AVAIYA Digital Download and Streaming Agreement:
1. THE SERVICE
The AVAIYA Instant Video service (the "Service") offers digitized versions of movies, television shows, and other video content (collectively, "Digital Content") and other services under certain terms and conditions as set forth in this Agreement. The Service allows you to access and view Digital Content in two different ways: by streaming a copy, by downloading a copy, or both. As indicated on the product detail pages of the Service, some Digital Content may be available for streaming only, some Digital Content may be available for download only, and some Digital Content may be available for streaming and download.
2. COMPATIBLE DEVICES
In order to be able to stream or download Digital Content from the Service and to view Digital Content on the Service, you will need to use a personal computer, portable media player, or other device that meets the system and compatibility requirements that we establish from time to time and is otherwise capable of interacting with the Service (each such device, a "Compatible Device"). Some Compatible Devices may be used only to stream Digital Content, some Compatible Devices may be used only to download Digital Content, and some Compatible Devices may be used to stream and download Digital Content. We may change the requirements for Compatible Devices from time to time and, in some cases, whether a device is (or remains) a Compatible Device may depend on software or systems provided or maintained by the device manufacturer or other third parties. As a result, devices that are Compatible Devices at one time may cease to be Compatible Devices in the future.
3. DIGITAL CONTENT
General. The Service may allow you to: (i) rent Digital Content for viewing over a limited period of time ("Rental Digital Content"), (ii) purchase Digital Content for viewing over an indefinite period of time ("Purchased Digital Content"), (iii) access Digital Content on a subscription basis for viewing over a limited period of time during a subscription period ("Subscription Digital Content"), and (iv) access Digital Content on a free or promotional basis for viewing over a limited period of time ("Free Digital Content"). Digital Content may be available on the Service as Rental Digital Content, Purchased Digital Content, Subscription Digital Content, Free Digital Content, or any combination of those. The basis on which Digital Content is available on the Service will be indicated on the product detail page for that Digital Content on the Service. From time to time, we may add or remove Digital Content from the Service and may change the basis on which Digital Content is available on the Service.
Subscriptions . Our subscription services are dynamic services and the specific Subscription Digital Content available and amount of Subscription Digital Content available will generally change over time. We make no guarantee as to the availability of specific Subscription Digital Content or the minimum amount of Subscription Digital Content available in any subscription. Additional terms applicable to a subscription (such as the applicable cancellation and refund policy) will be indicated on the informational pages for that subscription.
License to Digital Content . Subject to your payment of any applicable fees (including applicable taxes) to rent, purchase, or otherwise obtain access to Digital Content, and your compliance with all other terms we specify for Digital Content or the Service, AVAIYA grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license, during the applicable Viewing Period, to access, view, use and display the Digital Content in accordance with the Usage Rules, for Non-Commercial, Private Use. As used herein, "Non-Commercial, Private Use" means a presentation of Digital Content for which no fee or consideration of any kind (other than that which you pay to us to view the Digital Content) is charged or received, which takes place in your private home or apartment or, if outside your private home or apartment (e.g., in a hotel room, dorm room, office, or airport waiting lounge) is limited to a private viewing for you and your invitees. Non-Commercial, Private Use specifically excludes any public presentation (e.g., a presentation in a dorm lounge) and any presentation by a place of public accommodation or other commercial establishment (e.g., a bar or restaurant), even if no fee is charged for viewing the Digital Content. To simplify your viewing and management of Digital Content that has a limited Viewing Period (such as Rental Digital Content and Subscription Digital Content), we may automatically remove that Digital Content from your Compatible Device after the end of its Viewing Period, and you consent to such automatic removal.
Availability of Purchased Digital Content . Purchased Digital Content will generally continue to be available to you for download or streaming from the Service, as applicable, but may become unavailable due to potential content provider licensing restrictions and for other reasons, and AVAIYA will not be liable to you if Purchased Digital Content becomes unavailable for further download or streaming. You may download and store your own copy of Purchased Digital Content on a Compatible Device authorized for such download so that you can view that Purchased Digital Content if it becomes unavailable for further download or streaming from the Service.
Downloading and Risk of Loss. If you plan to download Digital Content that you purchase or rent, we encourage you to do so promptly after your purchase or rental. If you are unable to complete a download after having reviewed our online help resources, please contact AVAIYA customer service. Once you purchase or rent Digital Content and we make the Digital Content available to you, you are responsible for completing the download, if you choose to download, and for all risk of loss of the Digital Content after download.
Streaming. When you stream Digital Content, the resolution and quality of the Digital Content you receive will depend on a number of factors, including the type of Compatible Device on which you are streaming the Digital Content and your bandwidth, which may go up and down over the course of your viewing. If we detect that Digital Content we are streaming to you may be interrupted or may otherwise not play properly due to bandwidth constraints or other factors, we may decrease the resolution and file size of the Digital Content we stream to you in an effort to provide an uninterrupted viewing experience. While we strive to provide you a high quality viewing experience, we make no guarantee as to the resolution or quality of the Digital Content you will receive when streaming, even if you have paid extra for access to high definition content.
General Restrictions. You may not transfer, copy or display the Digital Content, except as permitted in this Agreement. In addition, you may not: i. sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any right to the Digital Content to any third party; ii. remove any proprietary notices or labels on the Digital Content; iii. attempt to disable, bypass, modify, defeat, or otherwise circumvent any digital rights management system used as part of the Service; or, iv. use the Service or Digital Content for any commercial or illegal purpose.
Use of the Software.
5. REFUND POLICY ON DIGITAL PRODUCTS. Because digital products cannot actually be returned, all digital products are not refundable after purchase.
6. ADDITIONAL TERMS
a. Termination . If you violate any of the terms or conditions of this Agreement, your rights under this Agreement will automatically terminate without notice from us, and AVAIYA may, in its discretion, immediately revoke your access to the Service without notice to you and without refund of any fees. In such event, you must delete all copies of Digital Content that you have downloaded, and Amazon shall have the right, without notice to you, to automatically discontinue your access to Digital Content from the Service.
b. Explicit Content. You understand that by using the Service, you may encounter content that may be deemed offensive, indecent or objectionable, which content may or may not be identified as having explicit language or other features. Nevertheless, you agree to use the Service at your sole risk, and AVAIYA shall have no liability to you for content that may be found to be offensive, indecent or objectionable. Content types (including genres, sub-genres, and categories and sub-categories and the like) and descriptions are provided for convenience, and you acknowledge and agree that AVAIYA does not guarantee their accuracy.
c. Modification of Service. AVAIYA reserves the right to modify, suspend, or discontinue the Service, or any part thereof, at any time and without notice to you, and AVAIYA will not be liable to you should it exercise such rights, even if your use of Digital Content is impacted by the change.
d. Amendments. AVAIYA reserves the right to make changes to this Agreement at any time. Your continued use of the Service following any such changes will constitute your acceptance of such changes.
e. Third-Party Beneficiaries. Content providers providing Digital Content that you rent, purchase, or view on the Service are intended third-party beneficiaries under this Agreement.
f. Mediation/Disputes/Binding Arbitration.
In the event of any unresolvable controversy or claim arising out of or relating to this Agreement, or the breach hereof, Customer & AVAIYA agree to participate in mediation in accordance with the laws of North Carolina.
This Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of North Carolina and the parties hereby consent to the jurisdiction of the North Carolina courts over the matters relating to this Agreement.
g. Limitation of Liability. Without limiting the Disclaimer of Warranties and Limitation of Liability in the AVAIYA.com Conditions of Use: (i) in no event shall our or our software licensors' total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) arising out of or related to your use or inability to use the Software exceed the amount of fifty dollars ($50.00); and (ii) in no event shall our or our Digital Content providers' total liability to you for all damages arising from your use of the Service, the Digital Content, or information, materials or products included on or otherwise made available to you through the Service, exceed the amount you paid to us to purchase, rent, or view the Digital Content related to your claim for damages. These limitations will apply to you even if the remedies fail of their essential purpose.
h. Contact Information. For communications concerning this Agreement, please write to AVAIYA, Attn: Legal Department, 900 Blanche Ave., Carolina Beach, NC 28428.