EULA

IMPORTANT: Read carefully before installing or otherwise using the software provided under this agreement.

This End User License Agreement (“EULA“) is a binding legal agreement for the MonkeyC Software Product in which this EULA is contained, which includes computer software and may include online or electronic documentation (collectively the “Software Product“), between you (“you”) and Wildcard Engineering B.V., a private company with limited liability incorporated under the laws of The Netherlands (“MonkeyC“). Further information regarding MonkeyC can be found at www.monkeyc.audio. BY INSTALLING OR OTHERWISE USING THE SOFTWARE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, WE ARE UNWILLING TO LICENSE THE SOFTWARE PRODUCT TO YOU AND YOU MUST DISCONTINUE USE OF THE SOFTWARE PRODUCT NOW. If the Software Product is installed on an automated system that is not owned by you, you are bound to the terms of this EULA both in your individual capacity and as an agent of the owner of the automated system, and your actions will bind the owner of the automated system. You represent and warrant to MonkeyC that you have the capacity and authority to enter into this EULA on your own behalf as well as on behalf of the owner of the automated system the Software Product is installed upon. For purposes of this EULA, the owner of an automated system is the individual or entity that has legal title to the automated system or that has the possessory interest in the automated system if it is leased or loaned by the actual title owner.

Intellectual property rights

The Software Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. You acknowledge that all intellectual property rights in the Software Product throughout the world belong to MonkeyC or its suppliers, that rights in the Software Product are licensed (not sold) to you, and that you have no rights in, or to, the Software Product other than the right to use it in accordance with the terms of this EULA. You acknowledge that you have no right to have access to the Software Product in source code form.

Grant and scope of license

The Software Product is licensed, not sold. Subject to and conditioned on your ongoing compliance with the terms and conditions of this EULA, MonkeyC hereby grants to you a personal, non-exclusive, non-transferable, non-sublicensable standalone license to use the Software Product on the terms of this EULA and solely in combination with a maximum number of two automated systems that are used by you. MonkeyC reserves all other rights. Unless mandatory law gives you more rights despite this limitation, you may use the Software Product only as expressly permitted in this EULA. In doing so, you must comply with any technical limitations in the Software Product that only allow you to use it in certain ways. You may not work around any technical limitations in the Software Product.

The Software Product is provided to you ‘as is’. MonkeyC does not warrant to you that the Software Product will perform in accordance with the functions described in the accompanying documentation (if any). You acknowledge that the Software Product has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software Product as described in the accompanying documentation (if any) meet your requirements. You acknowledge that the Software Product may not be free of bugs or errors and that the use of the Software Product may not be uninterrupted. You agree that the existence of any errors shall not constitute a breach of this EULA. MonkeyC and its suppliers disclaim all warranties and conditions with regard to or arising out of the Software Product, either express or implied, including, but not limited to, implied warranties of merchantability, interoperability, fitness for a particular purpose, non-infringement and/or accuracy of information.

The terms of this EULA apply to any copy of the Software Product that will be installed as an upgrade, update, patch or enhancement of a previous release of the same Software Product which was installed on the same automated system, and all of your use of the Software Product (including its previous versions) are solely under the terms of this EULA.

Your undertakings

Except as expressly set out in this EULA or as permitted by any applicable mandatory law, you undertake:

1. not to copy the Software Product;
2. not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software Product without prior written consent from MonkeyC
3. not to make alterations to, or modifications of, the whole or any part of the Software Product
4. not to create derivative works based on the Software Product
5. not to disassemble, de-compile or reverse engineer the whole or any part of the Software Product nor attempt to do any such things except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software Product with another software program, and provided that the information obtained by you during such activities: (i) is used only for the purpose of achieving inter-operability of the Software Product with another software program; (ii) is not disclosed or communicated without MonkeyC’s prior written consent to any third party to whom it is not necessary to disclose or communicate it; and (iii) is not used to create any software which is substantially similar to the Software Product
6. to keep your copy of the Software Product secure and to maintain accurate and up-to-date records of the location of your copy of the Software Product
7. to supervise and control use of the Software Product and ensure that the Software Product is used in accordance with the terms of this EULA
8. to include MonkeyC’s copyright notice on your copy of the Software Product
9. not to provide, or otherwise make available, the Software Product in any form, in whole or in part, to any person without prior written consent from MonkeyC

You agree to defend, indemnify and hold harmless MonkeyC from all damages and third-party claims arising from unauthorized use or transfer of the Software Product.

Termination

Without prejudice to any other rights, MonkeyC may terminate this EULA or your rights under this EULA at any time if you fail to comply with any of the terms and conditions of this EULA. Upon termination of your rights under this EULA for any reason, or upon termination of the EULA itself, you must immediately delete or remove the Software Product from the automated system in your possession, custody or control (including all component parts, any previous versions, and this EULA) and certify to MonkeyC that you have done so. The terms of this paragraph shall survive any termination of this EULA.

Transfer

You may not transfer, assign, charge or otherwise dispose of this EULA, or any of your rights or obligations arising under it to a third party without the prior written consent of MonkeyC. In the case MonkeyC by written agreement grants permission to transfer your rights under this EULA, you are not allowed to retain any copies of the Software Product; you are to transfer your copy of the Software Product (including all component parts, any prior versions, and this EULA), and the recipient must agree to be subject to the terms of this EULA. Upon the occurrence of such a transfer, your rights under this EULA terminate immediately. MonkeyC may transfer, assign, charge, sub- contract or otherwise dispose of this EULA, or any rights or obligations arising under it, at any time during the term of this EULA.

Limited warranty

The warranties and disclaimers described in this paragraph are collectively the “Limited Warranty“. MonkeyC warrants to you (and only you) that the Software Product will, when properly used, perform substantially in accordance with the functions described in the accompanying documentation (if any) for a period of twelve (12) months from the date of original purchase of a license to the Software Product (the “Purchase Date“). You acknowledge that the Software Product has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software Product as described in the accompanying documentation (if any) meet your requirements. You acknowledge that the Software Product may not be free of bugs or errors and that the use of the Software Product may not be uninterrupted. You agree that the existence of any minor errors shall not constitute a breach of this EULA. To the maximum extent permitted by law, MonkeyC and its suppliers disclaim all other warranties and conditions with regard to or arising out of the Software Product, either express or implied, including, but not limited to, implied warranties of merchantability, interoperability, fitness for a particular purpose, non-infringement and/or accuracy of information. The Limited Warranty provided herein is personal to, and intended solely for the benefit of, you and does not extend to any third party. The Limited Warranty is void and not applicable if failure of the Software Product has resulted from:

1. accident, abuse, misapplication, handling, storage or use of the Software Product other than as described in the documentation issued by MonkeyC;
2. modification of the Software Product otherwise than as authorized in writing by MonkeyC;
3. use of the Software Product in combination with other computer programs that are not described as
   compatible in the documentation issued by MonkeyC;
4. a defect in your own products or software;
5. installation of the Software Product other than in accordance with the documentation issued by MonkeyC;
6. your breach of the terms of this EULA; and/or
7. any fault of you.

Any and all expenses and costs reasonably incurred by MonkeyC for the repair or replacement or correction of the Software Product found in whole or in part to be non-conforming for reasons listed above under (a) up to and including (g) shall be for your account. The Limited Warranty does not apply to any third-party products or software. No individual (except a duly authorised officer of MonkeyC) and no reseller has any authority to amend or add to any of the above representations and disclaimers.

Your remedy

Your exclusive remedy for any breach of the Limited Warranty is for you to give us notice of the breach by returning to MonkeyC a description of the alleged breach, and then, at MonkeyC’s discretion, MonkeyC shall either: (a) return the price you paid (if any) for the Software Product (at which time your rights under this EULA are deemed to have terminated); or (b) repair or replace the Software Product, provided that you make available all information that may be necessary to assist MonkeyC in resolving the defect or fault, including but not limited to sufficient information to enable MonkeyC to recreate the defect or fault. The Limited Warranty period for any replacement Software Product will be extended for the remainder of the original warranty period or thirty (30) days after the replacement Software Product is delivered to you, whichever is longer. Your remedies described in this paragraph are your exclusive remedies and shall not be deemed to fail in their essential purpose so long as MonkeyC is willing to repair or replace the Software Product or return the price you paid for the Software Product.

Limitation of liability

To the maximum extent permitted by applicable law, in no event shall MonkeyC or its suppliers be liable for any special, incidental, punitive, exemplary, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise (including, without limitation, damages for loss of income, loss of business profits or contracts, loss of production, business interruption, loss of the use of money or anticipated savings, loss of business information, loss of opportunity, loss of revenues, interest, capital, financing, goodwill or reputation, opportunity or productivity, loss of, damage to or corruption of data or any other pecuniary loss) arising out of the use of or inability to use the Software Product, even if MonkeyC has been advised of the possibility of such loss or damage. In any case, MonkeyC’s maximum aggregate liability under or in connection with any provision of this EULA, whether in contract, tort (including negligence) or otherwise, shall be limited to the amount actually paid by you for the Software Product. Any action against MonkeyC must be brought within twelve (12) months after the event giving rise to the cause of action.

This EULA sets out the full extent of MonkeyC’s obligations and liabilities in respect of the supply of the Software Product. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on MonkeyC except as specifically stated in this EULA. You acknowledge that MonkeyC’s pricing reflects ownership of intellectual property rights and the limitation of liability hereunder. Any condition, warranty, representation or other term concerning the supply of the Software Product which might otherwise be implied into, or incorporated in, this EULA, is hereby excluded to the fullest extent permitted by law.

Third party works

To the extent MonkeyC’s Software Product licensed under this EULA contains any third party’s intellectual property, this third party shall retain exclusive right to its components. You agree that such third party is a third-party beneficiary of the terms of this EULA to the extent of the third party’s license to MonkeyC. Use of such third-party components may be subject to restrictions contained in the third party’s end-user license agreement in addition to the conditions set forth in this EULA. MonkeyC shall make available to you upon request the third party’s end-user license agreement applicable. Copyright and other proprietary rights notices of MonkeyC and third parties are contained in the Software Product and you shall not modify, delete or obfuscate such notices.

General

This EULA constitutes the entire agreement between you and MonkeyC concerning the Software Product. No terms of any purchase order, acceptance, purported amendment, or any document or communication other than an agreement expressly agreed upon in writing by a duly authorised officer of MonkeyC shall replace, modify, amend or override this EULA. If any provision of this EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. No waiver by MonkeyC of any breach of any term or provision of this EULA shall be construed to be a waiver of any preceding or succeeding breach of the same or any other term or provision hereof. Our various rights and remedies hereunder shall be construed to be cumulative and no one of them is exclusive of any other or of any right or remedy allowed by law or in equity. This EULA shall be governed by and construed in accordance with the laws of the Netherlands, without regard to the conflict of laws provisions thereof, except to the extent the local law of your local jurisdiction requires use of your local jurisdiction’s law, and shall benefit MonkeyC, its successors and assigns. Any claim or dispute between you and MonkeyC or against any agent, employee, successor or assignee of MonkeyC, whether related to this EULA or otherwise, and any claim or dispute related to this EULA or the relationship or duties contemplated under this EULA, shall be resolved by the competent court of Amsterdam, The Netherlands.