Software End User License Agreement

 

This End User License Agreement applies to the Media Player (as defined below) provided by Ion Concert Media, Inc. ("ICM"). BY DOWNLOADING, INSTALLING OR USING THE MEDIA PLAYER, YOU ASSENT TO AND ARE BOUND BY THIS EULA.

1. Definitions
   1. "Media Player" means ICM’s Media Synchronizing Software, Upgrades, Updates, plug-ins, Documentation, and any associated online services provided by ICM or its suppliers.
   2. “ICM Web Site” means the web site accessed at: ionconcertmedia.com.
   3. "Update" means a revision to the Media Player designated by a change in the version number to the right of the decimal place.
   4. "Upgrade" means a revision to the Media Player designated by a change in the version number to the left of the decimal place.
2. License Grant. Subject to the terms and conditions of this EULA, ICM grants Licensee a non-exclusive, and non-transferable license to install and use the Media Player solely to access Licensed Media made available through the ICM Web Site or under special written arrangement.
3. Upgrades and Updates. In its discretion, ICM may make Updates or Upgrades available for the Media Player.  ICM may, in its discretion, provide any Updates or Upgrades subject to its then current forms of end user license agreement, which may contain additional or different terms.  This license does not entitle Licensee to Updates or Upgrades.
4. Restrictions on Use. Licensee may not: (i) modify or create any derivative works of the Media Player; (ii) decompile, disassemble, or reverse engineer the Media Player, or (b) defeat, bypass, or otherwise circumvent any software protection mechanisms in the Media Player (except to the extent applicable laws specifically prohibit such restriction); (iii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer the Media Player; (iv)  use the Media Player in a timesharing or service bureau arrangement; (v) use the Media Player to access content not obtained through the ICM Web Site or direct file transfer from ICM; or (vi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Media Player. 
5. Online Support. Support for the Media Player consists of online materials that ICM may make available at: ionconcertmedia.com. Online materials are subject to ICM’s applicable online Terms of Use and this EULA.
6. Online Services. ICM and/or its suppliers may provide online services for use with the Media Player. You may be required to register with ICM for such services.  Online services are subject to applicable legal terms and conditions stated on ICM’s Web Site and this EULA.  ICM may change or discontinue online services at any time.
7. Consent to Electronic Notice. If for any purpose under this EULA, you provide ICM with your email address, you agree to receive all notices and communications (“Notices”) from ICM in electronic form at such email address. Delivery of any Notice from ICM is effective when sent by ICM, regardless of whether you actually receive or read the Notice. If you have provided your email address and do not wish to consent to electronic notice, you must uninstall and discontinue all use of the Media Player.  You can update your email address by using the features on the ICM Web Site for managing your user account.
8. Ownership. The Media Player is protected by copyright and other intellectual property laws and by international treaties. No ownership rights are granted by this EULA. ICM may use in any manner and without limitation all comments, suggestions, complaints and other feedback that Licensee provides relating to the Media Player.  All rights not expressly granted to Licensee are reserved to ICM and its suppliers.
9. Indemnification. Licensee agrees to indemnify, hold harmless, and at ICM's request, to defend ICM and its suppliers from any and all costs, damages and reasonable attorneys' fees resulting from any breach of this EULA.
10. Termination. Should Licensee breach this EULA, Licensee's right to use the Media Player will terminate automatically without notice. The respective rights and obligations of ICM and Licensee under the following provisions will survive termination: 4 (Restrictions on Use), 7 (Consent to Electronic Notice), 8 (Ownership), 9 (Indemnification), 10 (Termination), 11 (Disclaimer of Warranty), 12 (Limitation of Liability), 16 (Third Party Services or Products) and 17 (Miscellaneous). Upon termination, Licensee will erase all copies of the Media Player.
11. Disclaimer of Warranty. THE MUSIC PLAYER IS PROVIDED "AS IS." ICM AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU. ICM and its suppliers do not make any representations regarding the results of the use of the Music Player.
12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ICM OR ITS DIRECTORS, EMPLOYEES, DISTRIBUTORS, SUPPLIERS, AGENTS OR RESELLERS OR SUPPLIERS (“ICM PARTIES”) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.  THE ICM PARTIES’ ENTIRE LIABILITY WILL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE, REPLACEMENT OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY SIMILAR SOFTWARE PRODUCT, AT ICM’S DISCRETION. Some jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, so this exclusion and limitation may not be applicable to you. The ICM Parties will 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 Music Player and/or any material linked to or through such content; or (ii) the use of third party plug-ins (even if made available on ICM’s Web Site).
13. Export Controls. Licensee agrees to comply with all export and import laws and restrictions and regulations of the United States or any foreign nation, and not to export, re-export or import the Media Player in violation of any such restrictions, laws or regulations.
14. Injunctive Relief. Licensee acknowledges and agrees that, notwithstanding any other provisions of this EULA, any breach or threatened breach of this EULA by Licensee will cause ICM irreparable damage for which recovery of money damages would be inadequate and that ICM therefore may obtain timely injunctive relief to protect its rights under this EULA in addition to any and all other remedies available at law or in equity.
15. S. Government Users. The Media Player is a "commercial item," as that term is defined in 48 CFR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 CFR 12.212 and 48 CFR 227.7202. Consistent with applicable laws and regulations, all U.S. Government users acquire the Media Player with only those rights as set forth herein.
16. Third Party Services or Products
    1. The Media Player may contain links to other web sites, resources and advertisers. ICM is not responsible for such external sites.
    2. Third parties may offer from time to time applications or services to access, "plug-in" to or interact with the Media Player. 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. ICM MAKES NO REPRESENTATION OR WARRANTIES REGARDING THIRD PARTY PRODUCTS EVEN IF DOWNLOADED FROM ICM’S WEB SITE OR BY MEANS OF A LINK ON SUCH SITE.
17. Miscellaneous
    1. Licensee represents and warrants that Licensee has all required legal capacity to enter into this EULA as a binding agreement.
    2. This EULA is subject to the law of the state of Minnesota. This EULA will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Licensee agrees that the exclusive jurisdiction and venue for any claim or dispute relating to or arising out of this EULA or its subject matter will be in the federal and state courts located in Minnesota, and Licensee consents to the personal jurisdiction in such courts.
    3. If any provision in this EULA should be held illegal or unenforceable, the other provisions of this EULA will remain in full force and effect.
    4. A waiver by either party of any term or condition of this EULA or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
    5. Licensee may not assign or otherwise transfer by operation of law or otherwise this EULA or any rights or obligations herein. ICM may assign this EULA to any entity at its sole discretion. This EULA will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
    6. Neither party will 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.
    7. This EULA 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 ICM.