Terms & Conditions
Sirius XM Radio Inc. Shop Terms of Use Agreement -- PLEASE READ
Effective December 13, 2023
Welcome to SiriusXM’s “Shop” retail store website at shop.siriusxm.com including any mobile applications and successors sites (the “Site”). The Site is made available by Sirius XM Radio Inc. (the “Company,” “us,” “our” or “we”) where we sell various equipment, accessories and other products (“Products”) and is made available to you (“Customer”, “you” “your”) subject to the following terms and conditions (“Agreement”). This Agreement may be posted on the Site and sometimes also referred to as the “Terms of Use”. By using, engaging with or purchasing items from the Site, you agree to this Agreement. If you do not agree to any portion of this Agreement, you should not access or make a purchase from our Site.
THIS AGREEMENT REQUIRES THAT ANY DISPUTE BETWEEN US MAY BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS OUTLINED IN SECTION 21 BELOW. BY USING THE SITE OR PURCHASING FROM THE SITE YOU ARE AGREEING TO THIS AGREEMENT AND BINDING ARBITRATION, YOU ARE WAIVING YOUR RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY.
1. PRIVACY POLICY
Our Privacy Policy available at www.siriusxm.com/privacy governs the treatment by us of information that we collect when you use the Site and communicate with us and our representatives.
2. CONSENT TO RECORDING AND MONITORING
You acknowledge and agree that we and our third party vendors may record and monitor your communications and other information about your interactions with the Site and the content of your communications with us (including emails, phone calls, text or chat messages) for training, quality assurance, research, development, analytic and other business purposes described in our Privacy Policy at www.siriusxm.com/privacy.
3. ELIGIBILITY
You must be at least 18 years old or the age of majority where you reside to use the Site.
4. SERVICE AREA
The Site is made available to consumers in the 50 United States including D.C. and Puerto Rico.
5. SIRIUSXM GIFT CARDS
SiriusXM gift cards and pre-paid service cards may be sold on the Site, but these cards cannot be used to purchase Products on the Site. Such cards are currently only valid for the purchase of SiriusXM subscriptions directly with SiriusXM.
6. SIRIUSXM SUBSCRIPTIONS
Subscriptions to our radio (satellite and streaming), infotainment, aviation and marine services are sold separately. Please visit www.siriusxm.com for more information on our subscriptions and to purchase a subscription for any radio you may purchase on the Shop or through another retailer. Subscriptions services are subject to our Customer Agreement available at www.siriusxm.com/customeragreement. Subscriptions must be cancelled separately and are not automatically cancelled if you return your radio or other receiver. If you need to return a radio/receiver with an active subscription, follow the instructions in our Return Policy for how to separately cancel your subscription.
7. ACCOUNTS
Your Shop account (if such feature is available) and your SiriusXM subscription account(s) are not currently linked. You will need to provide complete customer information, shipping and payment information to purchase items from the Site. Any account login or payment information provided through the Site will not provide access or update any credentials or billing information for your subscription account(s).
8. PURCHASES & PAYMENTS
a. You agree to provide accurate and current purchase and account information for all purchases made through the Site. You agree to promptly update your account and other information, including your email address, phone number, shipping and payment information (as applicable), so that we can complete your transactions and contact you as needed. By purchasing a Product from the Site you agree that we may call or text you with service/delivery related alerts regarding your purchase.
b. All payment transactions are administered by a third-party payment processor. Company expressly disclaims any liability for the processing of any transactions by such third party, including any errors in the payment processing or any breach in security with respect to your payment information associated with the third-party’s handling of the transaction. Company is not responsible or liable to you for any credit card, bank-related, or other financial service charges and fees related to your transactions. By providing your payment information and submitting your order, you agree and authorize us and/or our payment processor to charge the payment method provided. For any Products that you order on the Site, you agree to pay the price applicable (including any sales tax, value-added taxes, shipping or other stated fees) as of the time you submit the order. You are responsible for paying any such taxes or charges imposed on your purchase. We will automatically bill your payment method submitted to complete the order. We do not price match or provide price protection, adjustments or refunds in the event of a price drop or promotional offering.
c. All payments must be made by credit or debit card. The Site does not accept cash, check or other forms of payment, unless otherwise shown on checkout. The Site does not accept SiriusXM gift cards, which currently can only be used to purchase SiriusXM subscription services.
d. If for any reason your default payment method is expired or no longer available, you authorize us to charge any other payment method you have authorized on your account (if applicable). For unpaid amounts, we reserve the right to retry your payment method. You will remain responsible for any unpaid amounts. We may obtain updated information regarding your selected payment method as made available by your financial institution or through a card updater service. If we do not receive payment from your card issuer or its agent, you agree to pay all amounts due upon demand by us or our agents. You represent and warrant that you will not use any credit/debit card or other form of payment unless you have all necessary legal authorization to do so.
e. Accommodation Credits: If an accommodation credit (that is a credit not due to an order cancellation or return) is provided, such credit may expire and is not subject to refund and may not be transferred.
f. Customer Service: If you purchased Products and you have a question, please email us at SiriusXMShopAssist@SiriusXM.com and provide your name, email address, order number and the details of your question.
g. Billing Disputes: If you wish to dispute any charge, you must contact us at the address above within thirty (30) days after the date of the charge in question. OTHERWISE, YOU WAIVE YOUR RIGHT TO DISPUTE THE CHARGE.
9. ORDER ACCEPTANCE
a. Each order that you submit to us constitutes an offer to purchase. We reserve the right to refuse any order you place with us. Your receipt of any confirmation does not signify our acceptance of your order. We may, in our sole discretion, limit or cancel quantities purchased/ordered per person, per email address, per household or per order. These restrictions may include orders placed by or under the same customer account, email, the same credit card, and/or orders that use the same billing and/or shipping address. Your order will not be deemed accepted by us until delivery.
b. If you cancel or change an order you have placed, do not assume that a cancellation or change has been processed unless you receive a confirmation from us via email. Some orders may already have been processed and shipped and you are responsible for all charges associated with your order.
c. In the event we make a change to or cancel an order, we will attempt to notify you by contacting the email address or phone number provided at the time the order was made. If we cancel all or a portion of your order, your sole and exclusive remedy is a credit to your original payment method if we already charged you for such items.
d. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. We may also refuse any order connected to a previous payment dispute or suspected of fraudulent activity. If we believe you are involved in purchasing items for resale, we reserve the right to take any action against you, including without limitation, to restrict sales to you and cancel your orders.
10. MERCHANDISE AVAILABILITY, DESCRIPTIONS AND PRICES
a. Prices displayed do not include tax or shipping, which will be added at checkout, where required. We reserve the right to change, rearrange, add, or delete Products on the Site at any time, without notice. ALL PRODUCTS ARE SUBJECT TO AVAILABILITY AND MAY BE SUBSTITUTED OR DISCONTINUED AT ANY TIME, WITHOUT NOTICE. Further, we may modify, offer additional, or cease offering certain items at any time, including adjusting pricing, fees or components thereof, or modifying the availability of or eligibility requirements for certain items. We may offer reconditioned products, subject to available inventory, which will be indicated in the product description. All descriptions of Products or Product pricing are subject to change at any time, at our sole discretion and without notice.
b. Other than the limited warranty that comes with certain devices Limited Warranty, we do not warrant that any Product, pricing or descriptions on the Site are accurate, complete, reliable, current, error-free or will meet your expectations. We reserve the right to correct any errors, inaccuracies, omissions and to change or update information or refuse or cancel orders (and issue a credit if already charged) if any information on the Site is inaccurate at any time without prior notice (including after you have submitted you order). Any offer for any Product or service is void where prohibited. If we accept and process your order where a pricing or specification error is obvious and unmistakable and could reasonably have been recognized by you as a mistake, we may cancel the sale, refund your any sums you have paid (if applicable) and require the return of any goods provided to you under the order. We try to provide customers with Products that are identical to the photo displayed on the Site. We cannot guarantee that the display of any color, finish or style on your computer or mobile device will be accurate. Photos are not able to display exact colors and the deliveredProduct may differ from what is shown in the photo. IF A PRODUCT PURCHASED FROM THE SITE IS NOT AS DESCRIBED, YOUR SOLE REMEDY IS TO RETURN IT IN NEW OR LIKE-NEW CONDITION IN ACCORDANCE WITH OUR RETURN POLICY.
11. DISCOUNTS AND PROMOTIONS
a. Offers such as coupons, discounts, gifts with purchase and other promotions may be subject to additional limitations and eligibility requirements, which are presented to you at or before the point of sale. Please review the offer terms carefully. Offers and discounts are not valid on previously purchased items, gift cards, taxes or shipping (unless the offer is for a shipping discount) and there is no cash value. Unless otherwise stated, there is a limit of one (1) offer per order, per customer. Offers and promotions may not be combined with other offers or promotions (i.e., no stacking) and are not valid if reproduced. Offers may be for a limited time and restrictions vary.
b. Eligibility for an offer or discount does not guarantee its future availability or transferability. We reserve the right to modify, suspend, impose conditions on or cancel offers at any time without notice. If you return any items purchased with a discount offer, the discount value may be subtracted from the return credit. Void where prohibited. We have no obligation for payment of any tax in connection with the distribution or use of any offer. You are required to pay any applicable sales tax related to the use of the offer.
12. RETURNS AND EXCHANGES
a. All purchases made through the Site are subject to our Return Policy in effect at the time of purchase. Our current Return Policy can be read here and is incorporated into this Agreement by reference. We may provide you a return shipping label with your order, if you return your purchase with this label, we will deduct $8.00 or other amount stated on the return label from your refund.
b. If you have an active subscription on any radio or other device that you are returning, a return will NOT cancel the subscription. You must cancel your subscription on that radio in accordance with the cancellation process available in the Customer Agreement at www.siriusxm.com.
c. Gift cards and prepaid service cards are not eligible for refunds or returns.
d. We currently do not process exchanges and you must follow the steps to process a return in accordance with our Return Policy and purchase a replacement product.
13. SHIPPING & DELIVERY
Our current Shipping Policy can be read here and is incorporated into this Agreement by reference. Items purchased through the Site are shipped by a third-party carrier pursuant to a shipment contract. As a result, risk of loss and title for such items pass to you upon our delivery to the carrier. We shall not be in default is delivery is delayed or rendered impossible by forces of nature, war, civil commotion, governmental action, cyber-attack, terrorism, fire, storm, flood, explosion, strikes, walkouts, pandemic, other industrial disturbances, utility, services or transportation interruptions or any other cause beyond our reasonable control.
14. HOW TO CONTACT US
Please check the Site at shop.siriusxm.com for information on how to contact our customer service team. All hours of operation are subject to change without notice.
Important: The Shop’s customer service team is unable to assist with questions regarding cancellation or issues related to your SiriusXM subscription. If you are looking for assistance with your subscription services or technical issues with your radio, you must contact SiriusXM’s listener care team. Please visit www.siriusxm.com/help for more information.
15. CHANGES TO THIS AGREEMENT
We reserve the right to change this Agreement and policies at any time, without notice. The Agreement posted on the Site at the time you place your order will govern that purchase. You agree that we may notify you of changes to these terms by posting them on the Site. Your use of the Site and any purchases made thereafter will constitute your agreement to the terms of this Agreement as updated. Any changes will be effective upon posting of the revisions at shop.siriusxm.com or the mobile app (if any) and will supersede the prior version for all activity occurring after the revised version has been posted. WE ENCOURAGE YOU TO REVIEW THIS AGREEMENT WHENEVER YOU USE THE SITE.
16. ELECTRONIC COMMUNICATIONS
When you use the Site or send emails or other electronic communications to us you are communicating with us electronically. You consent to receive communications from us electronically. We may communicate with you in a variety of ways, such as by email, text message, push notifications and in-app messages on or through the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.
17. LINKS
The Site may provide links to other websites that are not under the control of Company. We are not responsible for the products and services provided these on other sites, nor does linking constitute an endorsement of any linked website. If you use the links, you will leave the Site and your activities may be governed by other terms and conditions and privacy practices. Links are provided solely for your convenience and information.
18. USER CONTENT
User Submissions and Appearances: From time to time, certain aspects of the Site or its social media pages may invite or otherwise allow you to submit or post content, such as text (including comments and reviews), images, videos, and other information. We are free to use and sublicense any comments, responses, information, ideas, concepts, reviews, or techniques, or any other material including your name, likeness, personality, voice, and any other materials or information you provide to us or contained in any communication you may send to or share with us ("Feedback"), in perpetuity without further compensation, acknowledgement or payment to you for any purpose whatsoever including developing, manufacturing and marketing products and creating, modifying or improving our services or use in our broadcasts. Please be aware such Feedback is not confidential. By providing Feedback, you represent and warrant that (i) you have permission from identifiable individuals, (ii) your content does not infringe, violate or misappropriate any law, regulation or third-party intellectual property or privacy right (iii) Company may exercise the rights to your Feedback without any liability including payment of royalties, residuals guild fees to you or any third party. In addition, you agree not to enforce any "moral rights" in and to the Feedback, to the extent permitted by applicable law.
19. COMPANY INTELLECTUAL PROPERTY AND YOUR PERSONAL USE OF THE SITE
a. Technology: You agree not to copy, compile, decompile, disassemble, reverse engineer, make derivative works of or manipulate any technology, data or content stored or incorporated on the Site or attempt to gain access to Company intellectual property, confidential or proprietary information. You agree not to upload, post, transmit or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, disable or limit the functionality of the Site. You are prohibited from using any data mining, robots or other data gathering, scraping and extraction tools on the Site and may not use any meta-tags or any other “hidden text” utilizing the name of the Site or any of its Products, or otherwise incorporate or frame Site content into another website or app without the prior express written consent of Company.
b. Content: As between you and Company, any and all intellectual property rights in the Products sold on the Site and all Site content, including, but not limited to, images, logos, music, programming, text, software (including source and object codes), data, information, visual, oral or other digital material, and all other content available on the Site or included in the Products sold on the Site (collectively, the "Content"), and all worldwide copyrights, trademarks, service marks, patents, patent registration rights, trade secrets, know-how, database rights and all other rights in or relating to the Content are owned by us or are the property of our licensors and suppliers who have given us permission to use it. Neither your access to and use of the Site, nor does this Agreement grant you any right, title or interest or license in or to any such Content, and you may not use, copy, modify or resell such Content to any third party without first obtaining the express written permission of the owner(s).
c. Non-Commercial Use: The Site is made available and the Products sold therein are solely for personal, non-commercial use. The use of the Site for a commercial purpose is unauthorized and may constitute infringement. You may not modify, adapt or create derivate works from the Site or its Products; or distribute, transfer or post any Site content, Products on any third party website, online service or other media, except that you may create a hyperlink to any page of the Site so long as the use does not portray Company, its Site, or the Products in a false, misleading, derogatory or offensive manner.
d. Trademarks: Sirius Satellite Radio®, the dog logo, Sirius®, SXM®, SiriusXM Internet Radio®, SiriusXM®, XM® and the SiriusXM logo are trademarks, service marks or registered marks of Sirius XM Radio Inc. ("Marks"). Other trademarks, service marks, graphics, logos and domain names appearing on the Site may be the trademarks of third parties. Neither your access to nor use of the Site or Products grants you any right, title or interest or license to reproduce or otherwise use the Marks or any third-party trademarks, service marks, graphics, logos or domain names. Any goodwill in the Marks generated as a result of your use of the will inure to our benefit.
e. Security: You are prohibited from using any services or facilities provided in connection with the Site to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., hacking, data mining, account stuffing, cracking tools or network probing tools) is strictly prohibited. If we believe that you have engaged in any of the fraudulent, deceptive or malicious activity in connection with your use of the Site, we reserve the right to take any action to remedy such activity, including termination of your account and other legal or corrective action.f. Authorized Equipment: We are not liable for any damage to your personal or real property, resulting from the use of any radio or accessories. Consult your owner's manual or the packaging for important information regarding warranties related to radios and accessories. Product Limited Warranty Information can be found at www.siriusxm.com/productwarranty.
20. DISCLAIMERS & LIMITATION OF LIABILITY:
a. DISCLAIMERS:
EXCEPT AS SPECIFICALLY PROVIDED IN ANY LIMITED WARRANTY INCLUDED WITH CERTAIN PRODUCTS, THE SITE, ALL CONTENT, SOFTWARE ASSOCIATED THEREWITH AND ALL OF OUR PRODUCTS ARE PROVIDED "AS IS" AND "AS AVAILABLE." TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ALL WARRANTIES (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT) ARE HEREBY DISCLAIMED.
NEITHER COMPANY NOR ITS LICENSORS MAKE ANY WARRANTY, REPRESENTATION OR CONDITION THAT OUR PROPERTIES WILL MEET YOUR REQUIREMENTS OR BE UP-TO-DATE, OR THAT YOUR USE OF OUR PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.;
UNDER NO CIRCUMSTANCES SHOULD A USER OF ANY WEATHER, TRAFFIC, FISH MAPPING SERVICE MAKE DECISIONS BASED SOLELY OR IN PART ON INFORMATION CONTAINED WITHIN THE APPLICABLE SERVICE OR OUR APPS. WE ASSUME NO RESPONSIBILITY FOR ACCIDENTS, DAMAGES OR OTHER LOSSES RESULTING FROM OR ASSOCIATED WITH USE AND/OR MISUSE OF THE SITE, OUR APP, OR PRODUCTS.
ANY CONTENT ACCESSED THROUGH OUR PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS OUR PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
WE ARE NOT LIABLE FOR BUSINESS LOSSES. WE ONLY SUPPLY PRODUCTS FOR YOUR PERSONAL, NON-COMMERCIAL, AND DOMESTIC USE. IF YOU USE THE PRODUCTS FOR ANY OTHER PURPOSE WE WILL HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY, OR SIMILAR LOSS.
THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS TOU AGREEMENT.
IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
b. Limitations of Liability:
EXCEPT AS SPECIFICALLY PROVIDED IN OUR LIMITED WARRATY INCLUDED WITH CERTAIN PRODUCTS, IN NO EVENT ARE WE OR ANY THIRD PARTY, INCLUDING ANY EXTERNAL SERVICE OR PLATFORM, LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, OR LOSSES RELATING TO THE USE, LOSS OF USE OR DATA, OR PURCHASE OF ANY RADIO, EQUIPMENT, PRODUCT OR SERVICE, YOUR USE OF THE SITE OR APP, OR FROM ANY CONTENT POSTED ON THE SITE BY US OR ANYONE ELSE, WHETHER BASED ON NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF, WHETHER ARISING OUT OF BREACH OF THIS AGREEMENT, TORT OR ANY OTHER CAUSE OF ACTION RELATING TO THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF THE COMPANY AND COMPANY’S AFFILIATES OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO, DIRECTLY OR INDIRECTLY, THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT OR BY THE NEGLIGENCE, ACTIVE OR PASSIVE, OF THE COMPANY, AND/OR ITS AFFILIATES, EXCEED THE GREATER OF THE AMOUNT (IF ANY) PAID BY YOU TO THE COMPANY FOR THE APPLICABLE PRODUCT GIVING RISE TO THE DAMAGE OR LOSS OR $100. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. THIS ALLOCATION OF RISK AND THE DISCLAIMER OF WARRANTIES HEREIN ARE A FUNDAMENTAL ELEMENT OF THIS AGREEMENT.
c. Your Risk: YOU AGREE THAT YOUR ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE SITE, OUR APP THE PRODUCTS AND SERVICE IS AT YOUR SOLE RISK. NEITHER WE NOR ANY EXTERNAL SERVICE ARE RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR LOST PROFITS RESULTING FROM YOUR ACCESS TO OR USE OF, OR INTERRUPTIONS IN THE TRANSMISSION OR RECEPTION OF THE SERVICE OR SITE, INCLUDING ANY DAMAGE TO ANY OF YOUR COMPUTERS OR DATA, AND/OR ANY RADIO. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY OR GUARANTEE IN ANY WAY WHATSOEVER RELATING TO THE SERVICE OR SITE.
d. State Law: SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU, AND THE FOREGOING LIMITATIONS SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENT ARE THE RESULT OF EXPRESS’S NEGLIGENT, FRAUDULENT OR RECKLESS ACT(S) OR INTENTIONAL MISCONDUCT.
e. Miscellaneous: UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
f. Indemnification: EXCEPT FOR OUR WILLFUL MISCONDUCT, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE COMPANY, ITS SUBSIDIARIES, SHAREHOLDERS, OFFICERS, AGENTS, EMPLOYEES, LICENSORS AND SERVICE PROVIDERS (“INDEMNIFIED PARTIES”) FROM ANY AND ALL CLAIMS, LIABILITY AND EXPENSES (INCLUDING ATTORNEYS' FEES AND EXPENSES), WHETHER IN TORT, CONTRACT OR OTHERWISE, RELATING TO OR ARISING OUT OF YOUR USE OF THE PRODUCTS, OUR SITE, AND ANY BREACH OF THIS AGREEMENT OR APPLICABLE LAW AND YOUR WILLFUL MISCONDUCT.
21. RESOLVING DISPUTES
PLEASE READ THE PROVISIONS OF THIS SECTION CAREFULLY. THESE PROVISIONS, KNOWN AS THE “DISPUTE RESOLUTION PROVISIONS” PROVIDE THAT ANY DISPUTE RELATING TO OR ARISING OUT OF THE SITE, YOUR USE OF THE SITE OR PURCHASES MADE FROM THE SITE MAY BE RESOLVED BY BINDING ARBITRATION AS SET FORTH BELOW. THIS PROCESS MAY DIFFER FROM THE DISPUTE RESOLUTION PROCESS SET FORTH IN THE CUSTOMER AGREEMENT AT WWW.SIRIUSXM.COM/CUSTOMER-AGREEMENT FOR ANY SUBSCRIPTION SERVICE OFFERED BY THE COMPANY THAT YOU MAY HAVE (THE “CUSTOMER AGREEMENT”). THE DISPUTE RESOLUTION PROCESSES CONTAINED IN THE CUSTOMER AGREEMENT ARE SEPARATE AND DO NOT APPLY TO CLAIMS RELATED TO YOUR USE OF THIS SITE. ANY OPT-OUT OF ARBITRATION REQUESTED UNDER THE CUSTOMER AGREEMENT DOES NOT APPLY TO THIS AGREEMENT. FURTHER, ANY OPT-OUT PURSUANT TO SECTION 21(H) BELOW WILL NOT APPLY TO CLAIMS ARISING OR RELATING TO YOUR CUSTOMER AGREEMENT.
YOU ARE HEREBY WAIVING THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR, OR A PANEL OF ARBITRATORS, INSTEAD OF A JUDGE OR JURY. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE THEIR CASE, BUT THEY CHOOSE TO HAVE ANY DISPUTES RESOLVED THROUGH ARBITRATION.
THESE DISPUTE RESOLUTION PROVISIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
Any legal or equitable claim relating to your access to or use of our Site, to any Products sold or distributed through this Site or this Agreement (a "Claim"), will be resolved as follows:
a. Mandatory Pre-Arbitration Notice and Informal Claim Resolution Procedures: To initiate an informal resolution of a Claim, the initiating party must send a written dispute notice to the other party by first class United States mail. If you initiate a Claim, send notice to Sirius XM Radio Inc., 1221 Avenue of the Americas, 35th Floor, New York, NY 10020, Attention: General Counsel. If we initiate a Claim, we will send our notice to the billing address on file with us. Neither of us may start a formal proceeding (except for Claims described in Section 21(e) below) for at least sixty (60) days after one of us notifies the other of a Claim in writing. Any notice must include (i) the claimant’s name, address, email address; (ii) description of the nature and basis of the Claim; (iii) relevant facts regarding the Claim; (iv) a description of the nature and basis of the specific relief sought, including damages sought, if any, and a detailed calculation for them; and (v) a personally signed statement from the claimant (or a corporate representative if claimant is Sirius XM) (and not their counsel, an agent or other representative) verifying the accuracy of the contents of the notice. Such informal resolution request must be made individually and must concern only the initiating party’s dispute and no other person’s dispute.
After receipt of a completed dispute notice, the parties shall engage in a good faith effort to resolve the dispute for a period of sixty (60) days (which can be extended by agreement). If we and you do not reach an agreement to resolve the issues identified in the notice within sixty (60) days after the completed notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).
Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this Section 21(a). All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and we have a meaningful opportunity to resolve disputes informally.
If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures in arbitration.
b. Formal Resolution: If you and we cannot resolve a Claim informally, including any dispute as to the scope, validity, or applicability of this arbitration clause, then the Claims shall be resolved, upon election by either party, exclusively and finally by binding arbitration.
For the avoidance of doubt, you and Sirius XM are agreeing that any issues concerning: (i) the arbitrability of any Claim; (ii) whether these arbitration provisions are unenforceable, unconscionable, applicable, valid, void or voidable; or (iii) the interpretation of this Agreement, including its arbitration provisions, will, in the first instance, be delegated to the arbitrator.
The party initiating arbitration must follow the applicable rules and procedures of the American Arbitration Association (“AAA”) in effect at the time the Claim is filed, and the parties agree that the arbitration shall be administered by the AAA. You may obtain copies of the current rules, forms and instructions for initiating an arbitration by contacting:
American Arbitration Association
1633 Broadway
10th
Floor New York, New York 10019
Web site: www.adr.org
(800) 778-7879
This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act (“FAA”), and not by any state law concerning arbitration.
You and we agree that the party initiating arbitration must submit a certification that (i) they have complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures requirements contained in Section 21(a) and (ii) they are a party to this agreement to arbitrate enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented).
c. Confidentiality: Upon either party’s request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.
Arbitration Relief: The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief, including a Claim for public injunctive relief brought in an individual capacity, and only to the extent necessary to provide relief warranted by that party’s individual Claim. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and we agree otherwise or as provided in this arbitration agreement, the arbitrator may not consolidate more than one person’s Claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized declaratory or injunctive relief; class, representative, and private attorney general claims; and consolidation are found to be unenforceable with respect to a particular Claim or with respect to a particular request for relief (such as a request for injunctive relief sought with respect to a particular Claim), then the parties agree such a Claim or request for relief shall be decided by a court of competent jurisdiction, after all other arbitrable Claims and requests for relief are arbitrated.
You agree that any arbitrations between you and Company will be subject to the Dispute Resolution Provisions in this Section 21 and not to any prior arbitration agreement you had with Company.
e. Exceptions: Notwithstanding the foregoing, any dispute involving a violation of the Communications Act of 1934, 47 U.S.C. §605, the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521, or a violation of our intellectual property rights may be decided only by a court of competent jurisdiction.
f. Small Claims: Instead of proceeding to arbitration, either you or we have the option to pursue a Claim in small claims court (or the equivalent) so long as the Claim 1) remains in that court, 2) is made solely on our behalf (if brought by us) or on your behalf, and 3) does not seek damages or other monetary relief in excess of $5,000. However, if that Claim is transferred or appealed to a different court, we reserve our right to elect arbitration.
g. Arbitration Costs: Whoever files the arbitration pays the initial filing fee. If we file, we pay; if you file, you pay. Each party will bear the expense of its own attorneys, experts, witnesses, and other expenses, regardless of which party prevails. If the arbitrator finds that either party’s Claim or the relief sought in the demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the other party will have the right to recover its attorneys’ fees and expenses.
h. Opt-out of Arbitration: You may elect to exclude yourself from this agreement to arbitrate by sending a letter (an “Opt-Out Notice”) by first class United States mail to Sirius XM Radio Inc., 1221 Avenue of the Americas, 35th Floor, New York, New York 10020; Attention: General Counsel: Arbitration Opt-Out for the SiriusXM Shop. The Opt-Out Notice must include (1) your first and last name; (2) your postal mailing address; (3) your phone number; (4) your email address; (5) your order number and date of such order (as applicable); and (6) a clear statement that you do not wish to resolve disputes with us through arbitration (an “Opt-Out Notice.”). You must personally sign the Opt-Out Notice (and not your counsel, an agent or other representative).
The Opt-Out Notice must be received no later than thirty (30) days after you first become subject to this agreement to arbitrate. All other terms of this Agreement will continue to apply to this Site and purchases made through this Site, and this Agreement including the requirement to participate in Informal Dispute Resolution (Section 21(a)), the Class Action Waiver (Section 21(k)), and the Applicable Law provision (Section 22(d)). If you do not timely opt-out of this agreement to arbitrate, such action shall constitute mutual acceptance of these arbitration terms. Opting out of these arbitration terms has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
i. Special Procedures for Mass Arbitration. If twenty-five (25) or more similar Claims are asserted against us by or through the same or coordinated counsel or are otherwise coordinated, you understand and agree that the resolution of your dispute will be subject to these Special Procedures for Mass Arbitration. These Special Procedures for Mass Arbitration will apply whether or not such Claims are filed simultaneously. You also agree to the following coordinated bellwether process and application of the AAA Multiple Consumer Case Filing Fee Schedule and the AAA Mass Arbitration Supplementary Rules.
Counsel for the claimants and counsel for us shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. The parties may, but are not required to, agree in writing to modify the number of cases to be included in the bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings pursuant to this provision.
In the bellwether process, a single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator during the bellwether process unless the parties agree otherwise. These bellwether Claims will be resolved within one-hundred and twenty (120) days of the initial pre-hearing conference.
After decisions have been rendered in the first twenty (20) cases, we and all claimants shall engage in a global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the bellwether cases. If the parties are unable to resolve the remaining cases after the mediation, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process.
After decisions have been rendered in the second group of twenty (20) cases, we and all claimants shall engage in a second global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the decided bellwether cases; if a global settlement cannot be reached in the second mediation, the parties also may discuss with the mediator the process for resolving the remaining cases with the benefit of the decisions in the first two (2) rounds of bellwether cases; the parties are not required to agree to any modifications to the process set forth herein.
Following the second global mediation, you or we may separately or by agreement, opt-out of arbitration and elect to have your Claim heard in court consistent with this Agreement. You may opt-out of arbitration by providing an Opt-Out Notice in accordance with Section 21(h), except this notice shall be provided within thirty (30) days after the conclusion of the second global mediation. We may opt your Claim out of arbitration by sending an individual notice of our intention to opt-out to your counsel, signed by a corporate representative and sent by first class United States Mail within fourteen (14) days of the expiration of your thirty (30) day period to opt-out.
Absent a settlement or agreement to modify the procedure for arbitrating the remaining cases (to the extent you or we have not opted-out), in order to increase the efficiency of administration and resolution of any remaining arbitrations, the arbitration provider shall: (i) administer the arbitration demands in batches of fifty (50) demands (to be randomly selected unless otherwise agreed by the parties) per batch (to the extent there are fewer than fifty (50) arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one (1) arbitrator for each batch; (iii) provide for a single filing fee due per side per batch; and (iv) not administer more than five (5) batches at any given time.
You agree to cooperate in good faith with us and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of Claims, including the payment of single filing and administrative fees for batches of Claims. This “Batch Arbitration” provision shall in no way be interpreted as authorizing class arbitration of any kind. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected for inclusion in a batch pursuant to this provision.
We do not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated Claims under any circumstances, except as set forth in this Section 21(i).
The statute of limitations and any filing fee deadlines shall be tolled for Claims subject to this Section 21(i) from the time these Special Procedures for Mass Arbitration are triggered until the time your Claim is selected to proceed, withdrawn, opted-out of these Special Procedures for Mass Arbitration or otherwise resolved.
A court shall have authority to enforce this Section 21(i) and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against us.
j. Injunctive Relief. The foregoing provisions of this Section 21 will not apply to any legal action taken by us to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to our intellectual property rights, our operations, and/or our Products.
k. Class Actions and Severability: You do not have the right to act as a class representative or participate as a member of a class of claimants with respect to any Claim submitted to arbitration or litigation (to the extent you elect to Opt-Out of Arbitration) (“Class Action Waiver”). A “Claim” does not include any challenge to the validity and effect of the Class Action Waiver, which must be decided by a court. There shall be no right or authority for any Claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, as a private attorney general, or other customers, or other persons similarly situated. The parties acknowledge and agree that under no circumstances will a class action be arbitrated.
The Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from this agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or cannot be enforced, then the parties' agreement to arbitrate (except for this sentence) shall be null and void, subject to the right to appeal any limitation or invalidation of the Class Action Waiver. If this entire agreement to arbitrate is determined to be null and void, then the parties agree that any actions shall be brought in the State or Federal courts of New York, New York.
l. Binding Effect: In any arbitration proceeding, the arbitrator must follow applicable law, and any award may be challenged, as set forth in the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award. The arbitrator's decision is final and binding on all parties and may be enforced in any federal or state court with jurisdiction.
22. MISCELLANEOUS:
a. Notices: Where we require that you provide an email address, you are responsible for providing us with your most current email address. If the last email address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, our dispatch of the email containing such notice will nonetheless constitute effective notice. Other than as set for in the Dispute Resolution Procedures set forth in Section 21 above, you may give notice to us at Sirius XM Care, P.O. Box 33174, Detroit, MI 48232, Attention SiriusXM Shop. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail. All bankruptcy notices are to be sent in writing to the mailing address in this Section 22(a).
b. California Residents: Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding this Site or our Products, please contact us as provided in Section 22(a) above. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
c. Full Agreement: This Agreement constitutes the entire agreement between us concerning your access to and use of the Site and its associated app and may be modified by the unilateral amendment of this Agreement and the posting by us of such amended version. This Agreement supersedes any previous agreements or representations. To the extent a purchase order, confirmation email/letter, or other communication is inconsistent or conflicts with this Agreement, this Agreement will govern, unless expressly agreed in writing by Company. If any provision is declared by a competent authority to be invalid, that provision will be deleted or modified to the extent necessary, and the rest of this Agreement will remain enforceable. Any specific terms that expressly or by their nature survive termination shall continue thereafter until fully performed. A waiver of any terms or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
d. Applicable Law: The interpretation and enforcement of this Agreement shall be governed by the laws of the State of New York.
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