END USER LICENSE AGREEMENT
BETA USER AGREEMENT
This is a by-invitation-only testing program, and the ToneStone beta product experience is private and confidential for your exclusive use. By clicking “I Accept” you agree with the following non-disclosure agreement:
“I will not live stream ToneStone, publicly share information about ToneStone, or share any details or screenshots/videos of ToneStone with anyone outside of ToneStone’s beta program, unless given explicit permission from an authorized ToneStone team member. I understand that failure to comply with this rule is a violation of the ToneStone End User agreement and will result in a ban from the beta program.”
READ CAREFULLY THIS END USER LICENSE AGREEMENT (AGREEMENT). THIS AGREEMENT CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN TONESTONE, INC., A DELAWARE CORPORATION, WITH AN ADDRESS AT 15 WHITE PLACE, BROOKLINE, MA 02445, USA (TONESTONE), AND YOU (THE LICENSEE), AND GOVERNS ALL USE OF THE SOFTWARE DESCRIBED BELOW.
BY SELECTING THE “ACCEPT” BUTTON OR BY INSTALLING, COPYING, ACCESSING, LOADING OR USING THE SOFTWARE IN ANY MANNER (ACCEPTANCE), YOU WILL CREATE A LEGALLY ENFORCEABLE CONTRACT IN WHICH LICENSEE AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION. LICENSEE’S PURCHASE ORDER OR SIMILAR TERMS SHALL NOT APPLY.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE FULL LEGAL AUTHORITY TO ACCEPT AND ENTER INTO THIS AGREEMENT, THEN YOU SHOULD SELECT THE “DO NOT ACCEPT” BUTTON BELOW TO DISCONTINUE INSTALLATION AND YOU MAY NOT INSTALL, COPY, ACCESS, LOAD OR USE THE SOFTWARE IN ANY MANNER.
Documentation means the user guide, help information and other documentation regarding the Software (in any digital, written or other format) that are intentionally delivered (or otherwise made available) to Licensee for use under this Agreement, including any Update.
Exploit means to store, analyze, exercise, practice, make, use, reproduce, modify, make derivative works of, transmit, distribute, commercialize and otherwise exploit.
Feedback means all analyses, suggestions, data and other feedback and information that are related to the function or performance of the Software and which are provided by Licensee to ToneStone.
Results means all clips, decks, songs and other data, information, work products and results that arises from Licensee’s use of the Software, and any and all other content that Licensee posts to the Community Forum.
Software means the ToneStone Materials and Third Party Materials that are intentionally delivered (or otherwise made available) to Licensee for use under this Agreement, including any Update.
Software Data means all performance, diagnostic, technical, digital rights management and other data and information related to the status and use of the Software that Licensee provides to ToneStone or which is collected by the Software.
ToneStone Materials means ToneStone’s proprietary computer programs (in executable format only), together with all libraries, clips, components and other resources which can be used with the application.
Update means any bug fix, improvement, extension or other update to the Software or Documentation that ToneStone makes generally available to end user licensees without charge.
2.1 Software. Subject to all terms and conditions in this Agreement, ToneStone grants Licensee a personal, nonexclusive, nontransferable right and license (without right to sublicense) to use the unmodified Software in accordance with the Documentation, solely for the purpose of Licensee’s own entertainment, but not for any commercial or other purpose. Licensee may make a reasonable number of copies of the Software for inactive backup purposes. Software is licensed, not sold. Any reference herein to the sale or price of any Software or copy thereof refers to its license or license fee.
2.2 Documentation. Subject to all terms and conditions in this Agreement, ToneStone grants Licensee a personal, nonexclusive, nontransferable right and license (without right to sublicense) to make a reasonable number of copies of the Documentation and to use the Documentation solely in connection with its authorized use of the Software.
2.3 Safeguards. Licensee shall use all reasonable efforts to safeguard the Software and Documentation against unauthorized access or use by or disclosure to any third party.
2.4 Limitations. The Software is licensed as a single integrated product and Licensee may not separate or use its component parts. In addition, Licensee agrees that its use of the Software shall comply with all other limitations, prohibitions, conditions and policies established by ToneStone from time to time, including without limitation, any restriction regarding: the number of active copies or number of users; the time period during which use of the Software is permitted; the size of the system or network with which the Software may be used (based on number of CPUs, nodes or other metrics); limited purposes for which the Software may be used (such as, field of use, or trial use or evaluation). Licensee acknowledges that installing and using the Software may result in changes to Licensee’s operating and system environments.
2.5 License Control. Licensee understands and agrees that (a) the Software may contain code and/or require license keys or devices that detect or prevent unauthorized use of, or disable, the Software, and (b) it will provide ToneStone reasonable access to any automated audit logs maintained by the Software (including without limitation, permitting the Software to interact with any “call-home” function or to otherwise transmit audit logs to ToneStone automatically from time to time).
2.6 Payments. Licensee agrees to pay ToneStone all license fees, subscription fees, usage fees and other charges in the amounts and at the times specified by ToneStone. Fees and charges may be specified as being payable: in advance or in arrears; in an amount that is fixed, contingent or variable (e.g., depending on usage factors); on a recurring or non-recurring basis. If any payment is past due, ToneStone shall have the right to take whatever action it deems appropriate (including without limitation, disabling or suspending Licensee’s access to the Software, or terminating this Agreement pursuant to Section 7.2). Licensee agrees to reimburse ToneStone for all costs (including attorneys’ fees) incurred in collecting late payments. If Licensee pays by credit card, then it hereby accepts all charges that comply with this Agreement.
3.1 Services. Except as may be provided pursuant to Section 3.2, ToneStone does not offer or provide any installation, implementation, training, technical support, maintenance or other services under this Agreement.
3.2 Updates. ToneStone has no obligation to revise or update the Software or Documentation. However, if ToneStone releases any Update during the term of this Agreement, it will make that Update available to Licensee, in which case Licensee shall promptly (a) install and use such Update and (b) stop using, un-install, destroy and permanently erase all copies of the prior version. ToneStone may condition Licensee’s continued access and use of the Software on Licensee’s acceptance of any Update and any corresponding New EULA.
3.3 Community Forum. ToneStone may (but shall not be obligated) to host a web-based forum where Software users may post and exchange information and data regarding the Software (the Community Forum). At its sole discretion, Licensee may elect to access and participate in the Community Forum and, at its sole risk and liability, to rely on any Community Forum content. From time to time, ToneStone may (but shall not be obligated to) moderate the Community Forum. ToneStone reserves the right, at its sole discretion, to remove any content from the Community Forum and/or disable the Community Forum. For clarity, ToneStone assumes no responsibility or liability for any act or omission (by Licensee or any other Software user) related to the Community Forum or its content.
4. PROPRIETARY RIGHTS.
4.1 Restrictions. Unless and only to the extent expressly specified in this Agreement, Licensee shall not directly or indirectly (a) use any of the Software or Documentation to specify, design or develop any software, platform, environment, service or documentation that is similar to any of the Software or Documentation, (b) disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying designs, organization, structures, ideas or algorithms of the Software (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), or otherwise circumvent any technological measure that controls access thereto, (c) encumber, rent, lease, sublicense, transfer or distribute any Software, or use the Software for the benefit of any third party (including without limitation, on a time-share, service bureau, software-as-a-service or other similar basis), (d) copy, adapt, translate, localize, port, combine, integrate, bundle, create derivative works of or otherwise modify any Software or Documentation, (e) use or allow the transfer, transmission, export or re-export of all or any part of the Software or any product thereof in violation of any export control laws or regulations of the United States or any other relevant jurisdiction or (f) permit any third party to do any of the foregoing.
4.2 Third Party Materials. The ToneStone Materials may include, install, access or otherwise operate, interface or be delivered with software or other applications, environments, content or copyrighted materials (Third Party Materials), which are licensed from and owned by third parties (Third Party Licensors). Licensee unconditionally agrees that (a) it will use Third Party Materials in accordance with this Agreement unless different license terms are expressly specified as being applicable to such Third Party Materials (Third Party License), and (b) Third Party Licensors (i) make no representation or warranty to Licensee concerning the Software, (ii) have no obligation or liability to Licensee as a result of this Agreement and (iii) are intended third party beneficiaries of this Agreement regarding Third Party Materials owned by them. Upon Licensee’s specific written request received during the term of this Agreement, ToneStone will make available the source code for open source Third Party Materials, but only if and to the extent that such source code was made available to ToneStone and doing so is required by the applicable Third Party License. Third Party Materials and corresponding Third Party Licenses are identified in the Documentation and/or at https://www.tonestone.net/__________.
4.3 No Implied Licenses. Except for the limited rights and licenses expressly granted hereunder: no other license is granted (by implication, estoppel or otherwise) and no other use is permitted; Licensee shall not use, possess, publish, copy or otherwise disclose any Software, Software Data or Documentation, without the prior written consent of ToneStone; and ToneStone (and its licensors) shall retain all rights, title and interests (including all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights) in and to the Software and Documentation. Licensee shall not to take any action inconsistent with such ownership.
4.4 Markings. Licensee shall not (and shall not permit any third party to) alter, obscure or remove any patent, trademark or other proprietary or legal notice contained on any Software, Documentation, Community Forum content or packaging.
4.5 Results. Licensee agrees to grant and does hereby grant to ToneStone a perpetual, irrevocable, nonexclusive, transferable, royalty-free, fully paid up, worldwide right and license (with right to sublicense through multiple tiers), under all applicable intellectual property and proprietary rights, to Exploit the Results, Feedback and Software Data without attribution or restriction, in any manner and for any purpose (including without limitation, improving the Software, developing new and improved products and services, and enforcing this Agreement). Licensee represents and warrants that it has all rights and authority to grant the foregoing license without infringing or violating any third party’s rights.
5. NO WARRANTIES; DISCLAIMERS.
THE SOFTWARE, DOCUMENTATION AND COMMUNITY FORUM ARE PROVIDED “AS IS,” “WHERE IS,” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TONESTONE HEREBY DISCLAIMS (FOR ITSELF AND ITS THIRD PARTY LICENSORS) ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TONESTONE DOES NOT WARRANT THAT THE SOFTWARE WILL BE COMPATIBLE WITH ANY APPLICATION, HARDWARE OR ENVIRONMENT, OR THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, OR THAT ANY RESULTS OR OUTCOME CAN BE ACHIEVED, OR THAT SOFTWARE OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE.
6. LIMITATIONS OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER TONESTONE NOR ANY THIRD PARTY LICENSOR SHALL BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, OR THE COST OF PROCURING SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, INTERRUPTION OR LOSS OF DATA, USE, BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF $100 OR THE AMOUNT THAT LICENSEE PAID TO TONESTONE UNDER THIS AGREEMENT DURING THE PRIOR 12 MONTH PERIOD (WHICHEVER IS GREATER), EVEN IF TONESTONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
7. TERM AND TERMINATION.
7.1 Term. This Agreement shall commence upon acceptance and continue in effect until terminated as provided herein or, if earlier, expiration of any time limit specified in the Sales Contract. Licensee may terminate this Agreement at any time for its convenience upon at least 30 days prior written notice to ToneStone.
7.2 Termination. Either party may terminate this Agreement if the other party breaches a material provision of this Agreement and fails to cure such breach within 30 days after receiving written notice of such breach from the other party. Notwithstanding the foregoing, this Agreement shall automatically terminate (without notice or further action by any party) immediately upon (a) any material breach by Licensee of any obligation under Section 2.3 (Safeguards), 2.4 (Limitations), 2.5 (License Control) or 4.1 (Restrictions) or (b) Licensee’s failure to agree to be bound by any New EULA required by ToneStone.
7.3 Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties hereunder shall cease, except that the following shall survive: (a) all obligations that accrued prior to the effective date of termination (including payment obligations) and any remedies for breach of this Agreement; (b) Licensee shall stop using, un-install, destroy and permanently erase all copies of the Software and Documentation; and (c) the provisions of Sections 4 (Proprietary Rights), 5 (No Warranties; Disclaimers), 6 (Limitations of Liability), 8 (General Provisions) and this Section 7 shall also survive.
8. GENERAL PROVISIONS.
8.1 Changes. ToneStone reserves the right, at its sole and absolute discretion, to update, modify or replace the terms and conditions in this Agreement or any separate policy, in whole or in part, at any time (any such change, a New EULA). ToneStone will use reasonable efforts to notify Licensee (by email or otherwise) of any material change in advance of the effective date of any New EULA. Continuing to install, copy, access, load and/or use the Software after any change shall constitute Licensee’s acceptance of the modified terms and conditions set forth in the New EULA.
8.2 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Terms set forth in Licensee’s purchase order (or any similar document) that are in addition to or at variance with the terms of this Agreement are specifically waived by Licensee. All such terms are considered to be proposed material alterations of this Agreement and are hereby rejected. Except as expressly provided in this Agreement, no waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which shall be controlling in all respects. No version of this Agreement in another language shall be binding or of any effect.
8.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to its conflicts of law provisions. In the event of any conflict between US and foreign laws, regulations and rules, US laws, regulations and rules shall govern. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to this Agreement.
8.4 Dispute Resolution. Except that ToneStone may seek an injunction or other equitable relief from any court of competent jurisdiction pursuant to Section 8.4, all disputes between the parties arising out of or related to this Agreement shall be settled by binding arbitration in accordance with the JAMS streamlined arbitration rules and procedures then in force, by one neutral arbitrator appointed in accordance with the rules. The arbitration shall take place in Boston, Massachusetts, USA. The proceedings shall be in English, all evidence shall be in English (or translated into English) and the governing law shall be as set forth herein. The arbitrator’s decision shall be in writing and shall comply with all terms and conditions in the applicable version of this Agreement. The decision and award rendered shall be final and binding on both parties. The parties acknowledge and agree that this Agreement and any award rendered pursuant hereto shall be governed by the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judgment on the award may be entered in any court of competent jurisdiction. LICENSEE UNDERSTANDS AND AGREES THAT BY ENTERING INTO THIS AGREEMENT, EACH PARTY IS WAIVING THE RIGHT TO TRIAL BY JURY.
8.5 Remedies. Unless specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Licensee agrees that, in the event of any breach or threatened breach of Section 4, ToneStone will suffer irreparable damage for which there is no adequate remedy at law. Accordingly, in addition to any other remedy, ToneStone shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond or surety.
8.6 Notices. Any notice or other communication hereunder shall be in writing and either personally delivered or sent via electronic mail, confirmed facsimile, recognized express delivery courier or certified or registered mail (prepaid and return receipt requested), addressed to the other party at its address specified herein or during registration, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
8.7 Assignment. This Agreement and the rights and obligations hereunder are personal to Licensee, and may not be assigned or otherwise transferred, in whole or in part, without ToneStone’s prior written consent. Any attempt to do otherwise shall be void and of no effect. Without Licensee’s consent, ToneStone may assign this Agreement to any third party (including without limitation, to any of its affiliates or to any successor to all or substantially all of its business that concerns this Agreement, whether by sale of stock or assets, merger, consolidation or otherwise. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.
8.8 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
8.9 Force Majeure. Neither party shall be liable for any delay or failure in performing its obligations hereunder that is related to, or arises out of any event, cause, condition, restriction, government order or guidance, risk to public health, safety, or welfare, or other circumstance beyond its reasonable control.
8.10 Acknowledgment. Licensee acknowledges that (a) it has read and understands this Agreement, (b) it has had an opportunity to have its legal counsel review this Agreement, (c) this Agreement has the same force and effect as a signed agreement and (d) issuance of this license does not constitute general publication of the Software or Documentation.