Note: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION IN SECTION 16 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO ALL SERVICES. UNLESS YOU HAVE OPTED OUT IN A TIMELY MANNER, THE ARBITRATION PROVISION REQUIRES THAT ALL DISPUTES BE RESOLVED IN INDIVIDUAL ARBITRATIONS OR SMALL CLAIMS COURT PROCEEDINGS. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.
In order to make certain purchases in XClass, you must create an XClass account and password. Comcast, in its sole discretion, shall determine which features and functionality to make available through XClass, and you acknowledge and agree that Comcast can change the features, availability, and functionality at any time with no notice to you. You represent and warrant that you are at least 18 years of age and that you have provided us with information that is accurate, complete, and current. For example, as part of the XClass account creation process you must provide us with your accurate, complete, and current legal name, email address, and method of payment. You must also provide accurate information when authorizing recurring payments. You agree to promptly update your provided contact information to keep it accurate and complete. YOU ARE RESPONSIBLE FOR MAINTAINING THE ACCURACY OF YOUR INFORMATION FOR SO LONG AS YOU HAVE AN ACTIVE XCLASS ACCOUNT. FAILURE TO DO SO IS A BREACH OF THIS AGREEMENT.
WE RESERVE THE RIGHT TO TERMINATE YOUR USE OF XCLASS AND YOUR XCLASS ACCOUNT IMMEDIATELY IN THE EVENT WE DETERMINE THAT 1) YOUR USE OF XCLASS IS IN VIOLATION OF THIS AGREEMENT, INCLUDING CREATING ACCOUNTS WITH FALSE INFORMATION, 2) YOUR XCLASS ACCOUNT HAS BEEN HACKED, STOLEN, OR COMPROMISED, OR 3) CONTENT YOU ACCESS IS NOT PROPERLY AUTHORIZED OR LICENSED IN YOUR COUNTRY, VIOLATES APPLICABLE LAW, OR HAS BEEN IMPROPERLY PROVIDED TO YOU. WE MAY ALSO SUSPEND (OR TERMINATE) YOUR USE OF XCLASS AND YOUR XCLASS ACCOUNT IF WE BELIEVE IT IS NECESSARY TO PROTECT COMCAST, OUR PERSONNEL, OTHER XCLASS USERS OR A CONTENT PROVIDER FROM WHAT WE BELIEVE TO BE UNAUTHORIZED ACTIVITY.
1. Grant of a Limited License
Subject to the terms and conditions set forth in this Agreement, Comcast hereby grants to you, and you hereby accept, a revocable, personal, limited, non-transferable, non-assignable, and non-exclusive license to (a) use XClass, in object code form only, on your Smart TV, (b) download XClass software updates from www.xclasstv.com/usb-updates solely to upload such software updates to your Smart TV, and (c) download and use an XClass App on your Comcast-designated, compatible device, in each case solely in accordance with the terms and conditions of this Agreement and for the purpose of accessing and using features and functionality of XClass. If you do not have a Smart TV, the scope of this license will be limited to the XClass App.
2. No Ownership Rights
You have no ownership rights in XClass or any component thereof. Rather, you have the limited license granted above to use XClass as long as this Agreement remains in full force and effect. Except for the limited license granted to you, all other intellectual property rights in XClass, including ownership of XClass, shall remain at all times with Comcast and/or its licensors. Any use of XClass beyond the limited license granted above is strictly forbidden and is a violation of this Agreement.
3. Third-Party Services
Content Providers. XClass is designed to enable access to compatible third-party platforms, products and services (e.g., Peacock) offered by third-party content and service providers (“Content Providers”). To enable certain services or Content (defined below), you must have valid and verifiable accounts with the applicable Content Providers and agree to abide by any terms that govern the use of their products and services (“Third-Party Terms”). You represent and warrant that your Content Provider accounts are in good standing and that the use of XClass on your Smart TV will not be in violation of any applicable Third-Party Terms. You acknowledge that we have no control over Content Providers or the provision of or access to their services or Content. We do not guarantee that you will be able to use XClass with any particular Content Providers’ offerings or that you will be able to access certain channels or Content. In addition to the warranty disclaimers referenced in Section 13, you acknowledge that we will have no liability for any actions or inactions on the part of the Content Providers resulting in your inability to access your accounts, or otherwise access or use their products or services or Content. You agree that you will use the products, services, or Content offered by Content Providers at your sole risk. IN ADDITION TO ANY DISCLAIMERS SET FORTH IN SUCH THIRD-PARTY TERMS, THE DISCLAIMERS AND LIMITATIONS OF LIABILITY REFERENCED HEREIN SHALL APPLY TO COMCAST AND ITS LICENSORS AND SERVICE PROVIDERS WITH RESPECT TO SUCH CONTENT PROVIDERS AND THEIR PRODUCTS, SERVICES, OR CONTENT. Further, information you make available to Content Providers is subject to the privacy policies of such Content Providers.
Third-Party Software. XClass contains software that has been licensed to Comcast by third parties. This Agreement applies to all software contained in XClass, whether owned by Comcast or licensed to Comcast by third parties. Comcast does not make any representations or warranties about the operation or availability of the third-party software. Neither Comcast, nor its licensors, shall be liable for any unavailability or removal of this third-party software. Comcast is not responsible for any communications to or from these licensors, or for the collection or use of information by these licensors. You consent to the communications enabled and/or performed by the third-party software, including automatic updating of the third-party software without further notice. You agree that the third-party software licensors are intended third-party beneficiaries under this Agreement.
Third-Party Platforms. You may access features of XClass through an XClass App on a third-party platform not operated by Comcast (e.g., a mobile operating system or voice assistant platform) (“Third-Party Platform”). You must be validly licensed to access and use such Third-Party Platform and agree to abide by any terms that govern the use of such Third-Party Platform. You acknowledge and agree that Comcast does not have control over the actions of such Third-Party Platforms. Neither Comcast, nor its licensors, shall be liable for any liability which may arise as a result of (a) the actions or omissions of a Third-Party Platform on which you use an XClass App, or (b) any incompatibility between an XClass App and any Third-Party Platform.
You acknowledge and agree that you are solely responsible for the choice and use of all videos and other content and information accessed through XClass on your Smart TV, which is provided by Content Providers (“Content”). Comcast and its affiliates and licensors will have no liability for any Content, including without limitation your purchase or use of such Content or the availability, suitability, reliability, or performance thereof. Comcast does not endorse any Content or Content Providers. Comcast has no liability for Content available through XClass on any Smart TV that you find offensive, indecent, or objectionable.
Access to Content on XClass requires an internet connection. Data charges may apply to access and/or stream Content, depending on your data plan with your internet service provider, which is your responsibility to pay. The display quality of streaming content can vary by device and is affected by many factors, including your internet speeds, Wi-Fi strength, and location. Comcast is not liable for the display quality of the streaming content on XClass.
5. Smart TV Terms
You acknowledge and agree that any warranties applicable to your use of your Smart TV (if any) are provided directly by the manufacturer of the Smart TV, and not by Comcast. COMCAST DOES NOT PROVIDE ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED WITH RESPECT TO ANY SMART TV. NEITHER COMCAST NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS WARRANT THAT (A) ANY SMART TV WILL MEET YOUR REQUIREMENTS, (B) ANY SMART TV WILL PROVIDE UNINTERRUPTED USE, OR (C) ANY SMART TV WILL OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR.
6. Restrictions and Requirements
You may only use XClass with a Smart TV that you own or control, and in the case of an XClass App, with a compatible device that you own or control. You may not install XClass on any device for which Comcast has not licensed the use of XClass.
You may not distribute or make XClass available over a network of any type where it could be used by multiple devices at the same time.
As a condition of the limited license for XClass you may not: (i) publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works based on XClass or any part thereof or based on any of the Content; (ii) reverse engineer, decompile, translate, adapt, disassemble or attempt to create the source code from the object code for XClass; (iii) transmit XClass or any of the Content over any network or between any devices, except as required to upload the software updates to your Smart TV or, in the case of the XClass App, as required to backup, restore or transfer an instance of the XClass App, solely for use on your personal devices; (iv) make any third-party software contained in XClass a stand-alone product; (v) take any action that will infringe on the intellectual property or other proprietary rights of Comcast or any Content Providers; or (vi) sublicense or assign XClass.
You agree not to remove any proprietary notices, marks, or labels on XClass or any of the Content.
You agree not to export, import, or re-export XClass in violation of any applicable law, rule, or regulation of any jurisdiction.
You agree that you will only use XClass in a manner that complies with all applicable laws in the jurisdictions in which you use XClass, including but not limited to applicable restrictions concerning copyright and other intellectual property rights.
XClass is only intended for your non-commercial, private use. No licenses granted under this Agreement extend to the use or exploitation of XClass for any other purposes.
You may not use XClass in an attempt to circumvent, or in conjunction with any device, program, or service designed to circumvent, technological measures employed to control access to, use of, or the rights in, a content file, service, or other work protected by the copyright laws of any jurisdiction.
You agree not to engage in the systematic retrieval of data or other content from XClass without Comcast's prior written consent.
You agree not to capture, rip, download, or otherwise create a copy of any Content that is shown via XClass without obtaining any required permission of the Content owner.
7. Fees and Payment Terms
a. XClass Fees. There are currently no fees to use XClass itself.
b. Third-Party Fees. You may incur charges for accessing certain Content, for using the services of Content Providers (e.g., renting or purchasing a movie or paying a monthly subscription fee), or for purchasing or subscribing to other offerings via the interactive options on a Smart TV (“Third-Party Fees”). Regardless of where the Third-Party Fees originate, you acknowledge and agree that you are solely responsible for paying all such charges incurred in connection with your XClass account and use of a Smart TV, including all applicable taxes and governmental fees or assessments. As described below, these fees may be processed by or on behalf of Comcast or the applicable Content Providers.
c. Advance Payment; No Refunds. All purchases, including but not limited to Third-Party Fees, and other charges made by you or through your XClass account, are paid in advance (pre-paid) and non-refundable and non-cancelable. In addition to Third-Party Fees, you are responsible for all charges that are made by you through your XClass account. We reserve the right to re-submit a purchase transaction for any such fees or charges if your payment method is declined or suspend your access to the Content or the services for which payment has not been received. You are responsible for any bank fees, issuer fees, over-limit, non-sufficient funds, or other overdraft fees incurred.
d. Charges from Content Providers. Each Content Provider may require you to link your Content Provider account with a payment method (e.g., credit/debit card) and authorize the Content Provider to automatically charge such payment method for any Third-Party Fees originating from the Content Provider.
f. Your purchases,including but not limited to Third-Party Fees, and other charges made by you or through your XClass account, may be subject to sales or use tax. The amount and type of tax applicable to your purchase will depend on what was purchased and the applicable tax rules (where the product or service is sold). If your purchase is subject to a separate tax, it will be stated in the terms and conditions of the offer. You are responsible for paying for all taxes that are applicable to your purchases. Any pricing provided to you for such purchases does not include any associated data charges or internet access that may be required to access the Content and/or use XClass.
Comcast reserves the right to modify this Agreement, including the right to assign this Agreement, in whole or in part, to a third-party, from time to time and will use reasonable efforts to provide notice to you of any modifications including by posting on www.xclasstv.com/terms or any other website about which you have been notified. You agree that this is sufficient and effective notice under this Agreement and that it is your responsibility to regularly check the website for modifications. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
9. Data Collection and Use
10. Open Source
Some elements of XClass may contain open source software, as set forth at: www.xclasstv.com/opensourcenotice. To the extent there is any conflict between the terms of this Agreement and the terms of an open source software license, the terms of the open source software license will apply solely as to that open source software.
If you have questions regarding your use of XClass, please go to www.xclasstv.com/support.
This Agreement is effective starting upon your access or use of XClass and remains in effect so long as you use XClass. To terminate this Agreement you must deactivate your XClass account (if you created one) following the instructions on www.xclasstv.com, uninstall all XClass Apps, delete any downloaded copies of XClass software, and cease using XClass. You may terminate your subscription with certain Content Providers in accordance with their Third-Party Terms, this may include the ability to cancel your subscription through your XClass account. Upon termination of this Agreement, you may continue to use any Smart TV you own in accordance with the manufacturer’s terms, however the XClass features and functionality will no longer be available. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless it is made in writing and is signed by an authorized representative of the waiving party. All provisions relating to proprietary rights and all representations and warranties shall survive the termination of this Agreement.
13. Limited Warranty
TO THE EXTENT PERMITTED BY LAW, THE XCLASS IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER WE NOR ANY OF OUR PROVIDERS, AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS, OR BUSINESS PARTNERS (OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, OR REPRESENTATIVES) (COLLECTIVELY, THE “RELEASED ENTITIES”) WARRANT THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM, OR THAT XCLASS WILL MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF PERFORMANCE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED, UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW.
14. Limitation of Liability
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, WE AND THE RELEASED ENTITIES WILL HAVE NO LIABILITY TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, TORT OR CONTRACT):
(1) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST DATA, LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES, OR DEATH) THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH CUSTOMER EQUIPMENT OR THE SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY MISTAKES, OMISSIONS, INTERRUPTIONS, HARDWARE OR SOFTWARE BREACH, FAILURES OR MALFUNCTIONS, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, OR DELAYS IN TRANSMISSION); OR
(2) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, LEGAL FEES, OR OTHER COSTS THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE SERVICES OR THE CUSTOMER EQUIPMENT BY YOU OR ANY OTHER PERSON OR ENTITY INFRINGES UPON THE CONTRACTUAL RIGHTS, PRIVACY, PUBLICITY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
15. One Year Limitation Period
YOU MUST COMMENCE ANY ACTION WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE OR WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED ON SUCH EVENTS OR FACTS. FOR BILLING DISPUTES, YOU MUST NOTIFY US WITHIN 120 DAYS AND MUST COMMENCE AN ACTION WITHIN ONE (1) YEAR OF RECEIVING THE CHARGES.
16. Binding Arbitration, and Class Collective/Representative Action/ Relief Waiver
Any Dispute involving you and us shall be resolved through individual arbitration as described in this Section 16 (the “Arbitration Provision”). In arbitration, there is no judge or jury, and there is less discovery and appellate review than in court.
Definitions.This Arbitration Provision shall be interpreted broadly. “Dispute” means any and all claims or controversies related to us or our relationship, including, but not limited to, any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims or controversies that arose before this Agreement or any prior agreement; (3) claims or controversies that arise after the expiration or termination of this Agreement; and (4) claims or controversies that are the subject of purported class, collective, or representative action litigation. As used in this Arbitration Provision, “us” and “we” means Comcast Cable Communications, LLC and any of its parents, subsidiaries, and other affiliates, each of their respective predecessors, successors, and assigns, and each of their respective officers, directors, employees, and agents; and “you” means you and any users or beneficiaries of the Services.
Exclusions. NOTWITHSTANDING THE FOREGOING, THE FOLLOWING DISPUTES WILL NOT BE SUBJECT TO ARBITRATION: (i) DISPUTES RELATING TO THE SCOPE, VALIDITY, OR ENFORCEABILITY OF THIS ARBITRATION PROVISION; AND (ii) DISPUTES THAT ARISE BETWEEN US AND ANY STATE OR LOCAL REGULATORY AUTHORITY OR AGENCY THAT IS EMPOWERED BY FEDERAL, STATE, OR LOCAL LAW TO GRANT A FRANCHISE UNDER 47 U.S.C. § 522(9).
Right to Opt Out.IF YOU DO NOT WISH TO ARBITRATE DISPUTES, YOU MAY DECLINE TO HAVE YOUR DISPUTES WITH US ARBITRATED BY NOTIFYING US, WITHIN 30 DAYS OF YOUR FIRST ACTIVATION OF XCLASS, (i) BY VISITING WWW.XFINITY.COM/XCLASSARBITRATIONOPTOUT, OR (ii) IN WRITING BY MAIL TO: COMCAST, 1701 JOHN F. KENNEDY BLVD., PHILADELPHIA, PA 19103-2838, ATTN: LEGAL DEPARTMENT/ARBITRATION. ANY SUCH WRITTEN NOTIFICATION TO US MUST INCLUDE YOUR NAME, EMAIL ADDRESS, BILLING ADDRESS AND ACCOUNT ID (IF YOU HAVE ACTIVATED A SMART TV), DEVICE ID (IF YOU HAVE ACTIVATED A SMART TV), SERIAL NUMBER (IF YOU HAVE A SMART TV), DATE WHEN YOU FIRST ACTIVATED/USED XCLASS, AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR THE SERVICES PROVIDED BY US. AN OPT OUT OF ARBITRATION IN THIS AGREEMENT IS INDEPENDENT FROM ANY OTHER XFINITY CABLE PRODUCTS OR SERVICES THAT YOU RECEIVE.
Initiation of Arbitration Proceeding/Selection of Arbitrator. Either you or we may initiate an arbitration proceeding by opening a case with the American Arbitration Association (“AAA”) by visiting its website (www.adr.org) or calling its toll-free number (1-800-778-7879). You may deliver any required or desired notice to us by mail to: Comcast, 1701 John F. Kennedy Boulevard, Philadelphia, PA 19103-2838 – ATTN: LEGAL DEPARTMENT/ARBITRATION.
Right to Sue in Small Claims Court. Notwithstanding anything in this Arbitration Provision to the contrary, either you or we may elect to have a Dispute heard in a United States small claims court in the area where you use XClass and where your Smart TV is located, if the claim(s) underlying the Dispute is not aggregated with the claim(s) of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
Arbitration Procedures. Any arbitration under this Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by the AAA pursuant to the most recent version of its Consumer Arbitration Rules (the “AAA Rules”) as modified by the version of this Arbitration Provision that is in effect when you notify us about your Dispute. You can obtain the AAA Rules from the AAA by visiting its website (www.adr.org) or calling its toll-free number (1-800-778-7879). If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the AAA Rules, this Arbitration Provision shall govern. If the AAA will not administer a proceeding under this Arbitration Provision as written, you and we shall agree on a substitute arbitration organization. If you and we cannot agree, you and we shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision, as written, applying the AAA Rules. A single arbitrator will resolve the Dispute. Unless you and we agree otherwise, any arbitration hearing will take place at a location convenient to you in the area where you use XClass and where your Smart TV is located. If you no longer use XClass when you notify us of your Dispute, then any arbitration hearing will take place at a location convenient to you in the county where you reside when you notify us of your Dispute, provided that we offer XClass in that county, or in the area where you used XClass and where your Smart TV is located from us at the time of the events giving rise to your Dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
Waiver of Class, Collective, and Representative Actions/Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED (I) ON A CLASS ACTION, COLLECTIVE ACTION, OR OTHER JOINT OR CONSOLIDATED BASIS, OR (II) ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM, AND THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST OR ON BEHALF OF ANYONE WHO IS NOT A PARTY. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS, COLLECTIVE, OTHER JOINT OR CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. THIS WAIVER OF CLASS, COLLECTIVE, OTHER JOINT OR CONSOLIDATED, OR REPRESENTATIVE ACTIONS AND RELIEF IS AN ESSENTIAL PART OF THIS ARBITRATION PROVISION AND CANNOT BE SEVERED FROM IT. THE REMAINING PORTIONS OF THIS ARBITRATION PROVISION ARE NOT ESSENTIAL PARTS OF THIS ARBITRATION PROVISION AND CAN BE SEVERED FROM IT BY A COURT OF COMPETENT JURISDICTION.
Arbitral Fees and Costs. If your claim seeks more than $75,000 in the aggregate, the payment of the AAA’s fees and costs will be governed by the AAA Rules. If your claims seek less than $75,000 in the aggregate, the payment of the AAA’s fees and costs will be our responsibility. However, if the arbitrator finds that your Dispute was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the payment of the AAA’s fees and costs shall be governed by the AAA Rules, and you shall reimburse us for all fees and costs that were your obligation to pay under the AAA Rules. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs. You may only recover your attorneys’ fees and costs in the arbitration if the arbitration is decided in your favor and to the extent that you could have recovered those fees in court in accordance with the law or statute(s) that apply to the case. Notwithstanding anything in this Arbitration Provision to the contrary, we will pay all fees and costs that we are required by law to pay.
Survival. This Arbitration Provision shall survive the termination of your use of XClass with us.
17. Waiver of Jury Trial
WHETHER ANY DISPUTE IS RESOLVED IN COURT OR IN ARBITRATION, YOU AND WE AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY IN RELATION TO THE DISPUTE.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US AND EACH RELEASED ENTITY HARMLESS FROM AND AGAINST ANY DAMAGES, LOSSES, OR EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COSTS) INCURRED IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS, AND CAUSES OF ACTION ARISING OUT OF (a) YOUR USE OF XCLASS OR THE SMART TV; (b) YOUR ACTUAL OR ALLEGED VIOLATION OF APPLICABLE LAW; (c) YOUR FAILURE TO NOTIFY US OF A CHANGE IN OR THE INACCURACY OF THE INFORMATION YOU PROVIDED (INCLUDING, FOR EXAMPLE, CLAIMS UNDER THE TELEPHONE CONSUMER PROTECTION ACT AND RELATED REGULATIONS); AND (d) YOURBREACH OF THIS AGREEMENT OR ANY APPLICABLE POLICIES. YOUR INDEMNIFICATION OBLIGATIONS WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
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