THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This End User License Agreement (the “Agreement”) is a legal agreement between you (“you” or “your”), and Sound Generations (“we” or “our”) for the use of the object code version of the web-based software ( the “Software”) made available to you by Sound Generations. By clicking the check-box below, or by accessing or using the Software, you acknowledge that you have read this Agreement, understand it, and agree to be bound by its terms and conditions. If you do not agree to the terms and conditions of this Agreement, uncheck the check-box and do not access or use the Software. Sound Generations will not and does not license the Software to you unless you agree to the terms of this Agreement.
In consideration of the promises and covenants described below, and other good and valuable consideration, you agree as follows:
1. Authorized Users. The Software and the licenses granted here-under are only available to individuals who have been authorized to access and use the Software. By entering into this Agreement, you represent and warrant that the Licensee has authorized you to access and use the Software, and that you will observe and perform all the terms and conditions of this Agreement.
2. User Subscriptions.Unless otherwise specified in the applicable Order Form, Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
3. License Grant. Subject to the terms and conditions hereof, Sound Generations grants you a personal, nonexclusive, nontransferable, limited license to use the Software for your own internal business purposes. This license permits you to access and use the Software via the Internet. Any updates and/or upgrades to Software that you may receive from Sound Generations shall be governed by the terms and conditions of this Agreement. However, Sound Generations has no obligation to provide you with any such updates or upgrades.
4. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of your data and of the means by which you acquired your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the training and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
5. Late Payment. If any amount owing by you under this or any other agreement for our services is 30 or more days overdue, we may, without limiting our other rights and remedies, reserve the right to suspend any account whose annual fee is over 30 days past due. We will give you at least 7 days’ prior notice that your account is overdue before suspending services to you. Data will remain available for reporting should the account be reactivated.
6. Limitations and Restrictions. Except as specifically provided herein, you may not, in whole or in part: (a) copy the Software; (b) distribute copies of the Software, in whole or in part, to any third party; (c) modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble or make derivative works based on the Software or any part thereof, except as otherwise permitted by law; (d) use, rent, loan, sub-license, lease, distribute or attempt to grant other rights to the Software or any part thereof to third parties; or (e) use the Software to act as a service bureau or application service provider, or to permit remote access to the Software by any kind to any third party. Nothing in this Agreement shall give you the right or license to use any trademarks used in connection with the Software and/or any other marks of Sound Generations or its suppliers.
7. Term. This Agreement is effective between you and Sound Generations as of the date of accepting this Agreement, throughout the term of the MLSA (Master License and Service Agreement), including renewal terms thereof, unless terminated sooner as provided herein.
a. Term of Purchased User Subscriptions. Except as otherwise specified in the MLSA, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
8. Termination. Sound Generations may immediately terminate this Agreement, and exercise any other rights it may have, if: (a) you breach this Agreement; (b) you breach the MLSA; or (c) Sound Generations terminates or suspends the Program for any reason. Upon termination for any reason, all licenses granted here-under shall automatically terminate, and Sound Generations may immediately disable and discontinue access to and use of the Software without notice to you. The following Sections shall survive termination of this Agreement: 5-15 and all other sections that may be reasonably interpreted to or are intended to survive this Agreement.
Return of Your Data. Upon request by you made within 30 days after the effective date of termination of a Purchased Services subscription, we will make available to you for download a file of your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, we shall have no obligation to maintain or provide any of your Data and shall thereafter, unless legally prohibited, delete all of your data in our systems or otherwise in our possession or under our control.
9. Proprietary Rights. The Software is owned by Sound Generations (or its suppliers) and is protected by copyright and other intellectual property laws. You will take all steps necessary to protect Sound Generations and its suppliers’ proprietary rights in the Software related to your use and possession of the same, including but not limited to, maintaining the confidentiality of any passwords. You will, at your own cost and expense, protect and defend Sound Generations’ ownership of the Software against all claims, liens and legal processes of your creditors and will keep the Software free and clear of all such claims, liens and processes. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED TO Sound Generations.
10. Confidentiality. The Software is and contains confidential and proprietary information of Sound Generations (or its suppliers). You agree to hold in strict confidence, not to use or disclose to any third party, and to take all necessary precautions to secure the confidentiality of the Software. In accordance with this provision, you will maintain at least the same precautions as you take in regard to your own confidential information, but not less than reasonable care. You agree to immediately notify Sound Generations in writing of any misuse, misappropriation or unauthorized disclosure, display or copying of the Software that may come to your attention.
11. No Warranties. THE SOFTWARE IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOUND GENERATIONS DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. The entire risk arising out of the use or performance of the Software remains with you.
12. Limitation of Liability and Exclusive Remedy. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: IN NO EVENT SHALL SOUND GENERATIONS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, CONSEQUENTIAL, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAMS, EVEN IF SOUND GENERATIONS HAS BEEN ADVISED TO THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY FROM YOUR USE OR INABILITY TO USE THE SOFTWARE OR ANY OTHER BREACH OF THIS AGREEMENT BY SOUND GENERATIONS SHALL BE FOR YOU TO DISCONTINUE USE OF THE SOFTWARE.
13. Indemnity. You agree to indemnify, defend and hold harmless Sound Generations and its officers, directors, employees, consultants, suppliers, agents and anyone providing information or software used in the Software from any and all claims, actions, losses, liabilities, damages, costs and expenses (including without limitation attorneys’ fees) resulting from or incidental to your use of the Software or operation of the Software.
14. Injunctive Relief. Because of the unique nature of the Software, you understand and agree that Sound Generations will suffer irreparable injury in the event you fail to comply with any of the terms of this Agreement and that monetary damages may be inadequate to compensate Sound Generations for such breach. Accordingly, you agree that Sound Generations will, in addition to any other remedies available to it at law or in equity, be entitled to injunctive relief, without posting a bond, to enforce the terms of this Agreement.
. Assignment, Successors. No right or license under this Agreement may be assigned or transferred by you, nor may any duty be delegated by you without Sound Generations’ prior written consent. Any assignment, transfer or delegation in contradiction of this provision shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and assigns of you and Sound Generations.
a. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Washington, but not including the 1980 United Nations Convention on Contracts for International Sale of Goods. You agree that King County, in the State of Washington, shall be the exclusive and proper forum for any action or proceeding, including arbitration, if any, brought under this Agreement. You accept the personal jurisdiction of such courts.
b. Waiver, Severability, Amendment. Waiver of a breach of or right here-under will not constitute a waiver of any other or subsequent breach or right. If any provision herein shall be held by a court of competent jurisdiction to be contrary to law, that provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions herein will remain in full force and effect. This Agreement may be amended only in a document signed by authorized representatives of you and Sound Generations.
16. Export. You shall comply with all laws, regulations, rules and requirements relating to the import, export, or re-export of the Software, documentation or any other items subject to this Agreement (including, but not limited to, the requirements under the U.S. Export Administration Act, Regulations of the Department of Commerce or its successors, executive orders, and other export controls of the United States of America). You shall not export or re-export, or authorize or permit the export or re-export of, any such items to any country to which export or re-export of the Software is prohibited without first obtaining the permission of the United States Department of Commerce, Bureau of Export Administration or its successor.
17. U.S. Government Restricted Rights. The Software is provided with RESTRICTED RIGHTS. Use, modification, reproduction, release, performance, display or disclosure by the government is subject to restrictions as set forth in sub-paragraph (b)(3) of The Rights in Technical Data – Noncommercial Items, DFARS 252.227-7013. The rights stated in sub-paragraph (c) of the Commercial Computer Software – Restricted Rights, 48 CFR 52.227-19 are hereby withheld from the government. Manufacturer is Sound Generations, 2208 Second Ave, Suite 100, Seattle, WA 98121.
18. Acknowledgment of Understanding – Entire Agreement. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms and conditions. You also agree that this Agreement is the complete and exclusive statement of the Agreement between Sound Generations and you and supersedes all proposals, representations or prior agreements, oral or written, and any other communications between Provider and you relating to the subject matter of this Agreement. This Agreement may not be amended, except by an agreement in writing which is signed by authorized representatives of Sound Generations and you.