IMPORTANT: READ THIS AGREEMENT CAREFULLY BEFORE YOU USE A DS ULTIMATE MEDIA CENTER. ALSO REVIEW THE IMPORTANT PRODUCT INFORMATION THAT MAY HAVE BEEN PROVIDED WITH YOUR DS ULTIMATE MEDIA CENTER.
This End User License Agreement (“EULA”) governs your use of: (a) DS Ultimate Media Center (“UMC”), and (b) any firmware and software that DS Electronics. (“DS”) has pre-installed on the UMC, and the firmware and software updates DS provides to you for the UMC (collectively, the “Software”). By linking the UMC to your account on DS’s website (“DS Account”) or using the UMC, you are agreeing to this EULA.
If you do not agree to this EULA, you do not have the right to use the UMC or the Software. If you are within the allowable time period for returns under the applicable return policy, you may return the UMC to your seller for a refund, subject to the terms of such return policy. You should perform a factory reset before you return it to erase data that may be stored on the UMC. For instructions on how to reset your UMC, please visit http://forum.dselectronicsnyc.com/.
In this EULA, “Channel” means an application in the DS Channel Store; “Content” means movies, television shows, music and other audio and visual materials and entertainment; “Content Provider” means any provider of Content; and “DS Channel Store” means the storefront of applications provided by DS via the UMC’s on-screen menu.
Changes to This EULA
DS may amend this EULA at any time in its discretion. Such amendments shall be effective immediately upon posting of the amended EULA on DS’s website or via the UMC or your DS Account, whichever occurs first. In its option, DS may also notify you of the amended EULA by sending a notice to the last email address you have provided to DS. You agree to provide accurate and complete information if and when you set up your DS Account, and you agree to promptly update your account information (including contact information) to keep it accurate and complete. You can do this at any time by signing in to your DS Account. Following such posting or notice by any of the methods described above, continued use of your UMC or DS Account means you accept and agree to the amended EULA. If you do not agree to the amended EULA, DS may not be able to provide updates, upgrades or enhancements to your UMC, and you may not be able to continue using your UMC or DS Account.
Permitted Use and Restrictions
The UMC and the Software are for personal, non-commercial use only. Copying or redistribution of any Content delivered via the UMC is strictly prohibited and we may prevent or restrict you from copying or re-distributing any elements of the Software or Content using digital rights management or other technologies. The UMC and the Software are for use only in those countries specified on DS’s website and where DS makes the UMC and Software available via its authorized distributors. If you are using the UMC and the Software outside of these countries, the rights granted under this EULA do not apply. Some of the Content Providers use technologies to verify your geographic location, and you may not be able to use the UMC or the Software to access any Content outside of the country or location authorized by DS or the Content Provider. Except as expressly provided under this EULA, you do not acquire any intellectual property or other proprietary rights in or to the UMC, the Software or the Content, including any rights in patents, inventions, improvements, designs, trademarks, database rights or copyrights, nor do you acquire any rights in any confidential information or trade-secrets. All rights not expressly granted to you in this EULA are reserved by DS or its applicable licencors. You may not remove, obscure, alter or conceal any trademark, logo, copyright or other proprietary notice in or on any UMC, Software or Content.
The Software is proprietary to DS or its third party licencors and may be used only with the UMC. Subject to this EULA and, where appropriate, the applicable third party licenses, you have a non-exclusive, non-transferable license to run the Software and any updated versions provided to you by DS, only in and as incorporated in the UMC. This is a license and not a sale. You may not (a) copy, assign, sublicense, lease, sell or rent the Software, (b) distribute or otherwise transfer the Software except as incorporated in the UMC, provided that, you do not retain any copies of the Software and the recipient reads and agrees to this EULA (including all amendments); (c) modify, adapt, translate, or create derivative works of the Software (except only to the extent any of the foregoing restriction is prohibited by applicable law or as may be permitted by the license terms governing any Separately Licensed Code included with the Software); (d) decompile, disassemble, reverse engineer or otherwise derive source code from the Software, except to the extent such actions cannot be prohibited under applicable law because they are essential to achieve inter-operability of the Software with another software program, and provided that the information obtained by you during such activities is (i) used only to achieve such inter-operability; (ii) not disclosed without DS’s prior written consent; and (iii) not used to create any software that is substantially similar to the Software; (e) defeat, bypass, circumvent or interfere with any security mechanism or access control measures, or (f) have any of the foregoing done for you by a third party. This license does not include the right to receive Software upgrades or updates. Your right to use the UMC and the Software will immediately terminate upon your breach of this EULA.
IN ITS SOLE DISCRETION, DS MAY PROVIDE UPDATES TO YOUR UMC VIA THE INTERNET, INCLUDING BUG FIXES AND UPDATES, CHANGES IN THE USER INTERFACE OR HOW YOU ACCESS CONTENT, AND OTHER CHANGES THAT MAY ADD, ALTER OR REMOVE FUNCTIONALITIES AND FEATURES. YOU ACKNOWLEDGE THAT THESE UPDATES: (A) MAY HAPPEN AUTOMATICALLY IN THE BACKGROUND AT ANY TIME (AND THAT THEY CANNOT BE DISABLED BY YOU); AND (B) WILL REQUIRE AN INTERNET CONNECTION AND YOU MAY INCUR ADDITIONAL DATA CHARGES FROM THE PROVIDER OF THE INTERNET CONNECTION. YOU UNDERSTAND THAT THESE UPDATES ARE NECESSARY TO MAINTAIN COMPATIBILITY WITH OTHER UPDATES TO DS’S PRODUCTS OR SERVICES AND MAY BE REQUIRED FOR SECURITY REASONS. BY USING THE UMC, YOU HEREBY AGREE TO RECEIVE SUCH UPDATES.
Separately Licensed Code
Certain software components of the Software are provided under separate third party license terms (“Separately Licensed Code”) and your right to use such components is governed by such license terms.
WARRANTY DISCLAIMER; Limitation of LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
(A) EXCEPT FOR THE LIMITED PRODUCT WARRANTY ACCOMPANYING YOUR PRODUCT, THE UMC, THE SEPARATELY LICENSED CODE AND THE SOFTWARE ARE PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. DS DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. DS DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE UMC, THE SEPARATELY LICENSED CODE AND THE SOFTWARE WILL BE: (I) SECURE, VIRUS-FREE OR ERROR-FREE, OR (II) FREE FROM ATTACK OR SECURITY INTRUSION. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS ON IMPLIED WARRANTIES, SO THE FOREGOING LIMITATIONS OF WARRANTIES MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
(B) IN NO EVENT SHALL DS, ITS DIRECTORS, OFFICERS OR EMPLOYEES BE LIABLE TO YOU FOR PERSONAL INJURY OR PROPERTY DAMAGE, OR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF ANY UMC, THE SEPARATELY LICENSED CODE, THE SOFTWARE, OR YOUR USE THEREOF; AND
(C) YOU AGREE THAT THE TOTAL CUMULATIVE LIABILITY OF DS, ITS DIRECTORS, OFFICERS AND EMPLOYEES UNDER THIS EULA, INCLUDING LIABILITY RELATING TO ALL UMCS LINKED TO YOUR DS ACCOUNT AND THE SEPARATELY LICENSED CODE AND THE SOFTWARE IN SUCH UMCS, AND YOUR USE THEREOF, SHALL NOT EXCEED THE AMOUNT SET FORTH IN THE DS ACCOUNT TERMS AND CONDITIONS YOU AGREED TO FOR YOUR DS ACCOUNT. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE REMEDY PROVIDED HEREIN FAILS ITS ESSENTIAL PURPOSE AND EVEN IF DS ITS DIRECTORS, OFFICERS OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.
You agree not to download any Content or Software, nor otherwise export or re-export any UMC or the Software into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country as to which the United States or your country has embargoed goods, or to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders or on similar restricted lists published by your government from time to time. By using any UMC or the Software, you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
DS may transfer its rights and obligations under this EULA to another organization. You may only transfer your rights or your obligations under this EULA to another person if DS agrees in writing. This EULA is between you and DS. No other person shall have any rights to enforce these terms. Each of the paragraphs of this EULA operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect. If DS fails to insist that you perform any of your obligations under this EULA, or if DS does not enforce its rights against you, or if DS delays in doing so, that will not mean that DS has waived its rights against you, or that you do not have to comply with those obligations. If DS does waive a default by you, DS will only do so in writing, but that will not mean that DS will automatically waive any later default by you.