Euan Smith Music End User License Agreement (EULA)
ANY PERSON OR ENTITY (“User” or “You”) USING OR OTHERWISE ACCESSING THE SITE AT euansmithmusic.co.uk (“Site”) OR ANY OF THE CONTENT AVAILABLE VIA THE SITE MUST AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS OF THIS END USER LICENCE AGREEMENT (“Agreement“).
1. Contracting parties. The Site, together with all content, data and other materials contained therein (“Content”) are owned or controlled by Euan Smith Music.
Euan Smith Music is referred to in these terms and conditions as “we“, “us“, “our” or “Euan Smith Music”. When you register with (or otherwise access) the Service, you are contracting with Euan Smith Music. Please note that if you register to use any products as a company or other entity, the licence for such use is granted to only the individual person registering or making such purchase and, for the avoidance of doubt, such licence is not transferable or extendable to other directors, owners, employees or persons connected to such company or entity.
2. Passwords. You agree: to keep your password secure and confidential and to not allow anyone else to use your email address or password to access the Site or any Content; to not do anything which would assist anyone who is not a Registered User of the Service to gain access to any secured area of the Site, and; to not create additional registration accounts for the purpose of abusing the functionality of the Site or any Content, or other Users, or to seek to pass yourself off as another User. If you think someone else has obtained your account details, please let us know immediately via Info@euansmithmusic.co.uk and we will secure your account as quickly as possible. Please note that you will be responsible to Euan Smith Music and to others for all activity that occurs under your registration account.
3. Content. The Site and the Content are intended only for the purposes specified or implied therein, and your use of the Site and the Content is entirely at your own risk. Please note, whilst we endeavour to provide accurate and up-to-date information, the Content may not be wholly accurate or up-to-date, complete or free of defects, and is subject to change, often at very short notice. All Content is provided without any representations or warranties of any kind (implied or express) to the fullest extent permitted by applicable law. Euan Smith Music, unless otherwise stated herein, owns or controls all relevant intellectual property rights in the Site and the Content. You may not publish, distribute, extract, re-utilise, or reproduce any part of the Site or the Content in any form (including storing it in any medium) other than as expressly allowed herein or as set out in the Site and the Content (or under UK or local law). Save as expressly set out in this Agreement, the Site and the Content are for your personal use only, and are not for re-distribution, transfer, assignment or sublicense. Euan Smith Music will not be responsible if a Product does not fit your particular intended purpose.
4. The Euan Smith Music Service. Euan Smith Music is an artist website (“Service”) that allows you to browse and purchase music compositions, sound effects, loops and samples (“Sound Files”), and software files (“Software Files”). Together, the Sound Files and Software Files, and all accompanying downloadable documentation (“Documentation”), are the “Products”.
5. Licence for Download and Use of Products. By purchasing a Product (and subject to your compliance with this Agreement), Euan Smith Music grants to you (and only you) a non-exclusive, non-sublicensable, non-transferrable license to download (on not more than two devices concurrently) and use the Products you purchase from Euan Smith Music PROVIDED ALWAYS that you use the purchased Sound File(s) only within your own newly-created sound recording(s) and/or performances in a manner that renders the Sound File(s) substantially dissimilar to the original sound of the Sound File in each case. The Products (and all recordings and/or compositions incorporated therein) are the property of Euan Smith Music and are licensed to you only for use as part of a live or recorded musical performance. You may not use these sounds for any commercial or non-commercial purpose except where you have combined them with other sounds within one or more musical composition(s) and/or recording(s). This license expressly forbids resale or other distribution of the Products or their derivatives, either as they exist in the library, reformatted for use in another sampler, or mixed, combined, filtered, re-synthesised or otherwise edited, for use as sounds, multi-sounds, samples, multi-samples, sound sets, programmes or patches in a sampler, microchip, computer or any sample playback device. You may not sell any Product(s), or give away any Product(s) for use by any other person(s) (whether or not for use with Euan Smith Music tools or any other sampling or sample playback devices). Products may not be used in or in relation to any competitive products that are sold or relicensed to any third parties. Except as expressly permitted herein, to the fullest extent of applicable law you may not copy, modify, distribute, sell or lease any Product, and you may not reverse engineer or attempt to extract the source code of any Product.
6. No Resale of Products. For the avoidance of doubt, you are granted a personal non-transferable licence to use the Products solely for your own personal use. Products are for use only as described hereunder and must not be shared with or given or transferred to any third party or uploaded to any file sharing site or offered for resale or public transmission. The licence granted to you is effective only from the date you download, install or use the Product(s) (whichever is earliest) and such licence will remain in force until terminated by Euan Smith Music as a result of any breach by you of this Agreement.
7. Protection of Audio and Software Products. You expressly agree to take all reasonable steps to protect the Product(s) you purchase (including Documentation) from unauthorised copying or use. This includes protecting your devices and networks from unauthorised access (and you shall be deemed responsible for any third party use of your personal devices and networks). You agree not to modify any Product(s) or to otherwise circumvent any method or means adopted or implemented by Euan Smith Music (or its partners or licensees) to protect against or discourage the unlicensed use of copying of the Product(s).
8. Ownership. Ownership of, and title to, the Products (and all digitally recorded sounds and/or copies therein) is held by Euan Smith Music. Copies are provided to you solely to enable you to exercise your rights hereunder. When you purchase any Product(s), you are purchasing a limited licence for use (and not ownership) of Product(s). Except as expressly authorised in this Agreement, you may not rent, lease, sell, sublicense, distribute, transfer, copy, reproduce, display, modify or time share any Product(s) or Documentation (or part or element thereof).
9. Copyright. All rights not expressly granted to User are reserved. The Products are licensed, not sold, to you to be used for (or, in the case of Sound Files, reproduced within) only your own original musical compositions and productions. All copying, lending, duplicating, re-selling or trading of any Product or other Content is strictly prohibited, save as used for or incorporated into your original created works. Only the original purchaser of a Sound File has the right to embody and reproduce that Sound File within their music compositions/productions. This license is granted for a single user only (and is given on a worldwide basis). You agree and acknowledge that Euan Smith Music has a proprietary interest in all sound recordings available via the Site, and that any use by you that frustrates the purpose of this Agreement or circumvents the revenue model of Euan Smith Music (including without limitation selling, renting, or otherwise using or distributing un-integrated Content) may cause irreparable loss to Euan Smith Music in a way that could not be adequately compensated by damages. For the avoidance of doubt, no ownership of copyright is transferred by Euan Smith Music to Users hereunder.
10. Pricing.Prices are as set out on the relevant pages of the Site from time to time. Prices (and availability of specific Products) are subject to change by posting new prices or notification of availability at any time. Where prices include VAT, this is clearly stated on the web site. Please note that use of the Service may be subject to data charges imposed by your internet or mobile phone provider and you will be responsible for payment of any such charges.
11. Payments.Payments may be by credit or debit card using Visa, MasterCard, American Express or PayPal (or other payment methods offered from time to time as detailed on the Service). All transactions, including pre-orders, are charged immediately. All credit/debit cardholders are subject to validation checks and authorisation by the card issuer. If your card issuer refuses to authorise payment, your order will be cancelled and we will not be liable for any delay or non-delivery. We are not responsible for your card issuer or bank charging you as a result of us processing of your credit/debit card payment in accordance with your order, and we shall not be obliged to inform you of any reason for refusal. By using your credit or debit card, you confirm that the card belongs to you and that there are sufficient funds or credit available to cover the charges. By placing any order hereunder, you warrant and represent that you are legally capable of entering into binding contracts and that you have agreed to be bound by this Agreement. Please note that international payments and certain payment methods may give rise to higher payment processing costs.
12. Refunds. Due to the nature of downloadable products and online services, no refunds are normally available for Products which have already been downloaded. Any refund request will be considered in our sole discretion and our decision will be final. Nothing herein affects your statutory rights.
13. User Code of Conduct. You agree to obey all applicable laws in using the Site and the Content. You agree that you are responsible for your conduct whilst using the Service and you specifically agree:
· not to participate in any form of activity which is unlawful, harassing, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene, profane, sexually-oriented, racially-offensive or otherwise includes objectionable material;
· not to abuse other Users or anyone else;
· not to use the Site to engage in any commercial activities other than as approved hereunder;
· not to register more than one account for yourself or anyone else;
· not to contact anyone who has asked not to be contacted;
· not to “stalk” or otherwise harass any other User;
· not to collect personal data about other Users for commercial or unlawful purposes;
· not to use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data or otherwise in relation to the Service; or
· not to attempt to gain unauthorised access to our computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service.
14. Warranty and Indemnity. User hereby warrants and represents that User has the right and power to enter into and fully perform all of its obligations under this Agreement; User will defend, indemnify, and hold harmless Euan Smith Music, its parents, subsidiaries, affiliates, directors, officers, employees, and agents, with respect to any claim, demand, cause of action, or debt or liability brought by or claimed by any third party, including attorneys’ fees, to the extent that any such claim is based upon or arises out of a breach of any of User’s representations, warranties, covenants, or obligations.
15. No Endorsement by Euan Smith Music. Euan Smith Music does not pre-screen or monitor, and therefore does not endorse, (and Euan Smith Music expressly disclaims any and all liability in connection with) any third-party content or any other materials created or exhibited or otherwise exploited by Users.
16. Termination of this Agreement. We may at any time terminate this legal Agreement, in our sole discretion without prior notice to you and without reimbursement, if we believe that you may have breached (or acted in a manner indicating that you do not intend to or are unable to comply with) any term herein, or if we are legally required to do so by law, or if continuation is likely to be no longer commercially viable. You acknowledge that we will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations. Please note that any termination of this Agreement will also terminate your licence to use the Product(s).
17. Liability. You agree that the liability of Euan Smith Music to you hereunder shall be limited to the amount you have actually paid to us for all products or services hereunder of, if greater, GBP100. Except as set out herein, we shall not be liable for any indirect or consequential loss of any kind in contract, tort or otherwise arising out of your use of the Site or the Content or in relation to the goods and/or services that we provide. Nothing in this Agreement shall operate to limit or exclude liability for death or personal injury caused by negligence.
18. Warranties. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW IN YOUR TERRITORY, ALL EUAN SMITH MUSIC PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, EUAN SMITH MUSIC MAKES NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY MATERIALS OR SERVICES OBTAINED BY YOU FROM THE SITE, FROM US, OR FROM ANY THIRD PARTIES’ WEBSITES TO WHICH THE SITE IS LINKED, WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS. THE USE OF THE SERVICES IS AT YOUR OWN RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER DEVICE OR SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
19. Indemnity. You agree to indemnify us for any loss or damage that may be incurred by Euan Smith Music, including without limitation legal fees, arising from any breach by you of any warranty or other term herein or your misuse of any material or information obtained through the Site or the Content.
20. Complaints. If you believe that you are the owner of the copyright or other rights in any material appearing on the Site, or if you have any other complaint about the Site or any Content or other posted materials, please contact us via Info@euansmithmusic.co.uk. If you would like to notify us of Content, which you believe does not comply with this Agreement or otherwise is objectionable, please notify us via Info@euansmithmusic.co.uk making sure to include both the Uniform Resource Locator (“URL”) for the non-complying item(s) and the reasons you believe it does not comply). Please note that there may be adverse legal consequences if you make a false or bad faith allegation through this process.
21. Trade Marks. The brands, products and service names used in the Site and the Content (including without limitation, “Euan Smith” and “Euan Smith Music”) are trademarks or trade names of Euan Smith Music or his trading partners unless otherwise stated.
22. Hacking. You agree and undertake not to attempt to damage, deny service to, hack, crack, reverse-engineer, or otherwise interfere (collectively, “Interfere“) with the Site and/or the Content in any manner. If you in any way Interfere with any of these, you agree to pay all damages we incur as a result. We will cooperate with the authorities in prosecuting any User who Interferes with the Site or the Content or otherwise attempts to defraud Euan Smith Music or any other parties through your use of the Site, the Content or any services provided hereunder. We reserve the right to deny any or all access or service to any User for any reason, at any time, at our sole discretion. You agree that we may block your access, and at our sole discretion to disallow your continued use of the Site and/or the Content. We reserve the right to take any action we may deem appropriate in our sole discretion with respect to violations or enforcement of the terms of this Agreement, and we expressly reserve all rights and remedies available to us at law or in equity.
23. No Partnership. Your use of the Site and/or the Content creates no partnership, client, fiduciary or other professional relationship.
24. Entire Agreement. This Agreement constitutes the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Agreement.
25. Force Majeure. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations hereunder that is caused by events outside our reasonable control.
26. Severance. If any part, term, or provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, unenforceable, or in conflict with any relevant law, the remaining portions or provisions shall still remain valid and continue in full force and effect.
27. No Waiver. No waiver, express or implied, by either party of any term or condition or of any breach by the other of any of the provisions of this Agreement shall operate as a waiver of any breach of the same or any other provision of this Agreement.
28. Variation. This Agreement may be varied from time to time by our posting new terms on the Site, and any such amendment will be applicable to all Users from the date and time such revised terms have been posted on the Site. Your continued use of the Site or Services constitutes agreement with and acceptance of any such amendment or other changes. We constantly experiment and innovate with the Site in order to provide a better experience for Users and you hereby acknowledge and agree that the form and nature of the Services may change from time to time without prior notice to you.
29. Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of England. Any disputes arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the Courts of London, England.
30. Contacting Us. If you have any questions, please contact us via Info@euansmithmusic.co.uk.