NOTICE TO USER:
YOU AGREE THAT BY CLICKING “I CONFIRM I HAVE READ AND AGREE TO THE THESE TERMS AND CONDITIONS”, THIS AGREEMENT WILL BECOME A VALID, LEGALLY BINDING AND ENFORCEABLE AGREEMENT AS IF SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT CLICK “I CONFIRM I HAVE READ AND AGREE TO THESE TERMS AND CONDITIONS”. BY USING ALL OR ANY PART OF THE SOFTWARE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AS SET OUT BELOW.
END USER LICENCE AGREEMENT
1.1 The following definitions shall apply, unless the context otherwise requires:
“Agreement” means the terms and conditions under which you are being granted a licence to use the Software and the Documentation and any other services as set out herein;
“Computer” means the laptop, desktop personal computer or mobile device that you use;
“Data” means any programs, data or other information accessed from the musicmetric Server;
“Documentation” means materials, in whatever form supplied, relating to how to use the Software;
“Intellectual Property” means all vested, contingent and future intellectual property rights including but not limited to copyright, trademarks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up, database rights and any applications for the protection or registration of these rights and all renewals and extensions thereof existing in any part of the world, whether now known or in the future created, to which Semetric may be entitled;
“musicmetric Server” means the computer system, owned by Semetric, supplied by an Internet Service Provider or supplied by another third party and used to provide the Service, the Semetric website and other ancillary functions;
“Service” means the suite of analysis tools, data feeds or API’s supplied by Semetric; and
“Software” means the computer program and all of the content of the files or other media provided therewith, including but not limited to: (i) relevant third party software or data; (ii) fonts; and (iii) upgrades, modified versions, updates, additions, if any, supplied and licensed to you by Semetric to enable access to the analysis generated by Semetric.
2.1 Semetric Limited, trading as musicmetric (“Semetric”) grants you a non-exclusive, non-transferrable single-user licence on the terms of this Agreement to:
(a) download the Software and use it on only one Computer at any one time (unless otherwise stated);
(b) transfer the Software from one Computer to another provided it is used on only one Computer at any one time;
(c) log into the Software and access the Services provided by Semetric for your subscription. A maximum of one simultaneous login per named user is permitted (unless otherwise stated); and
(d) use the Documentation in connection with the permitted use of the Software.
2.2 You are not permitted:
(a) to use the Software or the Service on any Computer or server or system which permits electronic access to it by more than one user (whether such access forms part of a LAN, WAN or otherwise);
(b) to rent, lease, sub-licence, loan, copy (except as expressly provided in this Agreement), modify, adapt, merge, translate, reverse engineer, decompile, disassemble, resell data (except where a reselling licence is granted by Semetric) or create derivative works based on the whole or any part of the Software or the Service;
(c) except as expressly provided in this Agreement, to use, reproduce or deal in the Software or the Service (including without limitation in Documentation relating thereto) in any way;
(d) to transfer the Software, the Service, the Documentation and/or this Agreement to any individual or entity whether on a permanent or temporary basis. If you transfer possession of any copy of the Software to another person, the licence granted by this Agreement is automatically terminated without prejudice to any other rights and remedies Semetric may have in respect of such unauthorised use; or
(e) to use the Software or the Service to create dashboards, analytics software or any other interactive data visualization accessible either within an organisation or to the public, or to integrate any of the Services into an third party product (without express written permission from Semetric).
2.3 Notwithstanding clauses 2.1 and 2.2 above, any and all rights not expressly granted in accordance with the terms of this Agreement are hereby reserved to Semetric and you may not otherwise use or access the Software, copy or modify it in any way without the express written permission of Semetric.
3.1 The term of this licence (the “Term”) shall commence upon your acceptance of the terms of this Agreement and shall be for a period of twelve (12) months and shall continue thereafter unless and until terminated by either party in accordance with the following provisions.
3.2 If you are the original registered user, the Software is being supplied to you on the basis that you have downloaded and installed the trial Software and created an account. At the end of the evaluation period, which runs from the day that you purchase the Software, your account will be charged for the month unless you cancel the evaluation before the trial period expires.
3.3 This licence (unless terminated in accordance with this clause 3.1 above) is effective until you terminate it by deleting the Software and Documentation, together with all copies. It will also be revoked immediately and without further notice if you fail to abide by the terms of this Agreement or fail to pay the subscription fees when they fall due.
3.4 Upon termination or revocation (by whatever means) you agree to delete the Software and Documentation, including any electronic copies stored on any Computer under your control and Semetric shall have the right without the need for notice or any other formality to delete your stored Data without liability for loss or damage.
3.5 Subject always to the terms of this Agreement, this Agreement and the license granted to you may be terminated by either party giving to the other not less than one week’s prior written notice.
All intellectual property in the Software and Documentation is owned by the Semetric. Data may or may not be owned by Semetric depending on the data.
5. WARRANTIES AND DISCLAIMERS
5.1 Semetric warrants that the Software will, during the Term, perform substantially in accordance with its specification as described in the Documentation and as displayed at www.musicmetric.com (provided that the Software is properly used on the Computer and with the operating system for which it was designed).
5.2 If Semetric is notified during the warranty period (being ninety (90) days from the date upon which the Software or any part thereof is first supplied to you) that the Software is not performing in accordance with the warranty in clause 5.1 above, Semetric will (at its sole discretion) repair or replace the Software within a reasonable time or provide or authorise a refund of a percentage of the monthly or annual subscription fee payable (if any) for the Service. This is your sole and exclusive remedy for breach of this warranty and is available only to the original registered user.
5.3 Semetric does not warrant that the Software will meet your requirements or that the operation of the Software will be uninterrupted or error-free or that defects in the Software will be corrected. You shall install and use the Software at your own risk and you warrant to Semetric that at no time will you use the Software on a Computer on which there is a computer virus of any type regardless of whether the virus is capable of causing any damage. The entire risk arising out of use or performance of the Software and the Service remains with you.
5.4 The express terms of this Agreement are in lieu of all warranties, conditions, undertakings, terms and obligations implied by statue, common law, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.
5.5 Semetric will endeavour to update any tracked data at a maximum rate allowable by the Semetric infrastructure and that of any third parties from whom the data is collected. Due to the nature of accessing data through the internet (and any other sources used by Semetric) the frequency of Data updates cannot be fixed and is liable to fluctuate over the period of the Agreement. Semetric reserves the right to update, modify, add to or remove Data at any time.
6.1 The price for the Service will be the price shown within the relevant subscription rate applicable from time to time and stipulated on the Semetric website at www.musicmetric.com
6.2 You acknowledge that the price shown within the relevant subscription rate is subject to change and is dependent upon the Service package selected and the amount of Data that is being accessed.
Semetric will use reasonable endeavours to answer by electronic mail or over its website at firstname.lastname@example.org (or any other pre-arranged method of contact), any queries you may have about the Software or Service during the warranty period.
To the maximum extent permitted by applicable law, in no event shall Semetric or its suppliers be liable for any special, incidental, indirect, punitive or consequential damages whatsoever (including but not limited to, damages for: loss of profits, loss of confidential or other information, business interruption, personal injury or loss of privacy) arising out of or in any way related to Semetric’s breach of duty (including of good faith or of reasonable care), negligence or non-compliance with law), provision of or failure to provide support services or your use of or inability to use the Software, the Service, components thereof or the support services, even if Semetric has been advised of the possibility of such damages.
9. LIMITATION OF LIABILITY AND REMEDIES
Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced in clause 8 above or elsewhere in this Agreement and all direct or general damages), the entire liability of Semetric and your exclusive remedy shall be limited to a maximum of the amount actually paid by you for the Software and the Services. The limitations, exclusions and disclaimers in clause 8 and this clause 9 shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
10. ACCEPTABLE USE
10.1 You may use the Services only for lawful purposes. You may not use, and shall take all reasonable steps to ensure that no other person uses the Service:
(a) in a way that does not comply with the terms of any laws applicable to you or that is in any way unlawful or fraudulent or has any unlawful or fraudulent purpose or effect;
(b) to bulk download/save/access or in any way log data for multiple artists by automatically scripting the software or otherwise accessing the musicmetric Server; or
(c) to store, send or upload any material that contains viruses, Trojan horses, worms, time bombs or any other harmful programs or illegal data.
10.2 You hereby agree to indemnify us from and against any and all costs, losses and damages (including without limitation, legal costs) incurred in connection with any breach by you of the terms of this Agreement, including without limitation, these Acceptable Use provisions as set out in this clause 10.
11. ENTIRE AGREEMENT
11.1 This Agreement constitutes the entire agreement between the parties and with the exception of any fraudulent misrepresentations, supersedes all prior oral or written agreements, understandings or arrangements between them relating to the subject matter of this Agreement.
11.2 Nothing in this Agreement shall create or be deemed to create a partnership, nor the relationship of employer and employee, nor principal and agent between the parties.
12. RETURNS POLICY
12.1 When buying a service from Semetric, you agree to subscribe to the Service for the duration of the relevant contract.
12.2 If a free trial is offered for any Service, you will not be charged until the end of that trial period. If you decide to cancel the Service before the end of the trial period, you will not be charged for the Service during the free trial, or for any other service, and your details will be removed from our servers and those of our credit card handling company.
12.3 If a contract for the Service is terminated before the end of the contract period (by Semetric), you will be refunded for any credit remaining in your account after the cancellation date.
12.4 Under Regulation 10 of the Consumer Protection (Distance Selling) Regulations 2000, you may have the right to cancel this Agreement for seven (7) working days after the day after this Agreement has been concluded. However, it is agreed between Semetric and you that the Service may commence before the end of that cancellation period, and then you will lose the right to cancel from the date that Semetric provides you with the access details of the Service.
This Agreement shall be governed by English law, and any disputes in relation to it will be subject to the exclusive jurisdiction of the English courts.
14. IMPORTANT NOTICE
YOU WILL HAVE THE SOLE RESPONSIBILITY FOR YOUR LOGIN DETAILS WHICH WILL ALLOW YOU AND ONLY YOU ACCESS TO, AND RETRIEVAL OF, YOUR DATA USING THE SOFTWARE OR SERVICE. SEMETRIC WILL NOT BE LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGES ARISING OUT OF YOUR LOSS OF THE LOGIN DETAILS.