APOLLO VIBES LICENSE AGREEMENT
BY INSTALLING "Transitions DJ", YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT ("LICENSEE") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT ("AGREEMENT"). LICENSEE'S CONTINUED USE OF THE SOFTWARE AND SERVICE SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "DISAGREE" BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
Thank you for registering with Apollo Vibes, LLC ("Apollo Vibes"). As part of such registration, you represent and warrant that you have provided accurate and complete information and agree to keep your registration information updated. You are solely responsible for the activity that occurs on your account. You may never use another person's registration information without permission. You must notify us immediately of any breach of security or unauthorized use of your account.
2. Use of Software and License.
Subject to the terms and conditions of this Agreement, Apollo Vibes grants to Licensee a nonsublicensable, nontransferable, nonexclusive limited license to use the computer software in object code form that is about to be installed (the "Software"). Licensee may install the Software on computers and devices under Licensee's ownership or control.
2.2. Use of Software.
Licensee understands and agrees that the Software permits Licensee to upload metadata to Apollo Vibes' servers, including without limitation artist, title, annotation data, phase information, BPM, and other information supported by Apollo Vibes (collectively, "Metadata"). You represent and warrant that you have all necessary rights to the music within your library and any Metadata that you upload to Apollo Vibes. You acknowledge and agree that Apollo Vibes (a) may associate this any Metadata that you upload with your registration information; (b) keep statistical information regarding your use of the software, including without limitation, number of songs in your library, number of songs played, hit rate within Apollo Vibes' database and other uses; and (c) in the event of a failure of the Software, the Software may send log files to Apollo Vibes. You hereby grant to Apollo Vibes a non-exclusive, perpetual, irrevocable right and license to use, copy, store, create derivative works, analyze, distribute and otherwise commercialize any Metadata that you upload to Apollo Vibes' systems. For clarity, such Metadata will not be removed from Apollo Vibes' systems following any termination or expiration of this Agreement.
Licensee shall not: (a) use the Software, any documentation or other information provided by Apollo Vibes hereunder, to create any similar software or documentation; (b) reproduce or modify the Software or any portion thereof, or embed the Software or any portion thereof into any commercial product of Licensee; (c) sublicense, rent, sell, loan, lease, disclose, display, distribute, or otherwise transfer the Software, or any portion thereof, or use it for timesharing, rental or service bureau purposes, or for the benefit of a third party; (d) remove or obscure any proprietary notices on the Software, and shall reproduce such notices exactly on all permitted copies of the Software; or (e) copy, reverse assemble, reverse compile or reverse engineer the Software, or any portion thereof, or otherwise attempt to discover any Software source code, or otherwise circumvent any technological measure that controls access to the Software.
Licensee shall notify Apollo Vibes by telephone or electronic mail to the contact designated from time to time by Apollo Vibes upon the discovery of a material error or difficulty in respect of use of the Software. Apollo Vibes may in its sole discretion attempt to resolve such error, but shall be under no obligation to do so.
Licensee acknowledges and agrees that prior to installation and removal of the Software, Licensee shall be solely responsible for backing-up all Licensee's data.
3. Term and Termination.
Licensee may terminate this Agreement and the license granted herein at any time by destroying or removing from all computer systems all copies of the Software. Apollo Vibes may terminate this Agreement and the license granted herein immediately if Licensee breaches any provision of this Agreement. Upon termination of this Agreement, Licensee agrees to discontinue all use of the Software and immediately destroy or erase the Software. Upon termination or expiration of this Agreement, Licensee's license to use the Software will automatically terminate. Sections 2.2, 2.3, and 4 through 7, as well as this sentence, shall survive any termination or expiration of this Agreement for any reason. The parties agree that Licensee shall have no duty to rent, lease, license or purchase the Software from Apollo Vibes after termination or expiration of this Agreement, nor shall Apollo Vibes have any obligation thereafter to rent, lease, license or sell the Software to Licensee.
4. WARRANTY DISCLAIMER.
The parties acknowledge that the Software is provided "AS IS" and may not be functional on any machine or in any environment. APOLLO VIBES MAKES NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, AND APOLLO VIBES EXPRESSLY EXCLUDES AND DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, FREEDOM FROM ERRORS, FREEDOM FROM PROGRAMMING DEFECTS, NONINTERFERENCE AND NONINFRINGEMENT, AND ALL IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE.
5. Limitation of Remedies and Damages.
APOLLO VIBES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (B) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES AND LOSS OF PROFITS TO LICENSEE OR ANY THIRD PARTIES, OR (C) FOR ANY DIRECT DAMAGES IN EXCESS OF $100.00, EVEN IF APOLLO VIBES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APOLLO VIBES SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
6. Export Control.
Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By downloading or using the Software, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Apollo Vibes to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Licensor's rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever without Apollo Vibes' consent and any action or conduct in violation of the foregoing shall be void and without effect. Apollo Vibes expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under Texas law, without regard to its conflicts of law rules. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Austin, TX; Licensee hereby agrees to service of process in accordance with the rules of such courts. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
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