End-User License Agreement (“EULA”) for Dirac Live® (the ”Software”)
This EULA is a legal agreement between you, the end user (either an individual person or a single legal entity, referred to as “you” or “your”), and Dirac Research AB, a Swedish limited company, having its registered office at Dragarbrunnsgatan 73, SE-753 20 Uppsala, Sweden (“Dirac”) for the Software including any associated media, printed materials, and electronic documentation. The Software includes any software updates or upgrades, add-on components, web services and/or supplements that Dirac may provide or make available directly or indirectly to you after the date that you obtain your initial copy of the Software, to the extent that such items are not subject to a separate license agreement or terms of use.
Read this EULA carefully before downloading, installing, or using the Software, as by doing any of the foregoing you agree to be bound by the terms and conditions of this EULA and further agree that your personal data may be processed in accordance with Dirac’s from time to time applicable Privacy Policy (which is available on Dirac’s website). The Software is in “use”, according to the terms of this EULA, when it is loaded into the temporary memory (i.e. RAM) or installed on the permanent memory (e.g. hard disk, CD-ROM, or other storage device) of a computer or similar device. If you do not agree to the terms of this EULA, Dirac will not license the Software to you, and you shall therefore not download, install, or use the Software.
This EULA applies regardless of whether you have acquired a license to the Software from Dirac or from a third party (such as an authorized distributor), and regardless of whether the license to the Software was acquired by you or if the Software was enabled on a hardware product purchased from a third party, and thus directly available to you. Thus, also in the event that you acquire a license to the Software from a third party (including from an authorized distributor) and in the event that the Software is directly available to you on a hardware product purchased from a third party, by installing and/or using the Software, you agree to be bound by the terms and conditions of this EULA. In addition, you acknowledge and agree that any rights provided by a third party that are more onerous than the rights in this EULA shall not apply between you and Dirac.
If you are a consumer, you have a right of withdrawal by law, meaning that you are entitled to withdraw from the contract (in this case the EULA) within fourteen days of the transaction. However, by agreeing to this EULA, you expressly consent to be provided with immediate access to the Software, and acknowledge and agree that you as a result will not have a right of withdrawal.
The Software is licensed to you according to the terms of this EULA. The Software is owned or sublicensed by Dirac and is protected by copyright laws, international copyright treaties, and other intellectual property laws and treaties.
1. Limited Software License.
Subject to payment of the Software license fees and the terms and conditions of this EULA, Dirac grants you a non-exclusive, non-sublicensable, limited license to use the object code version of the Software solely in connection with your personal use on your own personal hardware and related equipment and for the purpose of optimizing sound reproduction. The Software shall not be used for any other purpose.
Your copy of the Software shall be installed by following the instructions provided to you in the set-up sequence or other accompanying materials or otherwise in accordance with standard installation processes for the applicable medium of transmission of the Software.
For Software included in the Dirac Live Room Correction Suite (“DLRCS”), the following terms and conditions apply. You may (a) install and use the DLRCS on a single computer (or similar device); or install and use the Software on a network, provided that each person accessing the DLRCS through the network must hold its own license to the DLRCS; and (b) make one (1) copy of the DLRCS for archival purposes, provided that such copy must contain all of the original DLRCS's proprietary notices, shall be in object code (that is, not in human-readable) form, and shall remain Dirac’s intellectual property.
For Software licensed for the purpose of upgrading hardware with specific Dirac Live functionality (an “Upgrade”), the following terms and conditions apply. You may (a) use the Software to upgrade not more than one (1) hardware equipment; and (b) make one (1) copy of the Software for archival purposes, provided that such copy must contain all of the original Software's proprietary notices, shall be in object code (that is, not in human-readable) form, and shall remain Dirac’s intellectual property. To use the Software to Upgrade additional hardware equipment, additional licenses to the Software must be acquired, either directly from Dirac or from a third party duly authorized by Dirac to distribute the Software.
The Software license is limited to those rights expressly granted in this Section 1 (Limited Software License) and therefore excludes any and all implied rights. Updates or upgrades of earlier versions of the Software, if any, are provided to you on a license exchange basis, meaning that by installing or using the updated or upgraded Software, you agree to the EULA governing the updated or upgraded Software, as well as to the termination of the EULA governing the previous version of the Software, and you agree to cease your use of the previous version of the Software.
2. Restrictions.
Unless expressly authorized in this EULA or permitted under mandatory applicable law notwithstanding this limitation, you may not, in whole or in part (i) make or distribute copies of the Software or electronically transfer the Software from one computer (or similar device) to another or over a network; (ii) alter, merge, modify, adapt or translate the Software, or any proprietary notices or labels relating thereto; (iii) create derivative works based on the Software; (iv) sell, rent, lease or sublicense the Software; (v) export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder or by any other corresponding regulation in any other country; or (vi) decompile, reverse engineer, decrypt, extract, disassemble or otherwise reduce the Software to human-readable form, except with regard to item (vi), to the extent that (a) you are expressly permitted to engage in such activities under mandatory applicable law notwithstanding the prohibition set forth in this item (vi); or (b) it is essential to do so in order for you to achieve operability of the Software with your own software; and (c) you have first requested, in writing, that Dirac provide the information necessary to achieve such operability (making express reference to your rights under this item (vi)) and Dirac has failed to provide such information within thirty (30) business days, provided however that Dirac shall always be entitled to impose reasonable conditions before providing any such additional information.
You understand that the Software shall only operate on (or in connection with) such platform(s) described in this EULA or as listed on www.dirac.com at the time of the acquisition of the license to the Software from Dirac or from an authorized distributor.
The filter design features in the Software are reliant on Internet-based services from Dirac. Dirac will maintain such Internet-based services for a period of at least five (5) years from the date of your acquisition of the license to the Software from Dirac or from an authorized distributor.
3. Refunds.
To be eligible for a limited refund, you (i) must have acquired a license to the Software from Dirac or from an authorized distributor; and (ii) must not have used the Software; (iii) must provide proof of payment for the Software; within thirty (30) calendar days of your receipt of the Software.
ACQUISITIONS OF LICENSES TO SOFTWARE ARE NON-REFUNDABLE FOLLOWING THE EXPIRATION OF THE 30-DAY PERIOD AND IN THE EVENT THAT THE SOFTWARE HAS BEEN USED. SHIPPING CHARGES AND CREDIT CARD FEES ARE NON-REFUNDABLE.
4. Limited Warranty.
To the maximum extent permitted by applicable law, this Section 4 (Limited Warranty), shall apply. Dirac warrants that the Software will perform substantially in accordance with the accompanying written materials (if any) for a period of ninety (90) calendar days from the date of your receipt thereof from Dirac or an authorized distributor. EXCEPT AS PROVIDED IN THIS SECTION 4 (LIMITED WARRANTY), THE SOFTWARE AND ANY RELATED SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY OF ANY KIND. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE WILL BE BORNE BY YOU. THE WARRANTY SET OUT IN THIS SECTION 4 (LIMITED WARRANTY) IS IN ADDITION TO ANY MANDATORY STATUTORY RIGHTS THAT YOU MAY HAVE AS A CONSUMER.
5. Limitation of Liability and Customer Remedies.
In the event of a breach of the limited warranty in Section 4 (Limited Warranty), Dirac’s and its suppliers’ and/or authorized distributors’, as applicable, entire liability and your exclusive remedy shall be, at Dirac’s or its suppliers’ and/or distributors’ (as applicable) sole discretion, either to receive (a) a refund of the price that you paid to Dirac or an authorized distributor for the license to the Software, or (b) a repair or replacement, to the extent necessary, of the Software. To receive a refund, repair and/or replacement, you must (i) notify Dirac or the authorized distributor from whom you obtained the Software, as applicable, of your warranty claim within thirty (30) calendar days from the expiration of the ninety (90) day warranty period in Section 4 (Limited Warranty), and (ii) submit a copy of the original receipt reflecting your acquisition of the license to the Software from Dirac or the authorized distributor. Repairs and replacements are provided without charge, provided however that any shipping expenses shall be borne by you. The limited warranty does not apply to defects resulting from accidents, abuse, abnormal use, misapplication, extreme electrical stress or viruses or if the error cannot be reproduced. Any replacement Software will be subject to the limited warranty in Section 4 (Limited Warranty) for the remainder of the original limited warranty period. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANY DAMAGES YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY AND ALL DIRECT OR GENERAL DAMAGES), THE AGGREGATE LIABILITY OF DIRAC AND ITS SUPPLIERS OR DISTRIBUTORS (AS APPLICABLE) UNDER ANY AND ALL PROVISIONS OF THIS EULA AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING, INCLUDING WITHOUT LIMITATION, BREACH OF THE LIMITED WARRANTY, SHALL BE LIMITED TO THE REMEDY SET FORTH IN THIS SECTION 5 (LIMITATION OF LIABILITY AND CUSTOMER REMEDIES). SHOULD THIS REMEDY FAIL WITH REGARD TO CLAIMS RELATED OR UNRELATED TO THE LIMITED WARRANTY, DIRAC’S AGGREGATE LIABILITY SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE TO DIRAC OR TO AN AUTHORIZED DISTRIBUTOR. UNLESS EXPRESSLY PROVIDED OTHERWISE IN THIS EULA, DIRAC AND ITS SUPPLIERS OR DISTRIBUTORS (AS APPLICABLE) SHALL ONLY BE LIABLE FOR CLAIMS BROUGHT BY YOU WITHIN EIGHTEEN (18) MONTHS OF YOUR RECEIPT OF THE SOFTWARE FROM DIRAC OR AN AUTHORIZED DISTRIBUTOR. FOR CLARITY, THE LIMITATIONS SET FORTH IN THIS SECTION 5 (LIMITATION OF LIABILITY AND CUSTOMER REMEDIES) ARE WITHOUT PREJUDICE TO YOUR MANDATORY STATUTORY RIGHTS AS A CONSUMER.
6. Exclusion of Liability.
IN NO EVENT SHALL DIRAC OR ITS SUPPLIERS (IF APPLICABLE) BE LIABLE IN ANY WAY FOR ANY DAMAGES (INCLUDING, BUT NOT LIMITED TO, PHYSICAL DAMAGE OR PERSONAL INJURY) SUFFERED BY YOU OR ANY THIRD PARTY AS A RESULT OF YOUR USE OF THE SOFTWARE. IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL DIRAC OR ITS SUPPLIERS (IF APPLICABLE) BE LIABLE FOR ANY LOSS OF REVENUE, PROFITS OR DATA, OR FOR DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, DIRAC’S FAILURE TO MEET ANY DUTY OF GOOD FAITH OR REASONABLE CARE, OR ANY OTHER COMMERCIAL DAMAGES OR PECUNIARY LOSSES WHATSOEVER, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, TORT, CONTRACT OR OTHERWISE, ARISING OUT OF THE USE OF, MISUSE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF DIRAC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THERE IS ANY FAILURE OF ANY REMEDY SET FORTH HEREIN. THIS SECTION 6 (EXCLUSION OF LIABILITY) SHALL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. FOR CLARITY, THE LIMITATIONS SET FORTH IN THIS SECTION 6 (EXCLUSION OF LIABILITY) ARE WITHOUT PREJUDICE TO YOUR MANDATORY STATUTORY RIGHTS AS A CONSUMER.
7. Basis of Bargain.
The provisions in Section 4 (Limited Warranty), Section 5 (Limitation of Liability and Customer Remedies), and Section 6 (Exclusion of Liability) are fundamental elements of this EULA. You acknowledge that Dirac would not be able to provide the Software as contemplated hereunder in the absence of such limitations. As such, these limitations shall apply, to the fullest extent permitted under applicable law, regardless of whether any remedy provided herein or otherwise applicable fails its essential purpose. Further, the limitations contained in the foregoing sections shall survive even if the remedy set forth for the limited warranty in Section 4 (Limited Warranty) is invalidated. SOME OF THE RESTRICTIONS CONTAINED IN THIS EULA MAY NOT APPLY IN THE JURISDICTION(S) APPLICABLE TO YOU AND IN SUCH EVENT THE RESTRICTIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER THE LAWS OF SUCH JURISDICTION(S).
8. Termination.
This EULA is effective and binding until terminated. You may terminate this EULA at any time by returning, destroying, erasing, and/or deleting all copies of the Software, in their entirety, that are in your custody or control. This EULA shall automatically terminate immediately and without notice to you if you fail to comply with any of the terms and conditions of this EULA. In such event, you must return, destroy, erase, and/or delete all copies of the Software, in their entirety, that are in your custody or control. Dirac may have other legal rights upon such termination, which it reserves and does not waive. Upon termination of this EULA, you will not be entitled to receive any reimbursement of all or any portion of the price or fees for the license to the Software, and Dirac will be entitled to deactivate your ability to use the Software.
9. Reimbursement for Breach and Injunctive Relief.
You shall reimburse Dirac for all reasonable expenses, damages, and costs, including attorney fees, incurred by Dirac as a result of your material breach of any provision of this EULA. You understand and agree, notwithstanding any other provision of this EULA, that your breach of any of the provisions of this EULA may result in material irreparable injury to Dirac for which there is no adequate remedy at law, that it will not be possible to measure precisely damages for such injuries and that, in the event of such a breach or threat thereof, Dirac shall be entitled, without the requirement to post bond or other security, to seek specific performance and injunctive relief, in addition to any and all remedies available at law.
10. Intellectual Property.
Dirac and, as applicable, its licensors, remain the sole owner(s) of all right, title, and interest in and to the Software. Except as expressly stated in this EULA, Dirac does not grant you any rights to any intellectual property rights, including without limitation, patents, copyrights, trade secrets, and trademarks, or to any other rights in respect to the Software. Dirac reserves all rights not expressly granted under this EULA. This EULA does not authorize you to use any Dirac name, trademark or logo.
11. Confidentiality.
The Software contains trade secrets, confidential information and proprietary know-how of Dirac and its suppliers. The Software shall, therefore, only be used as permitted under this EULA.
12. Export Regulations.
The Software may be subject to export or import regulations in other countries. You agree to comply strictly with all such regulations and acknowledge that you, provided that you are expressly permitted to do so under this EULA, are solely responsible for obtaining any license or approval to export, re-export or import the Software.
13. Feedback.
You have no obligation to provide Dirac with ideas, suggestions, proposals, or bug or crash reports (“Feedback”). If you submit Feedback to us however, then you grant us a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, sublicensable, and transferable license to make, use, sell, have made, offer to sell, import, export, reproduce, publicly display, distribute, modify, and publicly perform the Feedback.
14. Governing Law.
This EULA shall be governed by the laws of Sweden, without regard to its conflict of laws provisions. Any dispute, controversy or claim arising out of or in connection with this EULA, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this EULA. Notwithstanding this Section 14 (Governing Law), Dirac shall be entitled to take direct legal action in a competent court within your home jurisdiction as necessary to reasonably secure Dirac’s rights and interests and to be able to enforce any judgment obtained by Dirac. THIS SECTION 14 (GOVERNING LAW) SHALL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. FOR CLARITY, THE LIMITATIONS SET FORTH IN THIS SECTION 14 (GOVERNING LAW) ARE WITHOUT PREJUDICE TO YOUR MANDATORY STATUTORY RIGHTS AS A CONSUMER.
15. Severability.
IF ANY PROVISION OF THIS EULA IS HELD TO BE VOID, INVALID, ILLEGAL OR UNENFORCEABLE FOR WHATEVER REASON, SUCH PROVISION SHALL BE DELETED OR MODIFIED SO AS TO EFFECT THE ORIGINAL INTENT AND EFFECT, AS CLOSELY AS POSSIBLE AND TO THE FULLEST EXTENT POSSIBLE AND NECESSARY, PROVIDED HOWEVER THAT THE REMAINING PROVISIONS OF THIS EULA SHALL BE UNAFFECTED THEREBY AND SHALL CONTINUE TO BE VALID AND ENFORCEABLE. IF IN DIRAC’S OPINION, DELETION OR MODIFICATION OF ANY PROVISION OF THIS EULA UNREASONABLY COMPROMISES THE RIGHTS OR INCREASES THE LIABILITIES OF DIRAC, DIRAC MAY AUTOMATICALLY TERMINATE THIS EULA WITHOUT ANY REMEDY TO YOU. UPON SUCH TERMINATION, YOU MUST TAKE THOSE ACTIONS AS SET OUT IN SECTION 8 (TERMINATION).
16. Entire Agreement.
This EULA constitutes the entire agreement between the parties with respect to the subject matter hereof. This EULA supersedes all other written and oral agreements, understandings, communication, proposals, conditions, representations, and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment or other communication, at any time, between the parties relating to the subject matter hereof during the term of this EULA.
17. Changes.
Dirac reserves the right to unilaterally modify the terms of this EULA at any time by reasonable notice. Unless otherwise noted, the amended EULA will be effective immediately, and your continued use of the Software will confirm your acceptance of the changes. If you do not agree to the amended EULA, you must stop using the Software.