Spacial Audio Solutions
SAM VIBE USER Agreement
Last Updated: November 2, 2012
This User Agreement (“Agreement “) is a legal agreement between Spacial Audio Solutions, LLC. (“Spacial”) and you an individual, or you a company or other legal entity (“You”) with regards to the SAM Vibe software and streaming service (“Service”).
The Service includes access to proprietary software developed by Spacial (“Software”) which is required for the use of the streaming service. Pursuant to this Agreement, the Software is being licensed to You and not sold.
The Software includes all software files, computer information, and related materials, files and documentation offered and/or provided along with the Software. The Software also includes any future upgrades or updates of the Software that may be provided to You by Spacial (along with any accompanying documentation, materials or files) to the extent that Spacial does not provide this to You under separate terms from this Agreement.
This Agreement sets forth the terms and conditions under which Spacial permits You use the Service in conjunction with the Software licensed to you pursuant to this Agreement.
By indicating Your acceptance of this Agreement and/or by installing, copying or otherwise using the Service, You agree to be bound by the terms of this Agreement which shall take effect the earlier of (a) the moment of Your acceptance of this Agreement or (b) the moment You commence the download and installation of the Software.
If You do not agree to the terms of this Agreement , Spacial is unwilling to license the Software to You and You may not use the Service or install, copy, or use the Software.
1. Software License
Providing that You comply with the terms and conditions of this Agreement, Spacial grants You the following rights:
- Install and use the Software on one of Your computers;
- Install an additional copy of the Software on a portable device or a second computer for Your exclusive use as a back-up to the first copy of the Software installed on Your first computer;
- As an alternative to Section 1a, You may install the Software on a network storage device, such as a server, and allow Your first computer to access and use the this licensed Software over a private network . However to access and actively use the Software installed on the network storage device from any additional computer or device You (or any third party) must acquire an additional license from Spacial.
In the event that You choose to change your computer or device for use or back-up of the Software as contemplated in Sections 1a. or b., You may transfer the Software to another computer or device for use or back-up providing that You completely remove the Software from the previous computer or device on which the Software was installed.
2. Ownership And Copyright
The Software and Service are protected by copyright laws throughout the World in accordance with international treaty provisions. Spacial or its suppliers own the copyright, title, and all intellectual property rights found in the Software and Service. Except as expressly stated in this Agreement, nothing in this Agreement shall be considered to be granting You any intellectual property rights in the Software or Service. In addition You have no right to make use of the product names, trade-names or trademarks of Spacial without the express consent of Spacial.
3. Reservation Of Rights
Spacial reserves all rights not expressly granted to You in this Agreement.
4. Rules Relating to Use of The Service
You acknowledge and agree that You are solely responsible for all content which You stream, distribute, or store via the Service (“Your Content”). The necessity to acquire any rights for Your Content is solely your responsibility. Spacial is in no way responsible for Your Content and does not provide any form of legal protection whatsoever for Your Content used in conjunction with the Software and Service.
You agree to use the Service in compliance with the terms of this Agreement and with all other laws applicable in Your jurisdiction and any other jurisdictions in which You use the Service. In this regard and in regards to the general requirement that You use the Service in an appropriate manner, You hereby represent and warrant that:
- You shall not separate the component parts of the Software for uses other than those uses approved herein; the Software is licensed as a single product;
- You shall not reverse engineer, decompile or disassemble the Software or Service;
- You shall not re-sell, rent or lease the Software or Service;
- You shall not use the Service to transport and stream any third party media (i.e. radio, television, etc.);
- No ad injector Service may be integrated into the Service without the express permission of Spacial;
- You shall not use the Service in a manner that infringes, violates or misappropriates the rights of any third party;
- You own and/or control all of Your Content or you have acquired all the licenses, permissions and rights necessary for Your use of Your Content;
- You shall not use the Service to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations;
- You shall not use the Service to disseminate or cause the dissemination of viruses, Trojan horses, worms, time bombs, bots, or other disabling devices or other harmful components intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- You shall not use the Service in any manner that violates any applicable local, state, national, or international laws;
- You shall not use the Service in any manner that violates the privacy of any person or entity; and
- You shall not use the Service in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory, discriminatory, or otherwise malicious or harmful to any person or entity.
5. Account Registration and Membership
With regards to registration and account information, You represent and warrant that:
- the information provided and factual assertions made to Spacial are accurate and complete;
- the contact information provided is up to date and accurate and allows Spacial to communicate with You in a timely manner as required;
- if You are an individual, You are of the age of majority in your country and have the legal capacity to enter into this Agreement;
- if You are an entity or organization,
- Your entity or organization is duly authorized to do business in the country or countries where it operates,
- the individual accepting the Agreement meets the requirements of subsection c. above and is an authorized representative of Your entity or organization, and
- Your entity or organization’s employees, officers, representatives and other agents accessing the Service are duly authorized to do so and to legally bind You to this Agreement and to all transactions conducted under Your account.
6. Your Service Requirements
You acknowledge and agree that certain basic requirements are necessary for You to make use of the Service. You must have a computer with internet access, a web browser (the latest versions of Firefox, Microsoft Internet Explorer or Google Chrome are recommended), and the Flash Media Player (which can be downloaded free of charge here: http://get.adobe.com/flashplayer/). Spacial is in no way responsible for Your hardware or software incompatibility to network elements that are not under the control of Spacial.
7. End User Service Requirements
You acknowledge and agree that certain basic system requirements are necessary for listeners who whish to access Your Content through the Service (“End Users”). End Users must have a computer with internet access, a web browser (the latest versions of Firefox, Microsoft Internet Explorer or Google Chrome are recommended), a sound card, speakers, and a compatible streaming player such as Winamp, Flash Player, Windows Media Player (standard on most Windows operating systems), or VLC. Spacial is in no way responsible for End User hardware or software incompatibility to network elements that are not under the control of Spacial, including but not limited to End User’s LAN, WAN, router and firewall.
8. Updates And Upgrades to Software
From time to time, Spacial may offer and/or provide You an upgrade or update to the Software. You shall only be entitled to any such Software upgrade or update providing that You are still licensed to use the Software under this Agreement. Unless otherwise indicated by Spacial, any Software upgrade or update shall be subject to all of the terms and conditions of this Agreement and the upgrade or update may not be used, transferred, or separated for use on any other computer or device other than that computer or device permitted in this Agreement.
9. Third Party Software
The Service may include software and/or services that are proprietary to third parties (“Third Party Software”). The providers of Third Party Software are express third-party beneficiaries under this Agreement, with a right to enforce the terms of this Agreement against You. The providers of Third Party Software make no representation or warranty to You. You acknowledge and agree that Your use of Third Party Software is subject to terms and conditions issued by the providers of such Third Party Software and You hereby agree to be bound by those terms and conditions.
Spacial will collect and store information which You provide for purposes of Your registration on the Web Site, Your use of Services, and Your licensing of the Software under this Agreement, and for communicating with You regarding Your account and providing You with general Spacial information. By using the Web Site and Service, You consent that Spacial can collect, store, and use the information You provided for these purposes. The information You submit during the registration process will be reviewed to ensure that it is reliable, accurate and complete. You also agree and understand that upon installation of the Software, Spacial collects some information regarding Your computer in order to help ensure that the Software functions correctly under this license. In addition, the Service also communicates with certain web services and will send data to these services. This data does not contain any information that will personally identify You and You do have the option to opt out from using these services. With the exception of the applicable provisions below, Your information will remain strictly confidential and will not be sold, rented, disclosed or made available to anyone other than Spacial and its designated agents who are similarly bound to these confidentiality provisions. Any credit card information which You provide for the purpose of payment for the Service will not be stored by Spacial.
Spacial may collect, use, or disclose Your information without Your knowledge or consent if it is reasonably necessary:
- in case of an emergency where the life, health or security of an individual is threatened;
- to satisfy any applicable law, regulation, legal process or enforceable governmental request;
- to enforce applicable terms of this Agreement, including investigation of any possible violations;
- to detect, prevent, or otherwise address fraud, security, or technical issues; or
- to protect against harm to the rights, property, or safety of Spacial or any member of the public.
Spacial will protect personal information through appropriate security measures against such risks as loss or theft, unauthorized access, disclosure, copying, use, modification or destruction. Spacial will protect the information regardless of the format in which it is stored.
11. Storage of Your Content
You acknowledge and agree that although Spacial will make all best efforts to securely store Your Content as required for use of the Service, all of Your Content is stored by Spacial at your own risk and Spacial assumes no responsibility for any loss, damage, or corruption to Your Content. In addition, Spacial does not backup Your Content, the backup of which is Your sole responsibility.
12. Ordering and Fees
You may order the Service through Your member account on the Web Site. Fees for the SAM Vibe Services are defined on the Web Site. Fees are subject to change and may be updated by giving You thirty (30) days notice via the e-mail address indicated in Your account information. You will begin receiving your Services on the date of initiation of service.
- Monthly subscriptions: Fees for your Services are invoiced and charged on the date of initiation of Services and subsequently invoiced and charged each month unless service is cancelled per Section 15. For the purposes of monthly subscriptions, a month is defined as a 28 to 31-day period that starts on the date of initiation of service (for example, March 3, 2012, through April 2, 2012).
- Yearly subscriptions: Fees for your Services are invoiced and charged on the date of initiation of Services. For the purposes of yearly subscriptions, a year is defined as a 365-day-period starting on the date of initiation of service; Spacial will notify you via e-mail thirty (30) days prior to the end of Your yearly subscription so that you may either renew or cancel your yearly subscription. Should you fail to respond to this 30-day notice, your subscription will be automatically converted to a monthly subscription subject to the terms of Section 12a and which may be cancelled per Section 15.
The Spacial Support Center staff is available to provide technical support regarding issues directly related to the availability and functionality of the Service. You may contact the Support Center by creating a Support Ticket online. You must provide Your basic account information and adequate details of Your technical issue in order to receive support, failing which response and/or resolution may be delayed. You acknowledge and agree that Spacial’s responsibility is limited to software, hardware, and network elements under Spacial’s control and directly related to the availability and functionality of Spacial’s Services. You further acknowledge and agree that, while the Spacial Support Center aims to help clients as much as possible, Spacial will not provide generic computer, Internet, or website advice nor will Spacial provide support for elements that are ordinarily Your responsibility or the responsibility of Your ISP or for issues related to End User applications.
14. System Maintenance and Service Disruption
Spacial will post maintenance notices on the SAM Vibe Web Site. Spacial will make all best efforts to avoid any disruptions to Your Services during regular system maintenance. It is however possible that you may experience a Service disruption as a result of regular or immediate maintenance issues, system failure, security issues (i.e. denial of service or port attack), or for reasons outside of Spacial’s control. Spacial assumes no responsibility for any damages or inconveniences that may result from any Service disruptions.
15. Renewal and Cancellation of Services
- Where You have purchased a monthly subscription to the Services as detailed in Section 12a, such subscription shall be automatically renewed at the end of the monthly subscription period. Should you wish to cancel your monthly subscription, You must advise Spacial through Your member account. No credit or refund will be issued to You however Your Service will remain active until the end of the subscription period in which You cancelled Your Service.
- Where You have purchased a yearly subscription to the Services as detailed in Section 12b, you will receive an e-mail notification thirty (30) days before the expiration of your subscription so that you may renew your subscription or cancel your Service should you so choose; should you fail to respond to this 30-day notice, your subscription will be converted to a monthly subscription which shall be renewed automatically at the end of each month. Should You wish to cancel Your subscription, You must advise Spacial through Your member account. No credit or refund will be issued to You however Your Service will remain active until the end of the subscription period in which You cancelled Your Service.
16. Breach of the Agreement and Termination of License
Without prejudice to any of Spacial’s other rights, Spacial may suspend or terminate your account and access to Your Service immediately and without notice if You fail to comply with any of the terms and conditions of this Agreement. In the event of the termination of this Service and License (by either You or Spacial), You agree to immediately uninstall the Sofware and de-activate it in addition to erasing and destroying all copies of the Software and all documentation relating to use of the Software. Following the termination of this License, any further use of the Service or Software will be an infringement of Spacial’s copyrights and intellectual property rights.
In addition, Spacial may terminate Your access to your Service, the license granted to You pursuant to this Agreement, and Your account with Spacial for any reason whatsoever in which case notice will be sent to You thirty (30) days prior to such termination via the e-mail address indicated by You in your account information.
17. Limitation of Liability
You acknowledge and agree that Your use of the Service is “as-is” and Spacial does not make, and hereby disclaims, any and all other express and implied warranties, including but not limited to warranties of merchantability or fitness for a particular purpose. Spacial shall not be liable for any direct damages to You or to any other third party, whether out of contract or from tort, including loss of data, profits, business interruption, or the use or inability to use the Service. Spacial shall not be liable for any other special, consequential or exemplary damages suffered by You relating to the Service. Spacial’s cumulative liability to you shall not exceed the fees paid by You to Spacial in connection with use of the Service and Software under this Agreement in the twelve months preceding the event giving rise to a claim by You. Certain jurisdictions limit disclaimers of warranties and limitations of damages. In any such jurisdiction, this limitation of liability shall be deemed amended solely to the extent necessary to comply with the laws of such jurisdiction.
18. Your Indemnity
You hereby indemnify and hold harmless Spacial and their respective officers, directors, employees, agents, and contractors from and against any claims, actions, suits, damages, liabilities, costs, and expenses (including reasonable legal expenses) arising from a claim arising from Your violation of any terms and conditions of this Agreement, including, but not limited to, any action by any third party that you have violated the proprietary rights of that third party, or caused any damage to that third party, in the course of your use of the Service. This indemnity shall not apply in the event of any claim and/or actions by a third party that the Service itself has violated the proprietary rights of that third party, or caused any damage to that third party.
19. Severability of Terms
If any of the terms in this Agreement are found to be unlawful, void, or for any reason unenforceable, then such provision(s) shall be deemed severable from the other the terms of this Agreement and shall have no affect on the validity of the remaining terms.
20. Non-Waiver of Rights
The failure of either party to insist on or enforce the strict performance of the other party’s obligations with respect to any of the terms of this Agreement, or to exercise any rights found herein, will not be construed as a waiver or diminishment of such party’s right to assert or rely upon any such provision or right in any other instance, and same will remain in full force and effect.
21. Governing Law
All matters relating to this Agreement and use of the Service shall be governed by the laws of the Province of Quebec and the federal laws of Canada. You therefore agree to the courts of Quebec and Canada having legal jurisdiction. You also agree that You are fully responsible for complying with all of Your local laws.