B-Yond End-User License Agreement
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IMPORTANT:

 

PLEASE CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT

 

PLEASE NOTE THAT SEVERAL SECTIONS ARE LOCALIZED FOR EUROPE IN ORDER TO COMPLY WITH LOCAL LAWS AND THAT THESE SECTIONS SHALL ONLY APPLY TO CUSTOMERS WHO ACQUIRED THE SOFTWARE IN EUROPE

 

This End User License Agreement (the “EULA”) is a legal agreement between you (either in your individual capacity or on behalf of an entity), hereafter sometimes referred to as “you,” “Licensee,” or “End User” and B.Yond, Inc. (“B-Yond”) in order to give you a license to use the Software as set forth in this Agreement under the conditions in this Agreement, as well as to use the additional (mandatory) services provided by B-Yond or by third parties for paying customers. This EULA has no relation to your purchase agreement when you bought the Software (e.g., in retail or via the internet).

 

By installing and/or otherwise using the Software (as defined below), you acknowledge that you have read this EULA, understand its terms and conditions, and agree to be bound by such terms and conditions. If you are accepting the EULA on behalf of a corporation or other entity, you declare that you are authorized to do so.

 

1. Definitions

1. a) The term "Live" means the B-Yond product and all presets, sound samples, video files, included software instruments and effects, data, and other contents or read-only versions supplied by B-Yond with the Software. The term “Live” also includes any updates, upgrades, LE versions, Lite Versions, OEM versions, or modified versions licensed to the Licensee by B-Yond.

 

1. b) The term “Extension” means any add-on to Live with a serial number supplied separately by B-Yond to the Licensee, and all updates and upgrades to the add-on.

 

1. c) The term “Software” means Live and all Extensions.

 

1. d) The term “User Account” means the online account that is necessary for the registration and authorization.

 

1. e) The term “Consumer” means a Licensee who is a natural person who licensed the Software for a purpose that can be regarded as being outside his/her trade or profession.

1. f) The term “Free Version” means Software that is provided by B-Yond to you for free, including Lite Versions, OEM versions, and Trial Versions.

 

2. Ownership/Intellectual Property Rights

2. a) You, as Licensee, through your downloading, installing, copying, or use of this product do not acquire any ownership rights to the Software. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The rights to use the Software as set out in this Agreement are licensed, not sold, to you by B-Yond.

 

2. b) Trademarks contained in the Software are trademarks or registered trademarks of B-Yond in the United States and/or other countries. Third-party trademarks, trade names, product names, and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright, or other proprietary notices, legends, symbols, or labels in the Software. This EULA does not authorize you to use B-Yond's or its licensors' names or any of their respective trademarks.

 

2. c) NB.: THIS CLAUSE DOES NOT APPLY IF YOU ACQUIRED THE SOFTWARE IN EUROPE

 

i. As between you and B-Yond, B-Yond is the owner of all rights, title, and interest in and to the Software (including all copyrights, trademarks, and patents) regardless of the media or form of the Software; whether online, by disk or otherwise.

ii. Licensee shall not, at any time during or after the effective Term of the EULA, dispute, or contest, directly or indirectly, B-Yond’s exclusive right and title to the Software or the validity thereof.

iii. You shall not attempt to develop any Software that contains the “look and feel” of any of the Software or is otherwise derivative of the Software.

 

3. License Grant

3. a) Under the condition that:

 

i. the Licensee has legally acquired the ownership of the data carrier containing the Software (other than by acquisition of ownership “in good faith”) or purchased the product key and received the allowance to download the Software by B-Yond or an authorized dealer, and

ii. paid the applicable price, and

iii. is using an authorized copy of the Software, and

iv. has registered and is holding a valid User Account.

 

B-Yond grants the Licensee a limited, non-exclusive license to use and copy the Software for use on his or her computer system or file server for local use within the Licensee’s network. This network must be owned, leased, and/or controlled by the Licensee or a member of the Licensee’s corporate group, which includes a corporate Licensee, a corporate Licensee's majority-owned subsidiaries, any parent company having a majority-owned interest in such corporate licensee, and such parent's majority-owned subsidiaries.

 

3. b) The Licensee may transfer the Software from one computer to another over his or her network but may not copy it to additional sites outside the network or make additional copies for use on other networks or sites. The Software may only be used on one computer at a time. The Licensee may make one backup copy of the Software.

 

4. Activation of Software and User Account

To use the Software, you must register the Software and connect it to a User Account and receive an unlock key or conduct self-registration with approval. You can register and activate the Software online or offline. The offline registration and unlock process require that you download and transfer the unlock key to the computer on which you have installed the Software.  The transfer or assignment of the User Account is prohibited without the express consent of B-Yond.

 

5. License Restrictions

5. a) You may not translate, reverse engineer, decompile, disassemble, or create derivative works from the Software or provide the Software as “software as a service”.

 

5. b) You may not use, copy, modify or transfer the Software, or any copy in whole or in part, except as expressly provided for in this license.

 

5. c) You may not reformat, mix, filter, re-synthesize, or otherwise alter the presets, sound samples, and files contained to the Software for use in any kind of commercial sampling product/package or software without the express written consent of B-Yond.

 

6. Restrictions on Transfer

6. a) You may not rent, lease, or sublicense the Software on a temporary or permanent basis. You may, however, transfer the license to use the Software as a whole to another person or entity, provided that

 

i. you completely uninstall the Software from your computer or network, do not retain any backup copy of the Software (or its components), and

ii. transfer this EULA with the Software, and

iii. any such transferee will be bound by this EULA, and you will remain secondarily liable, and

iv. the transferee registers for a User Account and activates the Software (while your installation will be unregistered).

 

6. b) The license to use the Software labeled NFR (“Not for Resale”) may not be sold or transferred.

6. c) The license to use the versions of B-Yond’s product designated AGILITY and in other OEM versions may not be sold or transferred without the prior written consent of B-Yond.

6. d) The license to try out Software with an unrestricted feature set for a limited trial period of thirty days (“Trial License”) is limited to a one-time-use per user and per hardware device. The Licensee may not re-register under a different name, different account, or from a different hardware device. Only one user may register per hardware device.

6. e) If you transfer possession of any copy of the Software to another person or entity except as described above, this license is automatically terminated.

 

7. Upgrades and Updates

7. a) In order to upgrade or update the Software, a valid license to use the previous version of the Software is required. “Previous version” means a former version of Live to which an upgrade/update is made to the most recent version, and a former version of Live with limited features to which more features, Extensions, or all Extensions of the License are added.  If the license to the previous version of Software is transferred to another person or entity, no upgrades or updates will be made to it.

 

7. b) If the previous version of the Software is or was labeled as NFR, the restriction on transfer described above will also apply to the upgraded or updated version.

7. c) Upgrades and updates to the Software will be downloaded automatically.  You may opt-out of these automatic downloads by unticking the appropriate box in your preferences.

 

8. Data Collection

8. a) During the process of registration and unlocking, updating, or upgrading the Software, and when technical support is provided, B-Yond may collect, and use technical information for the improvement of the Software, for support purposes, and for the verification of the Software, upgrade, and update. This will be subject to an additional registration process.

8. b) In the event that you activate the Software online, aliased authentication information will be stored on your hardware device for the purpose of connecting the Software to your User Account, enabling the Software to obtain the information pertaining to your license(s) that is/are stored in your User Account.

8. c) B-Yond may track and collect information from your use of the Software (“Usage Data”) and aggregate such Usage Data in a “Usage Report.” Usage Data is anonymous. You may decide whether or not Usage Reports are made by ticking or unticking the appropriate box in your preferences at any time.

8. d) Further information about B-Yond’s data collection and privacy policies for the user account can be found in the Privacy Policy.

 

9. Trial Licenses

The purpose of the Trial Licenses is to facilitate the decision-making process with regards to acquiring a commercial version. Any other use, including, but not limited to, resale, transfer, or public use, is prohibited. This condition extends beyond the trial period, regardless of whether the Software is running with a restricted feature set or not.

10. Disclaimer of Warranties 

I. IF YOU ACQUIRED THE SOFTWARE IN EUROPE

 

DISCLAIMER OF WARRANTIES for Free Versions: Subject to subsection “12. I. a” of this Agreement, the liability in connection with the Trial Licenses, OEM versions, and Lite Versions is excluded except for intent or gross negligence. A claim for damages arising from a legal defect or a defect in the Software regarding the Trial Licenses, OEM versions, and Lite Versions is only permissible If B-Yond fraudulently conceals such defect. Subject to any statutory claims the Licensee may have under the law (which shall not be affected), B-Yond is not obliged to provide any additional technical support to Live Lite users.

 

II. IF YOU ACQUIRED THE SOFTWARE OUTSIDE EUROPE

 

DISCLAIMER OF WARRANTIES: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY IS WITH YOU.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND B-YOND HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE PRODUCT, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  B-YOND DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY B-YOND OR AN B-YOND AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.  SHOULD THE SOFTWARE PROVE DEFECTIVE, B-YOND MAY CHOOSE TO REPLACE THE LICENSEE’S COPY OF THE SOFTWARE.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

 

11. Limitation of Liability 

I. IF YOU ACQUIRED THE SOFTWARE IN EUROPE

 

Limitation of Liability

 

11. a) B-Yond shall only be liable without restriction according to the statutory provisions for damages of the Licensee caused by intentional or gross negligent conduct of B-Yond or its agents. The same applies to personal injury and damages according to the German Product Liability Act or comparable laws in other jurisdictions that may apply.

 

11. b) Otherwise, the liability of B-Yond for damage claims – for whatever legal reason – is limited in accordance with the following conditions, unless otherwise provided by an explicit guarantee of B-Yond:

 

i. For damages caused by slight negligence, B-Yond is only liable insofar as they cause damage to contractual obligations (cardinal obligations). Cardinal obligations are those contractual obligations that must be fulfilled in order to ensure orderly implementation of the contract and in whose observance the User should be able to trust. Insofar as B-Yond is responsible for simple negligence hereafter, the liability of B-Yond is limited to the typically foreseeable losses.

ii. The liability of the B-Yond for damages caused by loss of data and/or programs lost by slight negligence is limited to the typical cost of restoration, which would have been incurred in case of regular and appropriate data backup and data protection by the Licensee.

iii. The provisions of the above paragraph apply correspondingly to the limitation of damages for unsuccessful expenses (§ 284 of the German Civil Code [BGB]).

 

11. c) The above liability restrictions shall also apply to agents of the B-Yond.

 

II. IF YOU ACQUIRED THE SOFTWARE OUTSIDE EUROPE

 

LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL B-YOND OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR DEFECT IN OR CAUSED BY THE SOFTWARE, INCLUDING BUT NOT LIMITED TO COMPROMISING THE SECURITY OF YOUR COMPUTER, OPERATING SYSTEM OR FILES, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF B-YOND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN ANY CASE, B-YOND’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR REPLACEMENT OF THE SOFTWARE WITH A PRODUCT OF COMPARABLE RETAIL VALUE, AS B-YOND MAY ELECT IN ITS SOLE DISCRETION.  BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU IN PART OR WHOLE.

 

12. Indemnification

NB: THIS CLAUSE DOES NOT APPLY IF YOU ACQUIRED THE SOFTWARE IN EUROPE

 

Licensee agrees to indemnify, defend and hold harmless B-Yond and its affiliates and their respective officers, employees, directors, agents, licensees (excluding you), sublicensees (excluding you), successors, and assigns from and against any and all liability, costs, losses, damages, and expenses (including reasonable attorneys’ fees and expenses) arising out of any claim, suit, or cause of action relating to and/or arising from (a) your breach of any term of this EULA; (b) your violation of any rights of any third party; or (c) your use or misuse of the Software.  Your indemnification obligations set forth in the immediately preceding sentence shall survive the termination of this EULA.

 

13. Third-Party Content and Applications

13. a) The Software may utilize or include third-party content, software, or other copyrighted material (“Third Party Content”). The terms and conditions of your use of such material as contained in the Software can be found in the folder titled “Legal” that comes with the Software. Your use of such third-party material is governed by their respective terms and conditions. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein.  B-Yond expressly disclaims all warranties in connection with the Third-Party Content and shall have no liability in connection therewith.

 

13. b) Your use of the Software may allow you to connect with third-party applications or websites (“Third Party Applications”).  Your use of the Third-Party Applications is governed by the terms and conditions thereof.  By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein. B-Yond expressly disclaims any and all warranties in connection with the Third-Party Applications and shall have no liability in connection therewith.

 

13. c) B-Yond is not liable for costs arising out of services demanded by the Licensee that are not provided by B-Yond. This shall apply to costs of data transfer from or to the Licensee’s device to a third party or any cost of additional storage space or for services of Soundcloud™.

 

13. d) IF YOU ACQUIRED THE SOFTWARE IN EUROPE All set forth in this Section is subject to section 11.I. a) of this Agreement.

 

14. Term

I. IF YOU ACQUIRED THE SOFTWARE IN EUROPE

 

The Licensee may terminate this EULA at any time by destroying the Software together with all copies in any form.

 

II. IF YOU ACQUIRED THE SOFTWARE OUTSIDE EUROPE

 

The Licensee may terminate this EULA at any time by destroying the Software together with all copies in any form. This EULA will also terminate automatically upon conditions set forth elsewhere in this EULA, or if the Licensee fails to comply with any term or condition of this EULA, without notice to the Licensee. The Licensee agrees upon such termination to destroy the Software together with all copies in any form.

 

15. Export Law Assurances

NB: THIS CLAUSE DOES NOT APPLY IF YOU ACQUIRED THE SOFTWARE IN EUROPE

 

You may not export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained.  In particular, but without limitation, the Software may not be exported or re-exported (a) into or to a nation or a resident of any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.  By installing or using any component of the Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.

 

16. Governing Law/Place of Performance and Jurisdiction/Dispute Resolution

I. IF YOU ACQUIRED THE SOFTWARE IN EUROPE

 

Governing Law/ Place of Performance and Jurisdiction/Dispute Resolution: The Irish courts will have exclusive jurisdiction over any claim arising from, or related to, the Software although we retain the right to bring proceedings against you for breach of these conditions in your country of residence or any other relevant country.

These terms of use and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Ireland.

By agreeing to these terms and conditions, in the event of any claim you may have arising from or related to the Software or this EULA you agree that you hereby waive any right to participate in any type of lawsuit brought and/or maintained as a class action or similar in nature to a class action.

 

II. IF YOU ACQUIRED THE SOFTWARE OUTSIDE EUROPE

 

Governing Law/Dispute Resolution: This EULA will be governed by and construed in accordance with the laws of the State of New York and of the United States of America.  This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. By agreeing to these terms and conditions, in the event of any claim you may have arising from or related to the Software or this EULA you agree to the exclusive personal and subject matter jurisdiction of the courts located within the New York, New York, U.S.A . for making and resolving any such claims, and hereby waive any right to participate in any type of lawsuit brought and/or maintained as a class action or similar in nature to a class action. B-Yond reserves the right to make any claim against you and seek and be granted any legal or equitable remedy against you in any court anywhere in the world.

 

17. General

I. IF YOU ACQUIRED THE SOFTWARE IN EUROPE

 

17. a) The Licensee can only offset claims of B-Yond with undisputed or legally established counterclaims. The Licensee can only exercise a right of retention if his/her counterclaim is based on the same contractual relationship. The transfer of the Licensee's claims against B-Yond is prohibited.

 

17. b) All rights not explicitly granted in this agreement are reserved.

 

17. c) The failure or delay of B-Yond to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.

 

II. IF YOU ACQUIRED THE SOFTWARE OUTSIDE EUROPE

 

This agreement constitutes the complete and exclusive agreement between B-Yond and Licensee with respect to the subject matter hereof and supersedes all proposals, representations, understandings, and prior agreements, whether oral or written and all other related communication between the parties. All rights not explicitly granted in this agreement are reserved. Any clause in this agreement that is found to be invalid or unenforceable shall be deemed deleted and the rest of this agreement shall remain unaffected.  The failure or delay of B-Yond to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.