PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING, AND/OR USING THE SOFTWARE (AS DEFINED BELOW).

By downloading, installing, and/or using the Software, you (individually and, if applicable, on behalf of the organization which you represent) are agreeing to all of the terms and conditions of this Agreement. This Agreement is between you (or, if applicable, the organization which you represent) and PK SOUND CORP. ("PK Sound").

If you do not agree to all of the terms and conditions of this Agreement, then do not download, install, and/or use the Software.

You may potentially need to register each copy of the Software with and/or obtain a valid activation code from PK Sound to be able use the Software. In any such circumstances, if you do not wish to register the Software or provide the information PK Sound requests as part of the registration process, you may not use the Software. 

You agree that this Agreement is like any written negotiated agreement signed by you, and you agree to be bound by, and fully comply with, its terms. You represent and warrant that you have all necessary right, power and authority to enter into this Agreement and to perform and otherwise discharge all of your obligations hereunder and that your use of the Software and Documentation does not and will not violate any applicable laws (including, for greater certainty, the export control laws of Canada).

You acknowledge and agree that you are only being granted a limited license to use the Software and Documentation and that, for greater certainty, such license shall not be construed as to grant to you the right to use any other software, services or documentation of PK Sound or its suppliers, or to use or exploit the Software or Documentation in any manner other than as expressly permitted by this Agreement. The license granted herein does not entitle you to gain access to the source code to the Software.

1) DEFINITIONS

The following terms shall have the following meanings when used in this Agreement: "Agreement" means this Software License Agreement; "Documentation" means all manuals, documentation and other related materials, or any portion thereof, pertaining to the Software provided or made available by PK Sound to you in conjunction with the Software; "Configuration" or "Configuring" means configuring or calibrating audio speakers for use at a particular venue; "PK-Branded Equipment" means the audio equipment sold by PK Sound and intended for use in connection with the Software; "Representatives" means your officers, directors, employees, contractors, agents and other individuals to whom you provide access to the Software or Documentation; and "Software" means the software designed by PK Sound known as "Dynamics", “.dynamics”, “.dynamics MOVE”, or “Dynamics MOVE” and all patches, fixes, and updates thereto, or any portion thereof, as may be amended from time to time, and provided or made available by PK Sound to you under the terms of this Agreement. The Software and Documents are licensed and not sold to you.

2) LICENSE GRANT AND RESTRICTIONS

a) Subject to the terms of this Agreement, PK Sound hereby grants to you a limited, non-exclusive, non-transferable and non-sublicensable license to use the Software for the sole purpose of Configuring the PK-Branded Equipment. You may permit your Representatives to use the Software and/or Documentation on your behalf and solely for such purpose. You shall be fully responsible for your Representative's compliance with this Agreement in such use. If you are unsure whether the Software can work with your PK-Branded Equipment, please contact us before downloading and/or using the Software.

b) You may provide access to, or copies of, the Documentation to your Representatives as necessary for, and in conjunction with, your authorized use of the Software.

c) You agree to use the Software in strict accordance with PK Sound's product warranty guidelines for the sole purpose of recalibrating, maintaining and/or repairing professional audio systems manufactured or sold by PK Sound or its affiliates.

d) All rights relating to the Software not specifically granted to you pursuant to this Agreement shall be retained by PK Sound.

e) You acknowledge that the Software may include software that PK Sound has obtained or licensed from a third party, and you agree that the terms and conditions of this Agreement shall be applicable to any such third-party software. In addition, you agree to abide by any additional or modified terms and conditions with respect to such third-party software if reasonably requested in writing by PK Sound and/or the third party.

f) You may not to translate, reverse assemble, reverse engineer, adapt, alter, modify or change in any way the Software without the prior written authorization of PK Sound.

g) You shall be responsible for ensuring that each of your Representatives complies with all of the duties, obligations and restrictions imposed on you by this Agreement, and you shall be responsible for and enforce each of your Representatives' compliance therewith.

h) You shall comply with all applicable state, provincial, federal and local laws (including, but not limited to, export/import laws and laws relating to patents, copyrights, trademarks, confidential information and trade secrets) with respect to your use of the Software and Documentation.

i) You agree and acknowledge that you shall be solely responsible and liable for all uses made by yourself or your Representatives of the Software or Documentation.

j) You agree and acknowledge that there are no limits to the number of licenses or rights that PK Sound may grant to third parties in respect of the Software and Documentation.

k) To the extent applicable, your use of the Software is subject to any disclaimer that you will be asked to acknowledge each time you use the Software.

l) You may not use the Software or Documentation to configure any audio equipment other than PK-Branded Equipment. 

3) REGISTRATION OF SOFTWARE

a) If requested by PK Sound, you agree to provide your name, company name, address, and email address to PK Sound for purposes of recording such information in a software user registry. By providing such information you are consenting (on your own behalf and on behalf of your Representatives) to the collection, use and disclosure of such information for the purposes of registering the Software. By completing the registration process, you are representing and warranting that the information that you are providing is true and correct, that you have obtained and are authorized to provide the consents contemplated herein and that PK Sound may rely on and use same. 

4) OWNERSHIP AND MARKINGS

a) Title and full ownership rights to the Software and Documentation, including all copyright rights therein, shall remain with PK Sound and its suppliers. PK Sound and its suppliers expressly retain all rights that they may have under Canadian, U.S. or foreign laws or international treaties relating to the Software and Documentation.

b) You shall not modify or remove any copyright, trademark, ownership or other notices, legends or markings on, or embedded in, the Software or Documentation.

5) FEEDBACK AND CONFIGURATION INFORMATION

a) You may provide PK Sound, from time to time and at the request of PK Sound, with comments, suggestions or other feedback that you may have relating to the Software and Documentation, including, without limitation, the results of any testing or other evaluation that you may have undertaken with respect to the Software and Documentation (the "Feedback"). You hereby assign, and upon the creation of any Feedback automatically assign, to PK Sound all right, title and interest in and to the Feedback, including for greater certainty, all intellectual property rights therein. For the avoidance of doubt, PK Sound shall be free to use, disclose, reproduce, license (including sub-license at any level) or otherwise distribute or exploit, in whole or in part, the Feedback as it sees fit, entirely without any obligation to you or restriction of any kind. You shall not provide any Feedback to PK Sound which are inconsistent with the provisions of this Agreement. You waive all moral rights in any Feedback.

b) You acknowledge and agree that the Software may automatically provide PK Sound with information regarding your use of the Software ("Configuration Information"), including the manner in which you have Configured the PK-Branded Equipment at any venue you use the Software. You acknowledge and agree that PK Sound shall have the right, but not the obligation, to use all such information for the purposes of improving the Software and to create new products and services.  For the avoidance of doubt, PK Sound shall be free to use, disclose, reproduce, license (including sub-license at any level) or otherwise distribute or exploit, in whole or in part, the Configuration Information as it sees fit, entirely without any obligation to you or restriction of any kind. You waive all moral rights in any Configuration Information. 

c) With respect to any information provided by you to us regarding the Software or Documentation, you agree that: (i) PK Sound has no obligation concerning such information; (ii) the information is non-confidential; (iii) PK Sound may use, disclose, distribute or copy the information and may use any ideas, concepts or know-how contained in the information for any purpose; and (iv) the information is truthful, and disclosure of the information does not violate the legal rights of others.

6) FEES AND LICENSEE EXPENSES

a) You agree to pay any fees to license the Software and Documentation. To the extent applicable, the fees paid by you for this license to use the Software and Documentation do not include any applicable sales, use, excise, value-added or other taxes or governmental charges, and you shall be responsible for, and shall promptly pay, same. If PK Sound terminates this Agreement because of your breach of its terms, you shall not be entitled to a refund of any unused portion of any fees you have already paid. 

b) All costs and expenses incurred by you in connection with, or otherwise relating to, any use of the Software or Documentation, or any other costs not specifically agreed upon by the parties in writing, are your responsibility.

7) UPDATES

a) You acknowledge that PK Sound may, at its sole option and at no cost to you, provide you with patches, fixes, and/or updates to the Software from time to time. You agree to, in a timely manner, install these patches, fixes, and updates to the Software in order to ensure you are only using the most current version of the Software. PK Sound may also offer for sale upgrades for the Software which you are under no obligation to purchase.

b) Software patches, fixes, updates and upgrades may be made available for download from PK Sound's website(s).

8) INDEMNIFICATION, DISCLAIMER AND LIMITATION OF LIABILITY

a) YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE IS MERELY A TOOL DESIGNED TO ASSIST WITH YOUR EQUIPMENT CONFIGURATION, AND IS NOT INTENDED TO SUBSTITUTE OR OTHERWISE REPLACE YOUR PROFESSIONAL JUDGMENT WITH RESPECT TO SAME.

b) THE SOFTWARE AND DOCUMENTATION ARE LICENSED TO YOU "AS IS", "WHERE IS", "WITH ALL FAULTS" AND WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PK SOUND EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS CONCERNING THE SOFTWARE AND DOCUMENTATION, INCLUDING ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OR PERFORMANCE AND ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS THAT MIGHT OTHERWISE ARISE DURING THE COURSE OF DEALING, USAGE OR TRADE AND THOSE WHICH MAY BE IMPLIED BY LAW.

c) IN NO EVENT SHALL PK SOUND OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, OR DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS, IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR USE OF THE SOFTWARE OR DOCUMENTATION, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF PK SOUND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.

d) NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN, PK SOUND AND ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS AND AGENTS' TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT, INCLUDING ANY USE OF THE SOFTWARE OR DOCUMENTATION, UNDER ANY AND ALL CIRCUMSTANCES, ARISING IN ANY MANNER WHATSOEVER, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), SHALL BE LIMITED TO THE GREATER OF: (A) TEN ($10.00) CAD DOLLARS, OR (B) THE LICENSE FEES ACTUALLY PAID BY YOU TO PK SOUND FOR THIS AGREEMENT. 

e) THE CONSIDERATION BEING PAID FOR THIS AGREEMENT DOES NOT INCLUDE ANY CONSIDERATION FOR PK SOUND TO ASSUME ANY RISKS BEYOND THOSE EXPRESSLY ASSUMED HEREIN AND IF ANY SUCH RISKS WERE TO BE ASSUMED BY PK SOUND, PK SOUND WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT RECEIVING SUBSTANTIALLY MORE CONSIDERATION FROM YOU.

9) INDEMNITY

a) YOU AGREE TO INDEMNIFY AND HOLD HARMLESS PK SOUND, ITS OFFICERS, DIRECTORS AND EMPLOYEES FROM AND AGAINST ANY CLAIMS, DEMANDS OR CAUSES OF ACTION WHATSOEVER, AND SHALL DEFEND OR SETTLE ALL CLAIMS AND ACTIONS BROUGHT AGAINST PK SOUND BY THIRD PARTIES, ARISING OUT OF OR RELATED TO YOUR, OR YOUR REPRESENTATIVES, USE OF THE SOFTWARE OR DOCUMENTATION, HOWSOEVER SUCH CLAIM OR ACTION SHALL HAVE OCCURRED OR AROSE.

10) CONFIDENTIALITY

a) You acknowledge and agree that the Software and Documentation contain valuable confidential information and proprietary technology of PK Sound and its suppliers. The Software and Documentation, other than through its normal usage, shall be kept in confidence and not used for any purpose other than as permitted hereunder and shall not be disclosed to any third party except as expressly permitted hereunder.

b) As above, you may not create derivatives from or modify, decompile or reverse engineer the Software or do anything that will reveal or generate the source code of the Software. Any such act will be deemed to constitute a violation of the rights and interests of PK Sound and its suppliers.

11) TERMINATION OF AGREEMENT

a) This Agreement shall continue until terminated in accordance with its terms.

b) You may terminate this Agreement at any time by: (i) providing PK Sound fourteen (14) days notice; and (ii) destroying all copies of the Software and Documentation in your custody or control.

c) PK Sound may terminate this Agreement for convenience by: (i) providing you with fourteen (14) days notice; and (ii) destroying all copies of the Software and Documentation in your custody or control.

d) This Agreement and the licenses granted herein may be terminated by PK Sound immediately, upon notice, if any of the following events of default occur:

(i) if you materially fail to perform or comply with this Agreement or any provision hereof; or

(ii) if you fail to strictly comply with the provisions of Articles 2, 10 or 12.

e) Upon termination of this Agreement, you shall, and you shall cause each of your Representatives to, immediately cease and desist all use of the Software and Documentation and destroy all copies of same. Articles 8, 9, 10, 11 and 13 of this Agreement shall survive any termination or expiry of this Agreement.

12) EXPORT CONTROL

a) You will comply with all applicable laws, rules and regulations governing export of goods and information, including the laws of Canada and the United States in particular, you will not export or re-export, directly or indirectly, separately or as a part of a system, the Software or Documentation or other information relating thereto to any country for which an export licence or other approval is required, without first obtaining such licence or other approval and the written consent of PK Sound.

13) APPLE APP STORE TERMS

a) If you downloaded the Software from the Apple App Store, you acknowledge and agree that:

(i) This Agreement is concluded between you and PK Sound only, and not with Apple Inc. or any of its subsidiaries (“Apple”). PK Sound, and not Apple, is solely responsible for the Software and its content. This Agreement may not provide for usage rules for the Software that conflict with the Apple Media Services Terms and Conditions (including the Usage Rules).

(ii) If you downloaded the Software from the Apple App Store, the license granted to you is limited to a non-transferable license to use the Software on any Apple-branded products that you own or control, as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that the Software may be accessed and used by other accounts associated with you via Family Sharing or volume purchasing, where applicable.

(iii) PK Sound is responsible for providing any maintenance and support services with respect to the Software only to the extent expressly specified in this Agreement or required under applicable law. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Software.

(iv) In the event of any failure of the Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Software to you, if any. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software. Except to the extent required by applicable law, PK Sound provides the Software “AS IS” and “AS AVAILABLE” and disclaims all warranties and conditions of any kind, whether express, implied or statutory, including, without limitation, any warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy or reliability.

 

14) GENERAL

a) This Agreement contains the entire understanding and agreement between us respecting the subject matter hereof. This Agreement may not be supplemented, modified, amended, released or discharged except in the manner described above or by an instrument in writing signed by each party's duly authorized representative. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind.

b) The terms and conditions of this Agreement shall inure to the benefit of and be enforceable by PK Sound and the successors and assigns of PK Sound's interest in this Agreement and/or PK Sound's ownership of the Software and Documentation. You shall not assign this Agreement or any of your rights hereunder without the prior written consent of PK Sound.

c) All notices, authorizations and requests in connection with this Agreement shall be deemed to be given (i) immediately if personally delivered or if provided by e-mail, (ii) five days after being deposited in the mail, postage prepaid, certified or registered, return receipt requested; or (iii) one day after being sent by overnight courier, charges prepaid; and addressed to PK Sound at 235075 Ryan Rd., Rocky View, Alberta, T1X 0K3, Canada, Attn: Legal, or to you at the address that you provided when registering to obtain your activation code, or to such other address as the party to receive the notice designates by written notice to the other.

d) The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the Province of Alberta and the federal laws of Canada applicable therein (without reference to conflicts of laws principles). The Software and Documentation shall be deemed to be provided from Alberta, Canada and this Agreement to be, in all respects, an Alberta contract. The competent courts in the Province of Alberta shall each have non-exclusive jurisdiction over all disputes relating to this Agreement. Each of the parties hereto irrevocably attorns and consents to the jurisdiction of such courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

e) Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of the prohibition or unenforceability without invalidating the remaining provisions of this Agreement and any prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable that provision in any other jurisdiction. For any provision severed there will be deemed substituted a like provision to accomplish the intent of the parties as closely as possible to the provision as drafted, as determined by any court or arbitrator having jurisdiction over any relevant proceeding, to the extent permitted by the applicable law.

f) In the event of any legal action or other proceeding that is brought about to enforce this Agreement, the prevailing or successful party shall be entitled to recover reasonable attorneys' fees as well as other costs incurred in that action or proceeding in addition to any compensation to which it may be entitled.

g) The parties have requested that this Agreement and all documents relating thereto be drawn up in English. Les parties conviemment avoir requis que ce contrat de même que tous les documents s'y rattachant soient redigés en anglais seulement.

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