ANIME NETWORK ON-DEMAND
END USER LICENSE AGREEMENT FOR iOS APPLICATION
Effective Date: 2011-11-07
THIS END-USER LICENSE AGREEMENT (“EULA”) IS A BINDING LEGAL AGREEMENT BETWEEN YOU AND ANIME NETWORK, INC. (“ANI”) STATING THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE ANIME NETWORK APPLICATION FOR iOS (THE “APPLICATION”). PLEASE READ THIS EULA FULL AND CAREFULLY. BY PURCHASING, DOWNLOADING, INSTALLING, ACTIVATING AND/OR USING THE APPLICATION, YOU SIGNIFY AND CONFIRM YOUR AGREEMENT TO BE BOUND TO THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT AND AGREE TO THIS EULA, DO NOT PURCHASE, DOWNLOAD, INSTALL, ACTIVATE AND/OR USE THE APPLICATION.
1. License. Subject to the terms, conditions and limitations of this EULA, ANI grants to you a limited, revocable license to install, activate and use the Application solely for your own personal, non-commercial use on Apple, Inc. (“Apple”) iOS device that you own and control and for which you have an associated Apple iTunes account (the “License”). This License is non-transferable, non-assignable, non-sublicensable. The Application is licensed and not sold. This License and your use of the Application does not under any circumstances grant or imply your ownership of the Application and/or any Licensed Services. All rights not expressly licensed to you are reserved to ANI.
2. Restrictions. This EULA does not allow you to use the Application on any device that you do not own or control, and you may not distribute or make the Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute, sublicense or otherwise exploit the Application. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, any updates or upgrades, or any part thereof. Neither shall you attempt to do any of the acts described in the immediately preceding sentence. Any attempt to do so is a violation of the rights of ANI, its affiliates and licensors, as applicable. If you breach this restriction, you may be subject to prosecution and damages. The terms and conditions of the EULA shall govern any updates or replacements to the Application provided by ANI, unless such upgrade or replacement is accompanied by or references a separate end-user license agreement in which case the terms of that agreement shall govern. You may not assign your rights under this EULA without ANI’s prior written permission and any attempt by you to do so shall be void.
4. Subscriptions; Subscription Cycles. Current ANI subscription options are: Monthly $6.95 per / $18.98 Quarterly / $69.98 Annual. Your subscription period begins on the date of purchase. The numerical date of purchase determines the start of your next subscription cycle. For example, if you purchase a monthly subscription on the 2nd day of a January, the next subscription cycle begins February 2. Likewise, under the same example, if you purchase a quarterly or annual subscription, then the next subscription cycle begins April 2 (purchase month plus 3 months) or January 2 the following year (purchase month plus 12 months), as applicable. However, if you purchase a monthly subscription on the last day of any month having more than 28 days, then your next subscription cycle begins on the last calendar day of each subsequent month. Similarly, if you purchase a quarterly subscription on the last day of any month having more than 28 days, then your next subscription cycle begins on the last calendar day of each third month subsequent to the month of purchase.
5. Subscriptions; Re-billing. Purchases of subscriptions occur through your iTunes account. Upon your confirmation of purchase, your iTunes account will be billed. Thereafter, your subscription will auto-renew and be billed on a recurring, prepaid basis, if not cancelled at least 24 hours before the end of the then-current subscription period (“rebilling”). Rebilling typically occurs within 24 hours before the end of the then-current subscription cycle or thereafter. You may manage auto-renewal options for your subscription through the Account Settings on your device.
6. Cancellation. You may cancel your subscription at any time. However, neither ANI nor any third-party processor provide any refunds, proration or credit for any cancelled subscription and you expressly waive any right or claim to the same. A cancellation of subscription does not end availability of Licensed Services until the end of the then-current subscription period. Your access to Services will end on or before the next subscription cycle.
8. Trial Period. Any unused portion of a free trial period, if offered, will be forfeited when you purchase a subscription.
9. Intellectual Rights and other Proprietary Rights. ANI, its affiliates and/or their respective licensors own all right, title and interest in and to the Application, including, without limitation, all intellectual and proprietary rights appurtenant thereto and accessible in connection therewith, and, except for the limited License granted to you herein, nothing in this EULA shall be construed to restrict, transfer, convey, encumber, alter, impair or otherwise adversely affect ANI’s, its affiliates and/or their respective licensors’ ownership or proprietary rights therein or any other of ANI’s, its affiliates’ and/or their licensors’ information, processes, methodologies, products, goods, services, or materials, tangible or intangible, in any form and in any media.
10. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APPLICATION AND THE LICENSED SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND RESULTS OF THE APPLICATION IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION AND ANY LICENSED SERVICES PERFORMED OR PROVIDED BY OR IN CONNECTION WITH THE APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL BUGS AND FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND ANI, ITS AFFILIATES AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION AND ANY LICENSED SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, 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. NEITHER ANI, NOR ANY OF ITS AFFILIATES OR LICENSORS WARRANT THAT THE FUNCTIONS OR LICENSED SERVICES CONTAINED IN, ACCESSED FROM, PERFORMED BY, DISPLAYED ON, LINKED TO/FROM, OR PROVIDED BY, THE APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLICATION OR LICENSED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APPLICATION OR LICENSED SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANI, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SHOULD THE APPLICATION OR LICENSED 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.
11. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL ANI, AFFILIATES AND/OR LICENSORS BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, 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 YOUR USE OR INABILITY TO USE THE APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, EQUITY OR OTHERWISE) AND EVEN UNDER CIRCUMSTANCES WHERE ANI, ITS AFFILIATES AND/OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Indemnification. You agree to indemnify, defend, and hold ANI, its affiliates and their respective successors and assigns, officers, directors, employees, agents, licensors, representatives, advertisers, service providers, and suppliers harmless against any and all claims, demands, actions, losses, damages, costs and expenses (including reasonable attorneys' fees), arising out of or relating to your (a) breach or violation of this EULA, (b) infringement, misappropriation or any violation of the rights of any other party, (c) violation or non-compliance with any applicable law, rule or regulation, and (d) use, alteration or export of the Application (or any component or element thereof) in violation of this EULA. ANI reserves the right to assume the exclusive defense and control of any claims or actions subject to indemnification by you and all negotiations for its settlement or compromise, and you agree to fully cooperate with us upon our request.
13. Export Restrictions. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, the Application 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 Application, 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.
14. Commercial Items. The Application 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 reserved under the copyright laws of the United States.
15. Wireless Access Charges. Certain Application functions and Licensed Services require data access, and the provider of data access for your device may charge you data access fees in connection with your use of the Application. You are solely responsible for any data access or other charges you incur.
16. No Guarantee of Continued Use or Availability. ANI and its affiliates reserve the right to modify, replace, update, supplement, limit, discontinue, remove or disable access to the Application and/or any Licensed Services without notice to you and neither ANI, 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, ANI may make available updates, modifications or upgrades to the Application via software download or other means. Such download may occur automatically or it may require you to manually download an update or upgrade through the same source from which the Application was originally downloaded. Certain functions and features of the Application 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 ANI or otherwise.
17. Changes to the EULA. ANI may make changes to this EULA, at any time in its sole discretion. Notice of those changes may be accomplished by notifying you of the change, including, without limitation, by including notice on the Licensed Services or by other electronic means, and a new copy of this EULA shall be made available on or through the Licensed Services. By using the Application and/or any Licensed Services after such changes are made to the EULA, you signify and confirm your agreement to be bound by and comply with such changes and ANI shall treat your use as acceptance of the changed provisions.
18. Termination. This EULA is effective until terminated by you or ANI. Your rights under the license granted herein shall terminate automatically without notice from ANI if you fail to comply with any terms or conditions of this EULA. Upon termination of this EULA, you shall cease all use of the Application, and destroy all copies, full or partial, thereof.
19. Governing Law And Interpretation. To the extent not prohibited by law, you agree (a) that this EULA 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 Texas applicable to contracts wholly made and to be performed within the State of Texas, (b) to irrevocably submit to the sole and exclusive jurisdiction of the courts of Harris County Texas and the Federal courts of the Southern District of Texas, Houston Division, and (c) to irrevocably consent to the exercise of personal jurisdiction by such courts and waive any right to plead, claim or allege that Texas is an inconvenient forum. No failure or delay by ANI, 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 EULA is held to be illegal, invalid or unenforceable, the remaining provisions of this EULA shall be unimpaired and remain in full force and effect. Any provision of this EULA which by its nature must survive the termination of this EULA in order to give effect to its meaning shall survive such termination.
20. Contact Information. You may contact ANI at: