ASCAP Mobile Application End User License Agreement (iOS)
Last Updated June 25th, 2014
THIS END USER LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU AND THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS ("ASCAP") STATING THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THIS ASCAP MOBILE SOFTWARE APPLICATION (THE "ASCAP APP"). PLEASE READ THIS AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING AND/OR USING THE ASCAP APP, YOU ARE INDICATING THAT YOU AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS SET FORTH HEREIN, DO NOT PURCHASE (IF APPLICABLE), DOWNLOAD, INSTALL AND/OR USE THE ASCAP APP.
1. LICENSE GRANT. Subject to the terms and conditions of this Agreement, ASCAP hereby grants to you a limited, non-transferable, non-sublicensable, non-assignable and revocable license to install and use the ASCAP App solely for your own personal, non-commercial use in the United States, its territories and possessions (the “Territory”) (provided, however, that ASCAP may amend the Territory pursuant to Section 14 below), solely on any applicable device, as specified by ASCAP at the time of download, that you own or control (“Device”). For the avoidance of doubt, the ASCAP App is licensed, not sold, to you by ASCAP pursuant to and subject to the terms and conditions of this Agreement and any other applicable terms and conditions promulgated by any Third Party Platform. The ASCAP App and/or Services may be dependent on and/or interoperate with such Third Party Platforms and may require that you be a registered member of such Third Party Platforms and provide certain account credentials and other information in order to access and use the ASCAP App and/or Services. ASCAP and its affiliates and licensors reserve all rights not expressly granted to you herein. You acknowledge and agree that this Agreement is between you and ASCAP, and that any applicable Third Party Platform and its subsidiaries are not a party to this Agreement and are not responsible for the ASCAP App and/or Services, including, without limitation, providing maintenance and support in connection therewith.
2. RESTRICTIONS. You may not rent, lease, lend, sell, redistribute or sublicense the ASCAP App. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify or create derivative works of the ASCAP App, any updates or upgrades thereto or any part thereof. Any attempt to do so is a violation of the rights of ASCAP, its affiliates and/or licensors, as applicable. If you breach this restriction, you may be subject to prosecution and damages. The terms and conditions of this Agreement will govern any upgrades and/or updates that may be provided by or on behalf of ASCAP, in its sole discretion, that replace and/or supplement the original ASCAP App, unless such upgrade or update is accompanied by or references a separate license in which case the terms of that license agreement will govern.
3. SERVICES; THIRD PARTY PLATFORMS, SERVICES AND CONTENT.
a. You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that the ASCAP Parties (as such term is defined in Section 7 below) shall have no liability to you for any content that may be found to be offensive, indecent, or objectionable.
5. TERMINATION. This Agreement is effective until terminated by you or ASCAP. Your rights under the license granted herein will terminate automatically without notice from ASCAP if you fail to comply with any terms or conditions of this Agreement. Upon termination of this Agreement, you shall cease all use of the ASCAP App and destroy all copies, full or partial, thereof.
6. PROPRIETARY RIGHTS. ASCAP, its affiliates and/or their respective licensors own all right, title and interest in and to the ASCAP App and the Services, including, without limitation, all intellectual and proprietary rights appurtenant thereto, and, except for the limited license granted to you herein, nothing in this Agreement shall be construed to restrict, transfer, convey, encumber, alter, impair or otherwise adversely affect ASCAP's, its affiliates' and/or their respective licensors' ownership or proprietary rights therein or any other of ASCAP's, its affiliates' and/or their licensors' information, processes, methodologies, products, goods, services or materials, tangible or intangible, in any form and in any medium.
7. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE ASCAP APP IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT OF THE APP IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ASCAP APP AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL BUGS AND FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND ASCAP, ITS AFFILIATES AND LICENSORS, SUPPLIERS, OPERATORS, PARTNERS, SERVICE PROVIDERS, ADVERTISERS, THIRD PARTY PLATFORMS AND OTHER AFFILIATED PARTIES, AND EACH OF THE FOREGOING PARTIES’ RESPECTIVE AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “ASCAP PARTIES”) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE ASCAP APP AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, OF TITLE AND OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NONE OF THE ASCAP PARTIES WARRANT THAT THE FUNCTIONS OR SERVICES CONTAINED IN, ACCESSED FROM, PERFORMED BY, DISPLAYED ON, LINKED TO/FROM OR PROVIDED BY, THE ASCAP APP AND/OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE ASCAP APP AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE ASCAP APP AND/OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ASCAP, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE AUTHORIZED REPRESENTATIVES SHALL CREATE ANY WARRANTY. SHOULD THE ASCAP APP AND/OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
8. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL THE ASCAP PARTIES BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND, WHETHER DIRECT, INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR YOUR USE OF OR ACCESS TO OR INABILITY TO USE OR ACCESS THE ASCAP APP AND/OR ANY SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), WHETHER OR NOT THE ASCAP PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. INDEMNIFICATION. You agree to indemnify, defend and hold the ASCAP Parties harmless from and against any and all claims, demands, actions, losses, damages, costs and expenses (including reasonable attorneys' fees), arising out of or relating to (a) any breach or violation of this Agreement, (b) the infringement, misappropriation or any violation of the rights of any other party, (c) the violation of or non-compliance with any applicable law, rule or regulation, and (d) any use, alteration or export of the ASCAP App (or any component thereof) in violation of this Agreement. ASCAP reserves the right to assume, at its own expense, the exclusive defense and control of any claims or actions and all negotiations for its settlement or compromise, and you agree to fully cooperate with us upon our request.
10. EXPORT RESTRICTIONS. You may not use or otherwise export or re-export the ASCAP App except as authorized by United States law and the laws of the jurisdiction in which the ASCAP App was obtained. In particular, but without limitation, the ASCAP App may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the ASCAP App, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
11. COMMERCIAL ITEMS. The ASCAP App and related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
12. WIRELESS ACCESS CHARGES. The ASCAP App and other Services may require data access, and the provider of data access (e.g., network operator, wireless carrier, etc.) for your Device may charge you data access and other fees in connection with your use of the ASCAP App and other Services, including, without limitation, wireless carrier messaging and other communication, messaging and data fees and charges, as applicable. Under no circumstances will ASCAP be responsible for any such data access fees or charges in connection with your use of the ASCAP App or other Services, including, without limitation, access fees, wireless internet, email, text messaging or other charges or fees incurred by you (or any person that has access to your Device, telephone number, email address, user account information or other similar information). Further, the use or availability of the ASCAP App and other Services may be prohibited or restricted by your wireless carrier and/or data access provider, or the ASCAP App and other Services may not work with all wireless carriers, networks, platforms, services or devices.
13. NO GUARANTEE OF CONTINUED USE OR AVAILABILITY. ASCAP and its affiliates reserve the right to modify, update, supplement, limit, discontinue, remove or disable access to the ASCAP App and/or any Services without notice to you and neither ASCAP, its affiliates nor any of their respective licensors shall be liable to you or any third party should it exercise such rights. From time to time, ASCAP may make available updates or upgrades to the ASCAP App via software download or other means. Such download may occur automatically without the need for any act on your part, or it may require you to manually download an update or upgrade through the same source from which the ASCAP App was originally downloaded. Certain functions of the ASCAP App may be modified or discontinued as a result of any such update or upgrade, or may not be available if you have not downloaded all updates and upgrades made available by ASCAP.
14. CHANGES TO THE AGREEMENT. ASCAP may modify or change this Agreement from time to time, and at any time, without notice to you, for any reason, in its sole discretion. ASCAP will post or display notices of material changes on or within the ASCAP App and/or Services and/or notify you via other electronic means. The form of such notice is at ASCAP’s discretion. Once ASCAP posts or makes them available on or within the ASCAP App and/or Services, these changes become effective immediately, and if you use the ASCAP App and/or Services after they become effective, it will signify your agreement to be bound by and comply with the changes. Any questions, complaints or claims with respect to the ASCAP App and/or Services should be directed to www.ascap.com/contact and not any applicable Third Party Platform.
15. GOVERNING LAW AND INTERPRETATION. To the extent not prohibited by law, you agree: (a) that this Agreement and all disputes, claims, actions, suits or other proceedings arising hereunder shall be governed by, and construed in accordance with, the substantive law of the State of New York applicable to contracts wholly made and to be performed within the State of New York, (b) to irrevocably submit to the sole and exclusive jurisdiction of the courts of New York State and the Federal courts of the Southern District of New York, situated in the City, County and State of New York, and (c) to irrevocably consent to the exercise of personal jurisdiction by such courts and waive any right to plead, claim or allege that New York is an inconvenient forum. You may not assign your rights under this Agreement without ASCAP’s prior written permission, and any attempt by you to do so shall be void. Any provision of this Agreement, which by its nature must survive the termination of this Agreement in order to give effect to its meaning, shall survive termination. No failure or delay by ASCAP, its affiliates or licensors to exercise any right or enforce any obligation shall impair or be construed as a waiver or ongoing waiver of that or any or other right or power. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall be unimpaired and remain in full force and effect. You agree that the applicable Third Party Platform, and its subsidiaries, are a third party beneficiary of this Agreement and will have the right to enforce this Agreement as a third party beneficiary thereof.