BONGIOVI DPS END USER LICENSE AGREEMENT
Last Revised March 23, 2018
Bongiovi Digital Power Station (DPS), the software product, including any updates and modifications thereto, any accompanying documentation, and the specified audio processing profiles below (collectively, the “Software”), is offered pursuant to the terms and conditions outlined in this software license agreement (the “Agreement”).
This Agreement is a legally binding contract between you and/or the company you represent (“you,” “your”) and Bongiovi Acoustics, LLC (“we,” “us,” “our”). By clicking “I Accept the Terms and Conditions of this Agreement,” purchasing, downloading, installing, or otherwise using the Software made available by us, you acknowledge that you have read and understood this Agreement and agree to be bound by it, and to the extent that you are entering into this Agreement on behalf of a company, you further acknowledge that you have the power and authority to bind that company. If you do not accept this Agreement, you are not permitted to download, install, execute, or otherwise use the Software.
1. Description of the Software
The Software includes the Bongiovi Digital Power Station (DPS) which allows you to enhance the audio playback of your media content on a computer, mobile device, tablet, or other supported electronic or personal devices, depending on the operating system version purchased (e.g., Windows®, OS X®, Android™, iOS®).
2. License Grant
Subject to the terms of this Agreement, and upon your purchase of the Software, we hereby grant you the following limited, non-exclusive, non-transferable license to use the Software (the “License”).
(a) Limited Use
Pursuant to this License, you may only use the Software for personal use on a personally owned hardware device. The Software shall not be used for any commercial or production purposes. This License expressly prohibits: (i) any monetary benefit, direct or indirect, from the use of the Software; (ii) the use of the Software in a business, regardless of whether the business is home-based or part-time; and (iii) the use of the Software for any commercial, business, government or institutional purpose, including educational, medical/health and non-for-profit, of any kind.
You shall not reverse engineer, decompile, disassemble the Software or otherwise attempt to discover any source code, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You shall not: (a) reproduce or copy any portion of the Software; (b) produce derivatives or otherwise modify any portion of the Software; or (c) use any means to circumvent any copy protection of the Software.
Each License is valid for one (1) hardware device. You shall not enable use of the Software for a greater number of hardware devices than the total quantity of License purchased.
Your License is not transferable to any other party. You shall not sell, rent, lease, sub-license, or otherwise transfer any rights under this Agreement. In the event that such transfer activity is expressly permitted by applicable law notwithstanding this limitation, you may only transfer any rights upon the third party’s agreement that this Agreement applies to the transfer and use of the Software.
As part of your License, we may provide you with limited technical support for the Software. We may limit or terminate your support at any time if your use of the support services is determined by us, at our sole and reasonable discretion, to be excessive.
In no event will we provide support to any portions of the Software modified by a third party, any third party application programmable interfaces, or any third party programs, regardless of whether such programs are used in conjunction with the Software.
(c) Other types of licenses:
(i) NFR Version. We may designate the Software or Services as “trial”, “evaluation”, “not for resale”, or other similar designation (“NFR Version”). You may install and use the NFR Version only during the period and only for the purposes that we have stated when we provide the NFR Version. You must not use any materials you produce with the NFR Version for anything other than non-commercial purposes.
(ii) Pre-release Version. We may designate the Software or Services, or a feature of the Software or Services, as a pre-release or beta version (“Pre-release Version”). Pre-release Version does not represent the final product and may contain bugs that may cause system or other failure and data loss. We may choose not to commercially release the Pre-release Version. You must promptly cease using the Pre-release Version and destroy all copies of Pre-release Version if we request you to do so, or if we release a commercial version of the Pre-release Version. Any separate agreement we enter into with you governing the Pre-release Version will supersede the provisions on Pre-Release Version set out in this section.
(iii) Institutional Version. If we designate the Software or Service as for use by institutional users(“Institutional Version”), then you may only use the Institutional Version if you meet the eligibility requirements set forth for this version. You may install and use Institutional Version only in the country where you are qualified as an institutional user. If you reside in the European Economic Area, then the word “country” in the sentence preceding this one means the European Economic Area.
3. Intellectual Property
We retain ownership and control of all intellectual property inherent in, associated with, or related to the Software, including, but not limited to, copyrights, patent rights, trademarks, trade dress, or service mark rights, whether registered or unregistered, arising under Federal, State, or Common-Law, as well as confidential or commercially sensitive information, such as trade-secrets.
You acknowledge that you are obtaining a License to use the Software for its intended use pursuant to Section 2(a) of this Agreement. No ownership rights are being conveyed to you under this Agreement.
You acknowledge that the Software is confidential and contains valuable and proprietary trade-secrets which belong to us. Except as expressly provided by this Agreement, under no circumstances may any portion of the Software or any modified version of the Software be distributed, disclosed, or otherwise made available to a third party by you.
You shall not use our product names, logos, or trademarks, unless first expressly authorized to do by us in writing.
You may only use the Software if you are over 13 years old unless under supervision of parent or guardian.
You have no obligation to provide us with ideas, suggestions, or proposals (“Feedback”). However, if you submit Feedback to us, then you grant us a non-exclusive, worldwide, royalty-free license that is sub-licensable and transferable, to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, and publicly perform the Feedback.
6. Fees and Payments
(a) Taxes and Third-Party Fees. You must pay any applicable taxes, and any applicable third-party fee (including, for example telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, foreign exchange fees, foreign transaction fees). We are not responsible for these fees. Contact your financial institution with questions about fees. We may take steps to collect the fees you owe us. You are responsible for all related collection costs and expenses.
(b) Credit Card Information. If you do not notify us of updates to your payment method, to avoid interruption of your service, we may participate in programs supported by your card provider to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.
You may terminate this Agreement at any time by destroying all copies of the Software or by returning all copies of the Software to us. Your rights and License under this Agreement will terminate automatically without notice from us if you fail to comply with any term(s) of this Agreement. Upon termination of this Agreement, you shall immediately cease use of the Software and return to us (or, at our request, destroy) the Software and all tangible items in your possession or control that are proprietary to or contain confidential information related to the Software.
Termination by You. You may stop using the Software or Services at any time. Termination of your account does not relieve you of any obligation to pay any outstanding fees.
Termination by Us. If we terminate these terms for reasons other than for cause, then we will make reasonable effort to notify you at least 30 days prior to termination via the email address you provide to us with instructions on how to retrieve your content. Unless stated in Additional Terms, we may, at any time, terminate your right to use and access the Services or Software if:
(a) you breach any provision of these terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with these terms);
(b) you fail to make the timely payment of fees for the Software or the Services, if any;
(c) we are required to do so by law (for example, where the provision of the Services or Software to you is, or becomes, unlawful);
(d) we elect to discontinue the Services or Software, in whole or in part, (such as if it becomes impractical for us to continue offering Services in your region due to change of law); or
(e) there has been an extended period of inactivity in your free account.
Survival. Upon expiration or termination of these terms, any perpetual licenses you have granted, your indemnification obligations, our warranty disclaimers or limitations of liabilities, and dispute resolution provisions stated in these terms will survive. Upon the expiration or termination of the Software or Services, some or all of the Software may cease to operate without prior notice.
We may access or disclose information about you, or your use of the Software or Services, (a) when it is required by law (such as when we receive a valid subpoena or search warrant); (b) to respond to your requests for customer service support; or (c) when we, in our discretion, think it is necessary to protect the rights, property, or personal safety of us, our users, or the public.
9. Changes to Software and Agreement
We expressly reserve the right to, at any time and from time to time, modify, suspend, or discontinue the Software and related services, or any parts thereof, at our sole discretion.
We expressly reserve the right to make changes to this Agreement, at any time and from time to time, as the Software and any related services change. Your continued use of the Software after a change to this Agreement constitutes your acceptance of the changes to this Agreement. If you do not agree to be bound by this Agreement, as modified, you must terminate your use of the Software immediately. It is your responsibility to review, from time to time, the most current version of this Agreement, which will be available at http://support.bongiovidps.com/eula, so that you will be apprised of any changes.
10. Limited Warranty
We warrant solely to you that the Software, used under a valid License, will perform and function substantially as advertised or described in any materials that accompany the Software, for the operating system version purchased. We will repair or replace this software free of charge if it has proven to be defective within 30 days of purchase, and upon receiving written notice of a breach of warranty. Your dated sales slip or product registration will establish your eligibility for warranty service.
We do not warrant or guarantee that the use of the Software will be uninterrupted or error free at all times and in all circumstances, nor that program errors will always be corrected. This limited warranty shall not apply to any error or failure resulting from (i) machine error, (ii) your failure to follow operating instructions, (iii) negligence or accident, or (iv) modifications to the Software by any person or entity other than us. In the event that we breach a warranty, we will, at our election, (i) repair all or any portion of the Software, or (ii) refund the purchase price paid for the current License for the defective Software only.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW.
11. Limitation of Liability
YOU EXPRESSLY AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK. UNDER NO CIRCUMSTANCES SHALL WE, OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO RELIANCE BY YOU ON ANY INFORMATION OBTAINED AT THE SITE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, INCLUDING, WITHOUT LIMITATION, COMPUTER “VIRUSES”, “WORMS”, “BUGS”, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS OR SERVICES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF AN AUTHORIZED REPRESENTATIVE OF OURS HAS BEEN ADVISED OF OR SHOULD HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, MERCHANDISE AND SERVICES AVAILABLE THROUGH THE SOFTWARE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED IN AGGREGATE THE LESSER OF THE SOFTWARE PURCHASE PRICE OR THE LOWEST AMOUNT PERMITTED BY APPLICABLE LAW. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
We recognize that in some countries you may have legal rights as a consumer. To the extent that these legal rights are applicable to this License notwithstanding this section, then nothing in these terms or any additional terms limit those consumer legal rights which may not be waived by contract.
12. Dispute Resolution
Process. For any concern or dispute you may have, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, you or us must resolve any claims relating to these terms, the Services, or the Software through final and binding arbitration, except that you may assert claims in small claims court if your claims qualify.
No Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.
Injunctive Relief. Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Software or Services or content in violation of these terms you agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
You hereby agree to indemnify, hold harmless, and defend us, our affiliates, directors, officers, employees and agents from and against any and all claims, lawsuits, or other proceedings, and reimburse all expenses, costs, reasonable attorneys’ fees, judgments, damages, and other liabilities resulting from the same claims, lawsuits, or other proceedings which arise or result from your use of the Software. Notwithstanding the foregoing, we retain the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of actions which are brought against us and in no event shall you settle any such claim without our prior written approval.
14. Choice of Law
This Agreement will be governed by the law of the State of Florida, without regard to the conflict of laws principles thereof.
If any dispute, controversy, or claims cannot be resolved in good faith between the parties, then it shall be submitted for resolution to a court of competent jurisdiction in Miami-Dade County, Florida, and the Federal Courts in and for the Southern District of Florida, and the parties hereby submit that exclusive venue shall lie with such courts, and the parties hereby irrevocably submit to the jurisdiction and venue of such courts.
We recognize that the courts of some countries do not apply the laws of Florida, USA to certain disputes. If you reside in one of these countries where Florida law is excluded from being applied, your country’s law will then apply to such disputes related to this Agreement. Similarly, if the courts in your country do not permit you to consent to the jurisdiction and venue of Miami-Dade County, Florida, USA, then your local jurisdiction and venue will apply to such disputes related to this Agreement.
English Version. The English version of these terms will be the version used when interpreting or construing these terms.
Notice to Bongiovi. You may send the notices to us at the following address: Bongiovi Acoustics, LLC, 649 SW Whitmore Drive, Port St. Lucie, Florida 34984, Attention: General Counsel.
Notice to You. We may notify you by email, postal mail, postings within the Software or Services, or other legally acceptable means.
16. Entire Agreement
This Agreement sets forth the entire agreement between you and us regarding the Software and the License. You agree that there are no representations or obligations regarding your License other than those reflected in this Agreement, and that you are not relying on any representations or obligations regarding your License other than those reflected in this Agreement.
If any provision of this Agreement is held illegal or unenforceable in any proceeding, such provision shall be severed and shall be inoperative, and, provided that the fundamental terms and conditions of this Agreement remain legal and enforceable, the remainder of this Agreement shall remain in full force and effect.
18. Government Use
The Software and any supporting documentation are “commercial items” within the definition of 48 C.F.R. §2.101 in that it consists of “commercial computer software” and “computer software documentation” as defined in 48 C.F.R. §2.101. If the Software and/or any supporting documentation are licensed to the U.S. Government, any agency thereof, or any agent acting on behalf of the U.S. Government, the License will grant only those rights as are granted to all other licensees as set forth in this Agreement, consistent with 48 C.F.R. §12.212 and/or 48 C.F.R. §227.7202 et. seq.
19. Force Majeure
Any failure or delay in performance by either party shall be excused if and to the extent caused by an Act of God (fire, flood, earthquake, storm, hurricane or other natural disaster), war or civil disorder, invasion, act of foreign enemies, hostilities, terrorism, government actions, lockout or interruption or failure of electricity of network service, or other cause beyond the reasonable control of the parties.
20. Export Restrictions
You expressly agree not to export, re-export, sell, transact, or otherwise transfer the Software to anyone who is a Specially Designated National per the Office of Foreign Assets Control of the Department of the Treasury of the United States of America, or to any person who has been prohibited from transacting in exports in or from the U.S. by any federal agency. You also agree not to export, re-export, sell, transact, or otherwise transfer the Software to any destination or person that is within a country or territory which the U.S. Government has embargoed.
21. Consent to Data Usage
Last Revised March 23, 2018
Service begins as soon as your initial payment is processed. Your subscription will renew automatically, on your monthly renewal date, until you cancel. Your monthly rate will not change for the duration of your subscription. If you cancel within 14 days of your initial order, you’ll be fully refunded. Should you cancel after 14 days, your payment is non-refundable and your service will continue until the end of that month’s billing period. Cancellations can be made any time by visiting your Manage Account page or by contacting Customer Support within five (5) days prior to your billing date; otherwise, the cancellation will be effective from the next billing date.
Semi-Annual (every 6 months) Subscription
Service begins as soon as your payment is processed. You’ll be charged the semi-annual rate stated at the time of purchase, plus applicable taxes. Your contract will renew automatically, on your semi-annual renewal date, until you cancel. Your Semi-Annual rate will not change for the duration of your subscription. If you cancel within 14 days of your initial order, you’ll be fully refunded. Should you cancel after 14 days, your payment is non-refundable and your service will continue until the end of the billing period. Cancellations can be made any time by visiting your Manage Account page or by contacting Customer Support within five (5) days prior to your billing date; otherwise, the cancellation will be effective from the next billing date.
Service begins as soon as your payment is processed. You’ll be charged the annual rate stated at the time of purchase, plus applicable taxes. Your contract will renew automatically, on your annual renewal date, until you cancel. Your Annual rate will not change for the duration of your subscription. If you cancel within 14 days of your initial order, you’ll be fully refunded. Should you cancel after 14 days, your payment is non-refundable and your service will continue until the end of the billing period. Cancellations can be made any time by visiting your Manage Account page or by contacting Customer Support within five (5) days prior to your billing date; otherwise, the cancellation will be effective from the next billing date.