End user agreement for iGetMusic
You ("USER") should carefully read the following terms and conditions of this End User License Agreement ("EULA") before using this software ("iGetMusic"). Unless you have a different license agreement signed by Amphony Corp. ("AMPHONY") your use of this software indicates your acceptance of this license agreement and warranty.
USER is entitled to free use of the trial version of this software for 10 days. While using an unregistered version, USER is limited to recording and tagging 5 songs with artist and track name information.
One registered copy of the software may be installed only on one computer at a time. USER's registration code is only to be entered into a single computer.
Limitations of Use
The USER agrees not to use the SOFTWARE as part of any illegal activity, or to violate any rights of a third party. This LICENSE grants rights to use this SOFTWARE, but does not grant any legal rights to content owned by any third party, nor does the LICENSE release the USER from any responsibilities regarding the rights of third parties. AMPHONY makes no representations involving the legality of any activities regarding the use of the SOFTWARE in conjunction with copyrighted content. The USER retains full responsibility to determine the extent of the USER's rights, and, if necessary, to contact the owner of copyrighted content prior to use of the SOFTWARE. Use of this SOFTWARE to violate the legal rights of any third party constitutes failure of the USER to comply with the terms of this LICENSE, and therefore terminates the USER's rights to use the SOFTWARE.
No Modifications, Reverse Engineering or Disassembling
USER shall not alter, modify, enhance, work around any technical limitation in, or make any derivative works of iGetMusic. USER shall not, and shall not cause or permit any third party to, disassemble, decompile, reverse engineer or otherwise attempt to derive source code from iGetMusic. USER shall not use iGetMusic in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. USER shall not exploit iGetMusic in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
No Resale or Commercial Use
USER shall not copy, re-sell, rent, lease, lend, provide access to third parties or otherwise transfer iGetMusic. USER may not use iGetMusic in any way to provide, or as part of, any commercial product, service or application. USER shall not collect, compile, disclose, transfer, distribute, sell, rent or license as a data set all or substantially all the iGetMusic Metadata.
Amphony Representations, Warranties and Indemnity
DISCLAIMER OF WARRANTY. AMPHONY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. IGETMUSIC IS PROVIDED HEREUNDER ON AN "AS-IS" BASIS, AND AMPHONY DISCLAIMS ALL WARRANTIES THAT IGETMUSIC WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE OR OPERATE OTHER THAN AS SET FORTH HEREIN. IN PARTICULAR, USER AGREES THAT AMPHONY SHALL NOT BE LIABLE TO USER IN ANY WAY FOR CHANGES OF AOL RADIO, YAHOO SHOUTCAST, or PLAY.IT MUSIC SERVICES, INCLUDING THE ADDITION OF DRM (DIGITAL RIGHTS MANAGEMENT) PROTECTION, WHICH MAY PREVENT USER FROM USING IGETMUSIC TO RECORD SAID MUSIC SERVICES AT ANY FUTURE DATE.
User Representations and Warranties
USER represents and warrants to AMPHONY that: (i) USER's performance under this Agreement shall at all times comply with all applicable laws, rules and regulations; and (ii) USER will not use the Services in connection with any activity that infringes the rights of any third party.
USER hereby agrees, at USER's expense, to defend, indemnify and hold harmless AMPHONY and its officers, directors, employees and agents from and against any and all Claims brought against any of them by a third party arising out of a breach of USER's representations, warranties or covenants in this Agreement. Each indemnified party hereunder shall give prompt written notice of any Claim to the indemnifying party. The indemnifying party shall have exclusive control over the defense and settlement of the Claim, provided that the indemnified party, at its expense, may elect counsel to participate on its behalf in the action and shall have the right to approve in advance any settlements that could adversely affect the rights of the indemnified party. The indemnified party shall provide reasonable information and assistance to the indemnifying party, at the indemnifying party’s expense, in the defense of such Claim.
Limitation of Liability
Except for the obligations set forth above, in no event shall either party be liable to the other for any indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, data or use, incurred by either party arising out of or related to its performance under this agreement, whether in an action in contract or tort (including negligence) or otherwise, even if the other party has been advised of the possibility of such damages.
NOTWITHSTANDING ANY DAMAGES THAT USER MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF AMPHONY AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT USER'S EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO ACTUAL DAMAGES INCURRED BY USER BASED ON REASONABLE RELIANCE UP TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY USER FOR IGETMUSIC OR U.S.$50.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
Term and Termination
Although AMPHONY does not anticipate doing so, AMPHONY must reserve the right, at its sole discretion, to update, amend and/or change this Service EULA in connection with a new release or re-release of any AMPHONY Proprietary Software. If so, AMPHONY will give USER the opportunity to review the new Service EULA and to agree or not agree with the new terms. USER's continued use of iGetMusic following USER's opportunity to review such changes shall automatically be deemed USER's acceptance of all changes.
Allocation of Risk
The Sections on limitation of liability, limitation of warranties and indemnities allocate the risks of this EULA between the parties. This allocation is an essential element of the basis of the bargain between the parties.
AMPHONY may assign this EULA to any person or entity to whom it transfers all or substantially all of its rights in the AMPHONY Proprietary Software. USER may not assign, voluntarily, by operation of law, or otherwise, this EULA or assign any rights or delegate any duties under this EULA without AMPHONY’s prior written consent, which shall not be unreasonably withheld. Any attempt to do so without that consent will be void. Subject to the foregoing, this EULA shall be binding upon and inure to the benefit of each party’s permitted successors and assigns.
Choice Of Law
This EULA will be governed by and construed in accordance with the laws of the United States and the State of Illinois as applied to agreements entered into and to be performed entirely within Illinois between Illinois residents.
This EULA constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations and agreements, whether written or oral. No party has been induced to enter into this EULA by, nor is any party relying on, any representation or warranty outside those expressly set forth in this EULA. The headings and captions are inserted for convenience of reference only and do not constitute a part of or modify any of the terms of this EULA.
If any part of this EULA is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this EULA will remain in full force and effect and the unenforceable provision will be replaced with an enforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision.
No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed by both parties. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute consent to, a waiver of, or excuse of any other, different, or subsequent breach by either party.