END USER LICENSE AGREEMENT (EULA)
IMPORTANT – READ CAREFULLY: THIS IS A LEGAL AGREEMENT (THE “AGREEMENT”) BETWEEN YOU AND SAM KOLDER CREATIVE INC. (THE “COMPANY”). THIS AGREEMENT APPLIES TO LICENSES PURCHASED BY YOU AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOG (PHYSICAL) DELIVERY OF LICENSED MATERIAL. BY ORDERING A LICENSE, YOU AND, IF APPLICABLE, PURCHASER, ENTER(S) INTO THIS AGREEMENT WITH THE COMPANY AND CONFIRM(S) THAT YOU AND/OR IT, AS THE CASE MAY BE, HAVE AND/OR HAS, AS THE CASE MAY BE, THE POWER AND AUTHORITY TO DO SO.
This Agreement governs Your usage of the royalty-free sounds and/or sound effect collections that You purchase from www.pulsesoundeffects.com, operated by the Company. Individuals and single (i.e. one (1)) person entities may enter into this Agreement to purchase Licensed Material. All Licensed Material comes with a perpetual, royalty-free synch license for You, the single end user. Copyright infringement is a serious offense. Copyright laws and international treaty provisions protect the Company. The Company protects its copyrights by all necessary means, including legal action.
I. Definitions. The following terms have the stated meanings:
1.1. “Audio Product” means any product in any format or media now known or hereafter devised, embodying the Licensed Material alone, including, without limitation, hard drives, compact discs (CDs), cassettes, phonograph records, and digital downloads.
1.2. “Broadcast” means to cause or permit others to cause the performance, telecast, broadcast, transmission, streaming, exhibition or distribution of the End User Work.
1.3. “Copy” means to duplicate or otherwise make: (i) one (1) copy of the Licensed Material to be stored on Your hard drive; or (ii) copies of the End User Work solely for the purpose of Broadcasting the End User Work.
1.4. “Edit” means use by You of less than an entire Master, including the editing, looping, enhancing or modifying of the Licensed Material.
1.5. “End User Work” means the production or program prepared by You embodying the Synchronized Licensed Material.
1.6. “License Fee” means the corresponding price for the license of any Licensed Material.
1.7. “Licensed Material” means the: (i) sound recordings (the “Masters”); (ii) musical compositions, including but not limited to lyrics, sound elements and sound effects embodied on the Masters (the “Compositions”); and (iii) any printed, online or downloadable documentation, database information or other electronic documentation (the “Documentation”) offered for licensing by the Company and selected for use by You (such Masters, Compositions and Documentation so selected, collectively the “Licensed Material”).
1.8. “Purchaser” means an entity purchasing the license hereunder on Your behalf.
1.9. “Synchronize” means to couple and/or synchronize, arrange, record, re-record, transcribe, modify or edit the Licensed Material solely in timed relation with the intended use(s) specified herein.
1.10. “Synchronized Licensed Material” means Licensed Material that has been coupled and/or synchronized, arranged, recorded, re-recorded, transcribed, modified or edited solely in timed relation with the intended use(s) specified herein.
1.11. “You” means, as applicable, the person or entity purchasing a license hereunder and, if specifically identified during the purchase process or set forth in the purchase order invoice, also means the person or entity on whose behalf the license is purchased.
II. License Grant and Restrictions. Subject to the terms of this Agreement:
2.1. The Company grants to You a non-exclusive, non-sublicensable and non-transferable worldwide right to use, Edit and Synchronize the Licensed Material, and to Copy and Broadcast the End User Work. The Licensed Material, in standalone form, may not be Broadcast.
2.2. Use of the Licensed Material is strictly limited to the use, media, term of use, territory and other restrictions specified in this Agreement. The terms of the rights granted hereunder are in perpetuity. You may use the Licensed Material in any production process provided such use is a synchronized use. Use of the Licensed Material shall be limited to use in a synchronized manner. Any use of the Licensed Material in an asynchronous or non-synchronized format without receiving prior written consent from the Company is strictly prohibited.
2.3. You may license, distribute, sell, rent, lease, sublicense, assign, and/or otherwise transfer ownership of any End User Work (but not any Licensed Material or Synchronized Licensed Material contained therein) as part of the distribution process. At no point in time shall any ownership right in or to the Licensed Material or any copy of the Licensed Material vest in You.
2.4. You shall not provide any person or entity with any directions or instructions as to how the Licensed Material may be extracted from an End User Work or Synchronized Licensed Material, or with any invitation, suggestion or authorization that the Licensed Material may be extracted from an End User Work or Synchronized Licensed Material. Other than as part of the production of an End User Work pursuant to the terms of this Agreement, You may not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Licensed Material. You shall not alter or delete any “watermark” or other ordinarily imperceptible identifier embedded within the Licensed Material.
2.5. You may not electronically transfer the Licensed Material unless you are making one (1) copy of the Licensed Material to be stored on Your hard drive, which may only be done with the Company’s consent.
2.6. You may use the Synchronized Licensed Material as part of an End User Work to advertise or promote any such End User Work, provided that the Licensed Material is not separated from the original End User Work. Any use of Licensed Material apart from an End User Work requires a separate license. You shall not disclose access codes or passwords used in accessing any area of the www.pulsesoundeffects.com website to any other party and will maintain such codes or passwords as confidential.
2.7. While efforts have been made to correctly caption the subject matter of, and to provide other information (including metadata) related to, the Licensed Material, the Company does not warrant the accuracy of such information.
2.8. You shall not make the Licensed Material available in a manner intended to allow or invite a third party to download, extract, redistribute or access the Licensed Material as a standalone file, and You shall exercise due diligence and maintain strict safeguards in order to ensure that no third party is able to do so. If You become aware that any third party has downloaded, extracted, redistributed or accessed the Licensed Material, You shall immediately notify the Company via email at firstname.lastname@example.org.
2.9. Defamatory or otherwise unlawful use of Licensed Material is strictly prohibited, whether directly or in context or juxtaposition with other material or subject matter. You shall also comply with any applicable regulations and/or industry codes.
2.10. Where Purchaser is licensing Licensed Material on Your behalf, Purchaser hereby represents and warrants that: (i) Purchaser is authorized to act as an agent on Your behalf and has full power and authority to bind You to this Agreement; and (ii) if You subsequently dispute such power or authority, Purchaser shall be liable for any failure of Yours to comply with the terms of this Agreement. Nothing in this Section 2.10 shall excuse Purchaser’s obligation to make payment to the Company of the License Fee.
2.11. You may not falsely represent, expressly or impliedly, that You are the original creator of a work that derives a substantial part of its artistic components from the Licensed Material.
2.12. If You Copy or Broadcast any End User Work on Your website(s), You shall not make any of the Licensed Material on Your website(s) available as a standalone file pursuant to the license granted to You hereunder. In order to make any of the Licensed Material on Your website(s) available as a standalone file, You must obtain additional written authorization from the Company.
2.13. If End User Works are included on any social media platform or other third party website: (i) Your right to include any such End User Works on any social media platform or other third party website shall automatically be revoked in the event that the third party website seeks to exploit purported rights to the Licensed Material contrary to the terms of this Agreement; and (ii) in such event, upon the Company’s request, You shall remove any Licensed Material from such platform or website.
III. Music Credit
3.1. If Licensed Material is used in an audio/visual production where credits are accorded to other providers of licensed material, credit shall be accorded, where technically feasible, in equal size and comparable placement to such credit(s), substantially in the following form: “Pulse Sound Effects” or as otherwise notified by the Company.
IV. Warranty and Limitation of Liability.
4.1. The Company warrants that: (i) the Licensed Material will be free from defects in material and workmanship for thirty (30) days from delivery (Your sole and exclusive remedy for a breach of this warranty being a refund or credit); (ii) it has all necessary rights and authority to enter into and perform this Agreement; and (iii) Your use of the Licensed Material in its original form, and when used in accordance with this Agreement, will not infringe upon the rights of any third party, including copyrights and rights of privacy or publicity.
4.2. EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, THE LICENSED MATERIAL IS PROVIDED “AS IS.” THE COMPANY DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DISCOVERY AND/OR DELIVERY SYSTEMS (SUCH AS ANY AND ALL SOFTWARE AND/OR WEB APPLICATIONS USED BY THE COMPANY’S WEBSITE IN CONNECTION WITH THE DISCOVERY AND/OR DELIVERY OF THE LICENSED MATERIAL, FOR WHICH THE COMPANY SHALL HAVE NO LIABILITY IN THE CASE SUCH SOFTWARE AND/OR WEB APPLICATIONS DO NOT FUNCTION PROPERLY AT ANY GIVEN TIME), INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES. THE COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED MATERIAL BY YOU OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN AN END USER WORK. IN NO EVENT WILL THE COMPANY’S CUMULATIVE LIABILITY WITH RESPECT TO ANY CLAIM MADE IN RELATION TO OR ARISING OUT OF THIS AGREEMENT ON ANY THEORY OR BASIS EXCEED THE LICENSE FEE PAID BY YOU OR PURCHASER FOR THE LICENSED MATERIAL.
5.1. Provided Licensed Material is only used in accordance with this Agreement and You are not otherwise in breach of this Agreement, and as Your sole and exclusive remedy for any actual breach of the representations and warranties set forth in Section 4 above, the Company shall, subject to the terms of this Agreement, defend, indemnify, and hold harmless You and Your parent, subsidiaries and commonly owned or controlled affiliates and Your and their respective members, officers, directors and employees from all damages, liabilities and expenses (including reasonable attorneys’ fees) arising out of or as a result of claims by third parties (“Claims”) relating to any actual breach by the Company of its warranties set forth in Section 4 above. The Company shall have no obligation under this Section 5.1 for any Claims that arise out of or are a result of: (i) Your modification of the Licensed Material, where the Claim would not have arisen but for the modification made by You; (ii) the context in which Licensed Material is used in an End User Work, where the Claim would not have arisen but for such context; (iii) Your failure to comply with the terms of this Agreement; or (iv) Your continued use of Licensed Material following notice from the Company, or upon Your knowledge, that Licensed Material is subject to a claim of infringement of another’s right. The foregoing states the Company’s entire indemnification obligation under this Agreement.
5.2. You shall defend, indemnify and hold harmless: (i) the Company and its parent, subsidiaries and commonly owned or controlled affiliates and their respective members, officers, directors, and employees from all damages, liabilities and expenses (including reasonable attorneys’ fees) arising out of or as a result of claims by third parties relating to Your use of any Licensed Material outside the scope of this Agreement; and (ii) the Company, any third party supplier from which the Company has licensed the Licensed Material, and their respective parents, subsidiaries and commonly owned or controlled affiliates and their respective members, officers, directors and employees from all damages, liabilities and expenses (including reasonable attorneys’ fees) arising out of or as a result of claims by third parties relating to any other actual or alleged breach by You of this Agreement.
VI. Condition of Licensed Material.
6.1. You should examine all Licensed Material for possible defects (whether digital or otherwise). The Company shall not be liable for any loss or damage suffered by You or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Licensed Material or its caption. You may return a defective product within thirty (30) days from delivery and shall receive a refund or credit for the License Fee paid for such product, which may be used for a future purchase. The Company has no obligation to accept any returns for any other reason.
VII. Reservation of Rights.
7.1 All rights which are not expressly granted by the Company to You pursuant to this Agreement, including all promotional materials or any other property owned or controlled by the Company, are specifically reserved by the Company. Except as expressly set forth in this Agreement, nothing contained herein shall be deemed to convey or transfer to You any ownership interest, including copyright, in or to the Licensed Material or any copy of the Licensed Material.
VIII. Miscellaneous Terms.
8.1. Unauthorized Use and Termination. Any use of Licensed Material in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling the Company to exercise all rights and remedies available to it under copyright laws around the world. In addition, and without prejudice to the Company’s other remedies under this Agreement, the Company reserves the right to charge and You agree to pay a liquidated damages fee equal to fifteen (15) times the Company’s standard license fee for the unauthorized use of the Licensed Material. The Company reserves the right to terminate this Agreement in the event You: (i) fail to pay the License Fee on the due date; or (ii) otherwise breach the terms of this Agreement. Upon termination, You must immediately (i) stop using the Licensed Material; and (ii) destroy or, upon the request of the Company, return to the Company the Licensed Material.
8.2. Withdrawal. Upon notice from the Company, or upon Your knowledge that any Licensed Material may be subject to a claim of another’s right for which the Company may be liable, the Company may require You to immediately and at its own expense: (i) stop using the Licensed Material; (ii) delete or remove the Licensed Material from its premises, computer systems and storage (electronic and physical); and (iii) ensure that its clients do likewise.
8.3. Governing Law/Arbitration. This Agreement will be governed in all respects by the substantive laws of the State of Hawaii, U.S.A., without regard to its conflict of law provisions.
8.4. Severability. If one or more of the provisions contained in this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected, and, if permitted, the court or arbitrator(s) shall apply any “blue pencil” rule that may be applicable, so as to enforce the lawful intent of the parties, as found by such court or arbitrator(s).
8.5. Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of either party in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by either party of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
8.6. Entire Agreement. This Agreement is intended for end user clients of the Company and contains all the terms of the license agreement. No terms or conditions may be added or deleted unless agreed to in a writing signed by the Company. The date on which this Agreement was last updated is posted above. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or invoice in connection with Licensed Material governed by this Agreement, the terms of this Agreement shall govern.
Last modified: July 25, 2020
Sam Kolder Creative Inc. (“Company” or “We”) respect your privacy and are committed to protecting it through our compliance with this policy.
This policy describes the types of information we may collect from you or that you may provide when you visit the website www.pulsesoundeffects.com (our “Website”) and our practices for collecting, using, maintaining, protecting, and disclosing that information.
This policy applies to information we collect:
- On this Website.
- In email, text, and other electronic messages between you and this Website.
It does not apply to information collected by:
- us offline or through any other means, including on any other website operated by Company or any third party (including our affiliates and subsidiaries); or
- any third party (including our affiliates and subsidiaries), including through any application or content (including advertising) that may link to or be accessible from or on the Website.
Information We Collect About You and How We Collect It
We collect several types of information from and about users of our Website, including information:
- by which you may be personally identified, such as name, postal address, e-mail address, telephone number, any other identifier by which you may be contacted online or offline (“personal information”);
- that is about you but individually does not identify you; and/or
- about your internet connection, the equipment you use to access our Website and usage details.
We collect this information:
- Directly from you when you provide it to us.
- Automatically as you navigate through the site. Information collected automatically may include usage details, IP addresses, and information collected through cookies.
- From third parties, for example, our business partners.
Information You Provide to Us
The information we collect on or through our Website may include:
- Information that you provide by filling in forms on our Website. This includes information provided at the time of registering to use our Website, subscribing to our service, posting material, or requesting further services. We may also ask you for information when you enter a contest or promotion sponsored by us, and when you report a problem with our Website.
- Records and copies of your correspondence (including email addresses), if you contact us.
- Details of transactions you carry out through our Website and of the fulfillment of your orders. You may be required to provide financial information before placing an order through our Website.
- Your search queries on the Website.
You also may provide information to be published or displayed (hereinafter, “posted”) on public areas of the Website or transmitted to other users of the Website or third parties (collectively, “User Contributions”). Your User Contributions are posted on and transmitted to others at your own risk. Although we limit access to certain pages/you may set certain privacy settings for such information by logging into your account profile, please be aware that no security measures are perfect or impenetrable. Additionally, we cannot control the actions of other users of the Website with whom you may choose to share your User Contributions. Therefore, we cannot and do not guarantee that your User Contributions will not be viewed by unauthorized persons.
Information We Collect Continued
As you navigate through and interact with our Website, we may use automatic data collection technologies to collect certain information about your equipment, browsing actions, and patterns, including:
- Details of your visits to our Website, including traffic data, location data, logs, and other communication data and the resources that you access and use on the Website.
- Information about your computer and internet connection, including your IP address, operating system, and browser type.
We also may use these technologies to collect information about your online activities over time and across third-party websites or other online services (behavioral tracking).
The information we collect automatically is statistical data and may include personal information, but we may maintain it or associate it with personal information we collect in other ways or receive from third parties. It helps us to improve our Website and to deliver a better and more personalized service, including by enabling us to:
- Estimate our audience size and usage patterns.
- Store information about your preferences, allowing us to customize our Website according to your individual interests.
- Speed up your searches.
- Recognize you when you return to our Website.
The technologies we use for this automatic data collection may include:
- Flash Cookies. Certain features of our Website may use local stored objects (or Flash cookies) to collect and store information about your preferences and navigation to, from, and on our Website. Flash cookies are not managed by the same browser settings as are used for browser cookies.
- Web Beacons. Pages of our the Website [and our e-mails] may contain small electronic files known as web beacons (also referred to as clear gifs, pixel tags, and single-pixel gifs) that permit the Company, for example, to count users who have visited those pages or [opened an email] and for other related website statistics (for example, recording the popularity of certain website content and verifying system and server integrity).
We do not collect personal information automatically, but we may tie this information to personal information about you that we collect from other sources or you provide to us.
How We Use Your Information
We use information that we collect about you or that you provide to us, including any personal information:
- To present our Website and its contents to you.
- To provide you with information, products, or services that you request from us.
- To fulfill any other purpose for which you provide it.
- To provide you with notices about your account/subscription, including expiration and renewal notices.
- To carry out our obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collection.
- To notify you about changes to our Website or any products or services we offer or provide though it.
- To allow you to participate in interactive features on our Website.
- In any other way we may describe when you provide the information.
- For any other purpose with your consent.
Disclosure of Your Information
We may disclose aggregated information about our users, and information that does not identify any individual, without restriction.
- To our subsidiaries and affiliates.
- To contractors, service providers, and other third parties we use to support our business and who are bound by contractual obligations to keep personal information confidential and use it only for the purposes for which we disclose it to them.
- To a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of Company’s assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which personal information held by Company about our Website users is among the assets transferred.
- To fulfill the purpose for which you provide it.
- For any other purpose disclosed by us when you provide the information.
- With your consent.
We may also disclose your personal information:
- To comply with any court order, law, or legal process, including to respond to any government or regulatory request.
- If we believe disclosure is necessary or appropriate to protect the rights, property, or safety of Company, our customers, or others. This includes exchanging information with other companies and organizations for the purposes of fraud protection and credit risk reduction.
Your California Privacy Rights
If you are a California resident, California law may provide you with additional rights regarding our use of your personal information.
California’s “Shine the Light” law (Civil Code Section § 1798.83) permits users of our Website that are California residents to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.
We have implemented measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, and disclosure. All information you provide to us is stored on our secure servers behind firewalls. Any payment transactions will be encrypted using SSL technology.
The safety and security of your information also depends on you. Where we have given you (or where you have chosen) a password for access to certain parts of our Website, you are responsible for keeping this password confidential. We ask you not to share your password with anyone. We urge you to be careful about giving out information in public areas of the Website like message boards. The information you share in public areas may be viewed by any user of the Website.
Unfortunately, the transmission of information via the internet is not completely secure. Although we do our best to protect your personal information, we cannot guarantee the security of your personal information transmitted to our Website. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the Website.