IMPORTANT- PLEASE READ CAREFULLY: THIS END-USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN THE PERSON OR ENTITY WHO PURCHASED THE PRODUCT OR SOFTWARE (“LICENSEE” OR “YOU”) AND SOUND DEVICES, LLC (“SOUND DEVICES”) FOR THE SOFTWARE THAT ACCOMPANIES THIS EULA, WHICH INCLUDES COMPUTER SOFTWARE/ FIRMWARE WHICH MAY ALSO INCLUDE ASSOCIATED MEDIA, PRINTED MATERIALS, “ONLINE” OR ELECTRONIC DOCUMENTATION, AND INTERNET-BASED SERVICES AND DOWNLOADED SOFTWARE AND ANY UPDATES (“SOFTWARE”). AN AMENDMENT OR ADDENDUM TO THIS EULA MAY ACCOMPANY THE SOFTWARE.
SOUND DEVICES PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON YOU (A) ACCEPT THIS EULA AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS EULA, SOUND DEVICES WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD OR INSTALL THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS EULA, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS EULA, AND THIS EULA EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF SOUND DEVICES’ SOFTWARE.
1. GRANT OF LICENSE. In consideration of Licensee paying any price charged for the Software or product sold by Sound Devices to Licensee which contained the Software at point of sale (“Product”) and/or your use of any free Software and your compliance with these terms, Sound Devices grants to Licensee the non-exclusive right to use and run the Software as properly installed in accordance with this EULA and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes, as specified in this EULA and in accordance with any documentation that accompanies the Software or Product online or in paper format (and which includes, without limitation, the terms and conditions upon which Sound Devices sold the Product to Licensee) (” Documentation “).
2. THIRD PARTY SOFTWARE AND OPEN-SOURCE SOFTWARE.
(a) Some or all of the Software may consist of third party applications and packages which may be proprietary and/or open source software. You are obliged to comply with any additional licensing terms related to such third party applications. To the extent that this EULA contains any provision(s) which are contradictory to the terms of those third party applications and packages, the terms of those third party licenses shall apply to that Software as opposed to the terms of this EULA and the terms of this EULA shall not apply to them. Unless stated otherwise in the documentation that accompanies the Software or Product, Sound Devices does not provide any warranty, maintenance, technical or other support for third party applications and all warranties in the Software are disclaimed as set out in Section 10 below.
(b) A list of the third party software, acknowledgement and licenses for each relevant Product can be found at https://www.sounddevices.com/open-source-software/. Certain software libraries and other third party software included with the Software are free software and licensed under the terms of open source licenses. To the extent that the Software links to any open source software libraries (“OSS Libraries”) that are provided to You with the Software, nothing in this EULA shall affect Licensee’s rights under the licenses on which the owner of intellectual property rights in the relevant OSS Libraries (“Third Party Licensor”) has licensed the OSS Libraries, details of which can be found at https://www.sounddevices.com/open-source-software/.
Certain software libraries and other third party software included with the Software are free software and licensed under the terms of open source licenses. You may obtain a complete source code copy of such free software under the terms of the license if applicable, without charge, as described at https://www.sounddevices.com/open-source-software/.
(c) To the extent that the Software links to any open source software libraries (“OSS Libraries”) that are provided to You with the Software, nothing in this EULA shall affect Licensee’s rights under the licenses on which the owner of intellectual property rights in the relevant OSS Libraries (“Third Party Licensor”) has licensed the OSS Libraries, details of which can be found at https://www.sounddevices.com/open-source-software/. To the extent that Third Party Licensors have licensed OSS Libraries on the terms of v2.1 or v3 of the Lesser General Public License issued by the Free Software Foundation (the “LGPL”), those OSS Libraries are licensed to You on the terms of the relevant LGPL and are referred to, in this Section 2(d), as the LGPL Libraries. You may obtain a complete copy of the source code of the LPGL Libraries without charge at https://www.sounddevices.com/open-source-software/ in order that You may modify the LGPL Libraries in accordance with the relevant LGPL, together with certain object code of the Software necessary to enable You to re-link any modified LGPL Library to the Software.
3. EXPORT/IMPORT RESTRICTIONS. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
4. INTELLECTUAL PROPERTY RIGHTS. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this EULA, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this EULA. Sound Devices reserves and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this EULA. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.
5. ADDITIONAL SOFTWARE/SERVICES. This EULA and any amendment or addendum to this EULA applies to updates, supplements, or add-on components of the Software that Sound Devices may provide to You or make available to You after the date You obtain your initial copy of the Software.
6. LICENSEE’S UNDERTAKINGS.
(a) You shall not directly or indirectly: (a) use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 1; (b) except as allowed pursuant to Section 7, provide any other person, including any of Your subcontractors, independent contractors, affiliates, or service providers, with access to or use of the Software or Documentation; (c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof; (d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs; (e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; (f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof; (g) copy the Software or Documentation, in whole or in part; (h) use the Software or Documentation in violation of any law, regulation, or rule; or (i) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to Sound Devices’ commercial disadvantage.
(b) You must permit Sound Devices and its representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises at which the Software or the Documentation is being kept or used, to the Products and other relevant computer equipment located there, and to any records kept pursuant to this EULA, for the purpose of ensuring that Licensee is complying with the terms of this EULA.
7. RESALE AND SOFTWARE TRANSFER.
(a) Software identified as “Not for Resale” or “NFR,” may not be sold or otherwise transferred for value, or used for any purpose other than demonstration, test or evaluation.
(b) Internal: You may transfer the Software to an alternative system. After the transfer, You must completely remove the Software from the former system.
(c) Transfer to a third party: You may make a one-time permanent transfer of this EULA and the Software to another end user. If You do so (i) You may not retain any copy of the Software, (ii) the transfer must include all of the Software (including all component parts, the media and printed materials, any updates and, if applicable, a Certificate of Authenticity) and be subject to this EULA. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the Software must agree to be bound by this EULA and any amendment or addendum to this EULA.
8. TERMINATION. Without prejudice to any other rights, Sound Devices may terminate this EULA if You fail to comply with any of the terms of this EULA. In such an event, all rights granted to You under this EULA shall cease, You must cease all activities authorized by this EULA and You must destroy all copies of the Software and all of its component parts within your control.
9. LIMITED WARRANTY & YOUR EXCLUSIVE REMEDY.
(a) Subject to Section 10, Sound Devices warrants that the Software will perform substantially in accordance with the Sound Devices materials that accompany the Software for a period of ninety (90) days from the date of receipt. If an implied warranty or condition is created by the laws of your jurisdiction that cannot be excluded, You are entitled to rely upon it, but only as to defects discovered during the period of this limited warranty (ninety days).
(b) SOUND DEVICES’ ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, UNDER THE LIMITED WARRANTY PROVIDED IN THIS SECTION, OR FOR ANY OTHER BREACH OF THIS EULA, OR FOR ANY OTHER LIABILITY RELATING TO THE SOFTWARE, SHALL BE (AT SOUND DEVICES OPTION), (I) RETURN OF THE AMOUNT PAID (IF ANY) FOR THE SOFTWARE, OR (II) REPAIR OR REPLACEMENT OF THE SOFTWARE, TO THE EXTENT THAT IT DOES NOT MEET THE LIMITED WARRANTY.
(c) You will receive the remedy elected by Sound Devices. You are responsible for any expenses You may incur. The limited warranty provided in this Section (the “Limited Warranty”) is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use, a virus, or combination of the Product or Software with any other product or software. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, and Sound Devices will use reasonable efforts to provide your remedy within a reasonable time of your compliance with Sound Devices’ warranty remedy procedures.
(a) The Limited Warranty that appears above is the only warranty made to You and is provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications.
(b) Except for the Limited Warranty and to the maximum extent permitted by applicable law, Sound Devices and its suppliers provide the Software and support services (if any) “AS IS” and “WITH ALL FAULTS”, and hereby disclaim all other warranties and
conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Software, and the provision of or failure to provide support or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software.
(c) SOUND DEVICES DOES NOT WARRANT THAT THE SOFTWARE IS FREE OF BUGS OR ERRORS, AND THE EXISTENCE OF SUCH WILL NOT RESULT IN SOUND DEVICES (I) BEING IN BREACH OF THIS EULA OR (II) INCURRING ANY LIABILITY.
(d) SO FAR AS IS PERMITTED BY LAW, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
(e) SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
11. LIMITATION OF LIABILITY.
(a) To the maximum extent permitted by applicable law, and except as provided in any Sound Devices guarantee expressly provided with the Software or Product and the Limited Warranty (above), Sound Devices and its suppliers shall not be liable for any damages whatsoever (including without limitation, damages for loss of data, loss of business profits or business opportunity, business interruption, loss of business information or other direct, indirect, consequential or pecuniary loss) arising out of the use or inability to use the Software, even if Sound Devices has been advised of the possibility of such damages.
(b) WITHOUT PREJUDICE TO SECTION 9(b), IN ANY CASE SOUND DEVICES’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE. THESE LIMITATIONS DO NOT APPLY TO ANY LIABILITIES THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS.
12. COLLECTION AND USE OF INFORMATION. Licensee acknowledges that Sound Devices may, directly or indirectly through the services of third parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through the provision of maintenance and support services. Licensee agrees that Sound Devices may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to: (i) improving the performance of the Software or developing updates; and (ii) verifying Licensee’s compliance with the terms of this EULA and enforcing Sound Devices’ rights, including all intellectual property rights in and to the Software.
(a) Save where the Software forms part of a Product, this EULA (including any Sound Devices addendum or amendment to this EULA which is included with the Software and the licenses referenced in Section 2) constitutes the entire agreement between Licensee and Sound Devices relating to the Software and the support services (if any), and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. To the extent the terms of any Sound Devices policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall prevail over such conflicting provisions.
(b) This EULA is binding on Licensee and Sound Devices and on any respective successors and assigns.
(c) Sound Devices may transfer, assign, charge, sub-contract or otherwise dispose of this EULA, or any of its rights or obligations arising under it, at any time.
(d) If any provision of this EULA is held by a competent authority to be illegal, invalid, void or unenforceable under the laws of any jurisdiction, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
(e) If Sound Devices fails, at any time during the term of this EULA to insist upon strict performance of any of Licensee’s obligations under this EULA, or if it fails to exercise any of the rights or remedies to which it is entitled under this EULA, this shall not constitute a waiver of such rights or remedies and shall not relieve Licensee from compliance with such obligations. A waiver by Sound Devices of any default shall not constitute a waiver of any subsequent default. No waiver by Sound Devices of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to Licensee in writing.
(f) Sound Devices will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this EULA that are caused by an event outside of its reasonable control.
(g) All notices, requests, consents, claims, demands, waivers, and other communications hereunder given by You to Sound Devices must be given to Sound Devices, LLC, PO Box 576, E7556 State Road 23 & 33, Reedsburg, WI 53959. Sound Devices may give notice to You at your most recent address (be it physical or e-mail) known to Sound Devices, and/or through a notice posted on Sound Devices’ website. Notice will be deemed received and properly served (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the next business day if sent by e-mail; (iv) three days after the date mailed, by certified or registered mail, return receipt requested, postage prepaid; or (v) 24 hours after posting on Sound Devices’ website.
(h) All matters arising out of or relating to this EULA shall be governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this EULA or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Wisconsin in
each case located in the City of Madison and County of Dane, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
(i) This EULA may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto.
(j) If any term or provision of this EULA is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this EULA or invalidate or render unenforceable such term or provision in any other jurisdiction.
14. YOUR ACKNOWLEDGMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, UNDERSTAND IT, AND AGREE BY USING THE SOFTWARE TO BE BOUND BY ITS TERMS.