End User License Agreement

This End User License Agreement (the “EULA”) is a legal agreement between you (either in your individual capacity, or on behalf of an entity), hereafter sometimes referred to as “you,” “Licensee,” or “End User” and TesserAct Music Technology LLC (“TesserAct” or “TESSERACT”) in order to give you a license to use the Software as set forth in this Agreement under the conditions in this Agreement, as well as to use the additional (mandatory) services provided by TesserAct or by third parties for paying customers. This EULA has no relation to your purchase agreement when you bought the Software (e.g. in retail or via the internet).

By clicking the acceptance button that follows this EULA and/or purchasing a license key and/or downloading and/or installing and/or otherwise using the Software (as defined below), you acknowledge that you have read this EULA, understand its terms and conditions, and agree, without reservation, to be bound by the terms and conditions of this EULA. If you are accepting the EULA on behalf of a company or other legal entity, you declare that you are authorized to do so and to legally bind such company or other legal entity. If you do not agree with the terms of this EULA, please do not purchase a License Key and/or download and use the Software.

1. Definitions

1.a The name “TesserAct”, “TESSERACT”, or other variation with differing letter capitalizations refers to TesserAct Music Technology LLC.

1.b The term “MoveMIDI” means TesserAct’s MoveMIDI software and all presets, data and other contents or read-only versions of other TesserAct products supplied by TesserAct with the Software. The term “MoveMIDI” also includes any updates, upgrades, or derivative versions of MoveMIDI licensed to the Licensee by TesserAct.

1.c The term “Software” means MoveMIDI and any included programs that communicate with external hardware used by MoveMIDI.

1.d The term “User Account” means the online account that is necessary for the registration and authorization of the Software. For details please see: www.movemidi.com/login

1.e The term “Consumer” means a Licensee who is a natural person who licensed the Software for a purpose which can be regarded as being outside his/her trade or profession.

1.f The term “Free Version” means Software that is provided by MoveMIDI to you for free, such as Trial Versions or Beta Versions.

2. Ownership/Intellectual Property Rights

2.a You, as Licensee, through your downloading, installing, copying or use of this product do not acquire any ownership rights to the Software. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The rights to use the Software as set out in this Agreement are licensed, not sold, to you by TesserAct.

2.b Trademarks contained in the Software are trademarks or registered trademarks of TesserAct Music Technology LLC in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use TesserAct’s or its licensors’ names or any of their respective trademarks.

2c. As between you and TesserAct, TesserAct is the owner of all right, title and interest in and to the Software (including all copyrights, trademarks and patents) regardless of the media or form of the Software; whether online, by disk or otherwise.

2d. Licensee shall not, at any time during or after the effective Term of the EULA, dispute or contest, directly or indirectly, TesserAct’s exclusive right and title to the Software or the validity thereof.

2e. You shall not attempt to develop any Software that contains the “look and feel” of any of the Software, or is otherwise derivative of the Software.

3. License grant

3.a Under the condition that:

i. the Licensee has legally acquired the ownership of the data carrier containing the Software (other than by an acquisition of ownership “in good faith”) or purchased the product key and received the allowance to download the Software by TesserAct or an authorized dealer, and 
ii. paid the applicable price, and 
iii. is using an authorized copy of the Software, and
iv. has registered and is holding a valid User Account.

TesserAct grants the Licensee a limited, non-exclusive license to use and copy the Software for use on his or her computer system or file server for local use within the Licensee’s network. This network must be owned, leased and/or controlled by the Licensee or a member of the Licensee’s corporate group, which includes a corporate Licensee, a corporate Licensee's majority-owned subsidiaries, any parent company having a majority-owned interest in such corporate licensee, and such parent's majority-owned subsidiaries. 

3.b The Licensee may transfer the Software from one computer to another over his or her network but may not copy it to additional sites outside the network or make additional copies for use on other networks or sites. The Software may only be used on one computer at a time. All Software included within the respective edition of MoveMIDI is part of the same License granted by TesserAct and can only be used as a single bundle on one computer at a time. The Licensee may make one backup copy of the Software.

4. Activation of Software and User Account

In order to use the Software, you must register the Software and connect it to a User Account by inputing the associated User Account credentials into the Software registration dialog that will be shown upon first use of the Software. You can only register and activate the Software using an online connection. The transfer or assignment of the User Account is prohibited without the express consent of TesserAct.

5. License restrictions

5.a You may not translate, reverse engineer, decompile, disassemble, or create derivative works from the Software or provide the Software as “software as a service”. 

5.b You may not use, copy, modify or transfer the Software, or any copy in whole or in part, except as expressly provided for in this license.

5.c The Software may be used to reproduce materials and prepare derivative works therefrom. It is licensed to you only for reproduction and preparation of derivative works of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or permitted by law to reproduce and prepare derivative works from.

5.d All within this Section 5 is subject to the extent that the Licensee is granted the right by law to decompile software in order to obtain information necessary to render the Software’s interoperable with other software; the same applies to reverse engineering, decompilation, and disassembly of Software.

6. Restrictions on transfer

6.a You may not rent, lease or sublicense the Software on a temporary or permanent basis. You may, however, transfer the license to use the Software as a whole to another person or entity, provided that 

i. you completely uninstall the Software from your computer or network, do not retain any backup copy of the Software (or its components), and
ii. transfer this EULA with the Software, and 
iii. any such transferee will be bound by this EULA, and you will remain secondarily liable, and  
iv. the transferee registers for a User Account and activates the Software (while your installation will be unregistered).

6.b The license to use the Software labelled NFR (“Not for Resale”) may not be sold or transferred.

6.c The license to try out Software with an unrestricted feature set for a limited trial period of thirty days (“Trial License”) is limited to a one time-use per user and per hardware device. The Licensee may not re-register under a different name, different account, or from a different hardware device. Only one user may register per hardware device.

6.d If you transfer possession of any copy of the Software to another person or entity except as described above, this license is automatically terminated.

7. Upgrades and Updates

7.a In order to upgrade or update the Software, a valid license to use the previous version of the Software is required. “Previous version” means a former version of MoveMIDI to which an upgrade/update is made to the most recent version, and a former version of MoveMIDI with limited features to which more features are added. If the license to the previous version of Software is transferred to another person or entity, no upgrades or updates will be made to it.

7.b If the previous version of the Software is or was labelled as NFR, the restriction on transfer described above will also apply to the upgraded or updated version.

7.c In case of an upgrade or update from a previous version of MoveMIDI, the license to use the previous version of the respective MoveMIDI product will immediately expire and be replaced by the license to use the newer version of the MoveMIDI product.

8. Data Collection

8.a During the process of registration and unlocking, updating or upgrading the Software, and when technical support is provided, TesserAct may collect and use technical information for improvement of the Software, for support purposes, and for the verification of the Software, upgrade and update. This will be subject to an additional registration process.

8.b In the event that you activate the Software online, aliased authentication information will be stored on your hardware device for the purpose of connecting the Software to your User Account, enabling the Software to obtain the information pertaining to your license(s) that is/are stored in your User Account.

8.c TesserAct may track and collect information from your use of the Software (“Usage Data”), aggregate such Usage Data in a “Usage Report”, store such data in the Google Analytics system for product improvement purposes, and store such data within our own database in License metadata associated with your User Account. Examples of Usage Data collected are the operating system version, MoveMIDI software version, times of starting and stopping MoveMIDI software, times of clicks on certain buttons within MoveMIDI software, etc. Usage Data is anonymous and not personally identifiable unless it is associated with License metadata in your private User Account stored in our servers.

9. Trial Licenses

The purpose of the Trial Licenses is to facilitate the decision-making process with regards to acquiring a commercial version. Any other use, including, but not limited to, resale, transfer, or public use, is strictly prohibited. This condition extends beyond the trial period, regardless of whether Software is running with a restricted feature set or not.

10. DISCLAIMER OF WARRANTIES

DISCLAIMER OF WARRANTIES: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND TESSERACT HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE PRODUCT, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TESSERACT DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TESSERACT OR A TESSERACT AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, TESSERACT MAY CHOOSE TO REPLACE THE LICENSEE’S COPY OF THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

12. LIMITATION OF LIABILITY

I. IF YOU ACQUIRED THE SOFTWARE IN EUROPE

Limitation of Liability

12.a TesserAct shall only be liable without restriction according to the statutory provisions for damages of the Licensee caused by intentional or gross negligent conduct of TesserAct or its agents. The same applies to personal injury and damages according to the German Product Liability Act or comparable laws in other jurisdictions that may apply.

12.b Otherwise, the liability of TesserAct for damage claims – for whatever legal reason – is limited in accordance with the following conditions, unless otherwise provided by an explicit guarantee of TesserAct:

i. For damages caused by slight negligence, TesserAct is only liable insofar as they cause damage to contractual obligations (cardinal obligations). Cardinal obligations are those contractual obligations which must be fulfilled in order to ensure orderly implementation of the contract and in whose observance the User should be able to trust. Insofar as TesserAct is responsible for simple negligence hereafter, the liability of TesserAct is limited to the typically foreseeable losses.
ii. The liability of TesserAct for damages caused by loss of data and/or programs lost by slight negligence is limited to the typical cost of restoration, which would have been incurred in case of regular and appropriate data backup and data protection by the Licensee.
iii. The provisions of the above paragraph apply correspondingly to the limitation of damages for unsuccessful expenses (§ 284 of the German Civil Code [BGB]).

12.c The above liability restrictions shall also apply to agents of the TesserAct.

II. IF YOU ACQUIRED THE SOFTWARE OUTSIDE EUROPE

LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TESSERACT OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR DEFECT IN OR CAUSED BY THE SOFTWARE, INCLUDING BUT NOT LIMITED TO COMPROMISING THE SECURITY OF YOUR COMPUTER, OPERATING SYSTEM OR FILES, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF TESSERACT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, TESSERACT’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR REPLACEMENT OF THE SOFTWARE WITH PRODUCT OF COMPARABLE RETAIL VALUE, AS TESSERACT MAY ELECT IN ITS SOLE DISCRETION. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU IN PART OR WHOLE.

13. Indemnification

NB: THIS CLAUSE DOES NOT APPLY IF YOU ACQUIRED THE SOFTWARE IN EUROPE 

Licensee agrees to indemnify, defend and hold harmless TesserAct and its affiliates and their respective officers, employees, directors, agents, licensees (excluding you), sublicensees (excluding you), successors and assigns from and against any and all liability, costs, losses, damages, and expenses (including reasonable attorneys’ fees and expenses) arising out of any claim, suit, or cause of action relating to and/or arising from (a) your breach of any term of this EULA; (b) your violation of any rights of any third party; or (c) your use or misuse of the Software. Your indemnification obligations set forth in the immediately preceding sentence shall survive the termination of this EULA.

14. Third Party Content and Applications

14.a The Software may utilize or include third party content, open source & closed source software, or other copyrighted material which may collectively be referred to as “Third Party Content”. The terms and conditions and license(s) of your use of such material as contained in the Software, of which you shall adhere to, can be found via the webpage: https://movemidi.com/acknowledgements and/or via the “About” menu option in the Software. Your use of such third party material is governed by their respective terms and conditions and license(s). By accepting this EULA, you are also accepting the additional terms and conditions and license(s), if any, set forth therein. TesserAct expressly disclaims any and all warranties in connection with the Third Party Content, and shall have no liability in connection therewith.

14.b Your use of the Software may allow you to connect with third party applications or websites (“Third Party Applications”). Your use of the Third Party Applications is governed by the terms and conditions and license(s) thereof. By accepting this EULA, you are also accepting the additional terms and conditions and license(s), if any, set forth therein. TesserAct expressly disclaims and all warranties in connection with the Third Party Applications, and shall have no liability in connection therewith. 

14.c TesserAct is not liable for costs arising out of services demanded by the Licensee that are not provided by TesserAct. This shall in particular apply to costs of data transfer from or to the Licensee’s device to a third party or any cost of additional storage space.

14.d IF YOU ACQUIRED THE SOFTWARE IN EUROPE All set forth in this Section is subject to section 12.I. a of this Agreement.

15. Term

I. IF YOU ACQUIRED THE SOFTWARE IN EUROPE

The Licensee may terminate this EULA at any time by destroying the Software together with all copies in any form.

II. IF YOU ACQUIRED THE SOFTWARE OUTSIDE EUROPE

The Licensee may terminate this EULA at any time by destroying the Software together with all copies in any form. This EULA will also terminate automatically upon conditions set forth elsewhere in this EULA, or if the Licensee fails to comply with any term or condition of this EULA, without notice to the Licensee. The Licensee agrees upon such termination to destroy the Software together with all copies in any form. 

16. Export Law Assurances

NB: THIS CLAUSE DOES NOT APPLY IF YOU ACQUIRED THE SOFTWARE IN EUROPE 

You may not export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into or to a nation or a resident of any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By installing or using any component of the Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.

17. Governing Law/Place of Performance and Jurisdiction/Dispute Resolution

I. IF YOU ACQUIRED THE SOFTWARE IN EUROPE

Governing Law / Place of Performance and Jurisdiction /Dispute Resolution:

17.a Exclusively the laws of the United States of America apply, even if the Licensee has his/her residential or business seat abroad. If the Licensee is a Consumer, this choice of law shall not, however, have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis according to Art. 6 I of the ROM I (REGULATION (EC) No 593/2008).

17.b The place of performance is Waco, Texas.

17.c For all present and future claims from this Agreement, the exclusive jurisdiction is Texas. The same jurisdiction applies if the Licensee has no general jurisdiction inside Texas, if he/she relocates his/her residence or habitual abode out of the country, or if his/her residence or habitual abode is not known at the time of institution of legal proceedings.

By agreeing to these terms and conditions, in the event of any claim you may have arising from or related to the Software or this EULA you agree you hereby waive any right to participate in any type of law suit brought and/or maintained as a class action or similar in nature to a class action.

II. IF YOU ACQUIRED THE SOFTWARE OUTSIDE EUROPE

Governing Law/Dispute Resolution: This EULA will be governed by and construed in accordance with the laws of the State of Texas and of the United States of America.  This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. By agreeing to these terms and conditions, in the event of any claim you may have arising from or related to the Software or this EULA you agree to the exclusive personal and subject matter jurisdiction of the courts located within Texas, U.S.A. for making and resolving any such claims, and hereby waive any right to participate in any type of law suit brought and/or maintained as a class action or similar in nature to a class action. TesserAct reserves the right to make any claim against you and seek and be granted any legal or equitable remedy against you in any court anywhere in the world.

18. General

I. IF YOU ACQUIRED THE SOFTWARE IN EUROPE

18.a The Licensee can only offset claims of TesserAct with undisputed or legally established counterclaims. The Licensee can only exercise a right of retention if his/her counterclaim is based on the same contractual relationship. The transfer of the Licensee's claims against TesserAct is prohibited.

18.b All rights not explicitly granted in this agreement are reserved.

18.c The failure or delay of TesserAct to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.

II. IF YOU ACQUIRED THE SOFTWARE OUTSIDE EUROPE

This agreement constitutes the complete and exclusive agreement between TesserAct and Licensee with respect to the subject matter hereof and supersedes all proposals, representations, understandings and prior agreements, whether oral or written, and all other related communication between the parties. All rights not explicitly granted in this agreement are reserved. Any clause in this agreement, which is found to be invalid or unenforceable shall be deemed deleted and the rest of this agreement shall remain unaffected.  The failure or delay of TesserAct to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.

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