End User License Agreement
(FOR STREAMING PLAYER)
IMPORTANT: READ THIS END USER LICENSE AGREEMENT CAREFULLY BEFORE YOU USE A DRAGON MEDIA INC. STREAMING PLAYER. ALSO REVIEW THE IMPORTANT PRODUCT INFORMATION THAT MAY HAVE BEEN PROVIDED WITH YOUR DRAGON MEDIA INC. STREAMING PLAYER.
This End User License Agreement (“EULA”) governs your use of: (a) Dragon Media Inc.’s streaming player (“Player”), and (b) any firmware and software that Dragon Media Inc., Inc. (“Dragon Media Inc.”) has pre-installed on the Player, and the firmware and software updates Dragon Media Inc. provides to you for the Player (collectively, the “Software”). By linking the Player to your account on Dragon Media Inc.’s website (“Dragon Media Inc. Account”) or using the Player, you are agreeing to this EULA. If you are a resident of the European Economic Area, by agreeing to this EULA, you expressly agree to waive your right to withdraw.
If you do not agree to this EULA, you do not have the right to use the Player or the Software. If you are within the allowable time period for returns under the applicable return policy, you may return the Player to your seller for a refund, subject to the terms of such return policy. You should perform a factory reset before you return it to erase data that may be stored on the Player.
In this EULA, “Channel” means an application in the Google Play Store; “Content” means movies, television shows, music and other audio and visual materials and entertainment; “Content Provider” means any provider of Content; and “ Google Play Store” means the storefront of applications provided by Google via the Player’s on-screen menu.
Changes to This EULA
Dragon Media Inc. may amend this EULA at any time in its discretion. Such amendments shall be effective immediately upon posting of the amended EULA on Dragon Media Inc.’s website or via the Player or your Dragon Media Inc. Account, whichever occurs first. In its option, Dragon Media Inc. may also notify you of the amended EULA by sending a notice to the last email address you have provided to Dragon Media Inc.. You agree to provide accurate and complete information if and when you set up your Dragon Media Inc. Account, and you agree to promptly update your account information (including contact information) to keep it accurate and complete. You can do this at any time by signing in to your Dragon Media Inc. Account. Following such posting or notice by any of the methods described above, continued use of your Player or Dragon Media Inc. Account means you accept and agree to the amended EULA. If you do not agree to the amended EULA, Dragon Media Inc. may not be able to provide updates, upgrades or enhancements to your Player, and you may not be able to continue using your Player or Dragon Media Inc. Account.
Permitted Use and Restrictions
The Player and the Software are for personal, non-commercial use only. Copying or redistribution of any Content delivered via the Player is strictly prohibited and we may prevent or restrict you from copying or re-distributing any elements of the Software or Content using digital rights management or other technologies. The Player and the Software are for use only in those countries specified on Dragon Media Inc.’s website and where Dragon Media Inc. makes the Player and Software available via its authorized distributors. If you are using the Player and the Software outside of these countries, the rights granted under this EULA do not apply. Some of the Content Providers use technologies to verify your geographic location, and you may not be able to use the Player or the Software to access any Content outside of the country or location authorized by Dragon Media Inc. or the Content Provider. Except as expressly provided under this EULA, you do not acquire any intellectual property or other proprietary rights in or to the Player, the Software or the Content, including any rights in patents, inventions, improvements, designs, trademarks, database rights or copyrights, nor do you acquire any rights in any confidential information or trade-secrets. All rights not expressly granted to you in this EULA are reserved by Dragon Media Inc. or its applicable licensors. You may not remove, obscure, alter or conceal any trademark, logo, copyright or other proprietary notice in or on any Player, Software or Content.
The Software is proprietary to Dragon Media Inc. or its third party licensors and may be used only with the Player. Subject to this EULA and, where appropriate, the applicable third party licenses, you have a non-exclusive, non-transferable license to run the Software and any updated versions provided to you by Dragon Media Inc., only in and as incorporated in the Player. This is a license and not a sale. You may not (a) copy, assign, sublicense, lease, sell or rent the Software, (b) distribute or otherwise transfer the Software except as incorporated in the Player, provided that, you do not retain any copies of the Software and the recipient reads and agrees to this EULA (including all amendments); (c) modify, adapt, translate, or create derivative works of the Software (except only to the extent any of the foregoing restriction is prohibited by applicable law or as may be permitted by the license terms governing any Separately Licensed Code included with the Software); (d) decompile, disassemble, reverse engineer or otherwise derive source code from the Software, except to the extent such actions cannot be prohibited under applicable law because they are essential to achieve inter-operability of the Software with another software program, and provided that the information obtained by you during such activities is (i) used only to achieve such inter-operability; (ii) not disclosed without Dragon Media Inc.’s prior written consent; and (iii) not used to create any software that is substantially similar to the Software; (e) defeat, bypass, circumvent or interfere with any security mechanism or access control measures, or (f) have any of the foregoing done for you by a third party. This license does not include the right to receive Software upgrades or updates. Your right to use the Player and the Software will immediately terminate upon your breach of this EULA.
In its sole discretion, DRAGON MEDIA INC. MAY PROVIDE UPDATES TO YOUR PLAYER VIA the internet, including BUG FIXES AND UPDATES, CHANGES IN THE USER INTERFACE OR HOW YOU ACCESS CONTENT, AND OTHER CHANGES THAT MAY add, ALTER or remove functionalities and features. You acknowledge that these updates: (a) may happen automatically in the background at any time (and that they cannot be disabled by You); AND (b) will require an internet CONNECTION and You may incur additional data charges from the provider of the INTERNET CONNECTION. You understand that these updates are necessary to maintain compatibility with other updates to DRAGON MEDIA INC.’S products or services and may be required for security reasons. by using the player, you hereby AGREE to receive such updates.
Separately Licensed Code
Certain software components of the Software are provided under separate third party license terms (“Separately Licensed Code”) and your right to use such components is governed by such license terms.
WARRANTY DISCLAIMER; LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
(A) EXCEPT FOR THE LIMITED PRODUCT WARRANTY ACCOMPANYING YOUR PRODUCT, THE PLAYER, THE SEPARATELY LICENSED CODE AND THE SOFTWARE ARE PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. DRAGON MEDIA INC. DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. DRAGON MEDIA INC. DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE PLAYER, THE SEPARATELY LICENSED CODE AND THE SOFTWARE WILL BE: (I) SECURE, VIRUS-FREE OR ERROR-FREE, OR (II) FREE FROM ATTACK OR SECURITY INTRUSION. Some jurisdictions do not allow exclusions or limitations on implied warranties, so the foregoing limitations of warranties may not apply to You. You may also have other rights that vary from jurisdiction to jurisdiction.
(B) IN NO EVENT SHALL DRAGON MEDIA INC., ITS DIRECTORS, OFFICERS OR EMPLOYEES BE LIABLE TO YOU FOR PERSONAL INJURY OR PROPERTY DAMAGE, OR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF ANY PLAYER, THE SEPARATELY LICENSED CODE, THE SOFTWARE, OR YOUR USE THEREOF; AND
(C) YOU AGREE THAT THE TOTAL CUMULATIVE LIABILITY OF DRAGON MEDIA INC., ITS DIRECTORS, OFFICERS AND EMPLOYEES UNDER THIS EULA, INCLUDING LIABILITY RELATING TO ALL PLAYERS LINKED TO YOUR DRAGON MEDIA INC. ACCOUNT AND THE SEPARATELY LICENSED CODE AND THE SOFTWARE IN SUCH PLAYERS, AND YOUR USE THEREOF, SHALL NOT EXCEED THE AMOUNT SET FORTH IN THE DRAGON MEDIA INC. ACCOUNT TERMS AND CONDITIONS YOU AGREED TO FOR YOUR DRAGON MEDIA INC. ACCOUNT. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE REMEDY PROVIDED HEREIN FAILS ITS ESSENTIAL PURPOSE AND EVEN IF DRAGON MEDIA INC. ITS DIRECTORS, OFFICERS OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.
You agree not to download any Content or Software, nor otherwise export or re-export any Player or the Software into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country as to which the United States or your country has embargoed goods, or to anyone on the U.S. Treasury Department’s List of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders or on similar restricted lists published by your government from time to time. By using any Player or the Software, you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Choice of Law; Dispute Resolution
A. If you are a consumer and a resident in any country in the European Economic Area where Dragon Media Inc. directly sells the Player or expressly authorizes the sale of the Player through its distribution channel, this EULA does not apply to you.
B. In all other cases, including if you are a resident of the United States (and its possessions and territories), Mexico or Canada, you agree that this EULA shall be governed by the laws of the State of California without regard to any conflict of laws principles that may provide the application of the law of another jurisdiction; and:
1. You and Dragon Media Inc. agree to be bound by the procedures set forth below to resolve any and all claims arising out of or relating to any aspect of this EULA, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, including but not limited to, claims related to the Player and the Software. Each such claim is referred to individually as “ Claim” and collectively as “Claims”.
2. YOU AND DRAGON MEDIA INC. AGREE THAT, EXCEPT FOR THE CLAIMS IDENTIFIED IN PARAGRAPH 4 OF THIS SECTION BELOW, ANY AND ALL CLAIMS SHALL BE FINALLY SETTLED BY BINDING ARBITRATION. The arbitration shall take place in San Diego County, California and shall be administered by the American Arbitration Association (“AAA”) pursuant to the AAA’s then-current rules, including (if applicable) the AAA’s Supplementary Procedures for Consumer-Related Disputes. Please be aware there is no judge or jury in arbitration. Arbitration procedures are simpler and more limited than the rules applicable in court, and review of the arbitrator’s decision by a court is limited.YOU AND DRAGON MEDIA INC. FURTHER AGREE THAT EACH OF YOU MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. The arbitrator may not consolidate or join more than one person’s claim and may not preside over any consolidated, representative or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive or declaratory relief) only on an individual basis and may not award any form of consolidated, representative or class-wide relief. Notwithstanding any provision in these terms to the contrary, if the class-action waiver in this provision is deemed invalid or unenforceable, or if an arbitration is allowed to proceed on a class basis, then neither you nor Dragon Media Inc. are entitled to arbitrate the Claims. This arbitration provision is subject to the Federal Arbitration Act. The arbitrator’s award shall be binding on you and Dragon Media Inc., and may be entered in any court of competent jurisdiction.
3. Information on AAA and how arbitration is initiated can be found at www.adr.org or by calling 800-778-7879. For Claims of $75,000 or less, you will be responsible for the initial arbitration filing fee, up to the amount of the initial filing fee if you were to initiate a lawsuit against Dragon Media Inc. based on such Claims in court. If the arbitrator finds such Claims to be non-frivolous, Dragon Media Inc. will pay any difference in such filing fees plus the arbitrator fees. For Claims in excess of $75,000, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Dragon Media Inc. will pay as much of your actual filing fees and the arbitrator fees for the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation.
4. This agreement to arbitrate does not apply to any Claim (a) in which a party is attempting to protect its intellectual property rights (such as its patent, copyright, trademark, trade secret, or moral rights, but not including its privacy or publicity rights), or (b) that may be brought in small-claims court.
5. If the agreement to arbitrate in this provision is found to be invalid, unenforceable or inapplicable to a given Claim, then any and all proceedings to resolve such Claim must be brought exclusively in a federal court of competent jurisdiction in the Northern District of California or in a state court in Santa Clara County, California. You hereby irrevocably consent to the exclusive jurisdiction and venue of such courts.
6. 30-Day Right to Opt Out: You have the right to opt out of this agreement to arbitrate by sending a written notice of your decision to opt out to the following address: Legal Department, Matthew J. Faust., Ltd., 110 West A Street, Suite 1100, San Diego, California 92101, USA; provided that, such notice must be postmarked on or before the 30th day after the date you create your Dragon Media Inc. Account if you do not already have one. If you have an existing Dragon Box Account, all devices you choose to link to your Dragon Box Account, and all services provided by Dragon Media Inc. which are accessed using these devices, will be subject to this agreement to arbitrate. Your notice should include your full name, your current postal address, telephone number and email address, the product name and serial number for your Player, and a copy of the original proof of purchase for your Player. If you timely send a notice in compliance with this paragraph 6, the agreement to arbitrate will not apply to either you or Dragon Media Inc.. If you do not timely send this notice, then you agree to be bound by this agreement to arbitrate.
7. Notwithstanding any provision in this EULA to the contrary, you agree that, if Dragon Media Inc. seeks to delete or materially modify the agreement to arbitrate described herein, any such deletion or modification will not apply to any individual Claim of which you have notified Dragon Media Inc. prior to such modification.
Dragon Media Inc. may transfer its rights and obligations under this EULA to another organization. You may only transfer your rights or your obligations under this EULA to another person if Dragon Media Inc. agrees in writing. This EULA is between you and Dragon Media Inc.. No other person shall have any rights to enforce these terms. Each of the paragraphs of this EULA operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect. If Dragon Media Inc. fails to insist that you perform any of your obligations under this EULA, or if Dragon Media Inc. does not enforce its rights against you, or if Dragon Media Inc. delays in doing so, that will not mean that Dragon Media Inc. has waived its rights against you, or that you do not have to comply with those obligations. If Dragon Media Inc. does waive a default by you, Dragon Media Inc. will only do so in writing, but that will not mean that Dragon Media Inc. will automatically waive any later default by you.