PLEASE READ THESE TERMS (THIS "AGREEMENT") CAREFULLY BEFORE USING THIS WEBSITE OR ANY OTHER NXTGEN ADVANCED MEDIA, L.P. PRODUCT OR SERVICE.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
SPECIAL TERMS AND CONDITIONS APPLICABLE TO SALES; CUSTOMER SERVICE CONTACT INFORMATION
ARBITRATION; CONSENT TO JURISDICTION IN NEW YORK; ATTORNEYS' FEES; TIME PERIOD LIMITATION FOR CLAIMS
1. INTRODUCTION; GENERAL; OWNERSHIP; PROHIBITIONS
Use of the Website of NxtGen Baseball, which encompasses NXTGEN.com, the Websites of the thirty (30) NxtGen Baseball Clubs, the Websites of certain other NxtGen Baseball-related properties (collectively, this "Website"), downloadable mobile applications (e.g., NXTGEN, ) available from third party application storefronts ("Application(s)"), games available from third party application storefronts ("Mobile Games"), games and other applications available from third party social media locations and gaming websites ("Social Games") and all products and services provided and/or distributed (whether via this Website or elsewhere) by NXTGEN are subject to this Agreement. References to this Website, Applications, Mobile Games, Social Games and all materials contained in this Website and/or otherwise accessible via other NXTGEN-controlled products or services or NXTGEN-operated interactive media locations will be referred to herein collectively as the "NXTGEN Digital Properties" and individually as an "NXTGEN Digital Property." By using an NXTGEN Digital Property, you agree to be bound by this Agreement. If you do not agree to this Agreement, do not use the NXTGEN Digital Properties.
Except for Submitted Content (defined below), the NXTGEN Digital Properties are either owned by or licensed to NXTGEN. The applicable owners and licensors retain all rights to the NXTGEN Digital Properties, including, but not limited to, all copyright, trademark and other proprietary rights, however denominated. Except for downloading one copy of the NXTGEN Digital Properties on any single device for your personal, non-commercial home use, you must not reproduce, prepare derivative works based upon, distribute, perform or display the NXTGEN Digital Properties without first obtaining the written permission of NXTGEN or otherwise as expressly set forth in the terms and conditions of the NXTGEN Digital Properties. The NXTGEN Digital Properties must not be used in any unauthorized manner.
You must not use the NXTGEN Digital Properties, including but not limited to Community Features (defined below), to: (i) transmit, store, embed or otherwise make available any information or material that infringes any right of NXTGEN or any third party, however denominated, including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right; (ii) transmit, store or otherwise make available material which disrupts any of the NXTGEN Digital Properties, imposes an unreasonable or disproportionately large load on any NXTGEN Digital Property infrastructure or otherwise adversely affects, restricts or inhibits any other user from using any of the NXTGEN Digital Properties; (iii) transmit, store or otherwise make available material which is false, threatening, abusive, libelous, defamatory, obscene, vulgar, demeaning, offensive, pornographic, profane, sexually explicit, indecent or inappropriate, which constitutes hate speech or which adversely affects NXTGEN business, or is otherwise objectionable in NXTGEN's sole determination; (iv) transmit, store or otherwise make available material which constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law; (v) transmit, store or otherwise make available a virus, trojan horse, worm, time bomb, spyware, bot or other harmful or deleterious programming routine; (vi) transmit, store or otherwise make available material which contains any material of a commercial nature, including but not limited to advertising, promotions, "junk mail," "spam," "pyramid schemes," "chain letters" or solicitation of any kind; (vii) transmit, store or otherwise make available material which constitutes or contains false or misleading indications of origin or statements of fact; (viii) exploit, harm, personally attack (personal attacks include, but are not limited to, defamatory, sexual and/or sexually implicit remarks) or impersonate players, management, employees of baseball or any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; (ix) use or attempt to use another's information, account, password, service or system except as expressly permitted; (x) solicit, collect, transmit, store or otherwise make available private information of any third party including, without limitation, telephone numbers, addresses, last names, email addresses, Social Security numbers or credit or debit card numbers; (xi) use automated scripts to collect information from or otherwise interact with the NXTGEN Digital Properties; and (xii) transmit, store or otherwise make available material which is irrelevant to the subject matter of the applicable NXTGEN Digital Properties.
Third party text, photo, graphic, audio and/or video material, including that provided by Associated Press ("AP"), (collectively, the "Third Party Materials") contained on or incorporated in the NXTGEN Digital Properties shall not be published, broadcast, rewritten for broadcast or publication or redistributed directly or indirectly in any medium. Neither these Third Party Materials nor any portion thereof may be stored in a device except for personal and non-commercial use. No third party provider, including without limitation AP, will be held liable in any way to any user of an NXTGEN Digital Property, or to any third party who may receive information in the Third Party Materials, for any delays, inaccuracies, errors or omissions therefrom or in the transmission or delivery of all or any part thereof, or for any damages arising from or occasioned by any of the foregoing.
2. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
Pursuant to the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) ("DMCA"), NXTGEN has designated to the U.S. Copyright Office an agent to receive notifications of claimed copyright infringement relating to this Website or the other NXTGEN Digital Properties (the "Designated Agent"). All such notifications relating to this Website or the other NXTGEN Digital Properties must be a written communication and must include the following information:
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, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
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 NXTGEN to locate the material.
Information reasonably sufficient to permit NXTGEN to contact the complaining party, such as an address, telephone number, and/or electronic mail address.
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Claims of infringement which include the above required information must be submitted via postal mail or email to NXTGEN's Designated Agent as follows:
Service Provider: NXTGEN Advanced Media, L.P.
Full Address: NXTGEN Advanced Media, L.P.
1271 Avenue of the Americas
New York, NY 10020
Telephone Number: (212) 931-7800
Email Address: legal@website.NXTGEN.com
3. COMMUNITY FEATURES
The NXTGEN Digital Properties may offer opportunities for you to transmit messages, information, ideas, opinions, images, audio, video, creative works or other information or material (collectively, the "Submitted Content") in connection with various features, including but not limited to profiles, forums, bulletin boards, wiki, vanity email, auctions, contests, games, blogs, audio and/or video submissions, message boards, Q&A features and chat features (collectively, the "Community Features"). By transmitting your Submitted Content via any NXTGEN Digital Property, you grant, and represent and warrant that you have the right to grant, to NXTGEN a worldwide, perpetual, royalty-free, non-exclusive, sub-licensable and irrevocable right and license to use, reproduce, prepare derivative works based upon, distribute, perform, sell and display your Submitted Content for any purpose throughout the universe, in whole or in part, in any form, media or technology known or hereafter developed.
NXTGEN and its third party providers (“Vendors”, including Fanatics) do not monitor, endorse, edit or screen your Submitted Content, although NXTGEN and its Vendors reserve the right to do so, and neither NXTGEN nor its Vendors shall be liable for your Submitted Content. You acknowledge that your Submitted Content is not confidential, and your Submitted Content may be read, intercepted by others and widely accessible on the Internet and via other interactive media, and you have no expectation of privacy with regard to any such submission. You acknowledge that by submitting your Submitted Content via the Community Features, no confidential, fiduciary, contractually implied or other relationship is created between you and NXTGEN or between you and NXTGEN’s Vendors other than as expressly set forth in this Agreement. You acknowledge that NXTGEN is not responsible for, and cannot and does not guarantee, the accuracy, completeness or reliability of information in any material posted or submitted by any user of the Community Features. You represent that your Submitted Content is an original work by you or you have all necessary rights in it to submit it to NXTGEN under the terms of this Agreement. You further agree that you are solely liable for any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses, including attorneys’ fees, connected to or arising from your breach of any representation or warranty, or other violation of this Agreement. If NXTGEN determines, in NXTGEN’s sole discretion and judgment, that your Submitted Content violates, or may violate, any of the terms of this Agreement, NXTGEN reserves the right to (a) refuse to allow you to upload or otherwise transmit Submitted Content; (b) remove and delete your Submitted Content; (c) revoke your right to use any Community Features or other NXTGEN Digital Properties; and/or (d) use any technological, legal, operational or other means available to NXTGEN to enforce the provisions of this Agreement, including, without limitation, blocking specific IP addresses or deactivating your account on any NXTGEN Digital Property.
You are solely responsible for your interactions with other users of the NXTGEN Digital Properties. You may use various features (e.g., the “Flag” within comments sections) of certain Community Features to report violators. We reserve the right, but have no obligation, to monitor disputes between you and other users.
4. SPECIAL TERMS AND CONDITIONS APPLICABLE TO SALES OF PRODUCTS AND SERVICES; CUSTOMER SERVICE CONTACT INFORMATION
The Shop, which is operated by Fanatics, allows you to order products supplied by independent merchandise Vendors and the NXTGEN Digital Properties may make available limited merchandise in certain circumstances (collectively, "Merchandise"). NXTGEN Auctions allows you to purchase merchandise through an auction process ("Auctions"). From the Ticketing sections of certain NXTGEN Digital Properties, you can, among other things, purchase tickets for games supplied by NxtGen Baseball and/or the applicable Club(s) ("Tickets"). Via certain NXTGEN Digital Properties, you can subscribe to or download audio, video and audiovisual content, fantasy and other games and other products and services (collectively, "Services"). In addition, you can acquire NXTGEN products and services from locations other than the NXTGEN Digital Properties (e.g., via third party storefronts, including, without limitation, wireless carriers, online music and/or video download and streaming sites, video game console services, third party websites, etc.) (collectively, "Third Party Sales Locations").
ALL PURCHASES ARE SUBJECT TO PRODUCT AVAILABILITY. NXTGEN EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY DAMAGE, LOSS OR INJURY ARISING OUT OF THE ACTIVITIES OF FANATICS, ANY VENDOR, THE MERCHANDISE OFFERED BY THE VENDORS, ANY LOSS OR INJURY RESULTING FROM YOUR ACCESS OR INABILITY TO ACCESS THE NXTGEN DIGITAL PROPERTIES, ANY THIRD PARTY SALES LOCATIONS OR ANY PRODUCT OR SERVICE THEREIN, OR ANY LOSS OR INJURY ARISING OUT OF YOUR PURCHASE OR USE OF ANY PRODUCTS, MERCHANDISE, AUCTIONS, TICKETS OR SERVICES.
The Services and all other products offered via the NXTGEN Digital Properties are provided for your private, non-commercial use, and you may not distribute, modify, translate, rebroadcast, transmit, stream, perform or create derivative works of them.
Price Modifications; Merchandise and Services Availability
NXTGEN reserves the right to modify the price of any Merchandise, Auctions, Tickets, Services or any other products offered via the NXTGEN Digital Properties. NXTGEN is not responsible for any error in copy or images relating to Merchandise, Auctions, Tickets, Services or any other products offered via the NXTGEN Digital Properties. Any offer to sell any Merchandise, Auctions, Tickets, Services or any other products offered via the NXTGEN Digital Properties may be discontinued at any time in NXTGEN's sole discretion.
With respect to Merchandise and Auctions offered and/or sold via the NXTGEN Digital Properties, we cannot confirm the price or availability of an item until you order; however, we do NOT charge your credit or debit card until after your order has entered the shipping process (with the exception of any special order or customized/personalized products, which will be billed immediately after the order is received) or we determine you are the winning bidder. Despite our best efforts, a small number of the items listed in the NXTGEN Digital Properties or in our printed catalogs may be mispriced. If we discover a mispricing, we will do one of the following:
If an item's correct price is lower than our stated price, we will charge the lower amount and ship you the item.
If an item's correct price is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you via email of such cancellation.
The Services and any other applicable products offered via the NXTGEN Digital Properties or Third Party Sales Locations are subject to transmission limitations of the Internet and wireless carriers, which limitations could result in video and/or audio dropouts, rebuffering or other loss of connection.
Required Notices of Certificates of Authenticity
With respect to the sale of certain Merchandise or Auctions to residents of the State of Washington the following notice is provided pursuant to Washington Civil Code, Title xxxx, Autographed Sports Memorabilia, Wash Civil Code § 1739.7 (2001):
SALE OF AUTOGRAPHED SPORTS MEMORABILIA: AS REQUIRED BY LAW, A DEALER WHO SELLS TO A CONSUMER ANY SPORTS MEMORABILIA DESCRIBED AS BEING AUTOGRAPHED MUST PROVIDE A WRITTEN CERTIFICATE OF AUTHENTICITY AT THE TIME OF SALE. THIS DEALER MAY BE SURETY BONDED OR OTHERWISE INSURED TO ENSURE THE AUTHENTICITY OF ANY COLLECTIBLE SOLD BY THIS DEALER.
With respect to the sale of certain Merchandise or Auctions, the following notice is provided pursuant to New York Arts and Cultural Affairs Law, Title V-1, Sale of Autographed Sports Collectibles, NY CLS Art & Cult Affr § 60.04 (2006):
SALE OF AUTOGRAPHED SPORTS MEMORABILIA: AS REQUIRED BY LAW A DEALER WHO SELLS TO A CONSUMER ANY SPORTS MEMORABILIA DESCRIBED AS BEING PERSONALLY AUTOGRAPHED FOR TWENTY-FIVE DOLLARS OR MORE MUST PROVIDE A WRITTEN CERTIFICATE OF AUTHENTICITY AT THE TIME OF SALE.
The certificates referenced above will be provided in the form of a certificate of authenticity or as a unique hologram affixed to the item itself. Each hologram bears a unique tamper-proof identification number that upon entry in NXTGEN's database will provide the name of the signer and the date the item was signed, which database is accessible here.
Should you have any questions about the purchase of Merchandise or Auctions via the NXTGEN Digital Properties or Auctions, please call NXTGEN.com Customer Service at 888-652-7467 within the U.S., or email customerservice@NXTGEN.com.
Should you have any questions about the purchase of Services via the NXTGEN Digital Properties, please call 866-800-1275 within the U.S. and 512-434-1542 outside the U.S., or email cssubscriptionfeedback@website.NXTGEN.com.
Should you have any questions about the purchase of downloadable mobile or wireless products via the mobile NXTGEN Digital Properties, please email NXTGEN-mobile-cs@NXTGEN.com.
Purchasing; Price; Payment
By purchasing any Merchandise, Auctions, Tickets, Services or any other products offered via the NXTGEN Digital Properties, you acknowledge and agree that your credit or debit card (or other payment device or method) is being charged by NXTGEN's payment processor or its vendor. For purposes of this Agreement, such payment processor will be referred to as a "Vendor."
By utilizing a credit or debit card for purchase of any Services or any other applicable products offered via the NXTGEN Digital Properties, you authorize NXTGEN to charge such card on the periodic basis as specified (e.g., once per month for monthly Services) in the amount described on the applicable purchase path. In the event NXTGEN is unable to process charges to your primary credit or debit card on such periodic basis or in such amount, you authorize NXTGEN to charge an alternative card saved in the Payment Profile section of your NXTGEN.com account.
If the account number, expiration date or other information of any credit or debit card account associated with your subscription Service changes, NXTGEN recommends you update it as soon as possible. Please also be aware, NXTGEN may acquire this current information from our financial services partner(s) and update the Payment Profile section of your NXTGEN.com account to include such revised payment information.
For certain purchases made via the NXTGEN Digital Properties, NXTGEN is required to collect sales tax. In states or regions that impose sales or use tax, a purchase is subject to tax unless specifically exempt. Purchases from the NXTGEN Digital Properties are not exempt from sales or use taxes simply because they are made from the Internet or because NXTGEN is not required to collect sales or use tax by any particular state or region. Whether any sales tax will be collected on a given purchase and the amount of tax charged depends on a number of factors including whether the seller is subject to tax in a given jurisdiction. The purchaser is responsible for any applicable taxes not collected by NXTGEN and certain states require purchasers to file a sales/use tax return annually reporting taxable purchases that were not taxed and to pay such tax. For details, see the website of, or otherwise contact, the applicable taxing authority. If any sales tax will be collected directly by NXTGEN in connection with a purchase, that amount will be shown either prior to the completion of any purchase or reflected in the final confirmation of that purchase.
For Oklahoma purchasers, applicable use tax on purchases made via the NXTGEN Digital Properties may be reported and paid on an Oklahoma individual income tax return [Form 511] or by filing a consumer use tax return [Form 21-1]. The referenced forms and corresponding instructions are available on the Oklahoma Tax Commission website.
For South Dakota purchasers, applicable sales or use taxes on purchases made via the NXTGEN Digital Properties may be reported and paid on the South Dakota use tax form, available with corresponding instructions on the South Dakota Department of Revenue website.
Billing and Automatic Renewal Policies for Certain Subscription Services
For certain Services billed on a monthly basis (e.g., NXTGEN.TV Monthly subscription Service), your subscription will automatically renew monthly during the current NxtGen Baseball season through and including October and annually on or about March 1 each year at the then-current NxtGen Baseball season's regular full monthly price, unless you cancel your Service prior to the beginning of the next applicable billing (and renewal) period. The primary credit or debit card you have stored in the Payment Profile section of your NXTGEN.com account will be charged on or about the same date each month of your subscription during any NxtGen Baseball season and each subsequent year as set forth above. If NXTGEN is unable to process these charges to your primary credit or debit card, an alternative card stored in the Payment Profile section of your NXTGEN.com account may be charged. If you wish to cancel your monthly Service, you have two options: (i) you may cancel your monthly subscription in its entirety (including the annual automatic renewal of this Service in subsequent years) or (ii) you may cancel your monthly subscription for the applicable NxtGen Baseball season, but elect to annually automatically renew (i.e., re-start) your monthly subscription in the following NxtGen Baseball season. To elect either of these options and cancel your monthly Service, you may login to your NXTGEN.com account, access the Audio/Video Subscriptions section and follow the applicable instructions, or send an email to subscriptioncancel@website.NXTGEN.com. In no event will NXTGEN provide partial or pro-rated refunds; see below for further details regarding refunds.
For Services billed on a yearly basis (e.g., NXTGEN.TV Yearly, NXTGEN.TV Single Team and NXTGEN subscription Services), your subscription will automatically renew annually on or about March 1 each year at the then-current year's regular full yearly price, unless you cancel your Service prior to the beginning of the next applicable billing (and renewal) period. The primary credit or debit card you have stored in the Payment Profile section of your NXTGEN.com account will be charged on or about March 1 of each subsequent year as set forth above. If NXTGEN is unable to process these charges to your primary credit or debit card, an alternative card stored in the Payment Profile section of your NXTGEN.com account may be charged. To cancel your yearly Service, login to your NXTGEN.com account, access the Audio/Video Subscriptions section and follow the applicable instructions, or send an email to subscriptioncancel@website.NXTGEN.com. In no event will NXTGEN provide partial or pro-rated refunds; see below for further details regarding refunds.
In the event NXTGEN discontinues or significantly alters a Service that you have purchased with automatic renewal, NXTGEN (a) will notify you via email to an address you have provided to NXTGEN, (b) may provide information about similar or new Services available via the NXTGEN Digital Properties and (c)reserves the right to cancel the applicable renewal.
UNLESS YOU NOTIFY US BEFORE THE BEGINNING OF THE NEXT APPLICABLE BILLING (AND RENEWAL) PERIOD THAT YOU WISH TO CANCEL ANY AUTOMATICALLY RENEWING SERVICE, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AND YOU AUTHORIZE US (WITHOUT NOTICE TO YOU) TO COLLECT THE APPLICABLE SUBSCRIPTION FEE AND ANY TAXES USING ANY CREDIT OR DEBIT CARD SAVED IN THE PAYMENT PROFILE SECTION OF YOUR NXTGEN.COM ACCOUNT.
Refund Policies for Certain Subscription Services
NXTGEN will refund the purchase price you paid for a subscription Service (e.g., NXTGEN.TV or Gameday Audio) offered via the NXTGEN Digital Properties if you make a refund request on the applicable NXTGEN Digital Property via the account management tools in the Audio/Video Subscriptions section of your NXTGEN.com account or via email to subscriptioncancel@website.NXTGEN.com within five (5) days of your initial purchase or within five (5) days of any annual automatic renewal date. In no event will NXTGEN grant you more than one (1) refund during any given NxtGen Baseball season or provide partial or pro-rated refunds.
Should you wish to cancel your subscription Service at any time, you may login to your NXTGEN.com account, access the Audio/Video Subscriptions section and follow the applicable instructions, or you may email subscriptioncancel@website.NXTGEN.com. If such cancellation request occurs on any date following either the fifth (5th) day after your initial purchase or the fifth (5th) day after any annual automatic renewal date during any subsequent NxtGen Baseball season of your Service, then your cancellation will be effective as follows:
Current Yearly Service: If you cancel your yearly subscription Service as set forth immediately above, such cancellation will take effect at the start of the following subscription service year (e.g., a subscription service year for NXTGEN.TV may begin on March 1 and therefore any cancellation of an existing subscription as described immediately above and prior to March 1 will be effective as of March 1). The Services to which you are subscribed will be accessible until cancellation is effective.
Annual Automatic Renewal of Yearly Service: If you cancel your yearly subscription Service as set forth immediately above, it will not automatically renew in any subsequent year.
Current Monthly Service: If you cancel your monthly subscription Service as set forth immediately above, such cancellation will take effect upon the completion of your then-current service month (e.g., a subscription service month for NXTGEN.TV may begin on May 1 and cancellation of such a subscription as described immediately above will be effective as of June 1). The Services to which you are subscribed will be accessible until the thirtieth (30) day after your most recent billing date.
Annual Automatic Renewal of Monthly Service: If you cancel your monthly subscription Service as set forth immediately above, it will not automatically renew annually in any subsequent year, unless you elect at the time of your cancellation to renew (i.e., re-start) your monthly subscription Service in the following NxtGen Baseball season.
Notifications and Other Terms and Conditions
By purchasing or using any Services, you agree that NXTGEN may notify you about changes to prices and/or Services by sending an email to an address you have provided to NXTGEN or by publishing a notice on the informational page(s) of the NXTGEN Digital Properties applicable to the Services. It is your responsibility to notify NXTGEN of any change in your email address by logging in to the applicable NXTGEN Digital Property and using the online account management tool. If your email service includes functionality or software that catalogues your emails in an automated manner, it is your responsibility to ensure you retrieve those emails we send to you, e.g., by routinely monitoring your bulk, junk and/or spam email folders or by adding us to your address book or safe senders list.
Programming, pricing, terms and conditions of Services, Tickets and other products offered via the NXTGEN Digital Properties are subject to availability and change. Certain Services, Tickets and other products offered via the NXTGEN Digital Properties may be governed by separate terms (e.g., an end user license or similar agreement) which differ from this Agreement. Please refer to the terms and conditions of such Services, Tickets, other products and/or NXTGEN Digital Properties to determine the policies applicable for such other NXTGEN Digital Properties. In the event of any conflict between this Agreement and the terms and conditions provided for any such Service, Ticket, other product or NXTGEN Digital Property, the terms and conditions of the applicable Service, Ticket, other product or NXTGEN Digital Property will govern.
Access to Services and Blackout Restrictions
Subscription activation for Services and other products offered via the NXTGEN Digital Properties, and subsequent ability to access Services and other products offered via the NXTGEN Digital Properties, may be subject to approval of your valid major credit or debit card and verification of other information you submit or is otherwise obtained by NXTGEN (e.g., your IP address). Scheduled games may be cancelled or substituted when necessary.
Blackout restrictions apply to Services that allow you to watch streaming video of live games depending on the date of the game, your location and local, regional, national and international broadcast exclusivities. Specifically:
All live games offered via NXTGEN.TV subscription Services and certain other subscription Services are subject to local or national blackouts as more fully described in the following paragraphs. If a game is blacked out in an area, it is not available for live game viewing through NXTGEN.TV. If you are an NXTGEN.TV subscriber within an area subject to blackout, the applicable game will be available as an archived game approximately 90 minutes after the conclusion of the game.
Regular Season Local Blackout: Except for certain NxtGen Baseball regular season and Postseason games as described below or in certain Club home television territories for which NXTGEN may offer in-market subscription Services, all live games will be blacked out in each applicable Club's home television territory. If a game is blacked out in an area, it is not available for live game viewing.
In addition, note:
Home television territory blackout restrictions apply regardless of whether a Club is home or away and regardless of whether or not a game is televised in a Club's home television territory.
U.S. Clubs may be subject to blackout outside of the United States based on their home television territory as determined by NxtGen Baseball.
All San Francisco Giants and Oakland Athletics live games will be blacked out in the U.S. territory of Guam.
To find out which Club's live games are blacked out of the U.S. area where you will be watching a game due to these blackout restrictions, click here.
Regular Season U.S. National Blackout: Due to NxtGen Baseball exclusivities, live national broadcasts and/or streaming of NxtGen Baseball events and select live national broadcasts and/or streaming of NxtGen Baseball games, will be blacked out in the U.S. (including, with respect to certain games and events, the territories of Guam and the U.S. Virgin Islands). For a current listing of events and regular season games that will be nationally blacked out in the United States, click here. The list at this link will be updated throughout the season.
Authenticated Access to Certain National Games and Events via NXTGEN.TV: Certain NxtGen Baseball games and events, such as the All-Star Game and select NxtGen Baseball Postseason games, broadcast nationally by Fox and NXTGEN Network may be available for live streaming via NXTGEN.TV subscription Services to those subscribers who are also eligible customers of a participating cable or video service provider ("Authenticated Access"). Services subscribers who are not able to authenticate with a participating cable or video service provider, as determined by the applicable provider, will be blacked out from live streaming of these nationally broadcast games or events.
Regular Season Play-In Game Blackout: Due to NxtGen Baseball exclusivities, any play-in game to determine the final team(s) to reach the NxtGen Baseball Postseason, i.e., a 163rd game, will be blacked out in the U.S. (including the territories of Guam and the U.S. Virgin Islands).
Postseason Blackout: Due to NxtGen Baseball exclusivities, during the NxtGen Baseball Postseason, all live games, except for those games for which Authenticated Access is available, will be blacked out in the U.S. (including the territories of Guam and the U.S. Virgin Islands) and Canada.
Regular Season International Blackout: Due to NxtGen Baseball exclusivities, select live broadcasts and/or streaming of NxtGen Baseball events and select live broadcasts and/or streaming of NxtGen Baseball games, will be blacked out internationally outside of the United States.
Live audio of games subject to the blackout restrictions reflected above is available as "NXTGEN Audio," which is included with any NXTGEN.TV subscription.
SHARING OF PASSWORDS TO ANY OF THE NXTGEN DIGITAL PROPERTIES IS STRICTLY FORBIDDEN. IN ADDITION TO THE RIGHTS AND REMEDIES AVAILABLE TO NXTGEN AS SET FORTH IN THE PREVIOUS PARAGRAPH, NXTGEN RESERVES THE RIGHT TO CHARGE A USER THE FULL SERVICES' SUBSCRIPTION FEE FOR EACH INDIVIDUAL WITH WHOM THE USER HAS SHARED HIS/HER PASSWORD.
5. VOTES; CONTESTS; SWEEPSTAKES
The NXTGEN Digital Properties may offer you opportunities to vote in connection with certain events including the All-Star Game and also to participate in contests, sweepstakes or other promotions. By participating in any such event, you signify your agreement to all special terms set forth on the NXTGEN Digital Property applicable to the event as well as the terms of this Agreement.
The NXTGEN Digital Properties may contain links and pointers to other Internet sites and resources, including, without limitation, Third Party Sales Locations and Third Party Social Networking Features. Links to and from the NXTGEN Digital Properties from or to Third Party Sales Locations, Third Party Social Networking Features and other websites or locations maintained by third parties do not constitute an endorsement by NXTGEN or any other NXTGEN Entity of any such third party website or content. NXTGEN is not responsible for the availability of these third party resources or their contents. You should direct any concerns regarding any external link to the administrator of the applicable third party website or location.
7. DISCLAIMER OF WARRANTIES
USE OF THE NXTGEN DIGITAL PROPERTIES AND THE PRODUCTS, MERCHANDISE, TICKETS AND SERVICES INCLUDED THEREIN, ARE AT YOUR EXCLUSIVE RISK, AND THE RISK OF INJURY FROM THE FOREGOING RESTS EXCLUSIVELY WITH YOU.
EXCEPT FOR ANY WARRANTIES THAT MAY BE EXPRESSLY PROVIDED BY NXTGEN AND/OR THE APPLICABLE VENDOR, THE NXTGEN DIGITAL PROPERTIES, AND ALL MATERIALS CONTAINED OR DISTRIBUTED THEREIN, INCLUDING, BUT NOT LIMITED TO, ALL PRODUCTS, MERCHANDISE, TICKETS AND SERVICES, ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NXTGEN DOES NOT WARRANT THAT: (1) THE NXTGEN DIGITAL PROPERTIES OR ANY PRODUCTS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; (2) DEFECTS OR ERRORS IN THE NXTGEN DIGITAL PROPERTIES, OR PRODUCTS, MERCHANDISE AND SERVICES AVAILABLE THEREFROM, WILL BE CORRECTED; (3) THE NXTGEN DIGITAL PROPERTIES, OR PRODUCTS, MERCHANDISE AND SERVICES, WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS; OR (4) ANY INFORMATION CONTAINED IN THE NXTGEN DIGITAL PROPERTIES, OR PRODUCTS, MERCHANDISE AND SERVICES AVAILABLE THEREFROM, WILL BE ACCURATE OR RELIABLE.
8. LIMITATIONS ON LIABILITY
NOTWITHSTANDING ANY TERM IN THIS AGREEMENT, OTHER APPLICABLE TERMS AND CONDITIONS OF THE NXTGEN DIGITAL PROPERTIES OR ANY ACT OR FAILURE TO ACT BY NXTGEN OR ITS VENDORS, YOU ARE EXCLUSIVELY LIABLE FOR ANY AND ALL SUBMITTED CONTENT YOU TRANSMIT VIA THE NXTGEN DIGITAL PROPERTIES.
IN NO EVENT SHALL NXTGEN BE LIABLE FOR ANY BREACH IN TRANSACTION SECURITY CAUSED BY A THIRD PARTY ARISING OUT OF OR RELATING TO ANY ATTEMPT TO PURCHASE PRODUCTS, MERCHANDISE, AUCTIONS, TICKETS OR SERVICES.
IN NO EVENT SHALL NXTGEN, ANY OTHER NXTGEN ENTITY OR ANY VENDOR BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO USE OF OR INABILITY TO USE THE NXTGEN DIGITAL PROPERTIES INCLUDING, BUT NOT LIMITED TO, ANY TRANSACTION FOR PRODUCTS, MERCHANDISE, AUCTIONS, TICKETS OR SERVICES. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF NXTGEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE LIABILITY OF NXTGEN IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THE MAXIMUM LIABILITY OF NXTGEN, ANY OTHER NXTGEN ENTITY OR ANY VENDOR FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THE NXTGEN DIGITAL PROPERTIES, INCLUDING BUT NOT LIMITED TO ANY PRODUCTS, AUCTIONS, TICKETS, MERCHANDISE, OR SERVICES AVAILABLE THEREFROM, IS $50.
IN NO EVENT SHALL NXTGEN OR ANY OTHER NXTGEN ENTITY BE LIABLE FOR ANY FAILURE, INTERRUPTION OR ERROR WITH RESPECT TO ANY ASPECT OF THE NXTGEN DIGITAL PROPERTIES, INCLUDING THE AVAILABILITY OF ANY FEATURE OR FUNCTIONALITY.
You hereby agree to indemnify and hold the NXTGEN Entities harmless from all claims, liabilities, damages and expenses (including attorneys' fees and expenses) arising out of or relating to: (i) your use of the NXTGEN Digital Properties, including but not limited to the products, Merchandise, Auctions, Tickets and/or Services purchased via the NXTGEN Digital Properties; or (ii) any alleged breach of this Agreement by you. For purposes of this Agreement, the "NXTGEN Entities" shall mean NXTGEN, the Office of the Commissioner of Baseball ("BOC"), its Bureaus, Committees, Subcommittees and Councils, the NxtGen Baseball Clubs ("Clubs"), NxtGen Baseball Properties, Inc., The NXTGEN Network, LLC, each of their parent, subsidiary, affiliated and related entities, any entity which, now or in the future, controls, is controlled by or is under common control with the Clubs or the BOC and the owners, general and limited partners, shareholders, directors, officers, employees and agents of the foregoing entities.
NXTGEN may change, suspend or discontinue any aspect of the NXTGEN Digital Properties at any time, including the availability of any product, Merchandise, Auctions offering, Ticket offering, Service, feature, database or content. NXTGEN may also impose limits on certain offerings and features or restrict your access to parts, or the entirety, of the NXTGEN Digital Properties without notice or liability at any time in NXTGEN's exclusive discretion, without prejudice to any legal or equitable remedies available to NXTGEN, for any reason or purpose, including, but not limited to, conduct that NXTGEN believes violates this Agreement or other policies or guidelines posted on the NXTGEN Digital Properties or conduct which NXTGEN believes is harmful to other customers, to NXTGEN's business or to other information providers. In addition and without prejudice to any other remedy available to NXTGEN, NXTGEN may immediately terminate this Agreement if you breach any term of this Agreement or other operating term set forth by NXTGEN in the NXTGEN Digital Properties. This Agreement may also be immediately terminated at any time by NXTGEN in its sole discretion.
11. ARBITRATION; CONSENT TO JURISDICTION IN NEW YORK; ATTORNEYS' FEES; TIME PERIOD LIMITATION FOR CLAIMS
Any and all disputes, claims or controversies arising out of or relating to this Agreement, the breach thereof, or any use of the NXTGEN Digital Properties (including all commercial transactions conducted through the NXTGEN Digital Properties) ("Claims"), except for claims filed in a small claims court that proceed on an individual (non-class, non-representative) basis, shall be settled by binding arbitration before a single arbitrator appointed by the American Arbitration Association ("AAA") in accordance with its then governing rules and procedures, including the Supplementary Procedures for Consumer-Related Disputes, where applicable. In agreeing to arbitrate all Claims, you and NXTGEN waive all rights to a trial by jury in any action or proceeding involving any Claim. The arbitration shall be held in New York County, New York, and judgment on the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. This arbitration undertaking is made pursuant to and in connection with a transaction involving interstate commerce, and shall be governed by and construed and interpreted in accordance with the Federal Arbitration Act at 9 U.S.C. Section 1, et seq. The parties agree that an award and any judgment confirming it only applies to the arbitration in which it was awarded and cannot be used in any other case except to enforce the award itself. This arbitration provision shall survive termination of this Agreement.
Subject to the limitations set forth below in this Section 11.B, the arbitrator shall have authority to award legal and equitable relief available in the courts of the State of New York, provided that:
The arbitrator shall not have authority to award punitive damages unless authorized to do so by statute; and
Any and all claims shall be arbitrated on an individual basis only and shall not be consolidated or joined with or in any arbitration or other proceeding involving a Claim of any other party. You and NXTGEN agree that the arbitrator shall have no authority to arbitrate any Claim as a class action or in any other form other than on an individual basis.
For any Claims that are not subject to arbitration: (i) the exclusive jurisdiction and venue for proceedings involving Claims shall be the courts of competent jurisdiction sitting within New York County, New York (the "Forum"), and the parties hereby waive any argument that any such court does not have personal jurisdiction or that the Forum is not appropriate or convenient; (ii) you and NXTGEN waive any and all rights to trial by jury with respect to any Claims.
In the event that either party initiates a proceeding involving any Claim other than an arbitration in accordance with this Section 11, or initiates a proceeding involving a Claim under Section 11.C other than in the Forum, the other party shall recover all attorneys' fees and expenses reasonably incurred in enforcing this agreement to arbitrate and the Forum to which the parties have herein agreed.
To the maximum extent permitted by law, you permanently and irrevocably waive the right to bring any Claim in any forum unless you provide NXTGEN with written notice of the event or facts giving rise to the Claim within one (1) year of their occurrence.
12. CHOICE OF LAW
Any and all Claims arising out of or related to this Agreement or to your use of any product or service distributed by NXTGEN shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York, without regard to conflict of laws principles.
This Agreement constitutes the entire agreement between the parties, and supersedes all prior written or oral agreements or communications with respect to the subject matter herein. NXTGEN in its sole discretion may amend this Agreement, in which case we will post the amended Agreement within the NXTGEN Digital Properties. Your use of the NXTGEN Digital Properties after such amended Agreement is posted will constitute acceptance of it by you. NXTGEN may be required to notify you of certain events concerning the NXTGEN Digital Properties and your use thereof, and your use of the NXTGEN Digital Properties constitutes acceptance that such notices will be effective upon our posting them on the applicable NXTGEN Digital Properties or, if we elect in our sole discretion, emailing you at an address you have provided to us. Sections 7, 8, 9, 11, 12 and 13 of this Agreement will survive any termination or cancellation of this Agreement. NXTGEN's performance under this Agreement is subject to applicable law and nothing contained herein is in derogation of NXTGEN's right or obligation to comply with governmental, court and law enforcement requests or requirements relating to your use of the NXTGEN Digital Properties or information provided to or gathered by NXTGEN with respect to such use. If any term in this Agreement is declared unlawful, void or for any reason unenforceable by any court, then such term will be deemed severable from the remaining terms and will not affect the validity and enforceability of such remaining terms. The section headings in this Agreement are for convenience only and must not be given any legal import.
BY USING AN NXTGEN DIGITAL PROPERTY, YOU SIGNIFY YOUR AGREEMENT TO THE TERMS OF THIS AGREEMENT. If you do not agree to the terms in this Agreement, you must not use any of the NXTGEN Digital Properties. NXTGEN may change the terms of this Agreement at any time, and your use of an NXTGEN Digital Property after such change is posted will mean that you accept such change.
15. NOTICE FOR WASHINGTON CONSUMERS
Under Washington Civil Code Section XXXX, Washington users of the NXTGEN Digital Properties are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at address or by telephone at (333) 333-3333.
LAST UPDATED: MARCH 20, 2022