BY DOWNLOADING THIS SOFTWARE YOU ("ORIGINAL LICENSEE")ARE CONSENTING TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT USE ANY OF THE HEADSPACE RMF MUSIC
COLLECTIONS ("CONTENT")
This Agreement (the "Licensing Agreement") is entered into as of this date between HEADSPACE, INC. (Headspace) and you ("Licensee") regarding the Content (aka RMF Music Files: Ambient, Classical, House, Lounge, ModernRock, SFXmedley, Techno, Trance and Jungle).
1. Your Rights. Headspace grants to the Original Licensee the following one-year, non-exclusive, non-transferable rights:
(a) to download Content from a Web site or a CD Rom solely for the purpose of incorporating into ONE Web site ("The Web site") or sampling the Beatnik Plug-In, for use for no more than one year.
(b) to save the Content as part of Original Licensee's files, in electronic form solely for purposes stated in (a), but under no circumstances may Original Licensee, or any other party, make more than a total of two copies of the Content, in electronic format, or retain the Content or copies of the Content for more than one year after download.
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3. Content Information
3.1. Restrictions
(a) Original Licensee may not sublicense, assign, rent, lease or otherwise transfer any of it's rights in this agreement, without the express written consent of Headspace. Headspace hereby consents to the following such assignments: If Original Licensee is not the owner of the Web site , Original Licensee may transfer Original Licensee's rights hereunder to the owner of the Web site (the Web site Owner) on the conditions that the Web site Owner: (i) receives a copy of this Licensing Agreement; (ii) expressly agrees to be bound by the terms of this Licensing Agreement, as though the Web site Owner were the Original Licensee and (iii) a written acknowledgement of such agreement, signed by the Web site Owner, is delivered to Headspace within 30 days of the transfer. If any of the above conditions are not met, any such proported transfer shall be ineffective and the Web site Owner shall have no rights to use the Content. After such a transfer the transferring Original Licensee shall have no further rights pursuant to this Licensing Agreement.
(b) Original Licensee may not copy, display, modify and save the Content except as specifically provided in Section 1 and subject to all of the terms and conditions of this Agreement
(c) Under no circumstance may Original Licensee permit any other party or person to use or gain access to the Content.
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(f) Unless written consent from Headspace has been received, no other uses of the Content, in electronic or non-electronic format, may be made.
(g) Original Licensee must comply with all intellectual property laws, including Federal copyright laws, in using the Content, the compilation of the Content, the text associated with the Content, and the CD-ROM software.
(h) Original Licensee may not use any of the foregoing works in any way that is defamatory or illegal.
3.2. Injunctive Relief:
Original Licensee agrees that in the event of a breach or alleged breach of Section 3.1 above that Headspace will not have an adequate remedy at law, including monetary damages, and that Headspace will be entitled to seek a temporary restraining order, injunction, or other form of equitable relief against the continuance of such breach, in addition to any and all other remedies to which Headspace is entitled.
4. Intellectual Property Rights and Copyrights:
4.1. Title. All rights to any intellectual property rights,including copyright rights, in the compilation of Content, on-line and RMF or Midi interface software of Headspace, and the text associated with Content remain with Headspace. Original Licensee agrees that Content contains valuable proprietary information organized and compiled by Headspace through the expenditure of a great deal of time and money. All Content are copyrighted works created by Headspace or obtained by Licenses by Headspace.
4.2. Rights Notices. Original Licensee will ensure that all copyright notices and watermarks included in Content are retained on all copies and are not obscured.
5. Terms and Conditions:
Original Licensee agrees to be bound by the terms and conditions of this Content License upon accessing the Content by any means including by not limited to CD-ROM, floppy disc or electronic download . Your acceptance of such a Content License, without further action by either party (such as physically executing a copy), shall be deemed to create a legally binding obligation between Original Licensee and Headspace.
6. Hold Harmless:
Headspace will not have any liability to Original Licensee for, and Original Licensee will defend and hold Headspace harmless against, any claim, expense, judgment, liability, or loss (including attorneys' fees and expert witnesses' expenses) based on Original Licensee's use of any Content, arising from any intellectual property claim (including patent, trademark, copyright, or trade secret infringement), any right of publicity or privacy claim, or any defamation or unfair competition claim.
7. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL HEADSPACE BE LIABLE FOR
ANY DAMAGES RELATED TO CONTENT, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE CONTEN EVEN IF HEADSPACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. NO WARRANTIES:THE CONTENT IS PROVIDED "AS IS". HEADSPACE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE CONTENT REMAINS WITH ORIGINAL LICENSEE.
9. Termination: Headspace may, in addition, at its sole discretion terminate this Agreement. If Headspace terminates this Agreement, Headspace will issue a letter in writing 10 days prior to termination and all rights granted to Original Licensee in Section 1 above will cease and Original Licensee must destroy all copies of the Content held by Original Licensee or any other party on Original Licensee's behalf.
10. Miscellaneous:
10.1. No Joint Venture. Nothing contained in this Agreement should be construed as creating a joint venture, partnership or employment relationship between Original Licensee and Headspace nor will either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other party.
10.2. Assignment. Original Licensee may neither assign any of its rights under this Agreement nor delegate its duties hereunder to another person or legal entity without the prior written consent of Headspace, which consent may be withheld for any reason. This Agreement inures to the benefit of and is binding upon Original Licensee and Headspace, their respective trustees, successors, permitted assigns and legal representatives.
10.3. Non-Waiver. A failure of either party to exercise any right given to it hereunder, or to insist upon strict compliance by the other party of any obligation hereunder, does not constitute a waiver of the first party's right to exercise such a right, or to exact compliance with the terms hereof. Moreover, waiver by any party of a particular default by another party is not a continuing waiver so as to impair the aggrieved party's rights in respect of any subsequent default of the same or a different nature.
10.4. Survival. Upon the termination of this Agreement for any reason, the following terms will remain in force for 5 years: Sections 4 through 10 inclusive.
10.5. Governing Law; Jurisdiction. Original Licensee and Headspace agree that the laws of the State of California govern the interpretation and enforcement of this Agreement, without giving effect to that State's choice of law rules. Any and all disputes between the parties that may arise pursuant to this Agreement will be heard and determined before an appropriate state or federal court located in San Mateo County, California or in the Northern District of California.
10.6. Attorney's Fees to Prevailing Party. In the event of any litigation or other proceedings (including proceedings in bankruptcy) concerning or related to this Agreement, the prevailing party is entitled to recover its actual attorneys' fees and expenses incurred in connection with such proceedings.
certified or registered air mail with postage prepaid, return receipt requested, by facsimile, telex or cable communication, or by hand delivery. Such communications will be deemed given and received upon dispatch, if sent and received by facsimile, telex, or cable communication; or upon delivery if hand delivered; or within 5 days of mailing, if sent and delivered by certified or registered mail, and must be addressed as set forth below, or to such other addresses Headspace may designate in writing from time to time.
Headspace,Inc.
217 South B. Street
San Mateo, CA 94401
Attn: Customer Service
Ph (415) 696-9418
Fax (415) 696-9404
To receive an email version of this license send an email request to support@headspace.com
10.8. Entire Agreement. This Agreement contains the full understanding of the parties and supersedes all prior or contemporaneous agreements and understandings between the parties with respect to Headspace, the Content and related matters, and there are no representations, warranties, agreements or understandings other than those expressly contained herein. No alteration, modification, variation or waiver of this Agreement or any of the provisions hereof, whether by agreement of the parties or by custom, course of dealing or trade practice, will be effective unless executed by both parties in writing. Content Licenses with entities other than Headspace shall not alter the terms and conditions of this Agreement.
