End User License Agreement
Please read this entire agreement carefully. This End User License Agreement is a legal document between you and Audionamix® that outlines both your obligations and the company’s. It is important for you and Audionamix® that you are comfortable with these terms. While it may not be exciting reading, you should read the entire agreement before you download, install or use the Audionamix® Software. If you do not understand or agree to any part of this agreement, you should not download, install or use the Audionamix® Software.
AUDIONAMIX INC. END USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. USER UNDERSTANDS AND AGREES THAT BY DOWNLOADING, INSTALLING OR USING THE AUDIONAMIX® SOFTWARE USER IS INDICATING ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT. IF USER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, USER SHOULD NOT DOWNLOAD, INSTALL OR USE THE AUDIONAMIX® SOFTWARE. EXCEPT AS SPECIFICALLY IDENTIFIED HEREIN, THIS AGREEMENT SUPERSEDES ANY OTHER WRITTEN OR ORAL AGREEMENTS BETWEEN USER AND AUDIONAMIX INC.
USER MUST BE OVER THE AGE OF MAJORITY TO ENTER INTO THIS AGREEMENT. IF USER IS NOT OVER THE AGE OF MAJORITY DO NOT DOWNLOAD, INSTALL OR USE THE AUDIONAMIX® SOFTWARE
This End User License Agreement (“Agreement”) is made and entered into between you (“User”) and Audionamix Inc. (“Manufacturer” or “Audionamix”), and is effective as of the date User downloads and installs the Audionamix, Inc. Software (hereafter “the Software”).
User is an individual or business that desires to download, install and use the Software for its intended purpose. In consideration of the premises, and of the mutual covenants and conditions, the parties agree to the following terms and conditions:
1) License. Provided User complies with the terms and conditions of this Agreement, Manufacturer hereby grants User a non-exclusive, non-transferable right and license to download, install and use the Software which is described in Exhibit A. Except as expressly granted to User in this Agreement, Audionamix retains all right, title and interest in the Software and its intellectual property. This Agreement is a license agreement only and under no circumstances shall it be construed to transfer any ownership rights in the Software to User; the Software is licensed, not sold. This Agreement only gives you some rights to use the Software.
(a) Audionamix may offer to Licensee, and Licensee may elect to acquire, a subscription to the Licensed Materials described under this Agreement. If User purchases a subscription (“Subscribed User” or “Subscription User”), User gains access to and use of the Software for the period of payment. A Subscribed User’s access to the software is limited to the period of time User timely submits payment to Manufacturer. Subscribed Users may download the latest and most recent version of the software, and any Minor Updates and Major Updates (“Updates”) are included in the Subscribed User package. A Subscribed User is only entitled to Minor and Major Updates during the period of time User timely submits payment to Manufacturer. Subscribed Users are subject to and bound by Manufacturer’s License Agreement (this Agreement) and any additional terms as modified from time to time.
(b) Audionamix may offer to Licensee, and Licensee may elect to purchase, the Product described under this Agreement. If User “purchases” the software (“Purchase User”), the User gains access to and use of the Software for a perpetual period of time. User obtains unlimited access to the version of the Software that was current when User purchased the Product. User does not, under any circumstances, own any Software. Instead, Purchase Users obtain a license to use and gain access to the Software. Access to the software may be subject to Manufacturer’s Obligations enumerated in Section 2 below. Purchase Users may receive Minor Updates, but are not entitled to Major Updates, discussed in section 3(c), below. Purchase Users are bound by Manufacturer’s License Agreement (this Agreement) and any additional terms as modified from time to time
2) Manufacturer’s Obligations.
(a) The Software is licensed to User “as is” and “as available”. Because the Software is licensed to User “as is”, Manufacturer may not provide support services. Access to product support features will be made available online accessed through the application.
(b) Manufacturer has no obligation to develop or provide any Updates, including both Minor Updates and Major Updates, or revisions to the Software, and Manufacturer reserves the right to alter or adjust performance specifications for the Software as it deems necessary or desirable in its sole discretion. Any Updates will be provided for Subscribed Users at no additional cost.
(c) Manufacturer will provide the instructions, safety information, warnings or cautions concerning the Software described in Exhibit A and no other.
3) Updates and Previous Versions.
(a) If Audionamix provides Licensee with an Update to any licensed materials previously licensed under this Agreement, the Licensed Materials previously licensed to Licensee are therefore deemed to be a “Previous Version.” Any license granted or any other rights with respect to a Previous Version shall terminate ninety (90) days after installation of the Update. Within this period of time, Licensee must cease all use of any Previous Version, and upon the expiration of the ninety (90) days, the Previous Version shall no longer constitute a licensed version and shall be considered use of a product in violation of this Agreement. Licensee agrees to destroy or return any Previous Versions upon request by Audionamix, Audionamix reserves the right to require Licensee to show satisfactory proof that any and all copies of any Previous Versions have been uninstalled and destroyed.
i) This termination of rights does not apply to Licensee if Licensee is authorized by Audionamix in writing to retain a Previous Version.
(b) Minor Updates – User understands that Manufacturer may, but is not required to, produce Minor Updates for the Software. User acknowledges that designation of an Update as a Minor Update shall be determined by the Manufacturer, and the Manufacturer alone. User understands that Minor Updates will be provided for Subscription Users provided the Subscription User timely submits payment to Manufacturer. Purchase Users may also be able to download Minor Updates at no additional fee.
(c) Major Updates – User understands that Manufacturer may, but is not required to, produce Major Updates for the Software. User acknowledges that designation of an Update as a Major Update shall be determined by the Manufacturer, and the Manufacturer alone. User understands that Major Updates, if any, will be provided to Subscription Users as a benefit for subscribing. Subscribed Users will have access to Major Updates during the period the Subscribed User timely submits payment to Manufacturer. User understands that Major Updates will not be provided to Purchase Users. User further agrees that Major Updates may become available to Purchase Users for an additional fee.
(d) Additional Terms – User acknowledges that Audionamix may provide Minor or Major Updates, and these Updates may include or be subject to additional or different terms or conditions than the terms set forth in this Agreement. Licensee agrees to comply with such terms. If there are no additional or different terms, Licensee will be subject to the terms of this Agreement or any superseding or updated terms agreed to in the most recent Update.
4) User’s Obligations.
In accordance with the license described in Paragraph 1 above User agrees:
(a) Not to alter, copy, modify, or re-transmit the Software;
(b) Not to publicly disclose, sublicense, assign, lease, loan, share, publish or otherwise transfer the Software for any reason to any third party;
(c) Not to remove, obscure, or alter any text or proprietary notices contained in Software;
(d) Not to copy or imitate part or all of the design, layout, workflow, process, or look-and-feel of the Software, which are protected by Manufacturer’s intellectual property rights;
(e) To use the Software only as permitted by the terms of this Agreement and any applicable law; and
(f) That Manufacturer may modify or discontinue, temporarily or permanently, the Software, or any portion thereof, with or without notice to User. User agrees that Manufacturer shall not be liable to User or anyone else if Manufacturer does so. Manufacturer will refund to User the unused portion of any Software subscription fee paid by User to Manufacturer in the event Manufacturer discontinues the Software or terminates User’s rights under this Agreement for reasons other than a breach of this Agreement. If User purchased the product from Manufacturer, Manufacturer will not refund any portion of User’s fees.
(g) To pay all incidental costs (such as, costs for Internet and phone services, accessories, cabling, etc.) associated with the Software and incurred during User’s use of the Software. At times it is possible that the Software may not perform at the level of performance, compatibility or safety of Manufacturer’s generally available products. User understands and agrees that Manufacturer makes no representation or warranties regarding use of the Software. User shall have the responsibility for adequate protection and backup of his/her/its data or equipment used in connection with the Software and User shall not make any claim against Manufacturer for lost data, re-run time, inaccurate input, work delays or lost profits resulting from the use of the Software.
(h) That User shall only use and utilize the Software in conjunction with audio or audiovisual software or materials for which User owns the copyright(s) to or which User has written permission to use or which User has determined is in the public domain. User understands and agrees that: (i) any violation of this provision may subject User to monetary damages, attorney’s fees and other relief as provided for in the United States Copyright Act of 1976 and other applicable laws; (ii) Manufacturer shall not be responsible for any portion of any such monetary damages, attorney’s fees or other relief User is deemed responsible for; (iii) In addition to paragraph 8 below, User indemnifies and holds Manufacturer harmless from any claims made against Manufacturer arising from User’s violation of this paragraph 3.(h).
(i) User warrants and represents to Manufacturer that User is at least the age of majority at the time that he/she/it executes this Agreement.
(j) That Manufacturer may need to Update its products, equipment, servers, and technology from time to time. These updates and changes may cause compatibility issues with older versions of the software. Subscription Users will have access to these Updates, but Purchase Users may need to purchase the Update from Manufacturer at a reasonable fee in order to remain compatible with server updates or access to new features and enhancements. Purchase Users may have continued local access and use of previous versions of the Software without purchasing any Updates.
(k) That Manufacturer may need to Update its products, equipment, servers, and technology from time to time. These updates and changes may cause compatibility issues with older or newer versions of a computer’s operating system or newer versions of a computer’s operating system or its local hardware. The Manufacturer is not responsible for any incompatibility issues that may occur when user updates their operating system or machine.
4.1) User Conduct.
User agrees not to use, or to encourage or permit others to use the Software to:
(a) Produce and/or share any material that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, obscene, lewd, profane, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
(b) Produce and/or share any material that User does not have a right to share under any law or contractual or fiduciary relationship;
(c) Produce and/or share any material that infringes any intellectual property right or other proprietary right of any party;
(d) Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(e) Use any of Manufacturer’s domain name(s) as a pseudonymous return email address;
(f) Produce and/or share any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment;
(g) Intentionally or unintentionally violate any applicable laws related to the access to or use of the Software, violate any requirements, procedures, policies, or regulations of networks connected to the Software, or engage in any activity prohibited by the terms of this Agreement;
(h) Disrupt, interfere with, or inhibit any other user from using and enjoying the Software, or other affiliated or linked sites, services, or materials;
(i) Access or attempt to access any material that User is not authorized to access or through any means not intentionally made available;
(l) Market any goods or services for any business purposes (including advertising and making offers to buy or sell goods or services), unless specifically allowed to do so by Manufacturer;
(m) Reproduce, sell, trade, resell or exploit for any commercial purpose, any portion of the Software, use of any Software, or access to any service or materials;
(n) Host, on a subscription basis or otherwise, the Software without Manufacturer’s authorization, including any related application, to permit a third party to use the Software to create, transmit, or protect any content; or;
(o) Defraud, defame, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
(a) If User is a company or other entity, User shall disclose Confidential Information only to those of its employees who need to know such information and shall ensure that its employees observe the confidentiality obligations in this Section. User acknowledges that the Software contains Confidential Information developed or acquired by Manufacturer and that all rights therein and in any other Confidential Information remain in Manufacturer. In addition, User agrees to treat any communications as Confidential Information and will not divulge the existence or content of such communications or reports to any third party without Manufacturer’s prior written consent.
(b) This Agreement shall impose no obligation of confidentiality upon User with respect to any portion of the Confidential Information which: (i) now or hereafter, through no act or failure to act on User’s part, becomes generally known or available; (ii) is demonstrably known to User at the time User receives same from Manufacturer as evidenced by written records; (iii) is hereafter furnished to User by a third party as a matter of right and without restriction on disclosure.
(c) User’s login name and password are private and sensitive information and help maintain the confidentiality of certain facts and data. Therefore, Users may not share login information with any third party. This includes any other account information saved or required by Manufacturer or any information that is available to User. User is responsible for all use of the account information, and shall be held solely liable for any breaches of this Agreement or damage that occurs from sharing the information.
6) Proprietary Rights; No Right to Copy, Modify, or Disassemble.
(a) The Software provided by Manufacturer and all copies thereof, are proprietary to and the property of Manufacturer. All applicable rights in all copyrights, trademarks, trade secrets, trade names, patents and other intellectual property rights in or associated with the Software are and will remain in Manufacturer and User shall have no such intellectual property rights in the Software.
(b) User may not copy or reproduce the Software without Manufacturer’s prior written consent. User may not copy or reproduce any software or documentation provided by Manufacturer, without Manufacturer’s prior written consent. Each copy of software or documentation made by User must contain Manufacturer’s proprietary and copyright notices in the same form as on the original.
(c) User agrees to secure and protect the Software and all copies thereof in a manner consistent with the maintenance of Manufacturer’s rights therein and to take appropriate actions by instruction or agreement with any of his/her/its employees, contractors or agents permitted access thereto.
(d) User shall not reverse engineer, alter, modify, disassemble or decompile the Software, or any part thereof, without Manufacturer’s prior written consent.
(e) USER WILL NOT RENT, LEASE, SELL, SUBLICENSE, ASSIGN, OR TRANSFER ITS RIGHTS IN THE SOFTWARE (INCLUDING WITHOUT LIMITATION SOFTWARE OBTAINED THROUGH A WEB DOWNLOAD), OR AUTHORIZE ANY PORTION OF THE SOFTWARE TO BE COPIED ONTO ANOTHER INDIVIDUAL OR ENTITY’S COMPUTER EXCEPT AS MAY BE EXPRESSLY PERMITTED HEREIN.
7) Disclaimer of Warranty. By its nature, the Software may contain errors, bugs and other problems that could cause system failure. Further, because the Software is subject to change, Manufacturer reserves the right to alter the Software at any time, and any reliance on the Software is at User’s own risk. USER THEREFORE ACCEPTS THE SOFTWARE “AS IS.” MANUFACTURER MAKES NO WARRANTY OF ANY KIND REGARDING THE SOFTWARE. MANUFACTURER HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTIES RIGHTS.
WITHOUT LIMITING THE FOREGOING, MANUFACTURER AND ITS LICENSORS MAKE NO WARRANTY THAT (a) THE SITE, SERVICES OR MATERIALS WILL MEET YOUR REQUIREMENTS OR WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; (b) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, SERVICES, OR MATERIALS WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (c) THE QUALITY OF THE SITE, SERVICES, OR MATERIALS WILL MEET YOUR EXPECTATIONS; OR THAT (d) ANY ERRORS OR DEFECTS IN THE SITE, SERVICES, OR MATERIALS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MANUFACTURER OR THROUGH OR FROM USE OF THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
MANUFACTURER SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR USE OF OR PARTICIPATION IN ANY SERVICES AND YOUR USE OF MATERIALS. ANY MATERIAL DOWNLOADED, MADE AVAILABLE, OR OTHERWISE OBTAINED THROUGH USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO
YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. MANUFACTURER ASSUMES NO LIABILITY FOR ANY
COMPUTER VIRUS OR SIMILAR CODE THAT IS DOWNLOADED TO YOUR COMPUTER FROM ANY OF THE SERVICES.
MANUFACTURER DOES NOT CONTROL, ENDORSE, OR ACCEPT RESPONSIBILITY FOR ANY MATERIALS OR SERVICES OFFERED BY THIRD PARTIES ACCESSIBLE THROUGH LINKED SITES. MANUFACTURER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT, AND SHALL NOT BE LIABLE FOR, ANY SUCH THIRD PARTIES, THEIR MATERIALS OR SERVICES. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.
MANAGERS, HOSTS, PARTICIPANTS, MODERATORS, AND OTHER THIRD PARTIES ARE
NOT AUTHORIZED MANUFACTURER SPOKESPERSONS, AND THEIR VIEWS DO NOT NECESSARILY REFLECT THOSE OF MANUFACTURER. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, MANUFACTURER WILL HAVE NO LIABILITY RELATED TO USER MATERIAL ARISING UNDER INTELLECTUAL PROPERTY RIGHTS, LIBEL, PRIVACY, PUBLICITY, OBSCENITY, OR OTHER LAWS. MANUFACTURER ALSO
DISCLAIMS ALL LIABILITY WITH RESPECT TO THE USE, MISUSE, LOSS, MODIFICATION, OR UNAVAILABILITY OF ANY USER MATERIAL.
MANUFACTURER WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR AS A RESULT OF SOMEONE ELSE USING YOUR PASSWORD OR ACCOUNT OR ACCOUNT INFORMATION IN CONNECTION WITH THE SOFTWARE OR ANY OF MANUFACTURER’S SERVICES OR MATERIALS, WITH OR WITHOUT YOUR KNOWLEDGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
8) Term and Termination.
(a) The term of this Agreement shall begin on the date the Software is downloaded and installed on User’s system and shall continue until terminated as set forth below. Upon termination of this Agreement for any reason, the obligation to protect Confidential Information set forth in Section 5 shall survive such termination.
(b) This Agreement may be terminated at any time by Manufacturer if User violates this Agreement in any manner, subject to Section 10 below. Notice of termination of this Agreement may be delivered to User at the e-mail address provided by User to Manufacturer at the time this Agreement is entered into by Manufacturer and User. Termination under this provision may affect both Subscribed Users and Purchase Users.
(c) Termination may occur for a Subscribed User if the User fails to make a payment to Audionamix.
(d) Upon termination of this Agreement, User agrees to (a) return the Software and all copies thereof to Manufacturer, if requested by Manufacturer in writing to do so, within seven (7) days after such termination, or (b) if requested by Manufacturer to do so, certify to Manufacturer in writing that the Software and all copies thereof have been destroyed. The provisions of, and the obligations of the parties under, Sections 5, 6, 7, 9 and 10, and any other provisions that would normally survive, shall survive the termination of this Agreement.
9) Indemnification, Limitation of Liability.
User represents and warrants that: (a) User owns the intellectual property rights, or has obtained all necessary license(s) and permission(s), to use whatever material(s) in keeping with the use of the Software or as otherwise permitted by the terms of this Agreement; (b) User has received consent from any and all persons featured in these material(s) to use these material(s) for distribution, public display, public performance, and/or reproduction; and (c) these material(s) do not violate or infringe any intellectual property right or other proprietary right, including right of publicity or privacy, of any person, company or entity, or other third party.
User agrees to indemnify and hold Manufacturer and its subsidiaries, affiliates, officers, agents, employees, co-branders or other partners, and licensors harmless from any claim or demand, including reasonable attorneys’ fees, due to or arising out of the use of the material(s), the use of the Software, User’s connection to the Software or Materials, User’s use and access of personal information of other users, any claim that the material(s) caused damage to someone else, any dealings between User and anyone else advertising or promoting via the Software or materials, User’s violation of the terms of this Agreement, or User’s violation of any rights of another, including any intellectual property rights.
IN NO EVENT SHALL MANUFACTURER, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE TO USER OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT FORESEEABLE OR IF MANUFACTURER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR BASED ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH USER’S USE OF THE SOFTWARE.
MANUFACTURER’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, LICENSORS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO $100 USD OR THE AGGREGATE AMOUNT PAID BY USER FOR THE SOFTWARE DURING THE THEN-CURRENT SOFTWARE LICENSE TERM, WHICHEVER IS LARGER. THIS LIMITATION WILL APPLY EVEN IF MANUFACTURER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN USER’S JURISDICTION. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO USER.
Manufacturer, in its sole discretion, may (but has no obligation to) monitor or review the services provided by Manufacturer at any time. Although Manufacturer does not generally monitor User activity occurring in connection with the Software, if Manufacturer becomes aware of any possible violations by you of any provision of the terms of this Agreement, Manufacturer reserves the right to investigate such violations, and Manufacturer may, at its sole discretion, immediately terminate your rights hereunder, including your right to use the Software. If, as a result of such investigation, Manufacturer believes that criminal activity has occurred, Manufacturer reserves the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities. Except to the extent prohibited by applicable law, Manufacturer is entitled to retain and/or disclose any information in Manufacturer’s possession in connection with your use of the Software to (a) comply with applicable law, legal process, or governmental request; (b) enforce the terms of this Agreement; (c) respond to any claims that you have violated the terms of this Agreement or the rights of third parties; (d) respond to your requests for customer services; or (e) protect the rights, property or personal safety of Manufacturer, its users, including the public at large, as Manufacturer in its sole discretion believes to be necessary.
11) Notification of Copyright Infringement.
(a) Manufacturer respects the Intellectual Property Rights of others and expects its Users to do the same. Manufacturer will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c) (2) (“DMCA”) (and other similar or applicable laws) and its response to such notices may include removing or disabling access to the Software, terminating the accounts of repeat infringers, and/or making good-faith attempts to contact the User who allegedly infringed the Intellectual Property Rights of other so that he/she/it may, where appropriate, make a counter-notification.
(b) If you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is hosted on manufacturer’s services, on websites linked to or from such services, or in connection with the Software, please provide, pursuant to the DMCA, written notification via regular mail or via fax (not via email or phone) of claimed copyright infringement to Manufacturer’s Copyright Agent (contact information below), which must contain all of the following elements: (a) A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed; (b) A description of the copyrighted work(s) that you claim have been infringed and identification of what Material in such work(s) is claimed to be infringing and which you request to be removed or access to which is to be disabled; (c) A description of where the Material that you claim is infringing is located on the Services; (d) Information sufficient to permit Manufacturer to contact you, such as your physical address, telephone number, and email address; (e) A statement by you that you have a good faith belief that the use of the Material identified in your notice in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) A statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner’s behalf. Before you file such a notification, please carefully consider whether or not the use of copyrighted material at issue is protected by the “fair use” doctrine, as you could be liable for costs and attorneys’ fees should you file a takedown notice where there is no infringing use. If you are unsure whether a use of your copyrighted material constitutes infringement, please contact an attorney. In addition, you may wish to consult publicly available reference materials such as those found at www.chillingeffects.org.
(c) If you believe access to your Material was disabled or removed by Manufacturer as a result of an improper copyright infringement notice, please provide, pursuant to the DMCA, written notification via regular mail or via fax (not via email or phone) to Manufacturer’s Copyright Agent (contact information below), which must contain all of the following elements: (a) A physical or electronic signature of the subscriber; (b) Identification of the material that was removed from the Services and the location of the Service on which the material appeared before it was removed; (c) A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (d) Information sufficient to permit Manufacturer to contact you, such as your physical address, telephone number, and email address; and (e) A statement that you consent to jurisdiction of the Federal District court for the district where you reside (or of Los Angeles County, California if you reside outside of the United Sates) and that you will accept service of process from the person who provided notification under DMCA subsection (c)(1)(C) or an agent of such person. Before you file such a counter-notification, please carefully consider whether or not the use of the copyrighted material at issue is infringing, as you could be liable for costs and attorneys’ fees in the event that a court determines your counter-notification misrepresented that the material was removed by mistake. If you are unsure whether a use of your copyrighted material constitutes infringement, please contact an attorney. In addition, you may wish to consult publicly available reference materials such as those found at www.chillingeffects.org.
(d) Manufacture’s copyright agent for notice of claims of copyright infringement can be reached as follows:
Copyright Agent: Branfman Law Group, P.C
re: Audionamix, Inc.
708 Civic Center Drive
Oceanside, CA 92054
By fax: (760) 637-7421
By email: email@example.com
By telephone: (760) 637-2400
The Copyright Agent will not remove Material from the Services in response to phone or email notifications regarding allegedly infringing Material, since a valid DMCA notice must be signed, under penalty of perjury,by the copyright owner or by a person authorized to act on his or her behalf. Please submit such notifications by fax or ordinary mail only and as further described by this Section. The Copyright Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright
infringement and that such infringement is occurring on the Services or on sites linked to or from the Services, or in connection with the Services or Materials. All other inquiries directed to the Copyright Agent will not be responded to.
12) Exporting Restrictions; United States Government Legends. The Software that is provided to User may be subject to United States Export Restrictions. User agrees not to export or re-export any Software or accompanying documentation in violation of any applicable laws and regulations of the United States or the country in which User obtained them. The software, firmware or other parts of the Software covered by this Agreement may contain strong data encryption code, which cannot be exported outside the United States or Canada. User agrees not to export or re-export, either physically or electronically, an encrypted Software or accompanying documentation without obtaining written authorization from the U.S. Department of Commerce. Without limitation, a User who licenses Software from Manufacturer is responsible for obtaining all licenses or other approvals necessary for downloading or transfer of the Software or use of the Manufacturer’s service. A party may not transfer the Software or Manufacturer’s services without U.S. Government permission to (a) anyone on the U.S. Treasury Department’s lists of Specially Designated Nationals (including the Government of Iran, Government of Sudan, Government of Cuba, prohibited members of the Cuban Communist Party), or on the U.S. Commerce Department’s Denied Persons List, Entity List, or Unverified List, or on the U.S. State Department’s Debarred List or Nonproliferation List (see Commerce Lists to Check); or (b) for use with chemical or biological weapons, sensitive nuclear end-uses, or missiles to deliver them.
13) Waiver. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed.
14) Assignment; Severability. User agrees not to assign any rights under this Agreement; any attempted assignment shall be null and void and shall result in the termination of this Agreement. If any part of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement which shall remain in full force and effect.
15) Governing Law/Legal Expenses. This Agreement shall be deemed to be executed in Los Angeles, California and shall be governed by the laws of the State of California, excluding any such laws that might direct the application of the laws of another jurisdiction. The parties agree that the federal or state courts located in the County of Los Angeles, State of California shall have exclusive jurisdiction to hear any dispute under this Agreement. In the event any party to this Agreement commences any action, legal or otherwise, concerning any aspect of this Agreement, including but not limited to the interpretation or enforcement of any of its provisions or because of any alleged dispute, breach, default, or misrepresentation in connection with any aspect or provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and all other costs and expenses incurred in connection with the action or proceeding, including without limitation expert witness fees, court reporter fees, collection expenses, and the costs of appeal, in addition to any other relief that party may be entitled, whether or not such action proceeds to judgment. The award of attorney's fees shall not be bound by any court fee schedule, but shall, if it is in the interest of justice to do so, include the full amount of costs, expenses, and attorney fees incurred in good faith.
16) Entire Agreement. This Agreement and the Exhibits hereto, including any additional terms and conditions listed in Exhibit A represent the entire agreement between the parties regarding the subject matter hereof and supersede any and all prior agreements between the parties, whether written or oral, regarding the subject matter hereof. This Agreement may not be modified or amended except by the written amendment signed by both parties to this Agreement.
EXHIBIT A – Definitions
1) “Agreement” means this License Agreement, including all exhibits attached thereto and any amendments that may be made, as the Agreement may be amended from time to time in accordance with the terms thereof.
2) “Audionamix” means Audionamix Inc., a California corporation.
3) “DMCA” means the Digital Millennium Copyright Act, a federal law intended to prevent, criminalize, and raise the penalties for copyright infringement.
4) “Fair Use” means the defense to copyright infringement codified in 17 U.S.C. § 107.
5) “Licensee” means the individual who accepts the Agreement by selecting “I accept” or any other mechanism associated with this Agreement or otherwise indicating assent to be bound by the terms of this Agreement, or by installing, accessing, downloading, or using any portion of this Software. Licensee may include a person or entity.
6) “Licensed Materials” means the computer program, or any part of the computer program, distributed or made available by Audionamix. This term also refers to all functions and features of the computer program.
7) “Major Update” means any additional material associated with the Licensed Materials, including any corrections, patches, service packs, updates to, or new versions of the Licensed Materials. A Major Update generally contains more corrections, new material, or new features than a Minor Update. The Manufacturer shall have the sole discretion to designate any additional material as a Major Update.
8) “Manufacturer” means Audionamix, Inc., the creator and producer of the Software.
9) “Minor Update” means any additional material associated with the Licensed Materials, including any corrections, patches, service packs, updates to, or new versions of the Licensed Materials. A Minor Update generally contains less corrections, new material, or new features than a Major Update. The Manufacturer shall have the sole discretion to designate any additional material as a Minor Update.
10) “Previous Version” means any prior release of the Software to which there was a successor or substitute by means of a Minor Update or a Major Update.
11) “Product” means the computer program, or any part of the computer program, distributed or made available by Audionamix. This term also refers to all functions and features of the computer program.
12) “Purchase User” means a User that exercises the option to purchase a perpetual license to use the version of the Software that was current when the User exercised this option, rather than pay the monthly subscription fee.
13) “Software” means the computer program, or any part of the computer program, distributed or made available by Audionamix. This term also refers to all functions and features of the computer program.
14) “Subscribed User” or “Subscription User” means a User that exercises the option to pay a monthly subscription in exchange for a License to use and operate the program during the subscription period.
15) “Updates” means both Minor Updates and Major Updates.
16) “User” means all Users of the Software, including Purchase Users and Subscribed or Subscription Users.