Samples Library – Terms of Use

Effective Date: 07/11/2022

Last updated: 07/11/2022

IMPORTANT: THIS TERMS OF USE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (THE “LICENSEE” OR “YOU”) AND THE LICENSOR – WAVES AUDIO LTD. (“WAVES”). USE OF THE SAMPLES LIBRARY (“THE SAMPLES”)CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT AND YOUR CONSENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT. READ IT CAREFULLY BEFORE USING THE SAMPLES. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SAMPLES.

Introduction and Eligibility

Please read these Terms carefully before using the Samples. Your use of the Samples may be subject to additional terms for specific Waves products, including, without limitation, the WAVES AUDIO SOFTWARE END USER LICENSE AGREEMENT ("Supplemental Terms"). Without limiting the foregoing, certain materials, parts or components of the Samples may be subject to license terms and conditions that are different from those set forth herein – including third party license terms and conditions. By using the Samples, you agree to be bound by and comply with such Supplemental Terms.

If any provision in these Terms is inconsistent with any provision in the Supplemental Terms, the provision in the Supplemental Terms shall prevail. The Terms and any applicable Supplemental Terms as and to the extent that they apply to the Samples are hereinafter referred to herein as the "Agreement."

1. Revisions to the Agreement. WAVES RESERVE THE RIGHT TO CHANGE THE AGREEMENT AT ANY TIME, AT WAVES’ SOLE DISCRETION. PLEASE CHECK THESE TERMS PERIODICALLY FOR CHANGES. When changes are made, Waves will make a new copy of the Agreement available on its website or through its products. Any changes to the Agreement will be effective immediately for new users of the Samples and on the stated Effective Date for existing users (collectively, "Users"). Waves may require you to consent to the updated Agreement in a specified manner before further use of the Samples is permitted. In the event you do not agree to any change(s) after receiving such notice thereof, you must stop using the Samples. Otherwise, your continued use of the Samples constitutes your acceptance of such change(s).
2. General. The Samples are licensed, not sold, to you. The Samples are intended for your own personal use, to perform and enhance music creation. The Samples are licensed to you for the limited purpose provided herein. The Samples are protected by intellectual property and other laws and are the property of Waves or its third-party licensors. Waves reserves all rights to the Samples not granted expressly in these Terms.
3. Your Use of the Samples. Unless otherwise expressly authorized by Waves in writing, including within the Samples, Waves authorize you, subject to this Agreement, to access and use the Samples solely for your own personal purposes. Any other use is expressly prohibited
4. New Recordings. Subject your compliance with the Agreement Waves grant you a non-exclusive, non-transferable, perpetual right to use the Samples in combination with other sounds in music productions to create new recordings (each a "New Recording"). This means that you may modify, reproduce, publicly perform, distribute, transmit, communicate to the public, sublicense and otherwise use the Samples as embodied in a New Recording, including for commercial purposes, except as prohibited herein.
5. Prohibited Uses. Notwithstanding anything to the contrary, you may not (a) sublicense the Samples in isolation as sound effects, loops, or as source material for any other form of sample (even if you modify the Samples ), (b) use or sublicense the Samples in a manner competitive to Waves or its licensors, (c) sublicense, sell, loan, share, lend, broadcast, rent, lease, assign, distribute, or transfer any Samples to a third party except as incorporated into a New Recording, or (d) redistribute the Samples (in isolation or in a package).
6. Unoriginal Samples. We make an effort to ensure that all Samples provided to us by third parties are original. If Waves learns that a Sample previously provided to you was not original, or Waves has reason to believe that the Samples is not original, Waves reserves the right to remove and may remove the relevant Sample or otherwise block or prevent you from using such Sample – with or without prior notification. If you have reason to believe that a Sample you obtained from Waves is not original (including if you believe that you are the owner of the intellectual property to such Sample), please contact Waves without delay.
7. Certain Restrictions. You must use the Samples in compliance with all privacy, data protection, intellectual property, and other applicable laws. In using the Samples, you shall not:
   7.1. License, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Samples without Waves’ express written consent;
   7.2. Use the Samples in an illegal way or in connection with any illegal activity or in violation of any applicable law or that otherwise results in fines, penalties, and other liability to us or others;
   7.3. Violate, or encourage others to violate, any right of a third party (including by infringing or misappropriating any third-party intellectual property right);
   7.4. Remove or destroy any copyright notices or other proprietary markings contained on or in the Samples or provided with or in connection with the Samples;
   7.5. Assist or permit any persons in engaging in any of the activities described above.
8. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Samples ("Feedback"), then you grant Waves an unrestricted, perpetual, irrevocable, non-exclusive, worldwide, fully-paid, royalty-free, fully transferable and sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit the Feedback in any manner and for any purpose, including to improve the Samples and create other products and services. You acknowledge that your submission of Feedback is at your own risk and that Waves has no obligations (including, without limitation, obligations of confidentiality, credit or payment) with respect to such Feedback.
9. Fees and Payment. You acknowledge and agree that your ability to use the Samples is subject to the payment of all fees due to Waves from you in connection with the Samples or any other Waves product or service.
   
   DISCLAIMER OF WARRANTIES. TO THE FULLEST EXTENT PERMITTED BY LAW, (A) THE SAMPLES ARE PROVIDED BY WAVES "AS IS" AND ON AN "AS AVAILABLE" BASIS AND (B) WAVES DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. WAVES DOES NOT WARRANT THAT AVAILABILITY OF THE SAMPLES WILL BE CONTINUED, UNINTERRUPTED, TIMELY, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, THAT ANY OF THOSE ISSUES WILL BE CORRECTED, OR THAT THE RESULTS OBTAINED FROM USE OF THE SAMPLES WILL BE ACCURATE, RELIABLE OR SATISFACTORY. ANY USE OF THE SAMPLES BY YOU IS AT YOUR OWN RISK OR ANY OTHER DAMAGE OR LOSS THAT RESULTS FROM ACCESSING THE SAMPLES
10. NO LIABILITY FOR CONDUCT OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT WAVES IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD WAVES LIABLE OR RESPONSIBE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING THIRD PARTY SERVICE PROVIDERS FROM WHOM WAVES MAY HAVE OBTAINED SAMPLES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU
11. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL WAVES, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, PARTNERS, AND LICENSORS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SAMPLES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WAVES HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF WAVES FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE THE SAMPLES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE LOWER OF: (A) US$ 100; OR (B) THE AMOUNTS YOU HAVE PAID TO WAVES FOR YOUR RIGHT TO USE THE SAMPLES, IF ANY, DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE OF YOUR CLAIM AGAINST WAVES.
12. Indemnification. To the fullest extent permitted by law, you are responsible for your use of the Samples, and you will indemnify and hold Waves, its affiliates, officers, employees, agents, service providers, partners, and licensors harmless from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Samples; (b) your violation of any portion of the Agreement, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you will cooperate with our defense of those claims.
13. Termination. If you violate any provision of this Agreement, Waves may, at its sole discretion, terminate this Agreement, suspend or terminate your access to the Samples. You may terminate this Agreement at any time by providing Waves with a written notice to that effect. Termination of this Agreement would mean the automatic and immediate termination of your right to use the Samples and may require the removal of access to the Samples and barring further use of the Samples. All provisions of the Agreement which by their nature should survive, shall survive termination of your right to use the Samples, including, without limitation, ownership provisions, warranty disclaimers, and limitation of liability
14. Governing Law/Jurisdiction and Arbitration. This Agreement will be governed by and construed in accordance with the laws of the State of New York without regard to its conflicts of laws principles and specifically will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, or the Uniform Computer Information Transactions Act (UCITA). Any cause of action or claim you might have with respect to the Samples or otherwise under this Agreement must be commenced within one (1) year after such claim or cause of action arises or shall be deemed waived. Except with respect to the protection and enforcement of WAVES’ (and its third-party licensors’) intellectual property rights and its rights to seek and/or obtain injunctive or equitable relief, any claim, cause of action, or proceeding arising out of or relating to this Agreement or the Samples shall be resolved by mandatory, binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA"). The arbitration shall be conducted in New York, New York, and the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision.
    
    EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY AND ALL RIGHTS TO BRING OR PARTICIPATE IN A CLASS ACTION OR MULTI-PARTY ACTION IN ANY ACTION, PROCEEDING, OR COUNTER-CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT. ALL CLAIMS AND DISPUTES ARISING OUT OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS.
15. Electronic Communications. The communications between you and Waves may take place via electronic means, whether you visit Waves’ website or send Waves e-mails, or whether Waves posts notices on the Waves’ website or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Waves in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Waves provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.
16. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Waves prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17. Force Majeure. Waves shall not be liable for any delay or failure to perform resulting from any event or circumstance, regardless of whether it was foreseeable, that was not caused by Waves and that prevents Waves from complying with any of its obligations under the Agreement.
18. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Samples, please contact us at the mailing or email address found at the end of these Terms. We will do our best to address your concerns.
19. Exclusive Venue. To the extent the parties are permitted under the Agreement to initiate litigation in a court, both you and Waves agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the State of New York.
20. Notices. Where Waves requires that you provide an e-mail address, you are responsible for providing Waves with your most current e-mail address. In the event that the last e-mail address you provided to Waves is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Waves dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Waves at the address below. Such notice shall be deemed given when received by Waves by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address. Waves hereby provides address and contact details, to which any of your questions, complaints, or claims with respect to the Samples should be directed:
    
    Waves Inc. 2800 Merchant Drive, Knoxville TN USA 37912
    
    Phone: +1-865-909-9200 ext. 2; Fax: +1-865-909-924
    
    Contact by Email: Contact information
21. Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
22. Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
23. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.