End User Licensing Agreement (EULA)
Effective Date: October 25, 2018
This End User License Agreement (EULA) is between VOCALID, INC., a Delaware corporation, with an address at 50 Leonard Street, Suite 3, Belmont, MA 02478, USA (VocaliD), and the Licensee described below. VocaliD and Licensee agree as follows:
Acceptance means that the Licensee selected the “ACCEPT” button or that the Voice has otherwise been accessed, downloaded, installed or used in any manner.
Documentation means any and all user guides, help information and other documentation regarding the Voice (in any format) that VocaliD makes available to the Licensee and/or End User.
End User means the person for whom VocaliD developed the Voice and who is the intended user of the Voice.
Licensed Materials means the Documentation and Voice.
Licensee means the person who enters into this EULA, and who agrees to be bound by and comply with its terms and conditions. The Licensee must be either the End User or, if the End User is younger than the legal age of majority or otherwise is legally incapable of forming the contract set forth in this EULA, then the Licensee is the End User’s parent, guardian or other representatives who are authorized to act for the End User in this matter.
Voice means a voice file (in binary, executable or other format) that has been developed and manufactured specifically for the End User and made available to the Licensee or End User by VocaliD. The Voice shall also be deemed to include any Update that is developed by VocaliD and purchased by the Licensee.
License. Subject to all of the terms and conditions in this EULA, VocaliD grants the Licensee a non-exclusive, non-transferable, non-sublicensable right and license to download, install and use the Voice and Documentation. The Voice: may be used only in unmodified form, and solely for the End User’s personal purposes; may only be installed on and used with the device type and operating system for which it was manufactured (the Supported Configuration); may be used with no more than 3 devices that are owned or controlled by the End User; and may not be copied. The Documentation may be copied, but only to the extent reasonably necessary to support the authorized use of the Voice.
Support. Using commercially reasonable efforts, VocaliD will provide the Licensee with assistance to initially access, configure, verify and commence using the Voice, and with technical support for the Voice during normal business hours. From time to time, VocaliD may offer to make new versions of the Voice (Updates) available to the Licensee in accordance with its then current policies (including price). The Licensee understands that the Voice may become unusable if certain Updates are not purchased (e.g., Updates that are necessary to conform to operating system changes) and that other Updates may be discretionary (e.g., Updates that add age to a Voice or that port the Voice to a different device).
Fees. The Licensee agrees to pay VocaliD the initial license fee for the Voice and subsequent Update fees (for Updates that it elects to purchase), in the amounts and at the times specified by VocaliD. The prices stated in this EULA do not include any federal, state, local or foreign taxes, withholdings, duties, tariffs, levies or similar assessments on the license, delivery or use of any Licensed Materials. The Licensee agrees to pay all such charges and not to reduce any payment to VocaliD as a result thereof. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any government.
3. PROPRIETARY RIGHTS.
VocaliD. Except for the limited rights and licenses expressly granted hereunder, no other right, license or option is granted (by implication, estoppel or otherwise), no other use is permitted and (as between the parties) VocaliD owns and retains all rights, title and interests (including intellectual property and proprietary rights) in and to the Licensed Materials and all copies thereof. Licensee agrees that VocaliD is free to use any suggestions or other feedback provided by the Licensee and/or End User and to use all generalized knowledge, expert know-how, and technologies related to or acquired in connection with this EULA, in any manner and for any purpose (including developing new or improved products and services).
Restrictions. The Licensee shall not, and shall not permit anyone else to (a) use any of the Licensed Materials to create any similar product, service or documentation, (b) attempt to disassemble, deconstruct, reverse engineer or otherwise discover any designs, structures, ideas or algorithms underlying the Voice or to circumvent any technological measure that controls access thereto, (c) encumber, sublicense, distribute, transfer, rent, lease or lend any of the Licensed Materials, (d) access or use any Licensed Materials for the benefit of any third party, including in any time-share, service bureau or similar arrangement, (e) adapt, combine, create derivative works of, translate, localize, port or otherwise modify any of the Licensed Materials or (f) permit any third party to do any of the foregoing. Notwithstanding the foregoing, if the Licensee and End User are not the same person, then the Licensee may permit the End User to access and use the Licensed Materials in accordance with this EULA.
Markings. The Licensee shall not (and shall not permit anyone else to) obscure, alter or remove any product identification, branding or patent, copyright, trademark or other proprietary or legal notice printed on any Documentation or packaging.
4. LIMITED WARRANTIES AND DISCLAIMERS.
Licensee. The Licensee represents and warrants that: the Licensee has all requisite power, right and authority to enter into and comply with this EULA; this EULA constitutes the Licensee’s valid and binding obligation, enforceable in accordance with its terms; execution and delivery of this EULA, and compliance with the terms hereof, do not and will not conflict with or result in a breach of any terms of, or constitute a default under, any agreement, obligation or instrument to which the Licensee and/or End User is a party or by which either of them is bound. If the Licensee and End User are not the same person, then the Licensee additionally represents and warrants that he or she will cause the End User to comply with this EULA and that the Licensee shall be liable for any breach of this EULA by the End User.
VocaliD. VocaliD represents and warrants to the Licensee that the Voice, as delivered and used in accordance with the Documentation, will operate in the Supported Configuration to produce words and speech without material errors for 90 days after Acceptance (Warranty Period). Any warranty claim regarding the Voice must be made by the Licensee in writing during the Warranty Period. VocaliD’s sole obligation and the Licensee’s exclusive remedy in respect thereof is to use diligent efforts to repair or replace the nonconforming Voice or, at VocaliD’s sole discretion, terminate this EULA by giving written notice to the Licensee and, upon return of the Licensed Materials, refund the license fees actually paid by the Licensee.
Disclaimers. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, THE LICENSED MATERIALS ARE PROVIDED “AS IS”, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, VOCALID HEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS) ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE LICENSED MATERIALS, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. FOR CLARITY, VOCALID MAKES NO REPRESENTATION OR WARRANTY THAT THE LICENSEE OR END USER WILL BE SATISFIED WITH THE VOCAL QUALITIES OF THE VOICE.
SOME STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO CERTAIN OF THE DISCLAIMERS ABOVE MAY NOT APPLY, AND THE LICENSEE MAY HAVE ADDITIONAL RIGHTS.
5. LIMITATION OF LIABILITY.
IN NO EVENT SHALL VOCALID (OR ITS LICENSORS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS EULA, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INTERRUPTION OF USE, OR COST TO PROCURE SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, OR (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE LICENSE FEE PAID BY THE LICENSEE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE ESSENTIAL TERMS, WHICH ARE INDEPENDENT OF ALL OTHER PROVISIONS OF THIS EULA AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
SOME STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO CERTAIN OF THE LIMITATIONS ABOVE MAY NOT APPLY.
6. TERM AND TERMINATION.
Term. This EULA commences upon Acceptance and immediately expires, automatically and without any further action or notice by either party, upon the breach of any material provision of this EULA by the Licensee or End User. The Licensee may also terminate this EULA at any time upon written notice to VocaliD.
Effects of Termination. Upon any expiration or termination of this EULA, all rights, obligations, and licenses of the parties shall cease, except that the following shall survive: (a) all obligations that accrued prior to the effective date of termination (including payment obligations); (b) all remedies for any breach of this EULA; (c) the Licensee and End User shall stop using, un-install and destroy all copies of the Licensed Materials; and (d) all provisions in Sections 3 (Proprietary Rights), 4 (Warranties and Disclaimers), 5 (Limitation of Liability), 7 (General Provisions) and this Section 6.
7. GENERAL PROVISIONS.
Changes. VocaliD reserves the right, at its sole discretion, to update, modify or replace the terms and conditions in this EULA, in whole or in part, at any time. VocaliD will give Licensee written notice (including via email) of any material change at least 30 days in advance of the effective date of any change. In any case, the Licensee and End User should periodically check this location www.vocalid.co/eula for changes. Continued access or use of the Voice following any change to this EULA constitutes acceptance of those changes. Except as expressly provided hereinabove, no change, consent or waiver under this EULA will be effective unless in writing and signed by the party against which enforcement is sought.
Entire Agreement. This EULA constitutes the entire agreement and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter hereof (and all past dealing or industry custom). Any additional, different or inconsistent terms on any purchase order or other documentation provided by the Licensee, even if signed by the parties hereafter, shall have no effect under this EULA. The failure of either party to enforce its rights under this EULA at any time or for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this EULA is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this EULA will otherwise remain in full force and effect and enforceable. This EULA is in English only, which language shall be controlling in all respects. No version of this EULA in another language shall be binding or of any effect.
Governing Law. This EULA shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to its conflicts of law provisions. In the event of any conflict between US and foreign laws, regulations, and rules, US laws, regulations and rules shall govern. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to this EULA.
Dispute Resolution. A printed version of this EULA or any notice given in electronic form shall be admissible in any proceeding based on or relating to the Voice or this EULA to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. VocaliD and the Licensee agree that any claim or cause of action arising out of or related to the Voice or this EULA must be commenced within 1 year after the claim or cause of action arose. Otherwise, such claim or cause of action is permanently barred. Except that either party may seek an injunction or other equitable relief from any court of competent jurisdiction, all disputes between the parties arising out of or related to the Voice or this EULA shall be settled by binding arbitration in accordance with the JAMS streamlined arbitration rules and procedures then in force, by one neutral arbitrator appointed in accordance with the rules. The arbitration shall take place in Boston, Massachusetts, USA. The proceedings shall be in English, all evidence shall be in English (or translated into English) and the governing law shall be as set forth herein. The arbitrator’s decision shall be in writing and shall comply with all terms and conditions in the applicable version of this EULA. The decision and award rendered shall be final and binding on both parties. The parties acknowledge and agree that this EULA and any award rendered pursuant hereto shall be governed by the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judgment on the award may be entered in any court of competent jurisdiction. ANY ARBITRATION UNDER THIS EULA WILL TAKE PLACE ONLY ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. THE LICENSEE UNDERSTANDS AND AGREES THAT BY ENTERING INTO THIS EULA, EACH PARTY IS WAIVING THE RIGHT TO TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION. Use of the Voice is not authorized in any jurisdiction that does not give effect to all provisions of this EULA, including without limitation, this section.
Remedies. Except as expressly specified otherwise herein, each right and remedy in this EULA is in addition to any other right or remedy, at law or in equity. You agree that, in the event of any breach or threatened breach of Section 3, VocaliD will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, VocaliD may proceed directly in any court of competent jurisdiction and be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond.
Notices. All notices under this EULA will be in writing, in English and delivered to the parties at their respective addresses, which may be changed by written notice. Notices will be deemed to have been duly given, and effective when received, if personally delivered or if sent by confirmed email, overnight courier or certified or registered mail, return receipt requested.
Assignment. This EULA and the Licensee’s rights and obligations hereunder are personal and may not be assigned, in whole or in part, without VocaliD’s prior written consent, at its sole discretion. Without consent, VocaliD may assign this EULA (and all of its rights and obligations hereunder) to any of its affiliates or to any successor to all or substantially all of its business which concerns this EULA (whether by sale of assets or equity, merger, consolidation, reorganization or otherwise). This EULA shall be binding upon, and inure to the benefit of, the heirs, successors, representatives and permitted assigns of the parties hereto.
Force Majeure. VocaliD shall not be liable for any delay or failure in performing its obligations hereunder that arises out of any cause, condition or circumstance beyond its reasonable control.
Independent Contractors. The parties shall be independent contractors under this EULA, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
Acknowledgment. The Licensee acknowledges that (a) it has read and understands this EULA, (b) this EULA has the same force and effect as a signed agreement, (c) VocaliD requires that the Licensee and the End User be identified before issuing this license and (d) issuance of this license does not constitute general publication of the Voice.