terms - remaincalm - creative audio software

Plug-In Software Licence Terms and Conditions

We provide a plug-in for use with Digital Audio Workstations (DAWs) and audio production software (Plug-In), as set out in more detail on our website (Site).

In these Terms, when we say you or your, we mean you as an individual if you are accepting these Terms for yourself. If you are accepting these Terms on behalf of an entity (such as your employer) and you are authorised to do so, then you or your means that entity. When we say we, us, or our, we mean REMAINCALM PTY LTD (ACN 675 259 195).

These terms and conditions (Terms) form our contract with you, and set out our obligations as a service provider and your obligations as a customer. You cannot use the Plug-In unless you agree to these Terms.

Some capitalised words in these Terms have defined meanings, and each time that word is used in these Terms it has the same meaning. You can find a list of the defined words and their meaning at the end of these Terms.

OUR DISCLOSURES

Please read these Terms carefully before you accept. We draw your attention to:

our privacy policy (on the Site) which sets out how we will handle your personal information; and
clause 9 (Liability) which sets out exclusions and limitations to our liability under these Terms.

These Terms do not intend to limit your rights and remedies at law, including any of your Consumer Law Rights.

Engagement and Term
1. These Terms apply from the time you agree to these Terms, until the date these Terms are terminated in accordance with their Terms (Term).
2. Subject to your compliance with these Terms, we will provide you with access to the Plug-In.
3. You acknowledge and agree that the Plug-In is designed to work in conjunction with Digital Audio Workstations (DAWs) or other music production software, and does not function as a standalone application. You are responsible for obtaining and maintaining any necessary third-party software required to use the Plug-In.
4. Where the Plug-In includes the provision of an application programming interface (API), you agree to only use the API in accordance with the documentation that we provide to you through our Site or otherwise.
5. We will not be responsible for any other Plug-In unless expressly set out in these Terms or on our Site.
6. If we provide you with access to any new or beta, or demo version of the Plug-In, you acknowledge that because of the developmental nature of such Plug-In, you use them at your own risk and we have no obligation to maintain or provide error corrections. Any new or beta Plug-In we provide you with access to are for evaluation purposes only and not for production use, and we may discontinue those Plug-In at any time at our sole discretion. In the case of demo versions of the Plug-In, you acknowledge and agree that such versions may have limited functionality or time-restricted access.
7. Where you engage third parties to operate alongside the Plug-In (for example, any third-party software systems you wish to integrate with the Plug-In), those third parties are independent of us and you are responsible for (meaning we will not be liable for) the goods or Plug-In they provide, unless we expressly agree otherwise.
Account
1. You may invite Authorised Users to access and use the Plug-In. You are responsible for ensuring that your Authorised Users comply with these Terms. You may change who your Authorised Users are at any time by contacting us, and what access rights or permissions they have when using the Plug-In. Any limitations on the number of Authorised Users you can have will be set out in writing between the Parties.
Fees
1. You can purchase a license to use the Plug-In from us, as set out on our Site. You must pay all amounts due under these Terms in accordance with these Terms or as set out on our Site (as applicable).
2. Details of our Plug-In, including features, limitations and fees are set out on our Site.
3. Our payment methods will be set out at the time you purchase the Plug-In. If you choose to pay your fees using one of our third-party payment processors, you may need to accept their terms and conditions (if this is the case, these will be set out at the time you make payment).
4. You must not pay, or attempt to pay, any fees due under these Terms or as a result of your use of the Plug-In by fraudulent or unlawful means. If you make payment by debit or credit card, you must be the authorised card holder. If payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated third-party payment processor to debit your bank account, and you confirm that you are either the holder or an authorised signatory of that bank account.
5. You are responsible for paying any levies or taxes associated with your use of the Plug-In, for example sales taxes, value-added taxes or withholding taxes (unless we are required by law to collect these on your behalf).
Licence
1. Our Site sets out usage and activation restrictions for the Plug-In.
2. Despite anything to the contrary:
  1. if you accept these terms as an individual, you are permitted to unlimited access and downloads for the Plug-In, but are expressly prohibited from distributing the Plug-In and are not permitted to have any Authorised Users; and
  2. if you accept these terms as a business or company, the Plug-In can only be installed on one device per license, but you are permitted to unlimited Authorised Users on that specific device.
3. During the Term, we grant you and your Authorised Users a right to use our basic Plug-In in accordance with these Terms. This right cannot be passed on or transferred to any other person.
4. When you purchase a right to use our Plug-In, we grant you and your Authorised Users the right to access the purchased Plug-In until the earlier of the specified duration of access, the termination of these Terms or your cancellation of the specific Plug-In. These rights cannot be passed on or transferred to any other person.
5. You must not (and you must ensure that your Authorised Users do not):
  1. access or use the Plug-In in any way that is improper or breaches any laws, infringes any person's rights (for example, intellectual property rights and privacy rights), or gives rise to any civil or criminal liability;
  2. interfere with or interrupt the supply of the Plug-In, or any other person's access to or use of the Plug-In;
  3. introduce any viruses or other malicious software code into the Plug-In;
  4. use any unauthorised or modified version of the Plug-In, including but not limited to for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the Plug-In;
  5. attempt to access any data or log into any server or account that you are not expressly authorised to access;
  6. use the Plug-In in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing;
  7. circumvent user authentication or security of any of our networks, accounts or hosts or those of any third party; or
  8. access or use the Plug-In to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.
6. If the Plug-In includes API access, you may use any provided APIs in accordance with our API documentation and usage policies. You may make necessary modifications to facilitate such integration, provided that such modifications do not alter or compromise the core functionality or security of the Plug-In.
Availability, Disruption and Downtime
1. While we strive to always make the Plug-In available to you, we do not make any promises that these will be available 100% of the time. The Plug-In may be disrupted during certain periods, including, for example, as a result of scheduled or emergency maintenance. Additionally, we do not guarantee that we will always update the Plug-In, and the frequency and extent of updates are at our sole discretion.
2. The Plug-In may interact with, or be reliant on, products or Plug-In provided by third parties, such as cloud hosting service providers. To the maximum extent permitted by law, we are not liable for disruptions or downtime caused or contributed to by these third parties.
3. We will try to provide you with reasonable notice, where possible, of any disruptions to your access to the Plug-In.
Intellectual Property and Data
1. We either own or have the appropriate rights to all intellectual property in the Plug-In. This includes how the Plug-In looks and functions, as well as copyrighted works, trademarks, inventions, designs and other intellectual property. You agree not to copy or otherwise misuse any intellectual property used in the Plug-In without our written permission (for example, to reverse engineer or discover the source code), and you must not alter or remove any confidentiality, copyright or other ownership notice placed on the Plug-In.
2. You must not (and must ensure that your Authorised Users do not), unless expressly authorised by us or these Terms:
  1. circumvent or disable any content protection system or technical protection measure used in the Plug-In or the Content;
  2. copy or modify, in whole or in part, any of the Content;
  3. reproduce, retransmit, distribute, disseminate, sell, publish broadcast or otherwise commercialise the Content to any third party; or
  4. breach, or allow any third party to breach, any intellectual property rights in the Content.
3. We may use any feedback or suggestions that you give us in any manner which we see fit (for example, to develop new features), and no benefit will be owed to you as a result of any use by us of your feedback or suggestions.
4. When you use the Plug-In, we may create anonymised statistical data from your usage of the Plug-In (for example, through aggregation). Once anonymised, we own that data and may use it for our own purposes, such as to provide and improve the Plug-In, to develop new Plug-In or product offerings, to identify business trends, and for other uses we communicate to you. This may include making such anonymised data publicly available, provided it is not compiled using a sample size small enough to make your data or identity identifiable.
5. Where we do not own the intellectual property rights in components used to deliver the Plug-In, we warrant that we have obtained all necessary rights, licenses, and permissions to use such intellectual property in the provision of the Plug-In. This includes:
  1. the right to incorporate third-party software, technologies, libraries, fonts, and other content into the Plug-In; and
  2. the right to modify, adapt, or create derivative works based on third-party intellectual property as necessary for the functioning of the Plug-In.
6. This clause 6 will survive the termination or expiry of these Terms.
Confidential Information and Personal Information
1. While using the Plug-In, you may share confidential information with us, and you may become aware of confidential information about us. You agree not to use our confidential information, and to take reasonable steps to protect our confidential information from being disclosed without our permission, and we agree to do the same for your confidential information. This also means making sure that any Authorised Users, employees, contractors, professional advisors or agents of ours or yours only have access to confidential information on a ‘need-to-know basis' (in other words, the disclosure is absolutely necessary), and that they also agree to not misuse or disclose such confidential information.
2. However, either you or we may share confidential information with legal or regulatory authorities if required by law to do so.
3. We collect, hold and disclose and use any Personal Information you provide to us in accordance with our privacy policy, available on the Site, and applicable privacy laws.
4. You must only disclose Personal Information to us if you have the right to do so (such as having the individual's express consent).
5. We may need to disclose Personal Information to third parties, such as our related companies or our service providers (for example, IT and administrative service providers and our professional advisors).
6. Where we are required by law to report on our activities, you acknowledge that from time to time we may request certain information from you in order to meet our requirements, and you agree to provide us with such information within the timeframes reasonably requested by us.
7. This clause 7 will survive the termination or expiry of these Terms.
Consumer Law Rights
1. In some jurisdictions, you may have guarantees, rights or other remedies provided by law (Consumer Law Rights), and these Terms do not restrict your Consumer Law Rights. We will only be bound by your Consumer Law Rights and the express wording of these Terms.
2. Subject to your Consumer Law Rights, we do not provide a refund for a change of mind or change in circumstance.
3. If you accept these Terms in Australia, nothing in these Terms should be interpreted to exclude, restrict or modify the application of, or any rights or remedies you may have under, any part of the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)).
4. This clause 8 will survive the termination or expiry of these Terms.
Liability
1. To the maximum extent permitted by law, we will not be liable for, and you release us from liability for, any Liability caused or contributed to by, arising from or in connection with:
  1. your computing environment (for example, your hardware, software, information technology and telecommunications Plug-In and systems); or
  2. any use of the Plug-In by a person or entity other than you or your Authorised Users.
2. Regardless of whatever else is stated in these Terms, to the maximum extent permitted by law:
  1. neither we or you are liable for any Consequential Loss;
  2. a party's liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the actions (or inactions) of the other party, including any failure by the other party to mitigate its loss;
  3. (where the Plug-In are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to supplying the Plug-In again or paying the cost of having the Plug-In supplied again; and
  4. our aggregate liability to you for any Liability arising from or in connection with these Terms will be limited to the amount of any fees paid by you to us in respect of the supply of the relevant Plug-In to which the Liability relates, and where no Plug-In have been purchased, AU$1000.
3. This clause 9 will survive the termination or expiry of these Terms.
Suspension and Termination
1. Suspension: We may suspend your access to the Plug-In where we reasonably believe there has been any unauthorised access to or use of the Plug-In (such as the unauthorised sharing of login details for the Plug-In). If we suspend your access to the Plug-In, we will let you know within a reasonable time of doing so, and we will work with you to resolve the matter, or if it cannot be resolved, then we may terminate these Terms and your access to the Plug-In will end.
2. Termination: We may terminate these Terms (meaning you will lose access to the Plug-In) if:
  1. you fail to pay your fees when they are due;
    1. you or your Authorised Users breach these Terms and do not remedy that breach within 14 days of us notifying you of that breach;
    2. you or your Authorised Users breach these Terms and that breach cannot be remedied; or
    3. we decide to discontinue the Plug-In, in which case we will provide you with at least 90 days' written notice; or
    4. you experience an insolvency event (including but not limited to bankruptcy, receivership, voluntary administration, liquidation, or entering into creditors' schemes of arrangement).
3. You may terminate these Terms if:
  1. we breach these Terms and do not remedy that breach within 14 days of you notifying us of that breach; or
  2. we breach these Terms and that breach cannot be remedied.
4. You may also terminate these Terms at any time by notifying us through your Account or to our email for notices (as set out in clause 11.8), and termination will take effect immediately.
5. Upon termination of these Terms, we will retain Your Data (including copies) as required by law or regulatory requirements.
6. Termination of these Terms will not affect any other rights or liabilities that we or you may have.
7. This clause 10 will survive the termination or expiry of these Terms.
General
1. Assignment: You may not transfer or assign these Terms (including any benefits or obligations you have under these Terms) to any third party without our prior written consent. We may assign or transfer these Terms to a third party, or transfer any debt owed by you to us to a debt collector or other third party.
2. Disputes: Neither we or you may commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) unless we and you first meet (in good faith) to resolve the Dispute. Nothing in this clause will operate to prevent us or you from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction. If the Dispute is not resolved at that initial meeting:
  1. where you are resident or incorporated in Australia, refer the matter to mediation, administered by the Australian Disputes Centre in accordance with Australian Disputes Centre Guidelines for Commercial Mediation; or
  2. where you are not resident or incorporated in Australia, refer the matter to arbitration administered by the Australian Centre for International Commercial Arbitration, with such arbitration to be conducted in Sydney, New South Wales, before one arbitrator, in English and in accordance with the ACICA Arbitration Rules.
3. Events Outside Our Control: We will not be liable for any delay or failure to perform our obligations (including the Plug-In), if such delay or failure is caused or contributed to by an event or circumstance beyond our reasonable control.
4. Governing law: These Terms are governed by the laws of New South Wales, and any matter relating to these Terms is to be determined exclusively by the courts in New South Wales and any courts entitled to hear appeals from those courts.
5. Illegal Requests: We reserve the right to refuse any request for or in relation to the Plug-In that we deem inappropriate, unethical, unreasonable, illegal or otherwise non-compliant with these Terms.
6. Marketing: You agree that we may send you electronic communications about our products and Plug-In. You may opt-out at any time by using the unsubscribe function in our electronic communications.
7. Nature of Legal Relationship: These Terms do not create, and should not be interpreted so as to create, a partnership, joint venture, employment or agency relationship between us and you.
8. Notices: Any notice you send to us must be sent to support@remaincalm.org. Any notice we send to you will be sent to the email address registered against your Account.
9. Publicity: You agree that we may, with your written consent, advertise or publicise the fact you are a customer of ours, for example on the Site or in our promotional material, and you grant us a right to display and use your logo and branding solely for that purpose.
Definitions
1. In these Terms:
  Account means an account accessible to the individual or entity who signed up to the Plug-In, under which Authorised Users may be granted access.
  Authorised User means a user that you have invited to use the Plug-In through your Account.
  Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us any amounts for access to or use of the Plug-In (including the Plug-In) will not constitute "Consequential Loss".
  Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or us or you or otherwise.
  Personal Information means any information or opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a tangible form or not.
  Plug-In means the plug-in we provide to you, as detailed at the beginning of these Terms.

For any questions or notices, please contact us at:

REMAINCALM PTY LTD (ACN 675 259 195)

Email: support@remaincalm.org