End User Licence Agreement

ALLEN & HEATH LIMITED

SOFTWARE LICENCE AGREEMENT

User Licence

IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE USING YOUR NEW PRODUCTS

This licence agreement (Licence) is a legal agreement between you (you) and Allen & Heath Limited of Kernick Industrial Estate, Penryn, Cornwall TR10 9LU (us or we) for use of the proprietary Allen & Heath and third party software products (Software), incorporated into the Allen & Heath Mix Rack and iLive Control Surface products you have purchased (Products), and includes your use of the hard copy, online or electronic documentation supplied with the Software (Documentation).  

BY SELECTING THE ACCEPT BUTTON, BREAKING THE SEAL ON THE SOFTWARE PACKAGE OR INSTALLING OR OTHERWISE USING THE SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENCE.  IF YOU DO NOT AGREE WITH THE TERMS OF THIS LICENCE, DO NOT INSTALL THE SOFTWARE OR, IF YOU HAVE RECEIVED THE SOFTWARE, PROMPTLY RETURN IT AND ANY ACCOMPANYING ITEMS (INCLUDING ANY WRITTEN MATERIALS AND PACKAGING) TO YOUR SUPPLIER TOGETHER WITH PROOF OF PURCHASE FOR A FULL REFUND.  IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS LICENCE, YOU ARE NOT AUTHORISED TO USE THE SOFTWARE FOR ANY PURPOSE WHATSOEVER.  ALSO, BY INSTALLING, COPYING OR OTHERWISE USING UPDATES OR UPGRADES FROM US YOU AGREE TO BE BOUND BY ANY ADDITIONAL LICENCE TERMS THAT ACCOMPANY ANY SUCH UPDATES AND/OR UPGRADES.  IF YOU DO NOT AGREE TO THE ADDITIONAL LICENCE TERMS THAT ACCOMPANY SUCH UPDATES AND/OR UPGRADES, YOU MAY NOT INSTALL OR USE SUCH UPDATES AND/OR UPGRADES.

GENERAL

The Software (including any Boot ROM code and Documentation, and whether on disc, in read only memory, on any other media or in any other form) is licenced, not sold, to you by us for use only under the terms of this Licence.  We reserve all rights not expressly granted to you.  The terms of this Licence will govern any software updates or upgrades provided by us that replace and/or supplement the original Software, unless such update or upgrade is accompanied by a separate licence in which case the terms of that licence will apply that update or upgrade. Updates and upgrades are made available to you at our sole discretion from time to time and exclude any software marketed and licenced by us as a new version or release of the Software.

Unless stated otherwise, Software includes that software which is captive in, or otherwise supplied with, the Products including the Allen & Heath applications running on the MPC852T  processors (distributed as iDRLiveStageBox.bin and iLive.bin), the Allen & Heath Java application running on a single board computer, the Allen & Heath H8 firmware for controlling motor fader sub-system and the Allen & Heath PIC firmware for PWM LED brightness control. 

The Products are also supplied with elements of third party software which is separate to our Software and is supplied subject to the terms of the GNU General Public Licence (GPL) or the GNU Library/Lesser General Public Licence (LGPL), as the case may be.  Subject to clause 14  and the terms of the relevant GPL or LGPL you may modify or replace these items of software.  We are not obliged to provide any warranty, maintenance, technical or other support for such software or any modified form of it.  Your attention is drawn to section 14 below.

GRANT AND SCOPE OF LICENCE

In consideration of your agreeing to abide by the terms in this agreement, we hereby grant to you a non-exclusive, non-transferable licence to use the Software and the Documentation on the terms of this Licence for use only on the Products.

You may:

download, install and use the Software for your private or internal business purposes only, either (as agreed between the parties):

if the Licence is a single-user licence or the Software is for single use, on one Product system; or

if the Licence is a multi-user or network licence, for the number of concurrent users agreed between you and us;

make up to one copy of the Software for back-up purposes only;

receive and use any free supplementary software code or update of the Software incorporating "patches" and corrections of errors as we may provide to you from time to time; and

use any Documentation in support of your permitted use of the Software.

LICENSEE'S UNDERTAKINGS

Except as expressly set out in this Licence or as permitted by any local law, you undertake:

not to copy the Software or Documentation except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;

not to translate, merge, adapt, vary or modify the Software or Documentation, assign the benefit or burden of this Licence in whole or in part, or to allow the Software to become the subject of a charge, lien or encumbrance;

not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs, unless authorised by us in writing;

not to disassemble, decompile, reverse engineer or create derivative works based on the whole, or any part, of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:

is used only for the purpose of achieving inter-operability of the Software with another software program; and

is not unnecessarily disclosed or communicated to any third party without our prior written consent; and

is not used to create any software which is substantially similar to the Software;

not to permit the Software to be accessed through an electronic network beyond your normal place of business;

to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;

to supervise and control use of the Software and ensure that your employees, representatives and customers use the Software in accordance with the terms of this Licence; and

to include our and our licensors’ copyright notices on all entire and partial copies you make of the Software or any third party software we supply on any medium.

You must permit us and our representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises at which the Software or the Documentation is being kept or used, to the Products and other relevant computer equipment located there, and to any records kept pursuant to this Licence, for the purpose of ensuring that you are complying with the terms of this Licence.

INTELLECTUAL PROPERTY RIGHTS

You acknowledge that all intellectual property rights in the Software and the Documentation throughout the world belong to us and our licensors, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence.

Save as expressly stated in this Licence you acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments.

WARRANTY

We warrant that:

where the Software is supplied on a particular medium, the medium on which the Software is stored and distributed is at the time it is supplied, and will be for the period of 90 days thereafter (Warranty Period), free from defects in design, material and workmanship under normal use. If a defect in the medium occurs during the Warranty Period, the Licensor will replace it free of charge if you return it to us with proof of purchase and (so far as you are able) a documented example of such defect or error; and

during the Warranty Period, the Software will, when properly used, perform substantially in accordance with the functions described in the Documentation, and the Documentation correctly describes the operation of the Software in all material respects.

You acknowledge that the Software has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.

You acknowledge that the Software may not be free of errors or bugs and you agree that the existence of any minor errors shall not constitute a breach of this Licence.

If, within the Warranty Period, you notify us in writing of any defect or fault in the Software in consequence of which it fails to perform substantially in accordance with the Documentation, and such defect or fault does not result from you having amended the Software or used it in contravention of the terms of this Licence, we will, at our sole option, repair or replace the Software, provided that you make available all the information that may be necessary to assist us in resolving the defect or fault, including sufficient information to enable the Licensor to recreate the defect or fault.

OUR LIABILITY

Nothing in this Licence shall exclude or in any way limit our liability for fraud, or for death and personal injury caused by our negligence, or any other liability to the extent the same may not be excluded or limited as a matter of law.

Subject to condition 6.1, we shall not be liable under or in connection with this Licence or any collateral contract for any:

loss of income;

loss of business profits or contracts;

business interruption;

loss of the use of money or anticipated savings;

loss of information;

loss of opportunity, goodwill or reputation;

loss or damage caused by any third party software covered by a General Public Licence;

loss or damage caused by the improper use or operation or neglect of either the Software or the Hardware;

loss of, damage to or corruption of data; or

any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.

Subject to condition 6.1 and condition 6.2, our maximum aggregate liability under or in connection with this Licence, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to a sum equal to the cost of replacing the Software.

Subject to condition 6.1, condition 6.2 and condition 6.3, our liability for infringement of third party intellectual property rights shall be limited to breaches of rights subsisting in the UK.

This Licence sets out the full extent of our obligations and liabilities in respect of the supply of the Software and Documentation. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us except as specifically stated in this Licence. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into or incorporated in this Licence, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.

TERMINATION

We may terminate this Licence immediately without notice if you fail to comply with the terms of this Licence.

Upon termination for any reason:

all rights granted to you under this Licence shall cease;

you must cease all activities authorised by this Licence; and

you must immediately delete or remove the Software in your possession and immediately destroy or return to us (at our option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.

TRANSFER OF RIGHTS AND OBLIGATIONS

This Licence is binding on you and us and on our respective successors and assigns.

You may not transfer, assign, charge or otherwise dispose of this Licence, or any of your rights or obligations arising under it without our prior written consent.

We may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of our rights or obligations arising under it, at any time during the term of the Licence.

NOTICES

All notices given by you to us must be given to Allen & Heath Limited at Kernick Industrial Estate, Penryn, Cornwall TR10 9LU. We may give notice to you at either the e-mail or postal address you provided when purchasing the Products.  Notice will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

EVENTS OUTSIDE THE LICENSOR'S CONTROL

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Licence that are caused by an event outside of our reasonable control.

WAIVER

If we fail, at any time during the term of this Licence, to insist upon strict performance of any of your obligations under this Licence, or if we fail to exercise any of the rights or remedies to which we are entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

A waiver by us of any default shall not constitute a waiver of any subsequent default.

No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

SEVERABILITY

If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

ENTIRE AGREEMENT

This Licence and any document expressly referred to in it represents the entire agreement between us in relation to the licensing of the Software and Documentation and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.

We each acknowledge that, in entering into this Licence, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to entering into this Licence except as expressly stated in this Licence.

Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Licence (unless such untrue statement was made fraudulently) and the other party’s only remedy shall be for breach of contract as provided in these terms and conditions.

THIRD PARTY ACKNOWLEDGMENT

Portions of this Software utilise or include third party software and other copyrighted material.  Acknowledgements, licencing terms and disclaimers for such material are contained in the Documentation for the Software, and your use of such material is governed by their respective terms.

Certain software libraries and other third party software included with the Software are free software and licenced under the terms of the GNU General Public Licence (GPL) or the GNU Library/Lesser General Public Licence (LGPL), as the case may be.  You may obtain a complete machine-readable copy of the source code for such free software under the terms of the GPL or LGPL, as the case may be, without charge except for the cost of media, shipping, and handling, upon written request to us.  The GPL/LGPL software is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY, without even the implied warranty of SATISFACTORY QUALITY or FITNESS FOR PURPOSE. A copy of the GPL and LGPL can be found at http://www.gnu.org/licences/gpl.html.

LAW AND JURISDICTION

This Licence is governed by English law. Any dispute arising from, or related to, any term of this Licence shall be subject to the non-exclusive jurisdiction of the courts of England and Wales.

ALLEN AND HEATH LIMITED

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