1. Agreement to Terms. When you use Spoke, you agree to accept these Terms. If you do not accept these Terms, do not use Spoke.
3. Changes to Terms or Spoke. We may sometimes modify these Terms, and we may do so at any time. If we do so, we will let you know either by posting the modified Terms on the Site or through other communications. However, when we tell you about these changes, it’s important that you review the modified Terms because if you continue to use Spoke after we have told you that the Terms have been modified, you are telling us that you agree to be bound by the modified Terms. If you don’t agree to the modified Terms, then you can’t keep using Spoke. Because Spoke is evolving over time we may change or discontinue all or any part of the Spoke, at any time and without notice, at our sole discretion.
4. BITRATION NOTICE: PLEASE READ SECTION 22 BELOW (DISPUTE RESOLUTION) CAREFULLY. IT PROVIDES THAT, UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN SECTION 22 BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 22 BELOW, 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, AND YOU ARE ALSO WAIVING YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. 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 THESE TERMS OR IN ACCESSING OR USING SPOKE) TO HAVE ANY DISPUTES RESOLVED THROUGH ARBITRATION.
5. Eligibility to Use Spoke. To use Spoke, you must be at least 18 years old and capable of forming a binding contract with Sirius XM.
6. Registration and Your Information. If you want to use certain features of Spoke you’ll have to create an account (“Spoke Account”). You can do this via the Spoke App. It’s important that you provide us with accurate, complete and up-to-date information for your Spoke Account and you agree to update such information, whenever needed, to keep it accurate. If you don’t, we might have to suspend or terminate your Spoke Account. You agree that you won’t disclose your Spoke Account password to anyone and you’ll tell us immediately of any unauthorized use of your Spoke Account. You’re responsible for all activities that occur under your Spoke Account, whether or not you know about them.
7. [ Reserved ].
8. Feedback. We welcome feedback, comments and suggestions for improvements to Spoke (“Feedback”). If you’d like to provided us with Feedback, please go ahead and do so by emailing us at email@example.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
9. Content and Content Rights. Content, including all our podcasts, is made available through Spoke. For purposes of these Terms: (i) “Spoke Content” means podcasts, digital files (including without limitation, audio, video or text), text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through Spoke [; and (ii) “User Content” means any Content that Account holders (including you) provide to be made available through Spoke. Content includes without limitation User Content.]
10. Content Ownership, Responsibility and Removal. Your User Content is yours only and Sirius XM does not claim any ownership rights in it or try to restrict any rights that you may have to use and exploit it. That said, Sirius XM and its licensors exclusively own all right, title and interest in and to Spoke and the Spoke Content, including all associated intellectual property rights. You understand that Spoke and the Spoke Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Spoke or the Spoke Content.
11. Rights in User Content Granted by You. You grant us a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute your User Content in connection with operating and providing Spoke and the Spoke Content to you and to other Spoke Account holders. You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or that you have the necessary rights to grant us the rights to use your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through Spoke, nor any use of your User Content by Sirius XM on or through Spoke will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You can remove your User Content by deleting it. However, in some cases, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on Spoke. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
12. Rights in Spoke Content Granted by Sirius XM. So long as you are complying with your obligations under these Terms, Sirius XM grants you a limited, non-exclusive, non-transferable, non-sublicensable license to play and display the Spoke Content solely in connection with your permitted use of Spoke and solely for your personal and non-commercial purposes.
13. Rights and Terms for the Spoke App. So long as you are complying with your obligations under these Terms, Sirius XM grants you a limited non-exclusive, non-transferable, non-sublicensable license to download and install a copy of the Spoke App on a mobile device or computer that you own or control and to run such copy of the Spoke App solely for your own personal non-commercial purposes. You may not copy the Spoke App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the Spoke App; (ii) distribute, transfer, sublicense, lease, lend or rent the Spoke App to any third party; (iii) reverse engineer, decompile or disassemble the Spoke App; or (iv) make the functionality of the Spoke App available to multiple users through any means. Sirius XM reserves all rights in and to the Spoke App not expressly granted to you under these Terms.
14. Don’t Do Bad Things. Sirius XM wants everyone to have a great experience using Spoke. As such, you agree that you will not use Spoke to engage in illegal, fraudulent or other wrongful conduct, or to do any of the following actions, otherwise we might have to suspend or terminate your Spoke Account: (i) use, distribute, display, mirror or frame any part of Spoke, Sirius XM or Spoke’s name, any Sirius XM trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Sirius XM’s express written consent; (ii) use, copy or distribute any Spoke Content, other than expressly permitted herein; (iii) access, tamper with, or use non-public areas of Spoke or Sirius XM; (iv) access the podcasts available through Spoke through any technology or means other than Spoke; (v) modify another website so as to falsely imply that it is associated with Spoke; (vi) breach any security or authentication measures; (vii) circumvent any technological measure implemented by Sirius XM or any of Sirius XM’s providers or any other third party (including another user) to protect Spoke; (viii) attempt to access or search Spoke or download any Spoke Content through the use of any means not explicitly authorized by Sirius XM; (ix) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide Spoke; (x) send a virus, overload, flood, or mail-bomb Spoke; or (xi) encourage or enable any other individual to do any of the foregoing.
15. Copyright Policy. It is Sirius XM's policy to respond to notices of alleged copyright infringement that comply with applicable intellectual property law and to terminate the accounts of repeat infringers. Details of Sirius XM's copyright policy can be found at: [Need to find a place for this] hearspoke.com/copyright
16. Links to Third Party Websites or Resources. Spoke may contain links to third-party websites or resources. We provide these links to you only as a convenience and we are not responsible for the content, products or services on or available from those websites or the links displayed on these websites. You understand that you are responsible and assume all risk that could arise from your use of these third-party websites or resources.
17. Term and Termination.
a) Term. These Terms begin on the date you accept them and continue until they are terminated. If you fail to comply with any term of these Terms, Sirius XM may terminate your rights to access Spoke.
b) By Sirius. If such termination occurs, Sirius XM may immediately revoke your access to Spoke without notice to you and without the refund of any fees.
c) By You. You can also terminate your Spoke Account at any time, simply by ceasing to use Spoke. Sirius XM will not be responsible or liable for the removal or deletion (or failing to remove or delete) of your Spoke Account or any information related to your Spoke Account.
d) Effect of Termination. In case of any termination, whether by you or by Sirius XM, or in case of discontinuation or cancellation of Spoke or of your Spoke Account, the following Sections will survive: Sections 14 (General Prohibitions); 17 (Termination); 18 (Warranty Disclaimer); 19 (Indemnity); 20 (Limitation on Liability); 21 (Governing Law); 22 (Dispute Resolution); and 23 (General).
OK. We get it. There’s a lot to digest in these Terms. Hang in there! Almost done… Let’s not be too hard on our lawyers who “told” us (nicely!) to include these sections in these Terms. They’re driven in large part by legal precedent and we don’t have a lot of flexibility with the language. Among other things, these sections say that Sirius XM is not responsible if something goes wrong, that you agree to go to arbitration with Sirius XM if we have a dispute about these Terms and that you won’t join in any class action against Sirius XM.
18. Warranty Disclaimers. YOU AGREE THAT YOUR USE OF SPOKE WILL BE AT YOUR SOLE RISK AND THAT SPOKE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, SIRIUS XM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Sirius XM makes no warranty that Spoke will meet your requirements or be available without interruption, or on a secure, error-free basis. Sirius XM makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Spoke Content, including, but not limited to, any podcasts.
19. Indemnity. You agree to defend, indemnify and hold Sirius XM and its officers, directors, employees and agents harmless, from and against any and all claims, damages, and expenses (including, but not limited to, attorneys’ fees) arising from: (i) your use of and access to Spoke; (ii) your violation of any term of these Terms; or (iii) your User Content.
20. Limitation of Liability. IN NO EVENT WILL SIRIUS XM, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES, WHETHER FORESEEABLE OR NOT, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM YOUR ACCESS TO AND USE OF OR INABILITY TO ACCESS OR USE SPOKE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SIRIUS XM IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SIRIUS XM’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OR INABILITY TO USE SPOKE OR ANY PODCASTS, EXCEED $100. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
21. Governing Law. You agree that: (i) Spoke will be deemed solely based in New York; and (ii) Spoke will be deemed a passive website that does not give rise to personal jurisdiction over Sirius XM, either specific or general, in jurisdictions other than New York. These Terms and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.
22. Dispute Resolution. In order to expedite and control the cost of disputes, you agree that any legal or equitable claim relating to Spoke, the Spoke Content or these Terms (a “Claim”), will be resolved as follows:
a) Informal Claim Resolution. To initiate an informal resolution to a Claim, you must send a notice by first class United States mail to Sirius XM Radio Inc., 1221 Avenue of the Americas, 36th Floor, New York, NY 10020, Attention: Listener Care (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 using the contact information you provided when you created your Podcast Creator Account or to the billing address on file with us.
b) 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 these Terms, whether related to these Terms 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 American Arbitration Association (“AAA”) in effect at the time the Claim is filed, and the parties agree that the arbitration shall be administered by the AAA. You may obtain copies of the current rules, forms and instructions for initiating an arbitration by contacting:
American Arbitration Association
1633 Broadway, 10th Floor
New York, New York 10019
Web site: www.adr.org
This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act (“FAA”), and not by any state law concerning arbitration.
c) Exceptions. Notwithstanding the foregoing, you and Sirius XM agree that: (i) each party retains the right to bring an individual action in small claims court pursuant to Section 25.4 below; and (ii) any dispute involving a violation of the Communications Act of 1934, 47 U.S.C. §605, the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521, or a violation of our intellectual property rights may be decided only by a court of competent jurisdiction. Without limiting the preceding sentence, you will also have the right to litigate any other Claim if you provide Sirius XM with written notice of your desire to do so by email or regular mail at Sirius XM Radio Inc., 1221 Avenue of the Americas, 36th Floor, New York, NY 10020, Attention: Listener Care within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you do not provide Sirius XM with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Claim except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any dispute set forth in clause (ii) above or, if you timely provide Sirius XM with an Arbitration Opt-out Notice, will be the state and federal courts located in New York, New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Sirius XM with an Arbitration Opt-out Notice, you acknowledge and agree that you and Sirius XM are each waiving the right to a trial by jury.
d) Small Claims. Instead of proceeding to arbitration, either you or we have the option to pursue a Claim in small claims court (or the equivalent) so long as 1) the Claim remains in that court, and 2) is made solely on our behalf (if brought by us) or on your behalf. However, if that Claim is transferred or appealed to a different court, we reserve our right to elect arbitration.
e) 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. In no event will you be required to reimburse us for any arbitration filing, administrative, or hearing fees in an amount greater than what your court costs would have been if the Claim had been resolved in a state court with jurisdiction. However, 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.
f) 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. Unless you timely provide Sirius XM with an Arbitration Opt-out Notice, you acknowledge and agree that 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 these Terms acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from these Terms 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, unless you timely provide Sirius XM with an Arbitration Opt-out Notice. 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 State or Federal courts of New York, New York.
g) Binding Effect. In the arbitration proceeding, the arbitrator must follow applicable law, and any award may be challenged, as set forth in the FAA. 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 federal or state court with jurisdiction.
23. General. Any notices or other communications provided by Sirius XM under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to Spoke. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. These Terms, and any other legal notices published by Sirius XM on Spoke, will constitute the entire and exclusive understanding and agreement between you and Sirius XM concerning Spoke, and these Terms supersede and replace any and all prior oral or written understandings between Sirius XM and you regarding Spoke. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without Sirius XM’s prior written consent, but may be assigned by Sirius XM, in whole or in part, without your consent, to any third party. If any provision of these Terms is deemed invalid by a court of competent jurisdiction or arbitrator, as applicable, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect. No waiver of any term of this these Terms will be deemed a further or continuing waiver of such term or any other term, and Sirius XM's failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision.
24. Contact Information. If you have any questions about these Terms or Spoke, please contact Sirius XM at firstname.lastname@example.org, 1221 Avenue of the Americas, NY 10020.
And You Are Done!
Phew! You made it through our Terms of Service Agreement – excellent! Now go and enjoy using Spoke!