These Services are offered and made available only to users 13 years of age or older and certain features on these Services (including, but not limited to, user registration and newsletter signups) may be subject to heightened age and/or other eligibility requirements. If you are not yet 13 years of age or older or the required greater age for certain features, and/or do not meet any other eligibility requirements, please discontinue using the Services immediately or, if for any reason, you do not agree with all of the terms and conditions contained in this Agreement, please discontinue using the Services immediately because by using or attempting to use the Services, you certify that you are at least 13 years of age or other required greater age for certain features and meet any other eligibility and residency requirements of the Services. If you are between the ages of 13 and 17, you represent that your legal guardian has reviewed and agreed to this Agreement and takes full responsibility for your compliance with them.
Harmonix does not guarantee that any Services will be available at any given time or that it will continue to offer any Services for any particular length of time. Not all features, products or Services offered are available to all persons who try to register in all locations. Harmonix reserves the right to limit, in its sole discretion, the provision and quantity of any Service to any person in any location. Any Service is void where such Service is prohibited. Harmonix reserves the right to change and update the Services without notice to you, including the right to refuse or limit your request to acquire Services. You are solely responsible for complying with applicable laws with respect to the Services you use. This is the entire and exclusive Agreement between you and us regarding use of the Services and it cannot be modified, except as specifically described below in Section 2.
Registration; Your Account
Ownership of Intellectual Property
The contents of these Services, including all Service software and computer code, technology, design, text, images, photographs, illustrations, audio and video material, artwork, graphic material, databases, proprietary information and all copyrightable or otherwise legally protectable elements of the Services, including, without limitation, the selection, sequence and ‘look and feel’ and arrangement of items, and all trademarks, service marks and trade names (individually and/or collectively, “Material”), are the property of Harmonix, and entities under its control, controlling Harmonix or under common control with Harmonix (its “Affiliates”), and any of their successors and assigns, and any of their respective licensors, Advertisers (as defined below), suppliers, and operational service providers and are legally protected, without limitation, under U.S. Federal and State, as well as applicable foreign laws, regulations and treaties. Product names are trademarks or registered trademarks of their respective owners. Unless the context clearly requires otherwise or we explicitly say so in writing, the term “Service” includes “Material” as well. You may only use the Services for your non-commercial, non-exclusive, non-assignable, non-transferable and limited personal use and for no other purposes. You may not alter, delete or conceal any copyright or other notices contained on the Services, including notices on any Material you download, transmit, display, print or reproduce from the Services. You shall not, nor will you allow any third party (whether or not for your benefit) to reproduce, modify, create derivative works from, display, perform, publish, republish, edit, distribute, disseminate, broadcast, photograph or circulate to any third party (including, without limitation, on or via a third party website), or otherwise use, any Services without the express prior written consent of Harmonix or its owner if Harmonix is not the owner. Any unauthorized or prohibited use of any Services may subject you to civil liability, criminal prosecution, or both, under applicable federal, state and local laws. On notice, we will act expeditiously to remove content on the Services that infringes the copyright rights of others and will disable the access to the Services and its services to anyone who uses them repeatedly to infringe the intellectual property rights of others. Harmonix reserves title to the Services and all rights to any Services not specifically granted under this Agreement. The Services are licensed, not sold, to you.
We take protection of copyrights, both our own and others, very seriously. We therefore employ multiple measures to prevent copyright infringement over these Services and to promptly end any infringement that might occur. If you believe that the Services contain elements that infringe your copyrights in your work, please follow the procedures set forth in our Copyright Compliance Policy.
From time to time, you may communicate with, receive communications from, be re-directed to, interact with, or participate in or use the services or obtain goods and services of or from, third parties (collectively, the “Advertisers”) such as our advertisers, sponsors, or promotional partners as a result of your use of the Services. All such communication, interaction and participation is strictly and solely between you and such Advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertiser or any goods or services you may purchase or obtain from any Advertiser).
Rules of Conduct
Your use of the Services is subject to all applicable local, state, national laws and regulations and, in some cases, international treaties. You are solely responsible for all activities, acts and omissions that occur in, from, through or under your user name or password. You shall not use, allow, enable or encourage others to use the Services, or knowingly condone use of these Services by others, in any manner that is, attempts to, or is likely to:
Unless otherwise specified, Harmonix has no obligation to monitor or record any online activity on the Services. Harmonix reserves the right to, but is not obligated to, monitor communications within, through or across the Services, and access and/or record online activity on the Services. You give Harmonix your express consent to access and record your activities on the Services.
You further agree not to access, create, or provide any other means through which the Services, including, but not limited to, any game(s), may be used or accessed by others, such as through server emulators. You may not participate, take part in, initiate, or engage in actions that impose an unreasonable or disproportionate load on the infrastructure hosting the Services. You agree not to use any hardware or software or any other method of support that is not authorized by Harmonix or that may in any way influence or advantage your playing abilities, or influence or advantage your use of the Services. Third party tools, the use of ‘bots’, “speed hacks”, “deep-link”, “page-scrape”, “robot”, “spider”, algorithm or other programs that copy or monitor any part of the Services, software that transmits, manipulates, or distributes (including, but are limited to, “mirroring”) the data stream or any aspect of the Services to another computer, server websites or other publication or distribution media, or software that permits you to use Services without human input are examples of methods not authorized by Harmonix. Harmonix in its sole discretion may implement various forms of filtering, blocking, or monitoring of IP addresses, MAC addresses or proxies used to use, play or access the Services, including without limitation blocking or filtering measures that restrict your ability to use, play or access the Services.
Wireless Marketing Services and Promotional Opportunities
If you register for Harmonix’s wireless marketing services, then you acknowledge, understand and agree that you will be charged by your wireless carrier for all messages sent to you from Harmonix. Standard messaging rates will apply, unless noted otherwise. Under no circumstances will Harmonix, or any Affiliates be responsible for any wireless email or text messaging charges incurred by you or by a person that has access to your wireless device, telephone number, or email address.
You understand, acknowledge and agree that Harmonix may, at its sole discretion and without liability to you, terminate its offer of any specific wireless marketing service or all wireless marketing services at any time without advance notice. Harmonix may provide notice of terminations or changes in services on these Services.
Your comments, suggestions and information are important to us. Portions of these Services may provide you and other users an opportunity to participate in forum services, blogs, web communities and other message and communication facilities (“Communities”) and may provide you with the opportunity, through such Communities or otherwise, to submit, post, display, transmit and/or exchange (a) information, ideas, opinions, messages or other information (“Post” or “Postings”) and (b) User Content (as defined in the User Content Submission Agreement), your submission of which is also governed by the terms and conditions therein, and considered a Posting for purposes of this Agreement. You understand, acknowledge and agree that such Postings are the sole responsibility of the person from which such Postings originated. This means that you are solely and entirely responsible for the consequences of all Postings that you upload, post, email, transmit or otherwise make available via the Services. Postings do not reflect the views of the Services, Harmonix, or our Affiliates. We reserve the right to monitor, edit or screen any Postings. If we determine, in our sole discretion and judgment, that any Posting does or may violate any of the terms of this Agreement, we reserve the right, at any time and without limiting any and all other rights we may have under this Agreement, at law or in equity, to: (a) refuse to allow you to Post; (b) remove and delete Postings; (c) revoke your right to use the Services; and/or (d) use any technological, legal, operational or other means available to us to enforce the provisions of this Agreement, including, without limitation, blocking specific IP addresses or deactivating your registration on the Services.
If a Posting originates from you or your account, you hereby: (a) grant the Services, Harmonix, and its Affiliates a worldwide, royalty-free, perpetual, irrevocable, non-exclusive license to use, distribute, reproduce, modify, adapt, create derivative works from, and publicly perform or display such Posting in whole or in part, in perpetuity in or on any and all media, now known or hereafter devised, and alone or together with or as part of other information, content and/or material of any kind or nature; (b) represent and warrant that (i) you have the legal right to upload the Posting to Harmonix and the Posting is original to you and/or fully cleared for use as contemplated herein, (ii) the Posting does and will not, in any way, violate or breach any of the terms of this Agreement, (iii) the Posting does not contain libelous, tortuous, or otherwise unlawful information, infringe or violate any copyright or other right, or contain any matter the publication or sale of which will violate any federal or state statute or regulation, (iv) the Posting is not obscene or in any other manner unlawful, (v) the Posting shall not be injurious to the health of any user, and (vi) we shall not be required to pay or incur any sums to any person or entity as a result of our use or exploitation of the Posting; and (c) if your Posting incorporates the name, logo, brand, service or trademark, voice, likeness or image of any person, firm or enterprise, you specifically represent and warrant that (i) you have the right to grant the Services, Harmonix, and its Affiliates the right to use all such Postings as described above, (ii) the Posting was produced in compliance with all applicable laws and regulations and (iii) for any User Content Posting that contains original videos, you will comply with any applicable identification verification and record-keeping requirements, and you will secure and maintain the requisite personal information and identification documentation for all individuals who appear in any such original videos, as may be required by law and/or otherwise requested or required by us in connection with our corporate compliance policies and practices, which includes (y) the individual’s full legal name, current address, date of birth and (z) a legible photocopy of a valid government-issued identification document (e.g., a U.S. passport, state driver’s license or valid photo ID card) to verify the individual’s identity. With the submission of each such Posting, Harmonix, and its Affiliates reserve the right to request that you, and upon such request you must, deliver a full and complete set of such identification verification records to us, as well as a legible photocopy of your valid driver’s license, passport or other acceptable government-issued photo identification for our verification and record-keeping purposes. In addition, you specifically acknowledge and agree to abide by our policies regarding governmental certification procedures relating to the foregoing identification verification and record-keeping procedures and, if applicable, you will promptly comply with any specific requests or directions we give you in connection with Postings you submit that may be subject to these requirements.
You understand, acknowledge and agree that we have the right to delete, re-format and/or change your Postings in any manner that we may determine (although you will not be responsible for any such changes made). The amount of storage space on the Services per user is limited. Some Postings may not be processed due to space constraints or outbound message limitations. You understand, acknowledge and agree that we assume no responsibility for deletion of Postings or any failure to store, receive or deliver Postings in a timely manner or any other matter relating to Postings. Posting is for noncommercial purposes only and you may not Post in any manner which does or is intended to promote or generate revenue for any business enterprise or commercial activity.
If you believe that any content on the Services (including, without limitation, Postings) violates any of the terms of this Agreement (except for any notices covered by the Copyright Compliance Policy), please email us at [email protected] (please refer to our Copyright Compliance Policy for any notices covered by the Copyright Compliance Policy). We cannot guarantee that we will respond to your message and we reserve the right to take or refrain from taking any or all steps available to us once we receive any such message.
Contests, Sweepstakes, Auctions and Promotions
From time to time, Harmonix’s, the Affiliates’ or the Services’ operational service providers, suppliers, and Advertisers, may conduct promotions on or through the Services, including, without limitation, auctions, contests and sweepstakes (“Promotions”). Each Promotion will have Additional Terms and/or Rules which will be posted or otherwise made available to you and, for purposes of each Promotion, will be deemed incorporated into and form a part of this Agreement.
Certain Products and Services
RSS Feeds and Podcasts
The Services may provide RSS Feeds (“RSS Feeds”) consisting of selected text, audio, video, and photographic content (“Content”) from the Services that is provided over the Internet using an XML feed. Certain RSS Feeds may be podcasts (“Podcasts”) which may include as part of the Content an associated audio, video and/or photographic file where the audio and/or video file may be downloaded and played from a user’s Device or transferred to a portable listening device. Certain software and hardware is required for users to download and view and/or play Content through RSS Feeds and you are solely responsible for obtaining such hardware or software.
Content is protected by U.S. Federal and State laws, and applicable foreign laws, regulations and treaties, and all rights in and to the Content are reserved to Harmonix or the content provider. Content is available for personal, noncommercial use only and you may download, copy and/or transfer to a Device or through a Device to another Device the RSS Feeds and associated Content for your personal, non-commercial use only. You shall not, nor will you allow any third party to, reproduce, modify, create derivative works of, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party, or otherwise use any Content except as expressly authorized in this Section 10.
By your access to and use of RSS Feeds, you understand, acknowledge and agree that the Services, Harmonix, and its Affiliates do not warrant that its RSS Feeds will operate on all user equipment. Please see the “Disclaimer and Limitations of Liability” section below for further details.
If Harmonix offers products and services through applications available on your wireless or other mobile Device (such as a mobile phone) (the “Mobile Application Services”), these Mobile Application Services are governed by the Additional Terms governing the applicable Mobile Application Service. We do not charge for these Mobile Application Services unless otherwise provided in the applicable Additional Terms. However, your wireless carrier’s standard messaging rates and other messaging, data and other rates and charges will apply to certain Mobile Application Services. You should check with your carrier to find out what plans your carrier offers and how much the plans cost. In addition, the use or availability of certain Mobile Application Services may be prohibited or restricted by your wireless carrier, and not all Mobile Application Services may work with all wireless carriers or Devices. Therefore, you should check with your wireless carrier to find out if the Mobile Application Services are available for your wireless Device, and what restrictions, if any, may be applicable to your use of such Mobile Application Services. If you change or deactivate your wireless telephone number, you agree to promptly update your Mobile Application Services account information to ensure that your messages are not sent to the person that subsequently acquires your old number.
Under no circumstances will Harmonix, or any of our Affiliates be responsible for any wireless email, text messaging or other charges incurred by a user (or any person that has access to a user’s wireless device, telephone number, or email address) using any Mobile Application Services.
Hyperlinks to Third Party Services
In our sole discretion, Harmonix may contact you to review, evaluate and/or playtest one or more Services, aspects of Services or online features prior to commercial release for the purpose of identifying program errors and obtaining feedback. You will be asked to provide Harmonix with feedback regarding your evaluation of such Services. Your participation in such testing is subject to this Agreement and other applicable Additional Terms, such as a testing agreement and non-disclosure agreement. By accepting our invitation and testing a Service, you agree that (a) playing an unreleased Service is at your own risk and you understand that the Service may include known or unknown bugs, (b) any value or status indicators you achieve through such testing may be erased at any time, including upon commercial release, and (c) Harmonix has no obligation to make the Service available to you or fix errors or bugs identified by you.
Deactivation/Termination of Your Registration or Use
Disclaimer and Limitations of Liability
THESE SERVICES, AND ALL MATERIALS, PRODUCTS AND POSTINGS ARE MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY GUARANTY OR ASSURANCE THE SERVICES WILL BE AVAILABLE FOR USE, ACCURATE UNINTERRUPTED, FREE OF VIRUSES OR THAT ALL PRODUCTS, FEATURES, FUNCTIONS OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. Without limiting the foregoing, we are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the Services. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the Services, including, without limitation, Postings and Materials associated with your use of the Services. You agree that Harmonix will not be liable for any interruption of Services, delay or failure to perform, any loss of Materials, and/or account data resulting from any causes whatsoever.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THESE SERVICES, HARMONIX, ANY OF ITS AFFILIATES, OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATIONAL SERVICE PROVIDERS, ADVERTISERS, OR SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SERVICES OR FROM THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES.
Notwithstanding any claim that a sole or exclusive remedy which is provided in this Agreement may or does fail of its essential purpose, you specifically acknowledge and agree that your sole and exclusive remedy for any loss or damage shall be to have Harmonix, upon written notice from you to us, attempt to repair, correct or replace any deficient goods or services under this Agreement and, if repair, correction or replacement is not reasonably commercially practicable for the Harmonix, to refund any monies actually paid by you for the Products involved and to terminate and discontinue your use of the Services. You further understand and acknowledge the capacity of the Services, in the aggregate and for each user, is limited. Consequently some messages and transmissions may not be processed in a timely fashion or at all, and some features or functions may be restricted or delayed or become completely inoperable. As a result, you acknowledge and agree that Harmonix assumes no liability, responsibility or obligation to transmit, process, store, receive or deliver transactions or Postings or for any failure or delay associated with any Postings and you are hereby expressly advised not to rely upon the timeliness or performance of the Services for any transactions or Postings. Some jurisdictions do not allow for the exclusion of certain warranties or certain limitations on damages and remedies; accordingly some of the exclusions and limitations described in this Agreement may not apply to you.
You agree to indemnify, defend and hold the Services, Harmonix and any of its Affiliates, or any of their successors and assigns, and any of their respective officers, directors, employees, agents, representatives, licensors, Advertisers, suppliers, and operational service providers harmless from and against any and all claims, actions, losses, expenses, damages and costs (including reasonable attorneys’ fees), resulting from your use of the Services, any breach or violation of this Agreement by you, or your Postings or other contributions.
Harmonix reserves the right to assume, at its sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with Harmonix in the defense of any such claim, action, settlement or compromise negotiations, as requested by Harmonix.
We make no representation that information on this website is appropriate or available for use outside the United States. Those who choose to access the Services from outside the United States do so on their own initiative and at their own risk and are responsible for compliance with applicable local laws.
Law That Applies to this Agreement; Miscellaneous Terms
This Agreement and your use of the Services are governed by, construed and enforced in accordance with the internal substantive laws of the State of New York (notwithstanding the State’s conflict of laws provisions) applicable to contracts made, executed and wholly performed in New York, and, for the purposes of any and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in the State and County of New York and agree you will not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise. To the extent it may be applicable, you agree to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act. IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, YOUR USE OF THE SERVICES OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.