Terms & ConditionsIMPORTANT—READ CAREFULLY BEFORE CHECKING ACCEPT AND DOWNLOADING AND/OR INSTALLING SNDCONTROL SOFTWARE.
This is a legal agreement between you, the end user of the electronically downloaded SndControl Software and related services on your computer or other electronic device (hereinafter referred to as the “End User”), and Emoto Corp., an Oklahoma corporation d/b/a SndControl™ (hereinafter referred to as “SndControl”), the seller and service provider of the electronically delivered SndControl Software (defined below). By electronically downloading and installing SndControl, you agree to be bound by the terms of this agreement effective as of the later of (i) the date and time you first downloaded a Basic (defined below) version of SndControl Software or (ii) the date and time you last purchased a Premium Plan (defined below) version of SndControl Software (the “Agreement”). Section or paragraph headings hereunder shall not affect the interpretation of this Agreement and capitalized terms stated herein shall have the meaning provided in Section 18 of this Agreement or otherwise defined herein.
- WHAT IS SNDCONTROL?
- SUBSCRIPTION FEE.
End User shall pay Subscription Fees to SndControl for access and use of the Software Services in accordance with Section 3 of this Agreement and End User shall select one of the following plans prior to downloading and installing the Software Services to set the term, type and payment plan for Software Services:
- If End User selects to purchase SndControl’s Premium Lifetime Subscription (the “Lifetime Plan”), SndControl grants to End User a personal, nonexclusive, nontransferable, non-assignable right to use the Software Services for the Subscription Term. Under the Lifetime Plan, the Initial Subscription Term shall be for ninety-nine (99) years or terminate upon the death of End User, whichever occurs first.
- If End User selects to purchase SndControl’s Premium Monthly Subscription (the “Monthly Plan”) (the “Lifetime Plan” and the “Monthly Plan” shall be collectively referred to herein as “Premium Plan(s)”), SndControl grants to End User a personal, nonexclusive, nontransferable, non-assignable right to use the Software Services for the Subscription Term. Under the Monthly Plan, the Initial Subscription Term shall be one calendar month and shall continue for Renewal Terms .
- If End User selects to purchase SndControl’s Basic Free Trial Plan (“Free Trial Plan”), SndControl grants to End User a limited, personal, nonexclusive, nontransferable, non-assignable right to use the Software Services for the Subscription Term. Under the Free Trial Plan, the Initial Subscription Term shall be one calendar month and shall continue for Trial Terms. SndControl may terminate End User’s use of Software Services under a Free Trial Plan at any time for any reason, including termination prior to the end of the Free Trial Plan Initial Subscription Term.
- If End User selects to purchase a Premium Plan pursuant to a promotional offer by SndControl, by accepting the benefits of the promotional offer, End User agrees to the terms of SndControl’s Promotions Policy (found at http://sndcontrol.com/promotions), which may be amended from time to time by SndControl at its sole discretion.
- USE OF SOFTWARE SERVICES.
During the Subscription Term in consideration for payment of Subscription Fees by End User, SndControl hereby grants to End User a limited, personal, nonexclusive, nontransferable, non-assignable right to use the Software Services for the Subscription Term in accordance with the User Subscription selected by the End User. End User may download and install the Software Services on more than one computer at the same time for End User’s personal use; however, End User may not install or use the Software Services in violation of the restrictions provided in Section 6 of this Agreement.
- CHARGES AND TAXES.
The End User shall on the Effective Date provide to SndControl valid, up-to-date and complete credit card details or approved purchase order information to SndControl (or its secure third-party payment processing vendor, if any) acceptable to SndControl and other relevant valid, up-to-date and complete contact and billing details. End User hereby authorizes SndControl to bill such credit card on the Effective Date for the Subscription Fees payable for the Initial Subscription Term with respect to End User’s User Subscription and, subject to Section 13, one time during each Renewal Term for the Subscription Fees due for such Renewal Term during the Subscription Term. In addition to any Subscription Fee or other amounts charged, End User shall pay to or reimburse SndControl for amounts equal to any sales and/or use tax, excise tax, tariff, duty, property tax or assessment on the Software Services, if any, which shall be added to SndControl’s invoice(s) to you at the appropriate rate.
End User acknowledges and agrees that SndControl and/or its licensor own all intellectual property rights in the Software Services and Documentation and, further, acknowledges that such Software Services and Documentation are protected by United States copyright laws.
- OTHER RESTRICTIONS.
Except to the extent expressly permitted under this Agreement, End User shall not : (a) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute any portion of the Software Services and Documentation in any form or media or by any means; (b) reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the the Software Services; (c) access all or any part of the Software Services and Documentation in order to build a product or service that competes with the Software Services; or (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Software Services and Documentation.
You may only use the Software Services if you are over 13 years old and allowed by law to enter into a binding contract.
- EMAIL COMMUNICATIONS.
SndControl’s Email Policy (found at http://sndcontrol.com/email) governs any email communications you authorize SndControl to make to you. By using the Software Services and entering your email to create an account with SndControl you affirmatively agree to the terms of the Email Policy, which may be amended from time to time by SndControl at its sole discretion. SndControl agrees not to sell or otherwise distribute your email information to any third-parties.
SndControl respects the intellectual property rights of others and we expect you to do the same. SndControl will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act (“DMCA”) in accordance with SndControl’s Copyright Policy (found at http://sndcontrol.com/copyright) and you agree that if you use the Software Services in violation of the DMCA, SndControl, at its sole discretion, may suspend or terminate your copy of the Software Services for violation of SndControl’s Copyright Policy.
- END USER REMEDIES.
SNDCONTROL’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE, AT SNDCONTROL’S OPTION, EITHER (A) RETURN OF THE SUBSCRIPTION FEES PAID TO SNDCONTROL BY YOU FOR THE USER SUBSCRIPTION OR (B) REPAIR AND REPLACEMENT OF SOFTWARE SERVICES THAT DOES NOT MEET MINIMUM INDUSTRY STANDARDS.
- DISCLAIMER OF WARRANTY AND LIMITED LIABILITY.
UNLESS OTHERWISE PROVIDED IN A SEPARATE WRITTEN AGREEMENT BETWEEN END USER AND SNDCONTROL, THE SOFTWARE SERVICES ARE PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SNDCONTROL DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO COMMITMENTS ABOUT THE CONTENT WITHIN THE SOFTWARE SERVICES. WE FURTHER DISCLAIM ANY WARRANTY THAT THE SOFTWARE SERVICES WILL MEET YOUR REQUIREMENTS OR WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE SERVICES WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; THE QUALITY OF THE SOFTWARE SERVICES WILL MEET YOUR EXPECTATIONS; OR THAT ERRORS OR DEFECTS IN THE SOFTWARE SERVICES WILL BE CORRECTED. END USER MAY USE AND ACCESS THE SOFTWARE SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USE AND ACCESS OF ANY SOFTWARE SERVICES. SNDCONTROL SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO END USER FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING OUT OF, OR IN, ANY MALFUNCTIONS, DELAYS, LOSS OR CORRUPTION OF DATA OR INFORMATION, LOSS OF PROFIT, INTERRUPTION OF SERVICE, LOSS OF BUSINESS, OR ANY PURE ECONOMIC LOSS, EVEN IF SNDCONTROL OR SNDCONTROL’S AUTHORIZED REPRESENTATIVE HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING; HOWEVER, NOTHING IN THIS AGREEMENT EXCLUDES LIABILITY OF SNDCONTROL FOR DEATH OR PERSONAL INJURY CAUSED BY SNDCONTROL’S NEGLIGENCE OR FOR FRAUD OR FRAUDULENT MISREPRESENTATION. THIS PROVISION IS MATERIAL TO THIS AGREEMENT DUE TO THE RELATIVELY LOW SUBSCRIPTION FEE AND NATURE OF THE SOFTWARE SERVICES. IF YOU DO NOT AGREE TO THIS PARAGRAPH 11, DO NOT INSTALL THE SOFTWARE SERVICES AND YOU CAN CONTACT US AT COMPLIANCE@SNDCONTROL.COM AND NEGOTIATE A SEPARATE CONTRACT FOR SOFTWARE SERVICES BASED ON END USER’S PARTICULAR NEEDS, WHICH WILL INCREASE YOUR COSTS.
- Termination by End User. End User may stop using SndControl at any time and terminate your User Subscription simply by providing written notice to SndControl by emailing firstname.lastname@example.org. Termination of User Subscription does not relieve you of any obligation to pay any outstanding Subscription Fees and Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 shall survive the termination of this Agreement.
- Termination by SndControl. If SndControl terminates these terms for reasons other than for cause, then SndControl will make reasonable effort to notify you at least 30 days prior to termination via the email address you provided to us upon installation. SndControl may at any time terminate these terms with you if:
- you breach any provision of these terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with these terms);
- you fail to make the timely payment of fees for the Software Services, if any;
- SndControl is required to do so by law (for example, where the provision of the Software Services to you is, or becomes, unlawful);
- we elect to discontinue the Software Services, in whole or in part; or
- there has been an extended period of inactivity in your Free Plan.
- EQUITABLE RELIEF.
Because of the unique and proprietary nature of the Software Services, SndControl’s remedies at law may be inadequate and SndControl shall be entitled to equitable relief, including without limitation injunctive relief, specific performance or other equitable remedies in addition to all other remedies provided or available to SndControl at law or equity.
End User shall indemnify and hold harmless SndControl and its subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or in connection with your content, your violation of these terms, or your use of the Software Services in violation of law, including but not limited to, your use of the Software Services for the purposes of displaying, performing, or digitally transmitting musical or audiovisual works in violation of United States copyright laws and international treaty provisions.
- THIRD-PARTY SOFTWARE.
- Non-assignment. The rights granted to End User by this Agreement shall not be assigned, subleased, sublicensed, franchised, sold, offered for sale, encumbered or otherwise disposed of by End User, either voluntarily or by operation of law, without the prior written consent of SndControl, nor shall End User’s duties be delegated without prior written consent of SndControl.
- Force majeure. If SndControl shall be delayed in its performance of any obligation or be prevented entirely from performing any such obligation due to causes or events beyond its control, including without limitation any Act of God, fire, strike or other labor problem, legal action, present or future law, governmental order, rule or regulation, such delay or nonperformance shall be excused and the time for performance shall be extended to include the period of such delay or nonperformance.
- Governing law and jurisdiction. This Agreement is governed by the laws of the State of Oklahoma. The parties agree that any claim or dispute that arises in connection with this Agreement shall be resolved by state or federal court located in Tulsa County, Oklahoma, USA, which is the location the Software Services are electronically sourced and the transaction is consummated with receipt of payment. THE PARTIES AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE APPLICABLE COURT LOCATED IN TULSA COUNTY, OKLAHOMA, USA, FOR THE PURPOSE OF LITIGATING ANY CLAIM OR DISPUTE RELATED TO THIS AGREEMENT. THE PARTIES SPECIFICALLY DISCLAIM THE APPLICABILITY OF THE U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
- Notice. You may send the notices to us to at the following address:
EMOTO CORP. dba SndControl Attn: Compliance Officer 427 S. Boston Ave., Suite 520 Tulsa, Oklahoma, 74103SndControl may notify you by email, postal mail, postings or other contact means you made available to us when you installed the Software Services, or other legally acceptable means.
- Entire Agreement. These terms constitute the entire agreement between you and us regarding your use of the Software Services and supersede any prior agreements between you and us relating to the Software Services.
- Severability. If a particular term is not enforceable, the unenforceability of that term will not affect any other terms.
- No Waiver. Our failure to enforce or exercise any of these terms is not a waiver of that section.
- “Documentation” means any document made available to the End User by SndControl online via http://sndcontrol.com/docs or such web address notified by SndControl to the End User from time to time which sets out a description of the Software Services and the user instructions for the Software Services.
- “Effective Date” means the later of (i) the date and time End User first downloaded a Basic (defined below) version of SndControl Software or (ii) the date and time End User last purchased a Premium Plan (defined below) version of SndControl Software.
- “Initial Subscription Term” means the initial term of this agreement as set out in Section 2 of this Agreement.
- “Renewal Term” shall, unless otherwise terminated as provided under Section 13 of this Agreement, automatically commence immediately following the end of the Initial Subscription Term and automatically renew for successive recurring terms, with each term being equal in length of time and purchase price to the Initial Subscription Term.
- “Software Services” means all online software applications provided by SndControl as part of the SndControl Software described in Section 1 of this Agreement.
- “Subscription Fees” means the subscription fees payable by the End User to SndControl at the list price on the Effective Date for the Initial Subscription Term and Renewal Term(s) pursuant to the End User’s User Subscription.
- “Subscription Term” shall be the Initial Subscription Term together with and subsequent Renewal Terms.
- “Trial Term” shall be a probationary period, if any, for End User to use limited Software Services for a period of time as deemed appropriate by SndControl at its sole discretion and such Trial Term may be terminated by SndControl without notice at any time for any reason.
- “User Subscription” means the subscription described under Section 2 of this Agreement that was selected and purchased by the End User on the Effective Date.
Should you have any questions concerning this Agreement, or if you wish to contact SndControl for any reason, please email our legal department at email@example.com.
Last updated December 7, 2015, which replaces the February 22, 2015 version in its entirety.