Samba TV® Terms of Service
Effective as of February 28, 2018
Please carefully read this Terms of Service (“TOS” or “Agreement”). The TOS constitutes a legal agreement between you the user (“you”) and Free Stream Media Corp. dba as Samba TV (“us” or “we” or “Samba TV”). The TOS governs your use of Samba TV’s products and services, and affects your related legal rights.
The TOS includes an agreement, to the extent permitted under law, to resolve any disputes that may arise between you and Samba TV by arbitration on an individual basis, instead of by class actions or jury trials. Please review sections 17 (Arbitration Agreement) and 18 (Class Action Waiver) regarding those dispute resolution terms.
For ease of reference, you may also access this Agreement (or print a copy) from our website at https://samba.tv/terms/.
1.1 Overview of TOS
This TOS sets forth the terms that govern your use of Samba, Samba TV, Samba Interactive TV, Hotlist, Spotlight, Launchpad, Smart TV Services, Sync Apps, Fling, and Flingo services, as well as the use of our website and mobile apps (“Samba Services” or the “Services”). Samba Services also include integrated services – products and services that may be integrated into third-party websites, mobile apps and Smart TV apps.
This TOS is a legal agreement between you and Free Stream Media Corp. By choosing to accept this TOS, you will be able to use Samba Services on devices such as a TV, tablet, and mobile device, subject to the terms set forth in this Agreement.
THIS AGREEMENT CONTAINS WARRANTY AND LIABILITY DISCLAIMERS. BY USING OR SUBSCRIBING TO SAMBA SERVICES, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IN ORDER FOR YOU TO HAVE ACCESS TO SAMBA SERVICES, THIS AGREEMENT MUST BE ACCEPTED BY YOU WITHOUT MODIFICATIONS, ADDITIONS, OR DELETIONS. IF YOU DO NOT AGREE TO THE TERMS CONTAINED IN THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE SAMBA SERVICES. YOU MAY BE DENIED ACCESS TO SAMBA SERVICES, WITH OR WITHOUT PRIOR NOTICE TO YOU, FOR NONCOMPLIANCE WITH ANY PROVISION OF THIS AGREEMENT.
DO NOT USE SAMBA SERVICES IF YOU DO NOT AGREE TO THE TERMS OF SERVICE. YOUR CONTINUING USE OF SAMBA SERVICES MEANS YOU AGREE TO BE BOUND BY THIS AGREEMENT.
1.2 Description of Samba Services
Samba TV provides home entertainment services for viewing, receiving recommendations, and interacting with, videos, images, artwork and other content (“Content”) through consumer electronics – such as an Internet-capable or Smart TV, Blu-Ray disc player, Set Top Box, phone, tablet, PC, watch, or other device – with Internet connectivity (the “Equipment”). Since the Equipment is manufactured by a third-party, please consult the user manual or user guide provided by the manufacturer for instructions on proper use of the Equipment.
Should you have any questions or require technical support for Samba Services, please contract Samba TV by visiting https://samba.tv/support/.
1.3 Parental Advisory
SAMBA SERVICES ARE NOT INTENDED FOR INDIVIDUALS UNDER THE AGE OF 16.
WE DO NOT INTENTIONALLY COLLECT PERSONAL INFORMATION FROM CHILDREN ON OUR SITE OR THROUGH OUR SERVICES.
BECAUSE SAMBA MAY PROVIDE ACCESS TO CONTENT THAT IS EXPLICIT – INCLUDING STRONG LANGUAGE OR DEPICTIONS OF VIOLENCE, SEX OR SUBSTANCE ABUSE – PARENTAL DISCRETION IS ADVISED.
1.4 Changes to TOS
Occasionally we may, in our discretion, make changes to the Terms of Service. You should periodically visit Samba TV’s website at http://samba.tv/terms so you are aware of the terms and conditions that govern your use of Samba Services. In some cases, we will notify you in advance of changes to the TOS. In such cases your continued use of Samba Services will constitute your acceptance of those changes. Therefore, please make sure you read any such notice carefully.
If you do not agree to a modified version of the TOS, you should discontinue use of Samba Services.
2 AUTHORIZED USERS
2.1 Authority to Enter this Agreement
Note that opting out may prevent you from receiving important messages regarding Samba TV Services or special offers.
2.3 Account Confidentiality
You agree that you will not allow others to use any aspect of your Account Information. You have responsibility for taking steps to maintain the confidentiality and security of your account. You agree to notify us immediately of any unauthorized use of your account or password. We will not be responsible for any losses arising out of the unauthorized use of your account, member name, or password. You further agree to indemnify and hold us harmless, along with our partners, parents, subsidiaries, agents, affiliates and licensors, as applicable, for any improper, unauthorized or illegal uses of your account, member name, or password.
3 LICENSE TO USE SAMBA TV
Samba TV grants you a limited, non-exclusive, non-transferable license to access and use Samba Services for personal purposes only. Any violation by you of the license provisions contained in this Section 3 may result in the immediate termination of your right to use Samba Services. Samba TV reserves all rights, titles and interests not expressly granted under this license to the fullest extent possible under applicable laws. ANY USE OF SAMBA SERVICES NOT SPECIFICALLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.
Samba TV may, from time to time, make available updates to all users of Samba Services at no cost or subject to additional fees in our sole discretion. “Updates” means any updates, upgrades or error corrections to Samba Services that we make available generally to users. Notwithstanding anything else contained in this Agreement, we have no obligation to continue producing or releasing new versions of Samba Services or any Updates thereto.
5 CONTENT & RESTRICTIONS
You understand and agree that Content and any metadata may be licensed by Samba TV from content providers (“Content Providers”). All Content is licensed – not sold, transferred or assigned – to you for personal, non-commercial use only via Samba Services and on Samba-enabled Equipment.
You will not, and will not allow anyone else to open; tamper with; reverse engineer; decompile; or disassemble your Equipment or any software contained within, including Samba Services. Furthermore, you will not, and will not allow anyone else to make any modifications, additions, attachments, or alterations to the Equipment, or any software contained within, including Samba Services. Additionally, you agree not to, or attempt to, disclose or circumvent any security measures utilized as part of Samba Services, including the Equipment or software contained within. You understand and acknowledge that Samba Services and Equipment, as well as the software contained within, incorporate and utilize propriety technologies, materials, and Content that is protected by copyright, patent, trade secret, and other applicable laws. As a result, any use or disclosure of the Samba TV Services, Content, or Equipment or the software within, contrary to this Agreement – or any copying of the materials or Content residing in the Equipment – may cause substantial damages to us, or our licensors, and may subject you to both civil liabilities or criminal penalties.
You agree that you will not:
- Use Samba Services to reproduce copyrighted materials for which you do not own the copyrights;
- Unless expressly and specifically enabled and authorized to do so by a Samba Service, copy, store, edit, change, prepare any derivative work of, or alter in any way any Content provided through Samba Services;
- Provide your password to any other person;
- Translate, reverse engineer, decompile, disassemble, modify or create derivative works based on Samba Services or any portion of them;
- Circumvent any technology used by Samba TV or its licensors or partners to protect content accessible via Samba Services;
- Rent, lease or sublicense any of the Samba Services; or
- Use Samba Services in any way that violates the terms of this Agreement.
Without limiting the generality of the foregoing, unless specifically enabled and authorized to do so by Samba TV, you may not duplicate, reproduce, transfer, record, or create copies of Content or any portion thereof, including, without limitation, by “burning,” P2P file-sharing, posting, uploading or downloading onto any physical medium, memory or device, including without limitation, CDs, DVDs, VCDs, portable media devices, computers or other hardware, or any other medium now owned or hereinafter devised. You may not attempt to circumvent, avoid, bypass, remove, deactivate, impair or otherwise defeat any encryption, rights signaling or copy protection technology in which the Content is wrapped or otherwise associated. You may not decompile, copy, reproduce, reverse engineer, disassemble or otherwise reduce the computer file in which the Content is stored to a human-readable form. Any unauthorized copying or other activities that infringe upon the intellectual property rights of owners of the Content are prohibited, and you expressly agree to the automatic termination of Samba Services if you engage in any infringing activities. Upon any such termination, Content may be deleted from your Equipment.
6 COPYRIGHTS & THE DIGITAL MILLENNIUM COPYRIGHT ACT
As between you and Samba TV, you acknowledge that we own or have a license to all title and copyrights in and to the Samba Services we have created. All title and intellectual property rights in and to the Content in Samba Services is the property of the respective Content owner(s) or provider(s), and may be protected by applicable copyright or other intellectual property laws and treaties, and subject to use restrictions under such laws or treaties. No right, title or interest in Content is transferred to you.
If you send us any submissions – such as emails, letters, text messages, postings to chat rooms, boards, or contests, feedback, creative suggestions, ideas, notes, drawings, concepts, or other information – they will be deemed to be our property and we will not be liable for any use or disclosure of such submissions. Without limitation of the foregoing, we shall exclusively own all now-known or hereafter existing rights to the submissions of every kind and nature throughout the universe, and shall be entitled to unrestricted use of the submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the submissions. You assign such rights to us absolutely, so that all such rights vest in us immediately and automatically at the time the submissions are sent to us. You hereby irrevocably and unconditionally waive all moral rights and consent to any acts or omissions in respect of each submission which may otherwise constitute an infringement of your moral rights, including: any use of the submission that does not identify you; falsely attributing the authorship of the submission or any content of the submission to another person; materially altering the style, format, colors, content, or layout of the submission; and, handling, or dealing in any way with the altered submission.
The content of any submissions must not be illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights or otherwise injurious to third-parties, or otherwise objectionable; and, may not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any form of “spam.” You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of the content. We reserve the right, but have no obligation, to remove or edit such content. Note we do not regularly review posted content. You may be held liable for the unauthorized disclosure of third-party content in the Services.
If you are a copyright owner, or an agent thereof, and believe that any Content, user submission, or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. § 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and,
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our designated Copyright Agent to receive notifications of claimed infringement is firstname.lastname@example.org, or:
Attn: Copyright Agent
123 Townsend Street 5th Floor
San Francisco, CA 94107
Only DMCA notices should go to the Copyright Agent. Any other feedback, comments, requests for technical support, and other communications should be submitted by visiting https://samba.tv/support/. You acknowledge that if you fail to comply with all of the requirements of this Section 6, your DMCA notice may not be valid.
If you believe that Content or a submission of yours that was removed, or to which access was disabled, is not infringing – or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content or submission – you may send a counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and
- Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in San Francisco County, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that the removed content may be restored or no longer disabled in 10 business days.
Unless the copyright owner files an action seeking a court order against the content provider, member or user, within 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion, the removed content may be replaced or access to it restored.
7 SAMBA TRADEMARKS & THIRD-PARTY TRADEMARKS
The following are registered trademarks or trademarks of Samba TV: Samba®, Samba TV®, Flingo® and Samba TV’s design logo; as well as certain other trademarks, service marks, graphics, and logos (“Samba Trademarks”) used in connection with Samba Services. Samba Services may contain third-party trademarks, service marks, graphics, and logos. You are not granted any right or license with respect to Samba Trademarks or the trademarks of any third-party.
To prevent unauthorized access, to maintain data accuracy, and to ensure the proper use of Account Information, Samba TV uses appropriate physical, technical and organizational security measures to safeguard the information we collect. You acknowledge that, from time to time, Samba TV may modify or discontinue using such technology. Security modifications made by Samba TV may from time to time include required updates to Samba Services.
We use Secure Sockets Layer (“SSL”) encryption when collecting or transferring sensitive data such as credit card information. SSL encryption is designed to make the information unreadable by anyone but us. Credit card numbers are used only for processing payments and are not used for other purposes.
IF YOU ATTEMPT TO VIOLATE OR CIRCUMVENT ANY SYSTEM OR NETWORK SECURITY COMPONENTS OR TECHNOLOGY, YOU MAY BE SUBJECT TO CIVIL OR CRIMINAL LIABILITY.
10 AGREEMENT TO PAY
When you opt-in to Smart TV Services or Samba Interactive TV, there is no cost or obligation to pay. If you elect to purchase certain other Samba Services, you agree to pay all charges associated with such purchase. All such charges (including any taxes, as applicable) will be charged on your credit card. If you purchase any Samba Services, you will maintain valid credit card information in your Account Information.
This Agreement will remain effective until terminated by you or Samba TV.
You may terminate this Agreement by discontinuing use of Samba Services.
Samba TV will provide you notice of termination as required by the applicable law. Otherwise, Samba TV may terminate this Agreement or suspend your access to Samba Services at any time without notice.
This Agreement will immediately terminate if you are in a material breach of any of its provisions.
Sections 1, 5 through 8, 11 through 22, as well as any other sections of this Agreement that, either explicitly or by their nature, must remain in effect even after termination of the Agreement, will survive any such termination and continue in effect.
12 WARRANTY & DISCLAIMERS
12.1 Disclaimer of Express & Implied Warranties
SAMBA SERVICES (INCLUDING ANY SOFTWARE CONTAINED THEREIN) AND ANY UPGRADES OR PLUG-INS AND ANY CONTENT ARE LICENSED TO YOU “AS IS.” ANY USE OF SAMBA SERVICES WILL BE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SAMBA TV DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. HOWEVER, TO THE EXTENT THAT LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN THE EVENT THAT THE SERVICES PROVE DEFECTIVE, BUT DO PERMIT SAMBA TV TO LIMIT THE CONSEQUENCES OF SUCH WARRANTIES, AT OUR ELECTION, WE LIMIT OUR LIABILITY TO THE RESUPPLY OF SUCH SERVICES OR PAYMENT OF THE COST OF RESUPPLY OF SUCH SERVICES.
12.2 Disclaimer of Guarantees
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SAMBA TV MAKES NO REPRESENTATIONS OR GUARANTEES THAT SAMBA SERVICES WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND SAMBA DISCLAIMS ANY LIABILITY RELATING THERETO.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SAMBA TV MAKES NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES THAT USE OR RESULTS OF THE USE OF SAMBA SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED OR WITHOUT ERRORS. WITHOUT PRIOR NOTICE, SAMBA TV MAY MODIFY, SUSPEND, OR DISCONTINUE SAMBA SERVICES (INCLUDING ANY CONTENT PROVIDED THEREBY) OR YOUR USE OF THEM. WHENEVER SAMBA TV ELECTS TO MODIFY, SUSPEND, OR DISCONTINUE SAMBA SERVICES, IT WILL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY.
12.3 Disclaimer Regarding Loss or Liability
YOU ACKNOWLEDGE THAT YOUR SUBMISSION OF ANY INFORMATION OR DATA TO US IS AT YOUR OWN RISK. SAMBA TV DOES NOT ASSUME ANY LIABILITY TO YOU WITH REGARD TO ANY LOSS OR LIABILITY RELATING TO SUCH DATA OR INFORMATION IN ANY WAY.
12.4 Disclaimer Regarding Offensive Content
YOU UNDERSTAND THAT YOU MAY ENCOUNTER OFFENSIVE, INDECENT OR OTHER OBJECTIONABLE CONTENT WHEN USING SAMBA SERVICES. SAMBA TV HAS NO LIABILITY TO YOU FOR ANY SUCH CONTENT.
12.5 Disclaimer Regarding Third-Party Content
SOME OF THE CONTENT, PRODUCTS, AND SERVICES AVAILABLE THROUGH SAMBA SERVICES MAY INCLUDE MATERIALS THAT BELONG TO THIRD-PARTIES. YOU ACKNOWLEDGE THAT SAMBA TV ASSUMES NO RESPONSIBILITY FOR SUCH CONTENT, PRODUCTS, OR SERVICES.
13 LIMITATIONS OF LIABILITY
REGARDLESS OF WHETHER SAMBA TV HAS BEEN ADVISED OF THE POSSIBILITY, IN NO EVENT WILL SAMBA TV (OR ITS LICENSORS) BE LIABLE TO YOU FOR INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION: DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, CORRUPTION OF FILES, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS. NO ORAL OR WRITTEN INFORMATION, OR ADVICE GIVEN BY SAMBA TV OR OTHERS, WILL CREATE A WARRANTY; AND, NEITHER YOU NOR ANY THIRD-PARTY MAY RELY ON ANY SUCH INFORMATION OR ADVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY OR MAY NOT APPLY TO YOU.
SUBJECT TO ANY RIGHTS PROVIDED UNDER APPLICABLE LAWS, SAMBA TV’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF ONE HUNDRED DOLLARS (US $100.00), OR THE TOTAL AMOUNT PAID BY YOU FOR THE APPLICABLE SAMBA SERVICES AT ISSUE.
YOU WILL INDEMNIFY, DEFEND AND HOLD SAMBA TV, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY SUITS OR CLAIMS ARISING OUT OF 1) YOUR BREACH OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY INFRINGEMENT BY YOU OF THE COPYRIGHT OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY; OR 2) YOUR USE OF THE SAMBA SERVICES.
15.1 Screen & Other Necessary Hardware
You will be responsible for providing the DSL, cable modem and any other hardware (such as a screen) necessary to use Samba Services with the Equipment.
15.2 Third-Party Advertisements & Promotional Materials
Samba TV or its partners may present advertisements or promotional materials via Samba Services. Your dealings with, or participation in promotions of any third-party advertisers via Samba Services are solely between you and such third-parties; and, your participation is subject to the third-parties’ terms and conditions associated the advertisement or promotion. You agree that Samba TV is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings, or as the result of the presence of such third-parties via Samba.
15.3 Third-Party Websites & Services
Samba TV may present links to third-party websites or third-party services not owned or operated by us. We are not responsible for the availability of these third-party sites or services or their contents. You agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with your use of or reliance on any content of any such third-party site or service, or goods or services available through any such third-party site or service.
15.4 No Right to License Samba Services
Samba Services are owned or licensed by Samba TV or its partners and subsidiaries and are protected by United States and foreign copyright laws, as well as international treaty provisions. You will not sublicense, assign, or transfer the license granted to you under this Agreement. Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations in violation of this Agreement is void.
15.5 Samba TV Notifications
Samba TV may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes. Where required by the applicable law, we will obtain your consent before sending you such notifications. In accordance with the applicable law, we may do so via email, mobile text message, written or hard copy notice, or through conspicuous posting through our Services, or on our website, Samba TV reserves the right to determine the form and means of providing notifications to you, provided that you may, opt-out of receiving marketing notifications by following the instructions set out in Section 2.2 (Registration) or following the instructions in those notifications.
15.6 Resetting of Smart TV Upon Sale
If you intend to sell or otherwise give away your Smart TV, you must perform a “factory reset.” This will 1) reset the Samba TV advertising ID, and 2) allow the new owner of the TV to choose whether they want to opt-in or opt-out of Samba Services.
16 CHOICE OF LAW & VENUE
Without regard to choice or conflicts of law principles, the TOS – as well as any non-contractual disputes or claims arising out of or in connection with it – is subject to the laws of the State of California, United States of America.
Further, if not otherwise subject to mandatory arbitration under Section 17 (Arbitration Agreement), you and Samba TV irrevocably consent and agree to the exclusive jurisdiction of the Northern District of California to resolve any dispute, claim, or controversy that relates to or arises in connection with the TOS, as well as any non-contractual disputes or claims relating to or arising in connection with the TOS.
Samba TV does not accept any codes of conduct as mandatory in connection with the Services provided under this TOS.
17 ARBITRATION AGREEMENT
17.1 Section Only Applicable to Users in the United States & Canada
THIS ARBITRATION AGREEMENT SET FORTH HEREIN IN SECTION 17 APPLIES ONLY TO USERS IN THE UNITED STATES AND CANADA.
17.2 Dispute Resolution & Arbitration
You and Samba TV agree that any dispute, claim, or controversy between you and Samba TV arising in connection with or relating in any way to this TOS or to your relationship with Samba TV as a user of the Services, will be determined by mandatory binding individual – not class – arbitration. Thus – whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the TOS – any dispute, claim, or controversy between you and Samba TV arising in connection with or relating in any way to this TOS or to your relationship with Samba TV as a user of the Services, will be determined by mandatory binding individual arbitration.
You and Samba TV further agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the Arbitration Agreement; or to the arbitrability of any claim or counterclaim. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of the Agreement.
17.3 Arbitration Rules
Either you or we may start arbitration proceedings. Any arbitration between you and Samba TV will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by this Arbitration Agreement set forth here in Section 17. Notwithstanding the Choice of Law terms set forth in Section 16, you and Samba TV agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision. The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at https://www.adr.org; or you may call the AAA at 1-800-778-7879. Samba TV can also help put you in touch with the AAA.
Any arbitration hearings will take place in the county (or parish) of your billing address, provided that if the claim is for $25,000 or less, you may choose whether the arbitration will be conducted 1) solely on the basis of documents submitted to the arbitrator; 2) through a non-appearance based telephonic hearing; or 3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address.
If you choose to file an arbitration proceeding and you are required to pay a filing fee, Samba TV will reimburse you for that filing fee, unless your claim is for greater than US $10,000, in which case you will be responsible for the filing fee. Samba TV will not pay any other arbitration fees, including your share of arbitrator compensation, unless otherwise required by AAA rules or court order. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding; and, upon a request from either party made within 15 days of the arbitrator’s ruling on the merits.
17.4 Notices & Process
A party who intends to seek arbitration must first send a written notice (“Notice”) of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required). In the event that we do not have a physical address on file for you, we may send you Notice by electronic mail.
Samba TV’s address for Notice is:
123 Townsend Street 5th Floor
San Francisco, CA 94107
The Notice must 1) describe the nature and basis of the claim or dispute; and 2) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Samba TV may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Samba TV shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, and the arbitrator issues you an award that is greater than the value of Samba TV’s last written settlement offer, then Samba TV will instead pay you either the amount of the award or $1,000, whichever is greater. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration, or the enforcement of the arbitrator’s decision and award; and, shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.
17.5 Exceptions to Arbitration
Notwithstanding the above, you and Samba TV both agree that nothing in Section 17 will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to 1) bring an individual action in a U.S. small claims court or 2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law. In addition, this Arbitration Agreement doesn’t stop you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf or vice versa.
17.6 Rights to Opt-Out of Arbitration Provisions
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending an email of your decision to opt-out to the following email address: email@example.com
The notice must be sent within 30 days of acceptance of this Agreement. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of this Agreement. If you opt-out of these arbitration provisions, Samba TV also will not be bound by them.
If the Arbitration Agreement under Section 17 is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described in Section 16 shall govern any claim in court arising out of or related to the TOS.
18 NO CLASS OR REPRESENTATIVE PROCEEDINGS: CLASS ACTION WAIVER
YOU AND SAMBA TV AGREE, SUBJECT TO THE LIMITATIONS OF THE APPLICABLE LAW, THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Samba TV agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim – and only that claim – must be severed from the arbitration and may be brought in court.
19 REMEDIES, LIMITATION & TIME FOR FILING CLAIMS
YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH SAMBA TV OR ITS SERVICES IS TO DISABLE AND TO STOP USING SAMBA SERVICES. WHILE SAMBA TV ACCEPTS NO RESPONSIBILITY FOR THIRD-PARTY APPLICATIONS OR THE CONTENT THEREOF, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD-PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO SAMBA TV, FOR ANY PROBLEMS OR DISSATISFACTION WITH THIRD-PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO UNINSTALL AND/OR STOP USING ANY SUCH THIRD-PARTY APPLICATIONS.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL SAMBA TV, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR 1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; 2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OR INABILITY TO USE SAMBA SERVICES, THIRD-PARTY APPLICATIONS, OR THIRD-PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER SAMBA TV HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR 3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO SAMBA SERVICES, THIRD-PARTY APPLICATIONS, OR THIRD-PARTY APPLICATION CONTENT MORE THAN THE AMOUNTS PAID BY YOU TO SAMBA TV DURING THE PRIOR TWELVE MONTHS IN QUESTION, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW.
Nothing in this Agreement removes or limits Samba TV’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence. Some aspects of this Section 19 may not apply in some jurisdictions if prohibited by applicable law.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT ANY CLAIM AGAINST SAMBA TV MUST BE COMMENCED BY FILING A DEMAND FOR ARBITRATION UNDER SECTION 17.4 OR FILING AN INDIVIDUAL ACTION UNDER SECTION 17.5 WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM; AND, THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.
You agree that any violation or breach by you of this TOS may result in irreparable harm to us, that monetary damages will be an inadequate remedy, and you hereby agree that We shall be entitled to seek injunctive relief.
Samba TV may assign this Agreement or any part of it, and Samba TV may delegate any of its obligations under the Agreement. You may not assign the Agreement or any part of it, nor transfer or sub-license your rights under the Agreement, to any third-party.
21 SEVERABILITY & WAIVER
Unless as otherwise stated in the Agreement, should any provision of the TOS be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Agreement, and the application of that provision shall be enforced to the extent permitted by law.
Any failure by Samba TV or any third-party beneficiary to enforce the Agreement, or any provision thereof, shall not waive Samba TV’s or the applicable third-party beneficiary’s right to do so.
22 ENTIRE AGREEMENT
Other than as stated in this Section 22, or as explicitly agreed upon in writing between you and Samba TV, this Agreement constitutes all the terms and conditions agreed upon between you and Samba TV and supersedes any prior agreements in relation to the subject matter of this Agreement, whether written or oral.
Please note, however, that other aspects of your use of Samba Services may be governed by additional agreements. To the extent that there is any irreconcilable conflict between any additional terms and this TOS, the additional terms shall prevail.
23 CONTACT US
If you have any questions concerning the Samba TV’s Services or this TOS, please contact Samba TV customer support by visiting https://samba.tv/support/. If you are a California resident, you may have the TOS mailed to you electronically by making a request, with your email, to firstname.lastname@example.org.
In addition, in order to resolve a complaint regarding the Services or to receive further information regarding their use, under California Civil Code §1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at 1-800-952-5210.
Thank you for reading our Terms of Service. We hope you enjoy Samba TV.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND WILL BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER ACKNOWLEDGE THAT THIS AGREEMENT REPRESENTS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US AND THAT IT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.