Terms and Conditions - EASE 5 Early Adopter Program

Terms and Conditions for EASE 5 – Early Adopter Program

Preamble

AFMG is a worldwide leader in the development of software for the pro-audio industry. AFMG has developed, amongst other programs, and is the sole owner of, the software EASE, currently available in its Version 4 (“EASE 4”). EASE is an 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.


AFMG is currently developing Version 5 of the software (hereinafter “EASE 5”). Prior to the official release of EASE 5 (scheduled for 2020), AFMG is offering its customers that already own a license in the software (Version 4), to participate in AFMG’s EASE 5 - Early Adopter Program regarding the currently developed Early Adopter Version of EASE 5 according to the following terms and conditions. These terms and conditions (also the “Agreement”) govern the legal relationship between AFMG Technologies GmbH, Borkumstraße 2, 13189 Berlin, Germany (“AFMG”), and the commercial end user participating in the EASE 5 - Early Adopter Program (“User”). This Agreement does not apply to private end users. By downloading the Early Adopter Version of EASE 5 from AFMG’s website, the User unconditionally accepts the terms and conditions of this Agreement.


1.    Subject of the agreement


1.1.    Subject of the agreement is the User’s participation in AFMG’s EASE 5 Early Adopter Program (“EASE 5 EAP”) as set forth herein.
1.2.    The EASE 5 EAP is available for those customers that already own an EASE 4 license. It is not available for private end users. AFMG may limit the number of Users eligible for the EASE 5 EAP according to demand in its sole discretion.
1.3.    AFMG provides the Early Adopter Version of EASE 5 (hereinafter also referred to as the “Software”) for use for a limited time via download from its website. AFMG provides the User with one or up to 5 user key(s) and access to download the Software. After installation, the User needs to activate the Software.
1.4.    The establishment and maintenance of a functional hardware and software environment is the sole responsibility of the User. The minimum system requirement for the installation of the Software is Windows 7 (64-Bit) and DirectX 11 Feature Level 10 or higher. AFMG does not provide and has no obligation to provide the User with the source code of the Software. The User shall observe all instructions provided by AFMG for the installation and operation of the Software.    
1.5.    AFMG shall provide a feedback system via a forum and surveys in order to communicate with the User regarding the User’s experience with the Software.
1.6.    AFMG shall also provide support services for the Software via email and the forum.
1.7.    For participation in the EASE 5 EAP (including the rights granted under this Agreement and for all services provided by AFMG hereunder), the User pays a one-off registration fee.

 

2.    Grant of rights


2.1.    AFMG grants the User a non-exclusive, non sublicensable and non transferable right for the term of this Agreement to use the Software on a number of computers only. This number corresponds to the number of user keys provided by AFMG.
2.2.    Reproduction of the Software is only permitted insofar as it is necessary for use of the Software in compliance with this Agreement. The User may produce backup copies of the Software as is necessary and in keeping with good practice. Backup copies on removable data storage media must be labeled as such and must bear all copyright and proprietary notices.
2.3.    The User is not authorized to change, adapt, arrange or otherwise modify the Software unless expressly allowed under the applicable copyright law or upon prior written consent by AFMG.
2.4.    The User is only entitled to decompile the software within the limits of Section 69e of the German Copyright Act, and only if AFMG has not, subsequent to the User’s request in writing, provided the data and/or information necessary to establish interoperability with other hardware and software.
2.5.    The User must not transfer or sublicense the Software to third parties without prior written consent by AFMG.
2.6.    AFMG remains the sole owner of all rights in and to the Software and reserves all rights not granted to the User under this Agreement.
2.7.    All materials and software provided within the EASE 5 EAP are confidential information. The User must not share or show in public the Software or parts of the Software, screenshots or documentation of the Software. The communication and documentation necessary for conducting a real acoustic design project for which the Software is used are excepted.

 

3.    Scope of the software


3.1.    The Software allows the User to work on simple to medium-sized projects and includes the following features:

  • Input of the spatial geometry on the basis of imported drawings (2D) or free
  • Assignment of wall materials from an extensive catalogue
  • Entering Audience Areas
  • Placement and configuration of loudspeakers (GLL format)
  • Acoustic calculations as with Room Mapping in EASE 4.4
  • Import of projects in EASE 4 format

3.2.    The Software does not yet allow the following, among other things:

  • Input of line arrays and digital sound columns
  • Entering listener locations
  • Reflection analysis via EASE raytracing (Note: AURA mapping, AURA response are available)


3.3.    In the course of the EASE 5 EAP and after the release of EASE 5, AFMG will gradually integrate further features, including the features listed in Section 3.2. For the avoidance of doubt, the User does not have any right or claim that AFMG develop or integrate any of these features.

3.4.    New features will be made available via updated Software versions. These software updates will be provided only until the date of the official release of EASE 5. After the release of EASE 5, no further versions of the Software will be made available. For the avoidance of doubt, it is expressly agreed between the Parties that after the official release of EASE 5, AFMG is under no obligation to provide further versions of the Software.

4.    Software activation levels


As mentioned in Section 1.2 above, participation in the EASE 5 EAP requires a valid EASE 4 license of the User. The software activation level, also understood as feature set, of the User in the EASE 5 EAP will correspond with the User’s software activation level according to its EASE 4 license.
The following software activation levels will be available for the EASE 5 EAP:

  • EASE JR
  • EASE Standard
  • EASE Standard + EARS
  • EASE Standard + AURA 3
  • EASE Standard + AURA 4
  • EASE Standard + AURA 3 + EARS
  • EASE Standard + AURA 4 + EARS

In case the User has an EASE 4 Standard license with EARS and an EASE 4 Standard license with AURA 3, the software activation level provided will be Standard + AURA 3 + EARS.


In case the User has an EASE 4 Standard license with EARS and an EASE 4 Standard license with AURA 4, the software activation level provided will be Standard + AURA 4 + EARS.


5.    Feedback system and support


5.1.    AFMG shall provide a feedback system via an online forum and online surveys in order to communicate with the User regarding the User’s experience with the Software. The forum shall be the main channel of communication between the User and AFMG regarding the EASE 5 EAP.
The “Early Adopter Feedback Board” forum provides the User with the functionality to open new forum entries, to comment on other User’s entries and to submit tickets. The forum is a closed forum and accessible only to participants of the EASE 5 EAP. AFMG will email log-in data for the forum to the User after the registration fee was paid. The forum is available at https://eafeedback.afmg.eu.
Moreover, AFMG will ask the User to provide specific feedback by responding to internet surveys designed by AFMG. Such surveys will be conducted using websites of service providers such as SurveyMonkey. When such a survey is run, the User will be invited by email to participate.

 

5.2.    AFMG shall provide the following support services for the Software and the Upgrade to the User

  • E-mail support within AFMG’s regular business hours;
  • Support via AFMG’s EASE 5 EAP forum.

The aforementioned support services shall be provided by AFMG free of charge. In the event the User wishes further support services (such as for substantive amendments of the Software), AFMG reserves the right to charge for these additional support services according to its then current price list.

 

6.    Registration fee


6.1.    The fee to participate in the EASE 5 EAP is a one-off lump sum fee of EUR 100 (“Registration Fee”).
6.2.    The Registration Fee is due and payable upfront by the User before downloading the Software from AFMG’s website.


7.    Term and termination


7.1.    This Agreement enters into force as soon as the User downloads the Software from AFMG’s website.
7.2.    Any rights of withdrawal or right to return the Software do not apply.
7.3.    The Agreement is effective until six (6) months after the official release of EASE 5. AFMG shall inform the User about the official release of EASE 5 and notify the User about the specific termination date of this Agreement. After termination of the Agreement, the User is not allowed to use the Software any longer and all rights granted under the Agreement terminate. Moreover, AFMG shall be under no obligation to provide any services, such as feedback systems or support, after termination of the Agreement.
7.4.    The right to terminate the agreement for good cause shall remain unaffected.


8.    Limitations of liability


8.1.    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:
a)    In cases of damage from injury to life, body or health due to negligent breach of duty by AFMG or intentional or negligent breach of duty by a legal representative or a person used to perform an obligation of AFMG;
b)    In cases of other damage arising from a grossly negligent breach of duty by AFMG or from an intentional or grossly negligent breach of duty by a legal representative or a person used to perform an obligation of AFMG;
c)    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.
8.2.    Except as provided for in Section 9.1., AFMG shall not be liable for any damages, including, without limitation, financial losses of any kind.


9.    Indemnification

9.1.    The User shall fully indemnify AFMG from all third party claims, which arise from any illegal, culpable use of the Software by the User. This includes in particular patent claims, copyright claims or other commercial intellectual property right claims as well as claims arising from a violation of personal rights or from the unauthorized collection, storage and application of personal data. The User will indemnify and hold harmless AFMG from all legal fees reasonably incurred by AFMG that are attributable to any such claim.


9.2.    In the event the User learns or must learn that the infringement of such right is imminent, the User shall immediately inform AFMG.

10.    Jurisdiction, governing law, final provisions


10.1.    Any disputes arising from or in connection with this Agreement shall be determined by a court of competent jurisdiction in Berlin, Germany.
10.2.    This Agreement shall be governed by and construed in accordance with the laws of Germany. For the avoidance of doubt, the United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.
10.3.    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 terms and conditions of the User do not apply. For the avoidance of doubt, it is expressly agreed between the parties that this Agreement shall prevail over any terms and conditions used or referred to by the User.
10.4.    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 respectively if any provision shall have been inadvertently omitted from this Agreement.

Version: 1.1
Berlin, December 3, 2021

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