Terms & Conditions

1.Subject matter

1.1This license agreement (“Agreement”) is a binding agreement between the client (“Client”) and Forte Audio S.r.l. (“Licensor”) for the use of the software application(s) “Forte” (“Software”) provided by the Licensor as described in the order submitted by the Client and accepted by the Licensor (“Order”). The Software is exclusively intended for professional use by businesses, organizations and independent professionals. It is not designed or marketed for use by consumers. By downloading and using the Software, the Client represents and warrants to act in its professional capacity.

1.2In accordance with the terms and conditions of this Agreement, the Licensor grants to the Client a non-exclusive, non-sublicensable, non-assignable and otherwise non-transferable license to use the Software for the Client’s internal business purposes, including but not limited to music production, audio post-production, broadcast, film, television, gaming, and related professional audio applications, and specifically: (i) the right to install, use, access, display and run the Software in object code, on a number of computers that does not exceed the number set out in the Order and only in accordance with this Agreement; (ii) the right to make copies of the Software as indicated in this Agreement.

1.3The license of this Agreement: (i) shall not include the Client’s right to sub-license any of the rights granted under this Agreement; (ii) is limited to the Software described in the Order and cannot be construed as aimed at granting the Client with any additional rights to any know-how, technology, patent, technical information or copyright now or hereafter owned by the Licensor. All rights not specifically granted to Client are reserved to the Licensor.

1.4During the Term of this Agreement, the Client: (i) shall be responsible for ensuring that its systems meet the technical requirements from time to time indicated by the Licensor; (ii) shall not do or consciously permit to be done any act or thing which prejudices, misappropriates, or impairs the rights of Licensor with respect to the Software; (iii) except for the licenses granted hereunder, will never represent that it has any right, title, or interest in or to the Software.

1.5During the Term, the Licensor shall make available to the Client, at no additional charge, all bug fixes, security patches and minor updates of the Software released by the Licensor. Major version upgrades and new features may be subject to additional terms or fees as specified in the Order. The Licensor shall use commercially reasonable efforts to address security vulnerabilities in a timely manner.

2.Limitations

2.1The Software is licensed as a single asset and its component parts shall not be separated.

2.2The rights granted hereunder are personal to the Client. Neither the Software nor the rights granted hereunder may be resold, sub-licensed, assigned, leased, lent or rented, whether for value or otherwise.

2.3The Client shall not, except as explicitly permitted in this Agreement: (i) modify, copy, reverse engineer, decompile or disassemble the Software and any of its components or attempt to reconstruct or discover or access any source code, underlying ideas, algorithms, files formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that the applicable law prohibits or restricts reverse engineering restrictions); (ii) attempt to unlock or bypass any initialization system, encryption methods or copy protection device; (iii) incorporate the Software into any product or service.

2.4The proprietary rights legends and any other notices contained on and in the Software shall not be removed.

2.5The Software may integrate with or provide access to third-party services or applications. The Client acknowledges that its use of such services or applications may be subject to additional terms and conditions provided by the relevant third-party.

3.Copies and installation of the Software

3.1The Licensor shall make the Software available to download by the Client in executable format.

3.2The Client shall not make (nor permit third parties to make) any further copies of the Software, in whole or in part, except for a maximum of 1 (one) back-up copy.

3.3The Client will keep copies of the Software and back-up copies of the Software (“Software Copies”) in a secure location. The Client shall not duplicate, copy or reproduce the Software Copies (or any of its modules, parts, tools, algorithms, routines or solutions) or the related documents.

3.4The Client may also request the Licensor to provide reasonable information and data necessary to ensure the interoperability of the Software with other programs. The Licensor shall make all commercially reasonable endeavors in order to support the Client in such activities, provided that the Licensor may request the Client to pay an additional fee in case any such activities involve specific developments.

4.Account and security

4.1To download, access and use the Software, the Client may be requested to create an account that is protected by a username and password (“Account”). The Client must keep any passwords and other account details secret.

4.2If requested, the Client agrees to provide the Licensor with accurate and complete information when registering for an Account and at all times thereafter. The Licensor must be promptly notified if changes to Client’s information occur.

4.3The Client acknowledges and agrees that it is responsible for providing all equipment necessary to run and use the Software. For the sake of clarity, the Licensor shall not be requested to provide or supply any hardware to the Client.

4.4The Client is solely responsible for: (i) access to, content in, or sharing and use of its Account; (ii) processing any personal data through the Software.

4.5Except in case of willful misconduct or gross negligence, the Licensor will not be liable for any loss or damage arising from any access to, or sharing and use of, the Client’s Account.

5.Information, data and content

5.1The Licensor may collect and use aggregated and anonymized usage statistics and telemetry data (such as feature usage, performance metrics and error logs) for the purpose of operating, improving and securing the Software. The Licensor shall not access, use or process the Client’s audio content, project files or Content for training of artificial intelligence or machine learning models, or for any purpose other than providing the Software, without the Client’s prior express written consent.

5.2The Client shall be the exclusive owner of all the intellectual and industrial property rights on the content created by the Client by using the Software (“Content”). The Client grants the Licensor with a non-exclusive and royalty-free license to use, store and process the Content for the purpose of providing the Software.

5.3The Client shall be solely responsible for backing up its information, data or Content.

5.4The personal data of the Client’s users shall be processed in accordance with the privacy policy available at https://www.iubenda.com/privacy-policy/63363650/legal.

5.5To the extent the Licensor processes personal data on behalf of the Client in the course of providing the Software, the Parties shall execute the Data Processing Agreement attached as Schedule [X] (the “DPA”), which forms an integral part of this Agreement and complies with applicable data protection laws including Regulation (EU) 2016/679 (GDPR). In case of conflict between this Agreement and the DPA with respect to data protection matters, the DPA shall prevail.

5.6The Licensor shall notify the Client without undue delay, and in any event within 72 hours, upon becoming aware of any Personal Data Breach affecting the Client’s data.

6.Assistance services

6.1The Licensor will only provide assistance services upon execution of a specific agreement with the Client and subject to payment by the Client of the agreed fees (“Assistance Services”).

6.2If the Assistance Services have not been purchased or paid, the Licensor may at its sole discretion elect to provide the Client with limited support services related to the Software for such period of time as the Licensor at its sole discretion elects (“Limited Support”). If available, the Client may request the Limited Support by writing at the address support@forte-ai.com. The Client acknowledges that the Licensor may cease to provide the Limited Support at any time and that the Licensor is not and will not be obligated to provide the Limited Support.

7.Audits

7.1At Licensor’s request, the Client agrees to provide a signed certification that all the Software is being used in full compliance with the terms of this Agreement.

7.2The Licensor shall have the right, no more than once per calendar year and subject to thirty (30) days advance written notice, to audit the Client’s use of the Software solely for the purpose of verifying compliance with the license metrics set forth in the Order. Such audit shall be conducted remotely where reasonably possible, or at the Client’s premises during normal business hours and in a manner that does not unreasonably interfere with the Client’s business operations. The Client may require the auditors to execute a customary non-disclosure agreement prior to the audit. The Licensor will bear all costs of the audit, unless the audit reveals an underpayment exceeding 5% of the Fees due, in which case the Client shall reimburse the reasonable audit costs and pay the underpayment.

7.3The Client shall provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at its own costs.

8.Term

8.1The Client’s right to use the Software is limited to the Term set out in the Order. Unless otherwise specified in the Order, this Agreement shall automatically renew for successive periods equal to the initial Term, unless either Party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current Term.

8.2To the extent indicated by the Licensor, the Client may be entitled to use the Software for free for a trial period of 7 (seven) days (“Trial Period”).

9.Termination

9.1The Licensor may terminate this Agreement if the Client is in material breach of any representation, warranty, covenant or agreement contained herein, after providing written notice to the Client of such intent and reason for termination, provided that the Client shall have thirty (30) days after receipt of such written notice to take prudent and reasonable steps to cure the material breach. Should the Client fail to cure the material breach within the thirty (30) days period, the termination shall become effective.

9.2Without prejudice to any other remedy, the Licensor shall have the right to immediately terminate this Agreement in the event of: (i) a change of control of the Client where the acquiring entity is a direct competitor of the Licensor in the audio software market and provided that the Licensor offers the Client a pro-rata refund of any prepaid Fees; (ii) breach by the Client of any of the obligations set forth under articles 1.2, 1.4, 2, 3, 10.1.

9.3Upon expiration or termination of this Agreement, the Client shall cease using the Software and delete all Software Copies. The Client will certify such deletion in writing upon Licensor’s request.

9.4In no event will termination relieve the Client of its obligation to pay any fees payable for the period prior to the effective date of termination. The exercise by the Licensor of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement or by law.

9.5It is agreed between the Parties that under no circumstances shall the Licensor be bound to assist the Client in migrating its systems to any different technology, unless such activity is specifically agreed in writing and expressly remunerated.

9.6Upon termination or expiration of this Agreement, the Licensor shall, upon the Client’s written request received within thirty (30) days from termination, make available to the Client a copy of any Client data held by the Licensor in a commonly used electronic format. After such period, or earlier upon the Client’s written request, the Licensor shall delete all Client data from its systems, except for backups retained in accordance with the Licensor’s standard retention policy and any data the Licensor is required to retain by applicable law.

10.Fees

10.1The fees (“Fees”) are not refundable, and the relevant schedule of payments are indicated in the Order. To the extent indicated by the Licensor, the Client may benefit from the use of a reduced version of the Software, with limited features, subject to payment of no Fees.

10.2The Licensor reserves the right to change the Fees at any time, it being understood that any such changes will be communicated to the Client in advance and shall only apply to the future Terms.

10.3The Licensor reserves the right to suspend the Client’s rights to use the Software in case the Client fails to pay any installment of the Fees.

11.Representations and warranties

11.1The Licensor represents and warrants that: (i) the Software is the result of creative and original activity, and that (except for any open source library incorporated in the Software) all rights, including copyright and any other intellectual property rights, in the Software are the exclusive property or the availability of the Licensor; (ii) to the best of the Licensor’s knowledge, the Software does not infringe any third party rights; (iii) the Software will perform substantially in accordance with the documentation made available by the Licensor; in the event of a failure to so perform, the Licensor’s sole obligation and the Client’s exclusive remedy shall be for the Licensor to use commercially reasonable efforts to correct the non-conformity within a reasonable period of time, or, if the Licensor is unable to do so within ninety (90) days, to terminate the affected portion of the license and refund any prepaid Fees for the unused portion of the Term; (iv) the Software does not contain any viruses, malware, time bombs, drop-dead devices or other code intentionally designed to disable or impair the Software or the Client’s systems.

11.2Except in case of (a) willful misconduct or gross negligence, (b) breach of Section 5 (Information, data and content) or any data protection obligations, (c) breach of confidentiality, (d) indemnification obligations under Section 13, or (e) infringement of intellectual property rights, the maximum aggregate liability of the Licensor under this Agreement shall not exceed the greater of (i) the Fees paid by the Client during the 12 (twelve) months preceding the claim, or (ii) the amount specified in the Order.

11.3The Client expressly agrees that if maintenance is carried out internally by the Client, the Licensor shall be fully released from all liabilities and warranties in respect of any defects, faults, malfunctions, crashes or bugs in the Software and, in general, in respect of any alleged breach by the Licensor which may have given rise thereto.

11.4Without prejudice to any mandatory provision, the warranties set forth in this Agreement constitute the sole warranties provided by the Licensor to the Client.

11.5The Client shall indemnify and hold the Licensor harmless for any prejudice that the Client causes to the Licensor as a result of the use of the Software beyond the limits set out in this Agreement or for any use of the Software in breach of its obligations under this Agreement.

12.Intellectual and industrial property rights

12.1The Licensor is the owner of and retains all title to and interest in all proprietary and intellectual property rights, including patents, copyrights, trade secrets, trademarks and know-how in and to the Software and all copies, modifications and derivative works thereof. The Client acknowledges the foregoing and agrees that: (i) it has no right, title or interest in the Software, except as specifically set forth herein; (ii) it is obtaining only a limited license right to the Software and that irrespective of any use of the words ‘purchase’, ‘sale’ or like terms hereunder no ownership rights are being conveyed to the Client under this Agreement.

12.2If the Client becomes aware of any infringement or misappropriation by a third party of the Software, it shall promptly notify the Licensor in writing and shall provide to Licensor any information the Client has in support of such belief.

12.3The Licensor shall have the right, but not the obligation, to institute such action as it deems appropriate to terminate any infringement or misappropriation through negotiation, litigation or alternative dispute resolution means, at its sole discretion and at its sole cost. The Licensor shall have the right to select and to control counsel in any action initiated by the Licensor.

12.4The Licensor will own full title and ownership to any possible invention, model, device, prototype, method, software, application, technical information and know-how deriving from the Software.

12.5Neither Party shall use the other Party’s name, trademarks, logos or commercial names in any promotional, marketing or advertising materials without the other Party’s prior written consent, which may be granted, withheld or conditioned in such Party’s sole discretion. Each Party may include the other Party’s name in customer/vendor lists for internal reporting purposes.

13.Indemnity

13.1The Licensor shall defend, indemnify and hold harmless the Client from and against any third-party claim alleging that the Software, as provided by the Licensor and used in accordance with this Agreement, infringes any patent, copyright, trademark or trade secret, and shall pay any damages finally awarded against the Client (or amounts agreed in settlement) in connection with such claim, provided that the Client (i) promptly notifies the Licensor in writing of the claim, (ii) grants the Licensor sole control of the defense and settlement, and (iii) provides reasonable cooperation at the Licensor’s expense.

13.2If the Software becomes, or in the Licensor’s opinion is likely to become, the subject of an infringement claim, the Licensor may, at its option and expense: (i) procure for the Client the right to continue using the Software; (ii) modify or replace the Software so it becomes non-infringing while substantially preserving functionality; or (iii) terminate the license and refund any prepaid Fees for the unused portion of the Term.

13.3The Licensor shall have no obligation to indemnify the Client if any infringement or misappropriation of the Software results from its: (i) modification of the Software; (ii) combination, operation or use of the Software with other software or components not supplied by the Licensor; (iii) use of the Software in breach of this Agreement.

13.4Except in case of willful misconduct or gross negligence, any indemnification payable by the Licensor for any indemnifiable breach under this Agreement will be capped – to the extent permissible at law – at the aggregate value of the Fees paid by the Client during the 12 (twelve) months preceding the event triggering such breach occurred.

14.Confidentiality

14.1Each Party (the “Receiving Party”) shall hold in confidence and not disclose to any third party any non-public information of the other Party (the “Disclosing Party”) that is identified as confidential or that should reasonably be understood to be confidential given its nature and the circumstances of disclosure (“Confidential Information”). Confidential Information includes, without limitation, the terms of this Agreement, the Software’s underlying technology, pricing, and the Client’s data processed by the Software.

14.2The Receiving Party shall protect the Disclosing Party’s Confidential Information using at least the same degree of care it uses to protect its own confidential information of a similar nature, and in no event less than a reasonable degree of care. The Receiving Party may disclose Confidential Information only to its employees, contractors and advisors who have a need to know and who are bound by confidentiality obligations no less protective than those set forth herein.

14.3The obligations under this section shall survive termination of this Agreement for a period of five (5) years, except for trade secrets which shall be protected for as long as they qualify as trade secrets under applicable law.

15.Miscellaneous

15.1This Agreement contains the entire understanding of the Parties with respect to the subject matter herein contained and supersedes all previous written or verbal agreements relating to this subject matter between the Parties. The Parties may amend any of the provisions of this Agreement by way of an instrument in writing duly agreed to and executed by authorized representatives of the Parties.

15.2In the event either Party shall at any time waive any of its rights under this Agreement, waive any breach of any provision hereof by the other Party, or waive the performance by the other Party of any of its obligations hereunder, such waiver shall not be construed to be a waiver of any succeeding breach of such provision, a waiver of the same rights or obligations, or a waiver of any other rights or obligations or the provision itself.

15.3The Client shall not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the Licensor.

16.Governing law and jurisdiction

16.1This Agreement and the relevant obligations shall be governed and interpreted in accordance with the Italian law.

16.2Any dispute which may arise from or in connection to this Agreement shall be brought before the Courts of Torino (Italy) which shall have exclusive jurisdiction.