Terms Of Use Agreement

Last modified: April 22, 2014

PLEASE READ THESE TERMS OF USE CAREFULLY BECAUSE THEY DESCRIBE YOUR RIGHTS AND RESPONSIBILITIES.

This is the official Terms of Use Agreement (“Agreement” or “Terms of Use”) for RockBand.com, TheBeatlesRockBand.com, DanceCentral.com, GreenDayRockBand.com, vidrhythm.com, RecordRun.com, ChromaGame.com, PlayChroma.com, HarmonixMusic.com (the “Websites”) and any software, games, applications, content, activities and services (“Applications”) made available by Harmonix Music Systems, Inc. (“Harmonix,” “we,” “us,” or “our”), including, but not limited to, through digital distribution platforms, social networking websites or any mobile versions thereof.  The Websites and the Applications are referred to herein as the “Services” and the Services are provided by Harmonix. These Terms of Use are a binding agreement between you (“you” or “your”) and Harmonix.  By using the Services, you indicate your unconditional acceptance of the following Terms of Use and any other applicable Additional Terms (as defined below).  This Agreement applies whether you are accessing the Services via a personal computer, a mobile device or any other technology or devices now known or hereafter developed or discovered (each, a “Device”). This Agreement governs only the content, features, and activities related to these Services, unless specifically stated. 

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.  

These terms and conditions regarding your use of the Services constitute a legally binding agreement between you and Harmonix. In this Agreement, the term “Service” includes all websites and web pages within the Services as well as any equivalent, mirror, replacement, substitute or backup websites and web pages that are associated with the Services. By using these Services, you understand, acknowledge and agree that you will abide by the terms of this Agreement and any additional terms that govern certain products and services, which will be presented by Harmonix in conjunction with those products and services (“Additional Terms”), including, but not limited to, Harmonix’s Privacy Policy, testing agreements, non-disclosure agreements, end user license agreements accompanying a Harmonix game, Rules (as defined below), and the User Content Submission Agreement which governs your submission of User Content (as such term is defined therein) for the Services (except for submissions to creators.rockband.com and rockband.com/RBN (collectively, “RBN Pages”)). Submissions to the RBN Pages shall be governed by the Program Terms. The Services may also provide rules of participation (“Rules”) for certain activities and services including, but not limited to, contests and sweepstakes, award programs, membership clubs, email, and dating services. The Services’ Additional Terms and the Privacy Policy and the Rules are hereby incorporated in this Agreement by reference. To the extent that there is a conflict between this Agreement and Additional Terms for the activity in which you choose to participate, the Additional Terms shall govern. This Agreement will remain in full force and effect as long as you are a user of the Services and in the event of termination of any membership, service or feature, you will still be bound by your obligations under this Agreement, the Privacy Policy, and any Additional Terms or Rules, including any indemnifications, warranties and limitations of liability. Additionally, if you access the Services through a digital distribution platform, social networking website or a mobile version thereof, you shall comply with such platform and/or website’s terms of service/use as well as this Agreement.

Users have a personal, revocable, non-transferable, non-exclusive right to access and use the Services and Materials (as defined below) subject to these Terms of Use and any applicable Additional Terms.  The words “use” or “using” in this Agreement means any time an individual (a “user”), directly or indirectly, with or without the aid of a machine or device, does or attempts to access, interact with use, display, view, print or copy from the Services, transmit, receive or exchange data or communicate with the Services, or in any way utilizes, benefits, takes advantage of or interacts with any function, service or feature of the Services, for any purpose whatsoever. This Agreement does not cover your rights or responsibilities with respect to third party content or Services or any links that may direct your browser or your connection to third party Services or pages. 

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. 

  1. Registration; Your Account

    We may require each user to have a unique user name and password combination in order to access and use certain features or functions of the Services and may also, from time to time, provide users with additional codes or passwords necessary to access and use certain features or functions of the Services. Please read our Privacy Policy, which describes the personally identifiable information (“Personal Information”) we collect, use, disclose, manage and store. As part of the registration process for a feature or function, you may choose a user name and password (or we may assign an initial password which we will give you the option to change). You must provide truthful and accurate information, and update such information to keep it true, accurate, current and complete. You may not select the name of another person, any third party’s trademark, copyright or other intellectual property infringement, any name that could mislead others to believe you to be an employee or agent of Harmonix, or any name that Harmonix deems in it is sole discretion to be vulgar, offensive, or otherwise violates this Agreement. Your user name and password are personal to you and you may not allow any others to use your user name or password under any circumstances. We are not liable for any harm caused or related to the theft or misappropriation of your user name or password, disclosure of your user name or password, your authorization of anyone else to use your user name or password, or any other activities conducted under your user name or password. You agree to immediately notify us if you become aware of or believe there is or may have been any unauthorized use of (or activity using) your user name or password or any other need to deactivate your user name or password due to security concerns. You agree that you do not own any account you create for a Service, any user names created on the account, or any content or data stored or associated with an account. You may also be required to register an account with the digital distribution platform or social networking service through which you seek to connect to or access a Service.  

  2. Modifications

    We may alter, suspend, or discontinue the Services in whole or in part, at any time and for any reason, without notice.  The Services may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons.  We reserve the right, at any time and from time to time, for any reason in our sole discretion, to change the terms of this Agreement. We will post or display notices of material changes on the Services and/or e-mail you or notify you upon login about these changes; the form and manner of such notice is at our discretion. Once we post them on the Services, these changes become effective immediately and if you use the Services after they become effective it will signify your agreement to be bound by the changes. You should check back frequently and review the terms and conditions of this Agreement, including, but not limited to, the User Content Submission Agreement, other Additional Terms, Rules and Privacy Policy, regularly so you are aware of the most current rights and obligations that apply to you and the terms and conditions of your agreement with us. 

  3. 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.

  4. Advertising

    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). 

  5. 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:

    • be libelous, defamatory, indecent, vulgar or obscene, pornographic, sexually explicit or sexually suggestive, racially, culturally, or ethnically offensive, harmful, harassing, intimidating, threatening, hateful, objectionable, discriminatory, or abusive, or which may or may appear to impersonate anyone else, as determined by Harmonix;
    • affect us adversely or reflect negatively on us, the Services, our goodwill, name or reputation or cause duress, distress or discomfort or embarrassment to us or anyone else, or discourage any person, firm or enterprise from using all or any portion, features or functions of the Services, or from advertising, linking or becoming a supplier to us in connection with the Services; 
    • send or result in the transmission of, or introduce to the Services, junk e-mail, chain letters, duplicative or unsolicited messages, or so-called “spamming” and “phishing”; 
    • be used for commercial or business purposes, including, without limitation, advertising, marketing or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other websites or web pages; 
    • transmit, distribute or upload programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horses, spyware, or other potentially harmful programs or other material or information; 
    • forge any TCP/IP packet header or part of the header information in any email or newsgroup posting for any reason; 
    • exploit children under 18 years of age; use abusive, offensive or defamatory screen names and/or personas; obtain unauthorized access to any computer system through the Services; violate any laws, regulations (including, without limitation, laws regarding the transmission of technical data or software exported from the United States), judicial or governmental order or any treaties, or violate or infringe upon any copyright, trademark, trade secret or other intellectual property rights, rights of publicity or privacy or any other rights of ours or of any other person, firm or enterprise; gain unauthorized access to the Services, other users’ accounts, names, passwords, personally identifiable information or other computers, websites or pages, connected or linked to the Services or to use the Services in any manner which violates or is inconsistent with the terms and conditions of this Agreement; 
    • modify, disrupt, impair, alter or interfere with the use, features (including chat rooms), functions, operation or maintenance of the Services or the rights of use and enjoyment of the Services by any other person, firm or enterprise; 
    • promote, upload, transmit, encourage or take part in any activity involving hacking, cracking, phishing, taking advantage of exploits or cheats and/or distribution of counterfeit software and/or virtual items;
    • upload any software or Material that you do not own or have permission to freely distribute; or
    • collect, obtain, compile, gather, transmit, reproduce, delete, revise, view or display any material or information, whether personally identifiable or not, posted by or concerning any other person, firm or enterprise, in connection with their or your use of the Services, unless you have obtained the express, prior permission of such other person, firm or enterprise to do so. 

    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.

    You agree to indemnify, defend and hold Harmonix and its Affiliates harmless for any and all claims, damages, losses and causes of action arising as a result of your posting or uploading content to the Services or your failure to comply with these Terms of Use.

  6. Wireless Marketing Services and Promotional Opportunities 

    Harmonix may provide you with the opportunity to register for special promotions, services, news, programming and information delivered via text messaging and other wireless Devices such as mobile phones. You are required to provide your consent to receive such information from Harmonix, either by registering on these Services or via your wireless Device.  Such services and promotional opportunities are provided by Harmonix or its Affiliates. The information requested as part of the online registration process is your telephone number or a wireless email address, but only if specifically requested, and your carrier’s name. Optional information may be requested for specific promotions, such as your preferences regarding goods or services, choices of music or artists, or other similar survey information. Depending on the promotion, we may also collect an Internet email address or other information and, depending on the information collected, you may also be required to confirm your agreement to this Agreement and, including without limitation, the Privacy Policy. 

    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.

  7. Viral Features

    There may be portions of our Services, content, functionality or features (e.g, digital streaming media player(s)) (“Viral Features”) that we make available to you for your personal use. While we can obviously change how, to whom and to what extent we make these Viral Features available at any time without any notice and in our sole discretion, so long as they are available to you, whenever you visit our Services or take advantage of any of these Viral Features (whether you use these Viral Features on your own personal or customized web pages, whether they are displayed or appear embedded or housed within a web page or websites of anyone else, whether a commercial websites or web page, an advertisement, promotional message or even a personalized or customized web page of a friend or through any Device that can access any of these Viral Features) you agree not to download any content made available as part of the Viral Features and acknowledge that such content is available only for streaming viewing and, further, that you are bound by the applicable provisions of this Agreement and our Privacy Policy. 

  8. Postings

    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.

  9. 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.

  10. 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. 

    Mobile Applications

    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. 

  11. Hyperlinks to Third Party Services

    The appearance, availability, or your use of names, URLs or hyperlinks referenced or included anywhere on the Services or any other form of link or re-direction of your connection to, with or through the Services, to websites that are not affiliated with Harmonix or the Services is not an endorsement by, nor does it incur any obligation, responsibility or liability on the part of, the Services, Harmonix, or any of its Affiliates, any of their successors and assigns, and any of their respective officers, directors, employees, agents, representatives, licensors, Advertisers, suppliers, and operational service providers. Your access of the unaffiliated websites is at your own risk, and we do not verify, endorse or have any responsibility for the content of any such third party Services, their business practices (including their privacy policies), or any goods or services associated with or obtained in connection with any such third party websites, whether the Services’, Harmonix’s, or any of its Affiliates’ logo or sponsorship identification is on the third party Services as part of a co-branding or promotional arrangement or for any loss or damage incurred in connection with your use of such links and Services. If any third party Services obtain or collect Personal Information from you, in no event shall we assume or have any responsibility or liability. Please read our Privacy Policy, which describes how Harmonix collects and uses your Personal Information and other information and certain of our relationships. 

  12. Testing

    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.

  13. Deactivation/Termination of Your Registration or Use

    If you are registered to use the Services, you may deactivate your account on the Services, at any time and for any reason, by sending an email to [email protected]. We may terminate your use of and registration on, all or part of the Services, at any time and for any reason, with or without cause, without prior notice to you and without any liability or further obligation of any kind whatsoever to you or any other party. It is our policy to terminate users who violate these Terms of Use, as deemed appropriate in our sole discretion.  Any and all Services and Materials will be considered forfeited immediately in the event of any deactivation or termination of your account by Harmonix.  If Harmonix terminates an account, it may terminate other accounts that share the same characteristics. You acknowledge that Harmonix is not required to provide you notice before taking action to terminate your account, and if Harmonix terminates your account, you may not use any Service again without Harmonix’s express written approval.

  14. 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. 

  15. Indemnification

    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.

  16. Privacy

    We respect your privacy and the use and protection of your Personal Information. Please see our Privacy Policy for important information and disclosures relating to the collection and use of your Personal Information in connection with your use of the Services. 

  17. Jurisdictional Issues.

    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, together with any Additional Terms, Rules, our Privacy Policy and any other regulations, procedures and policies which we refer to and which are hereby incorporated by reference, contains the entire understanding and agreement between you and the Services and supersedes any and all prior or inconsistent understandings relating to the Services and your use of the Services. This Agreement cannot be changed or terminated orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this will not affect any other provisions and the Agreement will be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or your use of the Services, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose).

    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.

    You agree that Harmonix may assign or delegate this Agreement, the Privacy Policy and any Additional Terms or Rules, in whole or in part, to any person or entity at any time without your consent.  You may not assign or delegate any rights or obligations under this Agreement, the Privacy Policy and any Additional Terms or Rules to any person or entity without Harmonix’s prior written consent, and any unauthorized assignment or delegation by you is void and ineffective.

    The failure of Harmonix to require or enforce strict performance by you of any provision of this Agreement, the Privacy Policy or any Additional Terms or Rules, or failure to exercise any right thereunder, shall not be construed as a waiver of Harmonix’s right to assert or rely upon any such provision or right in that or any other instance.  The express waiver by Harmonix of any provision, condition or requirement of this Agreement, the Privacy Policy or any Additional Terms or Rules shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.  Except as set forth in this Agreement, no consents or waivers or other acts or omissions by Harmonix shall be deemed a modification of this Agreement, the Privacy Policy or any Additional Terms or Rules, nor be legally binding, unless documented in writing and signed by a duly authorized officer of Harmonix.

  18. This Terms of Use Agreement was last modified on the date indicated above and is effective immediately. Copyright © 2014 Harmonix Music Systems, Inc. All Rights Reserved.