Rapture3D "Advanced" Version End User License Agreement

BLUE RIPPLE SOUND LIMITED
END USER LICENCE AGREEMENT

Notice to User: Please read this End User Licence Agreement ("Licence Agreement") carefully. By downloading and/or using all or any part of the software and/or using the supplied Authentication Key, you ("Licensee") indicate your acceptance of the following terms from Blue Ripple Sound Limited, c/o BSG Valentine & Co., 7-12 Tavistock Square, London WC1H 9BQ ("Blue Ripple"). The Licensee agrees to be bound by all the terms and conditions of this Licence Agreement. The Licensee agrees that it is enforceable as if it were a written negotiated agreement signed by the Licensee. If the Licensee does not agree to the terms of this Licence Agreement, the Licensee shall not download and/or use the software and/or use the Authentication Key.

NOW IT IS HEREBY AGREED AS FOLLOWS:

  1. DEFINITIONS


    "Authentication Key" means the series of numbers and letters supplied to the Licensee to access the Software.
    "Documentation" means the electronic user manual which is either supplied to the Licensee with the Software or which is made available to the Licensee on the Website.
    "Effective Date" means the date on which the Licensee downloads and/or uses all or any part of the software and/or use the supplied Authorisation Key.
    "Licence Fees" means the one-off licence fees payable to Blue Ripple set out on the Website.
    "Minimum Requirements" means the minimum technical specification required to enable the Software to function in accordance with the Documentation and/or at all, as set out in the Documentation and/or on the Website.
    "Software" means the object code form of Rapture3D (Advanced Version) together with any additional data, bug fixes, enhancements, or other modifications of the Software provided to the Licensee under a separate support and maintenance agreement between the parties.
    "Website" means http://www.blueripplesound.com/ or any such unique resource locator as designated by Blue Ripple.

  2. GRANT OF RIGHTS; RESTRICTIONS

    1. Subject to all the terms and conditions of this Licence Agreement and in consideration for the Licence Fees, Blue Ripple hereby grants the Licensee a perpetual (terminable only as provided in clauses 2.4 and 5.1), worldwide, nonexclusive, nontransferable, paid-up licence (a) to install the Software on a single PC or laptop on which the Software is downloaded and from which the Software is accessed using the Authentication Key; and (b) for the Licensee's internal and non-commercial use only. This licence is in respect of use of the Software by the Licensee only and no subsidiaries or holding company of the Licensee may use the Software.
    2. Except as expressly permitted in this Licence Agreement, the Licensee shall not, and shall not permit others to: (i) modify, translate, create derivative copies of or copy the Software (other than one backup copy which reproduces all proprietary notices), in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the object code of the Software to source code form; (iii) distribute, sublicence, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Software or Licensee's right to use the Software; (iv) remove or modify any copyright, trademark, or other proprietary notices of Blue Ripple affixed to the media containing the Software or contained within the Software; or (v) use the Software in any manner not expressly authorised by this Licence Agreement.
    3. The Licensee shall not make any use of any file (in any format) generated, produced and/or derived from the Software (i) on any PC or laptop other than the PC or laptop on which the Software is downloaded pursuant to clause 2.1(a); and/or (ii) independently without the Software.
    4. The Licensee shall provide Blue Ripple with such access to the Licensee's systems for Blue Ripple to confirm that the Software is being used in accordance with this Licence Agreement. In the event that the Licensee's use of the Software is not in accordance with this Licence Agreement, Blue Ripple shall be entitled to terminate the licence and/or disable the Authentication Key in respect of the Software and to terminate this Licence Agreement. For the avoidance of doubt, clause 5.3 shall apply upon termination of this Licence Agreement in accordance with this clause 2.4.

  3. PROPRIETARY RIGHTS

    1. Blue Ripple has sole and exclusive ownership of all right, title, and interest in and to the Software, including all copyright and any other intellectual property rights therein. This Licence Agreement conveys a limited licence to use the Software and shall not be construed to convey title to or ownership of the Software to Licensee. All rights in and to the Software not expressly granted to Licensee are reserved by Blue Ripple.

  4. LICENCE FEE

    1. In consideration for the licence granted to the Licensee hereunder, Licensee shall pay Blue Ripple a one-time nonrefundable Licence Fee using the methods of payment as set out on the Website. Such Licence Fee shall be due and payable on the Effective Date. Such Licence Fee is exclusive of VAT or other sales tax.

  5. TERM AND TERMINATION

    1. This Licence Agreement shall commence on the Effective Date and continue in effect indefinitely, unless terminated in accordance with clauses 2.4 and 5.1. If either party breaches this Licence Agreement in any material respect, the other party may give written notice to the breaching party of its intent to terminate, and if such breach is not cured within thirty (30) days after the breaching party's receipt of such notice, this Licence Agreement shall terminate without any further notice required (but no cure period is required for any breach that cannot be cured).
    2. Notwithstanding clause 5.1, Blue Ripple shall be entitled to (a) immediately terminate this Licence Agreement upon notice; and (b) permanently prohibit the Licensee and/or the IP addresses used by the Licensee from making any use of and/or accessing the Software in the event the Licensee is or Blue Ripple has reasons to be believe that the Licensee is (i) using the Software to commit a criminal act or to cause nuisance or annoyance or inconvenience to or harass others including without limitation, to engage in hacking activities; (ii) using illegal and/or unlawful means to access the Software including without limitation, hacking the Software so as to dispense with the use of the Authentication Key or using a hacked copy of the Software; and (iii) using the Authentication Key and/or doing an act or series of acts that shall or may reasonably be deemed to infringe any patents, copyrights, trademarks, design rights or any other intellectual property rights or other rights of any third parties.
    3. Upon any termination of this Licence Agreement, (a) the rights and licences granted to the Licensee herein shall terminate; (b) the Licensee shall cease all use of the Software; (c) the Licensee shall return to Blue Ripple all copies of the Software and Documentation in the Licensee's possession or under its control; and (d) the Licensee shall, where requested, certify in writing to Blue Ripple its compliance with the foregoing. Clauses 1, 3, 5.3, 6.3, 7 and 8 shall survive any termination of this Licence Agreement.

  6. REPRESENTATIONS AND WARRANTIES

    1. Blue Ripple warrants that the Software will function materially in accordance with the Documentation for a period of thirty (30) days from the Effective Date. Blue Ripple shall have no obligation to provide ongoing support or maintenance services to the Licensee unless the parties enter into a separate maintenance agreement.
    2. The above warranty is conditional upon the Licensee complying with the Minimum Requirements.
    3. The warranties set forth in this clause 6 are exclusive and in lieu of all other warranties, express or implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose, and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade, all of which are hereby excluded and disclaimed.
    4. The Licensee acknowledges that Blue Ripple relies on third party services providers to make the Software available to the Licensee. Consequently, Blue Ripple does not warrant that the Licensee shall have uninterrupted access to and use of the Software.
    5. The Licensee hereby represents that it shall (i) comply with all applicable local and foreign laws and regulations which may govern the use of the Software, and (ii) use the Software only for lawful purposes and in accordance with the terms of this Licence Agreement.

  7. LIMITATION OF LIABILITY

    1. The Licensee's sole remedy with respect to any claims arising out of this Licence Agreement shall be limited either (i) to the replacement of the Software by Blue Ripple; or (ii) in the aggregate to the Licence Fee paid by the Licensee to Blue Ripple under this Licence Agreement.
    2. In no event shall Blue Ripple be liable for any special, indirect, incidental, or consequential damages, including loss of profits and goodwill, business or business benefit, or the cost of procurement of substitute products by the Licensee even if advised of the possibility of such damages. In no circumstances shall Blue Ripple be liable for any failure of the Software to perform in accordance with the Documentation, or at all, resulting from a failure by the Licensee to comply with the Minimum Requirements. Additionally, the Licensee acknowledges that whilst the Software may be used in combination with third party software, Blue Ripple bears no liability, howsoever arising, for any loss, damage or cost that arises from a failure of the Software to integrate with the Licensee or third party software.

  8. GENERAL

    1. The Licensee shall not assign this Licence Agreement, in whole or in part, without the prior written consent of Blue Ripple.
    2. The Licensee consents to the use by Blue Ripple of the Licensee's name in customer lists and other publicity, including interviews, case studies, and conference discussions, provided that such publicity accurately describes the nature of the relationship between the Licensee and Blue Ripple.
    3. The Licensee agrees that because of the unique nature of the Software and Blue Ripple's proprietary rights therein, a demonstrated breach of this Licence Agreement by the Licensee would irreparably harm Blue Ripple and monetary damages would be inadequate compensation. Therefore, Licensee agrees that Blue Ripple shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Licence Agreement.
    4. If any provision of this Licence Agreement or the Software thereof is declared void, illegal, or unenforceable, the remainder of this Licence Agreement will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.
    5. Any failure by any party to this Licence Agreement to enforce at any time any term or condition under this Licence Agreement will not be considered a waiver of that party's right thereafter to enforce each and every term and condition of this Licence Agreement.
    6. Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the nonperforming party uses reasonable efforts to avoid or remove such causes of nonperformance and continues performance hereunder with reasonable dispatch whenever such causes are removed.
    7. This Licence Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof.
    8. These Terms are governed by and construed in accordance with English law. The Courts of England shall have exclusive jurisdiction over any disputes arising out of these Terms. If the Licensee is a consumer in accordance with the consumer protection legislation of England and Wales and lives outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive the Licensee of any legal protection accorded in accordance with the law of the place where the Licensee is habitually resident ("Local Law"). In the event English law deprives the Licensee of any legal protection which is accorded to the Licensee under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where the Licensee is habitually resident.