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READ CAREFULLY. THIS SUBSCRIPTION AGREEMENT ("THE AGREEMENT") IS A LEGALLY BINDING AGREEMENT BETWEEN YOU ("YOU" AND "YOUR") AND THE BROADBAND COMEDY NETWORK, INC. ("BCN," "WE," "US," OR "OUR"). BY CLICKING THE "I AGREE" BUTTON YOU ARE INDICATING THAT YOU HAVE READ THIS SUBSCRIPTION AGREEMENT (THE "SUBSCRIPTION AGREEMENT"), THAT YOU UNDERSTAND IT, AND THAT YOU CONSENT TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. THIS AGREEMENT SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO YOUR SUBSCRIPTION TO BCN'S JOKE DONKEY SUBSCRIPTION SERVICE(S) THAT YOU HAVE SELECTED (THE "SUBSCRIPTION SERVICE(S)"). IF YOU DO NOT AGREE TO THE TERMS OF THIS SUBSCRIPTION AGREEMENT, YOU SHOULD CLICK "I DO NOT AGREE" AND STOP THE SUBSCRIPTION REGISTRATION PROCESS.
1. 1. ENROLLMENT IN THE SUBSCRIPTION SERVICES
You may purchase a reoccurring subscription to the following service (the "Subscription Service"): a subscription-based premium Internet comedy service that includes a wider array of comedy content, promotional benefits and enhanced features as compared to our free website.
In exchange for your reoccurring subscription fee and subject to certain limitations as described herein, you will be granted the right to stream any of the BCNonline.com JOKE DONKEY subscription broadcast(s), content and simultaneously have access to our broad range of editorial and contextual information about the artists your listening to and their recordings.
In order to use the Subscription Service, The Broadband Comedy Network, Inc. ("BCN") may at times require you to downloaded and install third party Peer-to-Peer technology, and possess the hardware and software required to stream audio through your computer and be connected to the Internet.
By subscribing to our Subscription Service, you are representing to us that you are authorized to use the credit card you submit for payment. If you are a parent or guardian paying for a subscription on behalf of a minor or other person, then you hereby agree to the terms of this Agreement and agree to take responsibility for the actions of such person, any charges associated with that person's use of any of the Subscription Services, and that person's compliance with this Agreement. You agree to take such steps as are appropriate to ensure such compliance and will indemnify and hold BCN and its affiliates and distribution and syndication partners harmless from any breach of this Agreement.
2. TERM, FEES AND PAYMENTS
(a) Free Trial Period
Once you have registered for the Subscription Service(s) of your choice, we may offer you a one-time, free trial period during which you can try out such Subscription Service(s) for free ("Free Trial Period"). The length of any such Free Trial Period may vary from time to time, and will be indicated at the time you register for your subscription. If you terminate your subscription prior to the expiration of the Free Trial Period, you will not have any financial obligation with respect to your subscription, and your credit card will not be charged for your use of the Subscription Service. The Free Trial Period will expire at midnight Pacific Standard Time on the last day of the Free Trial Period, and your initial paid subscription will automatically be activated at 12:01am on the day following the last day of your Free Trial Period ("Activation Date"). Each user is entitled to a Free Trial Period only one time per Subscription Service. If you register for a Subscription Service after you have already received a Free Trial Period on such Subscription Service, your credit card will be billed immediately upon registration.
(b) Initial Subscription Payment
By registering for the Subscription Services, you agree that if you continue your subscription beyond the Free Trial Period, you will pay the applicable fee for the Subscription Service that you selected upon registration. If you do not cancel your subscription prior to the expiration of the Free Trial Period, we will charge your credit card or PayPal account, on your Activation Date, the subscription fee indicated at the time you registered for the subscription. Your subscription fee will automatically be charged to the credit card or PayPal account you designated as the credit card or PayPal account to be billed for your membership.
(c) Automatic Subscription Renewal
Unless you notify us of your decision to terminate your subscription or personally cancel your reoccurring subscription via your PayPal.com account, your subscription will automatically renew at the end of each subscription term. Your renewed subscription will have the same duration as the subscription being renewed (e.g. one month, one quarter, etc...). At the time of renewal, your credit card will be charged our then-current fee for your renewed subscription, provided that if the fee for your renewal subscription increases, we will notify you at your designated email address at least fourteen (14) days prior to renewal so that you have an opportunity to elect not to renew.
(d) Your Billing Date
Your credit card will be charged for the renewal of your subscription on your billing date ("Billing Date"). The Billing Date for your renewed subscription shall be on the monthly anniversary of your Activation Date if you have a month-long subscription, or on the quarterly anniversary of your Activation Date if you have a three-month subscription. If, however, your Activation Date is on the 29th, 30th or 31st day of a month, and your Billing Date does not exist because there are fewer than thirty-one (31) days in the month payment is due, your Billing Date for that particular renewal will be on the last day of the month in which your Billing Date would otherwise be.
(e) Subscription Upgrades
If you would like to change the Subscription Service(s) to which you subscribe, you may change or upgrade your subscription at any time by clicking on the Member Profile Or Manage Account button on the main JOKE DONKEY page and selecting the appropriate link under Account Management. Unless otherwise indicated on the BCN JOKE DONKEY Members Profile Page, you will need to cancel your current subscription prior to changing or upgrading to a new Subscription Service. If you change the Subscription Service(s) to which you subscribe during the term of your original subscription, your new Subscription Service will not begin until after your original subscription expires. Thus, if 15 days remain on your original plan and you decide to upgrade to a 6 month Subscription Service, your new subscription will not begin until the termination of your original plan, and your credit card will be charged for the full amount of your new subscription which shall be activated on the date following the end of your original plan.
(g) No Refunds
All fees and charges, including charges for automatically renewed subscriptions, are nonrefundable. However, you may terminate your subscription at any time by clicking on the Member's Profile button on the BCN JOKE DONKEY Main Page and selecting the appropriate link under Subscription Management or by logging into your PayPal.com account and canceling the reoccurring subscription payment from BCN.
(h) Methods of Payment and Credit Card Terms
All payments must be made by PayPal Accounts, VISA, MasterCard, American Express or Discover Card. Your PayPal account and your card issuer agreement governs your use of your designated PayPal account or credit card in connection with the Subscription Service, and you must refer to that agreement and not this Subscription Agreement to determine your rights and liabilities as a PayPal customer and credit cardholder. YOU, AND NOT BCN, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, WHICH WERE NOT AUTHORIZED BY YOU. You agree to pay all fees and charges incurred in connection with your subscription and its password (including any applicable taxes) at the rates in effect when the charges were incurred. If BCN does not receive payment from PayPal or your credit card issuer or its agent, you agree to pay all amounts due upon demand by BCN.
BCN will accept payments by cashiers check or money order for the subscription service; however, an additional $5.00 surcharge will be added for the manual entering of account and password information. Please fill out the Subscription Request form and mail it to BCN along with your cashiers check or money order to the address below:
Attn: BCN JOKE DONKEY
6422 Kessler Ave.
Woodland Hills, CA 91367
BCN will notify you using the email address designated on your Subscription Request form when your username and password has been activated. The process can take approximately 3-5 working days upon receipt of you Subscription Request form.
(i) Unauthorized Charges
Unless you notify BCN of any discrepancies or unauthorized charges within sixty (60) days after they first appear on your credit card statement, they will be deemed accepted by you for all purposes, including resolution of inquiries made by your card issuer. You release BCN from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to BCN within sixty (60) days of its first appearance on an invoice or credit card statement.
(j) Late Payments
Your account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your subscription to the applicable Subscription Service(s).
You are responsible for paying any governmental taxes imposed on your use of the Subscription Service(s), including, but not limited to, sales, use or value-added taxes.
(l) Modifications to Fees or Billing Terms
BCN RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS SUBSCRIPTION FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT, OR SERVICES PROVIDED BY BCN, EFFECTIVE UPON FOURTEEN (14) DAYS NOTICE TO YOU AT YOUR DESIGNATED EMAIL ADDRESS. If any such change is unacceptable to you, you may terminate your subscription to the Subscription Service by clicking on the Member Profile button on the main JOKE DONKEY page and selecting the appropriate link under Member's Profile or by logging into your PayPal.com account and canceling the reoccurring subscription payment from BCN. YOUR CONTINUED USE OF THE SUBSCRIPTION SERVICE(S) FOLLOWING THE EFFECTIVE DATE OF A CHANGE TO FEES OR BILLING METHODS SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGE.
YOUR ACCEPTANCE OF THIS AGREEMENT MEANS THAT YOU GIVE CONSENT TO BCN TO EMAIL YOU WITH NOTICES CONCERNING A MATERIAL CHANGE IN THE TERMS OF THIS AGREEMENT, THE APPLICATION OR SUBSCRIPTION SERVICE(S) THAT YOU HAVE SUBSCRIBED TO.
(a) Termination By You
You may choose not to renew your Subscription upon receipt of your Subscription Renewal Notice or Change of Subscription Notification. You may elect at that time to cancel the auto-renewal of your subscription by clicking on the appropriate link provided in the Subscription Renewal Notice, Change of Subscription Notification or by logging into your PayPal.com account at any time and canceling the reoccurring subscription payment from BCN. Once you have terminated your subscription, we will stop billing your credit card upon the completion of your current subscription term until and unless you re-subscribe to the Subscription Service. All fees paid and charges made prior to termination as provided herein are nonrefundable, including any advance charge or payment for the subscription term during which you terminate your subscription. Termination of your subscription shall not relieve you of any obligations to pay accrued charges.
(b) Termination By Us
4. CUSTOMER SERVICE
You understand and agree that BCN is solely responsible for all customer service, help, billing and account issues related to your subscription. Neither your ISP nor any third party website through which you may have accessed any Subscription Service is responsible for customer service, help, billing and account issues related to your subscription. You agree not to direct any questions, requests for assistance, or inquiries about the Application or any Subscription Service to your ISP or to any third party website through which you may have accessed the Subscription Service.
5. YOUR ACCOUNT INFORMATION
(a) True and Complete
You agree to provide true, accurate, current and complete information about yourself and your billing information as prompted by the subscription process (such information being the "Account Information").
(b) Updating Your Account Information
You may update any of your Account Information, designate a different credit card to be billed, or change the applicable expiration date on your currently designated credit card, by clicking on the Member's Profile button on the BCN JOKE DONKEY Main Page and selecting the appropriate link under Account Management.
(c) Our Use of Account Information
(d) Stolen Account Information Your Responsibility
You are solely and entirely responsible for maintaining the confidentiality of your password, and for any and all activities that occur under your account. If you believe someone has accessed any Subscription Service using your user name and password without your authorization, it is your responsibility to notify us at , and to set up a new password by clicking on the Member's Profile button on the BCN JOKE DONKEY Main Page and selecting the appropriate link under Change Password.
6. INTELLECTUAL PROPERTY RIGHTS
Only you may access the Subscription Services using your user name and password. The Subscription Services available through the web site, and the broadcast itself, are the property of BCN or its licensors and are protected by copyright and other intellectual property laws. The Subscription Services provided through the web site may be used for your personal, non-commercial use only. You agree not to (i) reproduce, record, retransmit, distribute, disseminate, sell, rent, broadcast or circulate the broadcast and web site or any content received through the broadcast or any Subscription Service (including comedy content) to any third party, (ii) exploit any such content or the broadcast for commercial purposes without the express prior written consent of BCN, or (iii) to share your password with any third party. You may not make any unauthorized copies of the broadcast or any content obtained through the Subscription Services. Because the Subscription Services are designed for personal use, you are not allowed to use any automated system for the selection or streaming of files. You further agree to indemnify and hold harmless BCN for your failure to comply with this section.
BCN and its licensors retain exclusive ownership of the broadcast, the Subscription Services, and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Subscription Services, the broadcast or their contents. BCN reserves all rights not expressly granted hereunder. You shall promptly notify BCN in writing upon your discovery of any unauthorized use or infringement of the Subscription Services (or their contents) or any patent, copyright, trade secret, trademarks or other intellectual property rights of BCN or its licensors. The broadcast and the Subscription Services contain proprietary information that is protected by copyright laws and international treaty provisions.
BCN expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) and reserves the right to terminate your service immediately for your failure to comply with any such local, state or federal law.
7. TECHNOLOGY LIMITATIONS AND MODIFICATIONS TO SERVICE
BCN will make reasonable efforts to keep your account and the Subscription Service(s) operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. We will make reasonable efforts to notify you at least twenty four (24) hours in advance of any downtime that we anticipate in advance will exceed one hour.
BCN also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions and features of the broadcast and Subscription Service(s) with or without notice. Due to contractual or other limitations, from time to time, some tracks available in any particular catalog may no longer be available. BCN reserves the right to change the tracks and albums available in any catalog at any time.
BCN shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, malfunction, suspension, discontinuance of or interruption to or of any of the Subscription Service(s).
8. LIMITATION OF LIABILITY
THE ENTIRE RISK ARISING OUT OF THE USE AND/OR PERFORMANCE OF THE SUBSCRIPTION SERVICE(S) REMAINS WITH YOU. IN NO EVENT SHALL BCN OR ITS LICENSORS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS SUBSCRIPTION AGREEMENT OR THE USE OF OR INABILITY TO USE ANY SUBSCRIPTION SERVICE, EVEN IF BCN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, BUT THEY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
9. MODIFICATION OF SUBSCRIPTION AGREEMENT
BCN may modify this Subscription Agreement at any time in its sole discretion. If we make a material change to the Subscription Agreement, a "change of terms" notice will be posted and we will use reasonable efforts to notify you by email at the email address on file for your account. If any modification is unacceptable to you, you agree that your only recourse is to terminate your subscription to any of the Subscription Service(s) as provided herein. Your continued use of any Subscription Service following our posting of a change of terms notice, an email notice to you, or a new Subscription Agreement on the Application will constitute your binding acceptance of the change, until such time as you terminate your subscription.
You agree to indemnify and hold BCN and its parents, members, subsidiaries, affiliates, service providers, syndicators, distributors, licensors, officers, directors and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to, or arising out of or related to your violation of this Agreement, or your violation of any law, regulation or third-party right.
12. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California, United States of America, without regard to or application of any choice of law or conflict of laws provisions. You consent to the exclusive jurisdiction of the state and federal courts sitting in Los Angeles, in the State of California. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. If either BCN or you employs any attorneys to enforce any rights arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs.
No delay or failure to take action under this Agreement shall constitute any waiver by BCN of any provision of this Agreement.
NOTE: BCN, BCNonline.com, Joke Donkey, Jokedonkey.com and BCN, Inc are trademarks' of the Broadband Comedy Network, Inc.