Welcome to MediaBak.com (the “Website”), a digital media platform owned and operated by Digital Access Media LLC (the “Company”).
Please read these Terms of Service carefully before using this Website, or the products, software or services provided or offered by the Company. The following Terms of Service is a legal contract between yourself and the Company. By using this Website, you acknowledge and represent that you have read, understood and agree to be bound by the following Terms of Service, including any additional guidelines and future modifications (collectively, the “Terms”). In addition, you represent that you are of legal age to form a binding contract with the Company and that you have full legal authority to enter into these Terms personally or on behalf of the entity you represent. If you do not have such authority, or do not wish to be bound by these Terms, you may not access or use this Website or any of its products, software or services.
- Agreement to Terms of Service
Your use of this Website or any of its products, software or services indicates your agreement to be bound by these Terms. These Terms govern your use of the Website and the products, software and services offered or provided by the Company. Please note that some of the products, software or services offered and provided by the Company may be accompanied by their own licenses or terms of service or use. In such cases, in the event of a conflict, those licenses or terms of service or use shall take precedence over these Terms, and you agree to be bound accordingly.
- Modifications to Terms of Service
The Company reserves the right, in its sole and absolute discretion, to change, modify, add, or remove portions of these Terms at any time without notice. When changes are made, the Company will make a new copy of the Terms available on the Website. If the Company makes any material changes, and you have registered to create an account, you will be sent an email at the last email address you provided pursuant to the Terms. Any changes to the Terms will become effective when posted on the Website, please make sure to check them periodically. If you object to any such changes, your sole recourse will be to cease using the Website or any products, software or services offered or provided by the Company. Otherwise your continued use of the Website, or the products, software and services, after the posting of any changes to these Terms indicates your acceptance to be bound by the new Terms.
- Modifications to Services
The Company reserves the right to modify the Website or the products, software or services offered or provided by the Company at any time without notice. If you object to any changes to the Website or the products, software or services offered or provided by the Company, your sole recourse will be to cease using them. Continued use of the Website or the products, software or services following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with the changes. The Company also reserves the right to discontinue the Website or certain products, software or services at any time without notice. The Company shall not be liable to you or any third-party in the event that it exercises its right to modify or discontinue the Website or any of its products, software or services.
In order to use the Website, products, software or services offered or provided by the Company, you will need to create an account (“Account”). When creating your Account, you will be prompted to provide certain information about yourself. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may cancel your Account at any time, for any reason, by following the instructions on the Website or by contacting the Company’s support representatives. The Company may suspend or terminate your Account in accordance with these Terms. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You accept responsibility for all activities, charges, and damages that occur under your Account, including use of your Account by other members of your household, and unauthorized use of your Account. You agree to immediately notify the Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. The Company will not be liable for any loss or damage arising from your failure to comply with the above requirements.
- Use and Limitations on Use
By using the Website, the products, software and services, you agree that you are receiving access to original or appropriately licensed content for your personal and non-commercial use only, you may not build a business or other enterprise utilizing any of the Website, the products, software and services offered and provided by the Company whether for profit or not and that you are being granted a limited, non exclusive, non-transferable, license to access the Website, the products, software and services offered and provided by the Company for that purpose.
- download, stream capture, store in a database, archive, or otherwise copy, distribute, display, duplicate, publish, reproduce, license, sublicense, rent, lease, loan, upload, sell, resell, broadcast, create derivative works from, or offer for sale any content contained on, or obtained from the Website, without the Company’s prior written consent;
- use of any of the logos, characters, trademarks, service marks, artwork, stories, photographs, images, information, names, text, graphics, audio material, or any other materials contained on the Website, for any other purpose, in any form, media, or technology, whether now known or hereafter developed, including the use of any of the aforementioned content on any other website or networked computer environment, without the prior written consent of the Company. Modification or alteration of such content or use of such content for any other purpose is a violation of the Company’s proprietary and intellectual property rights;
- delete the copyright or other proprietary rights notices on any content or associated with any content available on the Website;
- decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Website, products, software or services is compiled or interpreted, and nothing in these Terms should be interpreted as granting you any right to obtain or use source code;
- participate in any activity over the Internet which violates the privacy or personal rights of another person, including collecting information and disseminating it about customers without their express permission, except as permitted by applicable law;
- use the Website, or products, software or services offered and provided by the Company to: (a) violate any local, state, national or international law; (b) stalk, harass or harm another individual; (c) make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the Website; (d) collect or store personal data about other users; (e) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or (f) interfere with or disrupt the Website, servers or networks connected to the Website, or disobey any requirements, procedures, policies or regulations of networks connected to the Website;
- intentionally interfere with or damage operation of the Website, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code;
- use any high volume, automated, or electronic means to access the Website (including, without limitation, robots, spiders or scripts);
- frame the Website, place pop-up windows over its pages, or otherwise affect the display of its pages; or
- perform any other act which would be harmful to the Company itself or to the Website, products, software or services offered and provided by the Company.
- Memberships and Billing
- Pay-as-you-go membership option: when signing up you automatically join a free (default) pay-as-you-go membership. With such membership, you gain access to the Website, to view, read, listen and download the products, software and services offered and provided by the Company. With such membership, you will not be charged recurring fees and your billing information is kept on file for when you select to make a purchase from the library.
- Various monthly membership options (30-day, 90-day, 180-day or any other options the Company may offer): you gain unlimited access to view, read, listen and download the products, software and services offered and provided by the Company.
- Payment: By providing your credit card or other available payment method (“Payment Method”) information for your membership, you are agreeing to pay, in the case of the pay-as-you-go membership, the fees and any applicable taxes and service fees in connection with your use of your Account, and in the case of a monthly membership, a monthly subscription fee and any applicable taxes and service fees (collectively the “Fees”) in connection with the monthly membership option you have selected. In the case that you choose to update to a monthly membership, the Fees will be charged to your Payment Method automatically at the beginning of your subscription (or, at the end of your Trial Period, where applicable), and at the beginning of each monthly renewal thereafter on the calendar day corresponding to the commencement of your subscription unless you cancel your Account or your Account is suspended or terminated pursuant to these Terms. The Company reserves the right to change the pricing of the membership plans or of the pay-as-you-go fees at any time. In the event of a price change that affects you, the Company will post the new pricing on the Website and will attempt to notify you in advance by sending an email to the address you have registered for your Account. If you do not wish to accept a price change, you may cancel your Account. If there are any discrepancies in billing, you hereby waive your right to dispute such discrepancies if you do not notify the Company within 30 days after they first appear on an account statement. YOU ARE RESPONSIBLE FOR ALL INTERNET ACCESS CHARGES. PLEASE CHECK WITH YOUR INTERNET PROVIDER FOR INFORMATION ON POSSIBLE INTERNET DATA USAGE CHARGES.
- No Refunds: ALL FEES ARE NON-REFUNDABLE. Except as further described herein, even if you cancel your membership during a monthly subscription period, you will not receive a refund for any portion of the Fees for the remainder of that subscription period. In the following rare circumstances, we may provide a refund: you encounter technical issues that prevent you from using the Website, the products, software or services; your Account is subject to fraudulent activity by another person or entity; or you were accidentally overcharged for any fees. The amount of such refund and decision to provide a refund are at the Company’s sole discretion. The provision of a refund in one instance does not entitle you to a refund in the future for similar instances, nor does it obligate the Company to provide a refund in the future, under any circumstance. Any refund claim must be made within 90 days of a contested payment. If you wish to stop using the Website, the products, software or services, you are solely responsible for cancelling your account.
- Cancellation: You can cancel your membership at any time by contacting the Company by emailing our support team at support@MediaBak.com, by telephone at (1-844-927-9164), or by logging into your Account and clicking “Cancel Your Membership” on the support page. If you cancel your membership, the cancellation will go into effect at the end of the then-current monthly subscription period. You will have continued access to your Account for the remainder of your paid monthly subscription period, but YOU WILL NOT RECEIVE A REFUND OF ANY FEES PAID. You must cancel your subscription before it renews for the next month to avoid paying the Fees for the next month. After cancellation of your membership, you will continue to owe any accrued amounts due under these Terms and not yet paid. You acknowledge and agree that cancellation of your subscription is your sole recourse if you have any dissatisfaction, issue or concern related to the Website, its products, software or services or these Terms, including Fees, applicable taxes, or billing methods.
- Unpaid Amounts: If you fail to pay any Fees when due, as a result of expiration of your Payment Method, insufficient funds, or otherwise, (1) you will remain liable for all such amounts, as well as any costs that the Company incurs in collecting any amounts you fail to pay in connection with your Account, including attorney and collections fees; (2) you authorize the Company to continue charging your Payment Method, as your Payment Method information may be updated as described in these Terms; and (3) the Company may suspend or terminate your Account. Changing your Payment Method information may affect the day of your monthly subscription renewal.
- Trial Period: The Company may provide a limited (5 or 15 day) free trial period (“Trial Period”) to new users at its sole discretion, but is under no obligation to do so, and Trial Periods may not be available at all times. The Company reserves the right, in its sole and absolute discretion, to determine your eligibility for a Trial Period. The specific terms of the Trial Period will be stated in the marketing material describing the particular Trial Period. If the Company provides you with a Trial Period, you must provide valid Payment Method information to the Company in order to use your Account during the Trial Period. The Company will not charge you in connection with the Trial Period. If you do not cancel by the last day of your Trial Period, you authorize the Company to begin your paying subscription and automatically charge your Payment Method for your first paying monthly subscription period at the end of your Trial Period. THE COMPANY WILL NOT SEND YOU NOTICE THAT YOUR TRIAL PERIOD HAS ENDED OR THAT YOUR PAYING SUBSCRIPTION HAS BEGUN. IF YOU WISH TO AVOID CHARGES TO YOUR PAYMENT METHOD, YOU MUST CANCEL THE TRIAL PERIOD PRIOR TO THE LAST “DAY” OF YOUR TRIAL PERIOD. A “day” for purposes of these Terms begins at the time you start your subscription (i.e., complete the sign-up process), and ends 24 hours later. For example, if you complete your registration at 2:00 p.m. on a Monday in your time zone, and your Trial Period is 5 days, you have until 2:00 p.m. on Saturday in your time zone to cancel your subscription before your paying subscription will begin. You may only have one Trial Period before you must begin paying for your Account. If you exceed this limit, the Company may charge your Payment Method for any Trial Period after the first, or suspend your use of your Account, in its sole discretion.
- Quality of Service: The quality of the display of the streaming content may vary from device to device, and may be affected by a variety of factors, including your location and the speed of your Internet connection. The time it takes to begin viewing content will also vary based on a number of factors, including your location, available bandwidth at the time and the configuration of your device. The Company makes no representations or warranties about the quality of your viewing experience on your device.
- Third Party Links
The Website, or the products, software or services offered or provided by the Company, may contain links to third party websites, content, products and services that are not hosted or managed by the Company. For example, the Company may permit third parties to advertise their products and services on the Website, and those advertisements may contain links to the website(s) of the advertisers. In addition, other websites may contain links to the Website. In any such cases, when you click on a third party link, you will leave the Website and go to another website or another entity that may collect personal information about you. You acknowledge and agree that the Company has no control over, responsibility for, or liability whatsoever relating to any such third party links, websites or content, including any terms and conditions required by the provider(s) of such offerings. The Company does not endorse or warrant any such websites or the information, content, products, software, or services contained on or accessible through such websites. These linked websites have separate and independent privacy policies and terms of service or use and as such, it is your responsibility to read each of them prior to use of these websites.
- Claims of Copyright Infringement
The Company respects the intellectual property rights of others. The Company does not condone the unauthorized reproduction or distribution of copyrighted content. If you believe your copyrighted work has been reproduced or distributed in any way that constitutes a copyright infringement, or are aware of any infringing content accessible via the Website, please immediately notify the Company's Copyright Agent at dmca@MediaBak.com. For your complaint to be valid under the Digital Millennium Copyright Act of 1998 ("DMCA"), you must provide the following information in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that the Company is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, e-mail address;
- A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEY’S FEES.
- Disclaimer of Warranties
YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE, AND THE PRODUCTS, SOFTWARE AND SERVICES OFFERED OR PROVIDED BY THE COMPANY, AS WELL AS ANY OTHER CONTENT ON THE WEBSITE, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESSED OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND ACCURACY OF DATA. THE COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED ON THE WEBSITE, OR THE PRODUCTS, SOFTWARE AND SERVICES OFFERED AND PROVIDED BY THE COMPANY, WILL BE ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE, OR THE PRODUCTS, SOFTWARE AND SERVICES OFFERED OR PROVIDED BY THE COMPANY, OR ANY OTHER SERVER THAT MAKES THEM AVAILABLE WILL BE FREE FROM CORRUPTION, ATTACK, HACKING OR OTHER SECURITY INTRUSION, VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULT OF THE USE OF THE CONTENT ON THE WEBSITE OR THE PRODUCTS, SERVICES, OR SOFTWARE OFFERED OR PROVIDED BY THE COMPANY, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, USEFULNESS, SUITABILITY, COMPLETENESS OR OTHERWISE. YOU AGREE TO ASSUME ALL RISK OF LOSS OR LIABILITY FOR THE USE OF THE WEBSITE AND ANY CONTENT ON IT AND THE ENTIRE COST OF ANY SERVICING, REPAIR OR CORRECTION.
- Limitation of Liability
UNDER NO CIRCUMSTANCES, SHALL THE COMPANY, OR ANY OF ITS MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, THIRD-PARTY SUPPLIERS OR LICENSORS (THE “COMPANY PARTIES”) BE LIABLE (JOINTLY OR SEVERALLY) FOR ANY FAILURE OR DELAY IN THEIR PERFORMANCE DUE TO ANY CAUSE BEYOND THEIR REASONABLE CONTROL, INCLUDING ACTS OF WAR, ACTS OF GOD, ACTS OF THIRD PARTY SERVICE PROVIDERS, EARTHQUAKE, FLOOD, EMBARGO, RIOT, SABOTAGE, LABOR SHORTAGE OR DISPUTE, GOVERNMENTAL ACT, POWER FAILURE OR FAILURE OF THE INTERNET OR COMPUTER EQUIPMENT. UNDER NO CIRCUMSTANCES, SHALL THE COMPANY PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR ANY OTHER DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, LOSS OF USE, DATA, GOODWILL, REVENUE OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGE OR LOSS) ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE WEBSITE, OR THE PRODUCTS, SOFTWARE AND SERVICES OFFERED AND PROVIDED BY THE COMPANY, OR OTHERWISE RELATED TO THE WEBSITE, EVEN IF THE COMPANY HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, GROSS NEGLIGENCE, OR OTHERWISE, BUT EXCLUDING WILLFUL MISCONDUCT), HOWEVER THEY ARISE. TO THE EXTENT THAT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF ANY SUCH DAMAGES, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF DATA AND EQUIPMENT USED IN CONNECTION WITH THE WEBSITE, THE PRODUCTS, SOFTWARE AND SERVICES AND WILL NOT MAKE A CLAIM AGAINST THE COMPANY FOR LOST DATA, SERVICE INTERRUPTIONS, SYSTEM FAILURES, INACCURATE OUTPUT, WORK DELAYS OR LOST PROFITS IN CONNECTION WITH THE WEBSITE OR THE PRODUCTS, SOFTWARE OR SERVICES OFFERED AND PROVIDED BY THE COMPANY. YOU AGREE TO HOLD THE COMPANY HARMLESS FROM, AND COVENANT NOT TO SUE THE COMPANY, FOR ANY CLAIMS IN CONNECTION WITH THE WEBSITE, OR THE PRODUCT OR SERVICES PROVIDED BY THE COMPANY. IN NO EVENT SHALL THE COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES FOR LOSSES ARISING FROM THE USE OR INABILITY TO USE THE WEBSITE, OR THE PRODUCTS, SOFTWARE AND SERVICES OFFERED AND PROVIDED BY THE COMPANY (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF ONE MONTH’S MEMBERSHIP FEE ON YOUR ACCOUNT.
You agree to indemnify, save, and hold the Company, its members, directors, officers, employees, agents, representatives, third-party suppliers and licensors harmless from and against any claims, losses, damages, liabilities, costs and expenses including legal fees and expenses, arising out of your use or misuse of the Website, or the products, software or services offered and provided by the Company, any violation by you of these Terms, or any breach of the representations, warranties and covenants made by you herein. This provision will survive the termination of your Account and of your rights to use the Website, the products, software and services offered and provided by the Company.
- Governing Law, Venue, and Jurisdiction
These Terms and all claims arising from or related to your use of the Website, the products, software or services offered and provided by the Company will be governed by and construed in accordance with the laws of the State of California, except California's conflict of law rules. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, if applicable.
With respect to any disputes or claims not subject to arbitration (as set forth below), you agree to exclusive jurisdiction in the state and federal courts in San Francisco, California. Notwithstanding any other provision of these Terms, the Company may seek injunctive or other equitable relief from any court of competent jurisdiction.
- Disputes, Arbitration
If you have any dispute with or claim against the Company (a “Claim”) arising out of or relating to the Website, the products, software or services offered and provided by the Company or these Terms, and the claim is not resolved by calling our customer Support department at (1-844-927-9164 ), you and the Company each agree to resolve such disputes through an individual binding arbitration or an individual action in small claims court. Class arbitrations and class actions are not permitted, and your Claim may not be consolidated with any other person’s claim. You and the Company agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and the Company are each waiving the right to a trial by jury or to participate in a class action. This provision shall survive termination of these Terms, your Account or your access to the Website, the products, software or services offered and provided by the Company.
Before you commence arbitration or file a small claims court action with respect to your Claim, you must first send to the Company a written notice of your claim (“Notice”). The Notice must (1) be sent by certified mail; (2) be addressed to: the Company Attn: Legal Department; (3) describe the nature of your Claim; and (4) specify the damages or other relief you seek. If the Company and you do not then resolve the Claim within 30 days after the Company’s receipt of your Notice, either you or the Company may commence an arbitration or file a small claims court action to resolve the Claim.
Any such arbitration shall be administered by the American Arbitration Association and be conducted in accordance with its Commercial Arbitration Rules, including the Consumer-Related Disputes Supplementary Procedures, if applicable (the “Rules”). Contact information for the American Arbitration Association, as well as copies of the Rules and applicable forms, are available at http://www.adr.org. In circumstances in which the Rules provide for an in-person hearing, such hearing will, at your request, take place in the U.S. county (or parish) of your residence, or otherwise in San Francisco, California.
The Company shall have the right to terminate these Terms including, without limitation, your Account and the right to access and use the Website, the products, software and services offered and provided by the Company, at any time, in its sole discretion and without advance notice to you. As further described in these Terms, you may terminate your Account at any time by deactivating your Account and discontinuing use of the Website, the products, software or services. Upon termination of your Account and these Terms for any reason, you shall immediately cease using the Website, the products, software and services offered and provided by the Company. All provisions of these Terms which by their nature should survive termination shall survive any such termination, including, without limitation, warranty disclaimers, indemnity obligations, your payment obligations, limitations of liability, and provisions related to choice of law.
- Notices: The Company may be required by state or federal law to notify you of certain events. You hereby acknowledge and agree that such notices will be effective upon our posting them on the Website or delivering them to you via email. You may update your email address by accessing your Account. If you do not provide accurate information, the Company will not be responsible for failure to notify you.
- Waiver: The Company’s failure to exercise or enforce any right or provision in these Terms will not constitute a waiver of such right or provision.
- Assignment: These Terms are personal to you, and are not assignable, transferable or sublicensable by you except with the Company’s prior written consent. The Company may assign, transfer or delegate any of the rights and obligations hereunder without consent.
- Severability: If any part of these Terms is determined to be invalid or unenforceable under applicable law, that provision will be removed, and the remainder of the Terms will continue to be valid and enforceable.
- Entire Agreement: These Terms, including all additional terms, conditions, and policies on the Website, constitute the entire agreement between you and the Company and supersede all prior agreements with respect to the subject matter hereof.
- Contact Us
If you have any questions regarding these Terms, your Account, the Website or any of the products, software or services offered and provided by the Company please contact the Company directly by any of the following means:
Address:Digital Access Media LLC
501 Silverside Rd.
Last Modified: May 27, 2018