BY “ACCEPTING” THIS AGREEMENT, YOU, THE CLIENT, AGREE TO SERVICES OFFERED BY WAVES AUDIO LTD. (“WAVES”) UNDER THE TERMS AND CONDITIONS HEREUNDER. AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY REPRESENTS THAT S/HE HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY.
Services offered by Waves hereunder shall be with regard to unmodified portions of the Tracks Live software (“Tracks Live”), and only to the extent problems can be recreated in the specified operating environment. The Services shall cover:
- Defect correction information, a restriction, or a bypass;
- Tracks Live Updates: periodic releases of collections of code corrections, fixes, functional enhancements and new versions and releases of the Tracks Live software and documentation; and
Technical Assistance: a reasonable amount of remote assistance via telephone or electronically to address suspected defects in Tracks Live.
- Available during technical support hours.
- Proactive solutions, videos, and more are published on the Waves® website. Client technical issues will receive priority for bug fixes, and requests will have priority when designing new features. Client will have available support for OS updates.
Services do not include assistance for:
- The design and development of applications;
- Client’s use of Tracks Live in environments other than its specified operating environment; or
- Failures caused by products for which Waves is not responsible under this Agreement.
Assistance from Client
Client may provide WAVES access to Client information, systems, and software (“Client Information”), and resources reasonably required by WAVES in order to provide the Services. Client understands and agrees that (a) the completeness, accuracy, and extent of access to any Client Information provided to WAVES may affect WAVES's ability to provide Services, and that Waves’ provision of the Services is conditional upon such access. Client will obtain any third-party consents necessary to grant WAVES access to the Client Information that is subject to the proprietary rights of, or controlled by, any third party, or which is subject to any other form of restriction upon disclosure.
- Fees and Expenses. Client will pay fees (the “Fees”) on an annual basis, for the following year. Any renewal of Services will be at the price then charged by WAVES.
- Client will pay Fees and expenses, if any, no later than thirty (30) days from the date of any issued invoice. WAVES reserves the right to suspend or cancel performance of all or part of the Services if actual payment has not been received within thirty (30) days of the invoice date.
- Taxes. All Fees are exclusive of Taxes. Client will pay WAVES an amount equal to any Taxes arising from or relating to this Agreement which are paid by or are payable by WAVES. “Taxes” means any form of sales, use, value added or other form of taxation and any fines, penalties, surcharges or interest, but excluding any taxes based solely on the net income of WAVES. If Client is required to withhold or deduct any portion of the payments due to WAVES, Client will increase the sum payable to WAVES by the amount necessary so that WAVES receives an amount equal to the sum it would have received had Client made no withholdings or deductions.
Term and Termination
The term of this Agreement will begin on the Effective Date and will terminate upon the one- (1) year anniversary of the Effective Date, unless renewed for one additional year by payment of annual Fee, as set forth above.
Limitation of Liability
For all events and circumstances, waves and its affiliates' aggregate and cumulative liability arising out of or relating to this agreement, including without limitation on account of performance or non-performance of obligations, regardless of the form of the cause of action, whether in contract, tort (including, without limitation, negligence), statute or otherwise, will be limited to direct damages and will not exceed the fee received by WAVES from the Client during the twelve (12) months immediately preceding the event giving rise to liability.
Disclaimer of Damages. Notwithstanding anything to the contrary contained in this agreement, in no event will WAVES or its affiliates be liable to the Client or its affiliates for any direct or indirect damages including, without limitation: any incidental, consequential, special, indirect, exemplary or punitive damages, whether arising in tort, contract, or otherwise; or any damages arising out of or in connection with any malfunctions, regulatory non-compliance, delays, loss of data, lost profits, lost savings, interruption of service, loss of business or anticipatory profits, even if WAVES or its affiliates have been advised of the possibility of such damages. Liability for these damages will be limited and excluded even if any exclusive remedy provided for in this agreement fails of its essential purpose.
- The parties agree that (i) Confidential Information will be used only in accordance with the terms and conditions of this Agreement; (ii) each will use the same degree of care it utilizes to protect its own Confidential Information, but in no event less than reasonable care; and (iii) the Confidential Information may be disclosed only to employees, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under obligation to keep such information confidential. Obligations of confidentiality will exist for a period of ten (10) years following initial disclosure of the particular Confidential Information. “Confidential Information” means all information disclosed by either WAVES or Client (“Disclosing Party”) to the other party (“Recipient”) other than information which: (i) is or later becomes publicly available without breach of this Agreement, or is disclosed by the Disclosing Party without obligation of confidentiality; (ii) is known to the Recipient at the time of disclosure by the Disclosing Party; (iii) is independently developed by the Recipient without use of the Confidential Information; (iv) becomes lawfully known or available to the Recipient without restriction from a source having the lawful right to disclose the information; (v) is generally known or easily ascertainable by parties of ordinary skill in the business of the Recipient; or (vi) is software code in either object code or source code form that is licensed under an open source license. The Recipient will not be prohibited from complying with disclosure mandated by applicable law if, where reasonably practicable and without breaching any legal or regulatory requirement, it gives the Disclosing Party advance notice of the disclosure requirement.
- Continuing Business. Nothing in this Agreement will preclude or limit WAVES from providing software, materials, or services for itself or other clients, irrespective of the possible similarity of such software, materials or services to those that might be delivered to the Client. The terms of confidentiality will not prohibit or restrict either party's right to develop, use or market products or services similar to or competitive with the other party.
Representations and Warranties
- General Representations and Warranties. WAVES and the Client represent and warrant to each other that each has the authority to enter into this Agreement.
- The services are provided by WAVES “as is” and without warranties or conditions of any kind, including the implied warranties of merchantability, non-infringement, and fitness for a particular purpose. WAVES does not guarantee or warrant that the use of the services will be uninterrupted, comply with regulatory requirements, or be error-free, or that WAVES will correct all errors. If WAVES cannot substantially provide the services in a commercially reasonable manner, the Client's exclusive remedy, and WAVES' entire liability, will be that the Client may terminate the service and receive a pro rata refund of the fees paid for the deficient services as of the effective date of termination.
Governing Law/Consent to Jurisdiction
Any disputes under this Agreement that cannot be amicably resolved will be governed by and construed in accordance with the laws of the state of Israel, under the sole and exclusive jurisdiction of the competent court in Tel Aviv, Israel.
- Notices. Notices will be deemed given when delivered by hand or five (5) days after being sent using a method that provides for positive confirmation of delivery to the respective email addresses or facsimile numbers of the other party.
- Assignment. This Agreement shall not be deemed to grant any person or entity, other than WAVES and the Client, any right, benefit or remedy of any nature whatsoever. This Agreement is assignable by WAVES to an Affiliate, and pursuant to a merger or a sale of all or substantially all of WAVES’ assets.
- Force Majeure. Neither party will be liable for nonperformance or delays caused by acts of God, wars, riots, strikes, fires, floods, hurricanes, earthquakes, government restrictions, terrorist acts or other causes beyond its reasonable control.
- Headings. All headings contained in this Agreement are inserted for identification and convenience and will not be deemed part of this Agreement for purposes of interpretation.
- Severability. If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement.
- Waiver. The delay or failure of either party to exercise any rights under this Agreement will not constitute or be deemed a waiver or forfeiture of such rights. No waiver will be valid unless in writing and signed by an authorized representative of the party against whom such waiver is sought to be enforced.
- Amendment. This Agreement may not be amended or modified except in a writing signed by the parties.