Melodrive SDK Developer and Software License Agreement

Copyright © Melodrive Inc.  All rights reserved.

Last Updated September 20, 2018.

Thank you for your interest in Melodrive Inc ("Melodrive"), and our Realtime Adaptive Music Engine and services ("Service(s)"), and related software development kit (“SDK”), including Melodrive Lite Beta, Melodrive Indie and any other release of the Melodrive software, including any instrument assets, samples, synthesizers, musical themes, computer software in object code form, associated modules, files, libraries, media, printed materials, and online or electronic Documentation ("Documentation"), redistributable libraries ("Libraries"), Dynamic Link Libraries (“DLL”), application programming interfaces (“APIs”) and sample code ("Sample Code"), and other materials provided to you directly in the applicable SDK download, and any upgrades, modified versions, additions, and improvements therefor, if any (collectively, the "Melodrive SDK") designed to enable software developers to build applications on top of the Service.  For clarity, the term Melodrive SDK as defined and used herein, includes any release of the Melodrive software and services, including Melodrive Lite Beta and Melodrive Indie.

Purpose

This SDK Developer and Software License Agreement (the "Agreement") permits software developers and game designers to incorporate the Melodrive Adaptive Music engine and associated Services into applications they build. This Agreement governs use of the Melodrive SDK by you, and/or the entity on whose behalf you are downloading the SDK ("you"). BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE MELODRIVE SDK AND RELATED SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE, YOU MAY NOT USE THE MELODRIVE SDK.


Accordingly, You and Melodrive acknowledge and agree as follows:

Tiers

Melodrive licenses our products and services to developers under different licenses based on revenue thresholds and definitions, and each license has different Minimum Commitments, Revenue Limits and features.  As of September 16, 2018 we are offering only two tiers of our SDK License to users—Melodrive Lite Beta and Melodrive Indie, both completely royalty-free and you are free to integrate and distribute each in your Applications on any platform, until you reach certain Revenue thresholds as described below.  At that time, you are obliged to contact us and we’ll determine the most optimum License structure between us moving forward.

To see the full list of features and functionality of each of our SDK License types, please visit http://melodrive.com/melodriveIndie.php.  The following table describes the Minimum Commitments and Revenue thresholds and limits for each license.  You are responsible and hereby commit to Melodrive that you designate yourself honestly and truthfully according to the following types of License that Melodrive grants you, and the duty rests with you to upgrade to the relevant license when your revenue metrics meet the relevant threshold:

SDK

License

Revenue

Threshold

Description

Lite Beta

Up to $100K

Melodrive Lite Beta license comes with one license seat and aims to provide individuals and smaller companies with the opportunity to utilize the Melodrive SDK free of charge, for applications built on the Unity platform.  We provide this licensing option to grow the base of developers who engage with Melodrive and explore the capabilities of the Melodrive SDK on the Unity Platform. You may only use the Melodrive Lite Beta to release Applications up to a revenue limit of $100 000 (USD or currency conversion equivalent).  If you have generated revenue from Applications using Melodrive Lite Beta in the amount of $100 000 or more, you must upgrade to the Melodrive SDK Pro or Platform Licenses described below. If your total gross revenue from your Application integrating the Melodrive Lite Beta, then you will be required to upgrade to Melodrive Pro or Platform, or stop using the Melodrive SDK.

Indie

Up to $100K

Melodrive Indie is for smaller companies and teams generating gross revenue from applications integrating the Melodrive SDK of less than $100 000 (USD or equivalent) on any platform, or none. You may release Applications with your Melodrive Indie license up to a Revenue Limit of $100 000.  This means if your total gross revenue from your Application integrating the Melodrive SDK exceeds the Revenue Limit of $100 000, then you will be required to upgrade to Melodrive Pro or Platform, or stop using the Melodrive SDK.

Pro

$100K and above

Melodrive Pro is for businesses or teams and is also offered as a per-developer license, with a Fee required for each developer on a team or within a business who uses Melodrive Pro. We negotiate our pro licenses on a case-by-case basis.  We require a 12-Month minimum commitment for the Melodrive Pro subscription plan.  There is no revenue limit for use of Melodrive Pro.  If you think this is right for you, please contact us.

Platform

Case-by-case

Melodrive Platform is for large-scale deployments and platforms and we negotiate our Platform licenses on a case-by-case basis. This tier includes the usage of Melodrive that may enable the end user to create and or share music. If you think this is right for you, please contact us.

Education

Bona Fide Educational

Institutions

Melodrive Education is offered to bona fide educational institutions and comes with a number of seats as requested by the educational institution.  Melodrive Education is free and does not come with any minimum commitments or revenue limits.  You agree to submit any requested documentation to show proof of a bona fide educational institute.

During the term of this Agreement, you expressly acknowledge and agree that if you exceed the Revenue Thresholds delineated above, then you may no longer use that tier of the Program, and you must either: a) purchase a different Melodrive SDK License (if eligible), or b) destroy all copies of the Melodrive SDK in your possession or control, and cease distributing any Applications having Melodrive SDK integrated.

Grant of Limited License

  1. We do not sell the Melodrive SDK to you.  The Melodrive SDK is licensed to you as described in this Agreement, and Melodrive remains the owner of the Melodrive SDK and all Melodrive Materials at all times.  Subject to your complete and ongoing compliance with all the terms and conditions set forth in this Agreement, including without limitation all license limitations, payment of fees according to the revenue thresholds delineated herein, and any restrictions set forth herein, Melodrive grants you the following limited, non-exclusive, non-transferable, sublicensable, revocable licenses to:

  1. use, and (where applicable) authorize your employees to use, the Documentation internally solely in connection with developing your own branded applications that interoperate with the Melodrive SDK and Services ("Applications");

  1. incorporate unmodified Libraries into your Application, solely for the purpose of enabling interoperability with the Melodrive SDK and Services, solely in accordance with all applicable Documentation and applicable terms, to distribute Libraries so incorporated in your compliant Application to end users in executable form, always subject to a compliant Melodrive End User License Agreement (“Melodrive EULA” distributed as a .TXT file with the Melodrive SDK)

  1. Sublicense and redistribute the source, binary or object code of the Melodrive SDK in whole for no charge or as part of a for-charge Application, provided however that you may only license, sublicense or redistribute the Melodrive SDK in its entirety, and you must include with all such redistributed Melodrive SDK code a ‘splash page’ provided by Melodrive incorporating the Melodrive Logo and the following copyright notice “Copyright © Melodrive Inc.  All rights reserved.”

Restrictions

  1. By accessing or using the Melodrive SDK, you represent, warrant, and covenant that (a) you are a person or business entity engaged in the development of software applications, and (b) in the case of a business entity, you have the full power and authority to bind such entity to the terms of this Agreement. References to "you" herein shall refer to you, and/or the entity on whose behalf you are using the Melodrive SDK, and all individual users of the Melodrive SDK on behalf of such entity.

  1. You acknowledge that the foregoing license does not include any right to (i) redistribute, sell, lease, license, or modify any portion of the Melodrive SDK, or ( (ii) use or implement any undocumented feature or API, or use any documented feature or API other than in accordance with applicable documentation. You may not reproduce, distribute, publicly display, or publicly perform any part of the Melodrive SDK, except as provided herein or in the applicable license.

  1. You may not and may not allow any third party to (a) decompile, reverse engineer, disassemble or otherwise access or attempt to access the source code for the Melodrive SDK not made available to you in source code form, or make or attempt to make any modification to the SDK; or (b) remove, obscure, interfere with or circumvent any feature of the Melodrive SDK, including without limitation any copyright or other intellectual property notices, security, or access control mechanism; or (c) copy, sell, distribute, transfer, modify, adapt, translate, prepare derivative works from the Melodrive SDK and related materials or Service.

  1. You may not use the Melodrive SDK for any purpose other than the purposes for which for which the Melodrive SDK is expressly designed. If you are prohibited under applicable law from using the Melodrive SDK, you may not use them, and you will comply with all applicable laws and regulations (including without limitation laws and regulations related to export controls) in connection with your use of the Melodrive SDK. Without limiting the generality of the foregoing, you represent and warrant that the Melodrive SDK will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Melodrive SDK is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Crimea, Cuba, Iran, North Korea, Sudan, or Syria and that you are not otherwise prohibited under the Export Laws from receiving the Melodrive SDK. You may not use the Melodrive SDK for any purpose, or use the Melodrive SDK in the development of any Application that is for the purpose of lifesaving, emergency response, or otherwise for deployment in any circumstance in which failure would be likely to lead to property damage, environmental damage, personal injury, or death. ANY USE IN VIOLATION OF THE FOREGOING LIMITATIONS AND RESTRICTIONS IS STRICTLY PROHIBITED, AND UNLICENSED.

Reservation of Rights and Ownership

  1. Melodrive reserves all rights not expressly granted to you in this Agreement.  The Melodrive SDK is owned by Melodrive and licensed, not sold, to you. The Melodrive SDK, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the Melodrive SDK and related documentation (the "Melodrive Materials"), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and Melodrive, all Melodrive Materials and the Melodrive SDK, including intellectual property rights therein and thereto, are the sole and exclusive property of Melodrive or its subsidiaries or affiliated companies and/or its third-party licensors. You may not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or make any use of the Melodrive Materials except as expressly authorized hereunder. Melodrive reserves all rights not expressly granted in this Agreement. You do not acquire any right, title or interest to the Melodrive Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this Agreement.

Limitations on End User Rights

  1. When you distribute the Melodrive SDK as part of an application on any platform, you must ensure end-users and recipients, licensees and sublicensees of the Melodrive SDK are aware that they may only use the Melodrive SDK subject to the terms of this license, and such recipient, licensees and sublicensees agree to the terms of the Melodrive End User License Agreement (“Melodrive EULA”).  You shall not distribute any Application that interoperates with the Melodrive SDK unless and until any end user of the Application has expressly agreed to the terms of the Melodrive EULA attached hereto as Exhibit “A.”  The Melodrive SDK includes a “LICENSE” text file (the “License Notice”) and any Melodrive SDK distribution that you distribute must include a copy of this License with the License Notice.

Machine Data

  1. “Machine Data” means anonymized usage data collected by Melodrive under this Agreement such as location, device, device system time, CPU processing load, free RAM, number of running processes, network information (name, identifier), device identifier, firmware version, hardware version device type, audio volume, reboot, reboot cause, total storage and physical memory availability, power cycle count, and device up time and any other data collected by Melodrive. Notwithstanding anything else in this Agreement, all title and ownership rights in and to Machine Data are held by Melodrive.  In the event, and to the extent you are deemed to have any ownership rights in Machine Data, you hereby grant Melodrive a limited, revocable, non-exclusive right and license to use Machine Data.

Software Releases, Replacement, Modification and Upgrades

  1. Melodrive may, from time to time, replace, modify or update the Software.  Any such replacement or modified Software code or update to the Software will be considered part of the Software and subject to the terms of this Agreement (unless this Agreement is superseded by a further Agreement or EULA accompanying such replacement or modified version of or upgrade to the Software).

Assignment

  1. You may not assign this Agreement or any of your rights or obligations hereunder (by operation of law or otherwise) without the prior written consent of Melodrive. Melodrive may assign this Agreement and its rights and obligations without your consent. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties to it and their respective legal representatives, successors and permitted assigns.

Confidentiality

  1. The Melodrive SDK (including as embodied in or utilized by any Application) is the confidential and proprietary information of Melodrive, and you may not, during the term or thereafter, disclose them to any third party, or to use them for any purpose other than as expressly provided herein, without a separate written agreement with Melodrive authorizing you to do so. 

Termination

  1. This Agreement is effective until terminated. Your rights under this License will terminate automatically without notice from Melodrive if you fail to comply with any of the terms and conditions of this Agreement, and Melodrive may terminate this Agreement with you for any reason at Melodrive’s sole discretion. For clarity, if you have an application that incorporates the Melodrive SDK and your application has revenues over $100 000 US, you must enter into a Melodrive commercial license (either Melodrive Pro or Platform) and at that time and you are expected to contact us {http://melodrive.com/index.php#contact}.  
  2. Melodrive may terminate this Agreement among other ways by offering you a superseding Agreement or for any new release of the Melodrive SDK and conditioning your continued use of the Melodrive SDK or such new release on your acceptance of such superseding Agreement. Upon termination of this Agreement, you must cease all use of the Melodrive SDK and destroy all copies, full or partial, of the Software, Documentation and other materials provided under this agreement.

Survival

  1. Notwithstanding anything contrary herein, Section 11, Section 12, Section 13, Section 14, Section 15, Section 17, Section 18, Section 19 and Section 20 shall survive any Termination of this Agreement Section any termination of this agreement for any reason.

Disclaimer of Warranty

  1. UNLESS SEPARATELY STATED IN A WRITTEN EXPRESS LIMITED WARRANTY, ALL SOFTWARE PROVIDED BY MELODRIVE IS PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND FROM MELODRIVE, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO APPLICABLE LAW, MELODRIVE DISCLAIMS ALL WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR WORKMANLIKE EFFORT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY, LACK OF VIRUSES, NON INFRINGEMENT OF THIRD PARTY RIGHTS OR OTHER VIOLATION OF RIGHTS. MELODRIVE DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. TO THE EXTENT THAT THE SOFTWARE COVERED BY THIS EULA INCLUDES EMULATION LIBRARIES, SUCH EMULATION LIBRARIES DO NOT WORK 100% CORRECTLY OR COVER 100% OF THE FUNCTIONALITY BEING EMULATED, ARE OFFERED "AS IS" AND WITH ALL FAULTS, AND ALL THE DISCLAIMERS AND LIMITATIONS CONTAINED IN THIS PARAGRAPH AND THIS AGREEMENT APPLY TO SUCH EMULATION LIBRARIES. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MELODRIVE OR ITS AFFILIATES SHALL BE DEEMED TO ALTER THIS DISCLAIMER BY MELODRIVE OF WARRANTY REGARDING THE SOFTWARE, OR TO CREATE ANY WARRANTY OF ANY SORT FROM MELODRIVE.

Non-Blocking of Development

  1. You acknowledge that Melodrive is currently developing or may develop technologies and products in the future that have or may have design and/or functionality similar to products that you may develop based on your license herein.  Nothing in this Agreement shall impair, limit or curtail Melodrive’s right to continue with its development, maintenance and/or distribution of Melodrive’s technology or products.  You agree that you shall not assert in any way any patent owned by you arising out of or in connection with this Melodrive SDK or modifications made thereto against Melodrive, its subsidiaries or affiliates, or their customers, direct or indirect, agents and contractors for the manufacture, use, import, licensing, offer for sale or sale of any Melodrive products.

Third Party Applications and Open Source

  1. Certain third party applications may be included with, or downloaded with the Melodrive SDK. Melodrive makes no representations whatsoever about any of these applications. In particular, and without limitation, the Melodrive SDK may incorporate or include among others and with full license and authority the following third party software, components, languages or other assets (“third party applications”): Python, Music21, NLTK, STK and JUCE.    Melodrive makes no representations whatsoever about any third party applications. Since Melodrive has no control over such applications, you acknowledge and agree that Melodrive is not responsible for such applications. You expressly acknowledge and agree that use of third party applications is at the sole risk of You and that the entire risk of unsatisfactory quality, performance, accuracy and effort is with you. You agree that Melodrive shall not be responsible or liable, directly or indirectly, for any damage or loss, including but not limited to any damage to or loss of data, caused or alleged to be caused by, or in connection with, use of or reliance on any such third party content, products, or services available on or through any such application. You acknowledge and agree that the use of any third-party application is governed by such third party application provider's Terms of Use, License Agreement, Privacy Policy, or other such agreement and that any information or personal data You provide, whether knowingly or unknowingly, to such third party application provider, will be subject to such third party application provider's privacy policy, if such a policy exists. MELODRIVE DISCLAIMS ANY RESPONSIBILITY FOR ANY DISCLOSURE OF INFORMATION OR ANY OTHER PRACTICES OF ANY THIRD PARTY APPLICATION PROVIDER. MELODRIVE EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING WHETHER YOUR PERSONAL INFORMATION IS CAPTURED BY ANY THIRD PARTY APPLICATION PROVIDER OR THE USE TO WHICH SUCH PERSONAL INFORMATION MAY BE PUT BY SUCH THIRD PARTY APPLICATION PROVIDER.

 Limitation of Liability

  1. MELODRIVE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE USE OR THE INABILITY TO USE THE SOFTWARE OR ANY THIRD PARTY APPLICATION, ITS CONTENT OR FUNCTIONALITY, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FAILURE TO CONNECT, NETWORK CHARGES, IN-APP PURCHASES, AND ALL OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES EVEN IF MELODRIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING THE FOREGOING, MELODRIVE’S TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF YOUR USE OF THE SOFTWARE OR THIRD PARTY APPLICATIONS, OR ANY OTHER PROVISION OF THIS EULA, SHALL NOT EXCEED THE FAIR MARKET VALUE OF THE SOFTWARE OR AMOUNT PURCHASER PAID SPECIFICALLY FOR THE SOFTWARE. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

Indemnity

  1. To the maximum extent permitted by law, you agree to defend, indemnify, and hold Melodrive, its officers, directors, employees and agents, harmless from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with: (i) your access to or use of any of the Melodrive SDK and Services; (ii) Your Application and any content therein; or (iii) your violation of the Agreement or any other agreement or license with Melodrive.

General

  1. This Agreement will be governed by the laws of the State of California without reference to conflicts of laws principles. This Agreement is the entire agreement held between Us and supersedes any other communications or advertising with respect to the Melodrive SDK, Software and Documentation. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. The Melodrive SDK, Software and Documentation were developed by private expense and are deemed to be “commercial computer software” and “commercial software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Melodrive SDK, Software and Documentation by the U.S. Government shall be prohibited except to the extent expressly permitted by this License. Your use of the Software and Documentation may be governed by laws and regulations of the US, including, without limitation, those issued by the Department of Commerce and the Bureau of Export Administration, and you agree to comply fully with all such laws and regulations. Failure fully to comply with this Agreement, and any breach by you will result in automatic termination hereof and Melodrive reserves all rights to all legal and equitable remedies for all damages resulting therefrom.

  1. You acknowledge that, in the event you breach any provision of this Agreement, Melodrive will not have an adequate remedy in money or damages. Melodrive shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request without posting bond. Melodrive's right to obtain injunctive relief shall not limit its right to seek further remedies.

  1. No modification of this Agreement shall be binding on Melodrive unless it is in writing and is signed by an authorized representative of Melodrive.

Copyright © 2018 Melodrive Inc. All rights reserved.


Exhibit “A”

Melodrive End User License Agreement (“EULA”)

Last Updated: August 5, 2018

PLEASE READ THE FOLLOWING AGREEMENT TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING OR USING THE MELODRIVE DYNAMIC LIBRARY (“DL”). THESE TERMS AND CONDITIONS CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND MELODRIVE INC (“MELODRIVE”). BY USING THE MELODRIVE SDK, YOU ARE ACKNOWLEDGING AND AGREEING TO BE BOUND BY AND TO BECOMING A PARTY TO THIS END USER LICENSE AGREEMENT. IF YOU DO NOT OR CANNOT AGREE TO THIS AGREEMENT, THEN YOU ARE NOT PERMITTED TO PARTICIPATE IN THIS PROGRAM OR USE THE MELODRIVE SDK OR RELATED PRODUCTS AND SERVICES.

Purpose

This Agreement permits an End User (“You” or “End User”) to use and enjoy the Melodrive SDK, including Melodrive Software products (“Software”), documentation (“Documentation”) and services, with some specified limitations.

This Agreement is a binding legal agreement between You and Melodrive (hereinafter “Melodrive” or “Us”, “We”), for use of:

  1. The Melodrive Software Development Kit including any instrument assets, samples, synthesizers, musical themes, computer Software in object code form, associated modules, files, libraries, data, metadata, media, printed materials, and online or electronic Documentation, and any upgrades, modified versions, additions and copies of the Melodrive SDK licensed to You or embedded into an application you are using, by Melodrive (collectively, the “Melodrive SDK”).

By downloading, installing, copying or otherwise using the Melodrive SDK in any standalone or embedded application, You agree to be bound by the terms and conditions herein, including but not limited to all Disclaimers of Warranties and Limitations of Liability of this EULA.  If you do not agree to the terms of this Agreement, do not download, install, copy or otherwise use in any way the Melodrive SDK, including using any applications in which the Melodrive SDK is embedded.

Grant of License

  1. Melodrive hereby grants a personal, non-exclusive, non-transferable, non-assignable, non-sublicenseable license to You to use the Melodrive SDK subject to the terms and conditions of this Agreement.  You may use the Melodrive SDK only in the form and in the product(s) delivered to you, subject to the terms and conditions of this EULA.  You may install, use, and incorporate all or portions of Melodrive object code, available source code, runtime library files, and/or documentation files that may be included with the unmodified Software in any programs.  Any use of the Melodrive SDK outside of the conditions set forth herein is strictly prohibited and will be deemed a breach of this Agreement resulting in immediate termination of your License.  Melodrive will be entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession of all Software unless You are a Federal agency of the United States Government).

Reservation of Rights and Ownership

  1. Melodrive reserves all rights not expressly granted to you in this EULA. The Melodrive SDK is protected by copyright and other intellectual property laws and treaties. Except for the limited rights granted above, Melodrive and its suppliers retain all right, title and interest in and to the Melodrive SDK, Software and Documentation, including copyrights and other proprietary rights. Certain components of the Software are subject to open source and third party licenses.  As a condition of this EULA, you agree to comply with the open source and third party license terms. Unless required by applicable law, such components are provided on an ‘AS IS’ BASIS, WITHOUT EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND.

Limitations on End User Rights

  1. You shall not use, modify, reproduce, reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the Melodrive SDK (except to the extent that such limitations may not be prohibited by law), sublicense, or distribute the Software or Documentation other than as permitted by this License. You shall not remove any proprietary notices, labels or marks on the Melodrive SDK, Software or Documentation. No license is granted to any Melodrive trademarks.

Machine Data

  1. Machine Data” means anonymized usage data collected by Melodrive under this Agreement such as device, device system time, CPU processing load, free RAM, number of running processes, network information (name, identifier), device identifier, firmware version, hardware version device type, audio volume, reboot, reboot cause, total storage and physical memory availability, power cycle count, and device up time and any other data collected by Melodrive. Notwithstanding anything else in this Agreement, all title and ownership rights in and to Machine Data are held by Melodrive.  In the event, and to the extent you are deemed to have any ownership rights in Machine Data, you hereby grant Melodrive a limited, revocable, non-exclusive right and license to use Machine Data.

Software Releases, Replacement, Modification and Upgrades

  1. Melodrive may, from time to time, replace, modify or update the Software.  Any such replacement or modified Software code or update to the Software will be considered part of the Software and subject to the terms of this EULA (unless this EULA is superseded by a further EULA accompanying such replacement or modified version of or upgrade to the Software).

Assignment

  1. You may not assign this Agreement or any of your rights or obligations hereunder (by operation of law or otherwise) without the prior written consent of Melodrive. Melodrive may assign this Agreement and its rights and obligations without your consent. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties to it and their respective legal representatives, successors and permitted assigns.

Termination

  1. This EULA is effective until terminated. Your rights under this License will terminate automatically without notice from Melodrive if you fail to comply with any of the terms and conditions of this EULA.  Melodrive may terminate this Agreement by offering you a superseding Agreement for the Software or for any new release of the Software and conditioning your continued use of the Software or such new release on your acceptance of such superseding Agreement. Upon termination of this EULA, you must cease all use of the Software and destroy all copies, full or partial, of the Software.

Disclaimer of Warranty

  1. UNLESS SEPARATELY STATED IN A WRITTEN EXPRESS LIMITED WARRANTY, ALL SOFTWARE PROVIDED BY MELODRIVE IS PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND FROM MELODRIVE, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO APPLICABLE LAW, MELODRIVE DISCLAIMS ALL WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR WORKMANLIKE EFFORT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY, LACK OF VIRUSES, NON INFRINGEMENT OF THIRD PARTY RIGHTS OR OTHER VIOLATION OF RIGHTS. MELODRIVE DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. TO THE EXTENT THAT THE SOFTWARE COVERED BY THIS EULA INCLUDES EMULATION LIBRARIES, SUCH EMULATION LIBRARIES DO NOT WORK 100% CORRECTLY OR COVER 100% OF THE FUNCTIONALITY BEING EMULATED, ARE OFFERED "AS IS" AND WITH ALL FAULTS, AND ALL THE DISCLAIMERS AND LIMITATIONS CONTAINED IN THIS PARAGRAPH AND THIS AGREEMENT APPLY TO SUCH EMULATION LIBRARIES. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MELODRIVE OR ITS AFFILIATES SHALL BE DEEMED TO ALTER THIS DISCLAIMER BY MELODRIVE OF WARRANTY REGARDING THE SOFTWARE, OR TO CREATE ANY WARRANTY OF ANY SORT FROM MELODRIVE.

Non-Blocking of Development

  1. You acknowledge that Melodrive is currently developing or may develop technologies and products in the future that have or may have design and/or functionality similar to products that you may develop based on your license herein.  Nothing in this EULA shall impair, limit or curtail Melodrive’s right to continue with its development, maintenance and/or distribution of Melodrive’s technology or products.  You agree that you shall not assert in any way any patent owned by you arising out of or in connection with this DL or modifications made thereto against Melodrive, its subsidiaries or affiliates, or their customers, direct or indirect, agents and contractors for the manufacture, use, import, licensing, offer for sale or sale of any Melodrive products.

Third Party Applications and Open Source

  1.  Certain third party applications may be included with, or downloaded with this Software. Melodrive makes no representations whatsoever about any of these applications. In particular, and without limitation, the Melodrive SDK may incorporate or include among others and with full license and authority the following third party software, components, languages or other assets (“third party applications”): Python, Music21, NLTK, STK and JUCE.  Since Melodrive has no control over such applications, you acknowledge and agree that Melodrive is not responsible for such applications. You expressly acknowledge and agree that use of third party applications is at your sole risk and that the entire risk of unsatisfactory quality, performance, accuracy and effort is with you. You agree that Melodrive shall not be responsible or liable, directly or indirectly, for any damage or loss, including but not limited to any damage to or loss of data, caused or alleged to be caused by, or in connection with, use of or reliance on any such third party content, products, or services available on or through any such application. You acknowledge and agree that the use of any third-party application is governed by such third party application provider's Terms of Use, License Agreement, Privacy Policy, or other such agreement and that any information or personal data you provide, whether knowingly or unknowingly, to such third-party application provider, will be subject to such third party application provider's privacy policy, if such a policy exists. MELODRIVE DISCLAIMS ANY RESPONSIBILITY FOR ANY DISCLOSURE OF INFORMATION OR ANY OTHER PRACTICES OF ANY THIRD PARTY APPLICATION PROVIDER. MELODRIVE EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING WHETHER YOUR PERSONAL INFORMATION IS CAPTURED BY ANY THIRD PARTY APPLICATION PROVIDER OR THE USE TO WHICH SUCH PERSONAL INFORMATION MAY BE PUT BY SUCH THIRD PARTY APPLICATION PROVIDER. 

Limitation of Liability

  1. MELODRIVE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE USE OR THE INABILITY TO USE THE SOFTWARE OR ANY THIRD PARTY APPLICATION, ITS CONTENT OR FUNCTIONALITY, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FAILURE TO CONNECT, NETWORK CHARGES, IN-APP PURCHASES, AND ALL OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES EVEN IF MELODRIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING THE FOREGOING, MELODRIVE’S TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF YOUR USE OF THE SOFTWARE OR THIRD PARTY APPLICATIONS, OR ANY OTHER PROVISION OF THIS EULA, SHALL NOT EXCEED THE FAIR MARKET VALUE OF THE SOFTWARE OR AMOUNT PURCHASER PAID SPECIFICALLY FOR THE SOFTWARE. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

General

  1. This Agreement will be governed by the laws of the State of California without reference to conflicts of laws principles. This Agreement is the entire agreement held between Us and supersedes any other communications or advertising with respect to the Melodrive SDK, Software and Documentation. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. The Melodrive SDK, Software and Documentation were developed by private expense and are deemed to be “commercial computer software” and “commercial software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Melodrive SDK, Software and Documentation by the U.S. Government shall be prohibited except to the extent expressly permitted by this License. Your use of the Software and Documentation may be governed by laws and regulations of the US, including, without limitation, those issued by the Department of Commerce and the Bureau of Export Administration, and you agree to comply fully with all such laws and regulations. Failure fully to comply with this EULA, and any breach by you will result in automatic termination hereof and Melodrive reserves all rights to all legal and equitable remedies for all damages resulting therefrom.

  1. You acknowledge that, in the event you breach any provision of this Agreement, Melodrive will not have an adequate remedy in money or damages. Melodrive shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request without posting bond. Melodrive's right to obtain injunctive relief shall not limit its right to seek further remedies.

  1. No modification of this Agreement shall be binding on Melodrive unless it is in writing and is signed by an authorized representative of Melodrive.

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