TERMS AND CONDITIONS OF USE
Reference to the term “Website Content” means: (i) any and all materials, content, information, documents, products, logos, graphics, sounds, images, compilations, and goods and services available or made available by or on behalf of Pono or any of its third party authors, developers or vendors (“Third Party Providers”) on or through the Website (collectively, “Materials”); and (ii) software made available for access, use or download by or on behalf of Pono or any of its Third Party Providers on or through the Website (collectively, “Software”); and (iii) any and all materials, content, information, documents, logos, graphics, sounds, images, compilations, comments, feedback, and data uploaded or submitted by other users through, in association with, or in regard to the Website and/or any other PONO goods or services (collectively, “Third Party Submissions”).
GENERAL USE PROVISIONS
All Materials and Software are the copyrighted works of PONO and/or its Third Party Providers (or are licensed by Third Party Providers to PONO), unless specifically provided otherwise in writing by PONO.
Except as expressly provided otherwise in these Terms and Conditions, nothing in connection with the Website or any Website Content shall be construed to confer to you any license or ownership right or interest in or to (i) any Website Content or (ii) any intellectual property rights in connection therewith, whether by estoppel, implication, or otherwise.
You acknowledge that you are solely responsible for obtaining any required licenses to use Website Content that are designated as owned or held by a third party. See the “Legal Contact Information” section below if you have any questions about obtaining such licenses.
You acknowledge that any Website Content provided by any person or entity (other than PONO) have not been independently reviewed, tested, certified, or authenticated in whole or in part by PONO. You understand that by using the Website, you may encounter Website Content that may be deemed offensive, indecent, or objectionable, and such Website Content may or may not be identified as having explicit language. Nevertheless, you agree to use the Website and the Website Content at your sole risk and that PONO shall have no liability to you for Website Content that may be found to be offensive, indecent, or objectionable. Content types (including music genres, sub-genres and categories and subcategories and the like) and descriptions are provided for convenience, and you acknowledge and agree that PONO does not guarantee their accuracy.
PONO reserves the right to cancel or suspend your account, if PONO in its sole and absolute discretion believes you are using or have used the Website or any Website Content for any unauthorized, illegal or improper purpose, including, without limitation, any purpose inconsistent with or harmful to PONO’s business as determined by PONO in its sole and absolute discretion.
You or PONO may suspend or terminate your account or your use of the Website and Website Content at any time, for any reason or for no reason. You are personally liable for any orders or any goods or services that you placed or charges that you incur prior to termination.
In any case, we reserve the right to change, suspend, or discontinue all or any aspect of the Website, including any and all Website Content, at any time without notice.
SPECIFICATIONS AND ACCURACY OF INFORMATION
We attempt to provide information on the Website is accurate and complete in all material respects. Despite our efforts, you acknowledge that Website Content and other information on the Website may be inaccurate, incomplete or out of date. We make no representation or warranty as to the completeness, accuracy or correctness of any Website Content or any other information on the Website.
All Website Content and other features, content, specifications, products, colors and prices of goods and services described or depicted on the Website are subject to change by us at any time without notice. Certain measurements and similar descriptions are approximate and are provided for convenience purposes only.
We attempt to accurately display the attributes of our products, including the applicable colors of our products. The actual color you see, however, will depend on your computer system or device, and we cannot guarantee or provide any assurance that your computer or device will accurately display such colors.
The inclusion of any goods or services as part of the Website Content or otherwise on the Website at a particular time does not imply or warrant that those goods or services will be available at any time.
While it is our practice to confirm your orders of our goods or services by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell any goods or services to you. We reserve the right, without prior notice and in our sole and absolute discretion, to limit the order quantity on any and all goods and services, to refuse to provide any and all goods and services, and/or to limit or refuse access to or use of the Website and any Website Content.
We may require verification of information prior to the acceptance and/or shipment of any orders or the provision of any services.
We may make changes to any and all goods and services offered as Website Content or on or through the Website, or to the applicable prices for any and all such products and services, at any time, without notice.
LINKS TO THIRD PARTY SITES
The Website may contain links or have references to websites controlled by parties other than PONO. PONO is not responsible for and does not endorse or accept any responsibility for the contents or use of these third party websites. PONO is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by PONO of the linked website and/or the content and materials found at the linked website. It is your responsibility to take precautions to ensure that whatever websites you visit are free of viruses or other items of an intrusive nature.
Any and any materials, content, information, documents, logos, graphics, sounds, images, compilations, comments, feedback, and data uploaded or submitted by you to PONO through, in association with, or in regard to the Website and/or any other PONO goods or services (collectively, “Uploaded Submissions”) shall be considered non-confidential. Except as provided in the subsequent sentence, as consideration in exchange for your use or access to the Website, any Website Content, or any portion thereof, you hereby assign and convey to PONO all of your rights, title and interests in and to Uploaded Submissions, such that Uploaded Submissions shall be PONO’s property. To the extent PONO cannot legally own or claim ownership rights to Uploaded Submissions, by providing Uploaded Submissions to PONO and as consideration in exchange for your use or access of the Website, any Website Consent, or any portion thereof, you hereby grant to PONO a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, make available, communicate, and display any and all such Uploaded Submissions that cannot be legally owned by PONO, and to incorporate any and all such Uploaded Submissions in other works in any form, media, or technology now known or later developed, and to otherwise exploit, commercially or otherwise, any and all such Uploaded Submissions. You represent that you have the right to grant PONO these rights with respect to Uploaded Submissions. PONO shall be free to use and/or disseminate Uploaded Submissions on an unrestricted basis for any and all purposes. You acknowledge that you are responsible for Uploaded Submissions, and that you, not PONO, have full responsibility for the legality, reliability, appropriateness, originality and copyright of Uploaded Submissions.
You will not post any Uploaded Submissions that in PONO’s determination in its sole and absolute discretion: (a) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (b) bigoted, hateful, or racially or otherwise offensive; (c) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or (d) otherwise harms or could harm any person or entity.
All Uploaded Submissions must be true, and in accordance with the rights of privacy and publicity and all federal, state/provincial and international laws. You may not upload an image or any likeness of another without their consent (or the consent of their parent or guardian if they are under the age of 18). If you do so, PONO reserves the right to cancel or suspend your account.
In any case, we retain all rights to remove any and all Uploaded Submissions at any time for any reason or no reason whatsoever.
Any user who is under the age of 14 (“Child” or “Children”) is not authorized to use the Website or any Website Content, and is not authorized to provide any Uploaded Submissions.
PONO’s obligations, if any, with regard to its products and services outside of the Website are governed solely by the agreements pursuant to which they are provided, and nothing on the Website should be construed to alter such agreements.
You agree to pay for all products and services which you purchase through the Website or Website Content and for any additional amounts (including any taxes, as applicable) as may be accrued (collectively “Fees”).
Pre-orders may be placed for certain products and services sold on the Website or through any Website Content to the extent available. By pre-ordering a product or service on the Website or through any Website Content, you understand that you may be charged for the full amount of the product and service at the time the pre-order is placed. While PONO endeavors to meet all its deadlines and to provide the product and service at the estimated time, delays inevitably may arise. As a result, in the event that a delay arises and the estimated shipment and/or release of the product or service are not met, PONO is not responsible for any damages that may occur due to the delay, nor shall it be obligated to provide any discounts, refunds or credits due to any such delays.
BILLING AND PAYMENT
To the extent you purchase any goods and/or services on or through the Website or Website Content, you agree to pay for all such goods and services, except as set forth in a writing signed by an authorized representative of PONO. You will be required to provide valid and updated credit card or approved purchase order information and accurate billing and contact information. If you provide credit card or other authorized payment method information, you authorize charges to be made against such credit card or other authorized payment method.
If PONO, in its sole and absolute discretion, permits you to make payment using a method other than a credit card or other authorized payment method, PONO will invoice you at, or within a reasonable period of, the time of the purchase request. All amounts invoiced shall be due within thirty (30) days of the date of the invoice.
REPRESENTATIONS AND WARRANTIES
DISCLAIMER OF WARRANTIES
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED TO YOU IN WRITING BY PONO, THE WEBSITE AND THE WEBSITE CONTENT, AND ALL OF THE GOODS, SERVICES, INFORMATION AND OTHER MATERIALS PROVIDED ON OR THROUGH THE WEBSITE OR IN CONNECTION THEREWITH ARE PROVIDED “AS IS,” AND ARE PROVIDED FOR PERSONAL ACCESS AND USE AS PROVIDED HEREIN.
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN WRITING BY PONO, PONO AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, COVENANTS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND QUALITY OF GOODS AND SERVICES, WITH REGARD TO THE WEBSITE, THE WEBSITE CONTENT, AND ALL OF THE GOODS, SERVICES, INFORMATION AND OTHER MATERIALS PROVIDED ON OR THROUGH THE WEBSITE OR IN CONNECTION THEREWITH,EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
PONO AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS, GUARANTIES OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE WEBSITE, THE WEBSITE CONTENT, OR ANY OF THE GOODS, SERVICES, INFORMATION OR OTHER MATERIALS PROVIDED ON OR THROUGH THE WEBSITE OR IN CONNECTION THEREWITH, OR THE RESULTS YOU MAY OBTAIN BY ACCESSING OR USING THE WEBSITE, THE WEBSITE CONTENT, OR ANY OF THE GOODS, SERVICES, INFORMATION OR OTHER MATERIALS PROVIDED ON OR THROUGH THE WEBSITE OR IN CONNECTION THEREWITH.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PONO AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE WEBSITE, THE WEBSITE CONTENT, OR ANY OF THE GOODS, SERVICES, INFORMATION OR OTHER MATERIALS PROVIDED ON OR THROUGH THE WEBSITE OR IN CONNECTION THEREWITH WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; (B) THE QUALITY OF ANY WEBSITE CONTENT OR OTHER PRODUCTS, SERVICES,INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN ON OR THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS; OR (C) THE WEBSITE, THE WEBSITE CONTENT, OR ANY OF THE GOODS, SERVICES, INFORMATION OR OTHER MATERIALS PROVIDED ON OR THROUGH THE WEBSITE OR IN CONNECTION THEREWITH ARE OR WILL BE FREE OF VIRUSES, BUGS OR OTHER HARMFUL COMPONENTS.
YOU ACKNOWLEDGE THAT NEITHER PONO NOR ANY OF ITS THIRD PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT ANY AND ALL OF THE WEBSITE, THE WEBSITE CONTENT, AND THE GOODS, SERVICES, INFORMATION AND OTHER MATERIALS PROVIDED ON OR THROUGH THE WEBSITE OR IN CONNECTION THEREWITH MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PONO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
PONO EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, GUARANTIES, COVENANTS AND CONDITIONS RELATED TO THE PERSONS OR BUSINESSES REFERENCED ON THE WEBSITE AND THE GOODS AND/OR SERVICES PROVIDED BY SUCH PERSONS OR BUSINESSES. YOUR USE OF THIRD PARTY PROVIDERS AND AFFILIATED SERVICES IS AT YOUR PERIL AND YOU ASSUME ALL RISKS RELATED TO SUCH USE OF SAID THIRD PARTY PROVIDERS AND SERVICES.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PONO AND THIRD PARTY PROVIDERS EXCEED $1,000.00 (USD).
IN NO EVENT SHALL PONO OR ANY THIRD PARTY PROVIDERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES TO YOUR COMPUTER, COMPUTER SYSTEM, TELECOMMUNICATION EQUIPMENT, MOBILE DEVICE, OR OTHER PROPERTY AND/OR FOR LOSS OF OR DAMAGE TO UPLOADED SUBMISSIONS, DATA, CONTENT, IMAGES, REVENUE, PROFIT, USE OR OTHER ECONOMIC ADVANTAGE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE WEBSITE, THE WEBSITE CONTENT, OR ANY GOODS, SERVICES, INFORMATION OR OTHER MATERIALS PROVIDED ON OR THROUGH THE WEBSITE OR IN CONNECTION THEREWITH, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF PONO OR THE THIRD PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
COMPLIANCE WITH LAW
You will comply with all applicable local, state/provincial, national and foreign laws, treaties, regulations and conventions in connection with your use of the Website and any Website Content, including without limitation those laws, treatises, regulation and conventions related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which PONO controls and operates the Website.
Furthermore, you expressly agree not to violate any rights of publicity or privacy of any person, nor defame any person or entity.
PONO may give notice by means of a general notice on the Website, electronic mail to your e-mail address on record in PONO’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in PONO’s account information.
You may give notice to PONO at any time by email, to firstname.lastname@example.org, letter sent by confirmed facsimile to PONO, fax number (415) 638-6133 or by letter delivered by registered mail with return receipt to: 1501 Mariposa St Suite 312, San Francisco, CA 94107. All notices shall be deemed to have been given four days after mailing or 36 hours after sending by confirmed facsimile, email or posting to the Website.
DIGITAL MILLENNIUM COPYRIGHT ACT POLICY
This policy is intended to implement the procedures described in the Title II of the Digital Millennium Copyright Act, 17 U.S.C. Section 512 (“DMCA”) and ss 41.25 and 41.26 of the Canadian Copyright Act, for the reporting of alleged copyright infringement. It is the policy of PONO to respect the legitimate rights of copyright owners, their agents, and representatives. Users of any part of the Website are required to respect the legal protections provided by applicable copyright law.
Upon receipt of notification of claimed infringement, PONO will follow the procedures outlined herein, and, as applicable, in the DMCA and the Canadian Copyright Act. PONO’s “Designated Agent” to receive notification of alleged infringement under the DMCA is Randy Leasure.
A notice of alleged copyright infringement to the Designated Agent must include the following:
- An electronic or physical signature of the copyright owner or a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed and identification of the interest or right with respect to the copyright in the work or other subject-matter claimed to have been infringed
- Identification of the copyrighted work(s) or other subject matter claimed to have been infringed, the infringement that is claimed, and the date and time of the commission of the claimed infringement.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity that is to be removed or access to which is to be disabled pursuant to the DMCA, and information reasonably sufficient to permit PONO to locate the material.
- Information reasonably sufficient to permit PONO 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 matter complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notice 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.
- Failure to include all of the above information may result in a delay of the processing, the DCMA notification or the Canadian Copyright Act notification.
It is expected that all users of any part of the Website will comply with applicable copyright laws. However, if PONO is notified of claimed copyright infringement, or otherwise becomes aware of facts and circumstances from which infringement is apparent, it will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing or to be the subject of infringing activity. PONO will comply with the appropriate and applicable provisions of the DMCA in the event a counter notification is received by its Designated Agent.
Under appropriate circumstances, PONO may, in its discretion, terminate authorization of users of the Website or network who are repeat infringers.
It is PONO’s policy to accommodate and not interfere with standard technical measures it determines are reasonable under the circumstances, i.e., technical measures that are used by copyright owners to identify or protect copyrighted works.
Contact information for Designated Agent: email@example.com
PONO reserves the right to use Third Party Providers in the provision of the Website, the Website Content and/or the goods and services associated therewith.
Any and all rights not expressly granted herein are reserved by PONO.
INTELLECTUAL PROPERTY NOTICES
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content of the Website are protected by copyright, trademark, trade dress, patent, unfair competition and other laws and may not be copied or imitated in whole or in part. No logo, graphic, sound or image from the Website may be copied or retransmitted unless expressly permitted by PONO.
The PONO trademark and/or other PONO identifiers referenced herein are trademarks of Pono and/or its affiliates, and may be registered in certain jurisdictions.
LEGAL CONTACT INFORMATION
Last updated: November 2015
Copyright © 2016 Pono Music. All rights reserved.
Software Program End User License Agreement
Important Note: To the extent that the downloaded software may be used to reproduce materials, it is licensed to you only for reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. To the extent that the software may be used for remote access to music files for listening between computers, remote access of copyrighted music is only provided for lawful personal use or as otherwise legally permitted. If you are uncertain about your right to copy or permit access to any material you should contact your legal advisor.
SOFTWARE PROGRAM END-USER LICENSE AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY. WE LICENSE THE JRIVER SOFTWARE AND APPLICATIONS TO YOU ONLY IF YOU ACCEPT THE TERMS IN THIS LICENSE AGREEMENT.
BY INSTALLING OR USING THIS SOFTWARE, YOU ARE AGREEING ELECTRONICALLY TO THE TERMS OF THIS AGREEMENT (THE "AGREEMENT" or "LICENSE").
JRIVER LICENSE AGREEMENT
This Agreement applies to the PRODUCT (as defined below) provided by JRiver, Inc. BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE PRODUCT, YOU ELECTRONICALLY AGREE ON BEHALF OF YOURSELF AND THE ENTITY YOU REPRESENT (IF APPLICABLE) THAT YOU OR SUCH ENTITY ARE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT. AS THE "LICENSEE."
a) "Agreement" means this JRiver License Agreement.
b) "Product" means the JRiver MEDIA CENTER software product or any derivative product, whether paid or free (defined below), as applicable to Licensee, all associated software, upgrades, updates, patches, plug-ins, supplemental applications, documentation and on-line service provided by JRIVER, its affiliates and suppliers.
c) "Documentation" means the help pages inside the program or other pages hosted on any JRiver owned or operated website.
d) "JRIVER Plug-in" means a plug-in (a small software program that adds a specific capability to another program) owned and offered by JRiver as part of the PRODUCT download and/or via any JRiver owned or operated jrmediacenter.com website.
e) "Skin" means a graphical interface for the PRODUCT that changes the look but not the functionality, and includes the text files that define how the skin is built, the scripts that define how it should behave, and the graphics that create the visual look.
f) "Update" means a revision to the PRODUCT designated by a change in the version number to the right of the decimal place.
g) "Upgrade" means a revision to the PRODUCT designated by a change in the version number to the left of the decimal place.
h) “Free Product” means a PRODUCT which an end-user has obtained without cost directly from JRiver or from a distributor who has written authorization from JRiver to distribute the PRODUCT. Distribution without authorization is prohibited.
2. LICENSE GRANT. For a PRODUCT which is not FREE, provided Licensee complies with the terms and conditions of this Agreement and has paid the applicable license fees for the PRODUCT, JRIVER grants Licensee a personal, non-exclusive, and non-transferable license to install and use the PRODUCT. Upon JRiver's receipt of the applicable license fees, a serial number key will be issued to Licensee to unlock the PRODUCT.
Certain versions of the PRODUCT may be FREE, but the free use applies only to end-users and not to any business or other organization unless authorized in writing by JRiver. For a FREE PRODUCT which has no cost to the end-user, subject to Licensee's compliance with the terms and conditions of this Agreement, JRiver grants Licensee a free-of-charge, personal, non-exclusive, and non-transferable license to install and use the SOFTWARE.
3. RESTRICTIONS ON USE. Licensee may not: (i) modify or create any derivative works of the PRODUCT; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to (a) derive the source code, underlying ideas, algorithms, structure or organization of the PRODUCT, or (b) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the PRODUCT (except to the extent applicable laws specifically prohibit such restriction); (iii) attempt to access or use the premium features of the PRODUCT if Licensee has not paid the applicable fees or by any manner or method other than using the key provided by JRiver; (iv) redistribute, encumber, sell, rent, lease, sub-license, or otherwise transfer the PRODUCT or rights thereto; (v) use the PRODUCT to reproduce, display, perform, or distribute audio and/or video content in any manner that violates any U.S. or foreign laws or regulations or any third-party's rights, including copyright, privacy or publicity rights, or other intellectual property right; (vi) use the PRODUCT in a timesharing or service bureau arrangement; or (vii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the PRODUCT. The JRiver produced Skins that are provided with the PRODUCT may only be used with the PRODUCT and may not be used with any other media player or other third-party product.
Supply of this PRODUCT does not convey a license nor imply any right to distribute content created with this PRODUCT in revenue-generating broadcast systems (terrestrial, satellite, cable and/or other distribution channels), revenue-generating streaming applications (via Internet, intranets and/or other networks), other revenue-generating content distribution systems (pay-audio or audio-on-demand applications and the like) or on commercially distributed physical media (compact discs, digital versatile discs, semiconductor chips, hard drives, memory cards and the like). An independent license for such use is required. For details, please visit http://www.jrmediacenter.com
4. NEED FOR CONTENT LICENSES. This license provides no rights with respect to any musical compositions, sound recordings, video recordings, or other audio and/or video materials ("Content") that may be reproduced, encoded, distributed, transmitted, performed, or otherwise used in connection with the PRODUCT. Licensee alone is responsible for ensuring that any Content is properly used in accordance with applicable laws and the rights of any third-party with respect to such Content.
5. SUPPORT. Licensee will have access to community forums, FAQs, and other online self help services, but will not be entitled to receive from JRIVER any technical support or telephone assistance. Use of community forums and other online service are subject to additional terms.
6. FEES. A license fee may be required in order to receive a key to access the features of the PRODUCT. Fee information is available at: http://www.jrmediacenter.com
7. UPGRADES AND UPDATES. This license does not entitle Licensees of the PRODUCT to Updates or Upgrades to the PRODUCT. If Updates or Upgrades to the PRODUCT are made available, they will be available from http://www.jrmediacenter.com and will be subject to JRiver's then current license agreement and payment of additional license fees, if any.
8. LICENSEE REPRESENTATIONS. Licensee represents and warrants that it has the legal capacity to enter into this Agreement, that it will use the PRODUCT only for lawful purposes and in accordance with this Agreement, and that it will not use the PRODUCT to violate any law, regulation or ordinance or any right of JRiver or its licensors or any third-party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent. Licensee further represents and warrants that Licensee has adequate legal capacity to enter into binding agreements such as this Agreement.
9. ONLINE SERVICES. JRiver, its affiliates and suppliers may provide online services for use with the PRODUCT. JRiver may change or cancel those services at any time. In order to use these interactive services, you may need to register and obtain log-in credentials, such as a User ID. Some services may require submission of usage data or meta-data such as track titles.
10. ELECTRONIC NOTICE DELIVERY POLICY. JRiver, when possible, communicates with users of its PRODUCT electronically. WHEN YOU PROVIDE JRIVER WITH YOUR EMAIL ADDRESS, E.G. IN ORDER TO RECEIVE THE KEY FOR THE PRODUCT OR TO RECEIVE NEWSLETTERS, YOU CONSENT TO RECEIVE ELECTRONICALLY FROM JRIVER ANY PRIVACY OR OTHER NOTICES, AGREEMENTS, DISCLOSURES, REPORTS, DOCUMENTS, COMMUNICATIONS, OR OTHER RECORDS (COLLECTIVELY, "NOTICES"). You agree that JRiver generally can send you electronic Notices to the e-mail address that you provided to JRiver, if any.
11. TERMINATION. Should Licensee breach this Agreement, Licensee's right to use the PRODUCT shall terminate immediately and without notice. The respective rights and obligations of JRiver and Licensee under the provisions of Sections 3 ("Restrictions on Use"), 4 ("Need for Content Licenses"), 10 ("Electronic Notice Delivery Policy"), 11 ("Termination"), 12 ("Proprietary Rights"), 13 ("Indemnification"), 16 ("Limitation of Liability"), 20 ("Third-Party Services or Products") and 21 ("Miscellaneous") shall survive expiration or termination of this Agreement and Licensee agrees to continue to be bound by those terms. Upon termination, Licensee shall destroy all copies of the PRODUCT.
12. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights in the PRODUCT shall remain in JRiver and/or its licensors and other suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with JRiver's or its licensors' or other suppliers' ownership of or rights with respect to the PRODUCT. The PRODUCT is protected by copyright and other intellectual property laws and by international treaties. All trademarks used in connection with the PRODUCT are owned by JRIVER, its affiliates or its licensors and other suppliers, and no license to use any such trademarks is provided hereunder. Title and related rights in the Content are the property of the applicable content owners and are protected by applicable law. Licensee agrees that JRiver may use in any manner and without limitation all comments, suggestions, complaints and other feedback Licensee provides relating to the PRODUCT.
13. PONO PRODUCT. Licensee acknowledges and agrees that certain trademarks, including, without limitation, “Pono,” that may be used in connection with the PRODUCT are owned by PONO, and no license to use any of PONO’s trademarks is provided hereunder. The PRODUCT, including Updates and Upgrades, offered to Licensee may also be made available on or through a website, software, or product offered or provided by PONO (collectively, “PONO Product”).
14. INDEMNIFICATION. Licensee agrees to indemnify, hold harmless, and at JRiver’s request, to defend JRiver, its affiliates, licensors and suppliers from any and all costs, damages and reasonable attorneys' fees resulting from any breach of this Agreement or claim that Licensee's use of the PRODUCT has injured or otherwise violated any right of any third party or violates any law.
15. LIMITED WARRANTY. Provided Licensee has paid the applicable license fees for the PRODUCT and is in compliance with the terms and conditions hereof, for sixty (60) days after the date of download of the PRODUCT (the "Warranty Period"), JRIVER warrants that the unmodified PRODUCT, when properly installed and used, will substantially achieve the functionality described in the applicable Documentation. This limited warranty does not apply for plug-ins or supplemental applications that you may subsequently elect to install and use with the PRODUCT. THIS LIMITED EXPRESS WARRANTY FOR THE PRODUCT CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE PRODUCT. JRIVER AND ITS LICENSORS AND OTHER SUPPLIERS DO NOT MAKE, AND HEREBY EXCLUDE AND DISCLAIM, ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE PRODUCT AND ANY UPDATES OR UPGRADES THERETO, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT OF THIRD PARTIES' RIGHTS, AND SECURE, ERROR-FREE OR UNINTERRUPTED OPERATION. JRIVER AND ITS LICENSORS AND OTHER SUPPLIERS SHALL HAVE NO OBLIGATIONS UNDER THE WARRANTY PROVISIONS SET FORTH HEREIN IF LICENSEE ALTERS OR MODIFIES THE PRODUCT; USES THE PRODUCT ON A COMPUTER SYSTEM OR IN A MANNER NOT SPECIFIED BY JRIVER; OR LICENSEE VIOLATES THE TERMS OF THIS AGREEMENT. IN THE EVENT OF A BREACH OF THIS WARRANTY, AND IF LICENSEE PROVIDES JRIVER WITH A WRITTEN REPORT DURING THE WARRANTY PERIOD OF ANY ERRORS OR FAILURES, JRIVER WILL USE REASONABLE EFFORTS TO PROMPTLY CORRECT, REPLACE OR PROVIDE A WORK AROUND FOR SUCH ERROR OR FAILURE, AT NO CHARGE TO LICENSEE, OR AT JRIVER'S SOLE OPTION, PROVIDE A REFUND TO LICENSEE. THIS IS LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTIES HEREUNDER. NOTWITHSTANDING THE FOREGOING, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES; HOWEVER, THE EXCLUSIONS OF JRIVER'S WARRANTY IN THIS LIMITED WARRANTY SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
16. DISCLAIMER OF WARRANTY FOR THE PRODUCT. THIS PRODUCT IS PROVIDED WITH ALL FAULTS ON AN "AS IS" BASIS. JRIVER, ITS LICENSORS AND OTHER SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES THAT THE PRODUCT IS FREE OF DEFECTS, VIRUS FREE, AND ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THAT THE FUNCTIONALITY OF THE PRODUCT WILL MEET LICENSEE'S REQUIREMENTS, OR THAT ERRORS IN THE PRODUCT WILL BE CORRECTED, AND THE IMPLIED WARRANTIES THAT THE PRODUCT IS MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING, UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. FURTHER, JRIVER, ITS LICENSORS AND OTHER SUPPLIERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCT IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY JRIVER OR A JRIVER AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. JRIVER AND ITS LICENSORS AND OTHER SUPPLIERS HAVE NO LIABILITY WITH RESPECT TO LICENSEE'S USE OF THE PRODUCT. LICENSEE BEARS THE ENTIRE RISK AS TO THEIR QUALITY AND PERFORMANCE AND ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
17. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL JRIVER, JRIVER LLC, OR THEIR RESPECTIVE PARENTS, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, SUPPLIERS, AGENTS OR RESELLERS (COLLECTIVELY, THE "JRIVER GROUP") BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, THE JRIVER GROUP'S ENTIRE COLLECTIVE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY) AND REPLACEMENT OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY SIMILAR PRODUCT, AS DETERMINED AT JRIVER'S SOLE DISCRETION, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF JRIVER TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. ADDITIONALLY, THE JRIVER GROUP SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF: (i) CONTENT PROVIDED BY LICENSEE OR A THIRD-PARTY THAT IS ACCESSED THROUGH OR USED WITH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT; OR (ii) THE USE OF PLUG-INS OR SKINS DEVELOPED BY THIRD PARTIES AND MADE AVAILABLE ON JRIVER'S WEBSITES FOR USE WITH THE PRODUCT.
18. EXPORT CONTROLS. Licensee agrees to comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority, and not to export, re-export or import the PRODUCT or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. For example, Licensee may not export or re-export any commodities, software, or technical data received from JRiver, or any direct product of such commodities, software or technical data, to any proscribed country, party, or entity listed in the applicable laws, regulations, and rules of the U.S. Government unless properly authorized. As applicable, each party shall obtain and bear all expenses and responsibility relating to any necessary licenses and/or exemptions with respect to its own export or re-export of the PRODUCT from the U.S.
19. INJUNCTIVE RELIEF. Licensee acknowledges and agrees that, notwithstanding any other provisions of this Agreement, any breach or threatened breach of this Agreement by Licensee shall cause JRiver irreparable damage for which recovery of money damages would be inadequate and that JRiver therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
20. U.S. GOVERNMENT END-USERS. Each PRODUCT is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b)(2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government End-Users acquire the PRODUCT with only those rights as set forth herein.
21. THIRD-PARTY SERVICES OR PRODUCTS.
(a) The PRODUCT may contain links to other web sites, resources and advertisers. JRiver is not responsible for the availability of these external sites nor does it endorse, or is it responsible for, the aesthetics, appeal, suitability to taste or subjective quality of informational content, advertising, products or other materials made available on or through such external sites. Under no circumstances shall JRiver or any of the affiliated providers be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to Licensee in connection with the use of or reliance on any content, goods or services available on such external sites. Licensee should direct any concerns to such external sites' administrator or Webmaster.
(b) Licensee agrees and understands that the PRODUCT may include from time to time offerings for certain third-party services, products or supplemental applications for download or use with the PRODUCT ("Supplemental Applications"). Such Supplemental Applications are subject to this Agreement and may be subject to additional terms and conditions or registration requirements. Licensee agrees to abide by these additional terms and further agrees that a violation of those terms shall constitute a breach of this Agreement.
(c) Third parties may offer from time to time applications or services to access, "plug-in" or interact with the PRODUCT. Licensee's use of such third-party applications will be at Licensee's own risk and subject to the terms and conditions of those third parties. JRIVER DOES NOT REPRESENT AND WARRANT THAT ACCESS AND USE OF THE PRODUCT THROUGH OR WITH THESE THIRD-PARTY APPLICATIONS OR THIRD-PARTY OFFERINGS WILL BE COMPATIBLE, UNINTERRUPTED, ERROR FREE, WITHOUT DEFECTS OR THAT LICENSEE WILL BE ABLE TO ACCESS OR USE THE PRODUCT AT ALL TIMES AND LOCATIONS OF ITS CHOOSING. LICENSEE AGREES THAT JRIVER IS UNDER NO OBLIGATION TO PROVIDE LICENSEE WITH ANY ERROR CORRECTIONS, UPDATES, UPGRADES, FIXES AND/OR ENHANCEMENTS TO MAKE THE PRODUCT ACCESSIBLE THROUGH OR COMPATIBLE WITH THESE THIRD-PARTY APPLICATIONS OR THIRD-PARTY OFFERINGS.
22. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, which may only be modified by a written amendment signed by an authorized executive of JRiver. (b) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the State of Minnesota, U.S.A., excluding its conflict of law provisions. (c) Licensee expressly agrees that jurisdiction for any claim or dispute relating to or arising out of this Agreement resides exclusively in the federal and state courts of Minnesota and expressly consents to the personal jurisdiction thereof. (d) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (e) If any provision in this Agreement should be held illegal or unenforceable, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect, or JRiver may at its option instead terminate this Agreement. (f) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (g) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. JRiver may assign this Agreement to any entity at its sole discretion. (h) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (i) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.