As an approved Beta tester, you (hereinafter “You”) confirm that you have read and understood the terms and conditions. You agree to be bound by them. You also confirm that you are of the legal age required under applicable law to enter into a binding legal agreement. If you choose to terminate your Beta tester status, you are required to notify Bragi, GmbH by email at: firstname.lastname@example.org.
A.) Bragi GmbH, Sendlinger Straße 7, 80331 Munich, Germany (“Bragi”) is a manufacturer of headphones and other high-quality devices related to the audio industry (the “Bragi Products”);
B.) The Bragi Products contain embedded software (the “Firmware”) which can be updated by end users in accordance with the Bragi Product documentation. For this purpose, Bragi makes available certain Firmware updates to the general public;
C.) Bragi has decided to make available certain pre-release versions of Firmware updates (the “Beta Firmware”) to a limited number of end users for their testing; and
D.) You have acquired a Bragi Product and have been chosen as a Beta firmware test candidate and, with this Beta Agreement, have decided to accept such appointment under its terms.
NOW, THEREFORE, in consideration of the mutual covenants and premises herein contained, the parties hereto agree as follows:
1) Bragi grants to You a non-exclusive, non-transferable license to download, install and use the Beta Firmware solely as an integral part of Your Bragi Product and only for testing of the Beta Firmware under the terms of this Beta Agreement and for the Beta License term as defined herein (the “Beta License”).
2) The Beta License shall commence on the effective date of this Beta Agreement and shall expire upon the earlier of:
2.1) 14 (fourteen) days after release of the Beta Firmware to the public in the form of a general Firmware release and notification of said release to You by way of electronic notification, which will instruct You to install the generally available Firmware replacing Your Beta Firmware;
2.2) Termination of this Beta Agreement by either party in accordance with its terms;
2.3) De-installation of the Beta Firmware on the Bragi Product by You; or
2.4) January 1, 2017.
3) In consideration for receiving a copy of the Beta Firmware for testing, You agree to serve as a "Beta Site" for the Beta Firmware and will notify Bragi of all problems and ideas for enhancements (“Feedback”) which come to Your attention during the term of this Beta Agreement, and hereby assign to Bragi all right, title and interest to such Feedback and all property rights therein including without limitation all patent, copyright, trade secret, mask work, trademark, moral right or other intellectual property rights.
4) Upon completion of the Beta test, You may provide Bragi with further information and testimonials in respect of the Beta Firmware and Your experience with its use (the “Testimonials”). Bragi shall have the right to assume that such information is not confidential and shall have the right to use and publish such Testimonials in Bragi press releases, customer testimonials, and as a reference in marketing and sales initiatives in any type of media and channel, which shall also include the right to modify, adapt and/or translate Your Testimonials.
5) You acknowledge that the Beta Firmware is the sole property of Bragi and Bragi’s licensors and that it includes valuable trade secrets of Bragi. You will treat the Beta Firmware as confidential and will not, without the express written authorization of Bragi:
5.1) Demonstrate, copy, sell or market the Beta Firmware to any third party; or
5.2) Publish or otherwise disclose information relating to performance or quality of the Beta Firmware to any third party; or
5.3) Modify, reuse, disassemble, decompile, reverse engineer or otherwise translate Beta Firmware or any portion thereof.
In particular, in the event of Your sale or other transfer of ownership in the Bragi Product, You shall ensure that the Bragi Firmware is fully de-installed and that the then current Firmware
is re-installed on the Bragi Product prior to such transfer.
6) The Beta Firmware may contain open source software, freeware or shareware as set out in the Documentation (“Open Source Software”), and Bragi does not charge any license fee to You for Your use of such Open Source Software. Certain license conditions (the “Open Source Terms”) may apply to the Open Source Software. You hereby accept such Open Source Terms and acknowledge that, to the extent required by the relevant Open Source Terms, Bragi excludes any warranties, indemnities and liabilities in respect of Your use of such Open Source Software. Upon Your request and where required by the Open Source Terms, Bragi shall provide You or otherwise make available a copy of the source code of the Open Source Software. To the extent there is a conflict between this Beta Agreement and the Open Source Terms, the terms of the Open Source Terms shall prevail over this Beta Agreement with regard to the Open Source Software only.
7) The Beta Firmware is provided free of charge, as prerelease code and is not at the level of performance or compatibility of a final, generally available Firmware. Therefore, the Beta Firmware may not operate correctly and may be substantially modified prior to first commercial shipment, or withdrawn.
THE BETA FIRMWARE IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND, REGARDLESS WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY TERMS IMPLIED BY STATUTE OR COMMON LAW REGARDING QUALITY, FITNESS, MAINTENANCE, OR USE, ARE HEREBY DISCLAIMED AND EXCLUDED TO THE EXTENT NOT EXPRESSLY PROHIBITED BY APPLICABLE LAW.
The entire risk arising out of the use or performance of Beta Firmware remains with You. In no event shall Bragi be liable for any damage whatsoever arising out of Your use of or inability to use the Bragi Firmware, even if Bragi has been advised of the possibility of such damages.
8) Bragi excludes any liability for damages in connection with this Beta Agreement and the Beta Firmware to the extent legally possible.
9) Notwithstanding the provisions in Section 2.1 of this Beta Agreement, Bragi may terminate this Beta Agreement at its free discretion at any time by providing You with 14 (fourteen) days’ written or electronic notice. Your sole means of terminating this Beta Agreement for convenience shall be as set out in Section 2.3 of this Beta Agreement.
The right of either party to terminate this Beta Agreement for cause shall remain unaffected.
The provisions Sections 3 to 14 of this Beta Agreement shall survive its termination.
10) If You are domiciled in the United States or any other country in North, Central or South America including the Caribbean, then this Beta Agreement shall be governed, construed and enforced in accordance with the laws of the State of New York. Exclusive place of jurisdiction for all disputes arising hereunder shall be New York City.
If You are domiciled in any other country other than the countries covered by the preceding paragraph of this Section 10, this Agreement shall be governed, construed and enforced in accordance with the laws of Switzerland. Exclusive place of jurisdiction for all disputes arising hereunder shall be Zurich, Switzerland.
11) This Beta Agreement constitutes the entire and only agreement between the parties for Beta Firmware and all other prior negotiations, representations, agreements, and understandings are superseded hereby. No agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the parties.
12) You shall comply with all applicable applicable laws, regulations, and ordinances in connection with Your activities pursuant to this Beta Agreement.
13) Failure of Bragi to enforce a right under this Beta Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved.
14) If any provision of this Beta Agreement shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Beta Agreement.