INSTALLING THE SOFTWARE
This software license agreement ("Agreement" or “License”) is a legal agreement between you ("Licensee" or "you") and GN Audio A/S, Lautrupbjerg 7, DK-2750 Ballerup, Denmark ("Licensor" or “we”) for the Software (as defined below) you are about to download.
BY CLICKING ON THE "AGREE" BUTTON BELOW YOU AGREE TO THE TERMS OF THIS LICENSE WHICH WILL BIND YOU, YOUR COMPANY AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST IMMEDIATELY DISCONTINUE INSTALLATION OF THE SOFTWARE NOW BY CLICKING ON THE "DISAGREE" BUTTON BELOW.
THE SOFTWARE IS LICENSED BY LICENSOR TO YOU FOR USE ONLY UNDER THE TERMS SET FORTH HEREIN.
1. GRANT OF LICENSE
1.1 Subject to you agreeing to abide by the terms of this Agreement, Licensor hereby grants you a limited, non-exclusive, non-transferable, revocable license to use the executable-code version of GN Audio Software Update software, any resultant data uploaded or otherwise transferred to a headset, and operating system (e.g., Microsoft Windows, OS X, iOS and Android operating systems) software drivers for such mobile device, and any updates of the above ("Software") and the technical documentation that Licensor makes available to you in connection therewith ("Documentation") for your personal use on a single personal computer or smartphone in order for you to update your Licensor headset.
1.2 All rights not expressly granted to you are reserved by Licensor.
2. COPYRIGHT
2.1 The Software is owned by Licensor and is protected by copyright laws and international treaty provisions. You acknowledge that no title to any intellectual property in the Software is transferred to you.
3. LIMITATIONS AND LICENSEE'S UNDERTAKINGS
3.1 Except as otherwise explicitly permitted in this Agreement, you may not (and you undertakes not to):
a.) modify, alter, merge, adapt or vary the whole or any part of the Software or the Documentation or create derivative works of the Software as a whole or any part thereof nor attempt to do any such things nor permit the Software or any part thereof to be combined with or incorporated into any other software;
b.) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of the Software as a whole or any part thereof nor attempt to do any such things;
c.) copy (except to make one archival back-up copy), re-distribute, encumber, sell, rent, lease, loan, sub-license, assign or otherwise merge or transfer your rights to the Software or the Documentation;
d.) remove or alter any trademark, logo, copyright, or other proprietary notices in the Software or the Documentation;
e.) provide, or otherwise make available, the Software or the Documentation in any form, in whole or in part to any person other than your employees without prior written consent from Licensor; or
f.) use the Software or the Documentation for any other purposes than updating your Licensor headset.
3.2 You also undertakes to supervise the use of the Software and the Documentation and ensure that the Software and the Documentation is used by your employees and representatives in accordance with the terms of this Agreement.
4. HIGH RISK ACTIVITIES
4.1 The Software is not fault-tolerant and is not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, implantable human medical devices, external human life-support machines, explosives control devices, submarines, weapons systems, or in controlling the operation of moving motor vehicles, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities").
You agree not to use the Software in any High Risk Activities.
5. LICENSOR'S RIGHTS
5.1 Licensor may audit (using its own employees and those of an independent auditing firm that is subject to appropriate confidentiality obligations) your use of the Software and the Documentation to verify your compliance with this Agreement. You agree to give Licensor (or the auditing firm) reasonable access to your facilities and records for purposes of conducting these audits. Licensor will give you at least five days advance notice before conducting an audit. Audits will be conducted during normal business hours and no more than once per year, unless Licensor has a good-faith basis for believing that more frequent audits are warranted. Licensor will bear all the costs it incurs (including the fees and expenses of the auditing firm, if any) in conducting an audit, unless the audit reveals that you have failed to comply with this Agreement in a material way, in which case you agree to reimburse Licensor for these costs.
5.2 Licensor will use commercially reasonable efforts to provide error corrections to the Software, as well as minor improvements to the Software, as such corrections and improvements become generally available. Licensor may, in its sole discretion, make developments, upgrades, updates, modifications or enhancements (collectively "Upgrades") to the Software. Such Upgrades are not made available by Licensor as part of this Agreement and may be subject to additional charges. Should Licensee desire to purchase a license to such Upgrades, the terms and conditions of this Agreement shall apply to such Upgrades.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 You acknowledge that all intellectual property rights in and to the Software and the Documentation throughout the world belong to Licensor, that rights in the Software are licensed (not sold) to you, and that you have no rights, title or interest in or to the Software or the Documentation other than the right to use them in accordance with the terms of this Agreement.
6.2 You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments.
6.3 The integrity of this Software is protected by technical protection measures ("TPM") so that the intellectual property rights, including copyright, in the Software are not misappropriated. You must not attempt in any way to remove or circumvent any such TPM or have a third party remove or circumvent such TPM on your behalf.
7. DISCLAIMER OF WARRANTIES
7.1 Licensor does not warrant that the Software will meet your requirements, that operation of the Software will be uninterrupted or error free, or that all Software errors will be corrected. The entire risk as to the quality and performance of the Software is with you and Licensor shall not be liable for any losses suffered by you in consequence of deficiencies or other failures in respect of Licensor's obligations under this Agreement or any collateral contract.
7.2 THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND TO THE EXTEND PERMITTED BY LAW LICENSOR DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER LICENSOR KNOWS OR HAD REASON TO KNOW OF LICENSEE'S PARTICULAR NEEDS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES.
7.3 YOUR RECEIPT OF THE SOFTWARE DOES NOT IN ANY WAY WHATSOEVER EXTEND ANY OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES PROVIDED FOR ANY LICENSOR DEVICE OR OTHER LICENSOR SOFTWARE, PRODUCT, OR SERVICE.
8. LIMITATION OF LIABILITY
8.1 IN NO EVENT WILL LICENSOR BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR DAMAGES OF ANY KIND HOWSOEVER ARISING AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, INCLUDING LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF LICENSOR OR ANYONE ELSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
8.2 IN NO CASE SHALL THE MAXIMUM AGGREGATE LIABILITY OF LICENSOR UNDER OR IN CONNECTION WITH THIS AGREEMET OR ANY COLLATERAL CONTRACT EXCEED THE PRICE PAID BY LICENSEE TO LICENSOR FOR THE SOFTWARE.
9. PROHIBITION ON CLAIMS AGAINST OPERATING SYSTEM PROVIDER
9.1 YOU AGREE THAT THE ABOVE LIMITATION OF LIABILITY EXTENDS TO APPLE INC WITH RESPECT TO THE SOFTWARE. YOU FURTHER AGREE THAT YOU SHALL NOT INITIATE ANY ACTION AGAINST APPLE INC RELATED TO THE SOFTWARE.
10. TRANSFER OF RIGHTS AND OBLIGATIONS
10.1 This Agreement is binding on you and your permitted successors and assigns. You may not transfer, assign, charge or otherwise dispose of this Agreement, or any of your rights or obligations arising under it, without the prior written consent of Licensor.
10.2 Licensor may transfer, assign, charge, sub-contract or otherwise dispose of this Agreement, or any of its rights or obligations arising under it, at any time during the term of this Agreement.
11. FORCE MAJEURE
11.1 Licensor will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Agreement that is caused by an event outside its reasonable control ("Force Majeure Event").
11.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond Licensor's reasonable control and includes in particular (without limitation) the following:
(a) strikes, lock-outs or other industrial action even if the strike, lock-out or industrial action is due to actions on part of Licensor;
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation of war;
(c) fire, explosion, storm flood, earthquake, subsidence, epidemic or other natural disaster;
(d) impossibility of the use of railways, shipping aircraft, motor transportation or other means of public or private transport;
(e) impossibility of the use of public or private telecommunications networks;
(f), the acts, decrees, legislation, regulations or restrictions of any government.
11.3 Licensor's performance under this Agreement is deemed to be suspended for as long as the Force Majeure Event continues. Licensor shall use its reasonable endeavours to bring the Force Majeure Event to a close or find a solution by which its obligations under this Agreement may be performed despite the Force Majeure Event.
12. Waiver
12.1 If Licensor fails, at any time during the term of this Agreement, to insist on strict performance of any of your obligations under this Agreement, or if Licensor fails to exercise any of the rights or remedies to which Licensor is entitled under this Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
12.2 A waiver by Licensor of any default or term or condition shall not constitute a waiver of any subsequent default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed.
12.3 No waiver by Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and signed by Licensor.
13. Severability
13.1 If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will be construed, limited or, if necessary, severed only to the extent necessary to eliminate such invalidity, unlawfulness or unenforceability and 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.
14. ENTIRE AGREEMENT
14.1 This Agreement constitutes the entire agreement between you and Licensor with respect to the Software and the Documentation licensed hereunder, and supersedes all previous communications, representations, understandings and agreements, either oral or written, between you and Licensor relating thereto.
14.2 This Agreement may not be modified or waived except in writing and signed by an officer or other authorized representative of each party.
14.3 If any provision of this Agreement is determined by any competent authority to be invalid, unlawful or unenforceable to any extent, all other provisions shall remain valid to the fullest extent permitted by law.
14.4 The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent action in the event of future breaches.
14.5 Either party acknowledges that, in entering into this Agreement, neither party has relied on any representation, undertaking or promise given by the other party, or implied from anything said or written in negotiations between the parties before entering into this Agreement except as expressly stated in this Agreement.
15. NOTICES
15.1 All notices given by you to Licensor must be given to GN Audio A/S at Lautrupbjerg 7, DK-2750 Ballerup, Denmark.
15.2 Licensor may give notice to you at either the e-mail or postal address you provided when you downloading the Software.
15.3 Notice will be deemed received and properly served immediately 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
16. TERM
16.1 This Agreement is effective until terminated as set out below.
16.2 This Agreement will terminate, and the license granted to you by this Agreement will cease and be revoked, immediately, without any notice from Licensor, if you fail to comply with any provision of this Agreement.
16.3 Upon termination, you must cease all activities authorized by this Agreement. You must immediately delete or remove the Software and the Documentation from all computer equipment in your possession and immediately destroy or return to Licensor (at Licensor's option) all copies of the Software and the Documentation and, in the case of destruction, certify in writing to Licensor that you have done so.
17. CONFIDENTIALITY
17.1 You undertake to keep secret and not to disclose any confidential information that you have receive about Licensor under this Agreement to any third party, including any of your employees who do not need to have knowledge of such information in the course of their employment, and to use and safeguard such information with the same degree of care that you use to protect your own similar information, and in any event no less than a reasonable degree of care.
17.2 The provisions of this clause 17 shall survive any termination of this Agreement.
18. GOVERNING LAW AND JURISDICTION
18.1 The validity, performance and construction of this Agreement shall be governed by and construed in accordance with the laws of Denmark without reference to its choice of law rules and each party hereby submits to the exclusive jurisdiction of the Danish courts.