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VisiSonics Evaluation License Agreement[May 19th, 2017].
This Evaluation License Agreement (“Agreement”) is effective as of the date first written above (“Effective Date”) between You and VisiSonics, Corp. (“VisiSonics” or “We”).
1. Introduction. This Agreement governs the terms and conditions governing Your evaluation of the VisiSonics RealSpace® 360 Cinema software, including the authoring plug-in and tools, runtime engine and associated libraries, and personalization components (together with its accompanying documentation, collectively the “Software”).
This Agreement permits Your evaluation of the Software for internal purposes. No right to any commercial use of the Software is granted. If You wish to use the Software for commercial purposes, including to distribute Applications that You develop, You must obtain a version of the Software under a Development and Distribution License.
THIS IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND VISISONICS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY DOWNLOADING OR USING THE SOFTWARE, YOU HEREBY AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SOFTWARE. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS YOU DO NOT HAVE A LICENSE TO USE THE SOFTWARE. USE OF THE COPYRIGHTED SOFTWARE WITHOUT A LICENSE MAY SUBJECT YOU TO LIABILITY FOR COPYRIGHT INFRINGEMENT.
a. VisiSonics Ownership. The Software is licensed, not sold, even if for convenience we make reference to words such as “sale” or “purchase.” The Software is protected by copyrights, patents, trademarks and other intellectual property rights. You agree that all worldwide intellectual property rights in the Software and all copies of the Software, however made, are the sole and exclusive property of VisiSonics (and its licensors). All rights in the Software not expressly granted to You in this Agreement are reserved by VisiSonics and its licensors. There are no implied licenses under this Agreement. VisiSonics and RealSpace are trademarks of VisiSonics (“VisiSonics Trademarks”). Except as specifically permitted in this Agreement, You will not use the VisiSonics Trademarks or marks that are confusingly similar and You shall not challenge the validity of the VisiSonics Trademarks. You acknowledge that all right, title, and interest in the VisiSonics Trademarks are owned by VisiSonics. You agree not to register any trademark confusingly similar to any VisiSonics Trademarks in any country. You agree that all use of VisiSonics Trademarks and goodwill associated therewith will inure solely to the benefit of VisiSonics. Modifications of the VisiSonics Trademarks by You are not permitted. Subject to the Terms and Conditions of this Agreement, VisiSonics hereby grants You a nonexclusive, worldwide, non-sublicensable, non-transferable, revocable right to use and display VisiSonics Trademarks in authorized Applications, subject to any trademark usage guidelines imposed by VisiSonics. You agree that Your use of VisiSonics Trademarks shall not in any manner indicate, suggest, or imply that VisiSonics is in any manner endorsing, approving, sponsoring, or responsible for Your Applications.
b. Your Ownership. Except for the Software (including any Runtime Components in Your Applications) or any unauthorized derivatives of the Software, You own any Application that You create using the Software, provided You comply with all of the terms and conditions of this Agreement.
3. Evaluation License. Subject to the Terms and Conditions of this Agreement, VisiSonics hereby grants You for a period of sixty days (60) days from the Effective Date, a personal, non-exclusive, non-sublicensable, non-transferable, revocable, license to download, install and use the Software in machine-readable form solely to evaluate the Software to develop and internally test Your Applications. You may demonstrate the Applications to Your customers or potential customers but no other right to any commercial use is hereby granted. You may not distribute, license, sell, or grant any rights in or to Your Applications under this Agreement. Your Applications must be games, interactive entertainment software, or similar value-added applications that add significant and primary functionality to the Software, and must not be programs that substantially duplicate the capabilities of or compete with the Software, or that lack substantial additional value beyond that of the Software, or that permit users of Your Applications to develop other programs that incorporate RealSpace technology. Your Applications must include redistributable runtime components of the Software (in object code format only) that enable RealSpace technology (“Runtime Components”) and personalization components (in object code format only). Runtime Components are a subset of the Software and do not include functionality for creating or modifying Applications. The Runtime Components are proprietary to VisiSonics, and may not be distributed, installed, or executed without a distribution license from VisiSonics to You.
a. Limited Functionality. The evaluation version of the Software will not have the full functionality described in its accompanying documentation. In exercising Your rights under this Evaluation Agreement, You may modify those portions of the Software provided to You in human-readable format for the sole purpose of integrating Runtime Components into the Application.
b. Backup License. You may make no more than two (2) backup copies of the Software licensed to You during the term of this Agreement, so long as You do not use such backup copies for any purpose other than to replace the original copy of the Software provided to You by VisiSonics if such original copy is damaged or destroyed.
c. Documentation. Subject to the Terms and Conditions of this Agreement, You may reproduce and use a reasonable number of copies of the documentation solely to support Your licensed use of the Software.
4. Attribution and Notice. Applications must provide conspicuous VisiSonics copyright notice and attribution to VisiSonics, in the format specified by VisiSonics, in a manner that is consistent with other licenses or other attributions in the application. If the software is provided with no attributions of any kind, then VisiSonics grants You an exception, provided the attribution to VisiSonics is made in accompanying descriptions, email, or otherwise. To the extent this attribution constitutes a trademark use, VisiSonics hereby grants You a personal, nontransferable worldwide license to do so. You agree that Your use of any of VisiSonics’ trademarks licensed hereunder inures to the benefit of VisiSonics. You must include with Applications any third party license files provided with the Software, or when it is not practical to do so, links to such licenses.
5. No Open Source. You may not link to or incorporate into any portion of the Software that You distribute to others any “open source” or other code that is licensed to You by a third party under the condition or requirement that any programs incorporated into, derived from, combined with, or distributed with such code be disclosed or distributed in source code form or distributed at no charge or that purports to cause a grant of rights in any patents owned or controlled by VisiSonics or any of its affiliates or which cause any such patents to become subject to any encumbrance or terms and conditions of any open source license. As used herein, “Open Source License” means any agreement that requires, as a condition of use, permitting modification and/or distribution of any software or other software incorporated into, derived from, or distributed with such software (each, a “work”), that complies with the following criteria: (a) the making available of source code, object code or design information regarding a work; (b) the granting of any permission or other right for creating modifications to or derivative works regarding a work; (c) the granting of any royalty-free license rights to any party under any patents or other Intellectual Property Rights regarding a work. By means of example and without limitation, “Open Source License” includes those listed on http://www.opensource.org/licenses/alphabetical).
6. Other Restrictions on Use. You may not do (or permit others to do) any of the following: (a) modify, adapt, alter, translate, or create derivative works of the Software except as specifically permitted hereunder; (b) merge or otherwise integrate the Software with external components or other software except as permitted hereunder; (c) sublicense, lease, rent, loan, assign, or otherwise transfer the Software or any license hereunder to any third party unless You have purchased distribution rights, and then solely in accordance with the terms of this Agreement; (d) host, upload, use, or access the Software via a time sharing, service bureau, virtualization, hosting, or other remote access arrangement; (e) reverse engineer, decompile or disassemble the Software (other than components if any provided to You in source code format), or otherwise attempt to derive the source code of the; (f) remove, alter, or obscure any confidentiality or proprietary notices (including copyright or trademark notices) of VisiSonics or its suppliers on, in, or displayed by the Software; (g) use or distribute the Software other than as part of Your Applications; (h) use the Software or any part of the Software, the Documentation or knowledge of the Software to create a product with the same or substantially the same functionalities as the Software; or (i) transfer or assign this Agreement or any of the rights, duties or obligations hereunder.
7. No Support or Maintenance. You agree that VisiSonics shall not be responsible to You to provide any support, maintenance, updates or bug fixes (”Modifications”). To the extent that VisiSonics elects to make any Modifications to the Software available, the Modifications shall be subject to the terms of this Agreement.
8. Data Collection. You understand that VisiSonics, and its Software, may collect and use personal data, technical data, usage statistics for devices operating the Software, and other information for internal purposes only and will not share such information with any third party. You hereby consent to such collection and use.
9. No Warranty. THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS, OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE SOFTWARE IS ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION. YOU ASSUME THE ENTIRE RISK ARISING OUT OF THE PERFORMANCE OR USE OF THE SOFTWARE. TO THE EXTENT THAT VISISONICS MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE, AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. VISISONICS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VISISONICS OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, VISISONICS SHALL HAVE NO OBLIGATION TO BUG FIX, UPGRADE OR UPDATE THE SOFTWARE, OR PROVIDE ANY SERVICE, REPAIR, OR CORRECT ANY DEFECTS, OR BE LIABLE FOR ANY COSTS INCURRED BY YOU TO BUG FIX, UPGRADE OR UPDATE THE SOFTWARE, OR TO SERVICE, REPAIR, OR CORRECT ANY DEFECT.
10. Limitation of Liability. IN NO EVENT WILL VISISONICS (OR ANY AUTHORIZED RESELLER OF VISISONICS FROM WHOM YOU MAY HAVE ACQUIRED THE SOFTWARE) BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY INJURY OR DAMAGE TO BUSINESS, LOST PROFITS, REVENUES OR GOODWILL OF ANY PARTY HERETO, OR LOST DATA, OR COST OF PROCURING SUBSTITUTE GOODS OR SERVICES ARISING FROM OR RELATING TO USE OF THE SOFTWARE OR YOUR USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF VISISONICS OR ITS AUTHORIZED RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO LICENSOR OR OTHER SUPPLIER TO VISISONICS WILL HAVE ANY LIABILITY TO YOU, WHETHER IN CONTRACT, IN TORT, OR OTHERWISE UNDER THIS AGREEMENT OR IN RELATION TO THE SOFTWARE. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION WILL APPLY EVEN IF AN EXCLUSIVE REMEDY UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.
11. Feedback. You may request features or provide other feedback or suggestions (collectively “Feedback”). You hereby grant to VisiSonics a perpetual, irrevocable, fully-paid, royalty-free, non-exclusive, worldwide license to make, have made, use, sell, offer for sale, import, export, reproduce, distribute, create derivative works of, publicly display, publicly perform the Feedback.
12. Expenses. Each party will bear its own expenses in exercising its rights or discharging its obligations under this Agreement, except as otherwise expressly provided.
13. Termination. This Agreement will remain in effect for sixty days (60) days from the Effective Date unless sooner terminated. VisiSonics may terminate this Agreement, effective immediately upon written notice to You if You: (a) breach any provision of this Agreement, and do not cure such breach within ten (10) days after receipt of notice; or (b) become insolvent, declare bankruptcy or enter into a similar type of proceeding such as an assignment for the benefit of creditors or cease to do business. Upon expiration or termination of this Agreement for any reason, Your evaluation license rights hereunder terminate immediately and You must cease all use of the Software. You must delete or otherwise destroy all copies of the Software licensed hereunder.
14. Effect of Termination. Sections 1, 2, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, and 16 will survive expiration or termination of this Agreement for any reason. The termination of this Agreement will not affect either party’s obligation to pay amounts due hereunder or to report and pay royalties and revenue sharing with respect to Units sold prior to the effective date of termination.
15. Third Party Software Programs. The Software includes certain open-source and other programs or content licensed by third-party developers (“Third-Party Programs”). Copyright notices and additional license terms for Third-Party Programs will be provided in the Software’s “About” screen or in the documentation that accompanies the Software, as specified by the respective third-party developers. By using the Software, You agree to comply with these additional third-party terms for the benefit of the applicable third party. VISISONICS PROVIDES THIRD-PARTY PROGRAMS TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND.
a. Choice of Law and Venue. Regardless of where You are located, this Agreement will be governed by the laws of the State of Maryland and the United States, without giving effect to any choice of law principles that would require the application of the laws of a different country or state. Any legal action between You and VisiSonics arising out of this Agreement or Your use of the Software must be instituted exclusively in the federal or state courts located in Baltimore, Maryland, USA and You consent to jurisdiction and venue in such courts. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (USA) do not apply to this Agreement.
b. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be decided by binding arbitration administered by the American Arbitration Association ("AAA") before a single arbitrator in accordance with the then-current Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Any arbitration shall occur in the State of Maryland.
c. Compliance with Laws. You will comply with all applicable export and import control laws and regulations in Your use of the Software and, in particular, You will not export or re-export the Software without all required government licenses. Regardless of any disclosure made to VisiSonics of an ultimate destination of the Software including its accompanying technical documentation, You acknowledge that all such materials are being released or transferred to You in the United States and may be subject to U.S. export control laws and regulations including regulations of the U.S. Bureau of Industry and Security. You will defend, indemnify, and hold harmless VisiSonics and its suppliers from and against any violation of such laws or regulations by You.
d. U.S. Government Rights. If You are a branch or agency of the U.S. Government, then You acknowledge that the Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Any technical data provided with such Software is commercial technical data as defined in 48 C.F.R. 12.211. Consistent with 48 C.F.R. 12.211 through 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, and 48 C.F.R. 252.227-7015, all U.S. Government end users acquire the Software with only those rights set forth in this Agreement.
e. Relationship Between the Parties. The parties are independent contractors. Neither party is the agent, partner, employee, fiduciary, or joint venturer of the other party under this Agreement.
f. Assignments. You may not assign or transfer, by operation of law or otherwise, any of Your rights under this Agreement (including Your licenses with respect to the Software) to any third party without VisiSonics’s prior written consent. Unless otherwise agreed to in advance in writing by VisiSonics, the licenses granted hereunder to You shall terminate if You undergo a transfer of control or of a majority ownership. Any attempted assignment or transfer in violation of the foregoing will be void. VisiSonics may freely assign its rights or delegate its obligations under this Agreement.
g. Remedies. Except as otherwise provided herein, the parties’ rights and remedies under this Agreement are cumulative. You acknowledge that the Software contains valuable trade secrets and proprietary information of VisiSonics and its suppliers, that any actual or threatened breach of this Agreement by You will constitute immediate, irreparable harm for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
h. Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
i. Severability. If any provision of this Agreement is held unenforceable by a court, such provision may be changed and interpreted by the court to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. You agree that the terms of this Agreement will remain in effect notwithstanding the unenforceability of any other term of this Agreement.
j. Entire Agreement. This Agreement constitutes the final and entire Agreement between the parties regarding the subject of this Agreement and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties. The terms of any purchase order or similar document submitted by You to VisiSonics will have no effect. If the terms of this Agreement conflict with Documentation, then the terms of this Agreement shall control.
k. Indemnification. You agree to indemnify, defend and hold VisiSonics, its subsidiaries and affiliates and each of their respective officers, directors, and employees harmless from and against any and all claims, demands, causes of action, losses, liabilities, damages, costs and expenses, incurred or otherwise suffered by VisiSonics (including but not limited to costs of defense, investigation and reasonable attorney’s fees) arising out of, resulting from or in connection with (i) any use, reproduction, or distribution of Your Applications, which causes an infringement of any patent, copyright, trademark, trade secret, or other Intellectual Property, publicity, or privacy right of any third parties arising in any jurisdiction anywhere in the world, (ii) the download, distribution, installation, storage, execution, use, or transfer of Your Applications, related content or materials, by any person or entity and/or (iii) any breach of this Agreement by any of Your Customers.
l. Confidentiality. Technical information provided to You under this Agreement, including APIs, and other confidential aspects of the Software and Documentation is confidential and proprietary to VisiSonics and may not be disclosed by You to third parties without VisiSonics’s express permission. Confidential information will not include information that: (i) is now or thereafter becomes generally known or available to the public, through no act or omission on Your part; (ii) is expressly revealed by VisiSonics on a non-confidential basis, (iii) was known by You prior to receiving such information, without any confidentiality obligation; or (iv) is rightfully acquired by You from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure. The burden of proof for the existence of any of the above exceptions shall be borne by You.