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LIMITED LICENSE AGREEMENT FOR THE USE OF THE CRYENGINE AS A SERVICE FOR GAMES
This limited license agreement (this "Agreement") for the commercial use of the CryEngine object code on subscription basis is entered into between Crytek GmbH, Frankfurt/Main, Germany ("Crytek") and you, the user (the "Licensee" or "You").
The Agreement is made effective beginning on the date on which you, the Licensee, first accept this agreement or download, install, load or otherwise use Software as defined below (whichever occurs first).
By doing so, you, the Licensee, agree to all terms and conditions of this Agreement or in the accompanying documentation. You should read this Agreement carefully before the Start Date. If you do not agree with the terms and conditions set forth in this Agreement you are not authorized to use the CryEngine.
You agree to check www.cryengine.com periodically for new information and terms that govern your use of CryEngine as a Service. Crytek may modify this Agreement at any time. Crytek will inform you about revisions to this Agreement by email and/or by a notice on our home page and/or during log in. Revisions to terms affecting existing CryEngine as a Service shall be effective thirty (30) days after posting at www.cryengine.com. If you do not agree with the new terms your only remedy is to stop using CryEngine as a Service.
1. Definition
1.1. “CryEngine”: the CryEngine for PC/Windows or Linux (as applicable) in object code form, including the CryEngine Tools, the CryEngine Assets and any updates thereto as made available by Crytek at its sole discretion under the “CryEngine as a Service” program. Crytek may offer parts of the CryEngine code as (example) source code upon its sole discretion.
1.2. “CryEngine Assets”: the audiovisual files included in the CryEngine.
1.3. “CryEngine Tools” editors and other tools included in the CryEngine that may be used to develop products based on the CryEngine.
1.4. “Game(s)”: an interactive product for PC/Windows in object code form for the sole purpose of entertainment developed and rendered by using the CryEngine pursuant to its documentation. Under this Agreement the following will not be considered Games:
military projects;
gambling;
simulation (technical, scientific, other);
science;
architecture;
pornography;
“serious games”;
1.5. “License”: defined in Sec. 2.
1.6. “Subscription Fee”: the fee for the License for a certain period as announced by Crytek or its authorized agent. Crytek may change the Subscription Fee for future Subscription Periods at its sole discretion.
1.7. “Subscription Period”: the period of the License the Licensee has paid the Subscription Fee for.
1.8. “UGC”: audiovisual content generated by Licensees using the CryEngine which is not based on CryEngine Assets and is not a Game.
1.9. “UGC Marketplace”: the platform(s) designated by Crytek where the distribution and sale of UGC is admissible.
2. Grant of License
2.1. Grant: Subject to strict and continuous compliance with the restrictions of this Agreement, the payment of the Subscription Fee and any other obligations by Licensee, Crytek grants to Licensee during the Subscription Period a non-exclusive, non-transferable, non-sublicensable, limited license (the “License”) only to:
• install CryEngine and use it on one (1) computer at the same time pursuant to its documentation for the purpose of developing Games;
• distribute, sublicense or exploit Games in object code form only and only under terms consistent with and no less protective of Crytek’s rights than those contained in this Agreement;
• distribute, sublicense or exploit UGC on an UGC Marketplace subject to a certain share payable to Crytek and/or the UGC Marketplace provider.
2.2. Restrictions on Use: Crytek reserves all rights not expressively granted in this Agreement. Without limitation, Licensee shall not:
• install and use the CryEngine after expiration or termination of the Subscription Period;
• install and use the CryEngine on more computers than you have Licenses for;
• distribute, sublicense or exploit:
the CryEngine (if not in the form of Games rendered by CryEngine);
the CryEngine Tools;
• use the CryEngine for the development of any product other than Games, including without limitation:
military projects
gambling
simulation (technical, scientific, other);
science;
architecture;
gambling;
pornography;
“serious games”;
• use the CryEngine for the development of any Games which are harmful, abusive, racially or ethnically offensive, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, or in a reasonable person's view, objectionable;
• remove any technical safeguards from the CryEngine, e.g. to allow use outside the Subscription Period or the License;
• copy, replicate or mimic Crytek’s games;
• remove, modify or substitute any trademark, copyright or proprietary notices from the CryEngine,
• infringe or violate any intellectual property or proprietary, personal, moral or other rights or the privacy of Crytek or any third party;
• use CryEngine for applications that are unlawful or offensive under applicable laws;
• use the Cryengine to develop cheats, hacks or similar applications;
• transfer or assign the License or this Agreement.
2.3. Intellectual Property Rights: CryEngine and all copyrights, trademarks, and all other conceivable intellectual property rights related thereto are owned by Crytek and are protected by German, US and other national and international law. Licensee shall have no ownership or intellectual property rights in or to CryEngine, including, without limitation, all copyrights related thereto.
3. Copyright Notice and Trademarks
3.1. The splash screen, credits screen, documentation and packaging (if any) as well as the marketing material (print, online etc.) of the Game shall include the following wording: “Portions of this software are included under license © 2004-201_ Crytek GmbH. All rights reserved.” Crytek's copyright notices shall be no less prominently displayed than Licensee’s own copyright notices.
3.2. Crytek grants Licensee the right to use the trademarks "Crytek" and "CryEngine" only to promote the Game. The splash screen, credits screen, documentation and packaging (if any) as well as the marketing material (print, online etc.) of the Game shall include the trademarks "Crytek" and "CryEngine". Licensee shall use the trademarks as made available online by Crytek within eight (8) weeks before the final design of the respective material. Crytek's trademarks shall be no less prominently displayed than Licensee’s own trademarks.
3.3. The design of the splash screen, the credits screen, the documentation, the packaging and the marketing material is subject to Crytek's prior written approval regarding Crytek's copyright notice and trademarks. The approval shall be deemed given if Crytek does not give any notice within ten (10) days from receipt of a sample.
4. Subscription Period, Auto-Renewal
4.1. You shall pay the applicable Subscription Fee to Crytek or its authorized agent/payment services provider.
4.2. You acknowledge that the Subscription Period might be auto-renewal and payments might be processed automatically. You may cancel the auto-renewal at any time at Crytek or its authorized agent/payment services provider. Cancellation of auto-renewal shall be effective at the end of the current Subscription Period for which you have paid the Subscription Fee.
4.3. Crytek shall be entitled to discontinue the “CryEngine as a Service” program after due notice at any time. You shall not be entitled to any claims for damages for such discontinuation.
5. UGC, UGC Marketplace
5.1. You may distribute and sell UGC but only on the UGC Marketplace designated by Crytek. You are obliged to use the UGC Marketplace for trading UGC, use the designated payment methods and follow all further guidelines set forth by Cryek on the UGC Marketplace from time to time.
5.2. You may not create, distribute and sell UGC which infringes or violate any intellectual property or proprietary, personal, moral or other rights or the privacy of Crytek or any third party, is unlawful or offensive under applicable laws, harmful, abusive, racially or ethnically offensive, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, or in a reasonable person's view, objectionable. Crytek reserves the rights to remove any UGC from the UGC Marketplace and/or terminate the License and/or the Agreement in case of violations.
5.3. Crytek may set forth certain shares to be paid on Licensee’s revenues arising from the distribution and sale of UGC on the UGC Marketplace. Crytek may change such rates from time to time at its sole discretion.
6. Service and Support
6.1. Crytek shall not be obliged to render any technical support (no telephone support, no training, no bug fixing).
6.2. Licensee may access public developer support forums and online support pages as they are made available to the public by Crytek in Crytek's sole discretion.
7. Warranty, Indemnification
7.1. CRYTEK WARRANTY DISCLAIMER. CRYTEK GIVES NO WARRANTY. SOFTWARE IS DELIVERED "AS IS". CRYTEK DOES NOT MAKE AND HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRATICE.
7.2. CRYTEK INDEMNIFICATION DISCLAIMER.
A. In case that German law applies:
7.2.1. Crytek is liable for damages, regardless on which legal basis (be it contract, tort or otherwise) only if (a) such damages are cause by violation of essential obligations of this Agreement (Kardinalpflichten) for Crytek's negligence or intent (Verschulden) which endangers the purpose of the Agreement; or (b) such damages are caused by Crytek’s gross negligence or intent.
7.2.2. In case that Crytek is liable for the violation of an essential obligation of this Agreement (Kardinalpflicht) without acting with gross negligence or intent then the liability is limited to amount of payments received from the respective Licensee.
7.2.3. If Crytek is liable for damages pursuant to Section (a) above for gross negligence or intent of Crytek staff other than the managing directors then the liability is also limited to the amount set forth in Section (b).
7.2.4. Crytek is not liable for indirect or consequential damages (Mangelfolgeschäden), loss of profits or frustrated costs if such damages are not a result of gross negligence or intent of Crytek's managing directors.
7.2.5. The exclusion or limitation of liability pursuant to this Sec. 5 also applies with respect to claims against Crytek’s staff or contractors.
7.2.6. The liability of Crytek with respect to death, bodily injury or health, a guarantee by Crytek (if any) or pursuant to the Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
7.2.7. If the Licensee is also liable for certain damages then Crytek shall bear an amount of such damages in accordance to its contributory negligence (Mitverschulden). With respect to the User’s responsibility for reduction of damages (Schadensminderungsobligenheit) the Licensee is responsible for regular back-ups of its data and in case of an assumed bug shall take all further reasonable measures. In case of loss of data Crytek is thus liable only to the extent that such loss of data would have occurred in case of a due data back-up as well.
B. In case that German law does NOT apply:
INDEMNIFICATION DISCLAIMER. EXCEPT FOR INTENTIONAL ACTS OR OMISSIONS OF CRYTEK, IN NO EVENT SHALL CRYTEK BE LIABLE FOR ANY DAMAGES, INCLUDING INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF CRYTEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CRYTEK’S MAXIMUM AGGREGATE LIABILITY TO LICENSEE IN CONNECTION WITH OR IN ANY MANNER RELATED TO THIS AGREEMENT (WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY OR ON BEHALF OF LICENSEE TO CRYTEK UNDER THIS AGREEMENT. THE FOREGOING ALLOCATION OF RISK IS REFLECTED IN THE AMOUNT OF THE COMPENSATION CONTEMPLATED UNDER THIS AGREEMENT.
7.3. Licensee Indemnification: Licensee shall indemnify and hold harmless Crytek against all costs and expenses (including reasonable attorney’s fees and expenses) and all other liability related to any claim on Licensee’s use of the CryEngine.
8. Feedback
You are not obliged to report to Crytek any feedback, bug fixes and optimizations made to the CryEngine (including the CryEngine Tools) (collectively the “Feedback”). However, if you report Feedback to Crytek you hereby grant Crytek a worldwide, non-exclusive, royalty-free, transferrable, sub-licensable and perpetual license to such Feedback for the purposes of (1) using the Feedback internally at Crytek, (2) incorporating the Feedback in future releases of the CryEngine and (3) distributing the CryEngine with the embedded Feedback to third parties without restriction in any way and without payment of any additional fees or royalties to Licensee. Crytek acknowledges that it does not obtain any rights in the Game itself.
9. Term and Termination
9.1. The Term of this Agreement and the license granted herein begin on the Start Date and shall terminate automatically and without notice to you or any other notice when the Subscription Period expires or the Agreement is terminated.
9.2. Crytek shall be entitled to terminate this Agreement for Licensee’s breach of this Agreement of any kind with or without cure notice.
9.3. Upon the termination or expiration of this Agreement, any and all rights of Licensee hereunder shall terminate without prejudice to any rights or claims Crytek may have, Licensee shall have no right to use the CryEngine in any manner. Licensee shall immediately destroy all copies of the CryEngine in its possession, custody or control, and all rights granted hereunder shall revert, without notice, to and be vested in Crytek.
9.4. Termination or expiration of this Agreement shall not create any liability against Cryrek and shall not relieve Licensee from any liability which arises prior to termination or expiration. The provisions of this Agreement which by their terms or sense are intended to survive shall survive cancellation, expiration or termination of this Agreement.
10. General Provisions
10.1. Oral agreements have not been made. This Agreement supersedes all prior agreements made between the Parties regarding CryEngine. This Agreement and any other general term published by Crytek reflect the entire agreement and understanding of the Parties with respect to its subject matter.
10.2. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture between Crytek and Licensee. Neither party hereto shall have any right to obligate or bind the other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third persons.
10.3. If any provision of this Agreement shall be found to be invalid or unenforceable for legal or factual reasons the invalidity or unenforceability of such provisions shall not affect the other provisions of this Agreement and all provisions of this Agreement not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic and legal objective of the Agreement. This applies as well in case of an omission or invalidity of the whole Agreement.
10.4. This Agreement shall be governed and construed by the laws of Germany. Place of performance of this Agreement is Frankfurt a.M. (Germany). If the Licensee is defendant, Crytek might, if admissible, determine as court of jurisdiction the court where the Licensee is resident or the court competent for the corporate domicile of Crytek which currently is in Frankfurt a.M. (Germany). If Crytek is the defendant the parties expressively agree on the exclusive jurisdiction of the courts of Frankfurt a.M. This Agreement on jurisdiction applies to all claims, be they based on contract, on tort or on any other legal basis, arising under or in connection with this agreement.
10.5. CryEngine contains third party code listed at the end of this Agreement or in a READ ME file. Such code is distributed under its own license terms as indicated. These third party licenses are incorporated by reference. In case of a conflict between the third party license and this Agreement the third party license shall prevail.
10.6. For users subject to German law the following shall apply:
Right of Revocation
You can revoke this Agreement and within fourteen (14) days without reason in text form (for example letter, fax, e-mail). The revocation deadline starts upon the receipt of this instruction in text form but not before a) entering into these Terms of Service; and b) the fulfillment of the information obligations under § 246 par. 2 in connection with § 1 German Civil Code as well as § 312e section 1 German Civil Code in accordance with § 246 par. 3 German Civil Code. To obey the revocation deadline timely posting of such revocation is sufficient. The revocation notice has to be addressed to: Crytek GmbH, Grüneburgweg 16-18, 60322 Frankfurt am Main.
In case of an effective revocation the benefits received by each party shall be returned and any uses (e. g. interest) shall be surrendered. In case that you cannot return services received in whole or in part or only in deteriorated condition you will be obliged to provide compensation, if applicable. Refund of payments is due within 30 days. This payment term commences for you upon execution of your revocation, for us upon its receipt.
YOUR RIGHT OF REVOCATION WILL PREMATURELY EXPIRE IF BOTH PARTIES HAVE COMMENCED PERFORMANCE AND FULFILLED OBLIGATIONS UNDER THESE TERMS AND CONDITIONS PRIOR TO EXECUTING YOUR REVOCATION RIGHT.
BY ACCEPTING BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
END USER LICENSING AGREEMENT TERMS AND CONDITIONS
These Terms and Conditions (“ToC”) apply to Licensee’s use of Autodesk Materials made available to License under the license agreement (“Agreement”) between Licensee and Crytek GmbH, Grüneburgweg 16-18, 60322 Frankfurt am Main, Germany or its affiliates (“Crytek”). If any provisions of the Agreement conflict with any of the provisions of these ToC, the provisions of these ToC prevail.
1. Definitions
As used in this ToC, the following terms have the following meanings:
1.1. “Application” means titles or applications developed by Licensee using the Integrated Product.
1.2. “Autodesk” means Autodesk, Inc., 111 McInnis Parkway, San Rafael, CA 94903.
1.3. “Autodesk Materials” means any Autodesk materials made available by to Licensee, directly or indirectly, in relation to the Agreement, including if applicable the Autodesk® Scaleform® software and its Source Code.
1.4. “Licensee” means the individual or entity executing this ToC (by signature or electronic affirmation) that is licensing the Integrated Product under the Agreement.
1.5. “Integrated Product” means the bundling of the Autodesk Materials with the CryEngine.
1.6. “Site” means the means Licensee’s physical location or a physical location approved by Crytek according to the terms of the Agreement.
1.7. “Source Code” means the human-readable source code format of software.
2. License
Licensee is licensed on a non-exclusive, non-transferable, non-assignable basis for its own purposes (not for license to others) to use Autodesk Materials only as included in the Integrated Product, solely at the Site to create an Application.
3. Limitations and Restrictions
3.1. Licensee will not copy Autodesk Materials except: (1) to create an archival copy; and (2) for its employees whose access is necessary to exercise the license. Licensee will notify its employees with access to Autodesk Materials of the restrictions in the Agreement and in these ToC and ensure their compliance with both. Licensee must retain all proprietary notices on copies of Autodesk Materials.
3.2. Licensee will not disclose Autodesk Materials to or discuss any Source Code included in the Autodesk Materials with any person, except Licensee employees necessary to exercise the license in these ToC.
3.3. Licensee hereby acknowledges that: (1) Autodesk Materials include trade secrets and confidential information of Autodesk, its licensors, and suppliers; (2) Autodesk, its licensors and suppliers hold all right, title and interest in and to all tangible and intangible intellectual property, including all trade secrets, copyrights, and other intellectual property rights pertaining thereto, contained in Autodesk Materials, any part, and any copies; (3) Autodesk Materials are protected by copyright and contain proprietary information protected by copyright and intellectual property laws, international treaty provisions and other applicable laws; (4) Licensee has only the limited, revocable right to use Autodesk Materials as expressly as set forth in and limited by these ToC; (5) derivative works or modifications, adaptations, changes, additions, improvements to or of Autodesk Materials, if any, created by Licensee are the sole and exclusive property of Autodesk, even if created at the Licensee’s request or in with Licensee’s assistance, and shall be considered part of Autodesk Materials, including all applicable rights to patents, copyrights, trademarks and trade secrets inherent therein and appurtenant thereto, and Licensee hereby assigns such rights to Autodesk; (5) nothing in these ToC constitutes, or shall be construed to constitute, any transfer of title or ownership with respect to Autodesk Materials, including without limitation transfer of any copyrights, patents, trademarks, trade secrets, intellectual property, source code, improvements, enhancements, sequence, logic, structure, and other proprietary rights therein, now or hereafter existing. Licensee will ensure the Application will not in any way give access to any part of (1) Autodesk Materials as part of the Integrated Product other than the object code; or (2) Autodesk Source Code.
3.4. Licensee will not alter, reverse engineer, disassemble decompile, recompile, or otherwise attempt to discover or derive the source code of Autodesk Materials. Licensee will not (1) use, reproduce, compile, publicly display, modify, translate, adapt, arrange, or perform Materials (or any derivative works thereof); (2) transfer, assign, rent, disclose, adapt, translate Autodesk Materials (or any derivative works thereof); (3) distribute, resell, relicense Autodesk Materials or any part as a stand-alone product; (4) incorporate any part of Autodesk Materials into a product to be sold or licensed as a development tool; (5) distribute the Application in other than compiled executable form; or (6) distribute Autodesk Materials other than as part of the Integrated Product included in an Application.
3.5. Licensee will make commercially reasonable efforts to include references to “Autodesk” and to “Autodesk® Scaleform®” in all locations where references to “Crytek” and “CryEngine” are required by the Agreement.
3.6. Licensee, its employees, agents and third parties will not disclose, export or re-export, directly or indirectly, any product, documentation or technical data (or direct products thereof), (in conformity with laws and regulations of the United States and other countries relating to international trade), to any country, entity or other party which is ineligible to receive them under U.S. laws and regulations as modified from time to time by the U.S. Dept. of Commerce or the U.S. Dept. of the Treasury or under other laws or regulations to which End User may be subject. Licensee is solely responsible for (1) complying with these laws and regulations; and (2) monitoring any modifications to them. Autodesk Materials provided to the U.S. Government are provided with the same commercial license rights and restrictions.
3.7. If Autodesk Source Code is provided to Licensee, Licensee will: (1) store one physical copy in a locked container or drawer for backup purposes and one or more electronic copies on personal computers or servers, password protected, and located at the Site; (2) use, maintain or disclose Autodesk Source Code only at the Site; and (3) notify its employees with access to Source Code of the restrictions in this ToC and the Agreement and ensure their compliance with this ToC and the Agreement.
3.8. Autodesk, Inc., 111 McInnis Parkway, San Rafael, CA 94903 is a third-party beneficiary to the Agreement and to the ToC to the extent the Agreement contains provisions that relate to Licensee use of Autodesk Materials. Such provisions are for the benefit of Autodesk and enforceable by Autodesk, in addition to Crytek.
3.9. Upon termination of the Agreement, the right to exercise licenses to Autodesk Materials terminates. Licensee will promptly cease use of Autodesk Materials and return in 10 days, or (at Autodesk’s option) destroy, all electronic and physical copies of Autodesk Materials. However, Licensee’s rights to use Autodesk Materials properly distributed by Licensee under the Agreement survive termination, unless otherwise terminated in accordance with the Agreement for breach of Autodesk intellectual property rights.
AUDIOKINETIC End-User License Agreement (“EULA” or “Agreement”) for Wwise®, Wwise Motion®, SoundSeed ® and/or Wwise Convolution™
WHEREAS AUDIOKINETIC has developed Wwise®, a complete audio solution consisting of an authoring application and a sound engine and/or Wwise Motion, a complete motion engine and/or SoundSeed, an interactive sound generator that enables the development of interactive games for specified platforms; and
WHEREAS you (“Licensee”) have an interest in developing interactive games with AUDIOKINETIC’s authoring application and/or incorporating AUDIOKINETIC’s technology in such games for distribution to third party users of such games; and
WHEREAS, AUDIOKINETIC desires to license Wwise®, a technology proprietary to AUDIOKINETIC, to Licensee under the terms and conditions described herein.
NOW THEREFORE that, in consideration of the mutual covenants provided for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Licensee and AUDIOKINETIC agree as follows:
1. DEFINITIONS
1.1 “AUDIOKINETIC Deployment Software” means the AUDIOKINETIC libraries and header files, in object code only, that are required to be incorporated into the Licensee Developed Game for the intended use.
1.2 “AUDIOKINETIC Wwise Technology” means AUDIOKINETIC’s proprietary audio and motion technology entitled “Wwise”, “Wwise Motion”, “SoundSeed” and/or Wwise Convolution in object code form (and source code form only to the extent provided by AUDIOKINETIC under this Agreement), which allows users to develop interactive games for specified platforms, and includes the AUDIOKINETIC Deployment Software and the Documentation and any updates or upgrades provided by AUDIOKINETIC.
1.3 “Development License” means a development license granted in respect of the AUDIOKINETIC Wwise Technology and more specifically described herein.
1.4 “Documentation” means all technical, reference and installation manuals, user guides, published performance specifications and other written documentation provided by AUDIOKINETIC generally to its licensees with respect to the AUDIOKINETIC Wwise Technology, along with any modifications and updates thereto.
1.5 “End User” shall mean the third party who is using the Licensee Developed Game.
1.6 “Evaluation License” means an evaluation license granted in respect of the AUDIOKINETIC Wwise Technology and more specifically described herein.
1.7 “Integration and Distribution License” means an integration and distribution license granted in respect of the AUDIOKINETIC Wwise Technology and more specifically described herein.
1.8 “Level One Source Code” means the portions of the AUDIOKINETIC Wwise Technology released in source code form as part of the SDK installer package, and more particularly the header files necessary to use the API of the AUDIOKINETIC Wwise Technology SDK (sound engine and plug-ins), the source code to the default implementation of the streaming manager interface, to source and effect plug-in samples and to sample applications demonstrating the use of various APIs in the AUDIOKINETIC Wwise Technology SDK.
1.9 “Level Two Source Code” means the portions of the AUDIOKINETIC Wwise Technology released in source code form for the sound engine portion of the AUDIOKINETIC Wwise Technology but shall exclude (i) any third party source code that may be integrated therein and (ii) any source code for the authoring application of the AUDIOKINETIC Wwise Technology.
1.10 “Level Three Source Code” means the source code for the authoring application portion of the AUDIOKINETIC Wwise Technology but shall exclude any third party source code that may be integrated therein.
1.11 “Licensee” means you and, if different, your organization who is party to the Master License Agreement.
1.12 “Licensee Developed Game” means the interactive software game(s) developed by or on behalf of Licensee on the Licensee Platform.
1.13 ”Licensee Platform” means the AUDIOKINETIC-approved platform on which the Licensee Developed Game is developed and, as applicable, released, as set forth in the applicable purchase order issued by Licensee, if any.
1.14 “Limited Commercial License” means both a Development License and Integration and Distribution License in respect of a limited version of the AUDIOKINETIC Wwise Technology (only 200 media items in the Wwise SoundBank) and more specifically described herein.
1.15 “Modifiable Source Code” means the portions of the Level One Source Code, Level Two Source Code and Level Three Source Code, as applicable, to which AUDIOKINETIC grants access to Licensee in order to enable Licensee to modify such portions of the AUDIOKINETIC Wwise Technology in accordance with the terms of this Agreement.
1.16 “Non-Commercial License” means both a Development License and an Integration and Distribution License granted in respect of the AUDIOKINETIC Wwise Technology solely for non-commercial purposes (including without limitation for academic and research purposes) and more specifically described herein.
1.17 “Third Party Software” means the software products that have been integrated into or are available through the AUDIOKINETIC Wwise Technology and are available to Licensee as an option. Each Third Party Software is subject to its individual EULA that can be reviewed during the installation process of the AUDIOKINETIC Wwise Technology. AUDIOKINETIC reserves the right to add or remove the availability of Third Party Software from time to time at its discretion.
2. LICENSE GRANT
2.1 AUDIOKINETIC grants Licensee one or more of the following licenses, subject to the payment of the appropriate fees, as applicable:
a) Evaluation License. Subject to the terms and conditions of this Agreement, AUDIOKINETIC hereby grants to Licensee a worldwide, paid-up, nonexclusive, non-transferable (subject to Section 12.4), right and license, on the Licensee Platform(s), and in object code only, to install, use and operate the AUDIOKINETIC Wwise Technology in accordance with the Documentation for the purposes of evaluation, prototyping and testing the AUDIOKINETIC Wwise Technology for Licensee’s internal use only with Licensee Developed Games and for a limited period of time determined by AUDIOKINETIC. Licensee acknowledges that some of the functionalities of the AUDIOKINETIC Wwise Technology may not be available as part of the Evaluation License. Licensee may also use, reproduce and display the AUDIOKINETIC Deployment Software as contained in such evaluations or demonstrations for the purposes of displaying functionality of such evaluation Licensee Developed Games. This Evaluation License does not grant any right to distribute the AUDIOKINETIC Deployment Software or any Licensee Developed Games containing the AUDIOKINETIC Wwise Technology.
b) Development License. Pursuant to this Agreement and subject to the payment of the appropriate Fees as set forth in the applicable PO(s), AUDIOKINETIC hereby grants to Licensee a worldwide, paid-up, nonexclusive, non-transferable (subject to Section 12.4), non-sublicensable, non-refundable right and license pursuant to which Licensee may (a) install, use and operate the AUDIOKINETIC Wwise Technology in accordance with the Documentation, (b) modify the Modifiable Source Code, and (c) make a reasonable number of copies of the AUDIOKINETIC Wwise Technology for the purposes described above, all of the foregoing (i) for Licensee’s internal use only, (ii) solely for the purposes of developing the Licensee Developed Game, and (iii) in the case of Level Two Source Code and the Level Three Source Code, solely for the purposes of debugging the AUDIOKINETIC Wwise Technology, performance balancing, code optimization, timing analysis and identifying Bugs and bottlenecks.
c) Integration and Distribution License. Pursuant to this Agreement and subject to the payment of the appropriate Fees as set forth in the applicable PO(s), AUDIOKINETIC hereby grants to Licensee a worldwide, paid-up, nonexclusive, non-transferable (subject to Section 12.4), non-sublicensable, non-refundable right and license, on the Licensee Platform, and in object code only, to: (a) use and reproduce the AUDIOKINETIC Deployment Software for the purpose of and to the extent required to develop, test, demonstrate and support the Licensee Developed Game and Add-ons; and (b) make, have manufactured (by third party contractors), reproduce, promote, display, advertise, provide previews and reviews on all media, publish, distribute, license and offer to license the Licensee Developed Game to End Users either as a stand-alone game or bundled with other software or hardware. The AUDIOKINETIC Deployment Software is licensed for distribution as part of the Licensee Developed Game only and Licensee is not entitled to distribute the AUDIOKINETIC Wwise Technology, or any portion thereof, in stand-alone form.
d) Limited Commercial License. The grant of a Limited Commercial License is governed by the terms and conditions of the end user license agreement entered into by Licensee upon download of the limited version of the AUDIOKINETIC Wwise Technology (the “Limited License EULA”). A Limited Commercial License may be used for commercial production, but any upgrade to a non-limited version of the AUDIOKINETIC Wwise Technology will require the purchase of additional Development Licenses and Integration and Distribution Licenses.
e) Non-Commercial License. Subject to the terms and conditions of this Agreement, AUDIOKINETIC hereby grants to Licensee a Non-Commercial License. A Non-Commercial License does not grant any right to use the AUDIOKINETIC Wwise Technology in any commercial enterprise nor for any commercial production or sub-contracting.
2.2 License Key. Licensee acknowledges that it has been provided with a key (the “License Key”) that is required to allow Licensee to download and use the AUDIOKINETIC Wwise Technology in accordance with the relevant licenses hereunder. The License Key can unlock the functionalities of the AUDIOKINETIC Wwise Technology which are available to you, with one or several platforms and plug-ins, all to the extent provided under the relevant license. If a license is purchased for a specific Licensee Platform, the License Key shall be designed to unlock the AUDIOKINETIC Wwise Technology with this or these Licensee Platforms only. If Licensee wants to extend the use of the AUDIOKINETIC Wwise Technology to other Licensee Platforms, or purchase additional plug-ins, you need to contact sales@audiokinetic.com. Licensee may not disclose the License Key to any person, and the only reproduction and use of the License Key that is allowed is as required to unlock the relevant portions of the AUDIOKINETIC Wwise Technology for the relevant Licensee Developed Game on the relevant Licensee Platforms.
3. OWNERSHIP
3.1 Ownership. Notwithstanding anything else in this Agreement, AUDIOKINETIC and its third party licensors retain (a) all title to, and, except as expressly licensed herein, all rights to the AUDIOKINETIC Wwise Technology, all copies and derivative works thereof (by whomever developed) and all related documentation and materials, and (b) all copyrights, patent rights, trade secret rights and other proprietary rights in the AUDIOKINETIC Wwise Technology. Except for AUDIOKINETIC’s retained rights in the underlying AUDIOKINETIC Wwise Technology (including without limitation the AUDIOKINETIC Deployment Software) as set forth and licensed to Licensee herein, Licensee shall own the copyright and all other intellectual property rights to the Licensee Developed Game(s) and any updates thereto.
3.2 Open Source Components. The AUDIOKINETIC Wwise Technology may contain certain open source components (“Open Source Components”) which are not licensed under the terms of this Agreement, but instead are licensed under the terms of their respective licenses. Such open source components are provided “as is” without warranty of any kind. AUDIOKINETIC grants Licensee no right to receive source code to Open Source Components; however, in some cases, rights and access to source code for the Open Source Components may be available directly from their owners, licensors and/or suppliers. Licensee’ use of each Open Source Component is subject to the terms of its applicable license.
AUDIOKINETIC informs Licensee that the Ogg, Vorbis and Tremor Open Source libraries provided by the Xiph.Org Foundation (the “Ogg Vorbis Libraries”) are included as part of the Wwise Technology as an option to Licensee. If Licensee decides to use this option, in accordance with the terms of the open source license for the Ogg Vorbis Libraries:
“© year, Xiph.Org Foundation”
“Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer;
Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution; and
Neither the name of the Xiph.org Foundation nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE FOUNDATION OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. “
To avoid any presence of the Vorbis code in your Licensee Developed Game, you should not link to the AkVorbisDecoder.lib. AUDIOKINETIC guarantees that this will ensure no element of the open source library is embodied in the AUDIOKINETIC Deployment Software.
4. LICENSEE OBLIGATIONS
4.1 Restrictions on Use. Except as expressly provided herein, Licensee agrees not to (a) produce hard copy printed output of data from the AUDIOKINETIC Wwise Technology and/or Third Party Software for reports and notes for purposes other than solely for reference purposes in connection with its own internal business, and which may not be published or supplied to any third party; (b) expose any underlying programming interfaces of the AUDIOKINETIC Wwise Technology and/or Third Party Software in the Licensee Developed Game; (c) include any documentation relating to the AUDIOKINETIC Wwise Technology and/or Third Party Software and sample application elements of the AUDIOKINETIC Wwise Technology with the Licensee Developed Game; and (d) remove or alter any copyright or other proprietary notice from the AUDIOKINETIC Wwise Technology and the Documentation and/or Third Party Software; (e) disassemble, decompile or otherwise reverse engineer the AUDIOKINETIC Wwise Technology or otherwise attempt to learn the source code (to the extent not provided by AUDIOKINETIC), or algorithms underlying the AUDIOKINETIC Wwise Technology, to the maximum extent allowed under applicable law; (f) rent, lease or otherwise provide temporary access to the AUDIOKINETIC Wwise Technology and/or Third Party Software otherwise than as specifically authorized herein; (g) copy, alter or modify the AUDIOKINETIC Wwise Technology otherwise than as specifically authorized herein, or (h) authorize or allow others to do any of the foregoing.
4.2 Notice. Licensee agrees to promptly notify AUDIOKINETIC if the Licensee becomes aware of any unauthorized use of the whole or any part of the AUDIOKINETIC Wwise Technology by any third party.
5. TRADEMARK LICENSE
Each of AUDIOKINETIC and Licensee owns the trademarks, logos and trade names (collectively, “Marks”) for their respective products and/or services, including, but not limited to the Licensee Developed Game and the AUDIOKINETIC Wwise Technology. No licence to use the Marks is granted under this Agreement.
6. LEVEL TWO AND LEVEL THREE SOURCE CODE
6.1 Support. Before exercising its rights to modify Level Two Source Code or the Level Three Source Code, Licensee will make its best efforts to submit any issues or suggestions surrounding the Level Two Source Code or the Level Three Source Code to AUDIOKINETIC for resolution. AUDIOKINETIC undertakes to take all reasonable actions to address these issues in a timely manner. Should the urgency of the changes required not allow Licensee to contact AUDIOKINETIC for resolution, or should AUDIOKINETIC fail to address these issues in a timely manner, Licensee may make changes to the Level Two Source Code or the Level Three Source Code internally. Should Licensee make any changes to the Level Two Source Code or the Level Three Source Code and as a result of these changes all or part of the AUDIOKINETIC Wwise Technology fails to function according to the Documentation, AUDIOKINETIC reserves the right to no longer provide Support to Licensee for these changes, or more globally for the AUDIOKINETIC Wwise Technology.
6.2 Improvements to the Level Two Source Code or the Level Three Source Code. Licensee will make reasonable efforts to share information about the changes it makes to the Level Two Source Code or the Level Three Source Code, in order for AUDIOKINETIC to be able to maintain supporting Licensee and to improve the AUDIOKINETIC Wwise Technology.
6.3 Title to the Modifiable Source Code. Title to the Modifiable Source Code, any copies thereof or any modification, improvement, adaptation, enhancement or translation, developed as a result of Licensee exercising its rights hereunder, and all rights in and to any patent, trademark, copyright or other intellectual property right developed and/or incorporated in the Modifiable Source Code, shall at all times remain with AUDIOKINETIC. LICENSEE HEREBY ACKNOWLEDGES FULL AND SOLE OWNERSHIP OF AUDIOKINETIC IN AND TO ANY SUCH MODIFICATION, IMPROVEMENT, ADAPTATION, ENHANCEMENT OR TRANSLATION AND UNDERTAKES TO CONFER FULL AND SOLE OWNERSHIP IN SAID MODIFICATION, IMPROVEMENT, ADAPTATION, ENHANCEMENT OR TRANSLATION TO AUDIOKINETIC BY EXECUTING AN ASSIGNMENT OF RIGHTS OR ANY OTHER DOCUMENT EVIDENCING SUCH TRANSFER TO AUDIOKINETIC. AUDIOKINETIC hereby grants an irrevocable, unlimited, royalty-free, worldwide, transferable license to Licensee to such modifications, improvements and adaptations, enhancements or translations.
7. SUPPORT
During the term of the Agreement, if generally available to AUDIOKINETIC’s licensees at the time, AUDIOKINETIC may provide support for the AUDIOKINETIC Wwise Technology as described on AUDIOKINETIC’s website at www.audiokinetic.com/support (“Support”), all such support will be provided in accordance with the then current applicable conditions set forth on www.audiokinetic.com/support, subject to the terms and conditions set forth herein. Licensee assumes all risks arising from Licensee's failure to implement updates and any other corrections released by AUDIOKINETIC.
8. PROPRIETARY INFORMATION
8.1 Proprietary information. Licensee acknowledges that pursuant to this Agreement it will be receiving information which is proprietary and confidential to AUDIOKINETIC and/or to the owner(s) of the Third Party Software as applicable and, in the case of the AUDIOKINETIC Wwise Technology, is a confidential trade secret and valuable asset of AUDIOKINETIC which may (i) be the subject of one or more patent applications , which AUDIOKINETIC wishes to protect from public disclosure (“Proprietary Information”). “Proprietary Information” shall also include (i) any information designated as confidential by AUDIOKINETIC, (ii) the economic terms of this Agreement and (iii) any information relating to AUDIOKINETIC’s products, plans, product designs, product costs, product prices, product names, finances, marketing plans, business opportunities, business plan, personnel, research, development, or know-how.
8.2 Exclusions. Each party acknowledges that the following will not be considered “Proprietary Information” for the purposes of this Agreement: (a) information which is publicly available in the public domain at the time it is communicated to Licensee by AUDIOKINETIC; (b) information which is or becomes publicly available or public domain information through no fault of Licensee subsequent to the time it is communicated to Licensee by AUDIOKINETIC; (c) information which is in Licensee’s possession free of any obligation of confidence to AUDIOKINETIC at the time it is communicated to Licensee by AUDIOKINETIC; (d) information which is rightfully communicated to Licensee free of any obligation of confidence subsequent to the time it is communicated to Licensee by AUDIOKINETIC; (e) information which was independently developed by Licensee without use of the other party’s Proprietary Information; or (f) information which is required to be disclosed pursuant to law or to the order, requirement or request of a court of government authority.
8.3 Restrictive Use Conditions. Licensee (i) will hold such Proprietary Information in confidence and will not disclose it, except to its employees, officers or authorized representatives and those of its authorized sub-licensees with a need to know for purposes of performing their duties, who are similarly bound to hold the Proprietary Information in confidence and, with respect to the AUDIOKINETIC Wwise Technology, who have been given an individual access code by AUDIOKINETIC, (ii) shall prevent inadvertent or unauthorized disclosure or dissemination of any Proprietary Information, and (iii) agrees to take appropriate action with its employees, officers and authorized representatives and those of its authorized sub-licensees to satisfy its obligations under this Agreement with respect to the use, copying, modification, protection and security of the Proprietary Information.
8.4 Notice and Return of Information. Licensee shall notify AUDIOKINETIC immediately upon discovery of any unauthorized use or disclosure of Proprietary Information, and will cooperate with AUDIOKINETIC in every reasonable way to help AUDIOKINETIC regain possession of the Proprietary Information and prevent its further unauthorized use. Licensee shall return all originals, copies, reproductions and summaries of Proprietary Information at AUDIOKINETIC’s request or, at AUDIOKINETIC’s option, certify destruction of the same with the sworn statement of one of its officers, except where same is required for the exercise of Licensee’s rights under this Agreement.
8.5 Rights and Remedies. Licensee acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Proprietary Information and that AUDIOKINETIC shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
9. WARRANTY AND DISCLAIMER
9.1 Warranty. AUDIOKINETIC warrants that it has the right and authority to grant the rights granted to Licensee hereunder in the AUDIOKINETIC Wwise Technology on the Licensee Platforms. AUDIOKINETIC warrants that it is under no contractual or other legal obligation which would interfere in any way with the full, prompt, and complete performance of its obligations pursuant to this Agreement.
9.2 Infringement. In the event that any part of the AUDIOKINETIC Wwise Technology (other than Open Source Components) becomes, or AUDIOKINETIC believes that it is likely to become, the subject of an infringement claim, AUDIOKINETIC may at its option either (i) secure Licensee’s right to continue using such part of the AUDIOKINETIC Wwise Technology, (ii) replace or modify it to make it non-infringing (in ways not materially adversely affecting the utility of such part of the AUDIOKINETIC Wwise Technology), or if none of the foregoing alternatives is reasonably available to AUDIOKINETIC, (iii) terminate this Agreement upon one (1) months’ notice. In the event of termination of this Agreement by AUDIOKINETIC, Licensee shall be entitled to a refund of the License Fees paid for the AUDIOKINETIC Wwise Technology.
In addition, AUDIOKINETIC at its own expense shall defend any action brought against Licensee, to the extent that it is based on a claim that the AUDIOKINETIC Wwise Technology used within the scope of the license granted hereunder infringes a third-party patent or copyright in Canada or the United States and shall hold Licensee harmless from any liability for any costs and damages ordered by a court as a result of such a claim or resulting from the settlement thereof, provided Licensee notifies AUDIOKINETIC promptly in writing of the action (and all prior claims relating to such action) and AUDIOKINETIC has sole control of the defense and all negotiations for settlement or compromise of the claim.
AUDIOKINETIC shall have no liability for any claim of infringement based on (i) use of other than the current release of the AUDIOKINETIC Wwise Technology unaltered by anyone except AUDIOKINETIC, if such infringement would have been avoided by the use of such current unaltered release, (ii) use or combination of the AUDIOKINETIC Wwise Technology with programs or data not supplied or approved by AUDIOKINETIC to the extent such use or combination caused the infringement or (iii) use of the Open Source Components. The remedies set forth in this Section 9.2 constitute the sole remedies of Licensee and AUDIOKINETIC’s exclusive liability with respect to claims for infringement of proprietary rights of third parties.
9.3 DISCLAIMER. EXCEPT AS SET OUT IN THIS SECTION 9, THE AUDIOKINETIC WWISE TECHNOLOGY IS PROVIDED “AS IS” AND “WHERE IS” BY AUDIOKINETIC AND IS ACCEPTED AS SUCH BY LICENSEE. AUDIOKINETIC DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES RELATING TO THE AUDIOKINETIC WWISE TECHNOLOGY AND DOCUMENTATION, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND NON-INFRINGEMENT. AUDIOKINETIC DOES NOT WARRANT THAT THE AUDIOKINETIC WWISE TECHNOLOGY OR DOCUMENTATION WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE AUDIOKINETIC WWISE TECHNOLOGY AND THE DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT WITH RESPECT TO SECTION 10 BELOW, LICENSEE AGREES THAT AUDIOKINETIC WILL NOT BE LIABLE FOR ANY DAMAGES THAT LICENSEE OR ITS END USERS OR ITS GAME PLAYERS MAY INCUR ARISING OUT OF THE USE OR INABILITY TO USE THE AUDIOKINETIC WWISE TECHNOLOGY OR LICENSEE DEVELOPED GAME.
10. LIMITATION OF LIABILITY
10.1 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, AND EXCEPT IN RELATION TO BREACHES OF AUDIOKINETIC’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT, INCLUDING, BUT NOT LIMITED TO, DAMAGE OR LOSS OF PROPERTY, EQUIPMENT, INFORMATION OR DATA, LOSS OF PROFITS, REVENUE OR GOODWILL OR COST OF REPLACEMENT SERVICES OCCASIONED BY ANY DEFECT IN THE AUDIOKINETIC WWISE TECHNOLOGY, THE INABILITY TO USE SERVICES PROVIDED HEREUNDER OR ANY OTHER CAUSE WHATSOEVER WITH RESPECT TO THE AUDIOKINETIC WWISE TECHNOLOGY OR THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF THE OTHER PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 IN NO EVENT SHALL AUDIOKINETIC’S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT OF FEES DUE FROM LICENSEE TO AUDIOKINETIC FOR THE RELEVANT LICENSEE DEVELOPED GAME, AS APPLICABLE, DURING THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO SUCH CLAIM.
11. TERM AND TERMINATION
11.1 Term. Unless terminated earlier as provided herein, this Agreement shall commence upon acceptance of this agreement and shall continue: (a) with respect to the Evaluation License, for a period of 30 days, which may be extended; and (b) with respect to all other licenses, perpetually once such licenses are granted.
11.2 Termination. AUDIOKINETIC may terminate this Agreement if the Licensee materially breaches this Agreement and such material breach is not cured within thirty (30) days of written notice describing the breach.
11.3 Effect of Termination/Expiration. Upon the expiration or termination of this Agreement or any of the licenses granted hereunder: (a) all of Licensee’s rights hereunder shall terminate; and (b) within fifteen (15) days of the expiration or termination date Licensee shall, at its own expense, and at AUDIOKINETIC’s sole option, either return all copies of the AUDIOKINETIC Wwise Technology in its possession or control, or, shall destroy all copies of the AUDIOKINETIC Wwise Technology in its possession or control.
11.4 Survival. Section 1 (Definitions), Section 3 (Ownership), Section 4.1 (Restrictions on use), 5 (Trademark License), 6.3 (Title to Modifiable Source Code), Section 8 (Proprietary Information), Section 9 (Warranty and Disclaimer), Section 10 (Limitation of Liability), Section 11.3 (Effect of Termination), this Section 11.4 (Survival) and Section 12.7 (Governing Law) shall survive the termination or expiration of this Agreement in accordance with their terms.
12. MISCELLANEOUS
12.1 New EULA. The text of this Agreement may be amended from time to time by AUDIOKINETIC. Such amendments will become effective and enforceable against Licensee upon express acceptance of same either through the execution of a written instrument to that effect or the acceptance of the new terms through AUDIOKINETIC Wwise Technology’s installation process.
Licensee acknowledges that the terms and conditions applicable to Limited Commercial Licenses are those set out in the Limited License EULA.
12.2 Waiver. Any failure to enforce by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not be deemed or construed to be a waiver of such term or condition or any subsequent breach thereof.
12.3 Notices. Any notice under this Agreement will be in writing and will be personally delivered, sent by a reputable overnight mail service (e.g. Federal Express) or by registered mail, or by facsimile confirmed by registered mail, to the other party. Notices will be deemed effective (a) three (3) working days after deposit, postage prepaid, if mailed, (b) the next day if sent by overnight mail, or (c) the same day if sent by facsimile and confirmed as set forth above. A copy of any notice will be sent to the following:
Notice to AUDIOKINETIC:
409 Saint-Nicolas St.
Suite 300
Montreal, Quebec
Canada H2Y 2P4
Fax: +1514 499-9109
Attention: President and Chief Executive Officer
Notice to Licensee: at the address provided by the third party partner to Audiokinetic.
12.4 Assignment. This Agreement or any licenses granted hereunder may not be assigned or sublicensed by Licensee in whole or in part other than as provided hereunder (by contract, merger, operation of law or otherwise) without the prior written consent of AUDIOKINETIC, such consent not to be unreasonably withheld or delayed. AUDIOKINETIC may assign this Agreement with notice to Licensee in the event of a merger, acquisition or similar corporate activity provided that the surviving entity agrees to be bound by the terms of this Agreement. This Agreement shall be binding upon and inure for the benefit of the successors in title of the parties hereto.
12.5 Export. Licensee agrees to comply with all export laws, restrictions, national security controls and regulations of the United States or other applicable national or foreign agency or authority, and not to export or re-export, or allow the export or re-export of any proprietary information or any copy or direct product thereof in violation of any such restrictions, laws or regulations.
12.6 Independent Contractors. Each party will act at all times as an independent contractor and will have no right or authority to act on behalf of, create any obligation for, or bind the other party in any way. Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties.
12.7 Governing Law. This Agreement shall not be modified or amended except in writing and signed by both parties. This Agreement will be governed by and construed under the laws of the province of Quebec and the laws of Canada applicable therein and the parties hereto submit to the exclusive jurisdiction of the courts of Province of Quebec, District of Montreal.
This limited license agreement (this "Agreement") for the commercial use of the CryEngine object code on subscription basis is entered into between Crytek GmbH, Frankfurt/Main, Germany ("Crytek") and you, the user (the "Licensee" or "You").
The Agreement is made effective beginning on the date on which you, the Licensee, first accept this agreement or download, install, load or otherwise use Software as defined below (whichever occurs first).
By doing so, you, the Licensee, agree to all terms and conditions of this Agreement or in the accompanying documentation. You should read this Agreement carefully before the Start Date. If you do not agree with the terms and conditions set forth in this Agreement you are not authorized to use the CryEngine.
You agree to check www.cryengine.com periodically for new information and terms that govern your use of CryEngine as a Service. Crytek may modify this Agreement at any time. Crytek will inform you about revisions to this Agreement by email and/or by a notice on our home page and/or during log in. Revisions to terms affecting existing CryEngine as a Service shall be effective thirty (30) days after posting at www.cryengine.com. If you do not agree with the new terms your only remedy is to stop using CryEngine as a Service.
1. Definition
1.1. “CryEngine”: the CryEngine for PC/Windows or Linux (as applicable) in object code form, including the CryEngine Tools, the CryEngine Assets and any updates thereto as made available by Crytek at its sole discretion under the “CryEngine as a Service” program. Crytek may offer parts of the CryEngine code as (example) source code upon its sole discretion.
1.2. “CryEngine Assets”: the audiovisual files included in the CryEngine.
1.3. “CryEngine Tools” editors and other tools included in the CryEngine that may be used to develop products based on the CryEngine.
1.4. “Game(s)”: an interactive product for PC/Windows in object code form for the sole purpose of entertainment developed and rendered by using the CryEngine pursuant to its documentation. Under this Agreement the following will not be considered Games:
military projects;
gambling;
simulation (technical, scientific, other);
science;
architecture;
pornography;
“serious games”;
1.5. “License”: defined in Sec. 2.
1.6. “Subscription Fee”: the fee for the License for a certain period as announced by Crytek or its authorized agent. Crytek may change the Subscription Fee for future Subscription Periods at its sole discretion.
1.7. “Subscription Period”: the period of the License the Licensee has paid the Subscription Fee for.
1.8. “UGC”: audiovisual content generated by Licensees using the CryEngine which is not based on CryEngine Assets and is not a Game.
1.9. “UGC Marketplace”: the platform(s) designated by Crytek where the distribution and sale of UGC is admissible.
2. Grant of License
2.1. Grant: Subject to strict and continuous compliance with the restrictions of this Agreement, the payment of the Subscription Fee and any other obligations by Licensee, Crytek grants to Licensee during the Subscription Period a non-exclusive, non-transferable, non-sublicensable, limited license (the “License”) only to:
• install CryEngine and use it on one (1) computer at the same time pursuant to its documentation for the purpose of developing Games;
• distribute, sublicense or exploit Games in object code form only and only under terms consistent with and no less protective of Crytek’s rights than those contained in this Agreement;
• distribute, sublicense or exploit UGC on an UGC Marketplace subject to a certain share payable to Crytek and/or the UGC Marketplace provider.
2.2. Restrictions on Use: Crytek reserves all rights not expressively granted in this Agreement. Without limitation, Licensee shall not:
• install and use the CryEngine after expiration or termination of the Subscription Period;
• install and use the CryEngine on more computers than you have Licenses for;
• distribute, sublicense or exploit:
the CryEngine (if not in the form of Games rendered by CryEngine);
the CryEngine Tools;
• use the CryEngine for the development of any product other than Games, including without limitation:
military projects
gambling
simulation (technical, scientific, other);
science;
architecture;
gambling;
pornography;
“serious games”;
• use the CryEngine for the development of any Games which are harmful, abusive, racially or ethnically offensive, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, or in a reasonable person's view, objectionable;
• remove any technical safeguards from the CryEngine, e.g. to allow use outside the Subscription Period or the License;
• copy, replicate or mimic Crytek’s games;
• remove, modify or substitute any trademark, copyright or proprietary notices from the CryEngine,
• infringe or violate any intellectual property or proprietary, personal, moral or other rights or the privacy of Crytek or any third party;
• use CryEngine for applications that are unlawful or offensive under applicable laws;
• use the Cryengine to develop cheats, hacks or similar applications;
• transfer or assign the License or this Agreement.
2.3. Intellectual Property Rights: CryEngine and all copyrights, trademarks, and all other conceivable intellectual property rights related thereto are owned by Crytek and are protected by German, US and other national and international law. Licensee shall have no ownership or intellectual property rights in or to CryEngine, including, without limitation, all copyrights related thereto.
3. Copyright Notice and Trademarks
3.1. The splash screen, credits screen, documentation and packaging (if any) as well as the marketing material (print, online etc.) of the Game shall include the following wording: “Portions of this software are included under license © 2004-201_ Crytek GmbH. All rights reserved.” Crytek's copyright notices shall be no less prominently displayed than Licensee’s own copyright notices.
3.2. Crytek grants Licensee the right to use the trademarks "Crytek" and "CryEngine" only to promote the Game. The splash screen, credits screen, documentation and packaging (if any) as well as the marketing material (print, online etc.) of the Game shall include the trademarks "Crytek" and "CryEngine". Licensee shall use the trademarks as made available online by Crytek within eight (8) weeks before the final design of the respective material. Crytek's trademarks shall be no less prominently displayed than Licensee’s own trademarks.
3.3. The design of the splash screen, the credits screen, the documentation, the packaging and the marketing material is subject to Crytek's prior written approval regarding Crytek's copyright notice and trademarks. The approval shall be deemed given if Crytek does not give any notice within ten (10) days from receipt of a sample.
4. Subscription Period, Auto-Renewal
4.1. You shall pay the applicable Subscription Fee to Crytek or its authorized agent/payment services provider.
4.2. You acknowledge that the Subscription Period might be auto-renewal and payments might be processed automatically. You may cancel the auto-renewal at any time at Crytek or its authorized agent/payment services provider. Cancellation of auto-renewal shall be effective at the end of the current Subscription Period for which you have paid the Subscription Fee.
4.3. Crytek shall be entitled to discontinue the “CryEngine as a Service” program after due notice at any time. You shall not be entitled to any claims for damages for such discontinuation.
5. UGC, UGC Marketplace
5.1. You may distribute and sell UGC but only on the UGC Marketplace designated by Crytek. You are obliged to use the UGC Marketplace for trading UGC, use the designated payment methods and follow all further guidelines set forth by Cryek on the UGC Marketplace from time to time.
5.2. You may not create, distribute and sell UGC which infringes or violate any intellectual property or proprietary, personal, moral or other rights or the privacy of Crytek or any third party, is unlawful or offensive under applicable laws, harmful, abusive, racially or ethnically offensive, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, or in a reasonable person's view, objectionable. Crytek reserves the rights to remove any UGC from the UGC Marketplace and/or terminate the License and/or the Agreement in case of violations.
5.3. Crytek may set forth certain shares to be paid on Licensee’s revenues arising from the distribution and sale of UGC on the UGC Marketplace. Crytek may change such rates from time to time at its sole discretion.
6. Service and Support
6.1. Crytek shall not be obliged to render any technical support (no telephone support, no training, no bug fixing).
6.2. Licensee may access public developer support forums and online support pages as they are made available to the public by Crytek in Crytek's sole discretion.
7. Warranty, Indemnification
7.1. CRYTEK WARRANTY DISCLAIMER. CRYTEK GIVES NO WARRANTY. SOFTWARE IS DELIVERED "AS IS". CRYTEK DOES NOT MAKE AND HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRATICE.
7.2. CRYTEK INDEMNIFICATION DISCLAIMER.
A. In case that German law applies:
7.2.1. Crytek is liable for damages, regardless on which legal basis (be it contract, tort or otherwise) only if (a) such damages are cause by violation of essential obligations of this Agreement (Kardinalpflichten) for Crytek's negligence or intent (Verschulden) which endangers the purpose of the Agreement; or (b) such damages are caused by Crytek’s gross negligence or intent.
7.2.2. In case that Crytek is liable for the violation of an essential obligation of this Agreement (Kardinalpflicht) without acting with gross negligence or intent then the liability is limited to amount of payments received from the respective Licensee.
7.2.3. If Crytek is liable for damages pursuant to Section (a) above for gross negligence or intent of Crytek staff other than the managing directors then the liability is also limited to the amount set forth in Section (b).
7.2.4. Crytek is not liable for indirect or consequential damages (Mangelfolgeschäden), loss of profits or frustrated costs if such damages are not a result of gross negligence or intent of Crytek's managing directors.
7.2.5. The exclusion or limitation of liability pursuant to this Sec. 5 also applies with respect to claims against Crytek’s staff or contractors.
7.2.6. The liability of Crytek with respect to death, bodily injury or health, a guarantee by Crytek (if any) or pursuant to the Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
7.2.7. If the Licensee is also liable for certain damages then Crytek shall bear an amount of such damages in accordance to its contributory negligence (Mitverschulden). With respect to the User’s responsibility for reduction of damages (Schadensminderungsobligenheit) the Licensee is responsible for regular back-ups of its data and in case of an assumed bug shall take all further reasonable measures. In case of loss of data Crytek is thus liable only to the extent that such loss of data would have occurred in case of a due data back-up as well.
B. In case that German law does NOT apply:
INDEMNIFICATION DISCLAIMER. EXCEPT FOR INTENTIONAL ACTS OR OMISSIONS OF CRYTEK, IN NO EVENT SHALL CRYTEK BE LIABLE FOR ANY DAMAGES, INCLUDING INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF CRYTEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CRYTEK’S MAXIMUM AGGREGATE LIABILITY TO LICENSEE IN CONNECTION WITH OR IN ANY MANNER RELATED TO THIS AGREEMENT (WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY OR ON BEHALF OF LICENSEE TO CRYTEK UNDER THIS AGREEMENT. THE FOREGOING ALLOCATION OF RISK IS REFLECTED IN THE AMOUNT OF THE COMPENSATION CONTEMPLATED UNDER THIS AGREEMENT.
7.3. Licensee Indemnification: Licensee shall indemnify and hold harmless Crytek against all costs and expenses (including reasonable attorney’s fees and expenses) and all other liability related to any claim on Licensee’s use of the CryEngine.
8. Feedback
You are not obliged to report to Crytek any feedback, bug fixes and optimizations made to the CryEngine (including the CryEngine Tools) (collectively the “Feedback”). However, if you report Feedback to Crytek you hereby grant Crytek a worldwide, non-exclusive, royalty-free, transferrable, sub-licensable and perpetual license to such Feedback for the purposes of (1) using the Feedback internally at Crytek, (2) incorporating the Feedback in future releases of the CryEngine and (3) distributing the CryEngine with the embedded Feedback to third parties without restriction in any way and without payment of any additional fees or royalties to Licensee. Crytek acknowledges that it does not obtain any rights in the Game itself.
9. Term and Termination
9.1. The Term of this Agreement and the license granted herein begin on the Start Date and shall terminate automatically and without notice to you or any other notice when the Subscription Period expires or the Agreement is terminated.
9.2. Crytek shall be entitled to terminate this Agreement for Licensee’s breach of this Agreement of any kind with or without cure notice.
9.3. Upon the termination or expiration of this Agreement, any and all rights of Licensee hereunder shall terminate without prejudice to any rights or claims Crytek may have, Licensee shall have no right to use the CryEngine in any manner. Licensee shall immediately destroy all copies of the CryEngine in its possession, custody or control, and all rights granted hereunder shall revert, without notice, to and be vested in Crytek.
9.4. Termination or expiration of this Agreement shall not create any liability against Cryrek and shall not relieve Licensee from any liability which arises prior to termination or expiration. The provisions of this Agreement which by their terms or sense are intended to survive shall survive cancellation, expiration or termination of this Agreement.
10. General Provisions
10.1. Oral agreements have not been made. This Agreement supersedes all prior agreements made between the Parties regarding CryEngine. This Agreement and any other general term published by Crytek reflect the entire agreement and understanding of the Parties with respect to its subject matter.
10.2. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture between Crytek and Licensee. Neither party hereto shall have any right to obligate or bind the other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third persons.
10.3. If any provision of this Agreement shall be found to be invalid or unenforceable for legal or factual reasons the invalidity or unenforceability of such provisions shall not affect the other provisions of this Agreement and all provisions of this Agreement not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic and legal objective of the Agreement. This applies as well in case of an omission or invalidity of the whole Agreement.
10.4. This Agreement shall be governed and construed by the laws of Germany. Place of performance of this Agreement is Frankfurt a.M. (Germany). If the Licensee is defendant, Crytek might, if admissible, determine as court of jurisdiction the court where the Licensee is resident or the court competent for the corporate domicile of Crytek which currently is in Frankfurt a.M. (Germany). If Crytek is the defendant the parties expressively agree on the exclusive jurisdiction of the courts of Frankfurt a.M. This Agreement on jurisdiction applies to all claims, be they based on contract, on tort or on any other legal basis, arising under or in connection with this agreement.
10.5. CryEngine contains third party code listed at the end of this Agreement or in a READ ME file. Such code is distributed under its own license terms as indicated. These third party licenses are incorporated by reference. In case of a conflict between the third party license and this Agreement the third party license shall prevail.
10.6. For users subject to German law the following shall apply:
Right of Revocation
You can revoke this Agreement and within fourteen (14) days without reason in text form (for example letter, fax, e-mail). The revocation deadline starts upon the receipt of this instruction in text form but not before a) entering into these Terms of Service; and b) the fulfillment of the information obligations under § 246 par. 2 in connection with § 1 German Civil Code as well as § 312e section 1 German Civil Code in accordance with § 246 par. 3 German Civil Code. To obey the revocation deadline timely posting of such revocation is sufficient. The revocation notice has to be addressed to: Crytek GmbH, Grüneburgweg 16-18, 60322 Frankfurt am Main.
In case of an effective revocation the benefits received by each party shall be returned and any uses (e. g. interest) shall be surrendered. In case that you cannot return services received in whole or in part or only in deteriorated condition you will be obliged to provide compensation, if applicable. Refund of payments is due within 30 days. This payment term commences for you upon execution of your revocation, for us upon its receipt.
YOUR RIGHT OF REVOCATION WILL PREMATURELY EXPIRE IF BOTH PARTIES HAVE COMMENCED PERFORMANCE AND FULFILLED OBLIGATIONS UNDER THESE TERMS AND CONDITIONS PRIOR TO EXECUTING YOUR REVOCATION RIGHT.
BY ACCEPTING BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
END USER LICENSING AGREEMENT TERMS AND CONDITIONS
These Terms and Conditions (“ToC”) apply to Licensee’s use of Autodesk Materials made available to License under the license agreement (“Agreement”) between Licensee and Crytek GmbH, Grüneburgweg 16-18, 60322 Frankfurt am Main, Germany or its affiliates (“Crytek”). If any provisions of the Agreement conflict with any of the provisions of these ToC, the provisions of these ToC prevail.
1. Definitions
As used in this ToC, the following terms have the following meanings:
1.1. “Application” means titles or applications developed by Licensee using the Integrated Product.
1.2. “Autodesk” means Autodesk, Inc., 111 McInnis Parkway, San Rafael, CA 94903.
1.3. “Autodesk Materials” means any Autodesk materials made available by to Licensee, directly or indirectly, in relation to the Agreement, including if applicable the Autodesk® Scaleform® software and its Source Code.
1.4. “Licensee” means the individual or entity executing this ToC (by signature or electronic affirmation) that is licensing the Integrated Product under the Agreement.
1.5. “Integrated Product” means the bundling of the Autodesk Materials with the CryEngine.
1.6. “Site” means the means Licensee’s physical location or a physical location approved by Crytek according to the terms of the Agreement.
1.7. “Source Code” means the human-readable source code format of software.
2. License
Licensee is licensed on a non-exclusive, non-transferable, non-assignable basis for its own purposes (not for license to others) to use Autodesk Materials only as included in the Integrated Product, solely at the Site to create an Application.
3. Limitations and Restrictions
3.1. Licensee will not copy Autodesk Materials except: (1) to create an archival copy; and (2) for its employees whose access is necessary to exercise the license. Licensee will notify its employees with access to Autodesk Materials of the restrictions in the Agreement and in these ToC and ensure their compliance with both. Licensee must retain all proprietary notices on copies of Autodesk Materials.
3.2. Licensee will not disclose Autodesk Materials to or discuss any Source Code included in the Autodesk Materials with any person, except Licensee employees necessary to exercise the license in these ToC.
3.3. Licensee hereby acknowledges that: (1) Autodesk Materials include trade secrets and confidential information of Autodesk, its licensors, and suppliers; (2) Autodesk, its licensors and suppliers hold all right, title and interest in and to all tangible and intangible intellectual property, including all trade secrets, copyrights, and other intellectual property rights pertaining thereto, contained in Autodesk Materials, any part, and any copies; (3) Autodesk Materials are protected by copyright and contain proprietary information protected by copyright and intellectual property laws, international treaty provisions and other applicable laws; (4) Licensee has only the limited, revocable right to use Autodesk Materials as expressly as set forth in and limited by these ToC; (5) derivative works or modifications, adaptations, changes, additions, improvements to or of Autodesk Materials, if any, created by Licensee are the sole and exclusive property of Autodesk, even if created at the Licensee’s request or in with Licensee’s assistance, and shall be considered part of Autodesk Materials, including all applicable rights to patents, copyrights, trademarks and trade secrets inherent therein and appurtenant thereto, and Licensee hereby assigns such rights to Autodesk; (5) nothing in these ToC constitutes, or shall be construed to constitute, any transfer of title or ownership with respect to Autodesk Materials, including without limitation transfer of any copyrights, patents, trademarks, trade secrets, intellectual property, source code, improvements, enhancements, sequence, logic, structure, and other proprietary rights therein, now or hereafter existing. Licensee will ensure the Application will not in any way give access to any part of (1) Autodesk Materials as part of the Integrated Product other than the object code; or (2) Autodesk Source Code.
3.4. Licensee will not alter, reverse engineer, disassemble decompile, recompile, or otherwise attempt to discover or derive the source code of Autodesk Materials. Licensee will not (1) use, reproduce, compile, publicly display, modify, translate, adapt, arrange, or perform Materials (or any derivative works thereof); (2) transfer, assign, rent, disclose, adapt, translate Autodesk Materials (or any derivative works thereof); (3) distribute, resell, relicense Autodesk Materials or any part as a stand-alone product; (4) incorporate any part of Autodesk Materials into a product to be sold or licensed as a development tool; (5) distribute the Application in other than compiled executable form; or (6) distribute Autodesk Materials other than as part of the Integrated Product included in an Application.
3.5. Licensee will make commercially reasonable efforts to include references to “Autodesk” and to “Autodesk® Scaleform®” in all locations where references to “Crytek” and “CryEngine” are required by the Agreement.
3.6. Licensee, its employees, agents and third parties will not disclose, export or re-export, directly or indirectly, any product, documentation or technical data (or direct products thereof), (in conformity with laws and regulations of the United States and other countries relating to international trade), to any country, entity or other party which is ineligible to receive them under U.S. laws and regulations as modified from time to time by the U.S. Dept. of Commerce or the U.S. Dept. of the Treasury or under other laws or regulations to which End User may be subject. Licensee is solely responsible for (1) complying with these laws and regulations; and (2) monitoring any modifications to them. Autodesk Materials provided to the U.S. Government are provided with the same commercial license rights and restrictions.
3.7. If Autodesk Source Code is provided to Licensee, Licensee will: (1) store one physical copy in a locked container or drawer for backup purposes and one or more electronic copies on personal computers or servers, password protected, and located at the Site; (2) use, maintain or disclose Autodesk Source Code only at the Site; and (3) notify its employees with access to Source Code of the restrictions in this ToC and the Agreement and ensure their compliance with this ToC and the Agreement.
3.8. Autodesk, Inc., 111 McInnis Parkway, San Rafael, CA 94903 is a third-party beneficiary to the Agreement and to the ToC to the extent the Agreement contains provisions that relate to Licensee use of Autodesk Materials. Such provisions are for the benefit of Autodesk and enforceable by Autodesk, in addition to Crytek.
3.9. Upon termination of the Agreement, the right to exercise licenses to Autodesk Materials terminates. Licensee will promptly cease use of Autodesk Materials and return in 10 days, or (at Autodesk’s option) destroy, all electronic and physical copies of Autodesk Materials. However, Licensee’s rights to use Autodesk Materials properly distributed by Licensee under the Agreement survive termination, unless otherwise terminated in accordance with the Agreement for breach of Autodesk intellectual property rights.
AUDIOKINETIC End-User License Agreement (“EULA” or “Agreement”) for Wwise®, Wwise Motion®, SoundSeed ® and/or Wwise Convolution™
WHEREAS AUDIOKINETIC has developed Wwise®, a complete audio solution consisting of an authoring application and a sound engine and/or Wwise Motion, a complete motion engine and/or SoundSeed, an interactive sound generator that enables the development of interactive games for specified platforms; and
WHEREAS you (“Licensee”) have an interest in developing interactive games with AUDIOKINETIC’s authoring application and/or incorporating AUDIOKINETIC’s technology in such games for distribution to third party users of such games; and
WHEREAS, AUDIOKINETIC desires to license Wwise®, a technology proprietary to AUDIOKINETIC, to Licensee under the terms and conditions described herein.
NOW THEREFORE that, in consideration of the mutual covenants provided for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Licensee and AUDIOKINETIC agree as follows:
1. DEFINITIONS
1.1 “AUDIOKINETIC Deployment Software” means the AUDIOKINETIC libraries and header files, in object code only, that are required to be incorporated into the Licensee Developed Game for the intended use.
1.2 “AUDIOKINETIC Wwise Technology” means AUDIOKINETIC’s proprietary audio and motion technology entitled “Wwise”, “Wwise Motion”, “SoundSeed” and/or Wwise Convolution in object code form (and source code form only to the extent provided by AUDIOKINETIC under this Agreement), which allows users to develop interactive games for specified platforms, and includes the AUDIOKINETIC Deployment Software and the Documentation and any updates or upgrades provided by AUDIOKINETIC.
1.3 “Development License” means a development license granted in respect of the AUDIOKINETIC Wwise Technology and more specifically described herein.
1.4 “Documentation” means all technical, reference and installation manuals, user guides, published performance specifications and other written documentation provided by AUDIOKINETIC generally to its licensees with respect to the AUDIOKINETIC Wwise Technology, along with any modifications and updates thereto.
1.5 “End User” shall mean the third party who is using the Licensee Developed Game.
1.6 “Evaluation License” means an evaluation license granted in respect of the AUDIOKINETIC Wwise Technology and more specifically described herein.
1.7 “Integration and Distribution License” means an integration and distribution license granted in respect of the AUDIOKINETIC Wwise Technology and more specifically described herein.
1.8 “Level One Source Code” means the portions of the AUDIOKINETIC Wwise Technology released in source code form as part of the SDK installer package, and more particularly the header files necessary to use the API of the AUDIOKINETIC Wwise Technology SDK (sound engine and plug-ins), the source code to the default implementation of the streaming manager interface, to source and effect plug-in samples and to sample applications demonstrating the use of various APIs in the AUDIOKINETIC Wwise Technology SDK.
1.9 “Level Two Source Code” means the portions of the AUDIOKINETIC Wwise Technology released in source code form for the sound engine portion of the AUDIOKINETIC Wwise Technology but shall exclude (i) any third party source code that may be integrated therein and (ii) any source code for the authoring application of the AUDIOKINETIC Wwise Technology.
1.10 “Level Three Source Code” means the source code for the authoring application portion of the AUDIOKINETIC Wwise Technology but shall exclude any third party source code that may be integrated therein.
1.11 “Licensee” means you and, if different, your organization who is party to the Master License Agreement.
1.12 “Licensee Developed Game” means the interactive software game(s) developed by or on behalf of Licensee on the Licensee Platform.
1.13 ”Licensee Platform” means the AUDIOKINETIC-approved platform on which the Licensee Developed Game is developed and, as applicable, released, as set forth in the applicable purchase order issued by Licensee, if any.
1.14 “Limited Commercial License” means both a Development License and Integration and Distribution License in respect of a limited version of the AUDIOKINETIC Wwise Technology (only 200 media items in the Wwise SoundBank) and more specifically described herein.
1.15 “Modifiable Source Code” means the portions of the Level One Source Code, Level Two Source Code and Level Three Source Code, as applicable, to which AUDIOKINETIC grants access to Licensee in order to enable Licensee to modify such portions of the AUDIOKINETIC Wwise Technology in accordance with the terms of this Agreement.
1.16 “Non-Commercial License” means both a Development License and an Integration and Distribution License granted in respect of the AUDIOKINETIC Wwise Technology solely for non-commercial purposes (including without limitation for academic and research purposes) and more specifically described herein.
1.17 “Third Party Software” means the software products that have been integrated into or are available through the AUDIOKINETIC Wwise Technology and are available to Licensee as an option. Each Third Party Software is subject to its individual EULA that can be reviewed during the installation process of the AUDIOKINETIC Wwise Technology. AUDIOKINETIC reserves the right to add or remove the availability of Third Party Software from time to time at its discretion.
2. LICENSE GRANT
2.1 AUDIOKINETIC grants Licensee one or more of the following licenses, subject to the payment of the appropriate fees, as applicable:
a) Evaluation License. Subject to the terms and conditions of this Agreement, AUDIOKINETIC hereby grants to Licensee a worldwide, paid-up, nonexclusive, non-transferable (subject to Section 12.4), right and license, on the Licensee Platform(s), and in object code only, to install, use and operate the AUDIOKINETIC Wwise Technology in accordance with the Documentation for the purposes of evaluation, prototyping and testing the AUDIOKINETIC Wwise Technology for Licensee’s internal use only with Licensee Developed Games and for a limited period of time determined by AUDIOKINETIC. Licensee acknowledges that some of the functionalities of the AUDIOKINETIC Wwise Technology may not be available as part of the Evaluation License. Licensee may also use, reproduce and display the AUDIOKINETIC Deployment Software as contained in such evaluations or demonstrations for the purposes of displaying functionality of such evaluation Licensee Developed Games. This Evaluation License does not grant any right to distribute the AUDIOKINETIC Deployment Software or any Licensee Developed Games containing the AUDIOKINETIC Wwise Technology.
b) Development License. Pursuant to this Agreement and subject to the payment of the appropriate Fees as set forth in the applicable PO(s), AUDIOKINETIC hereby grants to Licensee a worldwide, paid-up, nonexclusive, non-transferable (subject to Section 12.4), non-sublicensable, non-refundable right and license pursuant to which Licensee may (a) install, use and operate the AUDIOKINETIC Wwise Technology in accordance with the Documentation, (b) modify the Modifiable Source Code, and (c) make a reasonable number of copies of the AUDIOKINETIC Wwise Technology for the purposes described above, all of the foregoing (i) for Licensee’s internal use only, (ii) solely for the purposes of developing the Licensee Developed Game, and (iii) in the case of Level Two Source Code and the Level Three Source Code, solely for the purposes of debugging the AUDIOKINETIC Wwise Technology, performance balancing, code optimization, timing analysis and identifying Bugs and bottlenecks.
c) Integration and Distribution License. Pursuant to this Agreement and subject to the payment of the appropriate Fees as set forth in the applicable PO(s), AUDIOKINETIC hereby grants to Licensee a worldwide, paid-up, nonexclusive, non-transferable (subject to Section 12.4), non-sublicensable, non-refundable right and license, on the Licensee Platform, and in object code only, to: (a) use and reproduce the AUDIOKINETIC Deployment Software for the purpose of and to the extent required to develop, test, demonstrate and support the Licensee Developed Game and Add-ons; and (b) make, have manufactured (by third party contractors), reproduce, promote, display, advertise, provide previews and reviews on all media, publish, distribute, license and offer to license the Licensee Developed Game to End Users either as a stand-alone game or bundled with other software or hardware. The AUDIOKINETIC Deployment Software is licensed for distribution as part of the Licensee Developed Game only and Licensee is not entitled to distribute the AUDIOKINETIC Wwise Technology, or any portion thereof, in stand-alone form.
d) Limited Commercial License. The grant of a Limited Commercial License is governed by the terms and conditions of the end user license agreement entered into by Licensee upon download of the limited version of the AUDIOKINETIC Wwise Technology (the “Limited License EULA”). A Limited Commercial License may be used for commercial production, but any upgrade to a non-limited version of the AUDIOKINETIC Wwise Technology will require the purchase of additional Development Licenses and Integration and Distribution Licenses.
e) Non-Commercial License. Subject to the terms and conditions of this Agreement, AUDIOKINETIC hereby grants to Licensee a Non-Commercial License. A Non-Commercial License does not grant any right to use the AUDIOKINETIC Wwise Technology in any commercial enterprise nor for any commercial production or sub-contracting.
2.2 License Key. Licensee acknowledges that it has been provided with a key (the “License Key”) that is required to allow Licensee to download and use the AUDIOKINETIC Wwise Technology in accordance with the relevant licenses hereunder. The License Key can unlock the functionalities of the AUDIOKINETIC Wwise Technology which are available to you, with one or several platforms and plug-ins, all to the extent provided under the relevant license. If a license is purchased for a specific Licensee Platform, the License Key shall be designed to unlock the AUDIOKINETIC Wwise Technology with this or these Licensee Platforms only. If Licensee wants to extend the use of the AUDIOKINETIC Wwise Technology to other Licensee Platforms, or purchase additional plug-ins, you need to contact sales@audiokinetic.com. Licensee may not disclose the License Key to any person, and the only reproduction and use of the License Key that is allowed is as required to unlock the relevant portions of the AUDIOKINETIC Wwise Technology for the relevant Licensee Developed Game on the relevant Licensee Platforms.
3. OWNERSHIP
3.1 Ownership. Notwithstanding anything else in this Agreement, AUDIOKINETIC and its third party licensors retain (a) all title to, and, except as expressly licensed herein, all rights to the AUDIOKINETIC Wwise Technology, all copies and derivative works thereof (by whomever developed) and all related documentation and materials, and (b) all copyrights, patent rights, trade secret rights and other proprietary rights in the AUDIOKINETIC Wwise Technology. Except for AUDIOKINETIC’s retained rights in the underlying AUDIOKINETIC Wwise Technology (including without limitation the AUDIOKINETIC Deployment Software) as set forth and licensed to Licensee herein, Licensee shall own the copyright and all other intellectual property rights to the Licensee Developed Game(s) and any updates thereto.
3.2 Open Source Components. The AUDIOKINETIC Wwise Technology may contain certain open source components (“Open Source Components”) which are not licensed under the terms of this Agreement, but instead are licensed under the terms of their respective licenses. Such open source components are provided “as is” without warranty of any kind. AUDIOKINETIC grants Licensee no right to receive source code to Open Source Components; however, in some cases, rights and access to source code for the Open Source Components may be available directly from their owners, licensors and/or suppliers. Licensee’ use of each Open Source Component is subject to the terms of its applicable license.
AUDIOKINETIC informs Licensee that the Ogg, Vorbis and Tremor Open Source libraries provided by the Xiph.Org Foundation (the “Ogg Vorbis Libraries”) are included as part of the Wwise Technology as an option to Licensee. If Licensee decides to use this option, in accordance with the terms of the open source license for the Ogg Vorbis Libraries:
“© year, Xiph.Org Foundation”
“Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer;
Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution; and
Neither the name of the Xiph.org Foundation nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE FOUNDATION OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. “
To avoid any presence of the Vorbis code in your Licensee Developed Game, you should not link to the AkVorbisDecoder.lib. AUDIOKINETIC guarantees that this will ensure no element of the open source library is embodied in the AUDIOKINETIC Deployment Software.
4. LICENSEE OBLIGATIONS
4.1 Restrictions on Use. Except as expressly provided herein, Licensee agrees not to (a) produce hard copy printed output of data from the AUDIOKINETIC Wwise Technology and/or Third Party Software for reports and notes for purposes other than solely for reference purposes in connection with its own internal business, and which may not be published or supplied to any third party; (b) expose any underlying programming interfaces of the AUDIOKINETIC Wwise Technology and/or Third Party Software in the Licensee Developed Game; (c) include any documentation relating to the AUDIOKINETIC Wwise Technology and/or Third Party Software and sample application elements of the AUDIOKINETIC Wwise Technology with the Licensee Developed Game; and (d) remove or alter any copyright or other proprietary notice from the AUDIOKINETIC Wwise Technology and the Documentation and/or Third Party Software; (e) disassemble, decompile or otherwise reverse engineer the AUDIOKINETIC Wwise Technology or otherwise attempt to learn the source code (to the extent not provided by AUDIOKINETIC), or algorithms underlying the AUDIOKINETIC Wwise Technology, to the maximum extent allowed under applicable law; (f) rent, lease or otherwise provide temporary access to the AUDIOKINETIC Wwise Technology and/or Third Party Software otherwise than as specifically authorized herein; (g) copy, alter or modify the AUDIOKINETIC Wwise Technology otherwise than as specifically authorized herein, or (h) authorize or allow others to do any of the foregoing.
4.2 Notice. Licensee agrees to promptly notify AUDIOKINETIC if the Licensee becomes aware of any unauthorized use of the whole or any part of the AUDIOKINETIC Wwise Technology by any third party.
5. TRADEMARK LICENSE
Each of AUDIOKINETIC and Licensee owns the trademarks, logos and trade names (collectively, “Marks”) for their respective products and/or services, including, but not limited to the Licensee Developed Game and the AUDIOKINETIC Wwise Technology. No licence to use the Marks is granted under this Agreement.
6. LEVEL TWO AND LEVEL THREE SOURCE CODE
6.1 Support. Before exercising its rights to modify Level Two Source Code or the Level Three Source Code, Licensee will make its best efforts to submit any issues or suggestions surrounding the Level Two Source Code or the Level Three Source Code to AUDIOKINETIC for resolution. AUDIOKINETIC undertakes to take all reasonable actions to address these issues in a timely manner. Should the urgency of the changes required not allow Licensee to contact AUDIOKINETIC for resolution, or should AUDIOKINETIC fail to address these issues in a timely manner, Licensee may make changes to the Level Two Source Code or the Level Three Source Code internally. Should Licensee make any changes to the Level Two Source Code or the Level Three Source Code and as a result of these changes all or part of the AUDIOKINETIC Wwise Technology fails to function according to the Documentation, AUDIOKINETIC reserves the right to no longer provide Support to Licensee for these changes, or more globally for the AUDIOKINETIC Wwise Technology.
6.2 Improvements to the Level Two Source Code or the Level Three Source Code. Licensee will make reasonable efforts to share information about the changes it makes to the Level Two Source Code or the Level Three Source Code, in order for AUDIOKINETIC to be able to maintain supporting Licensee and to improve the AUDIOKINETIC Wwise Technology.
6.3 Title to the Modifiable Source Code. Title to the Modifiable Source Code, any copies thereof or any modification, improvement, adaptation, enhancement or translation, developed as a result of Licensee exercising its rights hereunder, and all rights in and to any patent, trademark, copyright or other intellectual property right developed and/or incorporated in the Modifiable Source Code, shall at all times remain with AUDIOKINETIC. LICENSEE HEREBY ACKNOWLEDGES FULL AND SOLE OWNERSHIP OF AUDIOKINETIC IN AND TO ANY SUCH MODIFICATION, IMPROVEMENT, ADAPTATION, ENHANCEMENT OR TRANSLATION AND UNDERTAKES TO CONFER FULL AND SOLE OWNERSHIP IN SAID MODIFICATION, IMPROVEMENT, ADAPTATION, ENHANCEMENT OR TRANSLATION TO AUDIOKINETIC BY EXECUTING AN ASSIGNMENT OF RIGHTS OR ANY OTHER DOCUMENT EVIDENCING SUCH TRANSFER TO AUDIOKINETIC. AUDIOKINETIC hereby grants an irrevocable, unlimited, royalty-free, worldwide, transferable license to Licensee to such modifications, improvements and adaptations, enhancements or translations.
7. SUPPORT
During the term of the Agreement, if generally available to AUDIOKINETIC’s licensees at the time, AUDIOKINETIC may provide support for the AUDIOKINETIC Wwise Technology as described on AUDIOKINETIC’s website at www.audiokinetic.com/support (“Support”), all such support will be provided in accordance with the then current applicable conditions set forth on www.audiokinetic.com/support, subject to the terms and conditions set forth herein. Licensee assumes all risks arising from Licensee's failure to implement updates and any other corrections released by AUDIOKINETIC.
8. PROPRIETARY INFORMATION
8.1 Proprietary information. Licensee acknowledges that pursuant to this Agreement it will be receiving information which is proprietary and confidential to AUDIOKINETIC and/or to the owner(s) of the Third Party Software as applicable and, in the case of the AUDIOKINETIC Wwise Technology, is a confidential trade secret and valuable asset of AUDIOKINETIC which may (i) be the subject of one or more patent applications , which AUDIOKINETIC wishes to protect from public disclosure (“Proprietary Information”). “Proprietary Information” shall also include (i) any information designated as confidential by AUDIOKINETIC, (ii) the economic terms of this Agreement and (iii) any information relating to AUDIOKINETIC’s products, plans, product designs, product costs, product prices, product names, finances, marketing plans, business opportunities, business plan, personnel, research, development, or know-how.
8.2 Exclusions. Each party acknowledges that the following will not be considered “Proprietary Information” for the purposes of this Agreement: (a) information which is publicly available in the public domain at the time it is communicated to Licensee by AUDIOKINETIC; (b) information which is or becomes publicly available or public domain information through no fault of Licensee subsequent to the time it is communicated to Licensee by AUDIOKINETIC; (c) information which is in Licensee’s possession free of any obligation of confidence to AUDIOKINETIC at the time it is communicated to Licensee by AUDIOKINETIC; (d) information which is rightfully communicated to Licensee free of any obligation of confidence subsequent to the time it is communicated to Licensee by AUDIOKINETIC; (e) information which was independently developed by Licensee without use of the other party’s Proprietary Information; or (f) information which is required to be disclosed pursuant to law or to the order, requirement or request of a court of government authority.
8.3 Restrictive Use Conditions. Licensee (i) will hold such Proprietary Information in confidence and will not disclose it, except to its employees, officers or authorized representatives and those of its authorized sub-licensees with a need to know for purposes of performing their duties, who are similarly bound to hold the Proprietary Information in confidence and, with respect to the AUDIOKINETIC Wwise Technology, who have been given an individual access code by AUDIOKINETIC, (ii) shall prevent inadvertent or unauthorized disclosure or dissemination of any Proprietary Information, and (iii) agrees to take appropriate action with its employees, officers and authorized representatives and those of its authorized sub-licensees to satisfy its obligations under this Agreement with respect to the use, copying, modification, protection and security of the Proprietary Information.
8.4 Notice and Return of Information. Licensee shall notify AUDIOKINETIC immediately upon discovery of any unauthorized use or disclosure of Proprietary Information, and will cooperate with AUDIOKINETIC in every reasonable way to help AUDIOKINETIC regain possession of the Proprietary Information and prevent its further unauthorized use. Licensee shall return all originals, copies, reproductions and summaries of Proprietary Information at AUDIOKINETIC’s request or, at AUDIOKINETIC’s option, certify destruction of the same with the sworn statement of one of its officers, except where same is required for the exercise of Licensee’s rights under this Agreement.
8.5 Rights and Remedies. Licensee acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Proprietary Information and that AUDIOKINETIC shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
9. WARRANTY AND DISCLAIMER
9.1 Warranty. AUDIOKINETIC warrants that it has the right and authority to grant the rights granted to Licensee hereunder in the AUDIOKINETIC Wwise Technology on the Licensee Platforms. AUDIOKINETIC warrants that it is under no contractual or other legal obligation which would interfere in any way with the full, prompt, and complete performance of its obligations pursuant to this Agreement.
9.2 Infringement. In the event that any part of the AUDIOKINETIC Wwise Technology (other than Open Source Components) becomes, or AUDIOKINETIC believes that it is likely to become, the subject of an infringement claim, AUDIOKINETIC may at its option either (i) secure Licensee’s right to continue using such part of the AUDIOKINETIC Wwise Technology, (ii) replace or modify it to make it non-infringing (in ways not materially adversely affecting the utility of such part of the AUDIOKINETIC Wwise Technology), or if none of the foregoing alternatives is reasonably available to AUDIOKINETIC, (iii) terminate this Agreement upon one (1) months’ notice. In the event of termination of this Agreement by AUDIOKINETIC, Licensee shall be entitled to a refund of the License Fees paid for the AUDIOKINETIC Wwise Technology.
In addition, AUDIOKINETIC at its own expense shall defend any action brought against Licensee, to the extent that it is based on a claim that the AUDIOKINETIC Wwise Technology used within the scope of the license granted hereunder infringes a third-party patent or copyright in Canada or the United States and shall hold Licensee harmless from any liability for any costs and damages ordered by a court as a result of such a claim or resulting from the settlement thereof, provided Licensee notifies AUDIOKINETIC promptly in writing of the action (and all prior claims relating to such action) and AUDIOKINETIC has sole control of the defense and all negotiations for settlement or compromise of the claim.
AUDIOKINETIC shall have no liability for any claim of infringement based on (i) use of other than the current release of the AUDIOKINETIC Wwise Technology unaltered by anyone except AUDIOKINETIC, if such infringement would have been avoided by the use of such current unaltered release, (ii) use or combination of the AUDIOKINETIC Wwise Technology with programs or data not supplied or approved by AUDIOKINETIC to the extent such use or combination caused the infringement or (iii) use of the Open Source Components. The remedies set forth in this Section 9.2 constitute the sole remedies of Licensee and AUDIOKINETIC’s exclusive liability with respect to claims for infringement of proprietary rights of third parties.
9.3 DISCLAIMER. EXCEPT AS SET OUT IN THIS SECTION 9, THE AUDIOKINETIC WWISE TECHNOLOGY IS PROVIDED “AS IS” AND “WHERE IS” BY AUDIOKINETIC AND IS ACCEPTED AS SUCH BY LICENSEE. AUDIOKINETIC DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES RELATING TO THE AUDIOKINETIC WWISE TECHNOLOGY AND DOCUMENTATION, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND NON-INFRINGEMENT. AUDIOKINETIC DOES NOT WARRANT THAT THE AUDIOKINETIC WWISE TECHNOLOGY OR DOCUMENTATION WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE AUDIOKINETIC WWISE TECHNOLOGY AND THE DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT WITH RESPECT TO SECTION 10 BELOW, LICENSEE AGREES THAT AUDIOKINETIC WILL NOT BE LIABLE FOR ANY DAMAGES THAT LICENSEE OR ITS END USERS OR ITS GAME PLAYERS MAY INCUR ARISING OUT OF THE USE OR INABILITY TO USE THE AUDIOKINETIC WWISE TECHNOLOGY OR LICENSEE DEVELOPED GAME.
10. LIMITATION OF LIABILITY
10.1 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, AND EXCEPT IN RELATION TO BREACHES OF AUDIOKINETIC’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT, INCLUDING, BUT NOT LIMITED TO, DAMAGE OR LOSS OF PROPERTY, EQUIPMENT, INFORMATION OR DATA, LOSS OF PROFITS, REVENUE OR GOODWILL OR COST OF REPLACEMENT SERVICES OCCASIONED BY ANY DEFECT IN THE AUDIOKINETIC WWISE TECHNOLOGY, THE INABILITY TO USE SERVICES PROVIDED HEREUNDER OR ANY OTHER CAUSE WHATSOEVER WITH RESPECT TO THE AUDIOKINETIC WWISE TECHNOLOGY OR THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF THE OTHER PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 IN NO EVENT SHALL AUDIOKINETIC’S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT OF FEES DUE FROM LICENSEE TO AUDIOKINETIC FOR THE RELEVANT LICENSEE DEVELOPED GAME, AS APPLICABLE, DURING THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO SUCH CLAIM.
11. TERM AND TERMINATION
11.1 Term. Unless terminated earlier as provided herein, this Agreement shall commence upon acceptance of this agreement and shall continue: (a) with respect to the Evaluation License, for a period of 30 days, which may be extended; and (b) with respect to all other licenses, perpetually once such licenses are granted.
11.2 Termination. AUDIOKINETIC may terminate this Agreement if the Licensee materially breaches this Agreement and such material breach is not cured within thirty (30) days of written notice describing the breach.
11.3 Effect of Termination/Expiration. Upon the expiration or termination of this Agreement or any of the licenses granted hereunder: (a) all of Licensee’s rights hereunder shall terminate; and (b) within fifteen (15) days of the expiration or termination date Licensee shall, at its own expense, and at AUDIOKINETIC’s sole option, either return all copies of the AUDIOKINETIC Wwise Technology in its possession or control, or, shall destroy all copies of the AUDIOKINETIC Wwise Technology in its possession or control.
11.4 Survival. Section 1 (Definitions), Section 3 (Ownership), Section 4.1 (Restrictions on use), 5 (Trademark License), 6.3 (Title to Modifiable Source Code), Section 8 (Proprietary Information), Section 9 (Warranty and Disclaimer), Section 10 (Limitation of Liability), Section 11.3 (Effect of Termination), this Section 11.4 (Survival) and Section 12.7 (Governing Law) shall survive the termination or expiration of this Agreement in accordance with their terms.
12. MISCELLANEOUS
12.1 New EULA. The text of this Agreement may be amended from time to time by AUDIOKINETIC. Such amendments will become effective and enforceable against Licensee upon express acceptance of same either through the execution of a written instrument to that effect or the acceptance of the new terms through AUDIOKINETIC Wwise Technology’s installation process.
Licensee acknowledges that the terms and conditions applicable to Limited Commercial Licenses are those set out in the Limited License EULA.
12.2 Waiver. Any failure to enforce by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not be deemed or construed to be a waiver of such term or condition or any subsequent breach thereof.
12.3 Notices. Any notice under this Agreement will be in writing and will be personally delivered, sent by a reputable overnight mail service (e.g. Federal Express) or by registered mail, or by facsimile confirmed by registered mail, to the other party. Notices will be deemed effective (a) three (3) working days after deposit, postage prepaid, if mailed, (b) the next day if sent by overnight mail, or (c) the same day if sent by facsimile and confirmed as set forth above. A copy of any notice will be sent to the following:
Notice to AUDIOKINETIC:
409 Saint-Nicolas St.
Suite 300
Montreal, Quebec
Canada H2Y 2P4
Fax: +1514 499-9109
Attention: President and Chief Executive Officer
Notice to Licensee: at the address provided by the third party partner to Audiokinetic.
12.4 Assignment. This Agreement or any licenses granted hereunder may not be assigned or sublicensed by Licensee in whole or in part other than as provided hereunder (by contract, merger, operation of law or otherwise) without the prior written consent of AUDIOKINETIC, such consent not to be unreasonably withheld or delayed. AUDIOKINETIC may assign this Agreement with notice to Licensee in the event of a merger, acquisition or similar corporate activity provided that the surviving entity agrees to be bound by the terms of this Agreement. This Agreement shall be binding upon and inure for the benefit of the successors in title of the parties hereto.
12.5 Export. Licensee agrees to comply with all export laws, restrictions, national security controls and regulations of the United States or other applicable national or foreign agency or authority, and not to export or re-export, or allow the export or re-export of any proprietary information or any copy or direct product thereof in violation of any such restrictions, laws or regulations.
12.6 Independent Contractors. Each party will act at all times as an independent contractor and will have no right or authority to act on behalf of, create any obligation for, or bind the other party in any way. Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties.
12.7 Governing Law. This Agreement shall not be modified or amended except in writing and signed by both parties. This Agreement will be governed by and construed under the laws of the province of Quebec and the laws of Canada applicable therein and the parties hereto submit to the exclusive jurisdiction of the courts of Province of Quebec, District of Montreal.