License Agreement

MH ACOUSTICS SOFTWARE LICENSE AGREEMENT

This MH Acoustics Software License Agreement (“Agreement”) covers the software you are licensing from MH ACOUSTICS LLC (“MH”), unless and until we enter into a new agreement that expressly replaces this one.
1. GENERAL

1.1 The term “Executable Code” shall mean the executable computer software program provided or otherwise made available to you by MH, which is understood by the parties to be the subject of this Agreement. The Executable Code includes one or more compiled software programs, standalone applications, callable compiled libraries, example source code that shows how to call such programs, applications, and/or libraries, and documentation for such source code, programs, applications, and/or libraries.

1.2 You, as an individual, are a licensee under this Agreement. If you use the Executable Code as an employee of, or for the benefit of your company, then you are representing that you have the power and authority to accept this Agreement on behalf of your company, and your company will also be a licensee under this Agreement. The term “Licensee” refers to you as an individual and also refers collectively to you and your company. By clicking on the “I Accept” button of this Agreement, by downloading, installing, or in any way using the Executable Code, or by signing below, you consent to the terms and conditions of this Agreement on behalf of yourself and your company as the Licensee.

1.3 The Effective Date of this Agreement is the date that you first download, install or use the Executable Code. If you do not agree to the terms and conditions of this Agreement, or if you do not have the power and authority to accept the terms and conditions of this Agreement on behalf of your company, then you are not licensed and may not use the Executable Code.

1.4 The Licensee acknowledges that the Executable Code developed by MH is protected by copyright and other intellectual property rights. Licensee desires to use the Executable Code, and MH is willing to grant a limited license to Licensee for the use of such Executable Code, according to the terms and conditions of this Agreement.

1.5 MH and Licensee acknowledge, accept, and agree to the terms and conditions of this Agreement in exchange for and in consideration of the mutual promises, premises, and covenants of this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge.

2. RIGHTS AND DUTIES

2.1 MH hereby grants to Licensee, and Licensee hereby accepts, a non-exclusive, non- transferable, worldwide license for the use by Licensee of the Executable Code, for the Term set forth in Section 3 below.

2.2 No rights or licenses to the Executable Code, other than those granted in Section 2.1 are granted, whether expressly, by implication or estoppels, or otherwise.

2.3 Licensee agrees not to use the Executable Code for Licensee’s or any third party’s profit and that Licensee must enter into a separate agreement with MH for that purpose. Any for-profit use of the Executable Code is a breach and violation of the terms of this Agreement. For-profit use includes either the Licensee using, or the Licensee permitting any parent, subsidiary, sub-licensee, affiliated entity or individual, or other third party to use the Executable Code, as part of any product that is either sold, leased, licensed, and/or used directly or indirectly by Licensee or any other party to offer or provide any product or service in exchange for the receipt of money or other compensation or value.

2.4 Licensee agrees not to perform or attempt to perform any of the following, nor to allow any third party to perform any of the following:

i) decompiling, disassembling, reverse engineering, or attempting to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Executable Code by any means whatever, or disclose any of the foregoing;

(ii) providing, selling, leasing, lending, or using the Executable Code as part of a for-profit product or service, including for timesharing or service bureau purposes, or on an application service provider basis;

(iii) using the Executable Code for purposes other than Licensee’s own internal use, or otherwise circumventing or attempting to circumvent such internal use restriction; or

(iv) for Licensee, or as agent or employee of, or on behalf of, or in conjunction with, any individual, corporation, partnership or any other entity, or as partner in any partnership, or as a shareholder, director or officer of any corporation or otherwise, using the Executable Code for any business activity that is competitive with either the Executable Code itself or any other business of MH, including soliciting or inducing business from, making a business call upon, or otherwise contacting any customer of MH for the purpose of maintaining or establishing a business relationship.

2.5 For any product or service that uses the Executable Code, Licensee agrees to display in a visible manner, including on all “splash screens” and “About” dialogs, on all download web sites, in all documentation, and in all written, printed, or electronic promotional or advertising materials, the following notice:?
“This software includes proprietary and copyright-protected technology of MH Acoustics LLC (© 2014-2016 mh Acoustics LLC).”

2.6 For any product or service that uses the term “Eigenmike”, “EigenUnits” or “EigenStudio”, Licensee agrees to display in a visible manner, including on all “splash screens” and “About” dialogs, on all download web sites, in all documentation, and in all written, printed, or electronic promotional or advertising materials, the following notice:
“The terms EIGENMIKE, EIGENUNITS and EIGENSTUDIO are registered trademarks of MH Acoustics LLC.”

2.7 For any data files created using the Executable Code, Licensee agrees to display in a visible manner, on all download web sites, in all documentation, and in all written, printed, or electronic promotional or advertising materials, the following notice: “Created using MH Acoustics technology.”

3. TERM

3.1 The term of this Agreement shall be one year from the Effective Date. This term shall automatically renew for successive one-year terms upon expiration of each term, unless either party provides written notification to the other party, as set forth in Section 6.10 below, of its intent not to renew the license, which must be provided no later than by the end of the eleventh month of the license term.

3.2 MH shall have the right to terminate this Agreement and the license granted herein if Licensee is subject to a Default. A “Default” means any one or more of the following events:

(i) Licensee files a petition for relief under any chapter of the United States bankruptcy laws;

(ii) involuntary proceedings under the United States bankruptcy laws are commenced by creditors against Licensee;

(iii) Licensee fails to abide by the terms of either Section 2.3 or Section 2.4 above;

(iv) Licensee uses the Executable Code in any other manner exceeding the scope of this Agreement;

(v) Licensee voluntarily dissolves or attempts to dissolve itself as a legal entity; or

(vi) Licensee materially breaches or violates any term or condition of this Agreement.

3.3 Upon MH providing written notice to Licensee of a Default, Licensee shall have fifteen (15) days from Licensee’s receipt of the notice to cure the Default. If, at that time, Licensee has not cured the Default, then this Agreement shall terminate. MH’s rights as set forth in this Agreement are cumulative and in addition to any other rights MH may have at law or in equity, including rights pursuant to copyright, patent, trademark, and/or trade secret law.

4. LICENSE FEE

4.1 So long as Licensee is not in breach or violation of any term of this Agreement, including Licensee’s agreement not to use the Executable Code for Licensee’s or any third party’s profit, Licensee owes no fee, royalty, or other compensation to MH for the license granted pursuant to Section 2 above.

4.2 Licensee agrees to notify MH immediately upon Licensee’s current or anticipated non-compliance with the terms of either Section 2.3 or Section 2.4 above, so that MH and Licensee can enter into a separate agreement providing for the payment of license fees to MH for a license covering its use of the Executable Code.

4.3 Licensee agrees to pay all sales, use, value added or other taxes, federal, state, or otherwise, however designated, which are levied or imposed by reason of Licensee’s or any other party’s use of the executable Code, irrespective of whether such use is permitted by this Agreement.
 

5. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY

5.1 MH MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE EXECUTABLE CODE, ITS QUALITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ALL EXECUTABLE CODE PROVIDED HEREUNDER IS “AS IS” AND MH MAKES NO WARRANTY THAT THE EXECUTABLE CODE IS FREE FROM CLAIMS OF INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, OR OTHER PROPRIETARY RIGHTS OF OTHERS. THERE ARE NOT WARRANTIES, EITHER EXPRESS OR IMPLIED, AND ANY AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED AND NEGATED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EITHER PARTY OR ITS EMPLOYEES SHALL CREATE A WARRANTY OR MAKE ANY MODIFICATION, EXTENSION OR ADDITION TO THIS WARRANTY.

5.2 IN NO EVENT WHATSOEVER SHALL MH BE LIABLE TO LICENSEE OR TO THIRD PARTIES FOR ANY DAMAGES CAUSED, IN WHOLE OR IN PART, BY THE USE OF THE EXECUTABLE CODE OR FOR ANY LOST REVENUES, LOST PROFITS, LOST SAVING OR OTHER DIRECT OR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES INCURRED BY ANY PERSON, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS.
 

6. MISCELLANEOUS

6.1 Each party acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and further agrees that it is the complete and exclusive statement of the Agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this Agreement. Each party further represents that it has the right to enter into this Agreement.

6.2 This Agreement or any Section thereof shall not be construed against MH due to the fact that the Agreement was drafted by MH. Licensee acknowledges that it has the right to have this Agreement reviewed by counsel of its choice.

6.3 This Agreement is the entire agreement between the parties hereto and supersedes all previous letters, understandings, or verbal agreements which relate to the Executable Code. All modifications and amendments to this Agreement shall be enforceable only if they are in writing and are signed by authorized representatives of both parties.

6.4 The headings and organization of this Agreement are included and used solely for convenience of reference and shall not constitute a part in this Agreement for any other purpose.

6.5 This Agreement shall be deemed made and accepted in and governed by the laws of the State of New Jersey. New Jersey state and federal courts shall have exclusive jurisdiction and venue to hear all disputes arising out of or related to this Agreement.

6.6 The waiver of any breach of any covenant or condition of this Agreement shall not hinder or otherwise prevent the subsequent enforcement of said covenant or condition.

6.7 Any assignment of this Agreement or any rights or obligations hereunder by Licensee, without the prior written consent of MH, shall be null and void and of no effect and shall constitute a material breach hereof; provided however, that Licensee may assign this Agreement to a successor to all or substantially all of that party’s business and assets, provided that Licensee shall give MH at least thirty (30) days prior written notice of such assignment.

6.8 If any of the provisions in this Agreement shall for any reason be declared or held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.

6.9 No action, regardless of form, arising out of this Agreement may be brought by Licensee more than one (1) year after the cause of action has arisen.

6.10 Notice under this Agreement shall be in writing. Notice to MH shall be sent only by registered or certified mail, return receipt requested, or by overnight courier, properly addressed to MH ACOUSTICS, LLC, 25A Summit Avenue, Summit, NJ 07901. Notice to Licensee may be provided via electronic communications, including by email.

6.11 This Agreement shall be considered fully executed by both parties upon (i) the Licensee clicking on the “I Accept” button, (ii) the Licensee downloading, installing, or in any way using the Executable Code, or (iii) the Licensee signing below.