IMPORTANT – PLEASE READ CAREFULLY:
This End-User License Agreement (this "Agreement") is a legal agreement between Skullcandy, Inc., a Delaware corporation (“Skullcandy”, “we”, “us”, or “our”) and you, a user (“you” or “your”) of our desktop application product, as further described below and/or on the website page on which such product is available for download (the “Application” or “App”).
PLEASE READ THIS LICENSE AGREEMENT CAREFULLY BEFORE USING THE SKULLCANDY DESKTOP APPLICATION. BY CLICKING THE “ACCEPT” BUTTON ASSOCIATED WITH THIS AGREEMENT OR BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THE APPLICATION TO WHICH THIS AGREEMENT RELATES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE PROVISIONS OF THIS AGREEMENT, YOU MAY NOT INSTALL, COPY, OR USE, AND YOU MUST IMMEDIATELY DELETE ALL COPIES OF, THE APPLICATION FROM YOUR DEVICE.
- DESCRIPTION OF APPLICATION. Skullcandy offers for download, both for payment and free of charge, this Application, which enables you to utilize certain functionality and perform certain tasks related to sound output from one or more associated electronic devices.
- GRANT OF LICENSE. Provided that you have complied with, and that you continue to comply with, all of the provisions of this Agreement, Skullcandy hereby grants to you a limited, non-transferrable, and non-exclusive right to install, run, access and use the Application in object code form only for the purposes described in this Agreement or otherwise as may be instructed or described by Skullcandy in writing.
- RESERVATION OF RIGHTS AND OWNERSHIP; THIRD PARTY CONTENT. Skullcandy reserves all rights related to the App that are not expressly granted to you in this Agreement. The Application is protected by copyright and other intellectual property laws and treaties. As between Skullcandy and you, Skullcandy owns all title in and to the Application, including without limitation all copyright and other intellectual property rights in the Application. You shall not remove, conceal or otherwise modify any copyright, trademark or other proprietary notice or source identifier contained in or associated with the Application. We cannot and do not guarantee access to information or other content belonging to any third party which is accessible by you through the Application, the website from which the App is being downloaded, or otherwise.
- USAGE RESTRICTIONS. You shall not, and you shall not permit any other person, directly or indirectly, to:
(A) sell, resell, transfer, assign, distribute, copy, publish, transmit, distribute, create derivative works of or otherwise disseminate, exploit or make available any portion or all of the Application;
(B) reverse engineer, decompile, modify, translate or disassemble any portion or all of the Application including without limitation any of its underlying ideas, algorithms or structure, or use any portion of or all of the Application to create new applications, programs, products or services;
(C) make the Application available over a network where it could be used by multiple devices at the same time;
(D) remove or otherwise modify any trademarks, service names, graphics, designs, logos, page headers, button icons, scripts, commercial markings, and trade dress appearing through the Application (including without limitation trademarks “SKULLCANDY”, “CRUSHER”, etc.) or any other Trademark (as hereinafter defined) which indicates that a source of goods or services are the property of their respective owners; or
(E) display the name, logo, trademark or other identifier of any individual or entity (except for Skullcandy) in such a manner as to give the viewer the impression that such other individual or entity is a publisher or distributor of the Application.
- NO OTHER USE. The Application is intended solely for your personal use as described in this Agreement or otherwise as may be instructed or described by Skullcandy in writing. You shall not sell, lease, charge fees for access to or any use of, the Application.
- TERMINATION. If you fail to comply with any of the provisions of this Agreement, you shall no longer use the Application and you shall permanently delete all copies of the Application from your device or which otherwise are then in your possession.
- DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE APPLICATION IS AT YOUR OWN RISK.
(A) THE APPLICATION IS PROVIDED “AS IS”, “AS AVAILABLE” AND WITH ALL FAULTS. SKULLCANDY INCLUDING ANY PARENT, SUBSIDIARY OR AFFILIATED ENTITY OF SKULLCANDY, AND ANY OF THEIR PRINCIPALS, SHAREHOLDERS, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, LICENSORS, SUPPLIERS, EMPLOYEES, CONTRACTORS, AGENTS OR REPRESENTATIVES (COLLECTIVELY, THE “SKULLCANDY PARTIES”) HEREBY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS, QUALITY, SAFETY, SUITABILITY, WORKMANLIKE EFFORT, LACK OF VIRUSES, LACK OF NEGLIGENCE, THAT THE APPLICATION WILL PERFORM IN ANY PARTICULAR FASHION, OR PRODUCE ANY PARTICULAR RESULT, THAT THE APPLICATION WILL BE COMPATIBLE WITH OR WORK WITH THIRD PARTY DEVICES OR SERVICES, OR OTHERWISE ARISING OUT OF OR RELATED TO THE USE OF THE APPLICATION BY YOU OR ANY OTHER PERSON.
(B) THE SKULLCANDY PARTIES ALSO ARE NOT RESPONSIBLE FOR THE PROVISION OF ANY SUPPORT OR ANY OTHER SERVICES, OR THE FAILURE TO PROVIDE SUPPORT OR ANY OTHER SERVICES, IN CONNECTION WITH OR RELATED TO THE APPLICATION.
(C) THERE ARE INHERENT RISKS IN THE DOWNLOADING AND USING OF ANY SOFTWARE, AND SKULLCANDY CAUTIONS YOU TO MAKE SURE THAT YOU COMPLETELY UNDERSTAND THE POTENTIAL RISKS BEFORE DOWNLOADING, INSTALLING OR OTHERWISE USING THE APPLICATION. THE SKULLCANDY PARTIES WILL NOT BE LIABLE FOR ANY DAMAGES THAT YOU OR ANY THIRD PARTY MAY SUFFER IN CONNECTION WITH OR RELATED TO YOUR DOWNLOADING, INSTALLING, UNINSTALLING, MODIFYING OR OTHERWISE USING THE APPLICATION.
(D) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SKULLCANDY OR A SKULLCANDY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
- LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SKULLCANDY OR ANY OF THE OTHER SKULLCANDY PARTIES BE LIABLE FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, (INCLUDING WITHOUT LIMITATION FOR LOST PROFITS, BUSINESS OR GOODWILL, OR FOR ANY ANTICIPATED LOST PROFITS, BUSINESS OR GOODWILL, FOR LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING THAT OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER MONETARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR RELATED TO YOUR USE OF THE APPLICATION (OR YOUR INABILITY TO USE THE APPLICATION) OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT.
(A) THE FOREGOING SHALL APPLY WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, FAULT, BREACH OF WARRANTY, BREACH OF CONTRACT OR OTHERWISE, EVEN IF SKULLCANDY OR ANY OF THE OTHER SKULLCANDY PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(B) NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER INVOLVING THE APPLICATION (INCLUDING, WITHOUT LIMITATION, ANY OF THE DAMAGES REFERENCED HEREIN), THE ENTIRE LIABILITY OF THE SKULLCANDY PARTIES COLLECTIVELY, AND YOUR EXCLUSIVE REMEDY HEREUNDER, SHALL BE LIMITED TO ONE THOUSAND DOLLARS ($1000) IF YOU ARE PAYING SKULLCANDY FOR USE OF THE APP, OR ONE HUNDRED DOLLARS ($100) IF YOU ARE USING THE APP FREE OF CHARGE. THIS LIMITATION OF LIABILITY PROVISION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE PROVEN INEFFECTIVE.
(C) You acknowledge that over exposure to excessive sound levels can damage your ears resulting in permanent noise-induced hearing loss, as described in the Skullcandy Safety Information available through our website at https://info.skullcandy.com/ . You expressly acknowledge that Skullcandy and the Skullcandy Parties will not be liable for any personal injury resulting from use of the Application to produce excessive sound levels.
- INDEMNITY. You shall indemnify, defend and hold Skullcandy and each of the other Skullcandy Parties harmless from and against any and all threatened or actual claims, actions, suits and demands and any and all resulting losses, liabilities, damages, expenses and costs, including without limitation reasonable attorneys’ fees and disbursements, which arise in connection with or which are related to (a) your breach of this Agreement, including without limitation your use of the Application in any manner not expressly permitted hereunder, (b) your negligence or misconduct, or (c) your violation of any law or regulation.
- PRIVACY. Skullcandy views the protection of your privacy as an important responsibility. The terms regulating the handling of personally identifiable information (“Personal Information”) and other information submitted by you in connection with the App is described in the Skullcandy Privacy Policy (the “Privacy Policy”) available through our website at https://info.skullcandy.com/. By using the App, you consent to the collection and use of your Personal Information by us as well as all other information as described in the Privacy Policy.
- GOVERNING LAW. This Agreement shall be governed and construed in accordance with the laws of the State of Utah and all claims arising out of or relating to this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of Utah. The Parties agree to exclusive jurisdiction over and venue of any suit in which an injunction is sought arising out of or relating to this Agreement in the state and federal courts of Salt Lake City, Utah.
- ARBITRATION. Any dispute arising out of or relating to your use of the Application or otherwise related to this Agreement, including without limitation regarding any breach hereunder, shall be finally resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration will be conducted in the City of Salt Lake City, Utah. The award of the arbitrator will be final and binding on you and us, and will be accompanied by a statement of the reasons upon which the award is based, and such statement as well as all information concerning such an arbitration proceeding including without limitation all evidence and materials submitted by you or us shall be kept strictly confidential by you and us.
- DIVISION OF COSTS. You shall pay for your own legal costs and expenses involved in any such arbitration, including without limitation reasonable attorneys’ fees, and we shall pay for all of our costs and expenses.
- NO CLASS CLAIMS. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. Notwithstanding the foregoing, either party may apply to any federal or state court sitting in the State of Utah for injunctive relief or enforcement of this arbitration provision or for a breach of any party’s ownership rights in and to the Application, without breach of this arbitration provision.
- TIMELY FILING OF CLAIMS. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM, SUIT OR ACTION THAT YOU MAY HAVE AGAINST ANY OF THE SKULLCANDY PARTIES ARISING UNDER OR RELATED TO THIS AGREEMENT MUST BE BROUGHT BY YOU PURSUANT TO THIS SECTION 11 AND WITHIN ONE (1) YEAR AFTER THE DATE ON WHICH THE EVENT UNDERLYING SUCH CLAIM OCCURRED OR IS ALLEGED TO HAVE OCCURRED.
- SEVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision, it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
- NON-PREEMPTION. This Agreement does not preempt or supersede any other agreements between the parties. This Agreement applies in addition to any other such agreements.
- MISCELLANEOUS. This Agreement and any written instructions related to the App which are provided by Skullcandy constitute the entire agreement between you and Skullcandy relating to the Application, and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Application or any other subject matter covered by this Agreement. To the extent the terms of any Skullcandy policies or programs conflict with the terms of this Agreement, the terms of this Agreement shall control. The failure of Skullcandy at any time to require performance by you of any provision of this Agreement shall in no way affect Skullcandy’s right to enforce such provisions, nor shall the waiver by Skullcandy of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
- CONTACT US. If you have any questions about our Application, please contact us at Attn: Legal Department 6301 North Landmark Drive, Park City, UT 84098 USA