1.1. Effective Date. The effective date of this Agreement is July 1st, 2016.
1.2. Agreement. Welcome to GunAuction99.com by Rocket Radio, Inc. ("Rocket Radio, Inc.s" or "Company") recommends that you read the following terms and conditions carefully. By accessing or using the GunAuction99.com website, the GunAuction99.com Service, including any software applications made available by GunAuction99.com (together, the "Website" or "Service"), however accessed or used, you agree to be bound by these terms (the "Terms of Service" or the "Agreement"). By using the Service, you agree to be bound by this Agreement, constituting a legally binding agreement between Rocket Radio, Inc. and you concerning your use of the Service. We encourage you to print the Agreement or save it to your computer for reference.
1.5. Arbitration and Remedies. These terms contain a mandatory arbitration of disputes provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute. See Section 25 (Dispute Resolution) for full details.
4.1. By accessing and/or using the Service, including by doing so after accessing this Agreement, you represent and warrant that you are at least 18 years old, and are otherwise legally qualified to enter into and form contracts under applicable law.
4.2. You may not advertise, or buy or sell, goods through Service if, under any laws or court orders that apply to you, you are prohibited from buying, selling, or possessing firearms or other weapons. See Section 6 (Firearms Laws and Regulations).
4.3. Corporate Use. If you are using the Service on behalf of a company, you further represent and warrant that you are authorized to act and enter into contracts on behalf of that company.
5. Marketplace Platform.
5.1. GunAuction99.com is a platform for users to advertise their own firearms and other weapons for sale, and to arrange separate communications and sales outside the GunAuction99.com Service. Company does not buy or sell any goods, and never possesses any of the goods its users advertise on the Service.
5.2. Rocket Radio, Inc.'s role is limited because Rocket Radio, Inc. is not directly involved in sales. Without limitation, Rocket Radio, Inc. does not guarantee that it will pre-screen sellers or buyers. Rocket Radio, Inc. does not guarantee the identity of any user. Rocket Radio, Inc. does not necessarily prescreen the content and/or information provided by users. Rocket Radio, Inc. does not directly control the quality of any aspect of the items listed, or the seller services and logistics associated with the sale, including the accuracy of any content related to any item listing. Rocket Radio, Inc. does not guarantee that any user, buyer or seller, will complete transactions. Unless stated otherwise in this Agreement, sellers are responsible for product warranties and customer service, and buyers are responsible for conducting their own due diligence. Rocket Radio, Inc. does not take or transfer ownership of items or liability. For additional information, please carefully review Section 22 (Disclaimers; Limitation of Liability).
6. Firearms Laws and Regulations.
6.1. Federal and state laws and regulations (collectively, "Laws") apply to sales of firearms and other weapons. The Laws include the National Firearms Act of 1934, the Gun Control Act of 1968, the Arms Export Control Act and the related International Traffic in Arms Regulations, regulations issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives, and others.
6.2. Because Company is not a seller, it does not possess a Federal Firearms License ("FFL").
6.3. It is each seller's and buyer's responsibility to comply with the Laws. If you are a seller, your compliance may include obtaining and maintaining an FFL. If you are a buyer, you should verify that you are buying from a holder of a valid FFL. Bureau of Alcohol, Tobacco, Firearms and Explosives provides an FFL search system at https://www.atfonline.gov/fflezcheck/.
6.4. Company cannot advise you about firearms laws. If you are not sure about the Laws, contact a lawyer for advice before posting a listing to, or buying anything posted on, GunAuction99.com.
6.5. You may only list an item on GunAuction99.com if you comply with all applicable Laws regarding its advertising, sale, and shipment.
7. License. Subject to your compliance with these Terms of Service, Rocket Radio, Inc. grants you a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to access the GunAuction99.com websites (located at the following URL: GunAuction99.com), and to use the Service. The Service, including any portion of the GunAuction99.com Website, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, transmitted, or otherwise exploited for any commercial purpose without the prior, express written consent of Rocket Radio, Inc.. All rights not expressly granted in this Agreement are reserved by Rocket Radio, Inc.. Without limitation, this Agreement grants you no rights to the intellectual property of Rocket Radio, Inc. or any other party, except as expressly stated in this Agreement. The license granted in this section is conditioned on your compliance with this Agreement. Your rights under this section will immediately terminate if you breach, actually or potentially, in the sole judgment of Rocket Radio, Inc., any provision of this Agreement.
8.1. All transmissions of payment information between you and the Website are secured with Internet-standard TLS (also known as HTTPS) encryption.
8.2. We collect your name, address, and payment information to process your order.
8.3. We do not store any credit card information submitted during any payment.
9. No Reliance on Third Party Content. Opinions, advice, statements, or other information made available through the Service by third parties are those of their respective authors, and should not necessarily be relied upon. Those authors are solely responsible for their content. Rocket Radio, Inc. does not: (i) guarantee the accuracy, completeness, or usefulness of any third-party information accessible on or through the Service; or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by a third party through the Service. Under no circumstances will GunAuction99.com be responsible for any loss or damage resulting from your reliance on information or other content posted through the Service transmitted to or by any third party.
10. Assumption of Risk; Release. You knowingly and freely assume all risk when using the Service. You, on behalf of yourself, your personal representatives, and your heirs, voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify Rocket Radio, Inc. and its stockholders, officers, directors, employees, agents, affiliates, consultants, representatives, sublicensees, successors, and assigns (collectively, the "Company Parties") from any and all claims, actions, or losses for bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or other damages or harm, whether to you or to third parties, that may result from your use of the Service.
11. User Account, Accuracy, and Security.
11.1. User Account. To access and use certain parts of the Service, you may be asked to create a user account ("Account"), and to provide information that personally identifies you ("Personal Information").
11.4. Account Security. You will also be asked to provide a username, password, and possibly other information to secure your Account. You are entirely responsible for maintaining the confidentiality of your password. You may not use the username or password of any other user at any time, nor may you share your username and password, nor may you circumvent any authentication mechanism requiring the entry of usernames, passwords, or any other information to gain unauthorized access to the Service. You agree to notify GunAuction99.com immediately of any unauthorized use of your Account. Rocket Radio, Inc. shall not be liable for any loss that you incur because of someone else using your Account, either with or without your knowledge. You may be held liable for any losses incurred by Rocket Radio, Inc., its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else's use of your Account.
12. Interactions with Other Users. You are solely responsible for your interactions with other GunAuction99.com users. You acknowledge and understand that Rocket Radio, Inc. has not, and does not, in any way guarantee that it will: (a) screen its users; (b) inquire into the backgrounds of its users; or (c) review or verify the statements of its users. You agree to exercise reasonable caution in all interactions with other users, particularly if you decide to meet another user in person. GunAuction99.com does not represent, warrant, endorse, or guarantee the conduct of its users. In no event shall GunAuction99.com be liable for indirect, special, incidental, or consequential damages arising out of or relating to any user's conduct in connection with such user's use of the Service, including, without limitation, bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or any other damages resulting from communications or meetings between users.
13. Consent to Receive Electronic Communications from Company. By registering for the Service and providing your name, email, postal or residential address, and/or phone number through the Service, you expressly consent to receive electronic and other communications from Rocket Radio, Inc., over the short term and periodically, including email communications. These communications will be about the Service, new product offers, promotions, and other matters. You may opt out of receiving electronic communications at any time by following the unsubscribe instructions contained in each communication, or by sending an email to email@example.com. You agree that these electronic communications satisfy any legal requirements that communications or notices to you be in writing.
14. Consent to Receive Electronic Communications from Users. Without limitation, by registering for the Service and providing your name, email, postal or residential address, and/or phone number through the Service, you consent to receive electronic communications, including email, instant messages, video conferencing, and other personal messages from other users of the Service.
15.1. Listing Fees & Non-Refundable Policy. Rocket Radio, Inc. SHALL NOT REFUND ANY LISTING FEES. GunAuction99.com charges sellers a flat fee of .99 cents (ninety nine cent) per listing item, therefore, if for example: a seller lists 10 items in one day the seller will be charged .99 cents times 10 items. The flat fee of .99 cents is charged at the time of each listing and is Non-Refundable. GunAuction99.com offers a sale fee for all each listed transaction of .99 cents. It does not matter the amount of each listed transaction. GunAuction99.com Auction simply charges a flat fee of .99 cents for every listed transaction, which is non-refundable. If you sell any item GunAuction99.com will collect .99 cent regardless if you consummate your deal or not, therefore, if the buyer backs out GunAuction99.com will still collect their .99 cent fee.
Listing Fees. GunAuction99.com charges sellers a fee for listing items for sale on the Service. All fees are payable in US dollars. For any services with a recurring monthly fee, GunAuction99.com shall charge a base rate in US dollars per month, which will be due and collected in full at the beginning of each month that users opt for the services. In all cases, fees are due and collected in full before the services are rendered.
15.2. Reserved Rights for Company's Fees.
15.2.1. Rocket Radio, Inc. reserves the right, in its sole discretion, to change the fees and charges in effect, or to add new fees and charges, by posting such changes or providing notice to you. All fees and charges are nonrefundable, and there are no refunds, nor are there credits for partially used membership periods.
15.2.2. Rocket Radio, Inc.'s decision not to exercise any specific right or require performance of any specific obligation under this Agreement, including the collection of regularly recurring fees from you, shall not affect Rocket Radio, Inc.'s later ability to exercise such right or require such performance at any later time. Nor shall Rocket Radio, Inc.'s waiver of your breach constitute a waiver of any later breach by you or any other user of the Service. By using the Service, you authorize Rocket Radio, Inc., and/or its payment processor, to charge GunAuction99.com's fees to the credit card, debit card, or other payment method you provide, in addition to applicable sales taxes and other taxes.
16. Third Party Websites. The Service is linked with the websites of third parties ("Third Party Websites"), some of whom may have established relationships with GunAuction99.com and some of whom may not. GunAuction99.com does not have control over the content and performance of Third Party Websites. Rocket Radio, Inc. has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on Third Party Websites. Accordingly, Rocket Radio, Inc. does not represent, warrant, or endorse any Third Party Websites, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third Party Websites. Rocket Radio, Inc. disclaims, and you agree to assume, all responsibility and liability for any damages or other harm, whether to you or to third parties, resulting from your use of Third Party Websites.
17. User Content.
17.1. User Content Defined. "User Content" is any content, material, or information, not including personally identifiable information (e.g., first and last name, address, phone number, email address, etc.), that you submit, upload, and/or post to, or transmit, display, perform, or distribute through the Service, whether in connection with your use of the Service or otherwise. This includes, without limitation, personal photos and videos.
17.2. You Own Your User Content. Rocket Radio, Inc. does not claim ownership of any User Content. You retain all right, title, and interest, including without limitation all worldwide intellectual property rights, in and to your User Content.
17.3. License of User Content. By submitting, uploading, or posting User Content in any form with, through, or to the Service, you grant the Company Parties a royalty-free, perpetual, non-exclusive, unrestricted, fully paid-up, worldwide, sublicensable, revocable (as set forth in Section 7 (License) of this Agreement), assignable license to copy or otherwise reproduce, modify, adapt, translate, distribute, enhance, transmit, publicly display or perform, reformat, and/or otherwise use User Content in connection with the operation of the Service, or any other similar or related business, in any medium now existing or later devised, including without limitation in advertising and publicity. You further agree that the Company Parties may publish or otherwise disclose your personal information in connection with their exercise of the license granted under this section. You agree to waive, and waive, any claims arising from or relating to the exercise by the Company Parties of the rights granted under this section, including without limitation any claims relating to your rights of personal privacy and publicity. You will not be compensated for any exercise of the license granted under this Section.
17.4. Your Representations About User Content. You represent and warrant that you: (a) own all rights, title, and interest in and to all User Content you submit, or are otherwise authorized to grant the rights provided the Company Parties under this section; or (b) have written consent, release, and/or permission of every identifiable individual person in any User Content you submit to use the name and likeness of every identifiable person in the User Content. You agree that you will not submit any User Content that does not fully comply with Rocket Radio, Inc.'s prohibitions against Objectionable Content, as detailed in Section 19 (Objectionable Content).
17.5. Company's Right to Reject User Content. Rocket Radio, Inc. reserves the right, in its sole discretion, to reject any User Content for any reason. The categories specified in Section 19 (Objectionable Content) and Section 20 (Prohibited Uses) are not exhaustive lists of content that Rocket Radio, Inc. reserves the right to remove or deny.
17.6 California Online Privacy Protection Act Compliance. Because we value your privacy we have taken the necessary precautions to be in compliance with the California Online Privacy Protection Act. We therefore will not distribute your personal information to outside parties without your consent.
17.7 Childrens Online Privacy Protection Act Compliance. We are in compliance with the requirements of COPPA (Childrens Online Privacy Protection Act), we do not collect any information from anyone under 13 years of age. Our website, products and services are all directed to people who are at least 13 years old or older.
18. Your Responsibility for Defamatory Comments.
18.1. You agree and understand that you may be held legally responsible for damages suffered by other users or third parties as the result of your remarks, information, feedback, or other content posted or made available through the Service that is deemed defamatory or otherwise legally actionable. Under Section 230 of the Federal Communications Decency Act of 1996,Rocket Radio, Inc. is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback, or other content posted or made available through the Service.
18.2. If you raise or file any claim against Rocket Radio, Inc. for conduct that a Court of Competent Jurisdiction later finds to constitute an "exercise of a publisher's traditional editorial functions," or the legal equivalent, you agree to fully and immediately compensate Rocket Radio, Inc. for all losses, liability, damages, costs, and expenses, including without limitation all attorneys' fees and expenses in defending the action and resolving the matter. If you fail to compensate Rocket Radio, Inc. for any such claim, you agree and authorize Rocket Radio, Inc. to report your Personal Information, including without limitation your unpaid claim, to consumer credit reporting services, collection agencies, and others.
20. Prohibited Uses. Rocket Radio, Inc. imposes certain restrictions on your use of the Service. Any violation of this section may subject you to civil and/or criminal liability. The following are expressly prohibited:
20.1. violating, or conspiring to violate, any applicable Laws related to firearms or other weapons
20.2. harassing or stalking any person, or contacting any person who has requested not to be contacted
20.3. providing false, misleading, or inaccurate information to Rocket Radio, Inc. or any other person in connection with the Service
20.4. impersonating, or otherwise misrepresenting affiliation, connection, or association with, any person or entity
20.5. modifying or changing the placement and location of any advertisement posted through the Service
20.6. harvesting or otherwise collecting information about users, including email addresses and phone numbers
20.7. without express written permission from Rocket Radio, Inc., using or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Service for any use, including without limitation use on Third Party Websites
20.8. accessing content or data not intended for you, or logging into a server or account that you are not authorized to access
20.9. attempting to probe, scan, or test the vulnerability of the Service, or any associated system or network, or breaching security or authentication measures without proper authorization
20.10. interfering or attempt to interfere with the use of the Service by any other user, host, or network, including (without limitation) by submitting malware or exploiting software vulnerabilities
20.11. using the Service to send unsolicited email, including without limitation promotions or advertisements for products or services
20.12. forging, modifying, or falsifying any network packet or protocol header or metadata in any connection with, or transmission to, the Service (for example, SMTP email headers, HTTP headers, or Internet Protocol packet headers)
20.13. while using the Service, using ad-blocking or other content-blocking software, browser extensions, or built-in browser options designed to hide, block, or prevent the proper display of online advertising
20.14. attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Company Parties in providing the Service, including without limitation any fraudulent effort to modify software or any other technological mechanism for measuring the number of impressions generated by individual content and/or the overall Service to determine and/or audit advertising revenues and payments, if applicable
20.15. creating additional accounts to promote your (or another's) business, or causing others to do so
20.16. paying anyone for interactions on the Service
21. Intellectual Property.
21.1. Compliance with Law.
21.1.1. You represent and warrant that, when using the Service, you will obey all applicable laws and respect the intellectual property rights of others. Your use of the Service is at all times governed by and subject to copyright and other intellectual property laws. You agree not to upload, post, transmit, display, perform, or distribute any content, information, or other materials in violation of any third party's copyrights, trademarks, or other intellectual property or proprietary rights.
21.1.2. You represent and warrant that you are the sole and exclusive owner of any User Content that you submit through the Service. You shall be solely responsible for any violations of any laws and for any infringements of third-party rights caused by your use of the Service. GunAuction99.com users bear the sole burden of proving that content, information, or other materials do not violate any laws or third-party rights.
21.2. Trademarks. GunAuction99.com and the GunAuction99.com logo (collectively, the "Company Marks") are trademarks or registered trademarks of Rocket Radio, Inc.. Other trademarks, service marks, graphics, logos, and domain names appearing anywhere on, through, or in connection with the Service may be the trademarks of third parties. Neither your use of the Service nor this Agreement grant you any right, title, or interest in, or any license to reproduce or otherwise use, the Company Marks or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the Company Marks generated as a result of your use of the Service will inure to the benefit of Rocket Radio, Inc., and you agree to assign, and do assign, all such goodwill to Rocket Radio, Inc.. You shall not at any time, nor shall you assist others to, challenge Rocket Radio, Inc.'s right, title, or interest in, or the validity of, the Company Marks.
21.3. Copyrighted Materials; Copyright Notice. All content and other materials available through the Service, including without limitation the GunAuction99.com logo, design, text, graphics, and other files, and the their selection, arrangement, and organization, are either owned by Rocket Radio, Inc. or are the property of Rocket Radio, Inc.'s licensors and suppliers. Except as explicitly provided, neither your use of the Service nor this Agreement grant you any right, title, or interest in any such materials.
21.4. DMCA Policy.
21.4.1. As Rocket Radio, Inc. asks others to respect Rocket Radio, Inc.'s intellectual property rights, Rocket Radio, Inc. respects the intellectual property rights of others. Rocket Radio, Inc. follows the notice and takedown procedures in the Digital Millennium Copyright Act ("DMCA").
21.4.2. If you believe content located on or linked to by the Service violates your copyright, please immediately notify Rocket Radio, Inc. by emailed DMCA takedown notice ("Infringement Notice"), providing the information described below. If Rocket Radio, Inc. takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party who made the content available at the most recent email address that party provided to Rocket Radio, Inc..
21.4.3. Under the DMCA, you may be held liable for damages based on material misrepresentations in your Infringement Notice. You must also make a good-faith evaluation of whether the use of your content is a fair use; fair uses are not infringing. (See 17 U.S.C. Section 107, available at https://www.law.cornell.edu/uscode/text/17/107, and Lenz v. Universal Music Corp., No. 13-16106 (9th Cir. Sep. 14, 2015), available at https://www.courtlistener.com/opinion/2937139/stephanie-lenz-v-universal-music-corp/.) If you are not sure if content located on or linked to by the Service infringes your copyright, you should first contact an attorney.
21.4.4. The DMCA requires that all Infringement Notices must include the following:
188.8.131.52. A signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf;
184.108.40.206. An identification of the copyright claimed to have been infringed;
220.127.116.11. A description of the nature and location of the material that you claim to infringe your copyright, in sufficient detail to permit Rocket Radio, Inc. to find and positively identify that material;
18.104.22.168. Your name, address, telephone number, and email address; and
22.214.171.124. A statement by you: (i) that you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner's agent; and, (ii) under penalty of perjury, that all of the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.
21.4.5. Infringement Notices should be sent to [•] with the subject line "DMCA Notice".
21.4.6. Rocket Radio, Inc. will respond to all DMCA-compliant Infringement Notices, including, as required or appropriate, by removing the offending material or disabling all links to the offending material.
21.4.7. Disclosure. All received Infringement Notices may be posted in full to the Lumen database (https://lumendatabase.org/), previously known as the Chilling Effects Clearinghouse.
22. Disclaimers; Limitation of Liability.
22.1. No Warranties. Rocket Radio, Inc., on behalf of itself and its licensors and suppliers, expressly disclaims any and all warranties, express or implied, regarding the Service, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither Rocket Radio, Inc. nor its licensors or suppliers warrants that the Service will meet your requirements, or that the operation of the Service will be uninterrupted or error-free. Rocket Radio, Inc. disclaims all implied liability for damages arising out of the furnishing of the Service pursuant to this Agreement, including without limitation, mistakes, omissions, interruptions, delays, tortious conduct, errors, representations, or other defects arising out of the failure to the furnish the Service, whether caused by acts of commission or omission, or any other damage occurring. Rocket Radio, Inc. shall not be liable for any indirect, incidental, special, consequential, or punitive damages (including without limitation damages for lost profits or lost revenues), whether caused by the acts or omissions of Rocket Radio, Inc., Company Parties, or GunAuction99.com users, or their agents or representatives.
22.2. Your Responsibility for Loss or Damage; Backup of Data.
22.2.1. You agree that your use of the Service is at your sole risk. You will not hold Rocket Radio, Inc. or its licensors and suppliers, as applicable, responsible for any loss or damage that results from your access to and/or use of the Service, including without limitation any loss or damage to any of your computers, mobile devices, including without limitations tablets and/or smartphones, or data. The Service may contain bugs, errors, problems, or other limitations.
22.2.2. Importantly, you acknowledge that a catastrophic disk failure or other similar event could result in the loss of all of the data related to your account. You agree and understand that it is your responsibility to backup your data to your personal computer or external storage device and to ensure such backups are secure.
22.3. Limitation of Liability. In no event shall Rocket Radio, Inc. or its licensors or suppliers be liable to you for any claims arising from your use with the Service, including without limitation for special, incidental, or consequential damages, lost profits, lost data or confidential or other information, loss of privacy, costs of procurement of substitute goods or services, failure to meet any duty including without limitation of good faith or of reasonable care, negligence, or otherwise, regardless of the foreseeability of those damages or of any advice or notice given to Rocket Radio, Inc. or its licensors and suppliers arising out of or in connection with your use of the Service. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action. You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between Rocket Radio, Inc. and you. The Service would not be provided without such limitations.
22.4. Application of Disclaimers. The above disclaimers, waivers, and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between you and Rocket Radio, Inc. or between you and any of Rocket Radio, Inc.'s licensors and suppliers. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. Rocket Radio, Inc.'s licensors and suppliers are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the Service or otherwise shall alter any of the disclaimers or limitations stated in this section.
23. Your Representations and Warranties. You represent and warrant that your use of the Service will be in accordance with this Agreement and any other Rocket Radio, Inc. policies, and with any applicable laws or regulations.
24. Indemnity by You.
24.1. Without limiting any indemnification provision of this Agreement, you (the "Indemnitor") agree to defend, indemnify, and hold harmless Rocket Radio, Inc. and the Company Parties (collectively, the "Indemnitees") from and against any and all claims, actions, demands, causes of action, and other proceedings (individually, "Claim", and collectively, "Claims"), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to Rocket Radio, Inc., including the choice of legal counsel and all related settlement negotiations, arising out of or relating to: (i) the relationship between you and Rocket Radio, Inc., whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) your access to or use of the Service; (iv) your provision to Rocket Radio, Inc. or any of the Indemnitees of information or other data; (v) your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) your violation or alleged violation of any third party's copyrights, trademarks, or other intellectual property or proprietary rights.
24.2. The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. You may not settle any Claim without the prior written consent of the concerned Company Parties.
24.3. Without limitation, the Indemnitor also agrees to compensate Rocket Radio, Inc. for any and all lost revenues, future lost profits, reasonable search costs, and any other reasonable expenses resulting from any Indemnitor violation of Section 20 (Prohibited Uses), including without limitation any suspension of affiliate accounts or affiliate payment attributable to fraudulent efforts to manipulate or otherwise modify reported impressions generated by the Company Parties under any affiliate advertising agreement.
25. Dispute Resolution.
25.1. Binding Arbitration.
25.1.1. If you and Rocket Radio, Inc. cannot resolve a Claim through negotiations, either party may elect to have the Claim finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other(s).
25.1.2. You acknowledge that without this provision, you would have the right to sue in court with a jury trial or to participate in a class action.
25.1.3. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
25.1.4. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA"), as modified by this Agreement, available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Except as otherwise provided for in this Agreement, Rocket Radio, Inc. will pay the AAA filing, administration, and arbitrator fees. If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then you will pay the arbitrator fees, in addition to any amount that exceeds the filing fees. In that case, you also agree to reimburse Rocket Radio, Inc. for all payments disbursed that are your obligation to reimburse under the AAA Rules. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to resolve, except that issues relating to the enforceability of the arbitration provision are for a Court of Competent Jurisdiction to resolve. The arbitration may be conducted in person, through document submission, through telephone, or online. The arbitrator will issue a decision in writing, but need only provide a statement of reasons if requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Rocket Radio, Inc. may litigate to compel arbitration in court, to stay proceedings pending arbitration, or to modify, confirm, vacate, or enter judgment on the award entered by the arbitrator. The arbitrator shall award costs to the prevailing party (including, without limitation, fees, expenses, and reasonable attorneys' fees) at any time during the proceeding and upon request from either party, within 14 days of the arbitrator's ruling on the merits.
25.2. Restrictions Against Joinder of Claims.
25.2.1. You and Rocket Radio, Inc. agree that any arbitration shall be limited to each Claim individually. You and Rocket Radio, Inc. agree that each may only bring claims against the other in your or Rocket Radio, Inc.'s individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
25.2.2. If this specific provision is found to be unenforceable in a Court of Competent Jurisdiction, the Claim will still be finally and exclusively resolved by binding arbitration upon the election of either party, and any election to arbitrate by one party shall be final and binding on the other(s). In addition: (1) no arbitration shall be joined with any other arbitration, and (2) there is no right for any Claim to be arbitrated on a class-action basis or to employ class action procedures, and (3) there is no right of authority for any dispute to be brought in a purported representative capacity on behalf either of the general public or any other individuals.
25.3. Remedies in Aid of Arbitration; Equitable Relief. This agreement to arbitrate will not preclude you or Rocket Radio, Inc. from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration, or confirm an arbitral award, from a Court of Competent Jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or Rocket Radio, Inc. from applying to a Court of Competent Jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. "Court of Competent Jurisdiction" means any federal or state court: (1) that has jurisdiction over the subject matter; and (2) that is located in the State of Arizona.
25.4. Venue for any Judicial Proceeding.
25.4.1. This Agreement, including without limitation this Agreement's interpretation, shall be treated as though this Agreement were executed and performed in the State of Arizona, and shall be governed by and construed in accordance with the laws of the State of Arizona without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
25.4.2. The proper venue for any judicial action arising out of, relating to, or in connection with this Agreement will be the state and federal courts located in or nearest to Phoenix, Arizona. The parties stipulate to, and agree to waive any objection to, the personal jurisdiction and venue of such courts, and further expressly submit to extraterritorial service of process.
26.1. By Company. Without limiting any other provision of this Agreement, Rocket Radio, Inc. reserves the right to, in Rocket Radio, Inc.'s sole discretion and without notice or liability, deny use of the Service to any person for any reason or for no reason at all, including without limitation for any breach or suspected breach of any representation, warranty, or covenant contained in this Agreement, or of any applicable law or regulation.
26.2. Automatic Termination Upon Breach by You. This Agreement shall automatically terminate if you breach any of this Agreement's representations, warranties, or covenants. Such termination shall be automatic, and shall not require any action by Rocket Radio, Inc..
26.3. By You. You may terminate this Agreement and your rights under it at any time, for any or no reason at all, by providing to Rocket Radio, Inc. notice of your intention to do so, in the manner required by Section 27 (Notices).
26.4. Effect of Termination.
26.4.1. Any termination of this Agreement automatically terminates all rights and licenses granted to you under this Agreement, including all rights to use the Service. Upon termination, Rocket Radio, Inc. may, but has no obligation to, in Rocket Radio, Inc.'s sole discretion, rescind any services and/or delete from Rocket Radio, Inc.'s systems all your Personal Information and any other files or information that you made available to Rocket Radio, Inc. or that otherwise relate to your use of the Service. Upon termination, you shall cease any use of the Service.
26.4.2. After termination, Rocket Radio, Inc. reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Service, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.
26.5. Legal Action. If Rocket Radio, Inc., in Rocket Radio, Inc.'s discretion, takes legal action against you in connection with any actual or suspected breach of this Agreement, Rocket Radio, Inc. will be entitled to recover from you as part of such legal action, and you agree to pay, Rocket Radio, Inc.'s reasonable costs and attorneys' fees incurred as a result of such legal action. The Company Parties will have no legal obligation or other liability to you or to any third party arising out of or relating to any termination of this Agreement.
27. Notices. All notices required or permitted to be given under this Agreement must be in writing.
27.1. Rocket Radio, Inc. shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to Rocket Radio, Inc.. You agree that any notice received from Rocket Radio, Inc. electronically satisfies any legal requirement that such notice be in writing.
27.2. You bear the sole responsibility of ensuring that your email address on file with Rocket Radio, Inc. is accurate and current, and notice to you shall be deemed effective upon the sending by Rocket Radio, Inc. of an email to that address.
27.3. You shall give any notice to Rocket Radio, Inc. by email to [•].
28.1. Entire Agreement. This Agreement constitutes the entire agreement between Rocket Radio, Inc. and you concerning your use of the Service.
28.2. Partial Invalidity. Should any part of this Agreement be declared invalid, void, or unenforceable by a Court of Competent Jurisdiction, such decision shall not affect the validity of any remaining portion of this Agreement, which shall remain in full force and effect, and the parties acknowledge and agree that they would have executed the remaining portion without including the part so declared by a Court of Competent Jurisdiction to be invalid, void, or unenforceable.
28.3. Amendments. This Agreement may only be modified by a written amendment signed by an authorized executive of Rocket Radio, Inc., or by the unilateral amendment of this Agreement by Rocket Radio, Inc. along with the posting by Rocket Radio, Inc. of that amended version.
28.4. No Waiver. A waiver by either party of any term or condition of this Agreement, or any breach, in any one instance, will not waive that term or condition or any later breach.
28.5. Assignment. This Agreement and all of your rights and obligations under it will not be assignable or transferable by you without the prior written consent of Rocket Radio, Inc.. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
28.6. Independent Contractors. You and Rocket Radio, Inc. are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.
28.7. No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement, with the following exceptions: the Company Parties; Rocket Radio, Inc.'s licensors and suppliers (to the extent expressly stated in this Agreement); and to the extent stated in the following Sections: Section 9 (No Reliance on Third Party Content), Section 16 (Third Party Websites), Section 22.4 (Application of Disclaimers).
28.8. Injunctive Relief. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by you would cause irreparable injury to Rocket Radio, Inc. and Rocket Radio, Inc.'s licensors and suppliers, and would therefore entitle Rocket Radio, Inc. or Rocket Radio, Inc.'s licensors or suppliers, as the case may be, to injunctive relief.
28.9. Headings. The headings in this Agreement are for convenience only, and shall have no legal or contractual effect.