This End user License Agreement (“EULA”) applies to the purchase and use of the Products as defined hereafter and will be made available to you in electronic form before you enter into an Agreement with SONOKINETIC, allowing you to print it and save it to your computer.
This EULA replaces all previous agreements between you and SONOKINETIC regarding the purchase and use of the Products, which previous agreements no longer apply by your acceptance of this EULA.
Article 1 – Definitions
In this EULA, the following terms have the meaning given to them below:
- Agreement: a distance agreement entered into between you and SONOKINETIC by means of the Website. This EULA forms an inseparable part of the Agreement;
- Products: SONOKINETIC’s sound and sample libraries, musical compositions, associated media or electronic documentation, purchased through the Website and provided to you through a download or on a physical data carrier, including accompanying printed materials or online documentation;
- Intellectual Property Rights: all intellectual property rights and associated rights, including copyrights, neighboring rights, database rights and trade mark rights;
- Website: the website of SONOKINETIC www.sonokinetic.net as well as all underlying web pages.
Article 2 – Details of SONOKINETIC
2.1 The company details of SONOKINETIC are as follows:
Company name: SONOKINETIC B.V.
Address: Tweede Boerhaavestraat 49-C5, 1091 AL Amsterdam, The Netherlands
Chamber of Commerce number: 55341713
VAT number: NL851662638B01
Article 3 – Applicability, Amendments and concluding Agreements
- This EULA applies to the use of the Website, to all Agreements and to your use of the Products.
- SONOKINETIC shall be entitled to amend this EULA at any time. SONOKINETIC shall notify you of any amendments made to this EULA, which will become effective one (1) month after the notice. If you do not wish to accept the amendments, you have the right to terminate the Agreement(s) in writing as of the date on which the amended EULA will become effective. If you continue to use the Products after the aforementioned period, you accept the amended EULA. Any other amendments and/or supplements to this EULA shall only be effective if agreed in writing (including electronically) between you and SONOKINETIC.
- An Agreement is concluded when you have successfully completed the ordering and purchasing process on the Website. Upon completion of the ordering and purchasing process, SONOKINETIC will immediately send you an email to the address provided by you in order to confirm that the Agreement has been concluded. Until the moment you receive this confirmation you are entitled to terminate the Agreement at no cost.
Article 4 – Product License
- You acknowledge and agree that what you receive is a non-transferrable, non-exclusive, limited license for he term of the Agreement, which may not be given in sub-license, to use the Products under the conditions stated in this EULA. Any other use of the Products is not allowed, save where mandatory law provides otherwise.
- You may only use the sounds, samples and musical compositions comprised in the Products in musical arrangements, compositions and/or productions with multiple musical audio layers. You are not allowed to record, publicly perform, make available, broadcast or otherwise reproduce or communicate the Products as single, isolated sounds. Creating sample libraries in any form, commercially or otherwise, using the Products and/or the sounds and/or samples comprised therein is strictly prohibited without express written prior consent of SONOKINETIC.
- SONOKINETIC allows you to use the sounds and samples in commercial recordings without payment of any additional license fees.
- You may not install and/or use the Products on multiple computers unless these are part of a single composition workstation or if you have multiple non-competing sites of work, for example a studio desktop and a laptop for live performance. In all cases, the maximum number of computers on which you are allowed to install Products is three. Native Instruments licensed libraries are allowed to be installed on five computers.
- You may not transfer, assign, sublicense, modify, rent-out, lease, loan, resell, distribute, network or electronically transmit the Products in whole or in part to any third party, save as is entailed within the right granted to you in the preceding paragraphs. Any such attempted assignment shall be void and of no effect without the prior written consent of SONOKINETIC. You are not allowed to grant any third party access to and/or allow any third party to use the Products without prior written approval of SONOKINETIC.
- You shall always promptly follow instructions issued by SONOKINETIC concerning the right of use.
- For some Products SONOKINETIC will make updates available through the Website, which will be announced via the Website, social media and the SONOKINETIC newsletter. Additional conditions may apply to the use of these updates.
Article 5 – Guarantees
- All delivery dates stated on the Website are by way of indication only and do not bind SONOKINETIC. SONOKINETIC cannot guarantee that the Website and/or Products will be accessible and/or available at all times. Any disruptions in the Website may also, but not exclusively, occur as a result of failures in the internet or telephone connection or through viruses or errors/bugs.
- SONOKINETIC will in no event be liable to you or have any obligation to pay any compensation for any loss arising from or caused by the fact that the Website, any Products and/or services offered by third parties are (temporarily) unavailable or interrupted.
- SONOKINETIC will not be liable for any loss or corruption of data stored on the peripheral equipment you use caused by errors or inaccuracies in the Products.
- All technical requirements and facilities necessary for accessing and using the Website and the Products, including but not limited to hardware, software and/or internet connections and the costs of such use are your own financial responsibility.
- To the maximum extent permitted by applicable law, SONOKINETIC disclaims all warranties, either express or implied, including, but not limited to, implied warranties of fitness for a particular purpose, with regard to the Products.
- In the event you have questions regarding the use of the Products, you can contact SONOKINETIC through the contact details as stated in article 2.
Article 6 – Prices, Payment and Delivery
- All prices for the Products are stated on the Website, are in euros (unless otherwise specified on the Website) and are exclusive of VAT and any applicable shipping costs.
- The manner in which you can pay for the Products is stated on the Website. Products will not be shipped or made available for download until payment has been received by SONOKINETIC.
- As soon as payment is received, Products will be shipped to the address provided by you or you will receive the URL which you can use to download the Products. In case of downloads, Section 7:46d.1 of the Dutch Civil Code does not apply and there is no subsequent period during which you have the right to withdraw, since SONOKINETIC will start performing the Agreement immediately with your consent.
- You are obliged to notify SONOKINETIC immediately, through the contact details as stated in article 2, if the Product you have received is not in accordance with the Agreement, as regards quality and/or content. If, to the sole discretion of SONOKINETIC, the complaint is justified and can be attributed to SONOKINETIC, it will either send you a new Product, remedy the fault in the Products, make the correct Product available to you for download free of charge or refund the amount paid for the concerned Product.
- Manifest errors or mistakes regarding the prices stated on the Website do not bind SONOKINETIC.
Article 7 – Liability
- SONOKINETIC’s liability for imputably failing (toerekenbare tekortkoming) to perform the Agreement, any unlawful act or otherwise, shall be limited to compensating direct damages, for an amount not exceeding the amount of the Agreement. The aggregate liability of SONOKINETIC for damages, regardless of the cause, will in no event exceed € 1.000 (one thousand euros).
- SONOKINETIC shall not be liable for any indirect damages including but not limited to, consequential damages (vermogensschade, gevolgschade) arising out of, or in connection with the Agreement, such as, but not limited to, loss of profit, unrealized savings, loss of goodwill, loss caused by business interruption, loss in connection with claims, materials, services and/or software of third parties, and loss in the form of hiring suppliers. Also excluded is liability due to the corruption, destruction or loss of data.
- Aside from the provisions of this article 7, SONOKINETIC does not accept any liability, regardless of the cause, for any costs or damage caused by the use of the Website and/or the Products.
- The exclusions and limitations mentioned in this article 7 do not apply in the event and to the extent that the loss is due to intentional acts or omissions or gross recklessness on the part of SONOKINETIC and/or its management.
- Save where performance has become permanently impossible, liability due to attributably failing to perform the Agreement will only arise if SONOKINETIC has received a notice of default in the manner as described in article 10.1. Any claim for compensation lapses by the mere expiration of a period of twelve (12) months after the claim arises.
- The use of the Product is your sole and exclusive responsibility. You indemnify SONOKINETIC against any and all damages and costs (including reasonable attorney fees) in connection with any claims which might be made by third parties regarding your use of the Product.
- On the Website SONOKINETIC makes use of third party (payment) services. SONOKINETIC does not control the manner in which these third parties offer their services and can therefore not accept any liability in this regard. Interruptions and/or errors in the services offered by third parties may result in the Website being either unavailable or only partially available. The use of services offered by third parties may be governed by other terms and conditions and privacy statements.
Article 8 – Force majeure
- A party shall be entitled to invoke force majeure (‘overmacht’) if the execution or the performance of the Agreement is, in whole or in part, temporarily or not, prevented or impeded by circumstances reasonably beyond its control, including but not limited to: (i) site or building blockades, strikes, riots, civil disruption, war, terrorist acts, inclemency, epidemic, specific work interruptions, delay in transportation, earthquake, fire, storm, flood, or water damage; (ii) delay in or cancellation of the delivery to SONOKINETIC of parts, goods or services ordered from third parties; or (iii) governmental, legal or regulatory restrictions. Your inability to fulfill your payment obligations will not be regarded as force majeure.
- As soon as it has become evident that the situation of force majeure will last for more than 3 (three) months, both you and SONOKINETIC may terminate the Agreement, without any obligation to compensate each other.
Article 9 – Intellectual Property
- The Products and their separate parts, including without limitation the computer software, sounds, samples, musical compositions, designs and any other works incorporated within the Products, are protected by Intellectual Property Rights. SONOKINETIC
- reserves all rights not expressly granted to you under this EULA. You acknowledge and agree that except as specifically set forth in this EULA, SONOKINETIC or its licensors retain all rights, titles and interests in and to the Products.
- You shall not be allowed to remove or modify any designation concerning the confidential nature or concerning copyrights, trademarks, business names or other Intellectual Property Rights from the Products.
- SONOKINETIC shall be allowed to take technical measures to protect the Products with a view to restricting the right to use the Products. You shall not be allowed to remove or evade such technical measures.
- It is not permitted to reverse engineer and/or decompile the Products, save as otherwise prescribed by mandatory law.
- SONOKINETIC will indemnify you against third party claims that the sounds, samples and musical compositions within the Products directly infringe any Intellectual Property Rights that exist in The Netherlands as of the commencement date of the Agreement. This indemnification obligation is limited to the compensation of any damages finally awarded against to you by a Dutch court of competent jurisdiction or agreed to in a written settlement agreement signed by SONOKINETIC arising out of such claim and does not include compensation of legal fees.
- The foregoing indemnification obligation shall apply only in the event that (i) you promptly notify SONOKINETIC in writing no later than fourteen (14) days after your receipt of notification of a (potential) claim, (ii) SONOKINETIC may assume sole and full control over the defense of such claim and all related settlement negotiations, (iii) you provide all assistance, information and authority necessary or useful to perform SONOKINETICS indemnification obligations and (iv) you will do everything within your power, including immediately ending any use of the sounds, samples and/or musical compositions claimed to be infringing on third party Intellectual Property Rights, to prevent and/or limit as much as possible any further (potential) infringement and any (further) (potential) damages.
- You expressly agree that the foregoing is the sole indemnification obligation by SONOKINETIC with regard to any use of the Products anywhere in the world.
- If, due to a claim or the threat of a claim the Products are held by a court of competent jurisdiction to infringe third party rights, or in SONOKINETICS reasonable judgment may be held to infringe third party rights by such a court, SONOKINETIC shall, at its own discretion, (a) replace or modify the Products as to be non-infringing, (b) obtain a license for you to continue using the Products or (c) terminate the Agreement for the infringing Product with immediate effect.
Article 10 – Termination
- Both you and SONOKINETIC may rescind (ontbinden) the Agreement if the other party immutably fails to perform any obligation under the Agreement, in all cases after having received a proper written notice of default which is as detailed as possible and in which it has been given a reasonable time period to remedy the breach.
- If you have already received Products under the Agreement at the time of termination, as referred to in article 10.1, these services and the related payment obligations cannot be revoked, unless you prove that SONOKINETIC is in default in respect of a material part of these services. Any amounts already charged on behalf of SONOKINETIC in connection with what it has already duly performed or supplied in the execution of the Agreement before the termination will remain fully payable, subject to the provisions of the preceding sentence, and will become immediately due at the time when the Agreement is terminated.
- If SONOKINETIC has good reasons to assume that you have breached articles 4 and/or 9, SONOKINETIC may terminate the Agreement with immediate effect, without any requirement for a notice of default. Any prepaid amounts will not be refunded in this event.
- After termination of the Agreement, regardless of the reason, all rights granted to you automatically end and you shall immediately cease and desist any use of the Product and delete all Products from your computer(s), other devices and/or external storage facilities, without SONOKINETIC becoming liable to pay you any refunds or compensation. In the event that the Agreement is terminated by SONOKINETIC pursuant to articles 10.3, SONOKINETIC also reserves the right to deny you access to the Website in the future.
Article 11 – Other provisions
- If at any time SONOKINETIC does not enforce compliance with one or more provisions of this EULA, this does not constitute a waiver of the right to do so at a later time.
- If any provision of this EULA is null and void or is annulled, this will not affect the validity of the other provisions.
- This EULA is not in any way intended to depart from mandatory consumer law.
- The use of the Website and the Products and this EULA are exclusively governed by and will be interpreted in accordance with Netherlands law. Any disputes in this connection will be submitted to the competent court in Amsterdam, save as otherwise prescribed by mandatory law.