable local laws.

New Zealand controls the export of any software downloadable from this Up Here Radio Site. No software or any other materials associated with this Up Here Radio Site may be downloaded or otherwise exported or re-exported to countries or persons prohibited under export control laws. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of any such materials. By using and/or downloading any such materials from a Up Here Radio Site, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country to which such import, export, or re-export is prohibited or are not a person or entity to which such export is prohibited.

H. RESOLVING DISPUTES:

PLEASE READ THIS PROVISION OF THIS SECTION CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE RESOLVED BY BINDING ARBITRATION. BY AGREEING TO ARBITRATION, YOU ARE HEREBY WAIVING THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR, OR A PANEL OF ARBITRATORS, INSTEAD OF A JUDGE OR JURY. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE THEIR CASE, BUT THEY CHOOSE (BY THEIR ACCEPTANCE OF THIS AGREEMENT, IN ACCESSING OR USING THE SERVICE OR THE SITE) TO HAVE ANY DISPUTES RESOLVED THROUGH ARBITRATION.

In order to expedite and control the cost of disputes, you agree that any legal or equitable claim relating to the Service, the Site, or your Subscription or this Agreement (a "Claim"), will be resolved as follows:

1. Informal Claim Resolution: To initiate an informal resolution to a Claim, you must send a notice by mail to Up Here Radio, Attention: Listener Care 22 Kilsby Place Levin, Horowhenua 5510 New Zealand (a "Notice"). Neither of us may start a formal proceeding (except for Claims described in subsection 3 below) for at least sixty (60) days after one of us notifies the other of a Claim in writing. If we initiate a Claim, we will send our notice to the address on file with us.

2. Formal Resolution: If we cannot resolve a Claim informally, including any Claim between us, and any Claim by either of us against any agent, employee, successor, or assign of the other, including, to the full extent permitted by applicable law, third parties who are not party to this Agreement, whether related to this Agreement or otherwise, including past, present, and future Claims and disputes, and including any dispute as to the validity or applicability of this arbitration clause, then these Claims shall be resolved, upon election by either party, exclusively and finally by binding arbitration.

The party initiating arbitration must follow the rules and procedures of the New Zealand Arbitration Act 1996 in effect at the time the Claim is filed, and the parties agree that the arbitration shall be administered by the New Zealand International Arbitration Centre (“NZIAC”). You may obtain copies of the current rules, forms and instructions for initiating an arbitration by contacting:

NEW ZEALAND DISPUTE RESOLUTION CENTRE LIMITED

PO BOX 33297

 

Takapuna

 

 

Auckland
http://www.nzdrc.co.nz/

 

 

+64 9 486 7153

 

 

This arbitration agreement is made pursuant to a transaction involving domestic or international commerce and shall be governed by the New Zealand International Arbitration Centre (NZIAC), and not by any other country or state law concerning arbitration.

 

3. Cost Sharing. Whoever files the arbitration pays the initial filing fee. If we file, we pay; if you file, you pay, unless you get a fee waiver under the applicable arbitration rules. If you have paid the initial filing fee and you prevail, we will reimburse you for that fee. If there is a hearing, we will pay any fees of the arbitrator and arbitration firm for the first day of that hearing. All other fees will be allocated as provided by the rules of the arbitration firm and applicable law. We will advance or reimburse your fee if the arbitration firm or arbitrator determines there is good reason requiring us to do so, or if you ask us and we determine there is good reason for doing so. Each party will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.

4. Class Actions and Severability: If either party elects to resolve a claim by arbitration, that Claim shall be arbitrated on an individual basis. There shall be no right or authority for any claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other subscribers, or other persons similarly situated. No Claim submitted to arbitration is heard by a jury or may be brought as a private attorney general. You do not have the right to act as a class representative or participate as a member of a class of claimants with respect to any Claim submitted to arbitration (“Class Action Waiver”). The parties to this Agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from this agreement to arbitrate Claims. 'Claim' does not include any challenge to the validity and effect of the Class Action Waiver, which must be decided by a court. The parties acknowledge and agree that under no circumstances will a class action be arbitrated. If any portion of this arbitration agreement or the Class Action Waiver is limited, voided or cannot be enforced, then the parties' agreement to arbitrate (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver, that portion will be severed, and the rest of the arbitration agreement will continue to apply. If this entire agreement to arbitrate shall be null and void, then the parties agree that any actions shall be brought in the courts of New Zealand.

5. Binding Effect: In the arbitration proceeding, the arbitrator must follow applicable law, and any award may be challenged, as set forth in the NZIAC. Any court with jurisdiction may enter judgment upon the arbitrator’s award. The arbitrator's decision is final and binding on all parties and may be enforced in any international court with jurisdiction.

I. MISCELLANEOUS:

1. Notices: Notices to you will be deemed given when deposited in the mail or when sent by email. Notices may be included in statements or other communications 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 on an answering machine or voice mail system at your phone number on record with us. Your notices to us will be deemed given when we receive them at the telephone number or, in writing at the address, set forth above at “CONTACT INFORMATION.”

2. Assignment of Account: We may assign your account and all rights and/or obligations hereunder to any third party without notice for any purpose, including collection of unpaid amounts, in the event of an acquisition, corporate reorganization, merger or sale of substantially all of our assets to another entity. You hereby consent to such assignment.

3. Termination: We may terminate your right to use the Site at any time and without notice. We will terminate your right to use the Site if you violate this Agreement or any other policy posted on the Site.

4. Full Agreement: This Agreement constitutes the entire agreement between us concerning your access to and use of the Service or Site and may be modified by the unilateral amendment of this Agreement and the posting by us of such amended version. No salesperson or other representative is authorized to change it for you. 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 Agreement will remain enforceable. Any specific terms that expressly or by their nature survive termination shall continue thereafter until fully performed. A waiver of any terms or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.

5. Applicable Law: The interpretation and enforcement of this Agreement shall be governed by the rules and regulations of the country of New Zealand and the venue for all disputes or claims under this Agreement shall be the courts located in Auckland, New Zealand.

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