Software End User License Agreement
Last revised: August 23, 2019
Licensor - Sounds In Sync Pty Ltd (ACN 138 026 267) ("Sounds In Sync").
Software License Agreement for the Sounds In Sync software programs (the "Agreement").
This Software License Agreement applies to the licensing of the Sounds In Sync programs as set out in Schedule A, Part 1 (the "Software") accompanying this Agreement.
WARNING - READ BEFORE SOFTWARE USE
We recommend you read this Agreement carefully before considering using the Software.
By selecting the "I Agree" option or continuing to use the Software, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, click the "Cancel" button and cease using the Software. If you do not agree to this Agreement, you are not permitted to install or use the Software in any manner.
TERMS AND CONDITIONS
You agree to the following:
- Sounds In Sync grants you the following licence rights subject to the terms and conditions of this Agreement:
- A Hardware key (PACE iLok dongle) licence. This permits you to install the Software on multiple computers, but you may only use the Software on one computer at a time, and only when connected to your authorized hardware key.
- A Network (PACE iLok Sharable) licence. This permits you to install the Software on multiple computers within your internal computer network. The Software may be used concurrently by several users, the maximum being equal to or less than the number of user 'seats' available in your Sharable licence.
- When made available by Sounds In Sync, a Cloud (PACE iLok Cloud) licence. This permits you to install the software on multiple computers, but you may only use the Software on one computer at a time, and only when connected with an iLok licence in your iLok Cloud user account.
- The Software can be used for a fixed or unlimited time period based on either a private license or activation code. This can be supplied by Sounds in Sync either as a trial license or as a paid license (perpetual or rental or educational). You can purchase the applicable licence either: i. directly from Sounds In Sync; or ii. at the Sounds In Sync website http://www.soundsinsync.com; or iii. through an authorised Sounds In Sync reseller (including the third-party Avid Marketplace specifically referred to in clause 3(d) and Schedule B).
- You acknowledge and agree that:
- subject to clause 3(c), the copyright in the Software and any associated user documentation is an intellectual property right and proprietary to Sounds In Sync;
- Sounds In Sync owns rights at law in the names "EdiCue", "EdiPrompt", "EdiLoad" and "EdiChart";
- to the extent the Software contains third party technology, it is subject to the additional terms and conditions set out in Schedule A, Part II; and
- to the extent you acquired the Software at or on the Avid Marketplace, then additionally:
- you are subject to the third-party terms and conditions (including the third-party enforceability right) set out in Schedule B provided that, notwithstanding the reference to without limitation claims scope as set out in the last sentence of Section A1 (How this Works), Sounds In Sync's liability to you is strictly as set out in clauses 1 to 17 (particularly clauses 12-13) herein; and
- you must observe and not violate these terms and conditions nor cause any liability to Sounds in Sync through your actions or omissions at or on or otherwise in relation to the Avid Marketplace.
- You must not copy the Software but may make one backup copy of the Software in machine-readable form for archival purposes.
- You must not disclose or permit the disclosure of any Confidential Information of Sounds In Sync in relation to this Agreement to any person or other legal entity for any purpose. "Confidential Information" means all proprietary information or data of Sounds In Sync (or its third party software licensors) however disclosed to you in relation to this Agreement including but not limited to products, software programs, object or source code, private serial numbers or license keys, user documentation, unregistered and registered intellectual property rights but excludes information that is or comes into the public domain (other than through a breach of confidentiality).
- Except as specifically allowed herein, you must not deploy, distribute, make accessible for download or deal in any way (including by sale or for no charge) with the Software either on its own or as part of any other software.
- You must not copy, modify, decompile, disassemble, reverse engineer, or create derivative works of the Software (except as permitted by Part III, Division 4A of the Copyright Act 1968 (Cth)).
- You must not remove or alter any proprietary notice, labels or unregistered or registered trademarks which appear on or in the Software.
- You must not use the backup copy pursuant to clause 4 or allow any permitted person or other legal entity to use the backup copy for any purpose other than to replace the original copy licensed under clause 1 in the event it is destroyed or becomes defective.
- Subject to clause 13, Sounds In Sync:
- licences, under clauses 1 and 4 of this Agreement, the Software "as is"; and
- makes no warranty or representation as to the quality or performance of the Software. In particular, Sounds In Sync does not warrant or represent that:
- the Software will be error-free or fault-free or otherwise of merchantable quality;
- the Software is suitable for a particular purpose;
- the Software will meet your technical or other business requirements; and
- defects in the Software will be corrected.
- You are responsible for assessing your use of Software in conjunction with other software or other technology equipment. Sounds In Sync will provide at no charge limited email based support concerning questions or clarifications as to the use of the Software functionality but Sounds In Sync does not provide remote or site based support in the nature of fixes or patches or other updates for error correction.
- Subject to clause 13 and to the extent permitted by law, Sounds In Sync has no liability for any loss, costs, expenses, or damages (including for loss of profits, loss of data or other information, business interruption or any other indirect or consequential damages or losses) caused by or related to the licensing or use of the Software or otherwise arising in relation to this Agreement other than claims against Sounds In Sync for direct damages based on breach of contract hereunder or negligence in relation thereto which are limited to the amount you actually paid for the Software, or, where a free licence the sum of $AU500, pursuant to this Agreement.
- To the extent permitted by law, Sounds In Sync excludes any conditions or warranties which would otherwise be implied into this Agreement by law. If a condition or warranty is implied by law and cannot be excluded, then Sounds In Sync limits its liability for breach of that condition or warranty to the remedies provided by that law.
- You may terminate this Agreement for convenience without cause at any time. Your rights under this Agreement will also be deemed terminated automatically, without notice from Sounds In Sync, if you fail to comply with the licensing terms set out in this Agreement. Upon termination of this Agreement, you must cease all use of the Software and destroy all copies of the Software. You must upon request certify to Sounds In Sync in writing you have destroyed the Software.
- If any provision of this Agreement is held to be invalid, unenforceable or illegal for any reason, this Agreement will remain otherwise in full force apart from such provision which will be deemed deleted.
- This Agreement is the entire agreement between Sounds In Sync and you and no other prior oral or written information or understandings (if any) exchanged with you and Sounds In Sync has any effect at law or between you and Sounds In Sync. No modification of this Agreement will be binding unless in writing and executed by Sounds In Sync.
- This Agreement is governed by the laws of New South Wales. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
The Sounds in Sync programs comprise any or all of the following applications (as applicable):
You acknowledge the following:
- Sounds In Sync is an approved Avid Audio third party developer under the Avid Audio program pursuant to an agreement between Sounds In Sync and Avid Technology Inc, a Delaware corporation with principal offices at 75 Network Drive, Burlington, Massachusetts 01803 U.S.A. ("Avid") (the "Avid Agreement").
- Pursuant to the Avid Agreement, Sounds In Sync is authorised by Avid to use certain Avid technology being information and software (including plug in specifications) in Avid's AAX, TDM, RTAS, and/or other software development kits (the "SDKs") (referred to in this Schedule A, Part II, as the "Avid Audio Technology").
- To the extent that the Software licensed under this Agreement contains the Avid Audio Technology software components then you agree:
- that the Avid Technology software components are subject to copyright held by Avid; and
- that it is prohibited to export, directly or indirectly, either technical data that Sounds In Sync acquired from Avid Audio pursuant to the Avid Agreement or any product (including the Software) utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.
Clause 3 (d)- Current Avid Marketplace terms and conditions are set out below:
"Important -- Read Carefully: You have recently used the Avid online marketplace ("Avid Marketplace") to purchase a license to a client application ("App") or an extension, add-on or plug-in ("Plug-In") that provides features and functionality for the Avid Pro Tools® or Avid Media Composer® software ("Avid Software"). The developer of your App or Plug-in ("Developer") has used technology provided by Avid Technology, Inc., a Delaware corporation with principal offices at 75 Network Drive, Burlington, Massachusetts 01803 U.S.A. ("Avid," "we" or "us"), to sell a license to you. The agreement between you and the Developer is set forth in the end user license agreement for the App or Plug-in you have recently acquired. These Avid Terms and Conditions (Sections A1 through A7) are part of your legal agreement with the Developer. These Avid Terms and Conditions contain, among other things, important warranty disclaimers (in Section A2) and limitations of liability (in Section A3) applicable to your use of the App or Plug-in that you licensed via the Avid Marketplace. By accepting your end user license agreement with the Developer, accessing the Avid Marketplace or using the App or Plug-in that you have licensed from the Developer, you agree to be bound by these Avid Terms and Conditions. Although these Avid Terms and Conditions are part of your legal agreement with the Developer, you acknowledge and agree that they may be enforced by Avid directly.
A1. How this Works. Avid provides an online marketplace where buyers and sellers of software licenses can meet to transact business. Avid is neither a buyer nor a seller of the license to the App or Plug-in you have recently purchased. Avid is not a "middle man" in this transaction. We just provide the electronic venue for the transaction to take place. The Developer is an independent software developer, and not an agent or partner of Avid. Accordingly, you acknowledge that the Developer, and not Avid, is solely responsible for the App or Plug-in that you have licensed via the Avid Marketplace, including all support, maintenance and warranty issues relating to the App or Plug-in. You further acknowledge and agree that the Developer, and not Avid, is solely responsible for any and all claims relating to the App or Plug-in, including, but not limited to product liability claims, claims for failure to comply with any applicable law or regulatory requirements and claims that the App or Plug-in infringes any third-party intellectual property rights.
A2. Limited Warranty; Disclaimers. The sole warranty provided by Avid with respect to the Avid Marketplace and Avid Software is a Limited Warranty to use commercially reasonable efforts to correct or bypass a material defect in the Avid Marketplace in accordance with the terms and conditions set forth in these Avid Terms and Conditions ("Limited Warranty"). The Limited Warranty is not extended to you unless you have accepted these Avid Terms and Conditions and remain bound by them. The Limited Warranty is for your benefit only and may not be enforced by any other person or entity. EXCEPT FOR THE LIMITED WARRANTY WITH RESPECT TO AVID MARKETPLACE, THE AVID MARKETPLACE AND AVID SOFTWARE ARE PROVIDED "AS IS," WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AVID DISCLAIMS (a) ALL EXPRESS WARRANTIES TO YOU, OTHER THAN THE LIMITED WARRANTY, (b) ALL IMPLIED WARRANTIES TO YOU OF ANY KIND, AND (c) ALL WARRANTIES TO OR FOR THE BENEFIT OF ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS OR IMPLIED. THE IMPLIED WARRANTIES DISCLAIMED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, INCLUDE ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEMS INTEGRATION, QUIET ENJOYMENT AND NON-INFRINGEMENT. EXCEPT FOR THE LIMITED WARRANTY, THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT OF THE AVID MARKETPLACE AND AVID SOFTWARE SHALL BE WITH YOU. AVID SHALL HAVE NO RESPONSIBILITY FOR SOFTWARE OR EQUIPMENT WHICH IS PROVIDED BY THIRD PARTIES, INCLUDING THE APPS OR PLUG-INS YOU PURCHASE USING THE FUNCTIONALITY OF THE AVID MARKETPLACE.
A3. Limitation of Liability; Exclusions of Damages. YOU AGREE THAT AVID'S LIABILITY TO YOU FOR ALL HARM, DAMAGES, INJURY OR LOSS SHALL BE LIMITED TO FIFTY DOLLARS ($50.00), AND THIS SHALL BE YOUR ONLY REMEDY REGARDLESS OF WHAT LEGAL THEORY IS USED TO DETERMINE THAT AVID WAS LIABLE FOR THE HARM, DAMAGES, INJURY OR LOSS. YOU FURTHER AGREE THAT THE LIMITATION OF LIABILITY IN THIS SECTION A3 SHALL APPLY (a) EVEN IF IT IS DETERMINED THAT AVID CAUSED THE HARM, DAMAGES, INJURY OR LOSS TO YOU OR SOMEONE IN OR AROUND YOUR PREMISES (INCLUDING EMPLOYEES) AND (b) TO ALL HARM, DAMAGES, INJURY OR LOSS INCURRED INCLUDING ACTUAL, DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PROPERTY DAMAGE AND LOSSES DUE TO BUSINESS INTERRUPTION, LOSS OF PROFITS, LOSS OF DATA, PERSONAL INJURY OR DEATH.
A4. Who is Protected? You understand and agree that these Avid Terms and Conditions, and particularly Sections A2 and A3, shall (a) apply to and protect the employees, officers, shareholders, parent companies, directors, agents, licensors, representatives and affiliates of Avid, and (b) be binding on your heirs, administrators, custodians, trustees, agents and successors.
A5. Limitation on Remedies; Waiver of Jury Trail; No Class Actions. To the extent permitted by law, you agree that no lawsuit or any other legal proceeding connected with the Avid services or equipment shall be brought or filed by you more than one (1) year after the incident giving rise to the claim occurred. IN ADDITION, ANY SUCH LEGAL PROCEEDING SHALL NOT BE HEARD BEFORE A JURY. EACH PARTY GIVES UP ANY RIGHT TO A JURY TRIAL. To the extent permitted by law, you agree that you will not bring any class action lawsuit against Avid or be a representative plaintiff or plaintiff class member in any such lawsuit.
A6. Governing Law; Severability. These Avid Terms and Conditions shall be governed by the law of the State of Massachusetts, without giving effect to its rules of conflict of laws. If any provision of these Avid Terms and Conditions or the application of any such provision to any person, entity or circumstance shall be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of these Avid Terms and Conditions. The parties intend that all disclaimers of warranties, limitations of liability, and exclusions of damages in these Avid Terms and Conditions shall be upheld and applied to the maximum extent permitted by law. Avid is an intended third-party beneficiary of these Avid Terms and Conditions and shall have the right to enforce and/or otherwise invoke any and all provisions set forth in any of these Avid Terms and Conditions directly. The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation."
A7. Acceptance of Avid Terms and Conditions. You acknowledge and agree that (a) you have had the opportunity to read and review these Avid Terms and Conditions before entering into your end user license agreement with the Developer, and (b) you accept these Avid Terms and Conditions and agree to be bound by them."
You acknowledge that the above terms and conditions Avid may amend from time to time as set out at http://apps.avid.com/store/documents/AvidMarketplaceT&Cs.pdf