BLUE RIPPLE SOUND LIMITED
END USER LICENCE AGREEMENT

NOTICE TO LICENSEE: PLEASE READ THIS END USER LICENCE AGREEMENT ("LICENCE AGREEMENT") CAREFULLY. BY DOWNLOADING AND/OR USING ALL OR ANY PART OF THE SOFTWARE OR USING THE SUPPLIED LICENCE KEY, YOU ("LICENSEE" "YOU" "YOUR") 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").

BY DOWNLOADING AND USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU AGREE TO BE BOUND BY THIS LICENCE AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS LICENCE AGREEMENT, YOU WILL NOT BE ABLE TO USE THE SOFTWARE. IF YOU ARE USING THE SOFTWARE ON BEHALF OF YOUR EMPLOYER OR ACTING AS AN EMPLOYEE, YOU WARRANT THAT YOU ARE AUTHORISED TO ENTER INTO LEGALLY BINDING CONTRACTS ON BEHALF OF YOUR EMPLOYER.  IF YOU ARE USING THE SOFTWARE IN YOUR CAPACITY AS A STUDENT OR OTHER MEMBER OF AN EDUCATIONAL ESTABLISHMENT, YOU WARRANT THAT YOU HAVE BEEN PROVIDED ACCESS TO THE SOFTWARE BY THAT EDUCATIONAL ESTABLISHMENT OR OTHERWISE HAVE AUTHORISATION FROM THEM TO USE THE SOFTWARE. THE RIGHTS, LIMITATIONS AND RESTRICTIONS IN THIS LICENCE AGREEMENT APPLY TO YOUR EMPLOYER/EDUCATIONAL ESTABLISHMENT.  YOU AGREE THAT THIS LICENCE AGREEMENT IS ENFORCEABLE AS IF IT WERE A WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOUR EMPLOYER/EDUCATIONAL ESTABLISHMENT.

WE LICENSE USE OF THE SOFTWARE AND DOCUMENTATION TO YOU ON THE BASIS OF THIS LICENCE. WE DO NOT SELL THE SOFTWARE OR DOCUMENTATION TO YOU. WE REMAIN THE OWNERS OF THE SOFTWARE AND DOCUMENTATION AT ALL TIMES.

YOU ARE ADVISED TO PRINT AND RETAIN A COPY OF THIS LICENCE AGREEMENT FOR YOUR FUTURE REFERENCE.

NOW IT IS HEREBY AGREED AS FOLLOWS:

1. DEFINITIONS

"Beta Testing" means a temporary, non-exclusive, non-sublicensable, non-transferable licence to Use the relevant version of the Software for the sole purpose of testing that version of the Software in order for Blue Ripple to receive feedback on the functionality, usability, errors and other aspects of that version of 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 the Software from the Website or otherwise receives the Software from Blue Ripple.

"Holding company" and "subsidiary" mean a "holding company" and "subsidiary" as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members' rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.

"Internal" means the Licensee only and excludes all subsidiaries and any holding company of the Licensee.

"Licence Fees" means the one-off non-refundable licence fee payable to Blue Ripple by the Licensee as set out on the Website.

"Licence Key" means the series of numbers and letters supplied to the Licensee to enable access to and Use of the Software by one (1) User at any one time.

"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.

"Open Source Software" means open-source software as defined by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org) and for the avoidance of doubt includes the open-source software listed at http://www.blueripplesound.com/free-stuff or elsewhere on the Website.

"Software" means the object code form of O3A Manipulators together with data which may be generated through use (and which remains part) of that software, and any additional data, bug fixes, enhancements, or other modifications of the Software which may be provided to the Licensee and excludes Open Source Software.

"Trial" means a temporary, non-exclusive, non-sublicensable, non-transferable licence to Use the Software for the sole purpose of assessing the functionality of the Software.

"Use" means to download, install, access, display and/or utilise the Software on a single PC or laptop upon which the Software is downloaded and accessed using the Licence Key for a) where the Licensee is a consumer, the Licensee's sole personal use or, b) where the Licensee is a business, by the User only for the Licensee's sole Internal business purposes.

"User" means either (i) if the Licensee is an individual, the Licensee; (ii) if the Licensee is a company, the individual at such company (whether employee, contractor or otherwise) of the Licensee who will Use the Software; or (iii) if the Licensee is an educational establishment, the student or other member of such establishment who Uses the Software.

"Website" means http://www.blueripplesound.com/ or any such unique resource locator as designated by Blue Ripple.

2. GRANT OF RIGHTS; RESTRICTIONS

Rights

2.1 Save as set out in sub-clause 2.2 below, 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 2.5, 5.3 and 5.4) worldwide, non-exclusive, non-transferable, paid-up single-User licence to:

2.1.1	download from the Website, install and store the Software on computers and other devices provided such computers and devices are owned by or under the control of the Licensee; and

2.1.2 	Use the Software.

2.2 If the Software is provided to the Licensee on a Beta Testing basis, then in consideration for the Licensee (a) notifying Blue Ripple of all defaults arising from its Use of the Software; and (b) providing Blue Ripple with feedback relating to its Use of the Software as requested by Blue Ripple; and subject to the terms in this Licence Agreement, Blue Ripple grants the Licensee a temporary (terminable as provided in clauses 2.3 and 5), worldwide, non-exclusive, non-transferable, free of charge licence to Use the Software for the sole purpose of Beta Testing.

2.3 If the Software is provided to the Licensee on a Beta Testing or Trial basis, the Licensee acknowledges and agrees that Blue Ripple may discontinue the Licensee's ability to Use the Software on that Beta Testing or Trial (as applicable) basis and terminate this Licence Agreement at any time and for any reason on notice to the Licensee. Upon such termination, the Licensee shall return to Blue Ripple all copies of the Software and Documentation in the Licensee's possession or under its control; and the Licensee shall, where requested, certify in writing to Blue Ripple its compliance with the foregoing.

Restrictions

2.4 Save as permitted by Blue Ripple in writing or by e-mail, except as expressly permitted in this Licence Agreement, the Licensee shall not, and shall not permit, enable or assist others to: (i) modify, translate, adapt, create derivative works of, copies of or copy the Software (except where such copying is incidental to normal use of the Software, or where it is necessary for the purpose of back-up or operational security and provided it 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, sub-licence, 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, (v) analyse or interpret the way in which the Software manipulates the audio stream inputs it receives in order to deliver the outputs; (vi) use the Software for the purposes of providing an automated service to, for the benefit of or on behalf of a third party; or (vii) Use the Software in any manner not expressly authorised by this Licence Agreement.

2.5 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 immediately terminate the licence or disable the Licence Key (or both) 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 2.5.
 
3. PROPRIETARY RIGHTS

3.1 Blue Ripple owns or has a licence to use the 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 the Licensee are reserved by Blue Ripple. 

3.2 All trademarks, service marks, trade names, logos or other words or symbols identifying the Software and the Blue Ripple business adopted by Blue Ripple from time to time ("Blue Ripple Trademarks") are and will remain the exclusive property of Blue Ripple, whether or not specifically recognised or perfected under the laws of any relevant jurisdiction(s). The Licensee shall not take any action that jeopardises Blue Ripple's proprietary rights in the Blue Ripple Trademarks. The Licensee shall not alter or remove any Blue Ripple Trademark applied to the Software by Blue Ripple. Except for the limited rights set out in this Licence Agreement, nothing contained in this Licence Agreement shall grant the Licensee any right, title or interest in Blue Ripple Trademarks.

4. LICENCE FEE

4.1 Save where this licence is granted on a Trial or Beta Testing basis (in which cases no fee will be payable for such Uses), in consideration for the licence granted to the Licensee hereunder, Licensee shall pay Blue Ripple the Licence Fee using the methods of payment as set out on the Website. The Licence Fee shall be due and payable before a Licence Key is provided and before the Software is made available for download.

4.2 Blue Ripple reserves the right to terminate this Licence Agreement immediately on notice to the Licensee in the event Blue Ripple has not received the Licence Fee on the Effective Date. 

5. TERM AND TERMINATION

5.1 Save in respect of any Software provided on a Trial or Beta Testing basis, for which clause 5.2 will apply, this Licence Agreement shall commence on the Effective Date and continue in effect indefinitely, unless otherwise terminated in accordance with the provisions of this Licence Agreement. 

5.2 Where the Software is provided on a Trial or Beta Testing basis, this Licence Agreement commences on the Effective Date and will expire (unless terminated earlier in accordance with the terms of this Licence Agreement) upon (a) for Trials, the last day of the agreed trial period; or (b) for Beta Testing, the completion of the beta testing phase by Blue Ripple; or otherwise earlier notification by Blue Ripple.

5.3 If the Licensee breaches this Licence Agreement in any material respect, Blue Ripple may give written notice to the Licensee of its intent to terminate, and if such breach is not cured within fourteen (14) days after the Licensee'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).

5.4 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 in any manner (including without limitation in order to dispense with the use of the Licence Key) or using a hacked copy of the Software; (iii) 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; and/or (iv) using the Software in breach of this Licence Agreement.

5.5 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, 3.1, 3.2, 5.5, 6.6, 7, 8.2, 8.3 and 8.10 shall survive any termination of this Licence Agreement.

6. REPRESENTATIONS AND WARRANTIES

For Beta Testing

6.1 The Software is provided to you free of charge. You agree and acknowledge that the Software is provided in pre-release format and may contain bugs, defaults and errors and Blue Ripple does not warrant or make any representation that the Software is bug, default or error free. You agree that Blue Ripple cannot guarantee and does not warrant or make any representation regarding the use or the results of the use of the Software in terms of its correctness, accuracy, reliability, currentness or otherwise. You agree that Blue Ripple has provided no express or implied warranties, oral or written, to you regarding the Software and that it is provided "as is" without warranty of any kind. Blue Ripple hereby disclaims all warranties with regard to the Software, whether express, statutory or implied and including, without limitation, all warranties of merchantability or fitness for a particular purpose. Additionally, you hereby acknowledge and agree that the Software contains restrictions and limitations which are consistent with Software provided free of charge.

For all Uses of Software on a Trial basis or where a Licence Fee is paid

6.2 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 any support or maintenance services to the Licensee unless the parties enter into a separate maintenance agreement.

6.3 The above warranty is conditional upon the Licensee complying with the Minimum Requirements.

6.4 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 satisfactory quality, 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.

For all Uses of the Software (including without limitation Beta Testing)

6.5 The Licensee acknowledges that Blue Ripple relies on third party service 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.

6.6 The Licensee hereby warrants and 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.

6.7 Licensee agrees that Blue Ripple has provided no express or implied warranties, oral or written, to you regarding the Open Source Software and that the Open Source Software is provided "as is" without warranty of any kind. Any Open Source Software provided by Blue Ripple may be used by the Licensee according to the terms and conditions of the specific licence under which the relevant Open Source Software is distributed.

7. LIMITATION OF LIABILITY

For Beta Testing and Trial Uses

7.1 Blue Ripple shall not be liable for any direct, indirect, incidental, special or consequential damages including loss of profits and goodwill, business or business benefit even if advised of the possibility of such damages. Both parties acknowledge and agree that such an exclusion of liability is appropriate to the nature of a licence for the Use of the Software which is provided to you free of charge.

For Uses of the Software where a Licence Fee is paid

7.2 Subject to clause 7.4, Blue Ripple's maximum liability under this Licence Agreement howsoever arising, whether in contract, tort (including negligence), breach of statutory duty or otherwise shall be limited in the aggregate to the Licence Fee paid by the Licensee to Blue Ripple under this Licence Agreement.

7.3 In no event shall Blue Ripple be liable for any special, indirect, incidental, or consequential damages, loss of data, loss of contracts, loss of savings, loss of profits or revenue, or loss of 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.

For all Uses of the Software (including without limitation Beta Testing)

7.4 For the avoidance of doubt, nothing in this Licence Agreement shall be deemed to exclude, restrict or limit liability of either party (or their respective agents or sub-contractors) for death or personal injury resulting from their negligence or any liability for fraudulent misrepresentation.

7.5 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.

7.6 The Licensee acknowledges that whilst the Software may be used in combination with third party software and/or hardware, Blue Ripple bears no liability, howsoever arising, for any loss, damage or cost that arises from a failure of the Software to integrate with other Licensee software or third party software or hardware.

8. GENERAL

8.1 The Licensee shall not assign this Licence Agreement, in whole or in part, without the prior written consent of Blue Ripple. Blue Ripple may assign this Licence Agreement, in whole or in part, without limitation. 

8.2 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.

8.3 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 bring a claim for preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Licence Agreement.

8.4 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.

8.5 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.

8.6 Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the non-performing party uses reasonable efforts to avoid or remove such causes of non-performance and continues performance hereunder with reasonable dispatch whenever such causes are removed.

8.7 Any notice, request, instruction or other document to be given hereunder shall be delivered or sent by first class post or by email (in all cases to be confirmed by letter posted within 12 hours) to the address of the other set out or referred to in this Agreement (or such other address as may have been notified) and any such notice or other document shall be deemed to have been served and deemed to have been received (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by email) upon the expiration of 12 hours after dispatch.

8.8 Neither party shall be liable for any breach of this Agreement resulting from causes beyond its reasonable control including but not limited to fires, strikes (of its own or other employees) insurrection or riots, wrecks or delays in transportation, inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (a "Force Majeure Event"). Each party agrees to give notice forthwith to the other upon becoming aware of a Force Majeure Event, such notice to contain details of the circumstances giving rise to the Force Majeure Event. If a default due to a Force Majeure Event shall continue for more than 13 weeks, then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of such termination as a result of a Force Majeure Event.

8.9 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.

8.10 This Licence Agreement is governed by and construed in accordance with English law. The Courts of England shall have exclusive jurisdiction over any disputes arising out of this Licence Agreement. Notwithstanding the foregoing, 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 this Licence Agreement shall be governed by Local Law and any dispute or claim arising out of or in connection with this Licence Agreement shall be subject to the non-exclusive jurisdiction of the courts where the Licensee is habitually resident.

8.11 A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Licence Agreement.