2. Ownership. All title, ownership rights and intellectual property rights in and to the Program and any and all copies thereof (including but not limited to any titles, computer code, themes, objects, characters, character names, stories, text, dialog, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, any related documentation, and "applets" incorporated into the Program) are owned by Scratch, and the Program is protected by the copyright laws of the United States, international copyright treaties and conventions and other laws. All title, ownership rights and intellectual property rights in and to the TPM and the Tracks, and any and all copies thereof, are owned by their respective owners as noted in the CIMIO Software READ ME file and/or the website www.cimiosoftware.com, and each such owner may act to protect their rights in the event of any violation of relevant terms or their rights. The TPM and the Tracks are protected by the copyright laws of the United States, international copyright treaties and conventions and other laws. You have the right to use, modify and distribute any of the open source software TPM as explained in the applicable “copyleft” license agreement as noted in the relevant READ ME file and/or the website www.cimiosoftware.com. CIMIO is a trademark of Scratch; All Rights Reserved.
3. Responsibilities of End User.
A. Except as provided by the License and supported by the CIMIO features (and excluding the TPM), you may not, in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code from, modify, disassemble, decompile, or create derivative works of or based on the Program or the Tracks, or remove any proprietary notices or labels on the Program or Tracks without the prior consent, in writing, of Scratch. Your License includes the right play the Tracks, and to mix and modify the Tracks only using the CIMIO Program.
B. The CIMIO Program allows you to choose to mix and modify song tracks that do not have embedded digital rights management (“DRM”) protection software. Please note that most digital tracks purchased from online stores (including iTunes®) included DRM until early 2009. Tracks purchased today from stores selling MP3, WAV, WMA or AAC format digital tracks should be free of DRM and compatible with the Program.
C. The Program is licensed to you as a single product. Except for the Tracks and TPM, its component parts may not be separated for use on more than two computers at a time.
D. YOU ARE SOLELY RESPONSIBLE FOR USING CIMIO IN A LEGAL MANNER, which includes mixing and modifying musical compositions and performances you own, or those you have purchased or acquired legally with rights to mix and modify them using software such as CIMIO. YOU MAY NOT USE CIMIO TO INFRINGE THE RIGHTS OF OTHERS. If you are uncertain about your right to copy, mix or modify any song, contact your legal advisor. You are entitled to use the Program and Tracks for your own use, but you are not entitled to:
(i) sell or transfer reproductions of the Program or Tracks to other parties in any way, nor to rent, lease or license the Program or Tracks to others; or
(ii) exploit the Program or Tracks, or any of its parts, for any commercial purpose including, but not limited to, public performance of your mix (for free or for a fee), or sale of copies of your mix or the Tracks, or
(iii) utilize the Tracks in any way other than in combination with the Cimio Program.
E. You may make one copy of the Program and Tracks for back-up purposes in the event your initial copy of the Program is damaged or destroyed. You should also back-up to another secure location, on a regular basis, any data files concerning your use of the Program, as Scratch has no liability for lost or corrupted data.
F. The Program requires certain minimum equipment to function. You agree, at your sole expense, to acquire and maintain the following equipment in order to use the Program, TPM and Tracks:
For PC Systems: Windows 2000, Windows XP or Windows Vista; 1 GB RAM (or higher); ASIO Compatible Sound Card; and, Asio Drivers.
For Mac® Systems: Mac OS 10.5 or newer; and, Intel Processor.
G. You may make any use or modification of TPM as allowed by the relevant license agreement as explained in the CIMIO Software READ ME file and/or the website www.cimiosoftware.com. However, making any modification to any TPM software program, even if allowed by the relevant license, or to the CIMIO Software shall void the sole remedy provided in Section 8, below, may cause the CIMIO Software to malfunction and may result in the termination of your License to use the Program.
H. You may use the Program Registration Key provided by Scratch solely to utilize the CIMIO Program and may not disclose it except for a transfer of all your rights to the CIMIO Program as explained below. If you lose or forget your Program Registration Key, you must provide Scratch with the approximate date of your CIMIO purchase and confirm your identity in order to receive an email with your Key.
4. Program Transfer. You may permanently transfer all of your rights under this License Agreement along with your copy of the Program, TPM and Tracks along with your Program Registration Key provided by Scratch to activate the Program, provided that the recipient agrees to the terms of this License Agreement and you remove all copies of the Program, Tracks and Key from your home or portable computer. Any transfer of the equipment containing the Program and Tracks requires that the recipient agree to the terms of this License Agreement, and any such transfer including the TPM requires that the recipient agree to the terms of the relevant TPM license, or you must remove each such copy prior to the equipment transfer.
5. Term and Termination. This License Agreement is effective until terminated. Your right and ability to use any Free Trial version of the Program (which has limited functionality) will terminate ten (10) days after download unless you pay the required fee. You may terminate your paid License to use the CIMIO Software at any time by destroying the Program and Tracks. Scratch may terminate your License to use a paid version of Cimio if your payment is refused or cancelled and, at its discretion, Scratch terminate this License Agreement (during the trial or paid term) in the event that Scratch has reason to believe you are in breach of any material provision of this License Agreement. In such event, upon notice from Scratch, you must immediately destroy the Program and Tracks.
6. Export Controls. The Program may not be exported, downloaded or otherwise re-exported into (or to a national or resident of) any country to Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By installing the Program, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
7. DISCLAIMERS. THE PROGRAM, TRACKS AND TPM (AND ALL RELATED MATERIALS) ARE PROVIDED BY SCRATCH ON AN "AS IS" BASIS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE IS EXPRESSLY DISCLAIMED. The entire risk arising out of use or performance of the Program, Tracks and TPM remains with you. ADDITIONAL DISCLAIMERS MAY APPLY TO TPM as stated in the relevant READ ME file or the website www.cimiosoftware.com.
8. Limitations of Liability. NEITHER SCRATCH DJ ACADEMY, LLC., ITS PARENT, SUBSIDIARIES, AFFILIATES OR LICENSORS SHALL BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND WHATSOEVER RESULTING FROM THE DOWNLOAD OR USE OF THE PROGRAM, TRACKS AND/OR TPM, NOR THE MAKING OR USING OF A TEMPORARY COPY OF ANY DIGITAL MUSICAL UTILIZED WITH CIMIO, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, COMPUTER VIRUS, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, AND ALL OTHER DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHERWISE, OR INABILITY TO USE THE PRORAM, TRACKS AND/OR TPM. Some states do not allow the exclusion or limitation of incidental or consequential damages, or allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you. Your sole remedy if the Program, Tracks or TPM fail to function in accordance with the relevant documentation for at least 90 days from the date you purchased the Program shall be, upon presentation to Scratch of proof of purchase of the defective Program, at Scratch’s sole option: 1) a replacement Program, or 2) a refund of any fees paid to Scratch for the Program.
9. Equitable Remedies. Due to the nature of the Program and Tracks, you hereby agree that Scratch and its licensors would be irreparably damaged if the terms of this License Agreement were not specifically enforced as to the Program or Tracks, respectively, and therefore you agree that Scratch and its licensors shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to material breaches of this License Agreement, in addition to such other remedies as they may otherwise have available under applicable laws.
10. Miscellaneous. This License Agreement shall be deemed to have been made and executed in the State of New York, and any dispute arising hereunder shall be resolved in accordance with the laws of the United States and of the State of New York, without regard to any such principles of conflicts of law. You and Scratch agree to submit any dispute between them under this License Agreement to binding arbitration in New York County, New York, in accordance with the Arbitration Rules of the American Arbitration Association, or to such other arbitrator as may be mutually agreed upon by them, as the sole and exclusive remedy for any controversy or claim arising out of their relationship or this License Agreement (other than for equitable remedies in accordance with Section 9 above), and expressly waive their right to file a lawsuit against one another in any civil court for such disputes, except (i) to enforce a legally binding arbitration decision exclusively in the state or federal courts located in New York County and (ii) for Scratch to request or enforce equitable remedies in accordance with Section 9 above. This License Agreement is the complete and exclusive statement of the agreement between Scratch and you and supersedes any prior or contemporaneous agreement, either oral or written, and any other communications between Scratch and you, and may be amended, altered or modified only by an instrument in writing specifying such amendment, alteration or modification, which is agreed to by both parties. In the event that any provision of this License Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of this License Agreement shall remain in full force and effect. All rights not specifically granted to user in this License agreement are reserved by scratch and its licensors.
