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HARMONY SOFTWARE END USER LICENSE AGREEMENT (“License”)

Introduction

  • This License is applicable to Harmony Software, to the extent that equipment or services purchased by a client (“Equipment” and “Services”) pursuant to a separate agreement between the relevant Mood Media legal entity (“Provider”) and such client (“Client”) include or require the use of Harmony Software (“Agreement”). This License is incorporated by reference into the Agreement and the provisions of this License shall supersede and control over any conflicting provision of the Agreement.
  • The Provider is the entire legal and beneficial owner or authorized licensor of the Harmony Software and is solely responsible for the Harmony Software.
  • Definitions and Interpretation

1.1 The below definitions and rules of interpretation in this clause apply in this License:

“Applicable Law” means all local, state, federal and national laws, statutes, ordinances and regulations applicable to use of the Harmony Software;

“Authorized Users” means those natural persons who are Client employees or agents authorized by Client to access, download, or make any use of the Harmony Software on behalf of Client;

“Harmony Software” means the Provider’s proprietary brand experience Software used to manage the Services purchased by the Client;

“Intellectual Property Rights” means all patents, trademarks, service marks, design rights, rights to extract information from a database, rights to use software, know how, trade secrets and all rights of a similar nature which may subsist anywhere in the world whether or not registered and including applications for registrations of any of them;

“Mobile Device” means any iOS-based or Android-powered mobile device owned or controlled by Client or any Authorized User;

“Software” means Provider’s proprietary software provided on or in connection with the Equipment or the Services (including the Harmony Software), together with all codes, techniques, tools, format, design, user interfaces, concepts, methods, and ideas associated therewith, and all Intellectual Property Rights related thereto, and all updates, upgrades, modifications, adaptations, derivative works and enhancements to such property and materials.

  • Software
    • License. Subject to this License and the Agreement, Provider grants to the Client a non-exclusive, non-transferable, non-sublicensable, revocable and limited License to use and to allow its Authorized Users to use the Harmony Software solely to access and use the Services as authorized by the Provider, on any Equipment and to download and use the Harmony Software on any Mobile Device, and only as permitted by the Usage Rules in the App Store Terms of Service (for iOS-based Mobile Devices, the “Usage Rules”).
    • Restrictions. The Client agrees not to, except as expressly permitted by this License, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Harmony Software, or part thereof (except as and only to the extent any foregoing restriction is prohibited by Applicable Law or to the extent as may be permitted by the Usage Rules or the licensing terms governing use of any open source components included with the Harmony Software). Client may not rent, lease, lend, sell, redistribute, or sublicense the Harmony Software. To the maximum extent permitted by Applicable Law, the Provider has no obligation to provide maintenance and support for the Harmony Software unless such maintenance and support Services are purchased by Client in the Agreement.
    • Authorized Users. Client agrees it is solely responsible for any and all actions taken by Authorized Users in connection with the Harmony Software or the Services. Client shall ensure all Authorized Users comply with the requirements, restrictions, duties, obligations, and other terms of the License and the Agreement.
    • Government end-users. The Harmony Software and related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202-1 through § 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to US Government end users:
      • Only as Commercial Items; and
      • With only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
    • Mobile Devices.
      • Download and use of the Harmony Software on a Mobile Device requires that the Client or an Authorized User owns or controls the Mobile Device and the Mobile Device is compatible with the Harmony Software. The Client must also have an active subscription to the Services in accordance with the Agreement. The Client acknowledges that the Provider may from time to time issue upgraded or updated versions of the Harmony Software, and may automatically electronically upgrade or update the version of the Harmony Software that is used on the Mobile Device. The Client, on its own behalf and on behalf of each Authorized User, consents to such automatic upgrading or updating on the Mobile Device.
      • The Provider may collect, use and share technical data and related information about the Mobile Device, system, and application software and peripherals, and the use of the Harmony Software made on the Mobile Device, as provided in the Provider’s Services Privacy Policy.
      • The Client must comply with any applicable third-party terms of agreement when using the Harmony Software.
      • The Client represents and warrants that it, and each Authorized User (i) is not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a “terrorist-supporting” country; and (ii) is not listed on any US Government list of prohibited or restricted parties.
      • iPhone and iPad are trademarks of Apple, Inc. (“Apple“) registered in the U.S. and other countries. Android is a trademark of Google, Inc. (“Google“).
      • Apple. This paragraph applies to iOS-based Mobile Devices. For avoidance of doubt, this License is solely between the Client and the Provider. This License and not Apple’s Licensed Application End User License Agreement applies to this Harmony Software. Apple and its subsidiaries are third party beneficiaries of this section of this License. Apple has the right (and will be deemed to have accepted the right) to enforce this License against the Client as a third-party beneficiary thereof. Apple has no obligation to furnish any maintenance or support for the Harmony Software. If the Harmony Software fails to conform to any applicable warranty, the Client may notify Apple, and Apple will refund to the Client the purchase price (if any) that the Client paid directly to Apple for the Harmony Software. To the maximum extent permitted by Applicable Law, Apple will have no other warranty obligation whatsoever with respect to the Harmony Software. Apple is not liable for and has no responsibility to address any claims by the Client, any Authorized User, or any third party relating to the Harmony Software, the possession and/or use thereof, or the content thereof, including:
        • Product liability claims;
        • Any claim that the Harmony Software fails to conform to any applicable legal or regulatory requirement;
        • Claims arising under consumer protection or similar legislation; and
        • Any claim that the Harmony Software infringes a third party’s Intellectual Property Rights.
      • Google. This paragraph applies to Android-powered Mobile Devices. For avoidance of doubt, this License is solely between the Client and the Provider. This License and not the Google Play Terms of Service or the Google Terms of Service applies to the Harmony Software. The use of Google Play by Client and any Authorized User is governed by a separate agreement between Google and the Client or such Authorized User, as applicable.
      • Developer contact info. The Client shall direct any questions, complaints or claims regarding the Harmony Software to: Mood Media at https://hub.moodmedia.com/harmony. 
      • Location-based services. The Harmony Software allows Client or an Authorized User to enable location services on their Mobile Device. By doing so, Client and the Authorized User consent to the use by the Harmony Software of location and mapping data reported by the Mobile Device to provide location-based services. Neither Provider, nor any of its subsidiaries, affiliates, content providers, or service providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data used or displayed by the Harmony Software or any of the Services. Please see Provider’s Services Privacy Policy for information about how Provider uses and discloses location data.
      • Mobile communications and push notifications. By downloading and using the Harmony Software to access the Services, Client or an Authorized User agrees to view electronically through the Harmony Software all electronic communications from Provider or Client. When are logged into the Harmony Software, Client or the Authorized User may receive a message asking if they would like to allow push notifications. Push notifications are a way for an application to deliver information, including alerts, sounds and icon badges, to a Mobile Device. Push notifications can be delivered whether or not Client or the Authorized User is are currently logged-in to and/or using the application and whether or not the Mobile Device is in locked and/or in sleep mode. If Client or the Authorized User does not wish for others to view your notifications, they should establish a passcode lock for the Mobile Device, lock it when not in use, and guard the Mobile Device’s screen when it is unlocked. If Client or the Authorized User does not wish to receive push notifications from Provider, click “Don’t Allow” or other similar button when prompted. Push notifications, once allowed, may be turned off at any time through the Mobile Device notifications settings.
  • License Fee and Duration

All Fees in relation to use of the Harmony Software are set out in the Agreement. This License is effective upon the Commencement Date and shall continue until terminated as provided in Section 5 below. 

  • Intellectual Property Rights

All intellectual property rights and all other rights in the Harmony Software are owned by Provider or licensed to the Provider. The Client agree that the Harmony Software and its interfaces and layouts contain or consist of proprietary information and material that is protected by intellectual property laws, and that the Client will not use such proprietary information or material in any way except for use of the Harmony Software in compliance with this License. The Provider reserves all rights not expressly granted herein.

  • Termination
    • Termination by Provider. This Section 5.1 is in addition to the termination rights of Provider as set forth elsewhere in the Agreement. If an Authorized User or the Client fail, or the Provider suspects that an Authorized User or the Client has failed, to comply with any of the provisions of this Licence or the Agreement, including but not limited to failure to make any payment due, or infringement or other violation of third party rights, the Provider at its sole discretion, without notice to the Client, the Authorized User or any other Authorized User, may: (i) terminate this Licence and/or the Agreement, and the Client will remain liable for all amounts due under the Client’s account up to and including the next monthly billing date following the date of termination; and/or (ii) terminate or suspend the right to use the Services, Harmony Software until the failure is remedied; and/or (iii) de-authorize the Equipment or otherwise preclude access to the Services, the Harmony Software, or any part thereof. The Provider may charge the Client a reconnection Fee in the event the Client’s subscription is terminated or suspended as a result of the Client’s failure to pay Fees due under the Agreement, including Licence Fees, or as a result of breach or violation of any of the provisions of this Licence by Client or any Authorized User. The Provider may terminate or suspend access by the Client or any Authorized User to the Services and/or Harmony Software if any information provided by or on behalf of Client is false, inaccurate or incomplete, or for any other breach of this Licence or the Agreement.
    • Reservation of rights and remedy. The Provider reserves the right to modify or discontinue the Services and/or the Harmony Software at any time upon thirty (30) days’ notice to the Client, and the Provider will not be liable to the Client, any Authorized User, or to any third party should the Provider exercise such rights. The Client shall reimburse the Provider for costs and expenses incurred in connection with the Provider’s exercise of its rights under this License, including without limitation the Provider’s  costs of collection and reasonable attorneys’ fees.
    • Termination by the Client. The Client may terminate its access to the Harmony Software by terminating the Services in accordance with the terms of the Agreement. The Client or an Authorized User may terminate their use of the Harmony Software at any time by deleting the Harmony Software from their Mobile Device, without terminating this Licence or the Agreement.
    • Effect of termination. Upon any termination of this License, all rights and licenses granted herein shall automatically terminate, and the Client and each Authorized User must delete all Harmony Software, including Harmony Software downloaded to their Mobile Device. Sections 2.2, 2.3, 2.5.2, 2.5.6, 2.5.7, 3, 4, 5, and 6 shall survive termination of this Licence or the Agreement.
  • Additional Indemnity

The Provider will defend or settle any third party claim against the Client to the extent that such claim alleges that the Harmony Software violates a copyright, patent, trademark or other Intellectual Property Right registered in the United States if the Client promptly notifies the Provider of the claim in writing, cooperates with the Provider in the defense, and allows the Provider to solely control the defense or settlement of the claim. The Provider will pay infringement claim defense costs the Provider incurs in defending the Client, and settlement amounts the Provider negotiates, as well as court-awarded damages. If such a claim appears likely, then the Provider may modify the Harmony Software, procure the necessary rights, or replace the Harmony Software with a functional equivalent. If the Provider determines that none of these are reasonably available, then the Provider may terminate the Harmony Software and/or the Services and refund any prepaid and unused Fees.  The Provider has no obligation for any claim arising from the use of content, technology or aspects not provided by the Provider. THIS SECTION CONTAINS THE CLIENT’S EXCLUSIVE REMEDIES AND THE PROVIDER’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.

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