Last modified: November 8, 2011
These Sites are offered and made available only to users 13 years of age or older and certain features on these Sites (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 Sites 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 Sites immediately because by using or attempting to use the Sites, 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 Sites. If you are between the ages of 13 and 17, you represent that your legal guardian has reviewed and agreed to this Agreement.
Users have a personal, non-transferable, non-exclusive right to access and use the Sites and Materials (as defined below) subject to these Terms and Conditions. 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 Sites, transmit, receive or exchange data or communicate with the Sites, or in any way utilizes, benefits, takes advantage of or interacts with any function, service or feature of the Sites, for any purpose whatsoever. This Agreement does not cover your rights or responsibilities with respect to third party content or sites or any links that may direct your browser or your connection to third party sites or pages. This is the entire and exclusive Agreement between you and us regarding use of the Sites and it cannot be modified, except as specifically described below in Section 2.
Ownership of Intellectual Property
The contents of these Sites, including all Site software and computer code, 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 Sites, 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 “Site” includes “Material” as well. You may only use the Sites for your noncommercial, 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 Sites, including notices on any Material you download, transmit, display, print or reproduce from the Sites. 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 Material without the express prior written consent of Harmonix or its owner if Harmonix is not the owner. Any unauthorized or prohibited use of any Material 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 Sites that infringes the copyright rights of others and will disable the access to the Sites and its services to anyone who uses them repeatedly to infringe the intellectual property rights of others.
We take protection of copyrights, both our own and others, very seriously. We therefore employ multiple measures to prevent copyright infringement over these Sites and to promptly end any infringement that might occur. If you believe that the Sites 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 Sites. 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 Sites 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 Sites, or knowingly condone use of these Sites by others, in any manner that is, attempts to, or is likely to:
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 Sites.
Your comments, suggestions and information are important to us. Portions of these Sites 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 Sites. Postings do not reflect the views of the Sites, 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 Sites; 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 Sites.
If a Posting originates from you or your account, you hereby: (a) grant the Sites, 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 Sites, 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 Sites 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 Sites (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 Sites’ operational service providers, suppliers, and Advertisers, may conduct promotions on or through the Sites, 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 Sites may provide RSS Feeds (“ RSS Feeds”) consisting of selected text, audio, video, and photographic content (“ Content”) from the Sites 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 Sites, 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 Sites
Deactivation/Termination of Your Registration or Use
If you are registered to use the Sites, you may deactivate your account on the Sites, at any time and for any reason, by sending an email to [email protected] We may terminate your use of and registration on the Sites, 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 and conditions, as deemed appropriate in our sole discretion.
Disclaimer and Limitations of Liability
THESE SITES, 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 SITES 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 Sites. 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 Sites, including, without limitation, Postings and Materials associated with your use of the Sites.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THESE SITES, 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 SITES 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 Sites. You further understand and acknowledge the capacity of the Sites, 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 Sites 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 Sites, 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 Sites, any breach or violation of this Agreement by you, or your Postings.
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 this website 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 Sites 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 SITES 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.