MY BLACK HAIR ACCOUNT TERMS AND CONDITIONS
PLEASE READ THE TERMS AND CONDITIONS DESCRIBED BELOW CAREFULLY BEFORE SETTING UP YOUR MY BLACK HAIR ACCOUNT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK <CONTINUE> AND DO NOT CREATE A MY BLACK HAIR ACCOUNT.
An end user online profile and billing account with My Black Hair, Inc. (“My Black Hair“) on My Black Hair’s website (“My Black Hair Account“) is required to activate your device. A My Black Hair Account gives you access to movies, television shows and other audio-visual entertainment in the ” My Black Hair Channel Store“, a storefront of applications provided by My Black Hair via your device’s on-screen menu. After your My Black Hair Account is created, you can link your device to your account. When you link the device, you may be asked to agree to a separate end user license agreement (“EULA“) for that device.
These My Black Hair Account Terms and Conditions (“Account Terms“) govern your My Black Hair Account, your use of My Black Hair’s platform and services, and certain purchases and rentals made through your My Black Hair Account. If you choose to access any movies, television shows, music and/or other audio or visual materials (collectively, “Entertainment“) in the My Black Hair Channel Store, you will need to also agree to the terms of service of the providers whose Entertainment you choose to access. The terms of service of such content providers may impose additional requirements or provide them the right to cancel or suspend their service to you.
As used herein, “My Black Hair Service” “our service” or “the service” means the service provided by My Black Hair for streaming Entertainment, including all features and functionalities and user interfaces associated with the service, including the My Black Hair Channel Store. “Channel” means an application in the My Black Hair Channel Store. “Content Provider” means a provider of Entertainment. “Authorized EU Territory” means any country in the European Economic Area where My Black Hair directly sells any of the devices that is linked to your My Black Hair Account or expressly authorizes the sale of such devices through its distribution channel.
Acceptance of Account Terms
By setting up a My Black Hair Account or using the My Black Hair Service, you are agreeing to be bound by these Account Terms. If you are a resident of a country within the European Economic Area, you agree that, by creating or using your My Black Hair Account, you are waiving your right to withdraw, but this does not affect your right to stop using your My Black Hair Account or the My Black Hair Service at any time.
Changes to Account Terms
My Black Hair may amend the Account Terms at any time in its discretion. Such amendments shall be effective immediately upon posting of the amended Account Terms on My Black Hair’s website or via your My Black Hair Account or the device linked to your My Black Hair Account, whichever occurs first. In its option, My Black Hair may also notify you of an amendment to the Account Terms by sending a notice to the last email address you provided to My Black Hair. You agree to provide accurate and complete information when you establish your My Black Hair Account, and you agree to promptly update your account information (including contact information) to keep it accurate and complete. You can do this at any time by signing in to your My Black Hair Account. Following the posting or notice by any of the methods described above, continued use of any device linked to your My Black Hair Account or your My Black Hair Account means you accept and agree to the amended Account Terms. If you do not agree to the amended Account Terms, My Black Hair may not be able to provide updates, upgrades or enhancements to your devices, and you may not be able to continue using your devices or My Black Hair Account.
Establishing a My Black Hair Account
You agree that all Personal Financial Information or other information you provide to us will be (i) accurate, current, and complete; (ii) promptly updated when there is a change; and (iii) your own information and not that of another individual. If you provide any information that is untrue, inaccurate or incomplete, or we have reasons to suspect that such information is untrue, inaccurate or incomplete, we retain the right to suspend or terminate any My Black Hair Account you establish and/or to refuse any or all current or future use of the My Black Hair Account or any devices linked thereto.
Do not reveal your My Black Hair Account information to anyone, including your Personal Financial Information or your PIN code (if you choose to have one set up to restrict access to certain Channel). You acknowledge and agree that you are solely responsible for maintaining the confidentiality of your My Black Hair Account, login ID and password, and for all activities that occur on or through your My Black Hair Account. You agree to immediately notify My Black Hair of any unauthorized use of your My Black Hair Account, or any other security breach involving your My Black Hair Account. You agree that My Black Hair will not be responsible for any losses arising out of any unauthorized use of your My Black Hair Account.
Fees and Charges
Additional Definitions Applicable to this Section:
“Non-Certified Channel” means a Channel which may be accessed only by entering, on the My Black Hair website, a linking code, provided by the developer of the Channel.
“Public Channel” means a Channel that is (a) visible in the My Black Hair Channel Store and (b) generally available to all My Black Hair Device users.
All fees required to access Entertainment will be charged to your payment method on file (credit card number or PayPal account). At your option, a PIN code may be set up to restrict access to certain fee-based Entertainment. If you prefer to use a PIN, you will choose your PIN when setting your My Black Hair Account preferences. In addition, for some of the Entertainment, you may be required to maintain a valid and active account in good standing with one or more Content Providers. You must adhere to these Account Terms and to the terms of service of any Content Provider whose Entertainment you choose to access. For your convenience, your My Black Hair Account can provide a summary of monthly charges processed by My Black Hair.
Where My Black Hair manages the handling and processing of your payments for fee-based Entertainment, the following terms apply:
Entertainment Requiring A One-Time Fee . For Public Channels, the payment method on file for your My Black Hair Account will be charged a single fee, which shall constitute payment in full, when you confirm your purchase of access to the Channel. For Non-Certified Channels, you will be charged when you confirm your purchase of access to the Channel once the Channel appears as an option in your Channel line-up. For Entertainment and services purchased from within any Public Channel or Non-Certified Channel, your My Black Hair Account payment method will be charged a single fee, which shall constitute payment in full, when you confirm the purchase.
Entertainment Requiring A Subscription Fee . Subscription may be on a monthly or annual basis. The date you select and initiate the subscription to a fee-based Entertainment will provide the subscription start date and the basis for future monthly (if the Entertainment requires a monthly subscription) and yearly (if the Entertainment requires a yearly subscription) subscription fee billing dates. The subscription fee will be charged for the full term of the applicable subscription period, i.e., for the month or year, as applicable, at the time you order the subscription.
Sales Tax . Your purchases and rentals may be subject to sales tax. The amount of tax charged on your purchase will depend upon many factors, including the item purchased and the applicable tax rate in effect at the time of your purchase.
If your device is linked to a My Black Hair Account created outside of all of the Authorized EU Territories, the prices shown on the purchase screen may not include sales tax. Nevertheless, if an item you purchased is subject to sales tax, such amount will be reflected on the email invoice for that purchase. You should be aware that factors can change between the time you place an order and the time of credit card charge authorization, which could affect the calculation of sales taxes.
If your device is linked to a My Black Hair Account created within any Authorized EU Territory, then the prices shown on the purchase screen will include all applicable sales tax. If an item you purchased is subject to sales tax, such amount will be included as a part of the purchase price on the email invoice for that purchase.
Subscription Renewals and Cancellations . All subscriptions will automatically renew until cancelled by you. Details for how to cancel a subscription are available by entering the key words “cancel subscription” in the “Ask a Question” at [email protected] If a subscription is cancelled mid-way through a subscription period, the subscription will end at the end of the subscription period. You will continue to receive the Entertainment until the end of the subscription period, and fees for the remainder of the subscription period will not be refunded.
Credit/Refund Policy . Credits and refunds will be issued only in accordance with the terms posted at [email protected] For details, go to Support and enter the key words “credit policy” in the “Ask a Question” box.
You agree to pay all charges that may be incurred by you or on your behalf through the My Black Hair Account, at the price(s) in effect when such charges are incurred. In addition, you remain responsible for any taxes that may be applicable to your transactions.
My Black Hair Service; Entertainment and Channel Availability
You only have access to Channels and Entertainment that have been authorized for the country with respect to which you have established your My Black Hair Account, and such Channels and Entertainment will vary by geographic location or country. Some of the Content Providers use technologies to verify your geographic location, and you may not be able to access any Entertainment outside of the country or location authorized by My Black Hair or such Content Providers. You understand that the display quality of the Entertainment being streamed by your device may vary from television to television, and may be affected by many factors, including your Internet speed and your location. From time to time, My Black Hair may temporarily suspend your account access or our service for maintenance and repair. Access to the My Black Hair Service, My Black Hair Channel Store and Content requires Internet connectivity. Depending on your contract with your Internet provider, you may incur additional data charges from your provider when you access the My Black Hair Service.
My Black Hair may add or remove Entertainment, Content Providers, and/or Channels from time to time without notice to you. Content Providers may also add or remove Entertainment in their Channels from time to time without notice to you or My Black Hair. My Black Hair reserves the right to remove or restrict, from your device, access to any Entertainment and/or Channel if My Black Hair has reason to believe that the device linked to your My Black Hair Account is stolen, hacked or compromised, or that the Entertainment or Channel is not properly authorized or licensed, violates any law, or has been offered by a Content Provider in violation of any agreement between the Content Provider and My Black Hair. My Black Hair may also terminate, suspend or place any account on hold in order to protect itself and its partners from what it believes to be fraudulent or illegal activity. You are responsible for ensuring that any age-restricted Entertainment is not viewed by any person not meeting the applicable age limits, as specified by law, regulation or the Content Provider.
My Black Hair reserves the right to AUTOMATICALLY update the MY BLACK HAIR SERVICE, including BUG FIXES AND UPDATES, CHANGES IN THE USER INTERFACE OR HOW YOU ACCESS CONTENT, AND OTHER CHANGES THAT MAY add, ALTER or remove functionalities and features. You acknowledge that these updates may happen automatically in the background at any time (and that they cannot be disabled by You). You understand that these updates are necessary to maintain compatibility with other updates to our products or services and may be required for security reasons. By using the MY BLACK HAIR SERVICE, you hereby AGREE to receive such updates.
Advertising and Promotional Messages
My Black Hair and the Content Providers may deliver and display advertising and promotional messages to you via the My Black Hair Service, and to include such advertising and promotional messages in or with any user interface, notice, or Content that is displayed on your device. Any interaction, transaction or agreement you have with third parties as a result of the advertising and promotional messages displayed to you are entirely between you and such third parties. My Black Hair is not responsible or liable for any claims, damages, losses or injuries arising from your interactions with such third parties.
Warranty Disclaimer; Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
(A) THE MY BLACK HAIR SERVICE AND YOUR MY BLACK HAIR ACCOUNT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. MY BLACK HAIR DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE MY BLACK HAIR SERVICE OR THE USE OF MY BLACK HAIR ACCOUNT WILL BE: (I) UNINTERRUPTED, SECURE, VIRUS-FREE OR ERROR-FREE, OR (II) FREE FROM ATTACK OR SECURITY INTRUSION;
(B) IN NO EVENT SHALL MY BLACK HAIR, ITS DIRECTORS, OFFICERS OR EMPLOYEES BE LIABLE TO YOU FOR PERSONAL INJURY OR PROPERTY DAMAGE, OR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF YOUR USE OF THE MY BLACK HAIR SERVICE OR MY BLACK HAIR ACCOUNT; AND
(C) YOU AGREE THAT THE TOTAL CUMULATIVE LIABILITY OF MY BLACK HAIR, ITS DIRECTORS, OFFICERS AND EMPLOYEES UNDER THESE ACCOUNT TERMS, INCLUDING LIABIILTY RELATING TO THE MY BLACK HAIR SERVICE, YOUR MY BLACK HAIR ACCOUNT, YOUR INFORMATION AND ALL DEVICES LINKED TO YOUR MY BLACK HAIR ACCOUNT, SHALL NOT EXCEED THE TOTAL PURCHASE PRICE YOU PAID FOR ALL OF THE DEVICES LINKED TO YOUR MY BLACK HAIR ACCOUNT. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE REMEDY PROVIDED HEREIN FAILS ITS ESSENTIAL PURPOSE AND EVEN IF MY BLACK HAIR ITS DIRECTORS, OFFICERS OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.
Choice of Law; Dispute Resolution
A. If you are a consumer and a resident of any Authorized EU Territory, these Account Terms do not apply to you.
B. In all other cases, including if you are a resident of the United States (and its possessions and territories), Mexico or Canada, you agree that these Account Terms shall be governed by the laws of the State of California without regard to any conflict of laws principles that may provide the application of the law of another jurisdiction; and:
1 You and My Black Hair agree to be bound by the procedures set forth below to resolve any and all claims arising out of or relating to any aspect of these Account Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, including but not limited to, claims related to (a) advertising and promotions conducted by or for My Black Hair, (b) the devices that you choose to link to your My Black Hair Account, (c) the My Black Hair Channel Store, (d) the My Black Hair Service, (e) your My Black Hair Account, (f) your use of any of the foregoing, and/or (g) your information. Each such claim is referred to individually as “Claim” and collectively as “Claims“.
2 You and My Black Hair agree that, except for THE claims identified in paragraph 4 of this section below, any and all CLAIMS shall be finally settled by binding arbitration . The arbitration shall take place in Santa Clara County, California and shall be administered by the American Arbitration Association (“AAA”) pursuant to the AAA’s then-current rules, including (if applicable) the AAA’s Supplementary Procedures for Consumer-Related Disputes. Please be aware there is no judge or jury in arbitration. Arbitration procedures are simpler and more limited than the rules applicable in court, and review of the arbitrator’s decision by a court is limited. YOU AND MY BLACK HAIR FURTHER AGREE THAT EACH OF YOU MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. The arbitrator may not consolidate or join more than one person’s claim and may not preside over any consolidated, representative or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive or declaratory relief) only on an individual basis and may not award any form of consolidated, representative or class-wide relief. Notwithstanding any provision in these terms to the contrary, if the class-action waiver in this provision is deemed invalid or unenforceable, or if an arbitration is allowed to proceed on a class basis, then neither you nor My Black Hair are entitled to arbitrate the Claims. This arbitration provision is subject to the Federal Arbitration Act. The arbitrator’s award shall be binding on you and My Black Hair, and may be entered in any court of competent jurisdiction.
3 Information on AAA and how arbitration is initiated can be found at www.adr.org or by calling 800-778-7879. For Claims of $75,000 or less, you will be responsible for the initial arbitration filing fee, up to the amount of the initial filing fee if you were to initiate a lawsuit against My Black Hair based on such Claims in court. If the arbitrator finds such Claims to be non-frivolous, My Black Hair will pay any difference in such filing fees plus the arbitrator fees. For Claims in excess of $75,000, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, My Black Hair will pay as much of your actual filing fees and the arbitrator fees for the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation.
4 This agreement to arbitrate does not apply to any Claim (a) in which a party is attempting to protect its intellectual property rights (such as its patent, copyright, trademark, trade secret, or moral rights, but not including its privacy or publicity rights), or (b) that may be brought in small-claims court.
5 If the agreement to arbitrate in this provision is found to be invalid, unenforceable or inapplicable to a given Claim, then any and all proceedings to resolve such Claim must be brought exclusively in a federal court of competent jurisdiction in the Northern District of California or in a state court in Santa Clara County, California. You hereby irrevocably consent to the exclusive jurisdiction and venue of such courts.
6 30-Day Right to Opt Out: You have the right to opt out of this agreement to arbitrate by sending a written notice of your decision to opt out to the following address: Legal Department, My Black Hair, Inc., 150 Winchester Circle, Los Gatos CA 95032, USA; provided that, such notice must be postmarked on or before the 30th day after the date you create your My Black Hair Account if you do not already have one. If you have an existing My Black Hair Account, all devices you choose to link to your My Black Hair Account, and all My Black Hair Services accessed using these devices, will be subject to this agreement to arbitrate. Your notice should include your full name, your current postal address, telephone number and email address, the product name and serial number for your Player, and a copy of the original proof of purchase for your Player. If you timely send a notice in compliance with this paragraph 6, the agreement to arbitrate will not apply to either you or My Black Hair. If you do not timely send this notice, then you agree to be bound by this agreement to arbitrate.
7 Notwithstanding any provision in this Agreement to the contrary, you agree that, if My Black Hair seeks to delete or materially modify the agreement to arbitrate described herein, any such deletion or modification will not apply to any individual Claim of which you have notified My Black Hair prior to such modification.
My Black Hair may transfer its rights and obligations under these Account Terms to another organization. You may only transfer your rights or your obligations under these Account Terms to another person if My Black Hair agrees in writing. These Account Terms are between you and My Black Hair. No other person shall have any rights to enforce these terms. Each of the paragraphs of these Account Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect. If My Black Hair fails to insist that you perform any of your obligations under these Account Terms, or if My Black Hair does not enforce its rights against you, or if My Black Hair delays in doing so, that will not mean that My Black Hair has waived its rights against you, or that you do not have to comply with those obligations. If My Black Hair does waive a default by you, My Black Hair will only do so in writing, but that will not mean that My Black Hair will automatically waive any later default by you.