Code Generator Library License and Distribution Agreement
PLEASE READ THIS AGREEMENT (“AGREEMENT”) BEFORE DOWNLOADING THIS LIBRARY. BY DOWNLOADING THE LIBRARY YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD OR USE THIS LIBRARY.

IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO ACT FOR AND TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS.

This is a binding legal agreement between you (“you” or "Developer") and The Echo Nest Corporation ("Echo Nest"). This Agreement relates to the Code Generator Library in object code form (“Library”) that you download from the Echo Nest web site or that Echo Nest otherwise provides, including releases, versions and updates and all associated on-line or electronic documentation. The Library consist of various software programs in object code form (each a “Library Program”).

PURPOSE OF THIS AGREEMENT.

The Library Programs are designed to generate and transmit music identification codes (“Music Codes”) and/or to use Music Codes to retrieve related data (“Metadata”) from the Internet in accordance with specification developed by Echo Nest (the “EN Community Music Code Specification”), which are available at the.echonest.com.

There are servers on the Internet that conform to the EN Community Music Code Specification and are operated by Echo Nest or other parties that have been certified by Echo Nest (collectively “Certified Community Servers”). These Certified Community Servers are designed to aggregate and share Music Codes to build a publicly available Music Code index. (Information regarding Certified Community Server software and licenses is available at the.echonest.com.)

The purpose of this license is to assist Developer to create and distribute applications that include Library Programs and that interact with one or more Certified Community Servers under the EN Community Music Code Specification.

REGISTRATION. Developer must provide registration information to download the Library and enter into this Agreement. Developer represents that it has provided true, accurate, current and complete information as prompted by the sign-up process (the "Registration Data") and that Developer will promptly update the Registration Data to keep it accurate, current and complete.

LICENSE GRANT. Subject to the terms of this Agreement, Echo Nest grants Developer a royalty-free, non-exclusive, non-transferable license to the Library as follows:

Developer may use the Library internally for the purpose of developing one or more compiled applications that embed and use some or all of the Library Programs and that conforms to the EN Community Music Code Specification (each an “Application”). For such purposes, Developer may make a reasonable number of internal copies of the Library and the various Library Programs.

Developer may replicate and distribute the included Library Programs worldwide as an embedded component of your Application. Developer may also internally use the included Library Programs as an embedded component of your Application.

LIMITATIONS TO CERTIFIED COMMUNITY SERVERS.

As a limitation and condition of the license grant in this Agreement, Developer agrees to develop and/or distribute only those Applications that are programmed to interact via the Internet or other network with one or more Certified Community Servers. Developer agrees that the Applications will not be programmed or enabled to transmit Music Codes to any other servers or destinations on the Internet.

SUBLICENSES. If Developer creates or distributes Applications, Developer agrees to do so only under binding legal agreements with licensees though all levels of distribution as follows:

Each such agreement must be at least as protective of Echo Nest in its terms and conditions as this Agreement and must disclaim any warranty by or liability of Echo Nest or its suppliers.

Each such agreement must Include the following form of legend: “Portions from Echo Nest Community Music Code Library. ©2010 The Echo Nest. The Echo Nest is a trademark of The Echo Nest Corporation.” If the Application includes a proprietary notice display for Developer or any third party, then the Application will also include, in the same display, the above-mentioned Echo Nest legend.

UPDATES. Echo Nest may, but is not obligated to issue versions of the Library, including, but not limited to maintenance releases, updates, or upgrades. Versions of the Library, if any, will be available at the.echonest.com. All such versions will be deemed to be under this Agreement. Echo Nest is not obligated to provide support or maintenance for the Library or any Application.

WARRANTY AND LIABILITY DISCLAIMERS.

ECHO NEST AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. Echo Nest makes no warranties or representations of any kind with respect to the results of your use of the Library.

Echo Nest and its suppliers will not be liable for any special, incidental, or indirect damages, or for any economic or consequential damages, including without limitation lost profits or lost savings, even if Echo Nest or its suppliers have been advised of the possibility of such damages. Echo Nest’s entire liability to Developer is limited to $25.00, which Developer agrees is a reasonable limitation.

THE DISCLAIMERS AND LIMITATIONS IN THIS SECTION COVER THE LIBRARY, ALL MUSIC CODES, AND ANY ONLINE SERVICES OR DATA OBTAINED BY USE OF THE LIBRARY, ALL OF WHICH IS PROVIDED “AS IS.”

INDEMNIFICATION BY DEVELOPER. Developer agrees to defend, indemnify and hold Echo Nest, its affiliates and their respective employees, officers and agents (the "Echo Nest Indemnified Parties") harmless from any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney's fees) (a) arising out of or in connection with any third party claim relating to an Application, (b) arising from Developer’s breach of this Agreement, or (c) alleging, with regard to any Application, any violation of intellectual property or other proprietary rights.

TERM. This Agreement is effective from the date Developer downloads, first uses, or installs the Library and shall be terminated upon the earliest to occur of the following: a) Developer breaches any term or condition of this Agreement; (b) Developer destroys the Library and accompanying documentation, together with any copy thereof; or (c) Echo Nest terminates this Agreement in writing (which may be by email). In case of termination, Developer shall immediately destroy all copies of the Library and certify to Echo Nest in writing that it has done so. Licenses of the Library Programs granted to end users will survive termination. The following provisions survive termination: Sections 7, 8, 9 and 12.

GENERAL RESTRICTIONS. Developer agrees not to distribute or disclose the Library or any Library Programs except as embedded in an Application. (Developer is encouraged to advise other developers to obtain the Library through the.echonest.com.) Developer may not reverse engineer, disassemble, or decompile the Library or any Library Program. Developer agrees not to use, copy, sublicense, distribute, convey or transfer the Library or any Library Program except as expressly permitted under this Agreement. Developer is solely responsible to its customers and licensees for any update or support obligation or other obligation or liability which may arise from the distribution of any Application.

OTHER LAWS. This Agreement gives Developer specific legal rights. Developer may have others that vary by jurisdiction. In some jurisdictions exclusion or limitation of consequential or incidental damages and/or other exclusions or limitations of liability may not apply. This Agreement does not affect any statutory consumer rights that cannot be waived or limited by contract.

LICENSE TO U.S. GOVERNMENT. If Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government's rights in Software and accompanying documentation will be only as set forth in this Agreement; this is in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions). Supplier is The Echo Nest, 48 Grove Street, Suite 206, Somerville, MA 02144.

MISCELLANEOUS. All notices or other communications required to be given hereunder shall be in writing and delivered via certified mail, Express Mail or Federal Express, return receipt requested, postage prepaid, at the recipient party’s last known address. Echo Nest may provide notice by email at the address provided in registration or by posting notice on its web site. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to conflicts of law provisions and applicable US federal law. The UN Convention for the International Sale of Commercial Goods is excluded. Non-enforcement of any provision hereof shall not operate as a waiver. Any purported assignment or transfer of this Agreement by Developer is void, unless approved in advance by Echo Nest in writing, except that Developer may transfer the Library and this Agreement to a successor in interest of its entire business who assumes the obligations of this Agreement. Echo Nest may transfer this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, then that provision notwithstanding, this Agreement shall remain in full force and effect and such provision shall be deemed omitted. Developer agrees to comply with all applicable export restrictions and laws. Developer grants Echo Nest a permanent right to use, copy, and exploit any feedback or advice that Developer provides. This Agreement is the complete statement of the agreement between Echo Nest and Developer and supersedes all proposals, prior agreements (oral or written) and all other communications between Echo Nest and Developer relating to its subject matter.