END-USER LICENSE AGREEMENT FOR
THE GAME CHANGER® WEB APP
IMPORTANT - PLEASE CAREFULLY READ ALL 10 SECTIONS OF THE FOLLOWING END-USER LICENSE AGREEMENT (THE "AGREEMENT") WHICH APPLY TO THE GAME CHANGER® WEB APP SOFTWARE, WHICH INCLUDES COMPUTER SOFTWARE AND, AS APPLICABLE WHEN USING THE DOWNLOADABLE VERSION, ANY ASSOCIATED MEDIA, THIRD PARTY BROWER PLUG-IN(S), PLUG-IN INSTALLER, AND PRINTED MATERIALS AND/OR ONLINE OR ELECTRONIC DOCUMENTATION (COLLECTIVELY, THE "SOFTWARE APPLICATION").
BY AGREEING TO THESE TERMS AND CLICKING THE [ACCEPT] ICON BELOW, OR BY DOWNLOADING, INSTALLING COPYING, OR OTHERWISE USING THE SOFTWARE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE APPLICATION AND EXIT NOW.
PURPOSE
This Agreement is between you and Ernie Ball, Inc., a California corporation ("EB"). The Software Application provides an electronic pick up switching system for use with The Game Changer® hardware giving you the ability to create, save and share your instruments' tonal selections (collectively, the "Services"). For full functionality of the Software Application, you will need to create an online account and user profile with EB. To use the Software Application with The Game Changer® hardware, you will need to download and install the full version of the Software Application (including any third party plug-ins which were not developed by EB). Without creating an account with EB and without installing the full version of the Software Application, your use of the Software Application will be limited to an emulator mode.
In addition to this Agreement, your use of the Software Application is also governed by EB's Privacy Policy available for your review at http://www.music-man.com/privacy.html (the "Privacy Policy"), as each may be updated from time to time. The Software Application and the Services are licensed to you, not sold.
GRANT OF NON-EXCLUSIVE LICENSE
Following acceptance of this Agreement, EB grants you a personal, non-exclusive, non- transferable, revocable, limited license to download, install and/or use the Software Application, in object code format only, an unlimited number of times on an unlimited number of interactive devices that you own or control, and to use the Services available through the Software Application, for your personal use only. With exception to the open source Plug- in (defined in Section 4.1 below), you may not (i) download the Software Application without accepting the terms and conditions of this Agreement; (ii) copy, reproduce, distribute, publicly perform, publicly display, modify, repackage, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restrictions) or create derivative works based on the Software Application or Services; (iii) rent, lend, lease, redistribute, grant a security interest in, sell, sublicense, or otherwise transfer rights to the Software Application or Services; or (iv) remove any proprietary notices or labels in the Software Application or Services. This Agreement shall apply to all upgrades and updates to the Software Application, unless such upgrade or update is accompanied by a separate license, in which case the terms of that license will govern. All rights not expressly granted to you are retained by EB.
EB reserves the right to modify, add or remove features or functions of the Software Application and/or the Services. From time to time, EB may require the update of the Software Application on your device when a new version of the Software Application becomes available; provided, however, EB has no obligation to support the Software Application or the Services or to make available to you any subsequent updates or versions of the Software Application or Services.
Your use of the Software Application is voluntary, and you may uninstall the Software Application at any time using your device's uninstall functionality. However, by uninstalling the Software, you will be unable to access the Services provided by the Software Application.
OTHER LIMITATIONS
EB may provide you with support services related to the Software Application ("Support Services"). Use of Support Services is governed by EB policies and programs described in the user manual for The Game Changer® instrument, online documentation and/or other materials provided by EB. Any supplemental software code provided to you as part of the Support Services shall be considered part of the Software Application and subject to the terms and conditions of this Agreement. With respect to technical information you provide to EB as part of the registration of your license to the Software Application or in connection with the Support Services, EB may use such information for its business purposes, including for product support and development. However, EB will not utilize such technical information in a form that personally identifies you.
Customer service is provided via electronic mail at the following address: [email protected]. EB's customer service representatives shall not be responsible for answering any questions relating to your personal computer's hardware or other software. With regard to electronic mail inquiries, EB will endeavor to provide you with customer service within forty-eight (48) business hours of your request.
PROPRIETARY RIGHTS
With exception to the open source Plug-in (defined below), all title and copyrights in and to the Software Application (including, without limitation, any images, photographs, animations, source code such as JavaScripts and cascading style sheets, video, audio, music and text incorporated into the Software Application), the accompanying media and printed or online materials, and any copies of the Software Application shall, at all times, be owned by EB.
Notwithstanding the foregoing, upon download and installation the Software Application utilizes the FireBreath cross- platform open source plug-in architecture (the "Plug-in"), which is currently released under the New BSD License (the "BSD License"). For details, the BSD License is available here: http://www.opensource.org/licenses/bsd-license.php. EB disclaims all right, title and interest in the Plug-in.
Ernie Ball®, Music Man® and The Game Changer® are trademarks and/or service marks of EB. Other trademarks, images, graphics and logos used in connection with the Software Application and on the Web site are trademarks of their respective owners. No right, license or interest in such trademarks is granted hereunder, and you agree that no such right, license or interest shall be asserted by you with respect to such trademarks. You may not alter any of the EB trademarks, trade names, logos, patent or copyright notices or markings, or add any notices or markings to the Software Application.
The Software Application is protected by copyright laws and international treaty provisions. Therefore, you must treat the Software Application like any other copyrighted material, subject to the provisions of this Agreement.
All ideas, concepts, techniques for new or improved services or products, product or product feature suggestions, library settings, comments, musical compositions, illustrations, techniques, and all other materials saved through the Software or otherwise disclosed or offered to EB on or in connection with the Software, whether as information, feedback, data, questions, comments, suggestions or the like, are submitted without any restrictions or expectation of confidentiality. EB shall have no financial or other obligations to you when you submit or save such information, nor shall you assert any proprietary or moral right of any kind with respect to such submissions. You automatically grant to EB and its authorized assigns a non-exclusive, royalty-free, worldwide, perpetual and irrevocable license, with the right to sublicense, to use, copy, publish, reproduce, transmit, download, upload, post, display, perform, commercialize, sell, license, creative derivative works of, or otherwise distribute your submissions in any manner without notice or compensation to you.
DISCLAIMER OF WARRANTIES
BECAUSE THE SOFTWARE APPLICATION IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE SOFTWARE APPLICATION. EXCEPT WHEN OTHERWISE STATED IN WRITING, EB PROVIDES THE SOFTWARE "AS IS," "WITH ALL FAULTS," AND ON AN "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN PARTICULAR, THE SOFTWARE APPLICATION DOES NOT SCAN FOR VIRUSES OR OTHER MALICIOUS CODE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. SHOULD THE SOFTWARE APPLICATION PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. EB MAKES NO WARRANTY THAT THE SOFTWARE APPLICATION WILL ALWAYS BE AVAILABLE, ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EB OR EB'S EMPLOYEES, AGENTS, DEALERS, DISTRIBUTORS, RESELLERS OR AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY AS TO THE SOFTWARE APPLICATION. Some jurisdictions do not allow exclusions of implied warranties or conditions, so the above exclusions may not apply to you to the extent prohibited by such local laws.
UNLESS REQUIRED BY APPLICABLE LAW OR OTHERWISE AGREED TO IN WRITING, IN NO EVENT SHALL EB OR ITS AFFILIATES, DISTRIBUTORS, DIRECTORS, OFFICERS, SHAREHOLDERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, SUPPLIERS, VENDORS, SUCCESSORS OR ASSIGNS, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE THE PLUG-IN IN ACCORDANCE WITH THE BSD LICENSE (AS DEFINED ABOVE), BE LIABLE TO YOU UNDER ANY THEORY OF LAW OR EQUITY, INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE, LOSS OF USE, DATA OR PROFITS, LOST REVENUE, BUSINESS INTERRUPTION, SERVER DOWNTIME COSTS, LOSS OF GOODWILL, BUSINESS OR POTENTIAL BUSINESS OPPORTUNITIES AS A RESULT OF THE SOFTWARE APPLICATION NOT BEING USEABLE AT A PARTICULAR TIME, CONTAINING A VIRUS OR OTHER DATA CORRUPTION PROBLEM, NOT BEING AVAILABLE OR FUNCTIONAL AT ALL, FOR COMPUTER OR SERVER MALFUNCTION OR FAILURE, OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES OR CLAIMS(S) ARISING OUT OF OR RELATING TO THE USE OF, INABILITY TO USE, OR THE RESULTS OF USE OF THE SOFTWARE APPLICATION, WHETHER BASED IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE OR OTHERWISE) OR OTHER LEGAL THEORY, AND WHETHER OR NOT EB WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXTENT OF ANY CLAIMS FOR LIABILITY FOR DAMAGES THAT CAN BE MAINTAINED BY YOU AGAINST ANY OTHER PARTY UNDER THESE TERMS FOR RECOVERY FOR DAMAGES IS EXPRESSLY LIMITED BY THE MUTUAL AGREEMENT OF THE PARTIES TO ONLY THOSE CLAIMS ALLEGING A BREACH OF THIS AGREEMENT BY EB AND/OR GROSS NEGLIGENCE BY EB IN PERFORMING ITS OBLIGATIONS OR RESPONSIBILITIES UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE MAXIMUM AMOUNT RECOVERABLE FOR DAMAGES UNDER THESE TERMS BY YOU FOR AN ALLOWABLE CLAIM AGAINST EB SHALL BE LIMITED TO THE GREATER OF EITHER (i) $100.00 OR (ii) THE VALUE, AS DETERMINED IN EB'S REASONABLE DISCRETION, OF EB'S ACTUAL COSTS TO REPAIR OR REPLACE ANY COMPONENT OF THE GAME CHANGER® HARDWARE DETERMINED TO HAVE BEEN DAMAGED BY THE SOFTWARE APPLICATION (EVEN IF SUCH VALUE DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES). EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH OR ARISING OUT OF THESE TERMS. YOU AGREE TO ACCEPT SOLE RESPONSIBILITY FOR ANY USE OF THE SOFTWARE APPLICATION CONDUCTED OR PERFORMED BY YOU AND ANY NEGLIGENT OR ILLEGAL ACT OR OMISSION OF YOU OR YOUR AGENTS, CONTRACTORS, EMPLOYEES OR OTHER USERS. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long a given warranty may last, so the foregoing limitations may not apply to you.
YOU ACKNOWLEDGE THAT, IN THE EVENT OF ANY CLAIM THAT THE SOFTWARE APPLICATION, SERVICES OR YOUR POSSESSION AND USE OF THE SOFTWARE APPLICATION OR SERVICES INFRINGES A PERSON'S INTELLECTUAL PROPERTY, EB IS NOT RESPONSIBLE FOR THE INVESTIGATION, DEFENSE, SETTLEMENT AND DISCHARGE OF ANY SUCH CLAIM.
CONFIDENTIALITY & SECURITY
To use the Software Application other than in emulator mode requires you to download the Software Application (including the Plug-in) and register your copy of the Software Application by creating and maintaining an online account and user profile with EB by specifying a username and password (collectively, the "Password"). You are solely responsible for creating your Password and for maintaining the confidentiality and security of your Password. You acknowledge that your Password is designed to protect you and the integrity of the Software Application. If you believe the integrity of your Password has been compromised, you are responsible for immediately taking all necessary steps to protect yourself, including but not limited to changing your Password and correcting any unauthorized changes. You may not use any third party's Password or online account. You are solely responsible for all activities that occur on or through your online account and you agree to notify EB immediately of any unauthorized use or any breach of security. You agree and acknowledge that EB expressly shall not be responsible for any losses incurred in connection with any misuse or unauthorized use of your Password and/or the Software Application or of any security breach. You agree EB shall not have any responsibility for your failure to comply with this Section 6.1. Your breach of this Section 6.1 may result in immediate termination or suspension of your online account with EB as provided in Section 8 below and may subject you to criminal or civil liability.
WEB SITE
You shall not violate or attempt to violate the security of EB's Web site. You shall not: (i) access data or software applications not intended for you; (ii) log into a server or account which you are not authorized to access; or (iii) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization. Violations of system or network security may result in liability. EB reserves the right to investigate occurrences which may involve such violations and may involve and cooperate with law enforcement authorities in prosecuting users who have participated in such violations.
STORED INFORMATION WITHIN THE SOFTWARE APPLICATION
The Software Application will remember your settings based on the preferences you select in your online account. When you create your online account, you may be required to provide your name, e-mail address and the serial number of your The Game Changer® instrument. You may also be asked to verify that you are over age 18. EB may use this personal information in accordance with the terms and conditions of the Privacy Policy.
- 1. Indemnification.
You shall indemnify, defend and hold harmless EB, its affiliates, distributors, directors, officers, shareholders, managers, members, employees, agents, suppliers, vendors, affiliates, successors, and assigns from and against any and all claims, threats, suits, penalties, costs and expenses (including without limitation, reasonable attorneys' fees, costs and disbursements) that arise directly or indirectly out of (i) your breach of this Agreement; (ii) your use or improper or illegal use of the Software Application; (iii) the sharing of your Password with others, a third party's accessing of the Software Application or any documents located on your hard drive; and (iv) any misuse, fraud or violation of any third party's privacy rights. For purposes of this Section 7, improper use shall include, but not be limited to, violations of applicable anti-spamming laws or any violation of any laws and statutes regulating the use of Internet websites, posting information that contains vulgar or questionable language, that may be illegal under federal or state laws, or may be illicit or pornographic in nature. - 2. Termination and Modification.
EB may, in its sole discretion, terminate this Agreement and/or suspend or deactivate your use of any Services without cause at any time with or without notice. In addition, your license to the Software Application may, at EB's discretion, expire when new versions of the Software Application are released. Your license to the Software Application and EB's obligations under this Agreement shall automatically terminate if you fail to comply with any term of this Agreement. No notice shall be required by EB to effect such termination. In the case of any termination of this Agreement, your license to use the Software Application and the Services shall automatically terminate. Upon termination (whether by you or EB), you are required to uninstall the Software Application from your device and immediately discontinue use of the Services. The following sections shall survive the termination of this Agreement: 1, 4, 5, 6, 7, 8, 9 and 10. - 3. Arbitration.
Any dispute arising under or relating to this Agreement shall be determined by arbitration. Except for any claim seeking the exercise of the injunctive or equitable powers of a court of competent jurisdiction, any action to enforce or interpret this Agreement, or to resolve disputes with respect to this Agreement, shall be settled by arbitration in accordance with California Code of Civil Procedure Sections 1280 through 1294.2 and any successor provisions thereto. The provisions of California Code of Civil Procedure Section 1283.05 regarding the right to take depositions and obtain discovery shall apply to the arbitration. Arbitration shall be the exclusive dispute resolution process. Any party may commence arbitration by sending a written demand for arbitration to the other parties. Such demand shall set forth the nature of the matter to be resolved by arbitration. The place of arbitration shall be in the County of San Luis Obispo, California. The arbitration shall be conducted and determined by one (1) arbitrator, who will be chosen by mutual agreement of the parties. If the parties fail to reach agreement within sixty (60) days of service of the demand for arbitration, the arbitrator will be chosen by the Superior Court of the County of San Luis Obispo from its arbitrator panel. The substantive law of the State of California shall be applied by the arbitrator to the resolution of the dispute. The parties shall share equally all initial costs of arbitration. Notwithstanding the foregoing, any fee for initiating arbitration must be paid by the party initiating the arbitration. The prevailing party shall be entitled to reimbursement of reasonable attorneys' fees, costs, and expenses incurred in connection with the arbitration. All decisions of the arbitrator shall be final, binding, and conclusive on all parties. Judgment may be entered upon any such decision in accordance with applicable law in any court having jurisdiction thereof. The arbitrator (if permitted under applicable law) or such court may issue a writ of execution to enforce the arbitrator's decision. - 4. Miscellaneous Provisions.
The following miscellaneous provisions shall apply to this Agreement: - 4.1.Force Majeure.
Neither party shall be deemed in default or otherwise liable under this Agreement if the inability or failure to perform its obligations under this Agreement arises out of causes beyond the control and without the fault or negligence of said party. Such causes may include, but are not restricted to, fire, earthquake, flood, unusually severe weather, epidemic, quarantine restrictions, accident, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, insurrection, sabotage, transportation delay, shortage of raw materials, shortage of energy, machinery or equipment, act of public enemy, embargo, war, acts of God or the public enemy, acts of the government (municipal, county, state or national) in its sovereign or contractual capacity, acts of the judiciary, any ordinance or law, or any executive, administrative or judicial order (which order is not the result of any act or omission which would constitute a default hereunder), or similar cause beyond that party's control. - 4.2.Authority.
By entering into this Agreement on behalf of a party hereto, you represent that you maintain full authority to contract for this Agreement, and thereby bind the applicable party to all covenants, duties and obligations contained herein. - 4.3.No Assignment or Transfer.
You may not assign or transfer the license to use the Software Application or any rights or obligations hereunder without prior written consent of EB, which may be withheld for any reason. Any such attempted assignment or transfer without EB's consent will be null and void. EB may terminate this Agreement in the event of any such attempted assignment or transfer. Notwithstanding the foregoing, the merger, purchase or consolidation of you or your business into, by, or with any other entity shall not terminate this Agreement. The provisions of this Agreement shall bind the surviving parties.
EXPORT REQUIREMENTS
You may not export or re-export, directly or indirectly, the Software Application or any copy or adaptation in violation of any applicable laws or regulations. You agree to comply with all local, state, federal, national or international laws, statutes, ordinances and regulations that apply to your download or use of the Software Application, including as they relate to export, re-export transfer or download into (or to a national or resident of) any person or entity listed on the U.S. Department of Commerce Denied Persons List, Entity List of proliferation concern or on any U.S. Treasury Department Designated Nationals exclusion list, or to parties directly or indirectly involved in the development or production of nuclear, chemical, biological weapons or in missile technology programs as specified in the U.S. Export Administration Regulations (15 C.F.R. 744). By accepting this Agreement, you hereby certify that you are not located in (or a national resident of) any country under U.S. economic embargo, not identified on any U.S. Department of Commerce Denied Persons List, Entity List or Treasury Department Designated Nationals exclusion list, and not directly or indirectly involved in the development or production of nuclear, chemical, biological weapons or in missile technology programs as specified in the U.S. Export Administration Regulations.
- 4.4.Governing Law.
This Agreement is governed by and shall be construed in accordance with the laws of the State of California, USA, to the exclusion of any conflict of laws principles. All disputes relating to this Agreement will be brought before the applicable courts in San Luis Obispo County, California, USA, and you irrevocably agree to submit to exclusive personal jurisdiction therein. The parties agree that the Uniform Computer Information Transaction Act (or any statutory implementation thereof) and the United Nations Convention on Contracts for the International Sale of Goods will not apply with respect to this Agreement or the parties' relationship. - 4.5.Severability.
If any term or provision herein is found or deemed by a court of competent jurisdiction to be illegal or unenforceable, they shall be severable from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the remainder of this Agreement.. - 4.6.Waiver.
Failure or delay in enforcing any right or provision of this Agreement shall not be deemed a waiver of such right or provision with respect to any subsequent breach. Provisions herein which by their nature extend beyond the termination of any license of Software Application will remain in effect until fulfilled. - 4.7.Entire Agreement.
This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Any additional or different terms and conditions you add shall not apply. - 4.7.1. EB reserves the right, at any time and from time to time, to update, revise, supplement and otherwise modify this Agreement and/or to impose new or additional rules, policies, terms and conditions on your use of the Software Application (collectively, the "Additional Terms"). The Additional Terms will be effective immediately and incorporated into this Agreement upon notice thereof, which may be given by any reasonable means including by posting on EB's Web site. Your continued use of EB's Web site and the Software Application following such notice shall be deemed to conclusively indicate your acceptance of any and all Additional Terms. If you do not agree to any such modification, you must immediately stop using the Software Application and Services. All Additional Terms are hereby incorporated into this Agreement by this reference.
- 4.7.2. In the event of a direct conflict between the terms of this Agreement and (A) other terms and conditions that may apply to EB's Web site generally, the terms of this Agreement will control with respect to the subject matter of this Agreement; and (B) Privacy Policy, Additional Terms, or Digital Millennium Copyright Act, the terms and conditions of such statement, document, license or policy will control with respect to the subject matter thereof.
- 4.8.Attorneys' Fees.
If any legal proceeding, arbitration or other action is brought or threatened for the enforcement or interpretation of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, and the prevailing party in any such action(s) should incur any legal fees, including, but not limited to, attorneys' fees, paralegal fees, expert witness fees and other similar costs, the successful or prevailing party or parties to any such dispute or action shall be entitled to recover their reasonable attorneys' fees and additional legal costs incurred, together with any other relief to which they may otherwise be entitled, as determined by an arbitrator, judge at trial, or upon appeal or petition. - 4.9.Notice.
All notices contemplated by this Agreement shall be in writing and mailed by overnight delivery with delivery confirmation or by certified mail with delivery confirmation; provided, however, that EB may provide notice to you via electronic mail at the e-mail address contained in your user profile, the Software Application or the Services. All notices to EB shall be addressed to Ernie Ball, Inc., Attn: Legal Department, 53-973 Polk Street, Coachella, CA 92236.