EASE Focus 3 - Licensing for Manufacturers

EASE Focus 3 - Terms and Conditions

These Terms and Conditions govern the legal relationship between AFMG Technologies GmbH, Borkumstr. 2, 13189 Berlin, Germany, represented by its Executive Directors Wolfgang Ahnert and Stefan Feistel, (,,AFMG”) and the manufacturer or provider of loudspeaker cabinets ordering Author Files from AFMG subject to the terms set forth herein (“MANUFACTURER”). By ordering Author Files from AFMG, MANUFACTURER unconditionally accepts these Terms and Conditions (also referred to as this “Agreement”) as the contractual basis between the parties.

Preamble

AFMG is a worldwide leader in the development of software for the pro-audio industry. AFMG has developed, amongst other programs, the Software EASE Focus Version 3 (hereinafter referred to as the “Software”). The Software is acoustic modeling software for line array systems, digitally steered columns and conventional loudspeakers. It supports three-dimensional SPL mapping, multiple systems, time and frequency response plots as well as many other features.

The Software is free for the end user. However, loudspeaker companies, such as the MANUFACTURER, need to license their loudspeakers in order to unlock them for use with the Software. MANUFACTURER desires to integrate authorization files by AFMG into its data files for its loudspeaker systems so that they can be used in combination with the Software, and to distribute such data files to end customers. End customers can download the Software for free from AFMG’s or from MANUFACTURER’s website according to the terms of a separate license agreement between AFMG and the end customer.

1.       Subject of the Agreement

1.1.    Upon request of MANUFACTURER, AFMG provides MANUFACTURER with certain authorization files that are necessary to unlock MANUFACTURER’s data files for its loudspeaker systems for the Software (such authorization files hereinafter referred to as “Author Files”). The conditions for the purchase of Author Files from AFMG and the respective license fees are set forth in Sections 4 and 5.

1.2.    Subject to the terms of this Agreement, MANUFACTURER has the right to integrate the Author Files into data files for certain loudspeaker systems (hard- and software) as agreed between the Parties pursuant to Section 4 (such data files containing the Author Files hereinafter referred to as “System Definitions”) and market and distribute the System Definitions in its own name and on its own account. MANUFACTURER is not entitled to act in the name and on behalf of AFMG or to represent AFMG.

2.       Non-exclusive license and End User License Agreement

2.1.    In order to enable MANUFACTURER to distribute the System Definitions usable with the Software, AFMG grants to MANUFACTURER the non-exclusive, non-transferable right to integrate the Author Files into the System Definitions and to distribute to end customers the System Definitions subject to the provisions of these Terms and Conditions.

2.2.    MANUFACTURER is not entitled to compile the Author Files for other products and brands than the “Licensed Models” as agreed between the parties pursuant to Section 4.

2.3.    In order to use the System Definitions with the Software, the end customer needs to download the Software from AFMG’s website or from the MANUFACTURER’s website, in either case subject to the terms and conditions of AFMG’s End User License Agreement to be concluded between AFMG and the end customer.

2.4.    If the MANUFACTURER intends to offer the Software for download from its website, AFMG will provide, subject to AFMG’s sole discretion, the Software and the respective End User License Agreement to MANUFACTURER. For this purpose, AFMG grants to MANUFACTURER a non-exclusive, non-transferable right to make the Software publically available to commercial end customers from its website subject to the conditions of the End User License Agreement. When offering the Software for download to commercial end customers, MANUFACTURER shall provide the end customer with the End User License Agreement and shall expressly state that, by downloading the Software, the user unconditionally accepts the terms and conditions of the End User License Agreement. When offering the Software for download to end customers, MANUFACTURER shall also expressly state that the offer is only directed at commercial end customers, not at private end consumers.

3.       Obligations of MANUFACTURER

3.1.    MANUFACTURER shall not alter or modify any copyright notices contained in the Author Files. MANUFACTURER acknowledges that AFMG’s trademarks are owned solely and exclusively by AFMG and agrees to use such trademarks only in selling, advertising and promotional material relating to the distribution of the System Definitions.

3.2.    MANUFACTURER is aware that the data files and the System Definitions contain specific performance data used for simulations. MANUFACTURER will use its utmost care and diligence when creating the data files and the System Definitions before integrating the Author Files. AFMG will not be liable for any claims resulting from a careless or negligent use of the System Definitions by MANUFACTURER.

3.3.    When mentioning the functionality of the Software publically (e.g., through advertising, on the internet etc.), MANUFACTURER shall make proper reference to AFMG and the Software.

3.4.    MANUFACTURER will provide its end customers with all information and documents required for the use of the System Definitions with the Software. The MANUFACTURER shall inform the end customers on all enhancements and developments of the Software from the time AFMG has released and marketed such enhancements and developments.

3.5.    MANUFACTURER should offer its end customers assistance with respect to an initial instruction to the Software and offer training courses if needed. Such instructions and training courses shall be carried out according to the guidelines provided by AFMG.

3.6.    In the event of any material breach of the provisions of this Agreement, AFMG is entitled to exclude MANUFACTURER’s System Definitions from the Software. All other rights, including the right to terminate the Agreement for good cause, remain unaffected.

4.       Purchase of Author Files

4.1.    MANUFACTURER can purchase Author Files from AFMG in sets of five (5) Author Files for one brand as defined by the MANUFACTURER as specified in AFMG’s then current Price List. Each set includes support for a maximum of five (5) different types of loudspeaker cabinets of the MANUFACTURER.

4.2.    From the moment of delivery of the Author Files to MANUFACTURER, AFMG shall support the respective System Definitions with respect to the version of the Software that is compatible and supported by AFMG at this point in time, or any free upgrades of the Software, for at least three further years.

4.3.    MANUFACTURER will provide AFMG with the display and internal names of the types of loudspeaker cabinets which MANUFACTURER intends to license as well as any technical information as required for the licensing process by AFMG. AFMG shall confirm if the types of loudspeaker cabinets can be used with the Software (these types of loudspeaker systems shall hereinafter be referred to as “Licensed Models”).

4.4.    Upon payment of the License Fee(s) set forth in Section 5, and upon request by MANUFACTURER in writing (email is sufficient), AFMG shall provide MANUFACTURER with Author Files for the Licensed Models. AFMG shall provide the Author Files by email or by download link, normally within five business days.

4.5.    AFMG keeps track of all purchased and of all delivered Author Files, and provides MANUFACTURER with the corresponding information upon request.

4.6.    The  parties expressly agree that the purchase of Author Files from AFMG is only valid for use of the Software in its current version, i.e., EASE Focus Version 3. In the event that AFMG publishes upgrades, and MANUFACTURER wishes to purchase an upgrade, MANUFACTURER has to pay an upgrade fee to AFMG subject to AFMG’s then current Price List.

5.       Prices and Payments

5.1.    MANUFACTURER shall pay to AFMG the license fees for the purchase of Author Files according to AFMG’s then current Price List. In the event that AFMG shall employ affiliate companies or distribution partners, MANUFACTURER shall, only upon express request by AFMG, pay the license fees to such affiliate companies or distribution partners as requested by AFMG.

5.2.    AFMG shall send an invoice to MANUFACTURER for all fees payable by MANUFACTURER under this Agreement. All payments under this Agreement are payable according to the payment conditions of the respective invoice from AFMG. If not otherwise indicated in the respective invoice, any payments should be made to:

Bank: Deutsche Bank AG
BIC (SWIFT): DEUT DE DBBER
IBAN: DE54 1007 0024 0730 6988 00
Bank Code: 100 700 24
Account no.: 730 69 88

5.3.    Unless otherwise agreed by the parties, all prices do not include any sales, use, withholding, value added or similar taxes, government fees or levies or other assessments which shall be the sole responsibility of MANUFACTURER.

5.4.    In the event MANUFACTURER desires to sell the System Definitions, MANUFACTURER is free to set its own prices to end customers.

5.5.    For the avoidance of doubt, the parties agree that MANUFACTURER is not entitled to any reimbursement of fees paid to AFMG under this Agreement in the event that the life cycle of the Licensed Models terminates.

6.       Limitation of liability

6.1.    AFMG shall not be liable for any claims for damages or any claims for reimbursement of wasted expenses, regardless of the type of violation involved and regardless of the legal grounds, except, (i) in cases involving wilful misconduct, where liability shall be governed by applicable law, regardless of the type of damages involved; (ii) in cases involving personal injuries or damages recoverable under the German Product Liability Act (Produkthaftungsgesetz), where liability shall be governed by applicable law, regardless of default; or (iii) in cases involving property damages, where liability shall be limited to gross negligence.

6.2.    Except as provided in Section 6.1. above, AFMG shall not be liable for any damages, including, without limitation, financial losses of any kind.

6.3.    The limitation of liability as defined in Section 6.1. above applies to the same extent to any kind of damages caused by gross negligence of employees or otherwise authorised persons of AFMG.

7.       Jurisdiction, Governing law, final provisions

7.1.    Any disputes arising from or in connection with this agreement shall be determined by a court of competent jurisdiction in Berlin, Germany.

7.2.    This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany, with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

7.3.    If any provision of this agreement shall be held invalid, the validity of the remaining provisions shall remain unaffected thereby. Any invalid provision shall, to the extent permitted by law, be replaced by such valid provision as most closely reflects the commercial intent and purpose of the original provision. The forgoing shall apply analogously if any provision shall have been inadvertently omitted from this agreement.

7.4.    Any modifications or amendments to this agreement, including any waiver of this provision, shall be invalid unless executed in writing and duly signed by both Parties. This agreement reflects the entire agreement between the parties. The parties have entered into no oral or written collateral Agreements with respect to the subject matter hereof. Any other terms and conditions of the MANUFACTURER are hereby excluded and shall not be part of this agreement.

Version: 1.2
Berlin, April 12, 2022

 

AFMG Technologies GmbH Company Data

AFMG Technologies GmbH
Borkumstr. 2
13189 Berlin
Germany

Management:
Prof. Dr.-Ing. habil. Wolfgang Ahnert
Dr. rer. nat. Stefan Feistel

Registered at:
Berlin-Charlottenburg                             HRB 115012 B
Tax no.:                                                     37/483/21254
VAT ID:                                                      DE261093044
EORI no.:                                                   DE1173936

General Terms and Conditions of AFMG Technologies GmbH

1. Scope

1.1   The following Terms and Conditions apply to all contracts of AFMG Technologies GmbH (“Software Developer”) relating to sales, maintenance, installation and other services. They also take precedence over any conflicting terms and conditions of the customer, except where the validity of the latter has been expressly approved.

1.2   Separate contracts, each independent of the other, shall be drawn up regulating the production of software, the provision of coaching and training, support and maintenance for the software, and other services.

1.3   Business relations are entered into only with companies, legal entities incorporated under public law or specialised entities subject to public law. Business dealings are not entered into with customers - natural persons - who are not self-employed or otherwise trading on their own account.

2. Conclusion of contract

2.1   Orders via the online shop of the software developer located at http://store.afmg.eu are placed in the following way: The customer may initiate a purchasing contract covering the items in his shopping trolley by clicking “Pay Now”. This is only possible, however, if he has first accepted these Terms and Conditions by clicking “Accept Terms and Conditions”, thereby linking the Terms to his order. The confirmation of receipt, which AFMG will send immediately and which will contain all the details of the order, does not imply acceptance of the initiated purchasing contract. The purchasing contract is deemed entered into when AFMG dispatches the ordered goods and confirms the dispatch in writing.

2.2   In respect of other services offered by the software developer, including products available through channels other than the online shop, a contract is not deemed entered into until the customer has countersigned the confirmation of contract, the wording of which determines the substance of the contract.

3. Scope of software contracts; licensing conditions

3.1   The software developer will provide the customer with a copy of the purchased software by email or FTP or as a download from the internet address http://downloads.afmg.eu and also with the relevant electronic manual as a PDF, HTML or DOC document. These are intended exclusively for the personal use of the customer. The software developer retains all copyright, in particular rights to all recordings and documentation.

3.2   The customer may also order a duplicate CD for back-up or archiving purposes or for the identification of defects. The replication of recordings or documentation is prohibited.

3.3   The customer must take the necessary measures to prevent third parties from gaining unauthorised access to the software. He must store the software in a secure location that precludes such access. The customer’s employees and colleagues are to be familiarised with the terms of this contract and with the software developer’s ownership of copyright.

3.4   Barring agreements to the contrary, this contract does not cover installation of the software supplied by the software developer.

3.5   The customer may only use a copy of the software on a single computer. Where the customer purchases a multiple-use version, he may use the agreed number of copies on the appropriate number of computers. “Use” encompasses the saving of the software in a temporary storage medium (RAM) or on a permanent storage device (in particular on a hard drive, removable disk, USB stick or CD-ROM).

3.6   The customer may not lease or lend the licence. This restriction includes ceding the licence to a third party with whom he shares office space. If there is transfer to a third party the whole software contract must be transferred, not simply the licence. The third party must accept that the provisions of the contract still apply and the customer will then provide the new party with all copies and back-ups of the programme and the digital manual as a working copy together with any back-ups. In so doing, he forfeits his right to use the software and must de-install the software from his system.

3.7   The transfer of the contract to a third party is valid only if the software developer has been informed in advance and has consen­ted to the transfer in writing. Only in exceptional cases and with good reason will he withhold consent.

3.8   Pursuant to § 69 e UrhG the software supplied by the software developer may not be reconverted, decompiled or disassembled. Modifications to the software are only permissible if they help to correct defects in the software and if the software developer has not corrected said defects within a statutory period.

4. Support and maintenance

4.1   Support and maintenance for the software are provided on the basis of a maintenance contract.

4.2   Maintenance covers the services expressly listed in the confirmation of the order. The minimum level of maintenance involves a hotline service centre, the automated provision of large and medium-sized updates, remote diagnosis and maintenance and an online service for providing interim releases.

4.3   Maintenance services relate exclusively to software produced by the software developer. If the customer sells this software, the software developer is no longer obliged to provide support and maintenance. The   developer will repay to the customer a portion of the fee representing the unused period up to the end of the contract, but only if he has been able to save costs or to make money by providing the services to another party.

4.4   Should the customer fall behind on payment the software developer is entitled to withhold support or maintenance until payments are up-to-date and to demand payment in advance.

5. Other services

5.1   The software developer provides other services to the customer. These will include installation of the software where this has been agreed in writing. Up-to-date information on fees for additional services is available from the software developer. The customer undertakes to bear any costs incurred by the software developer in the course of providing these services, where the costs have been discussed in advance.

6. Prices, conditions of payment, dispatch and delivery

6.1   Prices are as set out on the latest list compiled by the software developer and are exclusive of VAT, postage/packaging and insurance. All sums invoiced are payable immediately. Interest is payable on arrears and is set at 8% above the basic rate pursuant to § 247 BGB.

6.2   Set-off is only admissible in the case of claims that are uncontested, are contested but ready for decision or have been declared final and absolute. The customer has no rights of retention where they are unrelated to this contractual relationship. In exercising a right of retention, the customer may not retain a sum higher than that of his own claim.

6.3   In the case of an online purchase, and where the software developer receives the customer’s order direct, the software will be made available to the customer within three working days of receipt of the order. Where payment in advance is required, delivery will be made only after payment has been received in full by the software developer.

6.4   In all other cases (with offline orders or where a CD or other physical item has been ordered) delivery will be within three weeks unless otherwise specified in the confirmation of contract. The delivery period begins on the day of confirmation of contract. The software developer will enter the date on the confirmation.

6.5   Should the software developer be prevented by unforeseen and unavoidable circumstances from complying with his delivery obligations, the delivery period shall be extended commensurately. Where this is the case, the software developer will inform the customer without delay. The date for determining whether the delivery deadline has been met is the date of dispatch of goods.

6.6   Where the software developer is accountable for failing to honour a delivery deadline the customer may extend the deadline by an appropriate period. Only when this extension period has elapsed without delivery being made can he withdraw from the contract.

6.7   Responsibility for the software is transferred to the customer at the moment when the goods are entrusted by the software developer to the postal service, courier or haulier.

7. Reservation of title

7.1   The software developer retains ownership of all data storage media and other goods until payment has been received in full of all sums outstanding at the time of supply of goods relating to this contract between the customer and the software developer. It is the duty of the customer to diligently safeguard and adequately insure all products that remain the property of the software developer.

7.2   The software is supplied free of third-party property rights. Should a third party accuse the customer of infringing his industrial property rights in respect of the software supplied, the customer must notify the software developer immediately. The two contracting parties will then consult on how to respond.

8. Claims arising from defective goods

8.1   The customer undertakes to examine the software and the associated manual for defects within two weeks of receipt, and in particular to ensure that no components are missing, that the manual is complete and that all the key features of the programme function as they should. Before a third week has elapsed the customer should have notified the software developer, in writing, of any defects identified and any problems that can be identified in the course of a regular inspection. Notification should include a detailed description of all faults. Should the customer fail to examine the goods and report defects within the said period, the software is deemed to be faultless and the transaction to have been approved.

8.2   Should steps have to be taken by the software company to correct a defect, it is the responsibility of the customer to back up important files prior to repair works being carried out.

8.3   The customer is not entitled to claim compensation for defects arising from mistakes caused by damage, incorrect connections or incorrect operation. Neither is the software developer liable for damage resulting from modifications to the goods and services by the customer or third parties, unless the customer can demonstrate that said modifications do not seriously impede the software developer in his efforts to analyse and correct the problem and that the defect was already present when the customer took possession of the software.

8.4   Should the customer withdraw from the contract, he shall pay to the software developer an appropriate fee reflecting his usage of the software up to the date of withdrawal. This user fee is calculated on the basis of a three-year depreciation period.

8.5   Claims arising from defects are subject to a statute of limitations of one year, starting from delivery of goods.

8.6   The software developer is liable for defects in the software pursuant to the law governing the sale of goods:

9. Limitation of liability

9.1   The software developer is fully liable for loss of life, bodily harm or compromised health resulting from negligence and breach of obligations on his part or from deliberate or negligent breach of obligations by one of his agents or assistants.

9.2   In the case of other liability claims the software developer shall be fully liable only where the software is found not to possess the advertised features and functions or where it can be demonstrated that the software developer or his agents or key employees are guilty of premeditation or gross negligence. Where the fault can be attributed to other assistants or lower-echelon employees the software developer shall be liable only in respect of ordinary negligence as set out in Point 6.4.

9.3   In respect of ordinary negligence the software developer is liable only where he is in breach of an obligation whose observance is of special importance for the fulfilment of the purpose of the contract (cardinal obligation).

9.4   Barring invocation of Point 9.1, liability for loss of data is limited to the standard cost of recovery that would have been incurred in the course of regular backing up of data commensurate with the risk of loss. Liability as set out in the Product Liability Act (Produkthaftungs­gesetz) remains unaffected.

9.5   The above provisions also apply in favour of the colleagues and assistants of the software developer.

10. Final provisions

10.1   Contracts between the software developer and the customer are interpreted exclusively in accordance with the law of the Federal Republic of Germany.

10.2   Place of fulfilment for both parties is the office of the software developer in Berlin. Berlin is also the legal venue.

10.3   In a case where one or more provisions agreed on by the contracting parties become, or are found to be, invalid, this shall not affect the validity of the remaining provisions. An invalid provision shall be replaced by one that most nearly reflects the purpose of the original provision as intended by the contracting parties. If the provisions of this contract are found not to cover all eventualities, the lacuna is to be filled with a provision or provisions that the parties would have agreed on if full account had been taken of the legal position, the matter at hand and the legitimate interests of each party.

 

Version: 1.3
Berlin, December 1, 2021

Additional Sales Terms

• Prices do not include VAT. Depending on the origin of the customer and the type of product, VAT might be charged in addition to the net price.

• Valid prices at any time are the ones listed in this document. Other, possibly older printouts, prices cached in search engines, outdated proposals etc. are not applicable.

• All prices are subject to change without prior notice.

• At any time, the price provided in Euro (€) is valid. Prices provided in other currencies are approximate and provided for rough orientation only.

• In principle, only one discount can be applied to any purchase.

• If authorities in the land of the customer's origin or the customer himself demand original documents in paper form, the customer accepts additional courier costs of 60 EUR within the EU or of 120 EUR per shipment outside of the EU. These costs need to be paid by the customer prior to shipment and will be noted as a separate line item on the final invoice. If the customer decides to employ his own forwarder, only the costs for the original document (30 EUR) apply.

• If you purchase an upgrade or module for only a subset of User Keys, we will split your license. Your existing license will remain with a reduced number of User Keys. You will receive an additional new license with the new feature scope for the respective number of User Keys. Does not apply for EASE 5 (1 User per license).

• Certain license-related services, updating of company data in licensed programs, transfer of licenses etc. may be possible at a service charge of 50 € net.

• Delivery principally is by download from our website. After settlement of payment and credit entry, you will receive an email with your license information.

• Manuals and/or tutorials are included in the online help and documentation of the programs.

• All paid software licenses include 6 months of email and telephone support for installation, licensing, or technical software issues as part of the purchase. This service does not apply to trial or educational licenses. Project consulting services are not part of the software purchase.

• Most of our software, manuals and tutorials are provided in english language only.

• Installation CDs/DVDs and manuals/tutorials can be ordered separately and at extra cost if desired. Delivery may be by an external service partner of AFMG.

• Educational institutions such as schools or universities can apply for special educational or research license offers.