On Air Wireless software upgrade
IMPORTANT-READ CAREFULLY: This software is intended for receipt, installation and use only by end-user customers who are adults (over the age of 18 in most jurisdictions) and who own the JBL product appropriate for the software. Prior to continuing, you must agree to the following End-User License Agreement ("Agreement") as indicated by pressing the "CONTINUE/ I ACCEPT" button at the end of this page. If you do not agree to the terms of the EULA, press the "EXIT/I DO NOT ACCEPT" button at the end of this page to reject the Agreement and to cancel receipt and/or installation of the software. This Agreement is binding between you and JBL, Inc. ("JBL") for the software, services and supporting material, if any, that accompanies this Agreement.
1.1 Customer desires to receive the Software for the sole purpose of upgrading firmware and/or software in JBL product owned by Customer.
1.2 JBL desires to provide such firmware and/or software to Customer for Customer's upgrade of JBL product and at Customer's sole risk. Customer and JBL agree as follows: 2. DEFINITIONS.
2.1 "Customer" shall mean the person or entity accepting this Agreement AND who is an end-user who owns the JBL product in which the Software is to be installed.
2.2 "Software" shall mean the software and supporting material, if any, that accompanies this Agreement, which may also include "online" or electronic documentation and Internet download services.
3.1 Download, installation and/or use of the Software constitutes acceptance this Agreement. 3.2 JBL grants to Customer a royalty-free, non-exclusive and worldwide license to copy and use the Software exclusively for the purpose of installation and use in JBL products. Customer may not retain an archival copy of the Software.
3.3 JBL retains all rights, title and interest in and to the Software.
4. LICENSE RESTRICTIONS.
4.1 Customer shall not make any attempt to disassemble, decompile, reverse engineer or otherwise convert any part of the Software to a human-perceivable form or assist any other person to do so or attempt to do so.
4.2 Customer shall not modify the Software in any manner.
4.3 Customer's rights in the Software shall be limited to those expressly granted in this Agreement.
5. PROPRIETARY RIGHTS.
5.1 All intellectual property rights in the Software and all modifications, updates, upgrade to and derivative works based upon the Software belong solely to JBL, and Customer does not and shall not acquire any rights in them. 5.2 Customer shall not delete or in any manner alter the intellectual property rights notices of JBL, if any, appearing on the Software as delivered to Customer.
5.3 JBL reserves the sole and exclusive right at its discretion to assert claims against third parties for infringement or misappropriation of its intellectual property rights in the Software.
6.1 Without prejudice to any other rights, JBL may terminate this Agreement without notice if Customer fails to comply with the terms and conditions of this Agreement.
6.2 Upon termination of the Agreement for any reason, Customer shall immediately cease use of the Software. 7. CUSTOMER REPRESENTATIONS
7.1 If Customer is a company, signatory warrants that he/she has authority to contract on behalf of and bind the Customer. If Customer is an individual, Customer represents that they are an adult in their jurisdiction and capable of entering into a binding agreement.
8. DISCLAIMER OF WARRANTIES.
8.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JBL PROVIDES THE SOFTWARE AND DOWNLOAD SERVICES AS IS AND WITH ALL FAULTS AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. 8.2 JBL PROVIDES THE SOFTWARE WITHOUT WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT AND QUIET POSSESSION. 9. LIMITATION OF LIABILITY.
9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL JBL OR ITS SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, REMOTE, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFITS AND ATTORNEY'S FEES, ARISING FROM OR CAUSED, DIRECTLY OR INDIRECTLY, BY THE SOFTWARE, THE INSTALLATION PROCESS FOR THE SOFTWARE OR ARISING FROM OR CAUSED BY THIS AGREEMENT.
9.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANY DAMAGES THAT CUSTOMER MIGHT INCUR FOR ANY REASON WHATSOEVER, DOWNLOAD, INSTALLATION AND USE OF THE SOFTWARE IS AT CUSTOMER'S SOLE RISK. JBL DISCLAIMS ALL LIABILITY WITH RESPECT TO DAMAGES ARISING FROM OR CAUSED, DIRECTLY OR INDIRECTLY, BY THE SOFTWARE, THE INSTALLATION PROCESS FOR THE SOFTWARE OR ARISING FROM OR CAUSED BY THIS AGREEMENT. 9.3 THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. GENERAL PROVISIONS.
10.1 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, EXCLUDING ITS CONFLICT OF LAW PRINCIPLES. CUSTOMER AND JBL AGREE TO EXCLUDE THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS UNDER THIS AGREEMENT AND ANY TRANSACTION BETWEEN THE THEM THAT MAY BE IMPLEMENTED IN CONNECTION WITH THIS AGREEMENT. CUSTOMER AND JBL AGREE THAT THE SUBJECT MATTER AND PERSONAL JURISDICTION ARE PROPER IN THE COURTS LOCATED IN U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.
10.2 Customers may not assign or delegate all or any part of Customer's rights or obligations under this Agreement without the prior written consent of JBL, except to a person or entity that accepts possession of Customer's respective JBL product and who agrees to be bound by the terms of this Agreement.
10.3 Articles 8, 9 and 10 and Section 6.2 shall survive the termination and/or expiration of this Agreement. 10.4 Any amendment to or modification of this Agreement must be made in writing and signed by an authorized representative of both Customer and JBL. This Agreement is the complete and final agreement between Customer and JBL with respect to the subject matter of this Agreement. To the extent that any terms of any JBL policies or programs for support services conflict with the terms of this Agreement, the terms of this Agreement shall control.
10.5 If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.