END USER LICENSE AGREEMENT FOR WHISPER AUDIO AUDIO CONTENT
IMPORTANT-READ CAREFULLY: This End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Whisper Audio, and indicates the terms under which you may utilize the licensed Audio Content which includes the following: (i) sound effects, (ii) music, (iii) songs, (iv) voice over recordings, (v) any other audio recording, and (v) any printed, "online" or electronic documentation ("The Files"). By purchasing a license, to copy and otherwise use The Files, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, a) do not use The Files and b) do not purchase the License to use The Files. The Files are protected by intellectual property laws and treaties as well as Copyright laws and international copyright treaties. The Files are licensed, not sold, and the rights granted herein are validated by proof of purchase. The rights granted in this License are non-transferable, and all rights not expressly granted to you hereunder are reserved by Whisper Audio.
1. GRANT OF LICENSE. Whisper Audio grants to you, the limited, non-exclusive world-wide right to use The Files according to one (not all) of the definitions below – specifically, the definition which matches the fee you chose when you purchased the License.
i) General (Personal / Non-broadcast)
The right to use the Files for private, non-broadcast, non-commercial use; only a) in a non-commercial production, b) when the production in question will be for private demonstration only (not for broadcast) and c) when the Files constitute a secondary element, synchronised with another primary media element (eg. text, animation, other sound etc). For example:
eg i. Powerpoint. The right to use the Files within a Powerpoint presentation.
eg ii. Internal video. The right to use the Files within an internal video (one that will be shown in a private, non-broadcast setting, for example to company employees).
eg iii. Ring Tone. The right to use The Files as a personal ring tone. The Files cannot be used on more than one telephone, or sold / re-licensed as a commercial ring tone or ring back without an additional license from Whisper Audio.
eg iv. Email Client Notifications. The right to use The Files within your email client (eg Microsoft Outlook) on your local computer (and only that one computer).
ii) Web site
The right to use The Files within a personal or commercial web site but only in combination with text, animation, images or other visual/audio media content, so that The Files are used in a secondary/subsidiary role and are not the main content of the web site; provided, however, that neither The Files nor any portion thereof may be resold or redistributed.
iii) Game / Software (Web / Download)
The right to use The Files within a software program or game; provided that (i) The Files are synchronized within the software; and (ii) without an additional license from Whisper Audio, The Files cannot be used (a) in commercial software whose primary purpose is to play back audio in a standalone manner that is not time-synchronized with a moving visual image, or where the sole intent of the sounds is to create an audible "alarm" for the end user (e.g. “You’ve got mail” notification, alarm clock software, etc), (b) as part of a media authoring service or application library (including but not limited to automated html template authoring service or application, instant messaging application, Flash authoring service or application. Notwithstanding the foregoing, personal, non-commercial use of the sort described in this paragraph is permitted and does not require an additional license.
The right to use The Files in radio broadcast productions (cable and terrestrial ), but only when synchronised with other audio elements (e.g., The Files can be background music or a “bed” or “underscore” but cannot be used as the primary element in a radio broadcast). This license does not include performance rights. Either ASCAP or BMI license and administer the performance rights to The Files. As a licensee of The Files, it is your responsibility to abide by all the applicable ASCAP and BMI rules and regulations regarding timely cue sheet submissions, including proper logging of stations, networks and air dates – and you must do so.
The right to use The Files in local, regional, national, and international television (terrestrial and cable) including commercials, programs, PSAs, Infomercials, and Jingles. However, the Files may only be used in synchronization with other visual media within the broadcast production (not on their own). This license does not relate to performance rights. If you License the Files for TV/Cable, you must fill in and submit the appropriate ASCAP and BMI cue sheets in a timely fashion. If The Files are used in a commercial television spot, you will send a digital copy of the spot to Whisper Audio, so that we can submit it to the appropriate performing rights society.
The right to incorporate The Files into an audio recording and to reproduce copies of that audio recording in a downloadable digital audio file format (eg. WAV, MP3, WMA) or other similar format; provided, however, that The Files are only used synchronised with other non-audio media elements, and may never be used as a solo or featured element (e.g., The Files can serve as an "underscore," or "bed" for a vocal dialogue within a Podcast, but it cannot be either a) the dominant or unique media within a Podcast, or b) combined with other audio for commercial exploitation of that Podcast.
vii) Broadcast (Other)
The right to use the Files within a media production which is broadcast through a medium other than television, cable, radio or the internet. For example, at a live outdoor public event, within a public restaurant/supermarket, within the carriages of a train, etc. As with other broadcast mediums, however, it is the Licensees responsibility to fulfil their obligations with regards to completing the necessary performance rights rules and regulations (which are not covered by this license).
viii) Film, Indie/Short
The right to use the Files in video productions running up to 40 minutes in length, including but not limited to short films, videos, DVDs, and digital video productions (including on PC and console machines).
ix) Film, Feature
The right to use the Files in Feature-length films (usually forty minutes’ length or longer, made for initial distribution in movie-theaters and being the "main attraction" of the screening (as opposed to any short films which may be screened before it). Also for the subsequent release of such a production onto video, DVD, and digital video format (including on PC and console machines).
x) Product for Resale <5k units
The right to use the Files within an audio or video production which will accompany the distribution of a good or service which will be resold. However: a) the audio or video production must be secondary to the re-sold good or service, not its principle aspect; and b) the Files must constitute a secondary element, synchronised with another primary media element (eg. narrative voice over or on-screen text). The good or service must be limited to not more than five thousand units.
xi) Product for Resale <100k units
As clause 1x (above) with the one difference that the good or service must be limited to not more than one hundred thousand units.
xii) Product for Resale <500k units
As clause 1x (above) with the one difference that the good or service must be limited to not more than five hundred thousand units.
xiii) Product for Resale, Unlimited
As clause 1x (above) with the one difference that the production run of the good or service is unlimited.
xiv) All Media
The right to use the Files in each of the licensed uses listed in all of the clauses from 1.i. through to 1.xiv.
2. TERM. The rights in this EULA are granted to you for ninety-nine years from the date you contracted with Whisper Audio.
3. EDITING AND LOOPING. Within the limitations of the permitted uses listed in Section 1 above and subject to the terms within this agreement, you may copy sections of The Files and edit and/or loop each such section to increase its length for creative, technical, or timing purposes.
4. THE FILES OWNERSHIP. When you purchase the License, you do not purchase ownership of the Files or their constituent material. Regardless of the media (eg. laptop computer, Sony Minidisk, etc) in which the Files may exist The Files remain the property of Whisper Audio and except as provided for by this agreement, may not be copied, reproduced, published, uploaded, posted, transmitted, or distributed in any way, without Whisper Audio's prior written permission.
5. COPYRIGHT. The Files and their constituent audio material are protected by copyright laws and international treaty provisions. All copies of The Files are owned by Whisper Audio. You may make copies only as provided for in this EULA. You may not copy the printed materials accompanying The Files.
6. RESTRICTIONS ON USE.
Within the limitations of the permitted uses listed in Section 1 above and subject to the terms within this agreement, you may not do the following:
(i) electronically transfer The Files, or make The Files available to multiple computers over a network system;
(ii) distribute copies of The Files or accompanying materials to others;
(iii) embed THE FILES in any hardware as a stand alone element without an additional license from Whisper Audio; or
(iv) combine (modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works from) the Files with other audio elements to create a separate derivative audio composition on which you claim a separate copyright (eg. you are not allowed to combine The Files with other audio and claim copyright to that new audio composition on which you would license separate performance rights, etc).
(v) make the Files available through any medium whatsoever as a separate file or stream, or make available any audio or visual production from which the Production could be extracted or downloaded as a separate file or stream.
7. TRANSFER RESTRICTIONS. Within the limitations of the permitted uses listed in Section 1 above and subject to the terms within this agreement, you shall not sell, rent, lease, give away, sublicense, assign or otherwise transfer The Files to another party without prior written consent of Whisper Audio.
8. TERMINATION. Without prejudice to any other rights, Whisper Audio may terminate this EULA if Whisper Audio deems (in its sole discretion) that you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of The Files and any constituent audio material which you may have extracted from the Files.
9. WARRANTY. Whisper Audio warrants that it is permitted to grant the rights set forth herein. Whisper Audio expressly disclaims any other warranty on The Files. The Files and any related documentation is provided "as is" without warranty or condition of any kind, either express or implied, including, without limitation, the implied warranties and conditions of merchantability, or fitness for a particular purpose, and except to the extent of the specific warranty above, the entire risk arising out of use or performance of The Files remains with you.
10. INDEMNIFICATION. You acknowledge that the Files which Whisper Audio licenses to you under this Agreement are, in turn, licensed to Whisper Audio by third party Artists, who have signed Whisper Audio’s Artist License Agreement (the “ALA”). The ALA contains clauses in which the Artist warrants that they own the copyrights to their submitted material. However, it is possible that an Artist may make false statements in the ALA. Whisper Audio does not take responsibility for any such false statements which an Artist might make in the ALA. Consequently, you agree:
a) that Whisper Audio has taken all reasonable steps to warrant the Files copyright.
b) that notwithstanding any rights you may have to pursue the licensor of such Content at law, Whisper Audio shall have no liability to you or any person claiming through you for any breach of copyright.
If any of the Files are finally adjudged to so infringe copyright law, or in Whisper Audio's opinion is likely to become the subject of such a claim, Whisper Audio may:
c) assist you by providing all necessary information relating to the Artist concerned, to the authority conducting the investigation.
d) at its option, either: (i) procure for you the right to continue using The Files, (ii) modify or replace The Files to make it non-infringing, or (iii) refund the fee paid, less reasonable depreciation, upon return of The Files.
Whisper Audio has no liability regarding any claim arising out of: (i) use of The Files in combination with non-Whisper Audio software, data or equipment if the infringement was caused by such use or combination, or (ii) any modification or derivation of The Files not specifically authorized in writing by Whisper Audio. The foregoing states the entire liability of Whisper Audio and your exclusive remedy relating to infringement or claims of infringement of any copyright or other proprietary right by The Files.
11. LIABILITY FOR DAMAGES. Except as provided above, neither Whisper Audio nor its suppliers are liable for any 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 any Whisper Audio product, even if Whisper Audio has been advised of the possibility of such damages. Except as provided in Paragraph 9 above, Whisper Audio's entire liability under any provision of this License is limited to the greater of the amount you actually paid for The Files or U.S. $5.00. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
12. GOVERNING LAW. The invalidity of any provision of this license agreement as determined by a court of competent jurisdiction shall in no way invalidate any other provision hereof. This agreement will be governed and interpreted in accordance with the laws of England. Disputes arising here from shall be exclusively subject to the jurisdiction of the courts of England.