NewBay Media Terms and Conditions of Use

Last Updated: September 26, 2016.

 

We are pleased that you have elected to visit our Websites, operated by, or on behalf of NewBay Media, LLC.  These Terms and Conditions of Use (“Terms and Conditions”) cover NewBay, Media LLC and its Affiliates’ (collectively, “NewBay”) web sites, mobile-optimized versions of web sites and digital applications to which these Terms and Conditions are linked (collectively, the “Websites” or Sites”). To see the Sites which are covered by these Terms and Conditions, click here: http://www.newbaymedia.com/privacy-policy-site-list/.

Please read these Terms and Conditions carefully and ensure you understand them.  These Terms and Conditions, including all documents referenced herein, represent the entire understanding and agreement between NewBay and you regarding your use of the Websites and supersede any prior statements or representations.  The Websites’ Privacy Policy is incorporated into these Terms and Conditions by reference and is made a part hereof: http://www.newbaymedia.com/privacy-policy/. You are not authorized to use the Websites if you do not agree to all or any of these Terms and Conditions.

Use of this Website

Access to, distribution and/or use of the Websites are subject to all applicable laws and regulations.  To the extent that access to, distribution and/or use of the Websites would be deemed illegal by applicable law, such access, distribution and/or use is prohibited.  Each time you visit any area on the Websites and/or register for any interactive functionality of the Websites, you are deemed to have confirmed your acceptance to these Terms and Conditions and the Websites’ Privacy Policy http://www.newbaymedia.com/privacy-policy/.  If you do not agree to abide by these Terms and Conditions and the Privacy Policy, please do not use the Sites.

The Sites are controlled and operated by NewBay from its offices in the United States of America, and are intended for use in the United States, and its territories and possessions.  NewBay makes no representation that the Websites, or the materials contained hereon, are appropriate for users located in other countries.  Those who choose to access the Sites from other countries do so on their own initiative and are responsible for compliance with all laws in that country, if and to the extent that such laws are applicable. To the fullest extent permitted by law, if you access the Sites from other countries, you waive any rights and/or claims you may have under the laws of other countries governing access to, distribution and/or use of the websites (including but not limited to the collection and disclosure of personal information) and expressly consent to the Terms and Conditions and the Websites’ Privacy Policy as set forth herein, without recourse or reference to the laws of other countries.

By accepting these Terms and Conditions, and/or entering and participating in the activities offered on the Sites, you affirm, represent and warrant that:  (a) you are 16 years of age or older; (b) all information you submit via the Sites shall be truthful and accurate (and you will maintain the accuracy of such information); (c) you will abide by these Terms and Conditions; and (d) your use of the Websites shall not otherwise violate any applicable law, rule or regulation.

NewBay may terminate your right to access and/or use the Websites at any time and for any reason whatsoever.  Termination may result in deletion of your Content. NewBay shall not be liable to you for any termination of the Terms and Conditions, including but not limited to deletion of your Content.

Changes to the Terms and Conditions

From time to time, these Terms and Conditions may change.  NewBay reserves the right to modify these Terms and Conditions without prior individual notice.  We will post changes to the Terms and Conditions on the Websites and changes will become effective once posted.  Your continued access to or use of the Websites will be deemed as acceptance by you of the then-current Terms and Conditions.  Please review these Terms and Conditions often so that you will remain abreast of our current policies.

You can tell when the Terms and Conditions were last modified by checking the “last updated” date that appears at the top.

Use of Materials

Materials displayed on and/or accessed through the Websites, including but not limited to informational materials, audio files, images, logos, and trademarks (collectively referred to as the “Material”), are protected under various intellectual property laws and owned or controlled by NewBay, or used with permission of the owner(s) of such Material.  The display of Materials at the Websites does not imply that a license of any kind has been granted to you, subject to the Terms governing mobile devices, below.

NewBay hereby grants you permission to use the Websites as set forth in these Terms and Conditions, provided that:

  • your use of the Websites as permitted is solely for your personal, non-commercial use unless otherwise agreed to by NewBay;
  • you will not copy or distribute any part of the Websites in any medium and you will not “frame” the Websites or any Materials in any site you create or operate without NewBay’s prior written authorization; you will not alter or modify any part of the Website other than as may be reasonably necessary to use the Websites;
  • you will not modify, make derivative works of, reverse compile or reverse engineer any part of the Sites;
  • you will not access or use the Sites for the purpose of building a similar or competitive site; and
  • you will otherwise comply with these Terms and Conditions and all applicable laws.

 

In order to access some features of the Websites, you may have to create an account.  When creating an account, you must provide your accurate and complete personal information and you may not use a fake identity or any other individual’s identity.

Except as otherwise indicated on the Websites, copying, reproducing, uploading, downloading, transmitting or any other use of the Websites or of any of the Material, in whole or part, without the express permission of NewBay, is prohibited.  You may download digital files where expressly permitted.  Any unauthorized access to, use or copying of the Websites and/or the Materials may subject you to liability under applicable law, and may result in legal action.

Subject to the Terms and Conditions, NewBay grants you a non-transferable, non-exclusive, license to install and use the software NewBay makes available for mobile devices (“Apps”), in executable object code format only, solely on your own handheld mobile device and for your personal, noncommercial use.

Open Source Software

Certain items of independent, third-party code that may be included on the Websites are subject to open source licenses. This code is referred to as “Open Source Software”. Use of such Open Source Software is governed by the terms of the license that accompanies such Open Source Software and not by these Terms and Conditions. You should read the license that accompanies such Open Source Software to understand your rights under any applicable end user license for such Open Source Software.

 

Application Store

Users who acquire any App from a third party (e.g., the Apple iPhone store) are subject to the terms and conditions of such third party with respect to their use of the App. These Terms and Conditions do not supplant or supersede any terms and conditions of the third party App provider. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable terms and conditions of the applicable App provider.

Wireless Addresses, Short Message Services and Wireless Internet

By providing NewBay with your wireless email address or by signing up for any wireless service, including but not limited to mobile service, you acknowledge and agree that NewBay’s wireless carriers and providers are not responsible for the content of the wireless services or any of the messages you may receive from us. These services are provided through wireless systems which use various means to transmit communications over networks.  NewBay cannot and does not guarantee that your use of such services will be secure and is not liable for any lack of privacy or security in the transmission of communications via these services. It is your responsibility to take whatever precautions you deem necessary to maintain security while using these services.

Privacy

Please see NewBay’s Privacy Policy: http://www.newbaymedia.com/privacy-policy/, incorporated into these Terms and Conditions, for information concerning the collection and use of Personal Information from the Websites.

Promotions, Sweepstakes and Contests

On occasion NewBay, or certain advertisers or suppliers to the Sites, may elect to conduct certain promotions, sweepstakes or contests (collectively, “Promotions”) on the Sites.  Each such Promotion may have specific rules and regulations which will be made available to users and which shall be deemed incorporated in and become a part of these Terms and Conditions.  By participating in any Promotion, you are deemed to have accepted the rules and regulations for that Promotion, and to have agreed to abide and be bound by them.

 

Links

The NewBay Websites may contain links to other websites that are not controlled and/or maintained by NewBay.  Access to and use of such other websites is at your own risk and subject to the terms of use and privacy policies which govern such websites, which may differ from those of the NewBay Websites and/or may provide their users with less security than the NewBay Websites. Accordingly, you should review the privacy policies and terms and conditions on such other sites before using them.

By providing links to other websites that are not controlled and/or maintained by NewBay, NewBay shall not be deemed to endorse, recommend, approve, guarantee or introduce any third parties or their services or products, or any facts, views, advice, information, promotions and/or products found on such websites.  NewBay is not responsible for the content contained on any such websites, or for the failure of any product or service offered for sale or advertised on any such websites or for any damages that may result therefrom.  Copyrights in the materials or information on the linked websites are owned by other organizations.  Moreover, such other websites may have privacy policies or terms and conditions of use that differ from those of the NewBay Websites and/or may provide their users with less security than the NewBay Websites. Accordingly, you should review the privacy policies and Terms and Conditions on such other sites before using them.

Password Responsibility

When you create an account (for example, in connection with purchasing a product through the Websites), you will be asked to choose a password which you shall use to access the secure portion of the Websites, and which may be required when you are seeking to participate in certain offerings of the Sites.  You are responsible for maintaining the confidentiality of your password.  You agree not to (i) use the account, username or password of any other user of the Sites at any time, (ii) share your account, or (iii) disclose your password to any third party.  You agree to notify NewBay immediately if you suspect any unauthorized access to or use of your account or password.  You are solely responsible for any and all use of your account and password.

Non-Commercial Use

You may not use the Websites or any Materials provided herein in connection with any commercial endeavors except those that are specifically endorsed or approved in writing by NewBay’s management.

User Submitted Content

On certain sections of the Sites, users may be permitted to: post, display and/or publish (“post”) comments about NewBay’s products or other materials (“User Content”).  You acknowledge and agree that you are solely responsible for any User Content that you post.  You further acknowledge and agree that NewBay has no responsibility for, and makes no representations concerning, any User Content posted at the Sites and will not be liable for any User Content.  With respect to all User Content that you post, you represent and warrant that: (i) the material is fully original to you; (ii) such User Content will not infringe or violate the rights of any person or entity, or violate any governmental rule, regulation statute or law, or the Terms and Conditions; (iii) no money will be owing to any person or entity as a result of the posting of the User Content or its use as contemplated by these Terms and Conditions; and (iv) you will be responsible for all User Content submitted through your account, and for all purposes under these Terms and Conditions, all User Content submitted from your account shall be deemed to have been submitted by you.

NewBay does not monitor User Content.  NewBay has no control over, and does not endorse, any User Content and expressly disclaims any and all liability in connection with any User Content.  However, in connection with User Content posted at the Sites, in addition to all other rights it has under this Agreement, at law or in equity, NewBay reserves the right, in its sole and absolute discretion, to remove without notice, or refuse to post in the first instance, any User Content.

Any private or public communications, including any User Content, sought to be posted at the Sites must conform, in the sole and exclusive opinion of NewBay, to the following rules and standards.  It must: (i) conform to all applicable laws, including intellectual property, privacy and defamation laws, (ii) be appropriate in the context of the general purposes of the Site; (ii) not be vulgar, derogatory, obscene, pornographic, patently offensive, defamatory hateful, abusive or promote racism or discrimination of any kind; (iii) not provide personal information, or solicit such information from any other user of the Sites; (iv) not involve or result in the transmission of junk e-mail, unsolicited mass e-mailings, “spamming,” “spimming” or “phishing;” (v) not transmit or distribute any potentially harmful programs such as Trojan horses, worms, viruses, spyware or any malicious software or code; (vi) not contain your own or a third party’s advertising, branding, or promotional content; and (vii) not contain any material or images owned by any other person or entity unless you have obtained all necessary rights, licenses and permissions needed to post the material and have it used as contemplated by these Terms and Conditions.

User Content License

After posting your User Content on or through the Websites, you will continue to retain all ownership rights in such User Content except as specifically set forth herein.  However, by posting any User Content on or through the Websites, you hereby agree to abide by the Terms and Conditions and grant to NewBay absolutely and without any restriction or limitation whatsoever, a perpetual, irrevocable, nonexclusive, worldwide, royalty-free, fully paid, sublicensable (through multiple tiers) and transferable license to use, adapt, modify, publicly perform, publicly display, publish, republish, copy, broadcast, transmit, reproduce, edit, distort, aggregate, translate, reformat, prepare derivative works based upon, distribute and otherwise exploit such User Content, in whole or in part and in any media now known or hereafter developed, in connection with the Website and the promotion and marketing of the Websites and of NewBay and its related entities and each of their respective products and services (collectively, the “Services”), and irrevocably waive any and all “moral rights” (howsoever known) you may have in such User Content and/or consent to NewBay (or any of its nominees, licensees or successors) engaging in conduct which may otherwise infringe any “moral rights” in your User Content. Further, you understand and agree that NewBay may retain, but not display, distribute or perform, server copies of User Content that has been deleted or removed.  You understand that NewBay performs technical functions necessary to offer the Websites and its Services, including but not limited to transcoding and/or reformatting content to allow its use through the Websites. You agree that you will make no commercial use of any User Content obtained through the Sites, without the express written agreement of NewBay. Further, you understand and agree that NewBay has no obligation to and will not treat any User Content as confidential and/or proprietary.

You represent and warrant that:

  • You own the content or material that you post on or through the Website.
  • As at the date that such content or material is submitted:
  • It is accurate and truthful;
  • Use of the content and material does not breach these Terms and Conditions or any other applicable policies or guidelines communicated to you by or on behalf of NewBay;
  • Use of the content or material you supply will not cause injury to any person or entity (including that the content or material is not defamatory).

Copyright Infringement – Notice and Take-Down Policy

NewBay values intellectual property and respects the intellectual property rights of others, and will remove materials on its Website that infringe the copyrights of others.  If you believe that your copyrighted material has been infringed by material contained on this Website, then pursuant to Title 17, United States Code, § 512, you may notify NewBay’s Designated Agent in writing as follows:

Copyright Claims

Attention: Paul Mastrondardi – Copyright Administrator

NewBay Media

28 East 28th Street, 12th Floor

New York, NY  10016

 

Electronic Mail Address: privacyinfo@nbmedia.com

In your notice, you must include the following:

  • a physical or electronic signature of the owner of an exclusive right that is being infringed or of a person authorized to act on behalf of such owner;
  • identification of the copyrighted work(s) that is (are) allegedly being infringed;
  • identification of the materials that are causing the infringement and that are to be removed, along with sufficient information to allow NewBay to locate such materials;
  • contact information (e., name, address, email address) sufficient to enable NewBay to contact you;
  • a statement to the effect that you have a good faith belief that the complained of use of the material was not authorized by the owner of the copyright, its agent or the law; and
  • a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of, the owner of the exclusive right that is allegedly being infringed.

Additional/Different Terms

Certain pages or sections of the Websites may contain terms and conditions of use which are in addition to or different from these Terms and Conditions.  In the event that there is a conflict between such additional or different terms and conditions of use and these Terms and Conditions, the additional or different terms and conditions of use will govern with respect to the specific pages or sections to which they apply.

Limitation of Liability and Use Disclaimer

NewBay endeavors to make sure that all information and data it originates on the Websites is accurate.  However, NewBay is not responsible for any damages or loss related to the use of this Website.

THE WEBSITES, ALL MATERIAL CONTAINED ON THE WEBSITES, AND ALL LINKS OR OTHER ITEMS RELATED THERETO ARE TRANSMITTED AND DISTRIBUTED “AS IS” AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT GUARANTEES, REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED (BY STATUTE OR OTHERWISE), INCLUDING, WITHOUT LIMITATION, THAT THE WEBSITES AND/OR ITS FEATURES AND FUNCTIONS WILL BE AVAILABLE FOR USE OR WORK AS DESCRIBED.  THERE ARE NO GUARANTEES, REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS REGARDING TITLE, SECURITY, ACCURACY, ACCEPTABLE QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE WEBSITES OR THE MATERIALS CONTAINED HEREON.  ANY INFORMATION CONTAINED WITHIN OR ON THIS WEBSITE IS SUBJECT TO AMENDMENT, REVISION OR UPDATING.  NEWBAY RESERVES THE RIGHT TO SUSPEND OR WITHDRAW ACCESS TO THE PAGES OF THE WEBSITES WITHOUT NOTICE AT ANY TIME AND, TO THE FULLEST EXTENT PERMITTED AT LAW, ACCEPTS NO RESPONSIBILITY FOR THESE PAGES NOT BEING AVAILABLE AT ALL TIMES.

SUBJECT TO THE SAVINGS CLAUSE, NEITHER NEWBAY (INCLUDING ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES) NOR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SITES, SHALL BE LIABLE FOR ANY ALLEGED DAMAGE OR INJURY WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY COMPENSATORY, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT, SPECIAL AND/OR ANY OTHER DAMAGES THAT RESULT FROM YOUR USE OR INABILITY TO USE OR ACCESS THIS WEBSITE OR FROM ANY MATERIALS CONTAINED HEREON OR FROM ANY COMPUTER VIRUS, MALFUNCTION OR OTHER FAILURE. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, IN WHICH CASE THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

NEWBAY MAKES NO GUARANTEES, WARRANTIES, REPRESENTATIONS OR CONDITIONS ABOUT THE ACCURACY OR SUITABILITY FOR ANY PURPOSE OF THE SITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND TO THE FULLEST EXTENT PERMITTED BY LAW ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER FROM ACCESS TO, REPRODUCTION, DISTRIBUTION AND/OR USE OF THE WEBSITES, (III) ANY UNAUTHORIZED ACCESS TO, REPRODUCTION, DISTRIBUTION OR USE OF NEWBAY’S SECURE SERVER AND/OR ANY PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREON, (IV) ANY INTERRUPTION OF OR CESSATION OF THE SITE, (V) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRANSMITTED VIA THE SITE AND/OR BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OF TRANSMITTED INFORMATION OR DATA, OR DAMAGE THAT IS THE RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE BY OR THROUGH THE WEBSITES.

NewBay is not responsible for any damages or loss related to your reliance on any outdated version of these Terms and Conditions, including, but not limited, to any outdated version of our Privacy Policy.

Certain jurisdictions prohibit the limitation of liability for certain types of damages or prohibit waivers against future fraud, and accordingly, such limitations or waivers may not apply to you.  In such jurisdictions, NewBay’s liability is limited to the greatest extent allowable under applicable law.

Your Responsibilities

You are responsible for undertaking suitable precautions to scan for computer viruses and maintaining a backup of all data and/or equipment.

To the extent that you have created a password and/or provided account information in connection with your use of the Websites, you agree that you will be responsible for maintaining the confidentiality of your password and account information, and that you will restrict access to your computer to avoid disclosure of such.  You further agree that you will be responsible for all activity taken under your password and/or account.

Indemnity

You will indemnify NewBay, and each of its parent, subsidiary and affiliated entities, officers, directors, members, employees, representatives, licensees, agents, successors, assignees and partners, from and against any and all claims, demands, losses, liabilities, damages, costs and expenses (including but not limited to attorneys’ fees) suffered, incurred or brought against any one or more of them by a third party relating to, or arising from or in connection with: (i) your breach or alleged breach of any of your representations and/or warranties set forth in these Terms and Conditions; (ii) your use of the Websites; and/or (iii) any violation of these Terms and Conditions.  You agree that your representations and warranties, and your obligation to indemnify NewBay, shall survive beyond any term for which these Terms and Conditions are in effect.

Release

You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any act or omission of, other users of the Websites.

Electronic Communications

When you communicate with NewBay electronically, via email or otherwise, you consent to receive electronic communications from NewBay.  You agree that all communications (including, but not limited to all notices, agreements and disclosures) provided to you electronically by NewBay satisfy any legal requirement that such communication be in writing.  NewBay encourages you to retain your own copies of relevant information, however, upon your written request, NewBay will provide you with a copy of the information you provided to NewBay when creating your Member account.  To make such a request please contact: PrivacyInfo@nbmedia.com.

With respect to all communications you make to or through the Website, including but not limited to feedback, questions, comments, suggestions and the like: (i) you shall have no right to confidentiality in your communications and NewBay shall have no obligation to protect your communications from disclosure; (ii) NewBay shall be free to reproduce, use, publish, display, disclose and distribute your communications to others without limitation; and (iii) NewBay shall be free to use any ideas, concepts, know-how, information, data content or techniques contained in your communications for any purpose whatsoever, including but not limited to the development, production and marketing of products and services that incorporate such information.

Acquisition of Business

In the event that NewBay and/or any of its affiliated entities is involved in a merger, acquisition, consolidation, restructuring, reorganization, liquidation, sale or similar transaction relating to any portion of its business and/or assets, you hereby acknowledge and agree that this Website, all data collected on this Website, and all rights of NewBay and its affiliated entities hereunder may be included in the assets of, and/or transferred pursuant to, such transaction.  If that occurs, NewBay will post a notice to such effect on this Website.

Contact Us

If you have any questions concerning the Websites or any of the policies set forth in these Terms and Conditions, please contact us at PrivacyInfo@nbmedia.com.

U.S. Export Controls

Software from or related to the Websites (the “Software”) may be subject to United States export controls or the export controls of other countries from where the Site may be accessed. No Software may be downloaded from the Websites or otherwise exported or re-exported in violation of U.S. or other countries’ export laws, as applicable.  Downloading or using the Software is at your sole risk

Disputes and Governing Law

Use of the Websites and these Terms and Conditions shall be governed by the laws of the State of New York of the United States of America, without regard to its conflict of law provisions.  In the event that any portion of these Terms and Conditions is deemed unenforceable, unlawful or void by a tribunal of competent jurisdiction, in any jurisdiction for any reason, unless narrowed by construction, such portion of these Terms and Conditions shall, for purposes of such jurisdiction only, be construed as if such invalid, prohibited or unenforceable portion had been more narrowly constructed so as not to be invalid, prohibited or unenforceable (or if such provision cannot be drawn narrowly enough, the tribunal making any such determination shall have the power to modify such portion of these Terms and Conditions to the extent necessary to make such portion of these Terms and Conditions enforceable in such jurisdiction, and such portion shall then be applicable in such modified form in such jurisdiction).  If, notwithstanding the foregoing, any such portion of these Terms and Conditions would be held to be invalid, prohibited or unenforceable in any jurisdiction for any reason, such portion, as to such jurisdiction only, shall be ineffective to the extent of such invalidity, prohibition or unenforceability, without invalidating the remaining provisions set forth in these Terms and Conditions.  No narrowed construction, modification or invalidation of any portion of the Terms and Conditions shall affect the construction, validity or enforceability of such portion in any other jurisdiction. No waiver by NewBay of any term or condition of these Terms and Conditions shall be deemed a further or continuing waiver of such term or condition or of any other term or condition, and NewBay’s failure to assert any right or demand compliance with any provision of these Terms and Conditions shall not be deemed to constitute a waiver of any such right or provision.

Except where prohibited by law, as a condition of you clicking acceptance of these Terms and Conditions and/or accessing and/or using the Websites, you agree that (1) any and all disputes and causes of action you seek to bring arising out of or connected with the Websites or the Materials shall be resolved individually, without resort to any form of class action, and exclusively by final and binding arbitration in New York within one year from the date that the cause of action arose (or, if multiple cause of actions are involved, from the date that the first cause of action arose), with such arbitration conducted pursuant to the then prevailing rules of the American Arbitration Association; and (2) judgment upon such arbitration award may be entered in any court having jurisdiction.  To the fullest extent permitted by law, no arbitration brought pursuant hereto shall be joined to any other action or arbitration.

The rules governing arbitration are different than those in court.  Arbitration does not involve a judge or jury and review is limited, but an arbitrator can award the same damages as a court.  Except as may otherwise be provided in AAA’s Consumer Due Process Protocol that allows consumers to file certain claims in small claims court, you understand that by accepting these Terms and Conditions, you are giving up your right to a trial in court, either with or without a jury. 

To the fullest extent permitted at law, under no circumstances will you be permitted to obtain an award for, and by accessing and/or using the Sites you waive all rights to claim, punitive, incidental, consequential or any other damages (including multiplied and/or increased damages and/or attorneys’ fees and court costs) for, any dispute or cause of action that you may have that relates in whole or part to the Websites and/or the Materials. Notwithstanding anything to the contrary set forth in these Terms and Conditions or otherwise, your recovery with respect to any and all claims, judgments, and awards for which you are entitled shall, to the fullest extent permitted at law, be limited to your actual out-of-pocket costs incurred, excluding attorneys’ fees and court costs.

Notwithstanding anything to the contrary set forth in these Terms and Conditions, NewBay may at any time seek injunctive or other appropriate relief against you and/or against others, in any state or federal court in the state of New York and/or in any other court chosen by NewBay in the event that NewBay believes that there is a violation, or a threatened violation, of any of NewBay’s intellectual property rights and, in such case, you hereby consent to the exclusive jurisdiction and venue of such court.

Apple App Store Additional Terms and Conditions

The Terms and Conditions constitute an agreement between you and NewBay and not you and Apple. However, if you are using an App from the Apple App Store (the “App”), you will be subject to terms and conditions governing your use of the App that may be in addition to or in conflict with the Terms and Conditions, including Usage Rules set forth in the App Store Terms of Service.. In all circumstances, you will be subject to the more restrictive terms and conditions and/or those terms and conditions specifically intended to govern your use of Apps you purchase or obtain from the Apple App Store.

You are granted a non-transferable license to use the App on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service. You agree to comply with all applicable third party terms and conditions of use and other usage rules when using the App.

NewBay is solely responsible for providing any maintenance and support services with respect to the App. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. Further, NewBay is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of NewBay, to the extent permitted under applicable law. Further, NewBay is responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement;(iii) intellectual property infringement claims; and (iv) claims arising under consumer protection or similar legislation, to the extent permitted by applicable law. If you have questions, complaints or claims with respect to the App, these should be addressed to NewBay at App Development, NewBay Media, LLC, 28 East 28th Street, 12th Floor, New York, NY 10016.

NewBay and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the Terms and Conditions, and that, upon your acceptance of the Terms and Conditions, Apple will have the right to enforce this Agreement against you as a third party beneficiary thereof.