Effective date: October 24, 2023
These Terms & Conditions for Creators ("Terms") constitute a legal agreement between you, an individual ("you") and Playback, Inc. ("Playback," "we," or "us").
Playback provides an online platform through which Creators (defined below) can host Watch Parties (defined below) to watch live sports with an interactive user community (the “Services”). You desire to enter into these Terms for the purpose of participating in Playback’s program as a Creator to host Watch Parties on the Services and monetize via the Playback Partner Fund (the “Program”).
BY HOSTING WATCH PARTIES ON THE SERVICES, BY APPLYING FOR OR PARTICIPATING IN THE PROGRAM, OR BY CLICKING TO ACCEPT OR AGREE TO THESE TERMS WHEN THIS OPTION IS MADE AVAILABLE TO YOU, YOU AGREE TO BE BOUND BY THESE TERMS, WHICH INCLUDE THE PLAYBACK PRIVACY POLICY, PLAYBACK TERMS OF SERVICE, AND ALL OTHER POLICIES, RULES, GUIDELINES, TERMS AND CONDITIONS ESTABLISHED FOR THE SERVICES AS SET FORTH THEREIN (COLLECTIVELY "POLICIES"), WHICH ARE INCORPORATED HEREIN BY REFERENCE. THESE TERMS ESTABLISH A CONTRACTUAL RELATIONSHIP BETWEEN YOU AND PLAYBACK. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT APPLY FOR OR PARTICIPATE IN THE PROGRAM.
THESE TERMS EXPRESSLY SUPERSEDE PRIOR AGREEMENTS OR ARRANGEMENT WITH YOU REGARDING THE PROGRAM. WE RESERVE THE RIGHT TO MODIFY OR AMEND THESE TERMS FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED PARTICIPATING IN THE PROGRAM FOLLOWING THE POSTING OF CHANGES TO THESE TERMS WILL MEAN YOU ACCEPT THOSE CHANGES. PLAYBACK MAY IMMEDIATELY TERMINATE THESE TERMS OR ANY SERVICES OR PROGRAM WITH RESPECT TO YOU, OR GENERALLY CEASE OFFERING OR DENY ACCESS TO THE SERVICES, THE PROGRAM OR ANY PORTION THEREOF, AT ANY TIME, FOR ANY REASON.
PLEASE REVIEW THE ARBITRATION PROVISION SET FORTH IN SECTION 13 CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH PLAYBACK ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION UNLESS YOU CHOOSE TO OPT OUT OF THE ARBITRATION PROVISION. BY VIRTUE OF YOUR ELECTRONIC AGREEMENT TO THESE TERMS, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THESE TERMS (INCLUDING THE ARBITRATION PROVISION) AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN THE ARBITRATION PROVISION BELOW.
- Definitions.
- Program Participation and Requirements.
- Payment via Playback’s Partner Fund.
- Proprietary Rights; License.
- Promotions and Endorsements.
- Privacy.
- Representations and Warranties; Disclaimers.
- Indemnification.
- Limitations of Liability.
- Term and Termination.
- Relationship of the Parties.
- Miscellaneous Terms.
- Governing Law; Arbitration.
- Terms Specific to NBA Content.
1.1. “Creator” means a User who has been approved by Playback to participate in the Program (and whose approval has not been revoked) and who has agreed to these Terms.
1.2. “League” means the professional league, association or organization for any sports event available for streaming via the Services.
1.3.“Playback Data” means all data related to the access and use of the Services hereunder, including all data related to Users (including User Information), and all data related to the Program, including performance analytics, viewership information, and other data related to your participation in the Program and Watch Parties you host.
1.4. “Qualified Watch Party” means a Watch Party that meets both of the following criteria: (i) you (as a Creator) are “on stage” (i.e. on video and actively participating and engaging with Users) for such Watch Party for at least thirty (30) minutes over the course of such Watch Party, and (ii) you (as a Creator) remain in your Creator-hosted room for the entirety of such Watch Party.
1.5. “User” means any end user of the Service.
1.6. “User Information” means information about a User collected by us through the Services, which may include a User’s name and contact information.
1.7. “Watch Party” means a Creator-hosted streaming event through the Creator’s room on the Services to watch live sports with and engage with the interactive User community.
1.8. “Watcher” means a User who joined a Watch Party for a minimum of five (5) minutes.
2.1. Eligibility. At all times during participation in the Program, only those Creators meeting all of the following requirements are eligible to participate in the program. You must be at least eighteen (18) years old and have registered an account on the Services (an “Account”). You represent and warrant that all information you provide in your application and forms and in response to any additional requests from Playback is complete and accurate. Playback may, in its sole discretion, reject any application, refuse to offer participation in the Program and/or change the eligibility criteria at any time. You are solely responsible for ensuring that you are in compliance with all laws, rules and regulations applicable to you, and you acknowledge and agree that the right to participate in the Program is revoked where these Terms or participation in the Program is prohibited. Further, the Program is offered only for your use, and not for the use or benefit of any third party. You must notify us immediately of any change in your eligibility to participate in the Program, breach of security or unauthorized use of your Account.
2.2. Program Participation; Community Guidelines. You acknowledge and agree that once you have been approved by Playback to participate in the Program. You agree to participate in any onboarding or training program as requested by Playback. You agree to comply at all times with the Community Guidelines (available at https://legal.playback.tv/community-guidelines) when using the Services and participating in the Program. You will comply with all laws that apply to you and your actions and omissions that relate to your participation in the Program.
2.3. Your Relationship with Other Users. Your interactions with other Users and/or other third parties found on or through the Services or Program are solely between you and such Users and/or third parties. You should make whatever investigation you feel necessary or appropriate before interacting with any User. Playback is not responsible or liable for the actions or inactions of a User in relation to your activities.
If there is a dispute between Users (including between you and another User), or between Users and any third party, you agree that Playback is under no obligation to become involved. In the event that you have a dispute with one or more other Users, you release Playback, its officers, employees, agents and successors from claims, demands and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services or the Program. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
2.4. Your Relationship with Playback. You acknowledge and agree that you are not an employee of Playback and that Playback does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms specifically, including in connection with your participation in the Program or your acts or omissions. Playback retains the right to, at any time at our sole discretion, deactivate or otherwise restrict you from accessing or using the Services or participating in the Program in the event of a violation of these Terms or the Community Guidelines, your disparagement of Playback, your act or omission that causes harm to Playback or others, or for any other reason at the reasonable discretion of Playback. If you are terminated from the Services or the Program, you may not access or use the Services or participate in the Program through a new account. In addition, Playback retains the right for any reason to (i) terminate a Watch Party, (ii) remove a User from a Watch Party, (iii) restrict any User’s access within the Services to one or more specific games or all games from one or more Leagues.
3.1. Eligibility for Monetization. Only those Creators meeting all of the following criteria will be eligible for monetization via Playback’s Partner Fund:
(a) Creator’s Playback account is active and in good standing and is in compliance with the Policies;
(b) Creator has hosted at least four (4) Qualified Watch Parties with a minimum of ten (10) unique Watchers in the last 30 days;
(c) Creator has at least 50 unique Watchers in the last 30 days.
3.2. Payment. Subject to your eligibility for monetization and compliance with these Terms, Playback will pay you a sum, which is based on a combination of your total unique Watchers, new sign ups, and time spent during Qualified Watch Parties (the “Payment”). For more detail on the Partner Fund, please visit this page. Playback reserves the right to change the Payment at any time in our sole discretion, and we will provide you with notice in the event of such change. Continued participation in the Program after any such change in the Payment shall constitute your consent to such change. We do not make any representation, warranty, or covenant regarding the amount of Payment you can expect at any time in connection with the Program, and we will not be liable for any actions you undertake based on your expectations. If you fail to follow these Terms, you may not be eligible to receive payment of any Payment. We reserve the right to determine compliance with these Terms and eligibility for any Payment in our sole discretion.
3.2. Payment Terms. Subject to your compliance with these Terms, Playback agrees to remit to you within forty-five (45) days following the end of each calendar month, the Payment, less (i) billing and payment costs (e.g. processing charges and merchant bank fees) and (ii) chargebacks, refunds, returns, discounts and credits. If any excess payment has been made to you for any reason whatsoever, we reserve the right to adjust or offset the same against any subsequent fees payable to you under these Terms. Further, if at any time you have not hosted any Watch Parties in at least six (6) consecutive months, we may revoke your approval from the Program, close your Account, and/or terminate these Terms. If either you or we terminate your Account or these Terms for any reason, any Payment due at the time of such termination will be paid at the end of the month following termination.
3.3. Payment Method. We may use a third-party payment processor (the “Payment Processor”) to pay any Payment due to you through your Account. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. We are not responsible for any errors by the Payment Processor. Through your Account, you may choose from available payment methods to receive the Payment (the “Payment Method”). You agree to accept payment of all Payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that Payment Processor makes even if payment has already been requested or received. All Payment will be paid in US dollars.
3.4. Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN PAYMENT ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD.
3.5. No Additional Amounts. You acknowledge and agree that, for the mutual benefit of the parties, through advertising and marketing, we may seek to attract new Users to Playback and to increase existing Users’ use of Playback’s services. You acknowledge and agree such advertising or marketing does not entitle you to any additional monetary amounts beyond the amounts expressly set forth in these Terms.
3.6. Taxes. You acknowledge and agree that you are responsible for collecting and remitting all applicable gross receipts, sales and use, excise or any other transaction tax in connection with your activities on the Services and/or participation in the Program. Throughout your participation in the Program, you will provide us with any forms, documents or certifications as may be required for us to satisfy any information reporting or withholding tax obligations with respect to any payments under these Terms.
4.1. License Grant. Subject to the terms and conditions of these Terms, Playback hereby grants you a non-exclusive, non-transferable, non-sublicensable, non-assignable license during the term to use the Services solely for the purpose of participating in the Program, subject to Playback’s approval. All rights not expressly granted to you are reserved by Playback and its licensors.
4.2. Restrictions. You shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Services in any way; (b) modify or make derivative works based upon the Services; (c) improperly use the Services, including creating Internet “links” to any part of the Services, “framing” or “mirroring” any part of the Services on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the Services; (d) reverse engineer, decompile, modify or disassemble the Services, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, you shall not, and shall not allow any other party to, access or use the Services to: (i) design or develop a competitive or substantially similar product or services; (ii) copy or extract any features, functionality or content thereof; (iii) launch or cause to be launched on or in connection with the Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden of hinder the operation and/or performance of the Services; or (iv) attempt to gain unauthorized access to the Services or its related systems or networks. Without limiting the above restrictions, you agree not to access or attempt to access any Content that has been restricted or to bypass any Content restrictions, including, without limitation, by masking your location or by appearing to access Content from a different location than your actual location.
4.3. Ownership; Playback Data. The Services, including all intellectual property rights therein, are and shall remain (as between you and Playback) the property of Playback, its licensors, or the applicable third party owner. Neither these Terms nor your use of the Services or participation in the Program conveys or grants to you any rights in or related to the Services or Playback Data, except for the limited license granted above. Playback may use, modify and share Playback Data with its affiliates, partners or service providers (including but not limited to Playback’s League partners) for the purposes of providing the Services and for Playback and its partners’ other business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing the Services).
4.4. User Submissions. Anything you post, upload, share, store or otherwise provide through the Services or your participation in the Program is your “User Submission”. Some User Submissions are viewable by other Users. In order to display your User Submissions on the Services, and to allow other Users to enjoy them (where applicable), you grant us certain rights in those User Submissions. Please note that all of the following licenses are subject to our Privacy Policy to the extent they relate to User Submissions that are also your personally-identifiable information.
By submitting User Submissions through the Services or your participation in the Program, you hereby do and shall grant Playback a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to (i) use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with the Services, the Program, and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Services or Program (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your Account or the Services, and (ii) use the name, identity, likeness and voice (or other biographical information) that you submit in connection with such User Submission. You also hereby do and shall grant each User of the Services a non-exclusive, perpetual license to access your User Submissions through the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions, including after your termination of your account or the Services. For clarity, the foregoing license grants to us and our Users do not affect your other ownership or license rights in your User Submissions, including the right to grant additional licenses to your User Submissions, unless otherwise agreed in writing or set forth in Section 4.5 below. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights
Finally, you understand and agree that Playback, in performing the required technical steps to provide the Services to our Users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
4.5. Live User Submissions. Solely for any live audio-visual work you choose to provide to us as User Submissions (your “Live User Submission”), starting from the beginning of the initial broadcasting, streaming, distribution, or other exhibition of any such Live User Submission (the “Initial Broadcast”), and continuing for a period of twenty-four (24) hours following the end of the Initial Broadcast of such Live User Submission (the “Exclusivity Period”), such Live User Submission is exclusive to Playback (even as to you). During the Exclusivity Period of any Live User Submission, you will not, nor permit or authorize any third party to, broadcast, stream, distribute, exhibit and otherwise make available such Live User Submission in any manner other than through the Services.
4.6. Content on the Services. The materials displayed or available on or through the Services or Program, including but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services or Program, and you will not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you (i) without the prior consent of the owner of that Content, or (ii) in a way that violates someone else’s (including Playback’s) rights. For clarity, your use of the Services does not give you the right to excerpt, modify, or redistribute any Content owned by third parties (including games available through the Services).
Any information or content publicly posted or privately transmitted through the Services or Program is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and Playback is not liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. Playback cannot control and has no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release Playback from all liability for you having acquired or not acquired Content through the Services or Program.
You are responsible for all Content you contribute, in any manner, to the Services or Program and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You may not upload, distribute or otherwise publish any Content that is invasive of privacy or publicity rights, infringing on intellectual property rights, unlawful, threatening, fraudulent, libelous, defamatory, obscene, vulgar, profane, abusive, harassing, hateful or otherwise objectionable, including but not limited to any Content that encourages conduct that would constitute a criminal offense or otherwise violates any applicable U.S. or foreign laws. We reserve the right to, but do not have any obligation to, (i) remove, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms), or for no reason at all and (ii) to remove or block any Content from the Services or Program.
The Services or Program may contain links or connections to third party websites or services that are not owned or controlled by Playback. When you access third party websites or use third party services, you accept that there are risks in doing so, and that Playback is not responsible for such risks. Playback has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services or Program. In addition, Playback will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services and/or participating in the Program, you release and hold Playback harmless from any and all liability arising from your use of any third party website or service.
4.7. Copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable any content posted through the Services or Program that is alleged to be infringing, and to terminate the accounts of repeat alleged infringers, in accordance with the Digital Millennium Copyright Act (the “DMCA”). To review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here.
5.1. Promotions. If you promote, administer, or conduct a promotion (e.g., a contest or sweepstakes) on, through, or utilizing the Services or Program (a “Promotion”), you acknowledge and agree that: (1) you will carry out Promotions only to the extent permitted by applicable law, (2) you are solely responsible for ensuring that any Promotions comply with any and all applicable laws, obligations, and restrictions, (3) you will be classified as the promoter of your Promotion in the applicable jurisdiction(s) and you will be solely responsible for all aspects of and expenses related to your Promotion, including without limitation, drafting and posting any official rules, selecting winners, issuing prizes, and obtaining all necessary third-party permissions and approvals, including without limitation filing any and all necessary registrations and bonds, (4) Playback is not responsible for and does not endorse or support any such Promotions, and (5) you will display or read out the following disclaimer when promoting, administering, or conducting a Promotion: “Playback does not sponsor or endorse this promotion and is not responsible for it.” Notwithstanding anything else, you may not indicate or suggest at any time that Playback or any League is a sponsor or co-sponsor of the Promotion, and Playback has the right to remove your Promotion from the Services if we reasonably believe that your Promotion does not comply with these Terms or applicable law.
5.2. Endorsements/Testimonials. You agree that your User Submissions will comply with the FTC’s Guidelines Concerning the Use of Testimonials and Endorsements in Advertising, the FTC’s Disclosures Guide, the FTC’s Native Advertising Guidelines, and any other guidelines issued by the FTC from time to time (the “FTC Guidelines”), as well as any other advertising guidelines required under applicable law. For example, if you have been paid or provided with free products in exchange for discussing or promoting a product or service through the Services or Program, you agree to comply with the applicable FTC Guidelines. You are solely responsible for any endorsements or testimonials you make regarding any product or service through the Services or Program.
6.1. Privacy. The collection, use, maintenance, disclosure and disposal of User Information, including the collection and use of your personally identifiable information, through the Services and Program is governed by our Privacy Policy which is incorporated into and is a part of these Terms.
7.1. By You. You hereby represent and warrant that: (a) you have full power and authority to enter into these Terms and perform your obligations hereunder and to grant the rights and licenses granted herein; (b) for Content that you access through the Services that requires a third party subscription, you have provided accurate and current subscription information and have the right to access such Content under such subscription with respect to any Content; (c) you have not entered into, and during the term will not enter into, any agreement that would prevent you from complying with these Terms; (d) you will comply with all applicable laws in your performance of these Terms; and (e) you will not allow any third party to use your Account.
7.2. Disclaimer of Warranties. PLAYBACK PROVIDES, AND YOU ACCEPT, THE SERVICES AND PROGRAM ON AN "AS IS" AND "AS AVAILABLE" BASIS. PLAYBACK DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE SERVICES OR PARTICIPATION IN THE PROGRAM: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY PARTICULAR VIEWERSHIP OR PAYMENT PAYABLE. PLAYBACK MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF ITS USERS, AND PLAYBACK DOES NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE SERVICES OR PARTICIPATING IN THE PROGRAM, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE SERVICES OR PARTICIPATION IN THE PROGRAM. PLAYBACK EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER OR OTHER THIRD PARTY.
7.3. No Service Guarantee. PLAYBACK DOES NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE SERVICES OR PROGRAM. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES OR PROGRAM MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (e.g., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND PLAYBACK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.
8.1. Indemnification. You shall indemnify, defend (at Playback’s option) and hold harmless Playback, its affiliates, its Users, and each of the foregoing’s respective officers, directors, employees, agents, successors and assigns from and against any and all claims, liabilities, expenses (including legal fees and costs), damages, penalties, fines, social contributions and taxes arising out of or related to (a) your use of the Services (including any actions taken by a third party using your Account or identity in the Services), (b) your participation in the Program and/or hosting of any Watch Parties (including claims and potential claims from third parties, Users, regulators and governmental authorities), and (c) your violation of these Terms, including, without limitation, any unauthorized distribution or other exploitation of Content made available via the Services.
9.1. Limits of Liability. PLAYBACK SHALL NOT BE LIABLE UNDER OR RELATED TO THESE TERMS FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (i) ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND; OR (ii) YOUR OR ANY THIRD PARTY’S PROPERTY DAMAGE, OR LOSS OR INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE. EXCEPT FOR PLAYBACK’S OBLIGATIONS TO PAY PAYMENT DUE TO YOU PURSUANT TO SECTION 3 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THESE TERMS WHICH ARE APPLICABLE THERETO, IN NO EVENT SHALL THE LIABILITY OF PLAYBACK UNDER THESE TERMS EXCEED THE AMOUNT OF ONE THOUSAND DOLLARS ($1,000.00).
10.1. Term. These Terms shall commence on the date accepted by you and shall continue until terminated as set forth herein.
10.2. Termination. Either party may terminate these Terms: (i) without cause at any time upon seven (7) days’ prior written notice to the other party; or (ii) immediately, without notice, for the other party’s material breach of these Terms. In addition, Playback may terminate these Terms or deactivate your Account immediately, without notice, with respect to you in the event you no longer qualify for the Program under applicable law or the standards and policies of Playback, or as otherwise set forth in these Terms. We have the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
10.3. Effect of Termination. Upon termination of these Terms, you shall immediately cease your participation in the Program. Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the Arbitration Agreement.
11.1. Except as otherwise expressly provided herein, the relationship between the parties under these Terms is solely that of independent contractors. The parties expressly agree that: (a) these Terms are not an employment agreement, nor do they create an employment relationship, between Playback and you; and (b) no joint venture, partnership, or agency relationship exists between Playback and you.
11.2. You have no authority to bind Playback and you undertake not to hold yourself out as an employee, agent or authorized representative of Playback. Where, by implication of mandatory law or otherwise, you may be deemed an agent or representative of Playback, you undertake and agree to indemnify, defend (at Playback’s option) and hold Playback and its affiliates harmless from and against any claims by any person or entity based on such implied agency or representative relationship.
12.1. Modification. Playback reserves the right to modify the terms and conditions of these Terms at any time, effective upon publishing an updated version of these Terms on the portal available to you on the Services. Playback reserves the right to modify any information referenced at hyperlinks from these Terms from time to time. You hereby acknowledge and agree that, by participating in the Program, you are bound by any future amendments and additions to these Terms, information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Payment. Continued participation in the Program after any such changes shall constitute your consent to such changes. Unless changes are made to the arbitration provisions herein, you acknowledge and agree that modification of these Terms does not create a renewed opportunity to opt out of arbitration.
12.2. Severability. If any provision of these Terms is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of these Terms.
12.3. Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Account with the Services, in any way (by operation of law or otherwise) without our prior written consent. Playback may transfer, assign, or delegate these Terms and its rights and obligations without consent.
12.4. Entire Agreement. These Terms, including all terms and policies referenced and incorporated herein, constitute the entire agreement and understanding of the parties with respect to the Program and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In these Terms, the words "including" and "include" mean "including, but not limited to."
12.5. No Third Party Beneficiaries. Other than as set forth in the Arbitration Agreement below, there are no third party beneficiaries to these Terms and nothing contained in these Terms is intended to or shall be interpreted to create any third-party beneficiary claims.
12.6. Notices. Any notice delivered by Playback to you under these Terms will be delivered by email to the email address associated with your account or by posting on the portal available to you on the Services. Any notice delivered by you to Playback under these Terms will be delivered by contacting Playback at contact@playback.tv.
12.7. No Waiver. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder.
13.1. Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.
13.2. Arbitration Agreement. Please read the following Arbitration Agreement carefully because it requires you to arbitrate certain disputes and claims with Playback and limits the manner in which you can seek relief from Playback. Both you and Playback acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Playback’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in San Francisco County, California. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Playback will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Playback will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or Playback may assert claims, if they qualify, in small claims court in San Francisco County, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND PLAYBACK WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Playback are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Playback over whether to vacate or enforce an arbitration award, YOU AND PLAYBACK WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Playback is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: Playback, Inc. 18 Crow Canyon Court, Suite 250, San Ramon CA, US, 94583 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ Arbitration Agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing Arbitration Agreement permits either you or Playback to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing Arbitration Agreement will not apply to either party, and both you and Playback agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, San Francisco County, California, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This Arbitration Agreement will survive the termination of your relationship with Playback.
14.1. License to the NBA. If you opt in to allowing the National Basketball Association or its affiliates (the “NBA”) to use and distribute your User Submissions, then you hereby grant to Playback and its successors, and the NBA and its affiliates, a perpetual, non-exclusive, worldwide, sublicensable, royalty-free license to distribute your User Submissions together with NBA games or other Content owned by NBA (“NBA Content”) to which such User Submissions relate, in any media and via any distribution platform, with no obligation on the part of the NBA (e.g., to pay royalties or obtain any approval).
14.2. Restrictions on NBA Content. User Submissions related to NBA Content shall not (a) disparage, demean or reflect adversely upon the professional or personal reputation of the NBA, any NBA team, any NBA or NBA team personnel, or any NBA player; (b) create the false impression of a commercial relationship or other association between any entity and the NBA or its affiliates, any NBA team, any NBA or NBA team personnel, or any NBA player; (c) promote any product or service other than NBA Content while NBA Content is being displayed or streamed on the Service; or (d) otherwise violate any applicable law or the rights of a third party ((a)-(d) collectively, the “NBA Content Guidelines”). Playback reserves the right to remove any of your Content from the Service, disqualify you from participating in Watch Parties of NBA Content, and/or terminate your account with the Services for violating the NBA Content Guidelines or otherwise upon NBA’s request. Other than the NBA Content Playback makes available to you, you are not permitted to post, upload, share, store or otherwise provide any other NBA Content in connection with your User Submissions on the Service.
14.3. NBA League Pass Affiliate Program. Through your participation in the Program, you may also be offered, at the NBA’s sole discretion, the right to participate in the NBA’s affiliate program (the “Affiliate Program”), which may include you receiving a unique code to promote the NBA’s League Pass service (“League Pass”) during a Watch Party you host. All creators in the NBA Creator Program (as defined in Section 14.4 below) will have the option to participate in the Affiliate Program. If your inclusion in the Affiliate Program for a Watch Party has been approved by the NBA, you must use a League Pass referral link provided by the NBA to encourage users to sign up for League Pass. You may not promote, on social media or otherwise, your participation in the Affiliate Program without the NBA’s advance approval on a case-by-case basis, and you must take down any references to the NBA or the NBA’s intellectual property at the NBA’s request.
14.4. NBA Creator Program. Through your participation in the Program, you may also be offered, at the NBA’s sole discretion, the right to participate in the NBA’s creator program (the “NBA Creator Program”), which may include you receiving access to additional NBA Content which may include classic games, highlights, press conferences, etc. for you to incorporate into your User Submissions or Watch Parties (the User Submissions or Watch Parties created pursuant to the NBA Creator Program, “Program Creator Streams”). You may not promote, on social media or otherwise, your participation in the NBA Creator Program without the NBA’s advance approval on a case-by-case basis, and you must take down any Program Creator Streams, references to the NBA or the NBA’s intellectual property at the NBA’s request. If you participate in the NBA Creator Program, you also agree to promote NBA initiatives (e.g., All Star, League Pass) at the NBA’s request.
Ownership of Program Creator Streams. Notwithstanding anything to the contrary in these Terms, by your participation in the NBA Creator Program, you acknowledge and agree that the NBA shall own all worldwide rights in and to the Program Creator Streams (including any audio and video) and you hereby do and shall make all assignments necessary to accomplish the foregoing ownership. You may repurpose certain NBA Content included in Program Creator Streams on your personal social media accounts, subject to NBA approval and takedown rights. For clarity, the foregoing assignment does not affect your ownership or license rights in your other User Submissions unrelated to the NBA Creator Program. You represent and warrant that you have all rights to assign such ownership rights to the NBA without infringement or violation of any third party rights.
14.5 Publicity. Notwithstanding the foregoing, you may not disclose, publicize, or promote any agreement or partnership with the NBA, as part of a Promotion or otherwise, without the NBA’s express prior written consent. Notwithstanding anything else, you may not indicate or suggest at any time that Playback or the NBA is a sponsor or co-sponsor of any Promotion, and Playback has the right to remove your Promotion from the Services if we reasonably believe that your Promotion does not comply with these Terms or applicable law.