END-USER LICENSE AGREEMENT
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY
This End-User License Agreement (the “EULA”) is a legal agreement between you and Sounding Sweet Limited of 27 Oak Road, Tiddington, Stratford Upon Avon, CV37 7BU (the “Licensor”).
- The Licensor has created the Licensed Material (as defined below).
- You wish to receive and the Licensor is willing to grant to you a licence on the terms and conditions set out in this EULA to reproduce the Licensed Material in your Product (as defined below) and to sell the Product on which the Licensed Material has been reproduced.
This EULA is granted to you for use on the number of workstations or users as set out in the Order Form only. If you wish to add further workstations or users to your license please contact the Licensor. This may incur an increase in the License Fee.
This EULA is for the grant of a license to use the Licensed Materials only and at no point in time shall any ownership right in or to the Licensed Material or any copy of the Licensed Material vest in you. Save for any rights and licenses expressly granted to you under this EULA, all rights are reserved by the Licensor and its suppliers.
The particular terms of the agreement between you and the Licensor are set out in the order form (the “Order Form”). The Order Form constitutes an offer by the Licensor to grant to you a license to use the Licensed Material (as defined below). Your written acceptance of the Order Form constitutes acceptance of such offer and a contract is formed on the date of your acceptance (the “Effective Date”).
Grant of the License
In consideration of the license fee set out at clause 3.1 (the “License Fee”) as agreed between you and the Licensor, the Licensor grants you during the License Period (as defined below) a non-exclusive license (the “License”) to use the sound effects and/or any other materials purchased as set out in the Order Form (the “Licensed Material”) in the Territory as set out in the Order Form for the License Period (as defined below).
Any rights to the Licensed Material as stated in this EULA are only transferred to you upon the full License Fee being paid by you and received by the Licensor in cleared funds.
Duration and termination
This EULA shall commence on the Effective Date and shall continue, unless terminated earlier for ninety-nine (99) years from the Effective Date (the “Initial Term”) and automatically renew on a year to year basis thereafter unless one party gives the other written notice of expiration of the EULA at least thirty (30) days before expiration of the Initial Term of the EULA, or any time thereafter upon thirty (30) days written notice (the “License Period”).
Without affecting any other right or remedy available to it, the Licensor may terminate or suspend this EULA in whole or in part with immediate effect by giving written notice to you if:
your payment of the License Fee is overdue more than two times in any rolling five year period;
you commit a material breach of any term of this EULA which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
you suspend, or threaten to suspend, payment of your debts or you are unable to pay your debts as they fall due or admit inability to pay your debts or (being a company or limited liability partnership) you are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986] or (being a partnership) have any partner to whom any of the foregoing apply;
you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with any of your creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of you with one or more other companies or your solvent reconstruction;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the your winding (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of you with one or more other companies or the solvent reconstruction of you;
an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over you;
the holder of a qualifying floating charge over your assets has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over all or any of your assets or a receiver is appointed over all or any of your assets;
a creditor or encumbrancer of you attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to you in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in clause 2(d) to clause 2(j) (inclusive);
you suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business; or
you undergo a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010).
For the purposes of this clause, material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from a substantial portion of this EULA over the term of this EULA. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
You shall pay to the Licensor the “License Fee” as set out in the Payment Terms within the Order Form.
All payments made by you under this EULA are inclusive of VAT. If any such payment constitutes the whole or any part of the consideration for a taxable or deemed taxable supply by the Licensor, you shall increase that payment by an amount equal to the VAT which is chargeable in respect of the taxable or deemed taxable supply in question, provided that the Licensor shall have delivered a valid VAT invoice in respect of such VAT to you. If you fail to comply with your obligations under this clause, you shall additionally pay all interest and penalties, which thereby arise to the Licensor. If any VAT invoice is delivered to you after the relevant payment has been made, you shall pay the VAT due within five business days of the Licensor delivering a valid VAT invoice.
All sums payable under this EULA shall be paid free and clear of all deductions and withholdings unless the deduction or withholding is required by law. If any deduction or withholding is required by law you shall pay to the Licensor such sum as will, after the deduction or withholding has been made, leave the Licensor with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.
All sums payable under this EULA shall be paid in sterling to the credit of a bank account to be designated in writing by the Licensor.
In the event of any delay in paying any sum due under this EULA by the due date, you shall pay to the Licensor:
interest on the overdue amount at the rate of 2% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount; and
an amount equal to any penalties incurred by the Licensor as a direct result of the delay.
The provisions of this clause 3 shall remain in effect notwithstanding termination or expiry of this EULA for any reason whatsoever until the settlement of all subsisting claims by the Licensor.
Permitted uses of the Licensed Material
The Licensor hereby grants to you a non-exclusive and non-transferable (save as set out in clause 5 of this EULA) licence to do the following acts only throughout the License Period, subject to, and in accordance with, the terms of this EULA:
reproduce the Licensed Material in media now known or hereafter devised, including but not limited to video games, television, film, radio, presentations, events and media (“the Product”);
reproduce the Licensed Materials in any advertising or promotional material relating to the Product; incorporate, modify, adapt, embed all or a part of the Licensed Material in your Product;
license, distribute, sell, rent, lease, sublease, assign and or otherwise transfer ownership of your Product (but not any Licensed Material contained therein) as part of the Product distribution process; and
use the Licensed Material as a soundtrack with visual images as part of your Product;
use the Licensed Material as part of the public viewing or broadcast of your Product; and
Make one copy of the Licensed Material which may be stored in standalone form on one hard drive for back-up purposes with the Licensor’s written consent.
You must not sell the Licensed Material in isolation as a standalone product in whole or in part.
You shall have the right to grant to any person a sub-licence of any of your rights under this EULA provided that:
you obtain the prior written consent of the Licensor, such consent not to be unreasonably withheld;
you shall ensure that the terms of any sub-licence are in writing and are substantially the same as the terms of this EULA (except that the sub-licensee shall not have the right to sub-licence its rights) and you shall provide the Licensor with a copy of the sub-licence on request;
all sub-licences granted shall terminate automatically on termination or expiry of this EULA;
you shall be liable for all acts and omissions of any sub-licensee and shall indemnify the Licensor against all costs, expenses, claims, loss or damage incurred or suffered by the Licensor, or for which the Licensor may become liable (whether direct, indirect or consequential and including any economic loss or other loss of profits, business or goodwill), arising out of any act or omission of any sub-licensee, including any product liability claim relating to any Licensed Product manufactured or supplied by the sub-licensee. Any claim under the indemnity given in this clause must be made under the procedure described in clause 24.
Assignment and other dealings
Subject to clause 5, you shall not assign, transfer, mortgage, charge, sub-license, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this EULA without the prior written consent of the Licensor (such consent not to be unreasonably withheld or delayed).
The Licensor may at any time assign, transfer or deal in any other manner with any or all of its rights and / or obligations under this EULA.
The Licensor may subcontract or delegate in any manner any or all of its obligations under this EULA to any third party.
You shall, at the Licensor’s request, execute any agreements or other instruments (including any supplement or amendment to this EULA) which may be required in order to give effect to or perfect any assignment, transfer, mortgage, charge or other dealing referred to in clause 6.2.
obtain at your own expense all licences, permits and consents necessary for the provision of the Product in the Territory where it is to be marketed;
perform your obligations in connection with the manufacture and sale of the Product with all due skill, care and diligence including good industry practice;
only make use of the Licensed Material for the purposes authorised in this EULA; and
comply with all regulations and practices in force or use in the territory to which the Product is to be marketed and sold in order to safeguard the Licensor’s rights in all copyright subsisting in the Licensed Material.
You shall not do or omit to do anything to diminish the rights of the Licensor in the Copyright or the Licensed Material, nor assist any other person to do so, either directly or indirectly.
You acknowledge and agree that the exercise of the licence granted to you under this EULA is subject to all applicable laws, enactments, regulations and other similar instruments in the all territories in which the Licensed Material is used, and you understand and agree that you shall at all times be solely liable and responsible for such due observance and performance.
You agree that you will not:
use the Licensed Material in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the terms and conditions of this EULA, or act fraudulently or maliciously;
infringe the Licensor’s intellectual property rights or those of any third party in relation to your use of the Licensed Material (to the extent that such use is not licensed by the terms and conditions of this EULA);
use the Licensed Material in any way that will or can reasonably be considered to cause the Licensor or any other licensees reputational damage;
transmit or use any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Licensed Material;
rent, lease, sub-license, loan, provide, or otherwise make available, the Licensed Material in any form, in whole or in part to any person unless permitted by this EULA or otherwise without prior written consent from the Licensor;
copy the Licensed Material, except as part of the permitted uses of the Licensed Material or where it is necessary for the purpose of back-up;
include the Licensed Material or new material derived from or based on the Licensed Material or new material resulting from mixing the Licensed Material with other material in whole or in part in any library of sound effects to be made available to any third party without the Licensor’s express written consent; and
make the Licensed Material available in a manner intended to allow or invite a third party to download, extract, redistribute or access the Licensed Material as a standalone file and you shall exercise due diligence and maintain strict safeguards in order to ensure that no third party is able to do so. If you become aware that any third party has downloaded, extracted, redistributed or accessed the Licensed Material, you shall immediately notify the Licensor in writing;
translate, merge, adapt, vary, alter or modify, the whole or any part of the Licensed Material, except as necessary to use the Licensed Material and as permitted in this EULA;
disassemble, de-compile, reverse engineer, enhance or create derivative works except as necessary to use the Licensed Material in the creation of the Product and as permitted in this EULA; and
sell any part of the Licensed Material as part of any library of sounds effects or audio production software without the written consent of the Licensor.
Intellectual property rights
All intellectual property rights in the Licensed Material throughout the world belong to the Licensor and the rights in the Licensed Material are licensed (not sold) to you. You have no intellectual property rights in, or to, the Licensed Material other than the right to use them in accordance with the terms and conditions of this EULA.
Protection of the Copyright
For the purposes of this EULA, “Copyright” means all copyright and rights in the nature of copyright subsisting in the Product in any part of the world to which the Licensor is, or may become, entitled.
You shall immediately notify the Licensor in writing giving full particulars if any of the following matters come to your attention:
any actual, suspected or threatened infringement of the Copyright;
any claim made or threatened that the Licensed Material infringes the rights of any third party; or
any other form of attack, charge or claim to which the Copyright may be subject.
In respect of any of the matters listed in clause 9.2:
the Licensor shall, at his absolute discretion, decide what action to take, if any;
the Licensor shall have exclusive control over, and conduct of, all claims and proceedings;
you shall not make any admissions other than to the Licensor and shall provide the Licensor with all assistance that he may reasonably require in the conduct of any claims or proceedings; and
the Licensor shall bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for his own account.
The provisions of section 101A of the Copyright, Designs and Patents Act 1988 (or equivalent legislation in any jurisdiction) are expressly excluded.
Nothing in this EULA shall constitute any representation or warranty that the exercise by you of rights granted under this EULA will not infringe the rights of any person.
Without affecting the Licensors other rights and remedies under this EULA or the law, the Licensor, being the sole author of the Licensed Material, waives all moral rights during the License Period in respect of the use to made of the Licensed Material under this EULA to which the Licensor may now or at any future time be entitled to under the Copyright, Designs and Patents Act 1988 or under any similar legislation from time to time in force anywhere in the world.
Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this EULA.
Liability, indemnity and insurance
The Licensor warrants that:
It is the sole legal and beneficial owner of, and owns all the rights and interests in, the copyright;
It has not licensed or assigned the copyright; and
the Licensed Material is its original work and has not been copied wholly or substantially from any other source.
To the fullest extent permitted by law, the Licensor shall not be liable under this EULA for any loss of profit or for any indirect special or consequential loss or damage of any kind (including without limitation, any loss or damage to profit, revenue, contracts, anticipated savings, goodwill or business opportunities whether direct or indirect) howsoever arising and whether caused by negligence, breach of contract or otherwise except where the loss or damage is as a foreseeable result of the Licensor breaking the terms and conditions of this EULA or failing to use reasonable care and skill. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time you accepted these terms, both we and you knew it might happen.
The Licensor shall not be liable for any losses to you to the extent that they could reasonably have been mitigated by you or to the extent that they were caused or contributed to by your (or your employees, directors or other officer’s, agent’s or representative’s) acts or omissions, including, but not limited to, your breach of this EULA or your negligence.
You shall indemnify the Licensor against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Licensor arising out of or in connection with:
your exercise of your rights granted under this EULA;
your breach or negligent performance or non-performance of this EULA, including any product liability claim relating to Products manufactured, supplied or put into use by you;
your breach or infringement of any third party intellectual property rights or any other rights;
your the enforcement of this EULA; and
any claim made against the Licensor by a third party for death, personal injury or damage to property arising out of or in connection with defective Products, to the extent that the defect in the Products is attributable to the acts or omissions of you, your employees, agents, sub-licensees or subcontractors.
The maximum aggregate liability of the Licensor under or in connection with this EULA in respect of all claims by you against the Licensor giving rise to the liability of the Licensor whether for breach of contract, negligence or other tort or breach of statutory duty or otherwise shall not exceed 125% of the License Fee paid (if any) during the preceding 12 months.
If a payment due from you under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the Licensor shall be entitled to receive from you such amounts as shall ensure that the net receipt, after tax, to the Licensor in respect of the payment is the same as it would have been were the payment not subject to tax.
You shall, at your expense, carry product liability and comprehensive general liability insurance coverage of an amount adequate to support your liabilities under this EULA and remain in effect throughout the duration of this EULA and for a period of six contractual years after termination or expiry of this EULA, and shall supply the Licensor with a copy of such policy on request.
The Licensor does not exclude or limit in any way its liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors or for fraud or fraudulent misrepresentation.
The Licensor will not be responsible if the Licensed Materials do not fit your purpose.
If the Licensor’s provision of the Licensed Material or support for the Licensed Material is delayed by an event outside the Licensor’s control then the Licensor will contact you as soon as possible to let you know and will take reasonable steps to minimise the effect of the delay.
Delay in enforcement of the EULA
No failure or delay by a party to exercise any right or remedy provided under this EULA or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Each party undertakes that it shall not at any time during this EULA, and for a period of three years after the expiry or termination of this EULA, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, nor any of the terms of this agreement without the prior written consent of the other party, except as permitted by clause 14.2.
Each party may disclose the other party’s confidential information:
to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this EULA. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with the obligations set out in this clause 14 as if they were a party to this EULA; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
No party shall use any other party’s confidential information for any purpose other than to exercise its rights or perform its obligations under or in connection with this EULA.
Consequences of termination
On expiry or termination of this EULA for any reason and subject to any express provisions set out elsewhere in this EULA:
all outstanding sums payable by you to the Licensor shall immediately become due and payable;
all rights and licences granted pursuant to this EULA shall cease; and
you shall return promptly to the Licensor at your expense all records and copies of any information of a confidential nature communicated to you by the Licensor, either preparatory to, or as a result of, this EULA, to the extent such material remains confidential.
Any provision of this EULA that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this EULA shall remain in full force and effect.
Termination or expiry of this EULA shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this EULA which existed at or before the date of termination or expiry.
This EULA constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
No variation of this EULA shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
If any provision or part-provision of this EULA is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this EULA.
If any provision or part-provision of this EULA is deemed deleted under clause 18.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Third party rights
Unless it expressly states otherwise, this EULA does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this EULA.
No partnership or agency
Nothing in this EULA is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
Each party confirms it is acting on its own behalf and not for the benefit of any other person.
Neither party shall be in breach of this EULA nor liable for delay in performing, or failure to perform, any of its obligations under this EULA if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for two months, the party not affected may terminate this agreement by giving 30 days’ written notice to the affected party.
Any notice or other communication given to a party under or in connection with this EULA shall be in writing and shall be:
delivered by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
sent by email to the address specified in the Order Form.
Any notice or communication shall be deemed to have been received:
if delivered by hand, on signature of a delivery receipt;
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;
if sent by email, at 9.00 am on the next Business Day after transmission.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Inadequacy of damages
Without prejudice to any other rights or remedies that the Licensor may have, you acknowledge and agree that damages alone would not be an adequate remedy for any breach of the terms of this EULA by you. Accordingly:
the Licensor shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this EULA (each an “Equitable Remedy”); and
the Licensor reserves the right to require a reasonable security deposit (subject to a minimum of £15,000) pending the outcome to cover professional fees and expenses in respect of any such Equitable Remedies subject to the following:
the security deposit is without prejudice to the amounts(s) claimable or due and payable to the Licensor;
the Licensor may claim the security deposit as an undisputed debt from you on the terms of this clause 23;
if the Licensor is not successful in obtaining all the pursued Equitable Remedies in whole or in part, the security deposit will be refunded to you in full without interest;
if the Licensor is successful in obtaining at least one Equitable Remedy in whole or in part the Licensor will be entitled to take from the security deposit such proportion as is required to meet the Licensor’s professional fees and expenses and other amounts owed to the Licensor for which liability is accepted by you or determined by the court (and refund without interest the amount of the security deposit, if any, that has not been so used).
Multi-tiered dispute resolution procedure
If a dispute arises out of or in connection with this EULA or the performance, validity or enforceability of it (“Dispute”) then the parties shall refer to the matter to the Centre for Effective Dispute Resolution (the “CEDR”).
No party may commence any court proceedings under clause 24 in relation to the whole or part of the Dispute until a determination has been made by the CEDR.
This EULA and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this EULA or its subject matter or formation.