End User License Agreement

IMPORTANT: PLEASE CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT

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 MoveMusic LLC (“MoveMusic”) 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 MoveMusic 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 clicking the acceptance button that follows this EULA and/or 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 condition. 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 “MoveMusic Control” means MoveMusic LLC’s “MoveMusic Control” virtual reality software and all presets, data and other contents or read-only versions of other MoveMusic products supplied by MoveMusic with the Software. The term “MoveMusic Control” also includes any updates, upgrades, or derivative versions of MoveMusic Control licensed to the Licensee by MoveMusic LLC.

1.b The term “MMConnect” means MoveMusic LLC’s “MMConnect” software and all presets, data and other contents or read-only versions of other MoveMusic products supplied by MoveMusic with the Software. The term “MMConnect” also includes any updates, upgrades, or derivative versions of MMConnect licensed to the Licensee by MoveMusic LLC.

1.c The term “Software” means MoveMusic Control and MMConnect.

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

1.e The term “Beta Version” means Software that is provided by MoveMusic LLC to you for testing the product’s features and providing feedback.

#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 MoveMusic.

2.b Trademarks contained in the Software are trademarks or registered trademarks of MoveMusic LLC 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 MoveMusic’s or its licensors’ names or any of their respective trademarks.

2.c As between you and MoveMusic, MoveMusic is the owner of all right, 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.

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

2.e 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 an acquisition of ownership “in good faith”) or purchased the product key and received the allowance to download the Software by MoveMusic or an authorized dealer, and ii. paid the applicable price, and iii. is using an authorized copy of the Software

MoveMusic 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. All Software included within the respective edition of MoveMusic Control is part of the same License granted by MoveMusic and can only be used as a single bundle on one computer at a time. The Licensee may make one backup copy of the Software.

#4. License restrictions

4.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”.

4.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.

4.c The Software may be used to reproduce materials and prepare derivative works therefrom. It is licensed to you only for reproduction and preparation of derivative works of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or permitted by law to reproduce and prepare derivative works from.

4.d All within this Section 5 is subject to the extent that the Licensee is granted the right by law to decompile software in order to obtain information necessary to render the Software’s interoperable with other software; the same applies to reverse engineering, decompilation, and disassembly of Software.

#5. Restrictions on transfer

5.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

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

5.c The license to use Beta Versions of the Software may not be sold or transferred without the prior consent of MoveMusic.

5.d The license to use MoveMusic Control may only be sold or transferred as a whole. The right to use the MoveMusic products included within MoveMusic Control may not be sold or transferred separately.

5.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.

#6. Upgrades and Updates

6.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 MoveMusic Software to which an upgrade/update is made to the most recent version, and a former version of MoveMusic Software with limited features to which more features 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.

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

6.c In case of an upgrade or update from a previous version of the Software, the license to use the previous version of the respective MoveMusic Software product will immediately expire and be replaced by the license to use the newer version of the MoveMusic product.

6.d Upgrades and updates to MoveMusic Control software will be downloaded automatically. Upgrades and updates to MMConnect software must be downloaded manually from https://movemusic.com.

#7. Data Collection

7.a Only when technical support is provided, MoveMusic may collect and use technical information explicitly provided by the Consumer for support purposes and improvement of the software.

7.b Further information about MoveMusic’s data collection and privacy policies can be found at https://movemusic.com/privacy.

#8. Beta Version Licenses

The purpose of the Beta Version Licenses are to allow the Consumer to test a pre-release version of the Software and help MoveMusic by testing and providing feedback about their experience with the Software. Any other use, including, but not limited to, resale, transfer, or public use, is strictly prohibited.

#9. DISCLAIMER OF WARRANTIES

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 MOVEMUSIC 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. MOVEMUSIC 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 MOVEMUSIC OR A MOVEMUSIC AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, MOVEMUSIC 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.

#10. LIMITATION OF LIABILITY

LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MOVEMUSIC 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 MOVEMUSIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, MOVEMUSIC’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 PRODUCT OF COMPARABLE RETAIL VALUE, AS MOVEMUSIC 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.

#11. Indemnification

Licensee agrees to indemnify, defend and hold harmless MoveMusic 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.

#12. Third Party Content and Applications

12.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 on the webpage https://movemusic.com/acknowledgements. 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. MoveMusic expressly disclaims any all warranties in connection with the Third Party Content, and shall have no liability in connection therewith.

12.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. MoveMusic expressly disclaims and all warranties in connection with the Third Party Applications, and shall have no liability in connection therewith.

12.c MoveMusic is not liable for costs arising out of services demanded by the Licensee that are not provided by MoveMusic. This shall in particular 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 Meta™/Oculus™.

#13. Term

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.

#14. Export Law Assurances

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.

#15. Governing Law/Place of Performance and Jurisdiction/Dispute Resolution

Governing Law/Dispute Resolution: This EULA will be governed by and construed in accordance with the laws of the State of Texas 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 Austin, Texas, U.S.A. for making and resolving any such claims, and hereby waive any right to participate in any type of law suit brought and/or maintained as a class action or similar in nature to a class action. MoveMusic 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.

#16. General

This agreement constitutes the complete and exclusive agreement between MoveMusic 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, which 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 MoveMusic 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.