ArmonìaPlus System manager™ End User software license agreement

Please read this document carefully before downloading, installing or otherwise using the softwareThank you for using the ArmonìaPlus software. This software license agreement is a legal agreement between the Customer (as defined below), and Powersoft S.p.A. and its Subsidiaries (as defined below) that describes the terms and conditions applicable to the use of the Software (as defined below) by the Customer.ACCEPTANCEBy clicking “ACCEPT” and/or otherwise downloading, installing, accessing or using the Software, the Customer is indicating that the Customer has read, understood and assent to be bound by the terms of this Agreement (as defined below). If the Customer does not agree to the terms of this Agreement, the Customer shall refrain from downloading, installing, accessing or otherwise using the Software, being understood that the Customer is not granted any rights whatsoever in the Software, and the Customer is not permitted to access or use the Software. The Software is licensed, not sold, to the Customer by Powersoft in order to be used strictly in accordance with the terms of this Agreement. Customer receives no title to or ownership of the Software or of any copy other than those specifically granted in Art. 2 Suppose the Customer has any questions or concerns about the terms of this Agreement or the use of the Software. In that case, the Customer can contact Powersoft’s Solution Department through Powersoft’s website (Contact Us → Technical Support).

Definitions
The following terms, when used in capital letter in this Agreement, shall have the meaning described here to: “Agreement” shall mean this end user software license agreement. “Customer” shall mean “you”,i.e.any and each customer and/or end user using the Software. “Open Source Software” shall mean a software developed and maintained by a third party via open collaboration and made available at no cost, for anyone to use, examine, alter and re-distribute. “Parties” shall mean Powersoft and the Customer jointly. “Powersoft” shall mean Powersoft S.p.A., with registered office in 50018 – Scandicci (FI), at Via E. Conti, 5, Italian Fiscal Code and VAT number: 04644200489, enrolled in the Registry of Enterprises of Florence, REA: FI – 468275. “Product” shall mean any of the Powersoft’s products included in Powersoft’s portfolio, and/or any other professional audio device that will be added/integrated in Powersoft’s portfolio, intended to be used with and/or in connection to the Software. “Software” shall mean the Powersoft ArmonìaPlus System manager, as well as any modification, amendment and/or update, provided under this Agreement to the Customer to be used along with a Product or along with any third-party software or products. The term Software includes all such software, programs, update, development and data regardless of the form in which it is provided to the Customer or the form in which the Customer may subsequently use it. “Subsidiaries” shall mean, with respect to Powersoft, any company or entity of which Powersoft owns, directly or indirectly, at least 50% of the outstanding capital stock or equity.

The definitions above shall have the same meaning regardless of whether they appear in singular or in plural.

Software License

Subject to the terms and conditions of this Agreement and without prejudice to section 3 below, Powersoft grants the Customer a revocable, non-transferable, non sub-licensable, royalty-free, non-exclusive, worldwide license to download, install and use the Software, even by means of multiple copies, for the purpose of using the Software along with compatible Powersoft’s Products or third-party software or products.
In case Powersoft delivers to the Customer: The Product along with some Open Source Software, or
Third party software containing Open Source Software and the Customer is entitled to distribute and/or supply the Product along with some or all such Open Source Software to third parties according to the license granted under this Agreement, the Parties agree, and the Customer accepts, that the Open Source Software, as well as any Open Source Software’s component and/or third party software, is not part of this Agreement. As a consequence, the Customer acknowledges and accepts that the Customer has to review the license under which the respective Open Source Software is licensed, in order to understand its rights and obligations under them, being also understood and accepted that: Powersoft shall have no liability in respect of the license and use of such Open Source Software and/or third party software, and
In no event the Customer will obtain a license from Powersoft to use, distribute or supply the Open Source Software and/or third party software.

Powersoft assumes no warranty and is not liable that the distribution and supply of a final commercial release of the Product along with one or more of the Open Source Software and/or Open Source Software components by the Customer will be permitted by the respective Open Source Software and/or third party software holder. The Customer undertakes, warrants and represents not to use the Software and/or the Product and/or any part thereof in a manner that would require the Software and/or the Product and/or any part thereof to obtain any Open Source Software and/or third party software license.

License Restrictions

The Parties agree, and the Customer accepts and undertakes, that the Customer shall use the Software strictly in accordance with the terms of this Agreements and shall not: Decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Software;
Make any modification, adaptation, improvement, enhancement, translation or derivative work from the Software;
Violate any applicable laws, rules or regulations in connection with the Customer’s access or use of the Software;
Remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Powersoft and/or its Subsidiaries;
Use the Software for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; or
Use the Software for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by Powersoft and/or its Subsidiaries.

Modification and updates of the Software

Powersoft reserves the right to modify, suspend or discontinue, temporarily or permanently, the Software or any service to which the Software is connected, with or without notice and without any liability towards the Customer.
Powersoft may, from time to time and at its sole option, provide patches, bug fixes, updates, upgrades and other modifications to the Software. These may be automatically downloaded without providing any additional notice or receiving any additional consent, notwithstanding that Customer’s consent is always required for their installation. By continuing to access or use the Software, the Customer hereby consents to any such automatic download of patches, bug fixes, updates, upgrades, and other modifications. If the Customer does not consent, Customer’s remedy is to stop using the Software. Powersoft withholds the right to require Customer to install any patches, bug fixes, corrections, updates, upgrades, support and maintenance releases or other modifications in order to access and use the Software.
Updates may modify or delete certain features and/or functionalities of the Software. The Customer agrees that Powersoft has no obligation to: Provide any updates, patches and/or bug fixes of the Software, or
Continue to provide or enable any particular features and/or functionalities of the Software to the Customer, or
Support the Customer to enable the Software to function and to be used along with any third-party software or products.
In addition to the foregoing, the Customer agrees that all updates or any other modifications will be: Deemed to constitute an integral part of the Software, and
Subject to the terms and conditions of this Agreement.
Subject to Powersoft’s right to charge license fees.

Maintenance and support

Powersoft does not provide any maintenance or support for the download and use of the Software. To the extent that any maintenance or support is required by applicable law, Powersoft shall be obligated to furnish only such maintenance or support. In any case, Powersoft’s maintenance or support obligations, as well as Powersoft’s assistance regarding patches, bug fixes, updates, upgrades, and other modifications, shall be limited to the last available release and/or update of the Software.

Intellectual Property

All intellectual property rights related to the Software and to any Software copies, modification, amendment and/or update, including, without limitation, all copyrights, patents, trademarks, trade secrets and other intellectual property rights are, and shall remain, the sole and exclusive property of Powersoft. As a consequence, the Customer will not acquire any intellectual property or other proprietary rights by virtue of this Agreement, including patents, designs, trademarks, copyright or rights in any confidential information or trade secrets, in or related to Software or any part thereof. Any grants not expressly granted herein are reserved.
To the maximum extent permitted by the applicable law, Powersoft shall not be obligated to indemnify or defend the Customer with respect to any third-party claim arising out of, or relating to the Software provided thereto.
To the extent Powersoft is required to provide indemnification by applicable law, Powersoft shall be solely responsible for the investigation, defense, settlement and discharge of any claim that the Software or the Customer’s use of the Software infringes any third-party intellectual property rights.
Powersoft shall not be obligated to indemnify or defend the Customer to the extent that a third-party claim regarding intellectual property infringement arises out of: a) Customer’s breach of this Agreement; b) use of the Software in combination with software or products not provided by Powersoft; c) Customer’s failure to incorporate Software updates or upgrades that would have avoided the alleged infringement.

Term and Termination

This Agreement shall remain in effect until terminated by the Customer or Powersoft. Powersoft may, in its sole discretion, at any time and for any or no reason, suspend or terminate this Agreement with or without prior notice.
If the Customer breach any provision of this Agreement, Powersoft may, in addition to all other rights and remedies provided by this Agreement or by the applicable law, terminate this Agreement without any prior notice.
Powersoft shall not have any liability to the Customer arising out of, or related to the termination of this Agreement and shall not pay to the Customer any kind of compensation or indemnification.
Upon termination of this Agreement, for whatsoever cause occurred, the Customer shall immediately discontinue all use of the Software and destroy any copies of the Software made in accordance with this Agreement, regardless of the form in which such copies exist. Otherwise, in addition to any other remedy provided by this Agreement or by the applicable law, Powersoft shall have the right to claim to the Customer any related damage.
The following provisions will survive the completion of performance, cancellation or termination of this Agreement: a) Section 3 (License Restrictions); b) Section 6 (Intellectual Property); c) Section 8 (Limited Warranty); d) Section 9 (Limitation of Liability); e) Section 10 (Indemnification); f) Section 11 (Data Protection); g) Section 13 (Disputes Resolution).

Limited Warranty

To the maximum extent allowed by the applicable law, Powersoft provides the Software, recording media containing the Software and downloadable services (if any), “as is” and “as available” and with all faults and defects, without warranty of any kind.
Powersoft and its Subsidiaries expressly disclaims all representations, warranties, endorsements and conditions of any kind, express or implied, including without limitation, any warranties of title or non-infringement and any implied representations, warranties and conditions of fitness for a purpose, merchantable quality, durability, or arising from a course of dealing or usage of trade. Without limitation to the foregoing, Powersoft provides no warranty or undertaking, and makes no representation of any kind that the Software will meet Customer’s requirements, achieve any intended results, be compatible or work with any other software, applications, products, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any error or defect can or will be corrected.
Powersoft provides no warranties, express or implied, with regard to any third-party products or software, including Open Source Software, and Powersoft shall have no liability for any failure of any third-party products or software, including Open Source Software, to function as expected or intended.
The law of some countries may not allow the exclusion of warranties or conditions in contracts with consumers and therefore the exclusions may not apply to the Customer. This Agreement does not affect the Customer’s statutory rights. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under the applicable law. To the extent any warranty exists under law that cannot be disclaimed, Powersoft shall be solely responsible for such warranty.

Limitation of Liability

To the maximum extent allowed by the applicable law, in no event shall Powersoft be liable for any direct, indirect, special, incidental, consequential, remote or punitive damages even if Powersoft has been advised of the possibility of such damages. In particular, Powersoft shall not be liable for any programs or data made, transmitted or stored with the Software nor the costs of recovering or replacing such programs or data, loss of business profits or revenues, loss of savings, business interruption, downtime costs, failure to transmit or receive any data, lost or inaccurate data, problems with applications.
To the maximum extent allowed by applicable law, notwithstanding any damage that the Customer might incur for any reason whatsoever, download, installation, access and use of the Software is at Customer’s own risk. Powersoft shall not be liable for any damage created, directly or indirectly, by the downloading and installation process and by the use of the Software, or arising from or caused by this Agreement.
The law of some countries may not allow the exclusion of warranties or conditions in contracts with consumers and therefore the exclusions may not apply to the Customer. This Agreement does not affect the Customer’s statutory rights. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under the applicable law. To the extent any warranty exists under law that cannot be disclaimed, Powersoft shall be solely responsible for such warranty.

Indemnification

To the maximum extent permitted by the applicable law, the Customer agrees to defend, indemnify, and hold Powersoft and its Subsidiaries, including any officer, employee, agent, partner and licensors (if any), harmless from and against any and all actual and alleged claims, damages, costs, losses, liabilities, and expenses (including reasonable attorneys’ fees), arising out of, or caused by Customer: Use of the Software;
Violation of this Agreement or any law or regulation; or
Violation of any right of a third party.

Data collection

Non-personal or anonymous data, including usage and statistics data, may be collected automatically to improve functionality of our Product, in particular to facilitate and improve the provision of Software updates, the support and other services. The Customer hereby agrees that such data may be collected and used by Powersoft without restriction exclusively for the aforementioned purpose, may be sent to any of our offices or affiliates for processing and will not be shared with third-party companies.

Applicable Law

This Agreement shall be governed by and construed in accordance with Italian Law. The United Nations Convention on Contracts for the International Sales of Goods is hereby excluded in its entirety from application to this Agreement.

Dispute Resolution

The Parties shall attempt to resolve promptly in good faith all disputes arising out of or in connection with this Agreement. In the event of dispute, either Party may, by written notice to the other, have such dispute referred for resolution to an executive with authority to make commitments. The Parties’ designated executives shall meet within 7 (seven) business days from their designation and shall negotiate in good faith to resolve the dispute. If the dispute cannot be resolved amicably within 30 (thirty) business days of the Parties’ request for negotiation, or any other period as agreed in writing, then the dispute shall be finally submitted to the exclusive jurisdiction of the Courts of Florence.

Miscellanea

The Customer shall not assign or delegate all or any part of this Agreement to a third party without the prior written consent of Powersoft, with the exception of a person or entity who accepts ownership or title of the Software and who agrees to be bound by the terms of this Agreement.
No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.Powersoft reserves the right, at its sole discretion, to revise, modify and/or amend this Agreement at any time. By continuing to access or use the Software after any revisions, modification and/or amendment become effective, the Customer agrees to be bound by the revised, modified and/or amended Agreement.
If a provision of this Agreement is held to be invalid or enforceable, such invalidity or enforceability shall not invalidate or render unenforceable the entire Agreement, but rather (unless a failure of consideration would result therefrom) the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of each party shall be construed and enforced accordingly.
If there is any inconsistency between this Agreement and any Powersoft’s software license or end user agreement provided in connection with any upgrades or updates to the Software, the provisions of such other license or end user agreements shall apply, to the extent of the inconsistency.

* * *

According to sections 1341 and 1342 of the Italian Civil Code, the Parties acknowledge that the entire agreement has been agreed and accepted by both of them, and that the following provisions are expressly approved: Sections 2.2 and 2.3 (Software License), 4.2 (Modification and updates of the Software), 5 (Maintenance and support), 7 (Term and Termination), 8 (Limited Warranty), 9 (Limitation of Liability), 10 (Indemnification), 13 (Dispute resolution), 14.3 (Miscellanea).