PLEASE READ THIS END USER LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE CLICKING THE "ACCEPT" BUTTON OR DOWNLOADING OR USING THE SPIRE® MULTITRACK MUSIC RECORDER MOBILE APPLICATION ("APPLICATION") ACCOMPANYING THIS LICENSE. BY CLICKING THE "ACCEPT" BUTTON OR DOWNLOADING OR USING THE APPLICATION, EITHER ON A STANDARD BASIS OR IN CONJUNCTION WITH ADDITIONAL SPIRE PRO FEATURES AND SERVICES (“SPIRE PRO SERVICES”) THROUGH AN IN-APP SUBSCRIPTION PURCHASE, YOU ARE ENTERING INTO AND AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE.
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT CLICK THE "ACCEPT" BUTTON OR DOWNLOAD OR USE THE APPLICATION.
2. License Grant and Restrictions on Use.
2.1 License Grant. Company grants to You a revocable, non-exclusive, non-transferable, limited right to install and use the Application on a single Mobile Device owned and controlled by You, and to access and use the Application on such Mobile Device strictly in accordance with the terms and conditions of this License, the Usage Rules and any service agreement associated with your Mobile Device (collectively, "Related Agreements"). Where your use of the Application additionally includes Spire Pro Services, pursuant to your in-app purchase of a subscription thereto, the license granted herein shall apply, in kind, to the Spire Pro Services as so purchased.
2.2 Restrictions on Use. You shall use the Application strictly in accordance with the terms of the Related Agreements and shall not: (i) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Application; (ii) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Application; (iii) violate any applicable laws, rules or regulations in connection with your access or use of the Application; (iv) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Company or its affiliates, partners, suppliers or the licensors of the Application; (v) use the Application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (vi) distribute the Application to multiple Mobile Devices; (vii) make the Application available over a network or other environment permitting access or use by multiple Mobile Devices or users at the same time; (viii) use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by Company; (ix) use the Application to send automated queries to any website or to send any unsolicited commercial e-mail; or (jx) use any proprietary information or interfaces of Company or other intellectual property of Company in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application.
3. Intellectual Property Rights.
3.1 Rights to Application. You acknowledge and agree that the Application and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of Company. Furthermore, You acknowledge and agree that the source and object code of the Application and the format, directories, queries, algorithms, structure and organization of the Application are the intellectual property and proprietary and confidential information of Company and its affiliates, licensors and suppliers. Except as expressly stated in this License, You are not granted any intellectual property rights in or to the Application by implication, estoppel or other legal theory, and all rights in and to the Application not expressly granted in this License are hereby reserved and retained by Company.
3.2 Third-Party Software. The Application may utilize or include third-party software (“Third-Party Software”), as noted at https://new.izotope.com/content/izotope/en/products/spire-studio/getting-started/spire-legal/spire-third-party-software.html, that is subject to open source or third-party license terms. You acknowledge and agree that Your right to use such Third-Party Software as part of the Application is subject to and governed by the terms and conditions of the open source or third-party license applicable to such Third-Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein, and, where applicable, to the privacy policies of such third parties. In the event of a conflict between the terms of this License and the terms of such open source or third-party licenses, the terms of the open source or third-party licenses shall control with regard to Your use of the relevant Third-Party Software. In no event, shall the Application or components thereof be deemed to be "open source" or "publicly available" software.
3.3 Company’s Marks. You are not authorized to use the Company trademarks in any advertising, publicity or in any other commercial manner without the prior written consent of Company, which consent may be withheld for any or no reason.
3.4 Infringement Acknowledgement. You and Company acknowledge and agree that, in the event of a third-party claim that the Application or Your possession or use of the Application infringes any third party's intellectual property rights, You (and not Company) shall be responsible for the investigation, defense, settlement and discharge of any such claim of intellectual property infringement. You shall, however, promptly notify Company in writing of any such claim.
4. Restriction on Transfer. You may not rent, lease, lend, sublicense or transfer the Application, this License or any of the rights granted to You hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect.
5. Use of Information.
5.1 Consent to Use Information. You hereby authorize and consent to the collection, storage and use, by Company and its affiliates, partners and agents, of any information and data related to or derived from Your use of the Application, and any information or data that You provide to Company and its affiliates, partners and licensors ("Information"). Without limiting the generality of the foregoing, the Information shall include, without limitation, the following types of information and data (in an aggregate or user-level form): user actions and system configuration. You are not required to provide or disclose any information or data that is personally identifiable to You solely with respect to Your use of the Application. You understand and acknowledge, however, that should You elect not to disclose certain information in connection with your use of the Application, and You subsequently elect to pair your use of the Application with related Company hardware, You shall be required to provide specific user information to Company. Except for any personally identifiable information You disclose, the Information shall be treated as being non-confidential and nonproprietary, and Company assumes no obligation to protect confidential or proprietary information (other than personally identifiable information) from disclosure and shall be free to reproduce, use, and distribute the Information to others without restriction. Company shall also be free to use any ideas, concepts, know-how or techniques contained in the Information for any purpose whatsoever including, without limitation, updates and/or developing, manufacturing and marketing products and services incorporating such Information.
6. Term and Termination.
6.1 Term. This License shall be effective for the duration of the Spire Pro Services subscribed to or until terminated as provided for herein.
6.2 Termination. Company may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this License and the rights afforded to You hereunder with or without prior notice. Furthermore, if You fail to comply with any terms and conditions of this License, then this License and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by Company. Upon the termination of this License, You shall cease all use of the Application and uninstall the Application.
7. Disclaimer of Warranties. YOU ACKNOWLEDGE AND AGREE THAT THE APPLICATION IS PROVIDED ON AN "AS IS' AND "AS AVAILABLE" BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE APPLICATION AND ANY THIRD-PARTY SOFTWARE AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. COMPANY AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE APPLICATION AND THIRD-PARTY SOFTWARE AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, COMPANY AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE APPLICATION OR THIRD-PARTY SOFTWARE AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE APPLICATION OR THIRD-PARTY SOFTWARE AND SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE APPLICATION WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE APPLICATION OR THIRD-PARTY SOFTWARE AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR FROM THE APPLICATION SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPANY HAS NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE APPLICATION.
8. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL COMPANY OR ITS AFFILIATES, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE APPLICATION AND ANY THIRD-PARTY SOFTWARE AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY'S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE GREATER OF (I) THE AMOUNT PAID BY YOU FOR SPIRE PRO SERVICES IF YOU ARE A SUBSCRIBER OR (II) FIFTY US DOLLARS ($50.00). THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9. Indemnification. You shall indemnify, defend and hold harmless Company and its affiliates, partners, suppliers and licensors, and each of their respective officers, directors, agents and employees ("Indemnified Parties") from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) Your access to or use of the Application or Third-Party Software and Services; (ii) Your breach of this License; (iii) Your violation of applicable law; (iv) Your negligence or willful misconduct; or (v) Your violation of the rights of a third party, including the infringement by You of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations shall survive any termination of this License.
10. Compatibility. Company does not warrant that the Application will be compatible or interoperable with Your Mobile Device or any other piece of hardware, software, equipment or device installed on or used in connection with your Mobile Device. Furthermore, You acknowledge that compatibility and interoperability problems can cause the performance of your Mobile Device to diminish or fail completely, and may result in permanent damage to your Mobile Device, loss of the data located on your Mobile Device, and corruption of the software and files located on your Mobile Device. You acknowledge and agree that Company and its affiliates, partners, suppliers and licensors shall have no liability to You for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
11. Product Claims. You acknowledge that You (not Company) are responsible for addressing any third-party claims relating to your use or possession of the Application and agree to notify Company of any third-party claims relating to the Application of which You become aware. Furthermore, You hereby release Company from any liability resulting from your use or possession of the Application, including, without limitation, the following: (i) any product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation.
12.1 Governing Law. This License shall be deemed to take place in the Commonwealth of Massachusetts and shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflict of laws principles. Any dispute arising from this License shall be adjudicated in the courts of the City of Boston, Massachusetts. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
12.2 Severability. If any provision of this License is held to be invalid or unenforceable with respect to a party, the remainder of this License or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this License shall be valid and enforceable to the fullest extent permitted by law.
12.3 Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under this License shall not affect a party's ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach.
12.4 Export Control. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction(s) in which the Application is obtained. You represent and warrant that You are not (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, or (ii) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. You also agree that You shall not use the Application for any purposes prohibited by United States law.
12.5 Modification or Amendment. Company may modify or amend the terms of this License by posting a copy of the modified or amended License on the Company Spire Application website at https://new.izotope.com/content/izotope/en/products/spire-studio/getting-started/spire-legal/spire-eula.html. You shall be deemed to have agreed to any such modification or amendment by your decision to continue using the Application following the date on which the modified or amended License is posted on the Company Spire Application website.
12.6 Survival. The following sections of this License and any other provisions of this License which by their express language or by their context are intended to survive the termination of this License shall survive such termination: 1, 2.2, 3, 4, 5, 8, 9, 10, 11, and 12.
12.7 Assignment. You shall not assign this License or any rights or obligations herein without the prior written consent of Company, and any attempted assignment in contravention of this provision shall be null and void and of no force or effect.
12.8 Entire Agreement. This License and the documents incorporated herein by reference constitute the entire agreement with respect to the use of the Application licensed to You hereunder and supersede all prior or contemporaneous understandings regarding such subject matter.
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