Important: click the “Accept” button only if you have read and understand the below License Agreement and agree to be bound by all of the terms and conditions of the License Agreement. If this License Agreement is not acceptable to you, click the “Do Not Accept” button.

Fishman Transducers, Inc.
License Agreement

This document is an agreement (“Agreement”) between You (the natural person or business entity who has downloaded, or received a copy of, Licensed Software, or who has applied to be accepted into the Aura Customer Shop) and Fishman Transducers, Inc. (“Fishman”) that sets forth Your rights and obligations with respect to the Licensed Software and/or the Aura Custom Shop (as defined below). By downloading or using Licensed Software, or applying to participate in the Aura Custom Shop, You are agreeing to become bound by the terms of this Agreement. If You do not agree to the terms of this Agreement, You must destroy all copies of Licensed Software in Your possession.

1. Definitions
(a)   “Licensed Software” means, collectively, any Sound Images and/or the Aura Gallery downloaded from Fishman’s website (or otherwise obtained from Fishman).
(b)   “Aura Custom Shop” means, collectively, any service where Fishman Transducers, Inc. provides You with a Custom Sound Image downloaded from Fishman’s website (or otherwise obtained from Fishman) created by Fishman from information, electronic files, and/or actual Instrument(s) provided by You.
(c)   “Aura Gallery” means the Fishman computer program that resides and operates on a personal computer, organizes downloaded Sound Images on such computer, and loads such Sound Images onto Fishman Products.
(d)   “Sound Image” means an electronic file that, when loaded by the Aura Gallery on certain Fishman Products (as described in the applicable Fishman technical documentation), enables such Fishman Products to more precisely capture certain desired sounds. For purposes of clarity, any Sound Images modified by You shall remain Sound Images under the terms of this Agreement. Sound Images include both Custom Sound Images as well as Sound Images created by or for Fishman outside of the Aura Custom Shop.
(e)   “Custom Sound Images” means a Sound Image created under the Aura Custom Shop from information, electronic files, and/or actual physical instrument(s) provided by You.
(f)   “Fishman Products” means the certain Fishman hardware devices (such as the AuraTM controller) that are designed to store and use Sound Images.
(g)   “Instrument” means a musical instrument owned by You that You deliver to Fishman under the Aura Custom Shop in order for Fishman to create a Customer Sound Image based on such Instrument.

2. License Grant. Fishman grants to You a limited, non-exclusive license to (a) install and operate the Aura Gallery on one or more computers owned or controlled by You, (b) install Sound Images on, and operate Sound Images with, Fishman Products in accordance with the applicable Fishman technical documentation and store Sound Images on one or more computers owned or operated by You, and (c) modify Sound Images that are installed on Fishman Products solely to the extent the design features of such Fishman Products may, in the future, permit (and in accordance with the applicable Fishman technical documentation).

3. Certain Restrictions on Use Applicable to All Licensed Software. You shall not, and shall not permit any third party to: (a) modify or create any derivative work of any part of the Licensed Software (except as enabled by the functionality of Fishman Products); (b) alter, remove, or obscure any copyright or other proprietary or legal notice on or in the Licensed Software; (c) use Fishman’s name, logos, or other trademarks without Fishman’s prior written consent; or (d) sell, license, sublicense, loan, assign, or otherwise transfer the Licensed Software, in whole or in part, to any third party without Fishman’s prior written consent (except in accordance with Section 4). In addition, You agree that You shall not use Sound Images in conjunction with any Fishman Products to reverse engineer or otherwise determine the processes, methods, or data points Fishman uses to design Fishman Products and/or Sound Images.

4. Posting Modified Sound Images. Fishman may, in its discretion, make available a bulletin board or similar device on its website (www.fishman.com) where You may post Sound Images that You have modified (pursuant to Section 2(c)) in order to enable other users to download Your posted Sound Images. You agree that when You upload any Sound Images onto Fishman’s website, You are assigning to Fishman any rights You may have to such modifications (other than Your nonexclusive right to continue to use the modified Sound Image as a Sound Image under this Agreement), and that Fishman may freely use and distribute such Sound Images in its discretion. Fishman may, in its discretion, post any or all Custom Sound Images on its website for other users to download, include any or all Custom Sound Images in one or more Fishman Products, or otherwise make use and distribute such Customer Sound Images in any manner.

5. Participation in Aura Custom Shop. If Fishman accepts your application to participate in the Aura Custom Shop, then Fishman shall use reasonable efforts to create a Custom Sound Image from the information, electronic files, and/or Instrument you provide to Fishman as indicated in your application and Fishman’s acceptance. In order to participate in the Aura Custom Shop:
(a)   You must provide Fishman with any information we request regarding your Instrument, including, but not limited to manufacturer, model (or product name), construction materials (wood, metal, etc.), pickup manufacturer and model.
(b)   Your Instrument must be in good operating condition and free from any defects that might otherwise cause it to easily be rendered inoperable (including, but not limited to excessive cracks, broken parts, holes, etc.) or require repair prior to the recording process.
(c)   Your Instrument must have a pickup (or transducer) installed, of Fishman’s choice, and in good operating condition.
You hereby represent and warrant to Fishman that you own and/or have the right to submit to Fishman any electronic files and Instruments delivered hereunder to Fishman for purposes of Fishman creating Custom Sound Images in accordance with the terms of this Agreement, and you agree to indemnify and hold Fishman harmless from any damages, costs, or expenses arising from any third party claim with respect to Fishman’s use of such electronic files, Instruments, and Custom Sound Images.

6. Shipment and Risk of Loss of Instruments. If Fishman accepts your application to participate in the Aura Custom Shop, You will ship at your expense and risk of loss to Fishman the Instrument or Instruments listed in your application for which Fishman has agreed to create Custom Sound Images. You will ship all Instruments using the standard Fishman practices including displaying an “Authorization Number” on the outside of the packaging in accordance with the shipping instructions provided to you with Your acceptance from Fishman. You are responsible for packaging all Instruments in a manner sufficient to protect them, obtaining any shipping insurance, and handling all shipping claims directly with the shipping company. Upon receipt of an Instrument, Fishman will use reasonable efforts to handle the Instrument with care, but Fishman shall not be responsible for any damage or wear and tear to, or loss of, such Instrument unless due to Fishman’s negligence or intentional misconduct. Under no circumstances shall Fishman be liable for any damages to or loss of any Instrument during shipment to or from Fishman. Fishman will ship the instrument back to you with the cost of shipping and insurance at Your expense and charged to Your credit card either (a) upon creating a Custom Sound Image for an Instrument or (b) without creating a Custom Sound Image if, in Fishman’s judgment, an Instrument does not meet the requirements set forth in Section 5(b) or 5(c) above or the information supplied about the Instrument is not accurate.

7. Aura Custom Shop Fees and Expenses. Upon delivery or making available for download the applicable Custom Sound Images, Fishman will charge the credit card You supplied the service fee listed on Your application for creating the Custom Sound Images. Your credit card will also be charged all applicable shipping and insurance costs as described in Section 6 above. You agree to pay all such fees and expenses, by credit card or otherwise.

8. Intellectual Property. Fishman and its licensors are the sole owners of the Licensed Software, including without limitation of any Custom Sound Images, and of all copyright, trade secret, patent, trademark and other intellectual or industrial property rights in and to the Licensed Software (except with respect to Your modifications to Sound Images which is governed by Section 4 above). Trademarks and trade names of guitar producers and suppliers are the sole property of such producers and suppliers, shall be used in accordance with accepted trademark practice, including identification of trademark owners’ names, can only be used to identify output produced by the Software and such use of any trademark does not give You any ownership in that trademark. Except for the rights expressly granted herein, no other rights are granted to You with respect to the Licensed Software.

9. Disclaimer of Warranties; Limitation of Liability. The Sound Images, Custom Sound Images, and Aura Gallery are provided “as is.” Fishman disclaims (and You waive) all warranties, whether express or implied, written or oral, including any warranty of merchantability, fitness for a particular purpose, and/or non-infringement. In no event shall Fishman be liable for incidental, indirect, special, reliance, or consequential damages, regardless of whether Fishman has been advised of the possibility of such damages. You agree not to hold Fishman responsible for any damage to or loss of any Instruments that may occur during the recording process or while in Fishman’s possession, including but not limited to any scratches, dents, or any wear and tear, except to the extent due to Fishman’s negligence or intentional misconduct. Notwithstanding anything contained herein to the contrary, Fishman’s aggregate liability for any damages hereunder, including without limitation with respect to any damages to or loss of any Instrument, shall not exceed $100.

10. Termination of Agreement and of Licenses. This Agreement and Your license to the Licensed Software will terminate automatically and without notice on Your breach of Section 2, 3, or 4 of this Agreement. Upon termination, You shall promptly cease to use the applicable Licensed Software. Sections 1, 4, and 6 through 12 shall survive termination of this Agreement.

11. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without reference to conflict of law principles. All disputes arising under, out of, or in any way connected with this Agreement shall be litigated exclusively in the federal or state courts situated in the Commonwealth of Massachusetts, and in no other court or jurisdiction.

12. Entire Agreement; Severability. This Agreement is the complete and exclusive statement of the contract between Fishman and You with respect to the subject matter hereof. No waiver, consent, modification, amendment or change of the terms of this Agreement shall be binding unless in writing and signed or otherwise expressly acknowledged by Fishman and You. It is intended that this Agreement shall not violate any applicable law and the unenforceability or invalidity of any provision shall not affect the force and validity of the remaining provisions and such provisions determined to be invalid shall be deemed severed from this Agreement and, to the extent possible, be replaced with terms which as closely as possible approximate the interest and economic intent of such invalid provisions.