Harmonix Music Systems

END USER LICENSE AGREEMENT

(Last modified March 7, 2019)

1. INTRODUCTION

This End User License Agreement (“EULA”) is an agreement between you and Harmonix Music Systems, Inc. ("Harmonix" or “our” or “we” or “us”) in relation to Harmonix’s game entitled Audica.

USE OF AUDICA, INCLUDING ANY UPDATES THERETO, ANY ONLINE, NETWORK, CONNECTED AND/OR INTERNET PLAY, FUNCTIONALITY, FEATURES AND SUPPORT FOR AUDICA, DOWNLOADS ASSOCIATED WITH AUDICA, AND ANY ASSOCIATED PHYSICAL OR ONLINE MEDIA, MATERIALS AND DOCUMENTATION (COLLECTIVELY, THE “GAME”) IS SUBJECT TO THIS EULA. BY DOWNLOADING THE GAME, INSTALLING THE GAME, OPENING THE GAME PACKAGING OR OTHERWISE USING THE GAME, YOU ACCEPT ALL TERMS AND CONDITIONS SET OUT IN THIS EULA WITH HARMONIX. IF YOU DO NOT AGREE TO THIS EULA AND YOU REJECT HARMONIX’S OFFER, YOU MAY NEITHER INSTALL NOR USE THE GAME OR THE SOFTWARE (AS DEFINED BELOW). THE GAME IS LICENSED TO YOU AND NOT SOLD.

EACH TIME YOU USE THE GAME AND/OR THE SOFTWARE (INCLUDING AS IT MAY BE UPDATED, UPGRADED OR EXPANDED FROM TIME TO TIME IN HARMONIX’S SOLE DISCRETION), YOU WILL BE DEEMED TO HAVE ACCEPTED THE TERMS OF THIS EULA (INCLUDING ANY AMENDMENTS OR UPDATES THAT MAY HAVE BEEN MADE FROM TIME TO TIME). ALL USE OF THE SOFTWARE AND GAME IS SUBJECT TO THIS EULA, OUR TERMS OF USE AGREEMENT (WWW.HARMONIXMUSIC.COM/TERMS), PRIVACY POLICY (WWW.HARMONIXMUSIC.COM/PRIVACY), USER CONTENT SUBMISSION POLICY (WWW.HARMONIXMUSIC.COM/USER-CONTENT), AND ANY OTHER ADDITIONAL AGREEMENTS WE HAVE PROVIDED TO YOU AND THAT YOU HAVE AGREED TO BE BOUND BY (“ADDITIONAL AGREEMENTS”), WHICH ARE INCORPORATED BY REFERENCE INTO THIS EULA.

BY DOWNLOADING THE GAME, INSTALLING THE GAME, OPENING THE GAME PACKAGING OR OTHERWISE USING THE GAME, YOU WARRANT THAT YOU HAVE READ THIS EULA AND THE ADDITIONAL AGREEMENTS, YOU UNDERSTAND THE TERMS OF THIS EULA AND SUCH ADDITIONAL AGREEMENTS, ALL INFORMATION PROVIDED BY YOU TO ACCESS THE GAME AND SOFTWARE IS TRUTHFUL AND ACCURATE, AND YOU AGREE TO BE BOUND BY THIS EULA AND SUCH ADDITIONAL AGREEMENTS ON BEHALF OF YOURSELF AND, IF YOU ARE UNDER THE AGE OF 18, ON YOUR BEHALF BY YOUR PARENT OR LEGAL GUARDIAN.

HARMONIX RESERVES THE RIGHT TO AMEND THIS EULA AT ANY TIME BY POSTING ANY AMENDMENTS AT WWW.HARMONIXMUSIC.COM/GAMES/AUDICA/EULA. YOU AGREE TO CHECK SUCH WEBSITE AND REVIEW THIS EULA PERIODICALLY TO FAMILIARIZE YOURSELF WITH ANY AMENDMENTS THAT MAY OCCUR. YOUR CONTINUED USE OF THE GAME AND/OR THE SOFTWARE CONSTITUTES YOUR ACCEPTANCE OF ANY SUCH AMENDMENTS. IF YOU DO NOT ACCEPT SUCH AMENDMENTS OR ARE UNABLE TO CONTINUE TO REMAIN IN COMPLIANCE WITH THE EULA, THEN YOU MUST IMMEDIATELY STOP USING THE GAME AND THE SOFTWARE. YOU MAY TERMINATE THIS EULA IN ACCORDANCE WITH SECTION 7.

SECTION 6 DISCUSSES THE INFORMATION AND DATA COLLECTED ABOUT YOU AND YOUR ONLINE BEHAVIOR, AS WELL AS HOW IT IS SHARED BY HARMONIX AND THIRD PARTIES.

2. APPLICATION OF THIS EULA AND ACCESS TO SOFTWARE

This EULA governs your use of Harmonix’s Game client software, any updates, upgrades and expansions that replace or supplement Harmonix’s Game client software, and all related documentation which are not distributed with a separate license (collectively, the "Software").

This EULA does not give you any right to obtain reissues or replacements of the Software at any time; furthermore, Harmonix or any third party service provider that may operate the Game (an “Operator”) is not obliged to supply Software updates, upgrades or expansions, or even to operate or continue support the Game or Software, for an indefinite period. In the event that Harmonix supplies any Software updates, upgrades or other modifications to the Software, you agree that you may be required to install or patch the Software in the manner decided by Harmonix in its sole discretion so as to continue Game play. Harmonix may also update the Game remotely, including without limitation, the Software residing on your machine, without your knowledge, and you hereby grant Harmonix your consent to deploy and apply such updates.

To gain access to the Software, you must (a) have acquired the Software (whether on Blu-ray, DVD-ROM, CD-ROM or other physical media or by online download) by legal means, (b) have installed the Software on your device and (c) have accepted this EULA.

The Software alone does not give you the right to play the Game. You are responsible for all taxes and costs of acquiring any hardware, software, Internet connections or other products or services required to play the Game. To play the Game, you may need to enter into a separate agreement with Harmonix or with an Operator, subject to additional terms including terms of service, a privacy policy and/or a code of conduct. You may need to subscribe to an online service, and provide additional information to create an account with Harmonix and/or an Operator (an “Account”). Accounts may only be available to persons of legal age and, solely under the supervision of such persons, to any of their children under the age of majority. If you are a minor, your parents, guardians or legal caregivers must complete the registration procedure, whereby they must take all responsibility concerning the obligations set forth in this EULA. Harmonix does not guarantee that the Software can be accessed on all types of hardware or devices. Harmonix does not guarantee that the Game is available in all geographic locations.

3. LIMITED LICENSE GRANT AND TERMS OF USE

You acknowledge that the Software and the Game are owned by Harmonix and that they are protected by laws governing copyright, trademark, intellectual property rights and all other property rights. Under the terms of this EULA, and for purposes of your playing the Game, Harmonix grants you a personal, non-exclusive, non-transferable license (without the right to sublicense) to install and use the Software and play the Game for your personal, non-commercial use solely as set forth in this EULA, the Additional Agreements and the accompanying documentation. Your acquired rights are subject to your compliance with this EULA, including the Additional Agreements. Any commercial use is expressly prohibited. The term of this EULA and your license to use the Software and Game thereunder shall commence on the date that you install or otherwise use the Software, and shall terminate as set forth in Section 7.

Unless expressly permitted by Harmonix in writing or as required by applicable law, you are expressly prohibited from reproducing, sub-licensing, broadcasting, modifying, adapting, renting, lending, leasing, distributing, transferring or otherwise making publicly available the Software or rights to use the Software. Unless expressly permitted by Harmonix in writing, the reproduction of all or part of any hard-copy packaging or documentation included with the Software recording media is prohibited.

This Software is licensed, and not sold. You have acquired a license to the Software and your rights are subject to this EULA. Except as expressly licensed to you herein, Harmonix reserves all right, title and interest in the Software and the Game which you use the Software to play (including all characters, storyline, images, photographs, animations, video, music, text and in-game virtual property), and all associated copyrights, trademarks, and other intellectual property rights therein. The license granted under this EULA is limited to the intellectual property rights of Harmonix and its licensors in the Software, as necessary to use the Software and play the Game as permitted under this EULA, and does not include any rights to other patents or intellectual property. This EULA does not grant any rights relating to any brands or services connected with the Software or Game. Except to the extent permitted under applicable law, you may not decompile, disassemble, or reverse engineer the Software by any means whatsoever. You may not extract code from all or part of the Software, or authorize any third party to perform or to attempt to perform such operations on the Software. You may not remove, alter, or obscure any product identification, copyright, or other intellectual property notices in the Software. All rights not expressly granted herein are reserved by Harmonix.

Except as expressly permitted by Harmonix, it is strictly prohibited to use the Software to connect with or play the Game or any facsimile thereof on any servers that are not authorized by Harmonix or any Operator. In addition, you may not emulate or operate such servers or assist any third party to do so. The specific game rules, scoring rules, controls and guidelines for the Game can be found within the Software itself. Such rules, controls and guidelines form part of this EULA and you agree that you shall comply with them in respect of the Game which you choose to access and/or play. Except as expressly permitted by Harmonix, it is also strictly prohibited to use any third-party software or any other device with a view to modifying the Software in any way, intercepting or scanning Game traffic or communications, changing the way the Game plays or playing in an abnormal manner or in a way that could impair the correct operation of the Game. Such prohibited third party software or devices can include, but are not limited to, those in the nature of “addons”, “hacks”, “cheats”, “trainers”, “mods”, or the like by any name. Except as expressly permitted by Harmonix, the authorizations granted to you in accordance with this EULA may under no circumstances be used for the purpose of creating or supplying any opportunity for third parties to access the Game, including through server emulators or similar devices. Furthermore, you may not use the Software in a manner that would impose an unreasonable or disproportionate burden on the infrastructure of Harmonix or any Operator. You agree to comply with all applicable laws regarding the use of the Software and the Game.

This EULA grants you a simple license to use the Software to play the Game. You have no rights to or in the Game or its content. You expressly acknowledge that all characters created and all objects or attributes acquired and developed during Game play are an integral part of the Game and strictly remain the property of Harmonix. You further acknowledge that the Software contains, without limitation, the following: (i) graphics, sound effects, music, visual animations and text (hereafter referred to as "Content") to which you have no property rights and no intellectual property rights, and (ii) other content, including contributions by users of the Game.

4. USER CONTENT

Where by applicable law you own certain copyrights over any Content created by you by using the Software and/or the Game, you assign to Harmonix all and any intellectual and industrial property rights in all and any such Content. Where such assignment is not possible, you grant to Harmonix any and all comprehensive, exclusive, perpetual, irrevocable, fully transferable and sub-licensable worldwide and assignable rights to use all Content created by you by using the Software and/or the Game immediately upon creation. These rights to use and/or utilize Content shall extend to all known forms of use and include without limitation the rights to copy, reproduce, change, adapt, modify, process, translate the Content, the rights to license and sub-license the Content to third parties, and to market, whether by way of leasing, renting, or otherwise.

You acknowledge and agree that you have, except as may be expressly permitted by Harmonix, no right to and may not sell, auction, give away, or in any way make available, whether free of charge or for a fee, any Content (including any Content generated by yourself or any other user), character/avatar, object, item or any component of the Software or Game, to another person. All of the aforementioned actions, especially those performed via online auctions, forums or chat rooms, will therefore contravene the terms of this EULA. Over and above the violation of the terms of this EULA, which will entitle Harmonix to terminate this EULA and your license to use the Software and play the Game, you acknowledge that the unauthorized trading or other distribution of Game content is detrimental to Harmonix’s image and that of the Game, and Harmonix reserves the right to seek compensation from you to the fullest extent permissible by applicable law.

To the extent that you or we make audio edits to the licensed music content incorporated herein, neither you nor we shall obtain any ownership or interest in the audio portion of any such derivative works of such licensed music content, and as between you, us and the licensor of such music content, the licensor shall retain sole ownership in any audio portion of such derivative works. The foregoing shall not apply to Harmonix’s graphical or gameplay elements, or any non-audio elements added to any licensed music content (the ownership of which shall remain with Harmonix).

Notwithstanding the above, in the event that the Game and Harmonix support the creation of user generated content for the Game (“User Content”), the following terms shall apply. All User Content will be subject to the terms of Harmonix’s User Content Submission Policy, which may be accessed at www.harmonixmusic.com/user-content and be considered to be “User Content” as it is defined therein. You may also be subject to additional agreements with respect to User Content that an Operator may require. We may allow you to create User Content for the game, including, but not limited to, game levels, characters, environments, music, avatars, and weapons, and to offer such User Content to other users of the Game. You agree you will not submit or attempt to submit, and we have the right to reject, refuse to accept, remove or otherwise handle as we deem appropriate, any “Unauthorized Content” which is defined as any User Content that is or could be construed as violating any of the terms and conditions of this EULA, our User Content Submission Agreement, and/or any of the terms and conditions set forth in any Additional Agreement, including, without limitation, User Content (i) infringing on a third party’s copyright or other intellectual property rights; (ii) causing harm, harassing anyone or which may prevent, prohibit, inhibit, restrict or otherwise impair others from using or enjoying the Software or the Game; (iii) providing unauthorized access to the Software, Game or information of other users; (iv) that results in the modification, impairment, disruption, alteration or interference with the use, features, functions, operation or maintenance of the Software or the Game; or (v) that would otherwise violate any requirements, rules, terms or conditions, or laws that may be applicable to the Software or the Game. You are solely responsible and liable for all User Content that you submit or otherwise make available. You expressly agree to grant the rights set forth in Section 5 of the User Content Submission Policy with respect to any User Content you submit, and expressly agree to the provisions set forth in Section 6 of the User Content Submission Policy, including that you represent that you own the rights to the User Content you submit and the right to grant all of the authorizations, permissions, approvals, consents, rights and licenses as described in this EULA and the User Content Submission Agreement.

5. VIRTUAL CURRENCY AND DIGITAL CONTENT

Harmonix may offer, for purchase, virtual coins, points or other virtual currencies (each individually or collectively referred to in this EULA as “Virtual Currency”). You may purchase Virtual Currency from us or third parties for real money if you are at least 18 years old. By purchasing or otherwise acquiring Virtual Currency, you obtain a limited license to access and select from content that Harmonix expressly makes available as part of this Game (the “Digital Content”). Virtual Currency has no monetary value and does not constitute currency or property of any type. Virtual Currency may be redeemed for Digital Content only. Virtual Currency cannot be sold or transferred, and cannot be exchanged for cash or for any other goods and services, except for the Digital Content. Virtual Currency is non-refundable and our performance of services begins promptly once your purchase of Virtual Currency is complete. You are not entitled to a refund for any unused Virtual Currency. You agree that you will only obtain Virtual Money and Digital Content from us and not from any third party.

During the term of your Virtual Currency license, you have the right to redeem Virtual Currency for selected Digital Content. Harmonix does not guarantee that any particular item offered as part of this Game will be available at all times or at any given time. Harmonix does not guarantee that we will continue to offer particular items for any particular length of time. Harmonix reserves the right to change and update our inventory of Digital Content without notice to you. Once you have redeemed Virtual Currency for Digital Content, that content is not returnable, exchangeable, or refundable for Virtual Currency or for cash, or other goods or services.

When you acquire Digital Content, you receive a limited license to use Digital Content for your personal non-commercial use with any specified permitted services that Harmonix identifies from time to time. Harmonix reserves all right, title and interest in Digital Content and all associated copyrights, trademarks, and other intellectual property rights therein. This Digital Content license is limited to the intellectual property rights of Harmonix in the Digital Content and does not include any rights to other patents or intellectual property. You may not remove, alter, or obscure any identification, copyright, or other intellectual property notices in the Digital Content.

The term of your Virtual Currency and Digital Content license starts when you acquire Virtual Currency and/or Digital Content, and subject to this EULA, ends the earlier of (1) the second anniversary of the date of purchase or award (as the context requires and applicable to each individual purchase or award) and (2) the day that your access to this Game is cancelled, suspended or terminated as set forth in this EULA. If you have not used your Virtual Currency for twenty-four (24) months or more and your account has a Virtual Currency balance, your Virtual Currency may expire and your account may be cancelled for non-use.

6. RESPECT FOR PRIVACY AND CONSENT TO USE OF DATA

To facilitate the provision of any updates or upgrades or expansions to the Software, any dynamically served content, product support, product development and improvement and other services to you, including marketing, tailored communications and online play of the Game, you agree that Harmonix and third parties (including any Operators, if applicable, and those listed in Appendix A) which are providing Harmonix authorized services to you in connection with this Software, may use cookies, web beacons and other analytic technologies to collect, use, store and transmit analytics, metrics, behavior data, game play statistics, technical and related information that identifies your device, application software and peripheral hardware, including, but not limited to, MAC Address and/or unique device id or UDID, IP address, geo-location, device make and model, operating system, third party account authorization data, session data, browser identifiers, connection type, carrier information and purchase metrics. Harmonix and such third parties may use this information alone and in combination with information you provide to Harmonix directly (if any) to help Harmonix develop and improve its products and services, tailor and customize your experience and otherwise understand which Harmonix applications you are using. Data collected by THIRD Parties will be collected, used, stored, transferred and disclosed pursuant to their applicable privacy policy. See Appendix A for a non-exclusive list of THIRD PARTIES that may collect data via this Game. Appendix A may include analytics companies and ad networks and includes URL’s for those third parties’ privacy policies and opt outs (if applicable). If you are playing the Game through an Account with an Operator, you should also consult the applicable privacy policy of that Operator for any additional terms. For data collected by or transferred to Harmonix, Harmonix may collect, use, store, share and transmit this information to third parties in a form that does not personally identify you in accordance with Harmonix’s Privacy Policy located at http://www.harmonixmusic.com/privacy. Notwithstanding the above, if you purchase any Virtual Currency via the Game, we do not collect or store any payment information from you.

You may allow the Game to interact with a third party social network or platform. If you use our Game and you agree to allow it to interact with a social network or platform, you are giving us permission to use your personal information which that social network or platform shares with us that will allow us to identify you. You are also granting us permission to help your contacts on that network find you so that you can play socially. This is intended to make the Game more enjoyable for you and others that use the Game on the social network or platform. These social networks or platforms are created and maintained by a third party which is not a part of, or controlled by Harmonix. Any information that we may collect may be subject to the policy of any social network that you may agree to link the Game to. You should ensure that you read the social network’s terms of service and privacy policies to understand how they treat your data and what data they might share with the Game. If you do not agree to these practices you should make changes to what data a third party social network shares with us or not allow the Game to interact with your social network(s).

Personal information collected from or submitted by you through a Game may be transferred to and stored on servers and equipment located in a destination outside your country of residence. The servers and equipment on which your data is stored and processed may be owned and operated by third parties with whom Harmonix has contracted to receive, store and process your personal information. In addition, Harmonix and those third parties that it has designated, may further transfer, store and process your personal information on servers and equipment located in other countries. You should be aware that the data protection laws of other countries may not be the same as the data protection laws of your country of residence. By submitting your personal information through the Game, you agree to the transfer, storage and processing of your personal information as described in this Section.

This Game may include third party dynamic behavioral in-game advertising technology which enables tailored advertising to be temporarily uploaded into the Game on your device and replaced while you are online. When you use this Game, we or third parties operating the advertisement serving technology may use demographic or other information collected directly from you and/or from third parties such as age and gender as well as information logged and/or collected from your device using cookies, web beacons and other technologies to ensure that appropriate advertising is presented within the Game and to calculate the number of unique and repeat views of advertising. This technology also controls the number of times you see a given ad, delivers ads that relate to your interests and measures the effectiveness of ad campaigns. Logged and/or collected data may include (but is not limited to) IP address, unique device I.D. and/or MAC Address, browser identifiers, session information, browser cookies, device make and model, carrier provider, carrier user ID, geo-location information, sites visited, clicks on advertisements, advertisement(s) served, in game location, length of time an advertisement was visible, size of the advertisement, advertisement response (if any), game play information, general online and Game-specific usage data and metrics as well as angle of view. THE foregoing data may be collected, used, stored and disclosed pursuant to HMX’s Privacy Policy located at http://www.harmonixmusic.com/privacy (including for purposes of determining ad conversion rates), the privacy policy of the company providing the ad serving technology and may be disclosed to other third parties in a form that does not personally identify you. See Appendix A for a non-exclusive list of third parties that may collect data about your online behavior via this Game. Appendix A may include analytics companies and ad networks and includes URL’s for those third parties’ privacy policies and opt outs (if applicable). You are responsible for reviewing the privacy policies of the third parties that may collect information via this Game. If you do not wish to review those privacy policies or if you are concerned about the information they may collect, do not install or use this Game. Harmonix does not guarantee that all third parties that may collect information about you via this Gmae have an opt out for behavioral tracking. In addition, Harmonix opting out of behavioral tracking from some or all of the entities listed in Appendix A will not opt you out of advertising entirely. Rather, if you opt out, you may continue to receive the same amount of ads, but they may be less relevant because they will not be based on your interests. This ad serving technology is integrated into the Game; if you do not want to use this technology, do not install or use this Game.

Your use of online features available via the Game, if any, is governed by Harmonix’s Terms of Use, available at http://www.harmonixmusic.com/terms. By installing and using this Game you acknowledge and agree that you will abide by Harmonix’s Terms of Use and otherwise agree not to create a false identity for purposes of misleading others; defame, abuse, harass, threaten, spam, violate the rights of others and/or otherwise interfere with others’ use and enjoyment of the Game; publish, transfer or distribute any inappropriate, indecent, obscene, foul or unlawful conduct; transfer, stream or otherwise make available material that contains viruses, Trojan horses, worms, time bombs, cancel bots, corrupted files or any other similar material that may damage the computer or other property of another user; or use any portion of the Game to harvest or collect information about others, including but not limited to email address. Harmonix reserves the right to monitor communications in the Game and disclose any information Harmonix deems necessary to (i) ensure your compliance with this EULA; (ii) satisfy any applicable law, regulation or legal process; or (iii) protect the rights, property and interests of Harmonix, its employees or the public. Harmonix also reserves the right to edit, refuse to transfer and/or to remove any information or materials, in whole or in part, in Harmonix’s sole discretion. You further acknowledge that Harmonix has a legitimate concern with monitoring your use of the Software in playing the Game. You acknowledge that you have no guarantee of privacy with regard to your communications and information within the Game or in relation to any ancillary services access through the use of the Software (including but not limited to chat rooms or similar functions).

Some of our Games allow you to play against or challenge an opponent. You may be able to choose to play against or challenge (A) an opponent whom we or the Game select for you, or (B) one of your contacts on a platform or social network which you have allowed the Game to interact with. Some of our Games may also allow you to search for your friends in order to find them to play against or challenge. We may also display the display names of your past opponents or friends so that you can easily find them to play again. Where Harmonix or the Game selects an opponent for you, we may either select at random or use such criteria as we see fit to select your opponent. By using a Game that allows you to play against an opponent, you agree to your display name, scores and other related details being displayed to other users.

Harmonix may also collect, use, store, transmit and publicly display statistical data regarding game play (including scores, rankings and achievements), or identify content that is created and shared by you with other players. Data that personally identifies you is collected, used, stored and transmitted in accordance with our Privacy Policy located at http://www.harmonixmusic.com/privacy. Harmonix reserves the right to monitor and store information that you send or receive using the Software, including maintaining a copy of that information after your cessation of the use of the Software or play of the Game. This information is collected in order to enable Harmonix to better know users and serve them, in particular as regards to the provision of services associated with the Game. Information collected about you through your use of the Software, may include, but is not limited to name, age, contact details including email address, system configuration, Game play time, micro-transactions conducted, and other data that may be collected from time to time.

7. TERMINATION AND AVAILABILITY

Harmonix has the right to withdraw or modify the Game (in whole or in part) and terminate this EULA at any time without liability to you for any reason, including, without limitation, technical reasons, to allow us to improve user experience, where we have legal reasons for doing so, because it no longer makes business sense for us to provide the Game or because we have altered the services we provide. There may also be times when the Game is not available for technical or maintenance related reasons, whether on a scheduled or unscheduled basis.

This EULA is effective until terminated. Harmonix may also terminate this EULA immediately without prior notice if you fail to comply or otherwise violate the terms of this EULA, infringe the intellectual property rights of any third party, or manifestly endanger public order or good moral standards as determined by us in our sole discretion.

You may terminate this EULA at any time by informing Harmonix in writing or by such means as may be implemented for such purposes by Harmonix.

Promptly upon termination, you must cease all use of the Software and destroy all copies of the Software in your possession or control. You acknowledge and agree that the termination of this EULA or permanent deletion of the Software may render your Account and any in-game attributes or Content unusable, for which you will not hold Harmonix in any way responsible.

Termination will not limit any of Harmonix’s other rights or remedies at law or in equity. Except for the rights granted to you in Sections 3 and 5 above, this EULA shall survive termination or expiration of this EULA for any reason.

8. WARRANTIES

This section is to be read subject to Sections 9 and 10 below. You acknowledge that, owing to the complexity of computer technology, as well as the nature of online games themselves and their play over a global communications network outside Harmonix’s control, Harmonix cannot and does not guarantee that the Software, the Game and any updates, upgrades or expansions Software will run permanently or uninterrupted on your device. Harmonix is not liable for delays or difficulties, especially of a technical nature, that are due to circumstances beyond its control. Online, network, connected and/or Internet play, functionality, features and support for the Game and the Software (“Online Services”) are provided solely on an “as is” and “as available” basis and may be modified or discontinued without notice at any time and at the sole discretion of Harmonix, without any legal, financial or other liability whatsoever. No warranty, either express or implied, is made regarding the Online Services and under no circumstances shall any refunds, rebates or other sums be owed and/or returned in connection with the modification or discontinuation of the Online Services.

9. DISCLAIMER OF WARRANTIES

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SOFTWARE, THE GAME AND ALL OTHER SERVICES PROVIDED BY HARMONIX ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” IN ALL RESPECTS, WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. HARMONIX AND HARMONIX’S LICENSORS DO NOT MAKE, AND HEREBY DISCLAIM, AND YOU HEREBY IRREVOCABLY WAIVE, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND ENDORSEMENTS OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH REGARD TO INFORMATION ACCESSED FROM OR VIA THE GAME (INCLUDING WITHOUT LIMITATION, ALL CONTENT AND MATERIALS, FUNCTIONS AND SERVICES PROVIDED ON OR THROUGH THE GAME, ALL OF WHICH ARE PROVIDED WITHOUT WARRANTY OF ANY KIND), INCLUDING BUT NOT LIMITED TO ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS, OR CONTENT OF INFORMATION, UNINTERRUPTED ACCESS, TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. HARMONIX DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE OR THE GAME; THAT THE SOFTWARE OR THE GAME WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE SOFTWARE OR THE GAME WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, OR THAT THE SOFTWARE WILL BE COMPATIBLE WITH THIRD PARTY SOFTWARE OR THAT ANY ERRORS IN THE SOFTWARE OR THE GAME WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE PROVIDED BY HARMONIX, AN OPERATOR OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

Harmonix makes no warranties of any kind regarding any materials and content not owned by Harmonix, including any products or services to which you may be directed, linked or otherwise connected from the Game, and you understand and agree that we are not responsible or liable for any such content, information, products or services originating from or provided by a third party, including their availability and functionality. We do not endorse, warrant or guarantee any products or services offered or provided by or on behalf of third parties on or through the Game. If the Game has been authorized by us for distribution through a third party service through which you have downloaded and/or are accessing the Game, you understand and agree that: (a) in addition to this EULA between you and us, you are responsible for complying with such service provider’s terms and conditions, which are between you and such service provider, and (b) neither Harmonix nor such service provider is responsible or liable to you for the other’s products and services, including with respect to any product liability, infringement, support, maintenance, functionality or availability of the other’s products and services.

10. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT WILL HARMONIX, ITS SUBSIDIARIES OR AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, BUSINESS PARTNERS, OPERATORS OR CONTENT OR SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM OR IN ANY WAY RELATED TO THE USE OF, OR THE INABILITY TO USE, OR THE PERFORMANCE OF, THE GAME OR THE MATERIALS AND CONTENT OR FUNCTIONALITY OR FEATURES ON OR ACCESSED THROUGH THE GAME, THIS EULA, AS WELL AS ANY THIRD PARTY PRODUCTS, SERVICES, MATERIALS OR CONTENT THAT MAY BE ACCESSED ON OR THROUGH THE GAME, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES OR ANY OTHER TYPE OF DAMAGE, TANGIBLE OR INTANGIBLE IN NATURE, EVEN IF HARMONIX OR SUCH OTHER PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE GAME OR THIS EULA IS TO CEASE USING THE GAME AND CANCEL ANY RELATED ACCOUNTS. UNDER NO CIRCUMSTANCES WILL THE TOTAL COMBINED LIABILITY TO YOU OF HARMONIX, ITS SUBSIDIARIES, AFFILIATES AND ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, BUSINESS PARTNERS, OPERATORS OR CONTENT OR SERVICE PROVIDERS, ARISING OUT OF OR IN CONNECTION WITH THE GAME OR THIS EULA, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO HARMONIX IN THE PRECEDING TWELVE (12) MONTHS, IF ANY, TO ACCESS OR USE THE GAME. SOME JURISDICTIONS DO NOT ALLOW THIS LIMITATION OR EXCLUSION OF LIABILITY SO SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU. EXCEPT AS REQUIRED BY APPLICABLE LAW, HARMONIX SHALL NOT BE LIABLE TO YOU FOR ANY ACTS OR OMISSIONS BY AN OPERATOR.

11. INDEMNITY AND THIRD PARTY BENEFICIARIES

YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMONIX, TOGETHER WITH ITS SUBSIDIARIES, AFFILIATES AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, BUSINESS PARTNERS, OPEARTORS AND CONTENT AND SERVICE PROVIDERS (“HARMONIX THIRD PARTY BENEFICIARIES”), HARMLESS FROM ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, IN ANY WAY ARISING FROM, RELATED TO OR IN CONNECTION WITH YOUR USE OF THE GAME, YOUR VIOLATION OF THE EULA OR THE ADDITIONAL AGREEMENTS, OR THE POSTING OR TRANSMISSION OF ANY MATERIALS ON OR THROUGH THE GAME BY YOU, INCLUDING, BUT NOT LIMITED TO, ANY THIRD-PARTY CLAIM THAT ANY INFORMATION OR MATERIALS YOU PROVIDE INFRINGES ANY THIRD PARTY PROPRIETARY RIGHT. YOU AGREE THAT THE HARMONIX THIRD PARTY BENEFICIARIES ARE EXPRESS THIRD PARTY BENEFICIARIES OF THIS EULA AND HAVE THE RIGHT (AND ARE DEEMED TO HAVE ACCEPTED THE RIGHT) TO ENFORCE THIS EULA AGAINST YOU AS THIRD PARTY BENEFICIARIES.

12. INJUNCTIVE RELIEF

You agree that a breach of this EULA may cause irreparable injury to Harmonix for which monetary damages would not be an adequate remedy and Harmonix shall in such event be entitled to seek equitable relief in addition to any other remedies it may have hereunder or at law.

13. GOVERNING LAW

The laws of the Commonwealth of Massachusetts, excluding its conflicts-of-law rules, govern this EULA and/or your use of the Game and Software; and you expressly agree that exclusive jurisdiction for any claim or action arising out of or relating to this EULA and/or your use of the Software shall be the federal or state courts that cover Boston, Massachusetts, and you expressly consent to the exercise of personal jurisdiction of such courts. Please note that your conduct may also be subject to other local, state, national, and international laws.

Notice to California Residents: Pursuant to Cal. Civil Code § 1789.3, please note that (a) Harmonix is located at 40 Broad Street, Floor 7, Boston, MA 02109, (b) fees and charges for Harmonix services vary depending on the services selected by you, and (c) if you wish to contact us in connection with a complaint regarding the Game or desire further information on use of the Game, you may correspond by mail or email [email protected]. For complaints, you may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 “R” Street, Sacramento, CA 95814 or by telephone at (916) 445-1254 or (800) 952-5210.

14. EXPORT AND U.S. GOVERNMENT RESTRICTED RIGHTS

You agree to abide by U.S. and other applicable export control laws and agree not to transfer the Software to a foreign national or national destination, which is prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You certify that you are not a person with whom Harmonix is prohibited from transacting business under applicable law.

The Software has been developed entirely at private expense and are provided as "Commercial Computer Software" or "restricted computer software." Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clauses in DFARS 252.227-7013 or as set forth in subparagraph (c)(1) and (2) of the Commercial Computer Software Restricted Rights clauses at FAR 52.227-19, as applicable. The Contractor/Manufacturer is Harmonix Music Systems, Inc. 40 Broad St., Floor 7, Boston, Massachusetts 02109.

15. ENTIRE AGREEMENT

Except as specifically set forth in this EULA, this EULA constitutes the entire agreement between you and Harmonix with respect to the Software and supersedes all prior or contemporaneous understandings, either express or implicit, regarding such subject matter, provided that this EULA shall coexist with, and shall not supersede, any Additional Agreements. To the extent the terms of this EULA conflict with the Additional Agreements, the conflicting terms in the Additional Agreements will govern. No amendment to or modification of this EULA will be binding unless made in writing and signed by Harmonix. None of Harmonix’s, or any of Harmonix’s Operators, distributors, agents, or any of their respective employees are authorized to make modifications or additions to this EULA.

IN PARTICULAR, NOTHING IN THIS EULA MAY BE SUPERSEDED OR INVALIDATED BY ANY TERMS OF SERVICE OFFERED TO YOU BY AN OPERATOR FOR THE PURPOSES OF USING THE SOFTWARE TO PLAY THE GAME.

16. SEVERABILITY AND SURVIVAL

If any provision of this EULA is illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this EULA shall continue in full force and effect.

17. NO WAIVER

No failure to exercise, nor a delay in exercising, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. In the event of a conflict between this EULA and any applicable purchase or other terms, the terms of this EULA shall govern the relationship between you and Harmonix.

Harmonix Music Systems, Inc. 40 Broad St., Floor 7, Boston, Massachusetts 02109.

APPENDIX A

ANALYTICS

Service Provider Information

DeltaDNA http://www.deltadna.com/privacy/