IMPORTANT: THIS SOFTWARE END USER LICENSE AGREEMENT (this "Agreement") IS A LEGAL AGREEMENT BETWEEN YOU (THE "LICENSEE" OR "YOU") AND THE LICENSOR - WAVEDIVISION, LLC. ("WAVEDIVISION"). USE OF THE SOFTWARE CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL AND/OR USE THE SOFTWARE. BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
The "Software" includes all of the contents of the files, disk(s), with drivers and other enabling software, plugins, CD-ROM(s), DVDs, or other media for which this Agreement is provided, including but not limited to: third party computer information or software that the Licensor has licensed for inclusion in the Software; written materials or files relating to the Software ("Documentation"); and fonts, modified versions, updates, upgrades, additions, and copies of the Software, if any.
Subject to the terms and conditions set forth in this Agreement and payment of the applicable fees (if any), WAVEDIVISION grants you a limited, worldwide, non-exclusive, non-transferable (except as expressly set forth in this Agreement) right to Use the Software on the number of computers, workstations, servers (on premises or in the cloud), or another digital electronic devices (each a "Device") that conforms to the Software's system requirements as specified in the related Documentation in accordance with the License type purchased (the "License"). "Use" means storing, loading, installing, executing, or displaying the Software exclusively for personal or business purposes, without rights of commercial replication and/or distribution either in full or as part of the derived software to any third party. Notwithstanding the foregoing, you may make one backup copy of the Software for disaster recovery purposes. Except as expressly provided in this Agreement, fees are non-refundable.
Except as otherwise set forth in a Product Entitlement Supplement (as defined in Section 1(d) below, the License gives you the right to make a single copy of the Software to Use on one Device at a time. Accordingly, each License is for the right to Use the Software on a per Device basis, not per user, per site, or per company. For example, if a person uses two (2) Devices simultaneously, to Use the Software on each Device, the person must purchase two (2) Licenses.
WAVEDIVISION reserves the right, in its sole discretion, to determine the types of Licenses that it makes available to end users. Your usage rights with respect to the Software depends upon the type of License that you have acquired. As of the Effective Date of this Agreement, those types include the following:
(i) Subscription License. With Subscription Licenses, the end user has the right to Use the Software for a specified Subscription License term (monthly or annually) as part of a duration-limited subscription package ("Subscription License"). Subject to applicable law, the Subscription License will automatically renew for another term equal in duration to the initial term, unless, prior to the end of the current period of effectiveness of the Subscription License ("Subscription Term"): (w) you terminate your Account; (x) you turn-off auto-renew of your Subscription License; (y) WAVEDIVISION declines to renew your Subscription License; or (z) this Agreement is otherwise properly terminated as expressly permitted herein. Each renewal period is a "Renewal Term." You authorize WAVEDIVISION to collect the then-applicable fees and any taxes for each Renewal Term. Subscription License fees and features may change, and WAVEDIVISION may recommend a new Subscription License that is comparable to your old plan.
(ii) Trial License. With Trial Licenses, the end user has the right to Use an evaluation copy of the Software on a short-term basis for free to evaluate whether the end user wishes to purchase a License to Use the Software under a Perpetual License or Subscription License ("Trial License"). Certain Software features and/or functionality may be locked or unavailable in the Trial Version. WAVEDIVISION reserves the right, in its sole discretion, to set the parameters of its Trial License practices including, without limitation, its duration.
(iii) NFR (Not-for-Resale) License. With NFR (Not-For-Resale) Licenses, the end user has a License to Use the Software only for demonstration purposes (and not for music processing purposes) in support of WAVEDIVISION's potential customers ("NFR License").
(iv) Beta Program License. With Beta Program Licenses, the end user has the License to Use the Software to participate in WAVEDIVISION's beta or early release programs for the Software ("Beta License"). Any Beta License shall be used solely for the stated purposes thereof and any other terms WAVEDIVISION sets. You acknowledge that the Beta License Software is in a pilot-production stage of development and, therefore, may contain irregularities not normally found in the Software, that the Beta License Software and may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss. You agree to interface with WAVEDIVISION's designated representatives at regular intervals to discuss the Beta License Software, provide WAVEDIVISION with suggestions and ideas for improving or otherwise modifying the Beta License Software, and to furnish, subject to applicable law, verbal, or written reports at WAVEDIVISION's reasonable request, including failure logs, status reports, error reports, and other information related to your Use of the Beta License Software (collectively, "Beta License Reports"). You are encouraged to provide WAVEDIVISION with suggestions and ideas for improving or otherwise modifying the Software, subject to Section 7 below. WAVEDIVISION reserves the right to modify or terminate the Beta License, at any time, in WAVEDIVISION's sole discretion for any reason. Upon WAVEDIVISION's request, you agree to return, destroy, and/or delete the Software and other materials delivered to you as part of the Beta License and certify to the foregoing upon WAVEDIVISION's request. WAVEDIVISION strongly encourages you to back-up all data and information on your devices prior to downloading the Beta License Software. The Beta License Software, the Beta Service Reports, all accompanying documentation, and all information WAVEDIVISION discloses to you hereunder or otherwise in connection with the Beta License is WAVEDIVISION's "Confidential Information." For a period of three (3) years from release of the Beta License, you will not use the Confidential Information except as necessary under this Agreement and will not disclose any portion of the Confidential Information to any other person or entity other than to WAVEDIVISION. You will use all reasonable steps to protect the Confidential Information from unauthorized use or disclosure. Confidential Information does not include information that: (i) you rightfully knew at the time of disclosure without an obligation of confidentiality, (ii) you lawfully obtained from a third party without restriction on use or disclosure, or (iii) is or becomes generally known to the public through no fault or breach of this Agreement by you.
The “Product Entitlement Supplement” sets forth any supplemental usage rights, restrictions, and terms specific to a particular Software product. The Product Entitlement Supplement may be found at Product Entitlement Supplement Product Entitlement Supplement (or a successor URL) and is incorporated by reference and an integral part of the Agreement.
You agree that you will not nor enable others to (unless as required by applicable law): (i) attempt to reverse compile, modify, or disassemble the Software in whole or in part or otherwise attempt to discover the Software source code; (ii) rent, lease, or loan the Software in whole or part; (iii) interfere or attempt to interfere with or disrupt the integrity, security, functionality, or performance of the Software or its components; (iv) use the Software for any purpose or in any manner that is unlawful or is prohibited by this Agreement or the applicable Documentation; (v) use a previous version of the Software after receiving an Updated or Upgraded (each as defined in Section 5 below) version as a replacement to a prior version (in such case Licensee must delete the prior version); (vi) use the Software in the operation of any business, aircraft, ship, nuclear facilities, life support machines, communication systems, or any other equipment in which the failure of the software could lead to personal injury, death, or environmental damage; (vii) remove or obscure copyright or trademark notices included in the Software; or (viii) host applications for third parties, as part of a facility management, timesharing, service provider, or service bureau arrangement.
To Use the Software, you may be required to create a user account. This user account stores information about the you have purchased, the applicable term, your Software activation codes, and other information about your License. In registering your user account, you are responsible for the completeness and accuracy of the information provided therein. You are also solely responsible for all activities that occur under your account, including liability for losses incurred by WAVEDIVISION or third parties as a result of the use of your account, regardless of whether the account was used with your knowledge, and for keeping your account credentials secure. You also acknowledge that your account is personal to you and agree not to provide any other person with access to your account or portions of it using your username, password, or other security information. You shall remain solely responsible for the activity arising out of any failure to keep your account details confidential and, in the event of unauthorized use of your account, you agree to notify WAVEDIVISION immediately. You may not use someone else's user account. You have the right to delete your user account at any time, but in doing so you will lose access to the Software, which requires a user account to be used. Notwithstanding deletion of the account, WAVEDIVISION may retain your data as reasonably necessary in accordance with the WAVEDIVISION Privacy Notice.
The Software requires activation ("Activation") before it can be Used. Activation is utilized to prevent, identify, and restrict uses of the Software that are not permitted under this Agreement. Activation also allows WAVEDIVISION to keep track of the Devices where the Software is Used. You agree that WAVEDIVISION may utilize Activation functionality to identify the Device on which the Software is installed and to limit or restrict use of the Software. Activation may use internet connectivity to send the Activation information to WAVEDIVISION, such as the Software product name, the applicable Software version number, the version and type of operating system running the Software, and the hardware and network parameters of the Device running the Software. You consent to such a transmission, and if the Activation information cannot be transmitted to WAVEDIVISION electronically, then you agree, on WAVEDIVISION's request, to provide to WAVEDIVISION such Activation information.
The Software enables you to enter content (“User Content”) that will be stored on a Device on which the Software is installed. You are solely responsible for your use, storage, and disclosure of all User Content. Licensee may not use the Software in conjunction with User Content that is illegal or violates the rights of others. As between you and WAVEDIVISION, other than as expressly set forth herein, you own and, subject to the licenses granted in this Agreement or otherwise than as expressly set forth herein, you own and, subject to the licenses granted in this Agreement or otherwise permitted by applicable law, reserve all rights, title, and interest in the User Content and any output or other information based upon your User Content and generated from your use the Software (“Output”). You also grant WAVEDIVISION a non-exclusive, irrevocable (subject to the WAVEDIVISION Privacy Notice), and royalty-free right to use the User Content and the Output to provide the Support Services, including to develop and improve the Software.
i. General
WAVEDIVISION technical support and maintenance services for the Software, including the right to receive Software Updates ("Support Services") are provided in accordance with WAVEDIVISION's then current Support Services Terms and Conditions located at Master Service Agreement and this Agreement. "Software Updates" means all published revisions and corrections to the printed documentation and corrections documentation and corrections and new releases of the Software that are generally made available to WAVEDIVISION's supported licensees at no additional cost, but not including any functionality or future products that WAVEDIVISION licenses separately (such separately licensed products are considered "License Updates/Upgrades"). Before using any License Update/Upgrade or Update, you shall ensure that they can be used on a particular Device in accordance with the system requirements of the License Update/Upgraded Software or Software Update. Notwithstanding the foregoing, you acknowledge that WAVEDIVISION does not guarantee that new releases of the Software will be backward compatible and does not guarantee the operability and compatibility of the Software on Devices, operating systems, or browsers that were released after the initial License of the Software.
ii. Support Services per License Type
Support Services are made available only for the specific Software, License type, and number of Licenses purchased. Notwithstanding the foregoing, once an Update has been released, WAVEDIVISION may cease service, technical support, and Support Services for prior versions upon sixty (60) days' notice to you.
Certain functionality, including Activation and Update check, may require Internet connectivity. The Software may connect to the internet in the background without prior notification. Downloading the Updated versions of the Software and using WAVEDIVISION's website with all support materials available there (such as user guides, quick start guides, tutorials, examples, forum, etc.) also requires Internet connectivity.
The personal information you provide to WAVEDIVISION during the ordering and registration process is used for WAVEDIVISION's internal purposes only. WAVEDIVISION uses the information in compliance with the WAVEDIVISION's Privacy Notice. WAVEDIVISION Privacy Notice explains how WAVEDIVISION collects, treats your personal data, and protects your privacy when you use the Software and related services. By using the Software and related services, you agree that WAVEDIVISION can use such data in accordance with our Privacy Notice. You can submit questions, comments, suggestions, and ideas ("Feedback") to WAVEDIVISION. Feedback shall be deemed non-confidential and non-proprietary. By submitting Feedback, you give permission to WAVEDIVISION to use Feedback in any way and for any purpose, commercial or otherwise, without any compensation or credit obligation to you or any third party.
WAVEDIVISION may, at its expense, audit no more than once annually the number of copies of the Software in Use by you (directly or indirectly).
Any such audit shall be conducted during regular business hours. If you are Using a greater number of copies of the Software than to which you have a License, you shall pay WAVEDIVISION the applicable fees for such additional number of Licenses within thirty (30) days of the invoice date plus interest of the lower of one and one-half percent (1.5%) per month and the highest permitted by local law from the 1st day of use, with such underpaid fees being the License and related Support Services fee as per WAVEDIVISION's then current, country specific, base price for the Software. If underpaid fees are more than five percent (5%) of the value of the fees paid by you under this Agreement, then you shall also pay WAVEDIVISION' reasonable costs of conducting the audit. These remedies are in addition to any other remedies or relief, including termination rights, already provided in this Agreement. You acknowledge and agree that this provision is not intended to be a penalty but is instead designed to protect WAVEDIVISION's legitimate business interests.
The Software and all rights, without limitation, including proprietary rights therein, are owned by WAVEDIVISION or its suppliers and are protected by copyright and other intellectual property laws and international treaties. The Software is licensed, not sold. You acknowledge that no title to the intellectual property in the Software is transferred to you. You further acknowledge that title and full ownership rights to the Software will remain the exclusive property of WAVEDIVISION and you will not acquire any rights to the Software except as expressly set forth in this Agreement. You agree that any copies of the Software will contain the same proprietary notices that appear on and in the Software.
During the term of this Agreement, you grant to WAVEDIVISION the right to include you as an end user of the Software in a factual listing of WAVEDIVISION's customers.
The Software may contain features designed to interoperate with products or components derived from portions of materials provided by third parties (“Third Party Materials”). You may use Third Party Materials solely in connection with the Software. Third Party Materials may be subject to other terms and conditions, which are typically found in a separate license agreement or a “read me” or other file located in or near such materials. You acknowledge that the availability and right to license any Third-Party Materials to you shall cease automatically, without liability on WAVEDIVISION' part, upon the discontinuation or termination of the provision thereof to Wave.
Notwithstanding anything set forth in this Agreement, if you obtained a License through the Apple iTunes Application Store (the "App") operated by Apple, Inc. or its subsidiaries and affiliates (collectively, "Apple"), then you acknowledge and agree to the following additional terms:
You will indemnify, defend, and hold WAVEDIVISION, its affiliates, directors, officers, and employees (each an "Indemnified Party") harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against any Indemnified Party by a third party to the extent that such Action is based upon or arises out of:
This indemnification obligation will survive termination of this Agreement. You may in no event enter into any settlement or like agreement with a third party that affects any Indemnified Party's rights or binds any Indemnified Party in any way, without WAVEDIVISION's prior written consent. WAVEDIVISION reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with WAVEDIVISION in asserting any available defenses.
i. Term
This Agreement is effective as of the Effective Date and continues until expiration of all License Term, unless earlier terminated as set forth in this Agreement. The "Effective Date" of this Agreement is the date of purchase. You may terminate this Agreement at any time for any reason upon thirty (30) days' prior written notice to WAVEDIVISION.
ii. Termination for Default
Upon any Default, WAVEDIVISION may suspend your account and your Use of the Software or terminate this Agreement (in WAVEDIVISION's sole discretion), without notice to you. You will be in "Default" of this Agreement if:
iii. Effects of Termination
Upon any expiration (without renewal in accordance with this Agreement or written agreement between the parties) or termination of this Agreement as per Section 14(i) or 14(ii):
In no event will termination relieve you of your obligation to pay any fees payable to WAVEDIVISION for the period prior to the effective date of termination.
iv. Survival
Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Any Agreement provision that, to fulfill the purpose of such provision, needs to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purpose.
a) Limited Warranty and Refund Policy
If you purchase a License and encounter a technical problem that defect in the Software itself caused (as determined by WAVEDIVISION's technical support in its sole discretion) and that WAVEDIVISION's technical support cannot resolve, then you may request to cancel and refund your purchase within thirty (30) calendar days from the date of the initial License purchase. No cancellations are possible after such thirty (30) day period. No other reasons for cancellation are possible. The refund shall be limited to the amount received by WAVEDIVISION at the time of the initial purchase, including any taxes. Any charges from third parties (including banks, credit card issuers, payment processors) will not be refunded. If you paid with funds in a currency different than those offered by WAVEDIVISION's website, then the refunded amount in your currency may differ from the original payment due to exchange rate fluctuations and currency conversion charges levied by third parties.
THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
b) Disclaimer of Warranties
OTHER THAN THE FOREGOING LIMITED WARRANTY AS EXPRESSLY SET FORTH IN SECTION 15(a) AND FOR ANY WARRANTY TO THE EXTENT TO WHICH THE SAME CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, THE SOFTWARE AND ALL SUPPORT SERVICES, AND ANY AND ALL ACCOMPANYING HARDWARE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OF IMPLIED BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE. WAVEDIVISION AND ITS THIRD-PARTY LICENSORS DISCLAIM ALL OTHER WARRANTIES. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT WAVEDIVISION, ITS DISTRIBUTORS, AGENTS, OR EMPLOYEES GIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES SET FORTH IN THIS AGREEMENT.
YOU ACKNOWLEDGE THAT WAVEDIVISION DOES NOT WARRANT THAT THE SOFTWARE:
IN NO EVENT SHALL WAVEDIVISION, ITS SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR ARISING OUT OF ANY SUPPORT SERVICES, EVEN IF WAVEDIVISION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU; IN SUCH A CASE, THEN THE AGGREGATE LIABILITY FOR ANY CLAIMS, LOSSES, OR DAMAGES SHALL NOT EXCEED US $2,500. THE FOREGOING LIMITATION OF LIABILITY IS COMPLETE AND EXCLUSIVE, SHALL APPLY EVEN IF WAVEDIVISION HAS BEEN ADVISED OF THE POSSIBILITY OF CLAIMS, LOSSES, OR DAMAGES EXCEEDING SUCH LIMIT, AND SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY OTHER REMEDIES POSSESSED BY WAVEDIVISION. THE LIMITATION OF LIABILITY REFLECTS AN ALLOCATION OF RISK BETWEEN YOU AND WAVEDIVISION. In the event of invalidity of any provision of this license, the parties agree that such invalidity shall not affect the validity of the remaining portions of this license.
The Software is deemed to be "Commercial Items," as defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7207, as applicable. Consistent with such sections, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users:
You may not use or otherwise export or re-export the Software to any countries or territories sanctioned by the United Nations or the USA. You represent and warrant that:
The Software is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. The Software may not be used in any application or situation where a Software failure could lead to death or serious bodily injury of any person or to severe physical or environmental damage (“High-Risk Use”). Licensee agrees to indemnify and hold harmless WAVEDIVISION from any third-party claim arising out of use of the Software in connection with any High-Risk Use.
This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws principles and specifically will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, or the Uniform Computer Information Transactions Act (UCITA). Any cause of action or claim you might have with respect to the Software or otherwise under this Agreement must be commenced within one (1) year after such claim or cause of action arises or shall be deemed waived. Except with respect to the protection and enforcement of WAVEDIVISION's (and its under this Agreement must be commenced within one (1) year after such claim or cause of action arises or shall be deemed waived. Except with respect to the protection and enforcement of WAVEDIVISION's (and its third-party licensors') intellectual property rights and its rights to seek and/or obtain injunctive or equitable relief, any claim, cause of action, or proceeding arising out of or relating to this Agreement or the Software shall be resolved by mandatory, binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA"). The arbitration shall be conducted in New York, New York, and the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY AND ALL RIGHTS TO BRING OR PARTICIPATE IN A CLASS ACTION OR MULTI-PARTY ACTION IN ANY ACTION, PROCEEDING, OR COUNTER-CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT. ALL CLAIMS AND DISPUTES ARISING OUT OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS.
You may not sub-license the License or Subscription. You may not assign your License or Subscription to a new organization or user.
a) Contact Information
WAVEDIVISION hereby provides address and contact details, to which any of your questions, complaints, or claims with respect to the Software should be directed: WaveDivision, LLC, 4015 Travis Dr, Ste 211, Nashville, TN 37211. Email: support@wavedivision.audio.
b) Force Majeure and Interpretation
WAVEDIVISION shall not be responsible for any delays or failure of performance resulting from causes beyond its reasonable control. The English version of this Agreement shall be the version used when interpreting or construing this Agreement. If any provision or provisions of this Agreement are determined to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby.
c) Modifications to the Agreement
This Agreement may not be modified, amended, or additional obligations be assumed by either party to this Agreement except by your acceptance of a subsequent electronic agreement provided by WAVEDIVISION with respect to the Software ("Agreement Modifications") or as otherwise agreed to in writing by the parties. If you do not agree with any Agreement Modifications, your sole remedy is for you to terminate this Agreement sending written notice of termination to WAVEDIVISION. Otherwise, your continued access or use of the Software shall constitute your acceptance of the Agreement Modifications.
d) Entire Agreement
This Agreement is the complete and exclusive agreement between you and WAVEDIVISION relating to the Software and the Support Services and supersedes any previous or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter. This Agreement also applies to all future transactions related to the Software and the Support Services between you and WAVEDIVISION. This Agreement prevails over any conflicting or additional terms of any purchase order, ordering document, acknowledgement, or confirmation or other document that you might issue, even if signed and returned.