NOTICE: PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE ACCEPT BUTTON OR INSTALLING THE MUSIC PLAYER, YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. IF YOU DO NOT AGREE, CLICK ON THE BUTTON THAT INDICATES THAT YOU DO NOT ACCEPT THE TERMS OF THIS CONTRACT, AND DO NOT INSTALL THE MUSIC PLAYER.
1.1 “Music Player” means all and any part of the files, embedded code, download packages, software, or platform hosted by DHR for purposes of providing a portal for music and related content available through DHR. Music Player also includes the related explanatory materials, such as information on the term of your license (“Documentation”), and upgrades, modified or subsequent versions and updates (collectively “Updates”), of the Music Player, if any, licensed to you by DHR.
1.2 “Use” or “Using” means to access, install, copy or otherwise benefit from the Music Player.
1.3 “Computer” means a device that accepts information in digital or similar form and alters it based upon a sequence of instructions.
1.4 “DHR” means Dirty Hippie Radio, LLC, located at 1133 Hamlet Ct, Neptune Beach, FL 32266
2. License Overview.
2.1 License Grant. Subject to the terms of this Agreement, DHR hereby grants you a non-exclusive license to download, install and use the Music Player on your computer. This license may not be sub-licensed or assigned by you. The duration of this license is the time length of the service subscription you obtained from DHR.
2.2 No Granting of Rights to Third Parties. You may not sell, assign, distribute, or otherwise grant rights to third parties with regard to the Music Player without the express written permission of DHR.
2.3 IP Rights. Any and all intellectual property rights (“IP Rights”) in the Music Player shall remain the exclusive property of DHR and/or its licensors. Nothing in this Agreement intends to transfer or vest any such IP Rights to you. You are only entitled to the limited use of the IP Rights granted to you in this Agreement. You will not take any action to materially interfere with DHR’s and/or its licensors’ IP Rights. You agree that you will not remove or alter any notices or indications of the IP Rights of DHR and/or its licensors. Any copy of the Music Player and Documentation authorized to be made by DHR must contain all notices that appear in the Music Player and Documentation.
2.4 Lawful Use Only. You may use the Music Player solely for lawful purposes. For example, you may not (a) intercept or monitor any equipment to which you are not entitled; (b) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the Music Player; (c) use the Music Player to unfairly threaten, harass, or harm anyone; (d) use the Music Player to infringe the IP Rights owned by any person or entity.
2.5 Comments and Suggestions. To the extent you provide any comments or suggestions to DHR, DHR may retain and use any such comments or suggestions regarding the Music Player in current or future products or services, without compensation to you, and without your approval.
2.6 No Modifications. Except to the extent permitted by law, you will not cause or authorize the creation of derivative works, reverse engineering, decompiling, disassembling, or unreasonable modification of the Music Player.
3. Utilization of Your Computer
3.1 No Warranties. DHR cannot guarantee that you will always be able to communicate with DHR functions without disruptions, delays or communication-related flaws.
3.2 3rd Party Utilization. If your use of the Music Player is dependent upon the use of a processor and bandwidth owned or controlled by a third party, you acknowledge and agree that your license to use the Music Player is subject to you obtaining consent from the relevant third party for such use. You represent that by accepting this Agreement and using the Music Player, you have obtained such consent.
4. Privacy. You consent to DHR compiling, utilizing, and sharing your name and contact information to routinely assess and service your service subscription requirements.
5. New Versions of the Music Player. DHR and/or its licensors, in their sole discretion, reserve the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the Music Player. DHR and/or its licensors have no obligation to make available to you any subsequent versions of the Music Player. You may have to enter into a renewed version of this Agreement, in the event you want to download, install or use a new version of the Music Player.
6. Indemnification. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD DHR HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS, INCLUDING ATTORNEYS’ FEES INCURRED BY SUCH PARTIES, IN CONNECTION WITH OR ARISING OUT OF YOUR (A) VIOLATION OR BREACH OF ANY TERM OF THIS AGREEMENT OR ANY APPLICABLE LAW, WHETHER OR NOT REFERENCED HEREIN, OR (B) VIOLATION OF ANY RIGHTS OF ANY THIRD PARTY, OR (C) MISUSE OF THE MUSIC PLAYER.
7. Warranty Disclaimer. THE MUSIC PLAYER IS PROVIDED “AS IS” AND DHR MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THE EXTENT TO WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, DHR MAKES NO WARRANTY, CONDITION, REPRESENTATION, OR TERM (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE MUSIC PLAYER TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE MUSIC PLAYER. WITHOUT LIMITING THE FOREGOING PROVISIONS, DHR MAKES NO WARRANTY THAT THE MUSIC PLAYER WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE MUSIC PLAYER WILL MEET YOUR REQUIREMENTS.
8. Express Assumption of Risk. YOU AGREE THAT YOU EXPRESSLY ASSUME THE RISK OF LOSS OF GOODWILL, WORK STOPPAGE, LOSS OF DATA, COMPUTER OR NETWORK FAILURE OR MALFUNCTION, AND SIMILAR FORMS OF DAMAGE OR LOSS AS A RESULT OF USE OR MISUSE OF THE MUSIC PLAYER. THIS EXPRESS ASSUMPTION OF RISK IS NOT INTENDED TO, NOR SHALL IT, LIMIT OR RESTRICT PARAGRAPHS 7 AND 9 IN ANY MANNER WHATSOEVER.
9. Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL DHR BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR LOSS OF PROFITS, LOSS OF GOODWILL, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR NEGLIGENCE OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOSS OF DATA, COMPUTER OR NETWORK FAILURE OR MALFUNCTION, OR FOR ANY OTHER DAMAGE OR LOSS. IN NO EVENT SHALL DHR BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE PRICE PAID FOR THE MUSIC PLAYER, IF ANY, EVEN IF DHR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This limitation shall not apply to liability for death or personal injury to the extent that applicable law prohibits such limitation. Furthermore, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so this limitation and exclusion may not apply to you. Nothing contained in this Agreement limits DHR´s liability to you for DHR´s gross negligence or for the tort of fraud. DHR is acting on behalf of its Licensors and Authorized Partners for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
10. Term. Consistent with the duration of license stated in section 2.1, this Agreement will be effective as of the Effective Date and will remain effective until terminated by either DHR or you.
11. Suspension. DHR may, in its sole discretion and to the maximum extent permitted within the applicable jurisdiction, modify or discontinue or suspend your ability to use any version of the Music Player, and/or disable any Music Player you may already have accessed or installed without any notice to you, for the repair, improvement, and/or upgrade of the underlying technology or for any other justifiable reason, including but not limited to, circumstances where you, at DHR’s sole discretion, are in breach of the Terms, seeking to compete with DHR in the development of a competitive product, creating problems, possible legal liabilities, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons.
12. Export. You are advised that the Music Player is of United States origin and may be subject to export administration regulations; diversion contrary to applicable law and regulation is prohibited.
13. Legal Disputes.
13.1 Governing Law. The laws of the State of California shall govern this contract. Venue of any dispute shall be in Los Angeles County, California. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If you are an individual consumer, this shall not affect any mandatory right you may have to take action in your country of residence and under the laws of that country.
13.2 Arbitration and Waiver of Right to Jury Trial. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by a panel of three (3) arbitrators administered by the American Arbitration Association under Commercial Arbitration Rules. The majority decision of the arbitration shall be final and binding upon the parties. The arbitration hearing shall take place in Los Angeles County, California. The prevailing party shall be entitled to recover reasonable costs and attorney’s fees. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Discovery shall be limited to written requests for information and documents, and any dispute regarding discovery shall be determined by the chair of the arbitration panel. Either party may apply to any court of competent jurisdiction for injunctive relief without waiver or breach of this provision.
14. Entire Agreement. This Agreement sets forth all rights for the user of the Music Player and Documentation and is the entire agreement between the parties. This Agreement supersedes any other communications, representations or advertising relating to the Music Player and Documentation.
15. Waiver or Invalidity. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by DHR. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect.
16. Authority. You represent that you are authorized to enter into and comply with this Agreement.
17. DHR Contact. If you have any questions concerning these terms and conditions, or if you would like to contact DHR for any other reason, please call 904.446.6617, or write: DHR, 1133 Hamlet Ct, Neptune Beach, FL 32266; or visit us online at www.dirtyhippieradio.com.
Please print a copy of this contract for your records.