End User Licence Agreement
END USER LICENSE AGREEMENT
NOTICE TO USER: This end user license agreement (the “Agreement”) constitutes a valid and binding Agreement between A-Volute (“A-VOLUTE”) and you, as a user (“You” or the “End User”), for the use of the Nahimic Audio Driver (the “Software”) defined as set forth below.
IT IS IMPORTANT THAT YOU READ AND CAREFULLY UNDERSTAND THIS AGREEMENT.
BY OPENING THE SOFTWARE PACKAGE OR DOWNLOADING, INSTALLING, RUNNING OR CONTINUING TO USE THE SOFTWARE, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, A-VOLUTE IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU SHOULD NOT INSTALL OR USE THE SOFTWARE, AND, IF APPLICABLE, YOU SHOULD CLICK THE “I DO NOT ACCEPT” BUTTON BELOW.
– “Software” means the NAHIMIC AUDIO DRIVER software provided in or with the applicable equipment manufacturer’s product including but not limited to any future programming fixes, updates, upgrades and modified versions. For the avoidance of doubt, the Software shall include the following technologies: Nahimic Audio Effects, Nahimic Microphone Effects, N-Force Technology.
– “Confidential Information” shall mean information of whatever nature including (without limitations) all business, financial, technical, operational, engineering, commercial and staff management plans, software source code and object code, design materials, templates, preparatory materials, trade secrets, copyrighted material and other information, data, experience and expertise and of whatever kind whether written or in oral form which is either directly or indirectly disclosed to the End User. For the avoidance of doubt “Confidential Information” shall include the Software, and all IP Rights of A-VOLUTE.
– “IP Rights” shall mean all legal and beneficial rights, title and interests (including all future and contingent rights) in any patents, trademarks, service marks, designs, trade secret, business or domain names, copyrights, computer software, topography rights, database rights, inventions, rights protecting goodwill or reputation and rights in the nature of unfair competition rights (whether or not any of these is registered and including applications for registration of any of the same) and rights under licences and consents in relation to any such thing and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of the above which may subsist anywhere in the world.
2. GRANT OF LICENSE
Subject to the terms of this Agreement, A-VOLUTE hereby grants to the End User a limited, personal, non-commercial, non-exclusive license to install and use the Software solely as embedded in the equipment manufacturer’s products. This license shall not be sublicensed, and is not transferable except to a person or entity to whom the End User transfer ownership of the complete equipment manufacturer’s products containing the Software, provided the End User permanently transfers all rights under this Agreement and do not retain any full or partial copies of the Software, and the recipient agrees to the terms of this Agreement (and the transferring End User shall procure to obtain such consent).
The End User understands that A-VOLUTE may update or upgrade the Software at any time and in doing so incurs no obligation to furnish such updates or upgrades to the End User pursuant to this Agreement. Notwithstanding the foregoing, any updates or upgrades to the Software provided to the End User by A-VOLUTE are subject to the terms and conditions of this Agreement, except to the extent of any different or additional terms that accompany such update or upgrade.
3. REVERSE RESTRICTION
A-VOLUTE reserves all rights in the Software not expressly granted to the End User. Except as permitted in Section 2, the End User may not use, copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare or otherwise transfer the Software, nor may he/she permit any other party to do any of the foregoing. The End User may not remove from the Software any of the trademarks, trade names, logos, patent or copyright notices or markings, or add any other notices or markings to the Software. The End User may not, either directly or through any third party, reverse engineer, decompile, disassemble, translate, or attempt to derive the source code of the Software or any part thereof. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of your jurisdiction prohibit such restriction so that the End User may obtain information necessary to render the Software interoperable with other software(s); provided, however, that the End User must first request such information from A-VOLUTE and A-VOLUTE in its discretion may, either provide the End User with such information or impose reasonable conditions, including a reasonable fee, on such use of the Software to ensure A-VOLUTE’s proprietary rights in the Software are protected.
The End User shall have a duty to protect and not to disclose or cause to be disclosed in whole or in part Confidential Information of the Software.
5. IP RIGHTS
The End User acknowledges and agrees that all IP Rights, title, and interest to or arising from the Software are and shall remain the exclusive property of A-VOLUTE. Nothing in this Agreement intends to transfer any such IP Rights to the End User. Any unauthorized use of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, including but not limited to copyright laws and trademark laws.
Except as provided in Section 2, the End User has no right, title or interest in or to the Software.
The End User shall indemnify, defend and hold A-Volute and its directors, officers, agents, employees, members, subsidiaries, and affiliates harmless from and against any claim, action, proceeding, liability, loss, damage, cost, or expense (including without limitation, attorneys’ fees), for any claims of unauthorized use of the Software and IP Rights or infringement of IP Rights by the End User.
7. CONSENT TO USE DATA
– For NAHIMIC 2+:
The End User agrees that A-VOLUTE may collect and use technical data and related information, including but not limited to technical information about the End User device, system and application software, and peripherals that is gathered periodically to facilitate the provision of software updates, product support, and other services related to the Software. A-VOLUTE may use this information, as long as it is in a form that does not personally identify the End User, to operate, provide, improve, and develop A-VOLUTE products, services and technologies, to prevent or investigate fraudulent or inappropriate use of A-VOLUTE products, services, and technologies, for research and development, and for the other purposes described in this Agreement or to the End User as part of A-VOLUTE products and services.
– For NAHIMIC 3:
A-VOLUTE undertakes that it won’t collect nor use any data that permit to identify the End User such data are connected to.
If, for some reason, A-VOLUTE had to collect and/or use technical data and related information, including but not limited to technical information about the End User device, system and application software, and peripherals that permit to identify the End User such data are connected to, A-VOLUTE undertakes to inform the End Users of the collection and/or use of such data, the purpose of such collection and/or use of such data and obtain their consent prior to the collection and/or use of such data.
8. TERM AND TERMINATION
This Agreement will be effective as of the date of installation of the Software. The End User may terminate this License at any time by ceasing all use of the Software and removing the Software from the equipment manufacturer’s product. A-VOLUTE may terminate this Agreement immediately and without prior notice if the End User fails to comply with any provision of this Agreement. Upon notice by A-Volute of such termination, the End User shall cease using the Software and uninstall and remove it from the equipment manufacturer’s product.
9. WARRANTY DISCLAIMER
THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY THE END USER. EXCEPT AS PROVIDED IN THIS AGREEMENT, THE LICENSED SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OR CONDITION EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. FURTHERMORE, A-VOLUTE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. ANY WARRANTY PROVIDED BY ANY DISTRIBUTORS OR A-VOLUTE EMPLOYEES INCONSISTENT WITH THIS SECTION IS VOID. THE SOFTWARE IS NOT INTENDED FOR USE IN MEDICAL, LIFE SAVING OR LIFE SUSTAINING APPLICATIONS.
A-VOLUTE MAXIMUM AGGREGATE LIABILITY TO LICENSEE FOR ALL CLAIMS, LIABILITIES OR OBLIGATIONS ARISING UNDER OR RELATING TO THIS AGREEMENT WILL IN NO EVENT EXCEED ALL AMOUNTS PAID BY THE END USER FOR EQUIPMENT MANUFACTURER’S PRODUCT. IN NO EVENT WILL A-VOLUTE BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS), WHETHER FOR BREACH OF THIS AGREEMENT, INCLUDING BREACH OF WARRANTY, EVEN IF A-VOLUTE HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR DAMAGES SHALL BE SO LIMITED AND EXCLUDED, REGARDLESS OF THE VALIDITY OR EFFICACY OF ANY REMEDY PROVIDED HEREIN AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
10. GOVERNING LAW AND JURISDICTION FOR DISPUTES
This Agreement is governed by and shall be construed in accordance with the laws of the Republic of Singapore. Any dispute, controversy or claim arising out of or in connection with the present Agreement, including any question regarding its existence, validity or termination shall be submitted to the non-exclusive jurisdiction of the courts of Singapore.
In the event of the invalidity of any provision of this Agreement, You agree that such invalidity shall not affect the validity of the remaining portions of this Agreement, and further agree to substitute for such invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.
12. THIRD PARTY RIGHTS
A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce any term of this Agreement.
13. GOVERNING LANGUAGE
This Agreement has been executed in English. If any translation of this Agreement conflicts with the English version or contains terms in addition to or different from the English version, the English version shall prevail.
Any notice, demand or communication hereunder shall be in writing and either personally delivered or sent via electronic mail or prepaid registered post. Notices shall be delivered to the End User at the address specified by him/her when the Software was installed or, as the case may be, at such other address designated in a subsequent notice and to A-VOLUTE at the address below or, as the case may be, at such other address designated in a subsequent notice or in any updated version of this Agreement.
Attention : A-VOLUTE
Polygone Square – Bâtiment 2
19 rue de la Ladrie,
59650 Villeneuve d’Ascq – FRANCE
Any such notice, demand or communication shall be deemed to have been duly served and received (if given by electronic mail) immediately provided that no notification was received by the sender that the electronic mail was undeliverable or (if given or made by letter) seven (7) business days after posting and in proving the same it shall be sufficient to show that the envelope containing the same was duly addressed, stamped and posted.
15. ENTIRE AGREEMENT
This Agreement encompasses the entire understanding between the End User and A-VOLUTE with respect to the subject matter of this Agreement, and supersedes all prior or contemporaneous agreements or statements regarding the subject matter hereof. There are no representations, warranties, covenants, agreements, collateral understandings, oral or otherwise, expressed or implied, affecting this instrument not expressly set forth or provided for herein.