End User License Terms
Please read carefully
This End User License Agreement (“EULA”) is between you and TONEMISSION, INC. or its affiliates (“TMI,” “we”, “our,” and “us”) and governs your use of the "John Petrucci IR Collection” software (all Volumes), including all updates or upgrades, if any, provided by us for such software (collectively, the “Software”). “You” and “your” and “Licensee” means the individual, company or other legal entity licensing the Software under this EULA.
- Acceptance of Terms. THIS IS A LEGAL AGREEMENT THAT APPLIES TO ALL TMI SOFTWARE LICENSED. THIS AGREEMENT ALSO CONTAINS AN AGREEMENT TO ARBITRATE. BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR UTILIZING THE SOFTWARE (“USE”), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. IF YOU ARE ACCEPTING THIS EULA ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THIS EULA.
- IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA OR DO NOT HAVE THE NECESSARY AUTHORITY, DO NOT USE THE SOFTWARE. PROMPTLY RETURN THE PRODUCT TO THE PARTY FROM WHOM IT WAS OBTAINED. IF THE SOFTWARE OR ANY DOCUMENTATION WAS DOWNLOADED, DESTROY ALL COPIES OF THE SOFTWARE AND DOCUMENTATION.
- GRANT OF LICENSE
This license is solely for the use of the Software, as described above. All terms apply individually to each impulse response file that is part of the collection, and to the collection as a whole. Subject to the terms and conditions set forth herein, and for good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, TMI grants to you an individual, personal, non-sub-licensable, non-exclusive license to use one (1) copy of the Software in accordance with the applicable end user documentation (“Documentation”), if any (the "License"). It is acknowledged that the Software and any Documentation is at all times owned by TMI.
- Ownership. TMI retains all ownership rights in and to the Software and all Documentation (if any), including rights in and to all Software volumes, copies, improvements, enhancements, derivative works and modifications. No other rights with respect to the Software are granted to you, except as explicitly stated in this EULA. No implied licenses are granted by TMI. As between the parties, you acknowledge that TMI and its licensors retain ownership of the Software, any copies thereof, and all rights therein throughout the world.
- License Restrictions. (a) This license is granted to the original Licensee only and the Software may not be re-sold, traded, or transferred to any third party without written permission from TMI. Unless expressly authorized by TMI in writing, you will not and you will not allow any third party to: (i) unbundle, transfer, sublicense, or assign your rights under this License to any other person or entity; (ii) modify, adapt or create derivative works of the Software or Documentation; (iii) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Software; (iv) Multiplex (as defined herein below) the Software; (v) remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks on or within the Software or Documentation; (vi) directly or indirectly attempt to challenge the validity of the copyrights, trademarks, patents and/or trade secrets in the Software; or (vii) conduct any benchmark tests of the Software or disclose to a third party the results of any benchmark test of the Software. To “Multiplex” the Software means when you utilize hardware, software, an automated process, or other technical means: (1) to pool connections, reroute information, or reduce the number of devices or users that directly access or use the Software; or (2) to permit access to more user connections than you have purchased; or (3) to automatically, routinely, or systematically reallocate named user connections for the purpose of either reducing the number of named user connections you require, or avoiding the purchase of additional named user connections .
(b) You will only use the Software for lawful purposes and in compliance with all applicable laws. You hereby agree to defend and indemnify TMI against any claim or action that arises from your use of the Software in an unlawful manner. You acknowledge that the Software, or any part thereof, is of U.S. origin. You agree to comply with all applicable international and national laws that apply to such Software and uses, including the U.S. Export Administration Regulations, as well as any end-user, end-use and destination restrictions issued by U.S. and other governments.
- 6. Confidentiality and Other Restrictions
(a) Confidentiality Restrictions. “Confidential Information” means: (a) the Software and Documentation; (b) TMI’s source code, application programming interfaces, the know-how, ideas, plans, designs, specifications, coding, programming, processes, production techniques, technology, methodology and trade secrets of TMI and Licensee; (c) nonpublic information relating to TMI’s and Licensee’s business, customers, business plans, promotional and marketing activities, finances and other business affairs; (d) third-party information that either party is obligated to keep confidential by agreement or by law; (e) the nature, content and existence of any agreements, discussions or negotiations between the parties, or their software resellers; (f) any information that is designated by either party as confidential.
(b) Additional Restrictions. You agree that, during the term of this EULA, you will not, directly or indirectly, alone or in conjunction with any other person or company: (a) attempt to write or develop software in an effort to discover, copy or recreate the source code or any trade secrets contained or embodied in the source code of the Software; or (b) utilize the Software, Documentation, or Confidential Information, either directly or indirectly, to sell, market, develop or distribute any software product that competes with the Software; or (c) utilize the Software, Documentation, or Confidential Information, directly or indirectly, to assist, advise or consult with any other person or company in selling, marketing, developing or distributing any software product that competes with the Software; (d) publish the Software for others to copy or use; or (e) utilize the Software, Documentation, or Confidential Information, directly or indirectly, to convert, or to assist, advise or consult with any other person or company to convert, any end user of the Software to a software product that competes with the Software.
- Term and Termination. The term (“Term”) of this EULA will become effective upon your execution hereof and shall continue until terminated by TMI upon 30-day prior written notice to you. TMI shall be entitled to terminate the EULA at any time for any reason. In the event of termination of the Agreement there is no requirement that TMI remove the links from the internet. You may terminate the EULA at any time by returning or destroying all versions and copies of the Software and the Documentation in your possession or control. This EULA will immediately terminate if you breach any of its terms or conditions, after written notice of such breach from us, and after a 30-day cure period to cure such breach, or if you fail to pay any portion of the applicable license fees and you fail to cure that payment breach within 30 days of receipt of a written notice from us. Upon termination of this EULA, you must immediately cease all use of the Software and the Documentation or destroy all versions and copies of the Software and the Documentation in your possession or control. You must remove and uninstall all Software programs and Documentation from all hard drives and other devices on which the Software or the Documentation may be found. The termination or expiration of this EULA will not terminate your obligations under this EULA, nor will it: (i) release you from the obligation to pay any monies that you may owe TMI; (ii) operate to discharge any liability that you incur before such termination or expiration; or (iii) waive any obligation which is intended to survive such termination or expiration. The rights and obligations of a party which by their nature must survive termination or expiration of this Agreement in order to achieve its fundamental purposes shall survive any termination or expiration of this EULA including, without limitation, the following Sections: 1 (Acceptance of Terms), 4 (Ownership), 5 (License Restrictions), 6 (Confidentiality and Other Restrictions), 7 (Term and Termination), 8 (Indemnification), 9 (Limited Warranty/Exclusions/Disclaimer), and 10 (Miscellaneous). You may not permanently transfer the rights granted to you under this Agreement as part of a permanent sale or transfer of the hardware device used with the software. THE SOFTWARE IS PROVIDED AS IS AND SUBJECT TO THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH BELOW.
- Indemnification. YOU HAVE THE SOLE AND EXCLUSIVE RESPONSIBILTY FOR BACKING-UP YOUR CONTENT AND/OR THIRD-PARTY DATA OR CONTENT IN YOUR HARD DRIVE, SYSTEM, STORAGE OR DEVICE (collectively, “Your Data”) WHETHER OR NOT THE SOFTWARE INTERACTS WITH YOUR DATA. TMI WILL NOT BE RESPONSIBLE FOR ANY LOSS OF DATA OR CONTENT. You hereby agree to indemnify, defend and hold harmless TMI, its affiliates and authorized resellers, and each of TMI’s, its affiliates’ and authorized resellers’ employees, officers, directors, shareholders, and agents (each, an “Indemnified Party”), from and against all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to: (i) your actions, misuse of the Software, non-compliance with this EULA, or failure to operate the Software in accordance with this EULA; (ii) your use of the Software including, without limitation, in violation of any applicable laws.
- Limited Warranty/Exclusions/Disclaimer
9.1 Limited Warranty. THE SOFTWARE IS WARRANTED SOLELY TO YOU, THE ORIGINAL LICENSEE, THAT FOR A PERIOD OF 3 MONTHS FROM THE DATE THE SOFTWARE IS MADE AVAILABLE TO YOU (“Warranty Period”), IT SHALL SUBSTANTIALLY CONFORM TO ITS DOCUMENTATION WHEN USED IN ACCORDANCE WITH THIS EULA. At its own expense and as its sole obligation and your exclusive remedy for any breach of this warranty, TMI will: (a) at TMI’s option, correct any reproducible errors in such nonconforming Software so that it conforms to the foregoing warranty or replace such nonconforming Software with Software that conforms to the foregoing warranty; or (b) if the options in clause (a) hereof are not commercially reasonable, as determined in TMI's sole discretion, TMI will refund to you the fees paid to TMI for such non-conforming Software, in which case your right to use such Software will terminate. Any error correction provided to you will not extend the original Warranty Period.
9.2 Exclusions. Notwithstanding anything in this EULA, TMI will have no responsibility or liability of any kind, whether for breach of warranty or otherwise arising or resulting from: (a) combination of the Software with products, equipment, software, or data not supplied by TMI; (b) any use based on unauthorized distribution or sale of the TMI Software; (c) any use of the TMI Software, other than in accordance with this EULA; (d) any modification of the TMI Software by anyone other than or contractors authorized in writing by TMI; (e) any TMI Software rendered defective or non-conforming, in whole or in part, due to: (i) abnormal physical or electrical stress, abnormal environmental conditions, neglect, misuse, accident, fire or other hazard; (ii) improper testing, handling, storage, transportation, operation, interconnection, or installation by anyone other than TMI or contractors authorized in writing by TMI; (iii) failure to continually provide a suitable installation or operation environment; or (iv) any other cause beyond the range of normal use of such TMI Software.
9.3 Disclaimer. EXCEPT AS SET FORTH IN SECTION 9.1, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TMI LICENSES THE SOFTWARE TO YOU "AS IS" AND WITH ALL FAULTS AND DEFECTS AND EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY PURPOSE, TITLE, NONINFRINGEMENT, INTEGRATION, ACCURACY, AND COMPLETENESS. TMI DOES NOT WARRANT OR GUARANTEE THAT: (A) THE TMI SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, OR BE COMPATIBLE; OR (B) THAT THE TMI SOFTWARE WILL OPERATE FAIL SAFE, UNINTERRUPTED OR FREE FROM ERRORS OR DEFECTS OR THAT THE SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS.
9.4 EXCLUSION OF CERTAIN TYPES OF DAMAGES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ITS AFFILIATES, RESELLERS, DISTRIBUTORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CONSULTANTS, OR SUPPLIERS (COLLECTIVELY, "REPRESENTATIVES") BE LIABLE TO THE OTHER PARTY OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR FOR LOST PROFITS, LOSSES FROM BUSINESS INTERRUPTION, LOSS OF BUSINESS REVENUES, GOODWILL, INFORMATION OR DATA, COSTS OF RECREATING LOST OR CORRUPTED INFORMATION OR DATA, OR COSTS OF SUBSTITUTE SOFTWARE, OR SERVICES, REGARDLESS OF WHETHER EITHER PARTY OR ITS REPRESENTATIVES HAVE BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, AND WHETHER BASED ON A BREACH OF CONTRACT OR WARRANTY, OR NEGLIGENCE, MISREPRESENTATION OR OTHER TORT, OR ON ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM OR RELATED TO THIS EULA, THE TMI SOFTWARE, ANY SERVICES, DELIVERY OF SUPPORT, OR THE PERFORMANCE OR NON-PERFORMANCE OF THE TMI SOFTWARE OR ANY SERVICES PROVIDED HEREUNDER.
9.5 LIMITATIONS ON DAMAGES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY AND ALL DAMAGES SUFFERED BY EITHER PARTY, ANY USER, AND ANYONE ELSE, FOR WHICH EITHER PARTY OR ITS REPRESENTATIVES ARE LIABLE, WHETHER ARISING FROM OR RELATING TO THIS EULA, THE TMI SOFTWARE, ANY SERVICES, OR THE PERFORMANCE OR NON-PERFORMANCE OF THE TMI SOFTWARE OR ANY SERVICES, WHETHER BASED ON A BREACH OF CONTRACT OR WARRANTY, OR NEGLIGENCE, MISREPRESENTATION OR OTHER TORT, OR ON ANY OTHER LEGAL OR EQUITABLE THEORY, WILL BE STRICTLY LIMITED TO THE DOLLAR AMOUNT THAT WAS ACTUALLY PAID FOR THE DEFECTIVE SOFTWARE COMPONENT WITHIN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT THE APPLICABLE PARTY RECEIVES NOTICE OF AN EXISTING OR POTENTIAL CLAIM OR SUIT AGAINST IT. NO CLAIM OR SUIT MAY BE BROUGHT AGAINST TMI OR ITS REPRESENTATIVES BASED ON A BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION OR OTHER TORT, OR ON ANY OTHER LEGAL OR EQUITABLE THEORY, MORE THAN 1 YEAR AFTER YOU FIRST DISCOVERED OR SHOULD HAVE DISCOVERED ANY OF THE FACTS THAT GAVE RISE TO THE CLAIM OR SUIT. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. THIS LIMITATION APPLIES EVEN IF THE DAMAGES AVAILABLE TO YOU OR ANY OTHER CLAIMANT DO NOT FULLY COMPENSATE THEM FOR ANY OR ALL OF THEIR LOSSES OR TMI WAS ADVISED, KNEW OR SHOULD HAVE KNOWN, ABOUT THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
9.6 Application of Limitations and Disclaimers to Consumers. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in Section 9 above may not apply to you if you are a consumer. The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer. If you are a consumer, the limitations or exclusions of warranties and remedies contained in this Agreement shall apply to you only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.
- 10. MISCELLANEOUS
10.1 Subject to the terms hereof, TMI will provide you with e-mail support services for the Software. Under no circumstances will TMI have any obligation to provide you with hard-copy documentation, upgrades, enhancements, modifications, or telephone support for the Software.
10.2 The failure of either party to exercise any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.3 Entire Agreement. This Agreement represents the entire agreement between TMI and Licensee, and all prior assertions, understandings, warranties and representations are merged herein and superseded by this Agreement. It is a final integrated Agreement, which includes all terms, conditions and representations between TMI and Licensee, and TMI and Licensee make no warranties, covenants or agreements, express or implied, except these expressly set forth herein. This Agreement may be modified or amended only by a writing signed by both parties.
10.4 Breach. No breach of this Agreement by Licensee shall be deemed material unless within thirty (30) days after TMI learns of such breach, TMI serves on Licensee written notice thereof (email to suffice), in accordance with paragraph 10(f) below, specifying the nature of the breach and Licensee fails to cure such breach, if any, within thirty (30) days after its receipt of such notice.
10.5 Confidentiality. All parties hereto agree that the terms of this Agreement are, and shall remain in perpetuity, confidential and agree that such terms hereof shall not be disclosed to any other person unless otherwise authorized by the other party in writing, unless it is required or compelled to be produced through legal action or process. The parties further agree that, if required, to enter into non-disclosure agreements regarding confidential information, which are incorporated by reference herein.
10.6 Notices. All notices pursuant to this Agreement shall be in writing and shall be given to the other party by any nationally-recognized overnight delivery service, with proof of delivery, or shall be personally delivered to the party at its respective address first set forth hereinabove, or such other address or addresses as may be designated by either party, or by email, provided proof of delivery and a read-receipt is given. Such notices shall be deemed given three (3) days after mailing, except that a notice of change of address shall be effective only from the date of its receipt. A copy of all notices to TMI shall simultaneously be sent to: Scarinci & Hollenbeck, LLC, 150 Clove Road, 9th Floor, Little Falls, NJ 07424; Attn.: Ronald S. Bienstock, Esq.; email – firstname.lastname@example.org.
10.7 TMI/Licensee Relationship. Nothing contained in this Agreement shall be construed as establishing an employer/employee, partnership or joint venture relationship between Licensee and TMI.
10.8 Governing Law/Arbitration/Jurisdiction/Venue. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of New York without regard to the conflict of laws provisions thereof. With respect to any dispute arising from or related to this Agreement, including related to any breach as defined in paragraph 10(d) above, the complaining party shall notify the other party of the existence of such dispute pursuant to paragraph 10(f) above. Within thirty (30) days of such notice, the parties agree to attempt to resolve the dispute in good faith. In the event the dispute is not resolved within thirty (30) days of such notice, the parties agree that such dispute shall be settled by arbitration administered by JAMS pursuant to the JAMS Comprehensive Arbitration Rules & Procedures. The number of arbitrators shall be one (1). The place of arbitration shall be in New York, NY, USA. Judgment on the award rendered by the arbitrator shall be final and may be entered in any court having jurisdiction thereof. The parties shall each be responsible for their own pro rata costs for conducting the arbitration proceedings.
10.9 Binding Agreement/Assignment. This Agreement shall be binding upon and inure to the benefit of TMI and Licensee hereto and to their respective heirs, successors, assigns, parent corporation(s), subsidiary(ies) or otherwise related or affiliated individual(s) and/or licensee(ies). Notwithstanding the foregoing, Licensee shall not be entitled to assign any of the rights or obligations hereunder to any third party without the prior written consent of TMI.
10.10 Counterparts. This Agreement may be executed in counterparts and exchanged by facsimile or email (i.e., .pdf copy), and all counterparts, when taken together, shall be valid as one instrument as though signed in original on a single sheet.