End User License Agreement
PLEASE READ CAREFULLY.
THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (“YOU” AND “YOUR”) AND WAVEDNA LTD. (“WAVEDNA” “WE,” “US,” OR “OUR”). BY INSTALLING, COPYING OR USING THE LIQUID MUSIC OR LIQUID RHYTHM APPLICATION, YOU ARE INDICATING THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU CONSENT TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.
THIS AGREEMENT SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO YOUR USE OF ANY VERSION OF THE LIQUID MUSIC OR LIQUID RHYTHM SOFTWARE (THE “SOFTWARE”) AND ANY INFORMATION AND/OR DATA OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY ARTWORK, TEXT, VIDEO, AUDIO, OR PICTURES SERVED THROUGH THE SOFTWARE OR RECEIVED FROM OR ON ANY WEB SITE OWNED OR CONTROLLED BY WAVEDNA (COLLECTIVELY THE “CONTENT”) (THE SOFTWARE AND THE CONTENT ARE TOGETHER REFERRED TO AS THE “APPLICATION”).
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE APPLICATION AND YOU MUST STOP THE REGISTRATION PROCESS AND PROMPTLY CEASE USING AND DESTROY ANY COPIES OF THE SOFTWARE IN YOUR POSSESSION. FAILURE TO ABIDE BY THE TERMS OF THIS AGREEMENT MAY RESULT IN TERMINATION OF YOUR ACCESS TO THE APPLICATION AND/OR ANY PART THEREOF AND TO OTHERWISE PURSUE RECOURSE AGAINST YOU TO THE FULLEST EXTENT OF THE LAW.
Downloading the Application or downloading any free or paid content within the Application, may incur roaming or special bandwidth costs including standard carrier rates that apply for “over the air” data being consumed during the download process, and you are aware of and responsible for all such rates. You accept that those rates are your responsibility and between you and the wireless carrier you choose and are not the responsibility of WAVEDNA.
1. GRANT OF LICENSE
WAVEDNA hereby grants to you a limited, non-exclusive, non-transferable license to install and use the Application solely for personal, non-commercial use on one computer platform owned and controlled by you, wherein the computer platform may be a desktop computer, laptop computer, smart phone, tablet, handheld wireless device, games console or other computer platform that you own and control, and subject to the following additional terms:
You shall not: (i) copy, modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law), tamper with, or create derivative works based upon the Application, including the Content, or any portion thereof, or apply any other method or process to obtain or convert the Application from the object code version into a human-readable form; (ii) sell, rent, lease, transfer, distribute, host, broadcast, display or otherwise assign any rights to the Application, or any part thereof, to any third party; (iii) frame or link to the Application except as expressly permitted in writing by WAVEDNA; (iv) permit other individuals to use the Application; (v) use or copy the Application, or permit others to do the same, on a network, for online use, or on more than one desktop computer, laptop computer, smart phone, tablet, handheld wireless device, games console or other computer platform at the same time; (vi) alter or remove any proprietary notices, labels or marks on the Application; (vii) use the Application in conjunction with any device or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction; (viii) use the Application for any commercial, illegal, tortious, criminal or inappropriate purpose; (ix) use the Application to invade the privacy of, or obtain personal information about, any Application account holder or user, or to obtain a list of Application account holders or users; (x) use the Application to violate any legal right of any third party, including any publicity or privacy right, copyright or other intellectual property right, or to take any action that is harassing, libelous, defamatory, abusive, tortious, threatening, harmful or otherwise objectionable; or use any data mining, robots, or similar data gathering and or extraction tools in connection with the Application; or (xi) make derivative works of any WAVEDNA Content or distribute the Content through any means such as file sharing networks, websites, video sites, wireless or any network that allows transmission of data.
2. INTELLECTUAL PROPERTY
WAVEDNA retains all title, ownership rights, and intellectual property rights in and to the Application (including the Software). Except as expressly stated in this Agreement, WAVEDNA does not grant any express or implied right or license to you under any patent, copyright, trademark, or trade secret rights of WAVEDNA.
The Content provided by WAVEDNA or third parties directly through the Application is the property of WAVEDNA, its licensors, its partners, and/or its advertisers. Title, ownership rights and intellectual property rights in and to such Content is the property of WAVEDNA or third-party content owners and copyright holders and is protected by applicable copyright and other law. Other than as expressly provided herein, this Agreement gives you no express or implied license to the Content, including without limitation, any right to use, sell, rent, copy, distribute, broadcast, modify, perform or publicly display any Content.
You may not use the Application to help you infringe the copyrights of any third party. Unauthorized use, copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holders’ rights and a violation of the law. You agree that you shall only use the Application in a manner that does not violate any third-party rights and that complies with all applicable laws in the jurisdiction in which you use the Application, including, but not limited to, applicable restrictions concerning copyrights and other intellectual property rights. Certain Content is restricted by jurisdiction. Any attempt to circumvent or obtain Content that is restricted in your jurisdiction is subject to the third party rights holders of the Content, as applicable.
3. THIRD PARTY SOFTWARE
The Application incorporates third party software components (the “Third Party Software”), including as follows:
Apache License, Version 2.0, accessible at http://www.apache.org/licenses/LICENSE-2.0
BSD Public License, accessible at http://www.opensource.org/licenses/bsd-license.php
Creative Common Attribution 3.0, accessible at http://creativecommons.org/licenses/by/3.0/
Eclipse Public License 1.0, accessible at http://www.eclipse.org/legal/epl-v10.html
Illposed Software License, accessible at http://www.illposed.com/software/javaosc.html
LGPL, accessible at http://www.gnu.org/licenses/lgpl-2.1.html
Common Public License, Version 1.0, accessible at http://www.eclipse.org/legal/cpl-v10.html
Jide Software License, accessible at http://www.jidesoft.com/purchase/SLA.htm
General Public LIcense Version 3.0, accessible at http://www.gnu.org/licenses/gpl.html
Oracle Java License http://java.com/license
By accepting this Agreement, you also hereby accept the additional terms and conditions with respect to such Third Party Software, as referenced above. Unless required by applicable law or agreed to in writing, and further subject to the terms of this Agreement, all Third Party Software is distributed on an “as is” basis, without warranties or conditions of any kind, whether express or implied.
4. PRE-RELEASE VERSIONS
In the event that the Software is a pre-release version, the terms of this Section shall apply. Your license to use the Software expires 30 days after installation (or such other period as indicated by the Software) and the Software may cease to function. The Software you are receiving may contain more features or fewer features than the commercial release of the Software we intend to distribute. While we intend to distribute a commercial release of the Software, we reserve the right at any time not to release a commercial release of the Software or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the commercial release. You agree that the pre-release versions are not suitable for production use and may contain errors affecting its proper function. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the license expires.
5. DISCLAIMER OF WARRANTY
THE APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE APPLICATION OR ITS OPERATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WAVEDNA, ITS LICENSORS, AND ITS DISTRIBUTION AND SYNDICATION PARTNERS DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
USE OF THE APPLICATION IS AT YOUR OWN RISK. WAVEDNA MAKES NO WARRANTY THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, OR THAT THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE OF VIRUSES, OR ERROR FREE; NOR DOES WAVEDNA MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE APPLICATION OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE APPLICATION. UNDER NO CIRCUMSTANCES SHALL WAVEDNA BE LIABLE FOR ANY UNAUTHORIZED USE OF THE APPLICATION.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL WAVEDNA BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES RESULTING FROM OR ARISING IN CONNECTION WITH THIS AGREEMENT, OR THE APPLICATION OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION LOSS OF REVENUES, LOSS OF USE, BUSINESS INTERRUPTION, THE INCAPACITY TO REACH ANY OBJECTIVE, OR THE LOSS OF DATA, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES BY YOU OR ANY OTHER PERSON. WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL WAVEDNA BE LIABLE TO YOU OR ANY PERSON: (A) ON ACCOUNT OF YOUR OR THAT PERSON’S USE OR MISUSE OF OR RELIANCE ON THE APPLICATION; (B) FOR ANY LOSS OR DAMAGE SUFFERED AS A RESULT OR IN CONNECTION WITH THE FAILURE, MALFUNCTION, INTERRUPTION, CHANGE, MODIFICATION, AMENDMENT OR WITHDRAWAL OF THE APPLICATION. WAVEDNA WILL NOT BE RESPONSIBLE FOR ANY DAMAGES YOU OR ANY THIRD PARTY MAY SUFFER AS A RESULT OF THE TRANSMISSION, STORAGE OR RECEIPT OF CONFIDENTIAL, PERSONAL OR PROPRIETARY INFORMATION THAT YOU MAKE OR THAT YOU EXPRESSLY OR IMPLICITLY AUTHORIZE WAVEDNA TO MAKE, OR FOR ANY ERRORS OR ANY CHANGES MADE TO ANY TRANSMITTED, STORED OR RECEIVED INFORMATION IN NO EVENT SHALL WAVEDNA’S CUMULATIVE LIABILITY FOR ANY DAMAGES EXCEED FIFTY U.S. DOLLARS ($50.00 USD). THE LIMITATIONS SPECIFIED ABOVE SHALL APPLY REGARDLESS OF THE CAUSES OR CIRCUMSTANCES GIVING RISE TO THE CLAIM, EVEN IF SUCH CLAIM IS BASED ON BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORT, AND SHALL SURVIVE A FUNDAMENTAL BREACH OR FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
You agree to indemnify, defend and hold harmless, at your own expense, WAVEDNA, its directors, officers, employers, agents, affiliates, licensors, successors and assigns (each a “WAVEDNA Indemnified Party”) against any and all damages, injuries, claims, demands, actions, liabilities, costs and expenses (including reasonable legal fees) incurred by or made against a WAVEDNA Indemnified Party resulting from your use of the Application or any other matter relating to the Application, including but not limited to any breach or violation of this Agreement, infringement, misappropriation or any violation of the rights of any other party, violation or non-compliance with any law or regulation, the breach or violation of any term or condition of this Agreement, any use, alteration or export of the Application or otherwise in connection with this Agreement. WAVEDNA reserves the right to assume, at its expense, the exclusive defence and control of any claims or actions and all negotiations for settlement or compromise, and you agree to fully cooperate with WAVEDNA upon its request.
WAVEDNA may, at its option, terminate this Agreement immediately, with or without notice, if you fail to comply with any terms and conditions of this Agreement. Upon termination, all license rights under this Agreement will terminate and you must promptly destroy all copies of the Software in your possession or control. Termination by WAVEDNA will not limit any of WAVEDNA’s other rights or remedies under this Agreement or at law or in equity.
9. COPYRIGHT AGENT
It is our policy to terminate license privileges of any user who infringes copyright, whether upon notification to us by the copyright owner or the copyright owner’s legal agent, or otherwise. Without limiting the foregoing, if you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place by any user of the Application by completing the following Notice of Alleged Infringement and delivering it to our Designated Copyright Agent. Upon receipt of Notice as described below, we will take whatever action, in our sole discretion, we deem appropriate, including revocation of the user’s license.
Notice of Alleged Infringement
Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
Identify the material you claim is infringing (or the subject of infringing activity), including at a minimum, if applicable, the title of work, or the location within the Application.
Provide your company affiliation (if applicable), mailing address, telephone number, and, if available, e-mail address.
Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to our Designated Copyright Agent at:
10. EXPORT RESTRICTIONS
You agree to comply with all applicable laws and regulations. This Agreement is expressly made subject to any laws, regulations, orders or other restrictions on the export from Canada of the Application which may be imposed from time to time by the government of the Canada. You shall not export the Application or information about the Application except in compliance with such laws, regulations, orders or other restrictions.
11. DISPUTE RESOLUTION
Any dispute hereunder will be finally resolved by one arbitrator pursuant to the Arbitration Act (Ontario) S.O. 1991, c. 17. If the parties cannot agree on the appointment of an arbitrator within sixty (60) days of notice of the dispute first being provided by one party to the other, the arbitrator shall be appointed by a Judge of a court of competent jurisdiction. All hearings shall take place in Ontario. Any judgment or award rendered by such arbitrator shall be final and binding and no appeal shall lie therefrom. This section does not affect the rights of the parties to seek injunctive relief when appropriate to enforce rights hereunder.
12. GOVERNING LAW
This Agreement shall be governed by the laws of the Province of Ontario, Canada without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the provincial and federal courts located in Ontario, Canada.
13. NO WAIVER; NO ASSIGNMENT
No delay or failure to take action under this Agreement shall constitute any waiver by WAVEDNA of any provision of this Agreement. This Agreement is personal to you and may not be transferred, assigned or delegated to anyone. Any attempt by you to assign, transfer or delegate this Agreement shall be null and void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
WAVEDNA may modify this Agreement at any time in its sole discretion. In the event of a material change to this Agreement we will use reasonable efforts to notify you by sending notice to the e-mail address that you have provided to us. If any modification is unacceptable to you, you agree that your only recourse is to immediately terminate your use of the Application and destroy any copies of the Software in your possession. Your continued use of the Application following such modification will constitute your binding acceptance of the change. YOUR ACCEPTANCE OF THIS AGREEMENT INDICATES THAT YOU GIVE CONSENT TO WAVEDNA TO E-MAIL YOU NOTICES CONCERNING MATERIAL CHANGES IN THE TERMS OF THIS AGREEMENT.
If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, any such provision shall be severable from this Agreement, in which event this Agreement shall be construed as if such provision had never been contained herein.
16. ENTIRE AGREEMENT
The terms and conditions contained in this Agreement constitute the entire agreement between the parties and supersede all previous and/or contemporaneous agreements and understandings, whether oral or written, between the parties hereto with respect to the subject matter of this Agreement.
WaveDNA Ltd End User License Agreement, September 2016