End-User License Agreement For iPhone/iPod touch/iPad App
Effective December 13, 2010
This End-User License Agreement (“Agreement” or “EULA”) governs your use of the “Times Square Ball App” software (“Software”) and Services (described in Section 5) provided by Countdown Entertainment LLC, its subsidiaries and contractors (“Countdown”) designed to operate on your iPhone, iPod touch or iPad (your “Apple Computing Device”). The Software is licensed, not sold.
You, the end-user of the Software, acknowledge that the Agreement is entered into by and between Countdown and you and not with Apple, Inc. or its subsidiaries (“Apple”). You also acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software.
Your use of the Software constitutes your acceptance of the terms of this Agreement, which may be amended from time to time by Countdown. The most recent version of this Agreement shall always be available on the Internet at http://app.timessquareball.net. Countdown reserves the right to change or modify this Agreement or any other Countdown policies related to use of the Software or Services at any time, and at its sole discretion, by posting revisions on the Internet at http://app.timessquareball.net. Continued use of the Software and Services following the posting of these changes or modifications will constitute acceptance of such changes or modifications.
Subject to the terms of this Agreement, Countdown grants to you a nontransferable, nonexclusive, royalty-free, fully paid, worldwide license (without the right to sublicense) to install and use one copy of the Software, in executable object code format only, solely on your Apple Computing Device.
2. License Restrictions.
You agree to the following license restrictions: (a) to use the Software solely for your personal, noncommercial use; (b) to not duplicate, copy or distribute the Software except as necessary to use it on your Apple Computing Device; (c) to not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit the Software or make the Software available to any third party; (d) to not copy the written materials accompanying the Software; (e) to not modify, translate, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Software in order to build a similar or competitive product or service; and (f) to preserve all copyright and other proprietary rights notices on the Software and all copies thereof.
3. Copyrights And Trademarks.
You acknowledge that no title to the intellectual property in the Software is transferred to you. You further acknowledge that title and full ownership rights to the Software will remain the exclusive property of Countdown and/or its suppliers, and you will not acquire any rights to the Software, except as expressly set forth above. All title and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text and “applets,” incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by Countdown or its suppliers.
This Software is protected by copyright laws, international copyright treaties, other intellectual property laws and treaties.
iPhone, iPod touch and iPad are trademarks of Apple, Inc., registered in the U.S. and other countries. All other trademarks appearing in the Software, Services or Agreement are the property of their respective owners.
4. Updates Or Upgrades To The Software.
Countdown is not obligated to provide any updates or upgrades to the Software.
5. Services; Third-Party Materials.
The Software may enable access to Countdown’s and Third-Party services and web sites (collectively and individually, “Services”). Use of the Services may require Internet access and you accept additional terms of service by making use of these Internet-accessible Services.
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 Third Parties’ results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. You agree to use the Services at your sole risk and that Countdown shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable. You acknowledge that the content you encounter does not necessarily reflect the opinions or policies of Countdown.
Certain Services may display, include or make available content, data, information, applications or materials from (“Third-Party Materials”) or provide links to certain Third-Party web sites. By using the Services, you acknowledge and agree that Countdown is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Materials or web sites. Countdown does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any Third-Party Services, Third-Party Materials or web sites, or for any other materials, products, or services of Third Parties. Third-Party Materials and links to other web sites are provided solely as a convenience to you. Location data provided by any of the Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Countdown, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or location data displayed by any of the Services.
You agree that the Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Countdown is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using any of the Services.
In addition, Third-Party Services and Third-Party Materials that may be accessed from, displayed on or linked to from the Apple Computing Device are not available in all languages or in all countries. Countdown makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent you choose to access such Services or Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to, applicable local laws.
Countdown reserves the right to change, suspend, remove, terminate, or disable access to any Services for any or no reason at any time without notice. In no event will Countdown be liable for the removal of, termination, or disabling of access to any such Services. Countdown may also impose limits on the use of or access to certain Services, in any case, and without notice or liability.
B. Photograph Display Service (the “PDS”).
i. Scope Of The PDS.
The PDS is a Service provided by Countdown to you. To use this Service, it costs one credit to upload to Countdown’s servers one photograph to be shared with your family, friends, and other users of the PDS (“the public”). Countdown may examine your photograph and determine, in its complete discretion, whether there are technical or non-technical issues with hosting your photograph. If there are no disqualifying issues with your photograph, Countdown will host your photograph. You will then be able to share your photo via e-mail or other social media networks with your family, friends, and the public – all of whom can view and vote on your uploaded photograph.
Countdown may select, in its complete discretion, photographs uploaded to the PDS to be displayed on the Toshiba Vision Screen at One Times Square, other mobile LED screens at Times Square, and on the Official Times Square New Year’s Eve Livestream webcast.
There is no monetary cost to use the PDS.
The PDS operates on credits. It costs one (1) credit to upload a photograph to the PDS. The maximum number of credits per a downloaded copy of this Software is five (5). You receive one (1) credit by providing your e-mail address (see Section 5.B.vii), and you can receive up to four (4) additional credits by sharing your uploaded photograph(s) through social media networks.
There is no cost to view or vote on photographs which have been uploaded to the PDS website.
iii. Representations And Warranties From The Purchaser.
You represent and warrant that (a) you are 16 years of age or older; (b) the uploading and use of your photograph on or through Countdown’s PDS does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person; and (c) the uploading and use of your photograph on or through Countdown’s PDS does not result in a breach of contract between you and a third party.
iv. Review Of Photographs Uploaded To PDS.
You agree that each photograph you upload to the PDS may be reviewed by Countdown for potential technical, non-technical or decency issues, such as: being out of focus, lacking sharpness, or sufficient resolution to display your photographs; containing offensive, indecent, or objectionable behavior or content; violating the rights of any person or entity; or harming or threatening the safety of any person or entity. You agree that Countdown may reject, remove, ban, delete or refuse to post a photograph for any or no reason. You agree to waive any right to contest any decision by Countdown to reject, remove, ban, delete, or refuse to host a photograph.
v. Use Of Your Photographs By Countdown.
Countdown does not claim ownership of any photographs you upload. However, Countdown does need certain rights from you, with respect to your photographs, in order to operate the PDS. Therefore, with respect to your photographs, you grant Countdown a worldwide, royalty-free, non-exclusive, fully sub-licensable license to use, distribute, reproduce, modify and publicly display your photographs (in whole or in part) for the purposes of operating the PDS and enabling your use of the PDS. For example, if your uploaded photograph is deemed acceptable (see Section 5.B.iv), then Countdown will host your photograph and you will be able to share your photo via e-mail or other social media networks with your family, friends, and the public – all of whom can view and vote on your uploaded photograph.
The Software and the PDS display advertisements and promotions, and you agree that Countdown may place such advertisements and promotions on, about, or in conjunction with your photographs. The manner, mode and extent of such advertising and promotion are subject to change without specific notice to you.
You agree that Countdown shall have the right to archive copies of any photograph you upload to the PDS, and to use a copy of that photograph to promote this Software now and in the future.
You agree that Countdown shall have the right to display any photograph you upload to the PDS on the Toshiba Vision Screen at One Times Square, other mobile LED screens at Times Square, and on the Official Times Square New Year’s Eve Livestream webcast.
You agree that Countdown can track voting upon any photograph you upload using whatever tools are available.
vi. Use Of Your Photographs By Others.
You hereby grant other users of the PDS a worldwide, royalty-free, nonexclusive license to view any photograph you upload that is hosted by Countdown.
You agree to permit other users of the PDS to vote upon any photograph you upload using whatever tools are available.
vii. Use Of Your Personal Information.
In order to upload photographs to the PDS, you are required to provide an e-mail address. If you choose not to provide an e-mail address, you may not be able to use certain features of the Software or the PDS. By entering your e-mail address you agree that Countdown can use your e-mail address to identify your photographs and to send you electronic communications, with opt-out details, concerning Countdown, the Software and Services. Countdown will not distribute, rent or sell your e-mail address. No other personal information will be collected by the Software.
You have the option of utilizing the Software or PDS to share your uploaded photographs with your friends, family and the public through e-mails and social media networks including Facebook and Twitter. In order to facilitate the sharing of your photographs on social media networks, the Software may store your social media network information on your Apple Computing Device, but that information is not shared with Countdown. Additionally, no information concerning the identity of the persons with whom you have shared your photographs is transferred to Countdown.
We may place e-mail links or forms in the Software or PDS to allow you to contact Countdown. It is always your choice whether or not to provide any personal information.
Location Based Information. Countdown does not collect personally identifying location-based data from you through the Software or PDS. You agree that Countdown may collect location-based data from you through the Software, and may use this information, as long as it is in a form that does not personally identify you (see Section 19). You will have the ability to utilize social media network location services which inherently share personally identifying location-based data, and are governed by EULAs, Terms & Conditions and Privacy Policies specific to those services.
International Transfers. Your e-mail address and non-personally identifying location-based information collected through the Software or PDS may be processed in the United States or another country outside the one in which you reside. By using the Software or PDS, you agree to any such transfer of information outside of your country.
viii. Removal Of Photograph.
Should you wish to have your photograph removed from the PDS, please e-mail Countdown at email@example.com with your request to have any photographs associated with your e-mail address removed. Countdown will remove your photograph as soon as practicable.
If you believe that a photograph infringes your copyright, please e-mail a Takedown Notice which complies with 17 U.S.C. § 502(c)(3) to firstname.lastname@example.org.
6. No Warranty.
You expressly acknowledge and agree that use of the Software is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you. To the maximum extent permitted by applicable law, the Software and Services performed or provided by the Software (“Services”) are provided “AS IS” and “AS AVAILABLE”, with all faults and without warranty of any kind, and Countdown hereby disclaims all warranties and conditions with respect to the Software and Services, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and non-infringement of third party rights.
Countdown does not warrant against interference with your enjoyment of the Software, that the functions contained in, or Services performed or provided by, the Software will meet your requirements, that the operation of the Software or Services will be uninterrupted or error-free, or that defects in the Software or Services will be corrected. Countdown assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communication. Countdown is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Services or combination thereof, including any injury or damage to users or to any person’s computer related to or resulting from participation or downloading materials in connection with the Countdown Services. Should the Software or Services prove defective, you assume the entire cost of all necessary servicing, repair or correction.
No oral or written information or advice given by Countdown or its authorized representative shall create a warranty.
Under no circumstances shall Countdown be responsible for any loss or damage, including personal injury or death, resulting from use of the Services, from any photograph posted on or through the Services, or from the conduct of any users of the Services, whether online or offline.
Countdown cannot guarantee and does not promise any specific results from use of the Countdown Services.
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.
7. Limitation Of Liability.
To the extent not prohibited by law, in no event shall Countdown be liable for personal injury, or any incidental, special, indirect or consequential damages whatsoever, 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 your use or inability to use the Software or Services, however caused, regardless of the theory of liability (contract, tort or otherwise) and even if Countdown has been advised of the possibility of such damages. In no event shall Countdown’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount price paid for the Software, if any. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so this limitation may not apply to you.
8. Indemnification By You.
You agree to indemnify and hold Countdown, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Software or Services in violation of this Agreement, arising from a breach of this Agreement, any breach in your representations or warranties, or if any photograph you upload to the Services causes Countdown to be liable to another.
9. Export Control.
You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software 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 Software, 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.
10. Injunctive Relief.
Countdown has the right to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third-party rights.
11. Choice Of Law, Jurisdiction And Venue.
You agree that any disputes between Countdown and you shall be resolved under the substantive law of the state of New York (exclusive of its choice of law provisions). The Convention for the International Sale of Goods shall not apply. You and Countdown agree to submit all disputes to the exclusive jurisdiction of the state and federal courts located in New York, NY, USA.
12. Third-Party Beneficiary.
Apple is a third-party beneficiary to this Agreement. Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary of this Agreement.
13. Section Titles.
The section titles in this Agreement are for convenience only and have no legal or contractual effect.
Countdown’s failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision.
The parties agree that each provision of this Agreement is intended to be construed to be enforceable to the fullest extent possible. If any provision or part of a provision of this Agreement is held to be unlawful, void, or unenforceable, that provision or part of the provision shall be deemed severable from this Agreement and not affect the validity and enforceability of any remaining provisions.
You may not assign your rights under this Agreement to any third party; Countdown may assign your rights under this Agreement without condition.
17. Product Questions, Comments, Claims And Contact Information.
Countdown, not Apple, is responsible for addressing any questions, comments or claims relating to the Software and/or your use of the Software. If you have any comments or questions, please contact Countdown at the following e-mail address: email@example.com.
The Software license is effective until terminated by you or Countdown. Your rights under this license will terminate automatically without notice from Countdown if you fail to comply with any term(s) of this license. Upon termination of the license, you shall cease all use of the Software, and destroy all copies, full or partial, of the Software.
19. Consent To Use Of Data.
You agree that Countdown may collect and use technical data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Software. Countdown may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.
This Agreement constitutes the entire agreement between you and Countdown regarding the use of the Software and supersedes any prior or contemporaneous understandings and agreements between you and Countdown related to its subject matter.