Copyright (c) 2015 Sam Maliszewski
*** END USER LICENSE AGREEMENT ***
IMPORTANT: IF YOU LIVE IN THE UNITED STATES, SECTION 6 CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH THE COPYRIGHT OWNER (HEREINAFTER REFERRED TO AS “NEXTSTAGE”). PLEASE READ THIS LICENSE CAREFULLY BEFORE USING THIS SOFTWARE. TO NEGOTIATE THE TERMS OF ANY PROVISION CONTACT LEGAL@NEXTSTAGEPRO.COM BEFORE ACCEPTING.
By receiving, opening the file package, and/or using NextStage Pro ("Software") containing this software, you agree that this End User User License Agreement (EULA) is a legally binding and valid contract and agree to be bound by it. You agree to abide by the intellectual property laws and all of the terms and conditions of this Agreement.
Unless you have a different license agreement signed by NextStage your use of NextStage Pro indicates your acceptance of this license agreement and warranty.
Subject to the terms of this Agreement, NextStage grants to you a limited, non-exclusive, non-transferable license, without right to sub-license, to use NextStage Pro in accordance with this Agreement and any other written agreement with NextStage. NextStage does not transfer the title of NextStage Pro to you; the license granted to you is not a sale. This agreement is a binding legal agreement between NextStage and the purchasers or users of NextStage Pro.
If you do not agree to be bound by this agreement, remove NextStage Pro from your computer now and, if applicable, promptly return to NextStage by mail any copies of NextStage Pro and related documentation and packaging in your possession.
NextStage Pro and the license herein granted shall not be copied, shared, distributed, re-sold, offered for re-sale, transferred or sub-licensed in whole or in part except that you may make one copy for archive purposes only. For information about redistribution of NextStage Pro contact NextStage.
3. USER AGREEMENT
Your license to use NextStage Pro is limited to the number of licenses purchased by you. You shall not allow others to use, copy or evaluate copies of NextStage Pro.
3.2 Use Restrictions
You shall use NextStage Pro in compliance with all applicable laws and not for any unlawful purpose. Without limiting the foregoing, use, display or distribution of NextStage Pro together with material that is racist, defamatory, libelous, abusive, promoting hatred, discriminating or displaying prejudice based on religion, ethnic heritage, race, sexual orientation or age is strictly prohibited.
Each licensed copy of NextStage Pro may be used on one single computer location by one user. Use of NextStage Pro means that you have loaded, installed, or run NextStage Pro on a computer or similar device. If you install NextStage Pro onto a multi-user platform, server or network, each and every individual user of NextStage Pro must be licensed separately.
You may make one copy of NextStage Pro for backup purposes, providing you only have one copy installed on one computer being used by one person. Other users may not use your copy of NextStage Pro. The assignment, sublicense, networking, sale, or distribution of copies of NextStage Pro are strictly forbidden without the prior written consent of NextStage. It is a violation of this agreement to assign, sell, share, loan, rent, lease, borrow, network or transfer the use of NextStage Pro. If any person other than yourself uses NextStage Pro registered in your name, regardless of whether it is at the same time or different times, then this agreement is being violated and you are responsible for that violation!
3.3 Copyright Restriction
This Software contains copyrighted material, trade secrets and other proprietary material. You shall not, and shall not attempt to, modify, reverse engineer, disassemble or decompile NextStage Pro. Nor can you create any derivative works or other works that are based upon or derived from NextStage Pro in whole or in part.
NextStage Pro's name, logo and graphics file that represents NextStage Pro shall not be used in any way to promote products developed with NextStage Pro without permission. NextStage retains sole and exclusive ownership of all right, title and interest in and to NextStage Pro and all Intellectual Property rights relating thereto.
Copyright law and international copyright treaty provisions protect all parts of NextStage Pro, products and services. No program, code, part, image, audio sample, or text may be copied or used in any way by the user except as intended within the bounds of the single user program. All rights not expressly granted hereunder are reserved for NextStage.
3.4 Limitation of Responsibility
You will indemnify, hold harmless, and defend NextStage , its employees, agents and distributors against any and all claims, proceedings, demand and costs resulting from or in any way connected with your use of NextStage's Software.
In no event (including, without limitation, in the event of negligence) will NextStage , its employees, agents or distributors be liable for any consequential, incidental, indirect, special or punitive damages whatsoever (including, without limitation, damages for loss of profits, loss of use, business interruption, loss of information or data, or pecuniary loss), in connection with or arising out of or related to this Agreement, NextStage Pro or the use or inability to use NextStage Pro or the furnishing, performance or use of any other matters hereunder whether based upon contract, tort or any other theory including negligence.
NextStage's entire liability, without exception, is limited to the customers' reimbursement of the purchase price of the Software (maximum being the lesser of the amount paid by you and the suggested retail price as listed by NextStage ) in exchange for the return of the product, all copies, registration papers and manuals, and all materials that constitute a transfer of license from the customer back to NextStage.
Except as expressly stated in writing, NextStage makes no representation or warranties in respect of this Software and expressly excludes all other warranties, expressed or implied, oral or written, including, without limitation, any implied warranties of merchantable quality or fitness for a particular purpose.
3.6 Governing Law
This Agreement shall be governed by the law of the United States applicable therein. You hereby irrevocably attorn and submit to the non-exclusive jurisdiction of the courts of United States therefrom. If any provision shall be considered unlawful, void or otherwise unenforceable, then that provision shall be deemed severable from this License and not affect the validity and enforceability of any other provisions.
Any failure to comply with the terms and conditions of this Agreement will result in automatic and immediate termination of this license and software activation. Upon termination of this license granted herein for any reason, you agree to immediately cease use of NextStage Pro and destroy all copies of NextStage Pro supplied under this Agreement. The financial obligations incurred by you shall survive the expiration or termination of this license.
3.8 Usage without a License
By obtaining NextStage Pro through illegal, counterfeit or illicit means, breaching and/or invalidating any part of this Agreement, you and your licensors’, employers’, employees’, contractors’, contractees’, and associates’ agree to transfer any and all profits, awards, intellectual property related to the use of NextStage Pro to NextStage.
4. DISCLAIMER OF WARRANTY
THIS SOFTWARE AND THE ACCOMPANYING FILES ARE SOLD "AS IS" AND WITHOUT WARRANTIES AS TO PERFORMANCE OR MERCHANTABILITY OR ANY OTHER WARRANTIES WHETHER EXPRESSED OR IMPLIED. THIS DISCLAIMER CONCERNS ALL FILES GENERATED AND EDITED BY NEXTSTAGE PRO AS WELL.
5. CONSENT OF USE OF DATA
You agree that NextStage may collect licensing information in order to activate NextStage Pro and prevent piracy. No other data or identifying information will be collected.
Note: When using NextStage Pro with a Kinect for Windows v2 sensor, Microsoft will collect telemetry data (e.g., operating system, number of processors, graphic chipset, memory, device type, locale, time) in order to improve Microsoft products and services. The data will not be used to identify specific individuals.
6. BINDING ARBITRATION AND CLASS ACTION WAIVER IF YOU LIVE IN THE UNITED STATES
This section applies to any dispute INCLUDING DISPUTES RELATING TO THE ENFORCEMENT OR VALIDITY OF YOUR, YOUR LICENSORS’, YOUR EMPLOYERS’, YOUR EMPLOYEES’, YOUR CONTRACTORS’, YOUR CONTRACTEES’, ANY AND ALL ASSOCIATES’, AND NEXTSTAGE’S INTELLECTUAL PROPERTY RIGHTS. The term “dispute” means any dispute, action, or other controversy between you and NextStage concerning the Services (including their price) or this Agreement, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law.
6.1 Notice of Dispute.
In the event of a dispute, you or NextStage must give the other a Notice of Dispute, which is a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute to Legal@NextStagePro.com. You and NextStage will attempt to resolve any dispute through informal negotiation within 60 days from the date the Notice of Dispute is sent. After 60 days, you or NextStage may commence arbitration.
6.2 Small claims court.
You may also litigate any dispute in small claims court in your county of residence or Los Angeles, California, U.S.A. if the dispute meets all requirements to be heard in the small claims court. You may litigate in small claims court whether or not you negotiated informally first.
6.3 Binding arbitration.
If you and NextStage don't resolve any dispute by informal negotiation or in small claims court, any other effort to resolve the dispute will be conducted exclusively by individual binding arbitration governed by the Federal Arbitration Act ("FAA"). Class arbitrations aren't permitted. you're giving up the right to litigate disputes in court before a judge or jury (or participate in court as a party or class member). Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
6.4 Class action waiver.
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor NextStage will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
6.5 Arbitration procedure.
Any arbitration will be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules. If you're an individual and use the Services for personal or household use, or if the value of the dispute is $75,000 or less whether or not you're an individual or how you use the Services, its Supplementary Procedures for Consumer-Related Disputes will also apply. For more information, see the American Arbitration Association website (http://www.adr.org) or call 1-800-778-7879. To commence arbitration contact Legal@NextStagePro.com. You agree to commence arbitration in the State of California. NextStage agrees to commence arbitration only in your county of residence. You may request a telephonic or in-person hearing by following the AAA rules. In a dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim.
6.6 Arbitration fees and payments.
In any arbitration you commence, NextStage will seek its AAA or arbitrator’s fees and expenses. In any arbitration NextStage commences, NextStage will pay all filing, AAA, and arbitrator’s fees and expenses. NextStage won't seek its attorney’s fees or expenses from you in any arbitration. Fees and expenses aren't counted in determining how much a dispute involves.
6.7 Conflict with AAA rules.
This Agreement governs to the extent it conflicts with the AAA’s Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes.
6.8 Claims or disputes must be filed within one year.
To the extent permitted by law, any claim or dispute to which section 6 applies must be filed within one year in small claims court (section 6.2) or in arbitration (section 6.3). The one-year period begins when the claim or Notice of Dispute first could be filed. If such a claim or dispute isn't filed within one year, it's permanently barred.
6.9 Claims or disputes must be settled within one year.
To the extent permitted by law, any claim or dispute to which section 6 applies must be settled within one year in small claims court (section 6.2) or in arbitration (section 6.3). The one-year period begins when the claim or Notice of Dispute first could be filed. If such a claim or dispute isn't settled within one year, it's permanently barred.
If any provision of section 6 is found to be illegal or unenforceable, that provision will be severed with the remainder of section 6 remaining in full force and effect.