END USER AGREEMENT – TERMS OF USE

1. Acceptance.
Thank you for visiting our website(s) or downloading our application(s). The services that GCC Bend, LLC, dba BackyardMedia (BYM), and its family of brands (referred to as “GCC,” “BackyardMedia” (BYM) “BackyardBend”, “Bend Radio Group”, “us,” “we,” or “our”) provide to you through our websites, applications, and related products or services (collectively, “Products”) are subject to the terms of this End User Agreement (“Agreement”) and in our Privacy Policy, available here: www.backyardbend.com (collectively, “Terms”). By using our Products or upon checking “AGREE” or “ACCEPT” box on the registration page or single-sign-on page, you are entering into a legally binding agreement with GCC/BYM and regarding the use of our Products.

PLEASE READ THESE TERMS CAREFULLY BEFORE USING OUR PRODUCTS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD NOT USE, AND ARE NOT PERMITTED TO USE, OUR PRODUCTS. THESE TERMS INCLUDE A BINDING ARBITRATION PROVISION.

2. Changes to the Terms.

We reserve the right to change these Terms at any time, in our sole discretion, and encourage you to review these terms from time to time. If we change these Terms, we will post an updated version with a new effective date. If we make changes in a material way, a notice will be posted within our Products. By continuing to access or use our Products after the updated Terms are posted, you agree to abide by the updated Terms. In the event that you do not consent and agree to the updated Terms, you must discontinue use of our Products.

3. Authorized Users.

Access or use by anyone under the age of thirteen (13) is strictly prohibited. If you are establishing a user account for the purpose of using or accessing our Products on behalf of a company, organization, or entity, you are agreeing to these Terms on their behalf. Special rules apply to commercial use of our Products. See Section 5 [Commercial Users].

4. Limitations on Use.

While using the Products, you may not perform actions that could interfere with or otherwise adversely affect the proper functioning of the Products. Without limiting the generality of the foregoing, you may not: (a) use any robot, spider, scraper, or other automated means to access our Products for any purpose without prior express written permission from GCC/BYM; (b) take any action that imposes, or may impose, in GCC/BYM sole discretion, an unreasonable or disproportionately large load on GCC/BYM or BackyardBend’s infrastructure; (c) bypass any measures GCC/BYM or BackyardBend may use to prevent or restrict access to the Products; or (d) use the Products to send altered, deceptive, or falsely-sourced information, including, without limitation, by forging TCP-IP packet headers or email headers.

GCC/BYM has the right, in their sole discretion, to change, modify, or discontinue any page, feature, or other component or element of any Product or GCC/BackyardBend Content (as defined below) at any time and for any reason, with or without prior notice to you. GCC reserves the rights to restrict your access to some or all of the Products at any time for any reason with or without prior notice to you. GCC and BackyardBend further reserve the right to charge fees for access to some or all of its Products. GCC/BYM will try to provide advance notice of fees where practical. You agree that these Terms will apply to any upgrades, changes, or modifications to our Products or the GCC and BYM Content.

Any unauthorized or prohibited use of the Products or Content may subject you to civil liability and criminal prosecution under applicable state and federal law.

5. Commercial Users

If you are using or accessing our Products for business purposes, you are a “Commercial User.” Commercial Users are required to disclose the business affiliation in the Commercial User’s profile in a way that is readily identifiable to all users of our Products. Any undisclosed commercial use is prohibited. Keep in mind that federal, state, and local rules, and regulations governing advertising apply to online and other web-based advertising, too. You are solely responsible for your compliance and your company’s compliance with applicable law.

6. User-Generated Content.

Our Products provide the functional ability to post, submit, upload, embed, display, communicate, broadcast, or otherwise distribute text, data, images, photographs, video clips, graphics, external links, location data, or other materials (“User Content”).

You hereby grant GCC and its family of brands non-exclusive, irrevocable, worldwide, perpetual, royalty-free, fully paid, sub-licensable and transferrable rights and licenses to use, reproduce, transmit, broadcast, display, exhibit, distribute, index, comment on, modify, create derivative works, perform, or otherwise exploit User Content, in whole or in part, in any format or manner and for any purpose, whether now known or hereafter devised or invented without further notice to you, with or without attribution. We reserve the right to remove or modify User Content for any reason. IF YOU DO NOT WANT TO PROVIDE GCC/BYM including BackyardBend WITH SUCH RIGHTS, DO NOT SUBMIT USER CONTENT. Granting these rights to your User Content also grants some of these rights to other users.

By submitting User Content, posting, or otherwise providing or submitting content within the Products, by any means whatsoever, you represent and warrant that: (a) you own or otherwise have all of the necessary rights to the User Content and the rights to use it as provided in the Terms; (b) all information you provide is true, accurate, complete, and does not violate the Terms; and (c) the User Content will not cause injury or damage to any person or entity. You shall be solely liable and responsible for any and all damages resulting from any infringement of patent, copyright, trademark, or other proprietary right or other harm resulting from your User Content.

We will use reasonable efforts to make your User Content unavailable or inaccessible on your written request. However, you acknowledge that the User Content may not be made unavailable immediately, even if removed and User Content may still exist on our server or through other user accounts or on the internet, generally.

7. Rules of Conduct.

You agree that you will not post, submit, or otherwise distribute User Content that:

• contains a virus or other harmful component, or that tampers with, impairs, or damages the Products or any related network, or otherwise interferes with any other user’s enjoyment or use of the Products;
• contains encrypted content or encoded messages;
• impersonates or misrepresents your connection to another entity, person, or user, or otherwise manipulates headers or identifiers to disguise the origin of the content;
• interferes with, or otherwise harms or violates the security of the Products or any system, resource, account, password, servers, or network connected to or accessible through the Products or affiliated or linked sites;
• infringes any of GCC/BYM’s rights or those of a third party including, without limitation: copyright, trademark, patent, trade secret, or other proprietary rights or contractual rights, right of publicity or privacy, or confidentiality obligation;
• promotes any activity that may be illegal at the local, state, or federal level or that is content that is itself illegal in any way;
• is untrue, inaccurate, deliberately misleading, or trade libelous;
• includes offensive language, hate speech, or defamatory, abusive, threatening, or harassing speech, racial, religious, or personal attacks or any kind, or is sexually explicit;
• constitutes stalking, bullying, or harassment;
• does not disclose that you are a Commercial User;
• contains link(s) to other site(s) that contain content that falls into the categories above.

We cannot (and do not) promise that other users are complying or will comply with these Rules of Conduct or any other provisions in these Terms. GCC/BYM including BackyardBend are not responsible for what users upload, link to, or otherwise promote through their User Content. As between you and GCC/BYM, including BackyardBend, you hereby assume all risk of injury or harm of any nature whatsoever resulting from any such lack of compliance or use of our Products.

Although GCC/BYM, including BackyardBend are under no obligation to monitor, refuse, or remove any User Content from our Products, GCC and BYM reserve the rights to do so at GCC and BYM’s sole discretion. Without limiting the foregoing, GCC, BYM and their designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable, in GCC and BYM’s sole discretions.

8. User Accounts.

Our Products may require you to open a user account before you can access them. Your user account is personal to you, and you may not sublicense, transfer, sell or assign your account to any other person. In order to open an account you must complete the registration process by providing GCC/BYE with current, complete and accurate information as prompted by the applicable registration form. You must not impersonate any person or misrepresent your identity or affiliation with any person or entity, including any other person’s name, likeness, username or other account information. If you are a Commercial User, you must comply with the Terms applicable to Commercial Users.

As part of this process, you may also be required to choose a password and a username. You are entirely responsible for maintaining the confidentiality of your password, username and other account information. Furthermore, you are entirely responsible for any and all activities that occur under your account. If you become aware of any unauthorized use of your account or any other breach of security, you agree to notify us immediately. GCC/BYM will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. If GCC/BYM or a third party incurs losses due to someone else using your account or password, you could be held liable for those losses.

Subject to applicable law, we may suspend or terminate your account and your ability to use any portion of our Products for failure to comply with these Terms or for any other reason whatsoever.

9. Third Parties.

While using our Products, you may be introduced to, or be able to access, information, websites, advertisements, features, contests or sweepstakes offered by other parties. For example, another user may upload User Content that contains a link to a third-party website. These links are provided solely as a convenience to you and do not imply our endorsement of, or any affiliation with, the owner of the linked website. GCC and BYM are not responsible for the actions or policies of such third parties and, under no circumstances, will GCC or BYM be liable for any goods, services, resources or content available through third-party dealings or communications, or for any harm related thereto. Before clicking on the third party’s webpage, providing information to such third party or otherwise entering into a transaction with such third party, you should carefully review that third party’s policies and practices and make sure you are comfortable with them. Complaints, concerns or questions relating to materials provided by third parties should be forwarded directly to the third party.

10. Our Products.

GCC/BYM have no responsibility or obligation to provide you access to the Products. GCC and BYM reserve the right at any time and from time to time to modify, suspend or discontinue, temporarily or permanently, the Products or any part thereof, or your access thereto (including suspending or disabling your user account), with or without notice. You acknowledge and agree that GCC and BYE shall not be liable to you for any modification, suspension or discontinuance of the Products, or your access thereto. Further, GCC and BYM shall not be liable to you for any loss or liability resulting, directly or indirectly, due to electronic or mechanical equipment failures, telephone interconnect problems, defects, weather, strikes, walkouts, fire, acts of God, riots, armed conflicts, acts of war, acts of terrorism, or to other like causes.

11. Intellectual Property Rights.

Our Products, including without limitation, all software code, site architecture and design, interactive features and appearance, all registered and unregistered trademarks, design marks or logos, service marks, and trade names used in connection with our Products (“Marks”), and all text, images, photographs, illustrations, audio clips, video clips, artwork, graphic material, and other copyrightable elements, and the selection and arrangements thereof (“GCC Content, BYM Content, BackyardBend Content”) are the property of GCC, BYM and/or its assigns, licensors or other respective owners and are protected, without limitation, pursuant to U.S. and foreign copyright, trademark and other intellectual property rights laws. You may not make any use of the Marks without our express, prior written consent.

Subject to these Terms, GCC and BYE hereby grant you limited, non-exclusive, non-transferrable, non-sublicensable, revocable licenses to download, store, view, display, and/or redistribute the GCC/BYM Content solely for noncommercial purposes and solely in connection with your use of our Products in accordance with these Terms. Without limiting the foregoing, you agree not to: (a) sell, resell, lease or the functional equivalent, the Products or any GCC/BYM Content to a third party; (b) attempt to reverse engineer the Products or any component thereof; (c) attempt to create a substitute or similar service through the use of, or access to, the Products or the GCC/BYM Content; (d) attempt to create materials similar to the GCC/BYM Content other than in connection with your use of the Products; or (e) reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate any GCC Content, BYM Content, or User Content to any third party other than through use of the Products. YOU ACKNOWLEDGE AND AGREE THAT NOTHING IN THESE TERMS SHALL HAVE THE EFFECT OF TRANSFERRING THE OWNERSHIP OF ANY COPYRIGHTS, TRADEMARKS, OR OTHER PROPRIETARY RIGHTS IN THE PRODUCTS OR GCC/BYE CONTENT OR ANY PART THEREOF TO YOU OR ANY THIRD PARTY. You agree not to take any action which could be considered inconsistent with or which is likely in any way to prejudice such ownership rights.

12. Choice of Law; Jurisdiction; Waiver of Jury Trial.

The laws of the State of Oregon, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction, shall govern these Terms. To the extent allowed by applicable law, any claims or causes of action arising from or relating to your access and use of Products must be instituted within six (6) months from the date upon which such claim or cause arose or was accrued. In the event of any controversy between the parties relating to the Terms, the parties will provide formal notice to the other and will attempt to resolve all disputes informally. Any disputes that are not resolved will be submitted to binding arbitration pursuant to the Oregon Uniform Arbitration Act. Arbitration procedures shall be pursuant to the Oregon Rules of Civil Procedure. The parties will agree on a single arbitrator and, if the parties cannot agree, will petition the court pursuant to ORS 36.600 et seq. The parties expressly waive any right to a trial by jury or class treatment of any claim, demand, or action arising out of or related to the Terms. On the application of either party, the award in the arbitration may be enforced by the order of a court of competent jurisdiction. All arbitration proceedings shall be held exclusively within Deschutes County, Oregon.

13. Warranty Disclaimer.

YOUR USE OF THE PRODUCTS AND THE GCC/BYM CONTENT IS AT YOUR OWN RISK. THE PRODUCTS AND THE GCC/BYM CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” GCC and BYM MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS OR WARRANTIES REGARDING: (a) THE PRODUCTS; (b) THE GCC/BYM CONTENT OR ADVERTISING MATERIALS; (c) INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH PRODUCTS; OR (d) THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF ANY OF THE FOREGOING.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, GCC and BYM DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE PRODUCTS AND GCC/BYM CONTENT, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

GCC and BYM HAVE NO RESPONSIBILITY OR LIABILITY FOR: (a) LOSS OR DELETION OF, OR FAILURE TO RECEIVE, PROCESS OR STORE ANY USER CONTENT OR OTHER INFORMATION MAINTAINED ON OR TRANSMITTED USING THE PRODUCTS; (b) VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY; (c) USER CONTENT OR OTHER INFORMATION POSTED ON THE SITE OR PRODUCTS BY THIRD PARTIES; OR (d) THE ACTIONS OF ANY THIRD PARTY. THE PRODUCTS CONTAIN FACTS, VIEWS, OPINIONS, STATEMENTS AND RECOMMENDATIONS OF THIRD PARTIES OR OTHER USERS. GCC and BYM DO NOT REPRESENT OR ENDORSE THE ACCURACY, CURRENTNESS OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT OR OTHER INFORMATION DISPLAYED, UPLOADED OR DISTRIBUTED THROUGH THE PRODUCTS. ANY RELIANCE UPON ANY SUCH OPINION, ADVICE, STATEMENT OR INFORMATION IS AT YOUR SOLE RISK.

14. Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED BY LAW, IN ALL CASES, GCC’S and BYM’S LIABILITY TO YOU, INCLUDING BUT NOT LIMITED TO, LIABILITY FOR A BREACH OF GCC’S AND BYM’S OBLIGATIONS UNDER THESE TERMS OR GCC’S AND BYM’S PRIVACY POLICY, OR FOR NEGLIGENCE, SHALL BE LIMITED TO THE GREATER OF $50.00 OR THE TOTAL FEES YOU HAVE PAID TO GCC AND/OR BYM FOR YOUR USE OF THE PRODUCTS IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM, AS LIQUIDATED DAMAGES, NOT AS A PENALTY, AND AS THE SOLE AND EXCLUSIVE REMEDY. TO THE FULLEST EXTENT PERMITTED BY LAW, GCC, BYM, THEIR SUPPLIERS, CONTENT PROVIDERS, LICENSORS, AND THEIR RESPECTIVE MEMBERS, MANAGERS, EMPLOYEES, REPRESENTATIVES, SERVANTS, CONTRACTORS AND AGENTS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES FOR ANY REASON, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF THE ABOVE LIQUIDATED DAMAGES SHOULD FAIL IN THEIR ESSENTIAL PURPOSE.

15. Indemnity.

You agree to indemnify, defend and hold harmless, GCC, BYM, their suppliers, content providers, licensors, and their respective members, managers, employees, representatives, servants, contractors and agents from any and all claims and damages (including, without limitation, attorneys’ fees, expert witness fees, and court costs) arising from or relating to any allegation regarding: (a) your use of the Products; (b) GCC’s and/or BYM’s use of any User Content you provide, as long as such use is not inconsistent with these Terms; (c) User Content or other information posted or transmitted through your account, even if not posted or transmitted by you; and (d) any violation of these Terms by you.

16. Privacy.

Your use of our Products and any information you provide to GCC and/or BYM is governed by GCC’s and BYM’s Privacy Policies, which are available at backyardbendev.wpengine.com, and which is incorporated herein by reference.

17. Digital Millennium Copyright Act.

If you are a copyright owner or an agent thereof and believe that any material available on the Products infringes upon your copyrights, you may submit a notification of claimed infringement (“Notification”) pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing GCC’s agent designated to receive Notifications (“Copyright Agent”) with a notice containing the information described below.

Please note that under 17 U.S.C. § 512(f) any person who knowingly materially misrepresents that material is infringing may be subject to liability for damages. Please also note that the information provided in a Notification may be forwarded to the person who posted the allegedly infringing material.

All Notifications must include the following (see 17 U.S.C § 512(c)(3) for further details):

• 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 GCC to locate the material;
• Information reasonably sufficient to permit GCC to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
• 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; and
• 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.

Designated Agent:
Mail: GCC Bend, LLC/BackyardEarth, LLC
345 SW Cyber Drive
Bend, Oregon 97702
Attn: Copyright Agent

E-mail: info@backyardbend.com
Fax: 541-388-3303
Telephone: 541-388-3300

If you believe that material you posted to our Products that was removed (or to which access was disabled) as a result of a Notification is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material, you may send a written counter notification (“Counter Notification”) to the Copyright Agent containing the information described below.

Please note GCC/BYM are required to send a copy of your Counter Notification to the party who submitted the Notification and that in response to a Counter Notification that person may file a lawsuit against you seeking a determination of its rights with respect to the material. Please also note that under 17 U.S.C. § 512(f), any person who knowingly materially misrepresents that material was removed or disabled by mistake or misidentification may be subject to liability for damages.

All Counter Notifications must contain the following (see 17 U.S.C. § 512(g)(3) for further details):

• Your physical or electronic signature;
• Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
• A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material to be removed or disabled; and
• Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the District in which the address you list is located, or if that address is located outside of the United States, for the District of Oregon, and a statement that you will accept service of process from the person who provided notification of the alleged infringement or an agent of such person.

Upon receipt of a Notification or Counter Notification, GCC and BYM will comply with the applicable procedures set forth in 17 U.S.C. § 512. Pursuant to 17 U.S.C. § 512(i)(l)(A), it is GCC’s and BYM’s policy to terminate user account holders who are repeat infringers, in appropriate circumstances.

18. Assignment.

These Terms and any rights and licenses granted hereunder may not be transferred or assigned by you.

19. Miscellaneous.

You agree that no joint venture, partnership, employment, or agency relationship exists between you, GCC and/or BYM as a result of these Terms or use of our Products.

A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

If any provision of these Terms is held to be invalid, illegal or unenforceable by any court of competent jurisdiction, the remaining provisions shall remain in full force and effect to the extent that the remaining provisions can be substantially applied within the original intent of these Terms of Use taken as a whole.

Any court holding a provision to be invalid, illegal or unenforceable shall not render the offending provision void or unenforceable, but instead shall modify the provision to the minimum extent necessary to make the provision valid, legal, and enforceable.

GCC’s or BYM’s failure to act with respect to a breach of these Terms by you or others does not waive their rights to act with respect to subsequent or similar breaches.

The section titles used in these Terms are purely for convenience and carry with them no legal or contractual effect.

In the event of the termination of these Terms, you agree the following provisions will survive: the provisions regarding limitations on your use of User Content, GCC Content, BYM Content, and the Marks, the license(s) you have granted to GCC, BYM, the limitation on liability, indemnity, and all other provisions for which survival is equitable or appropriate.

These Terms are the entire agreement between you, GCC, and BYM regarding the subject matter herein, and supersede any prior understandings or agreements, written or oral.

20. Contact Us.

If you have any questions about these Terms, the Products, or to resolve a dispute, you can contact GCC at:

By mail: GCC Bend, LLC/dba BackyardMedia
Attn: Backyardbend
345 SW Cyber Drive, Bend, Oregon 97702
By email: info@backyardbend.com

Last Updated January 9, 2020.