in writing. To initiate a Claim, you must send notice by U.S. mail to: Sirius Satellite Radio Inc., 1221 Avenue of the Americas, 36th
Floor, New York, New York 10020, Attention: General Counsel. If Sirius initiates a Claim, notice will be sent to your address on file with Sirius.
(b)Formal Resolution. Except as provided in Section 10(d), if you and Sirius cannot resolve a Claim informally, any Claim either of you or Sirius asserts will be resolved only by binding arbitration. The arbitration will be conducted under the Commercial Arbitration Rules of the American Arbitration Association (the “AAA Rules”) that are in effect at the time the arbitration is initiated and under the rules set forth in this EULA. If there is a conflict between the AAA Rules and this EULA, this EULA will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. If you initiate an arbitration, you agree to pay a fee of $125 or, if less and you notify Sirius in writing, the amount that you would pay to initiate a lawsuit against Sirius in the appropriate court of your state. Sirius agrees to pay any additional fee or deposit required by the American Arbitration Association in excess of your filing fee. Sirius also agrees to pay the costs of the arbitration proceeding up to a maximum of one-half day (four hours) of hearings. Other fees, such as attorney’s fees, expenses, travel to the arbitration and the costs of a proceeding that goes beyond one-half day, will be paid in accordance with the AAA Rules. The arbitration will be held at a location within 100 miles of your residence unless you and Sirius both agree to another location. To start the arbitration, you or Sirius must do the following things:
(i)Write a demand for arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered;
(ii)Send three copies of the demand for arbitration plus the appropriate filing fee to: American Arbitration Association, 601 Penn- sylvania Avenue, N.W., Suite 700, Washington, D.C. 20004; and
(iii)Send one copy of the demand for arbitration by U.S. mail to Sirius Satellite Radio Inc., 1221 Avenue of the Americas, 36th Floor, New York, New York 10020, Attention: General Counsel, or to your address on file with Sirius (if Sirius starts the arbitration).
(c)Binding Effect. In the arbitration proceeding, the arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. The arbitrators shall not have the power, jurisdiction or authority to waive, amend and/or modify any of the terms or provisions of this EULA. The arbitrators shall enforce this EULA in accordance with its terms and provisions.
Otherwise, the arbitrator’s decision is final and binding on all parties and may be enforced in any federal or state court that has jurisdiction. A court may sever any portion of this Section 9 that it finds to be unenforceable.
(d)Exceptions. Notwithstanding the foregoing, any: (i) dispute over the validity of intellectual property rights or Sirius licenses to operate its business; (ii) Claim based on Section 2(a) above; and (iii) dispute involving a violation of the Communications Act of 1934, 47 U.S.C. §605, or the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521, may be decided only by a court of competent jurisdiction.
11. MISCELLANEOUS. (a) Notice. Notices to you will be deemed given when deposited in the mail or when sent by email. Notices may be included in statements or other communications to you. Sirius may also provide notice to you by telephone, which will be deemed given when a message is left with you, someone answering the telephone at your residence or on an answering machine or voice mail system at your phone number on record with Sirius. Your notices to Sirius will be deemed given when Sirius receives them 1221 Avenue of the Americas, 36th Floor, New York, New York 10020, Attention: General Counsel.
(b)Applicable Law. The interpretation and enforcement of this EULA shall be governed by the internal laws of the State of New York. This EULA is subject to modification if required by such laws. Notwithstanding the foregoing, Section 10 shall be governed by the Federal Arbitration Act. You agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this EULA.
(c)Assignment. Except as set forth in this paragraph 11(c), you may not assign your rights and/or obligations under this EULA to any third party. If you sell or otherwise transfer the Receiver as a whole, you may transfer the Receiver Software as fully integrated into the Receiver; provided that you also supply this EULA to the purchaser or recipient of the Receiver, at which time all of your rights under this EULA will immediately cease. Sirius may assign its rights and/or obligations under this EULA to any third party without notice for any purpose, including without limitation, in the event of an acquisition, corporate reorganization, merger or sale of substantially all of Sirius’ assets to another entity. You hereby consent to such assignment.
(d)No Waiver. No failure or delay on the part of Sirius or its suppliers (including Microsoft and PortalPlayer) in exercising any right, power or privilege hereunder and no course of dealing by Sirius or its suppliers (including Microsoft and PortalPlayer) shall operate as a waiver of any right, power or privilege hereunder.
(e)Other. This EULA constitutes the entire agreement between you and Sirius relating to your use of the Software and the Docu- mentation. No salesperson or other representative is authorized to change it for you. 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 EULA will remain enforceable.
