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LICENSE.txt
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LICENSE.txt
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CONVIVA INC.
SDK AND LIBRARY LICENSE AGREEMENT
THIS SDK AND LIBRARY LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU AND CONVIVA INC. (“CONVIVA”). YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE THE CONVIVA SOFTWARE DEVELOPMENT KIT AND/OR LIBRARY (COLLECTIVELY AND INDIVIDUALLY, THE “SOFTWARE”) CAN BE DOWNLOADED OR INSTALLED OR USED. IF YOU USE THE SOFTWARE AS AN EMPLOYEE OF OR FOR THE BENEFIT OF YOUR COMPANY, YOU REPRESENT THAT YOU HAVE THE POWER AND AUTHORITY TO ACCEPT THIS AGREEMENT ON BEHALF OF YOUR COMPANY. YOUR COMPANY WILL BE THE LICENSEE UNDER THIS AGREEMENT. YOUR USE OF THE SOFTWARE IS GOVERNED BY AND SUBJECT TO THE CUSTOMER AGREEMENT OR SIMILAR AGREEMENT FOR CONVIVA’S PRODUCTS AND SERVICES PREVIOUSLY ENTERED INTO BETWEEN YOU (OR YOUR COMPANY) AND CONVIVA, OR, WHERE NO SUCH EXISTING AGREEMENT IS IN PLACE, THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE “ACCEPT” BUTTON FOR THIS AGREEMENT, OR BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU CONSENT TO THE TERMS AND CONDITIONS STATED HEREIN ON BEHALF OF YOURSELF AND THE COMPANY ON WHOSE BEHALF YOU WILL USE THE SOFTWARE PROVIDED UNDER THIS AGREEMENT. THE EFFECTIVE DATE OF THIS AGREEMENT IS THE DATE THAT YOU FIRST DOWNLOAD, INSTALL OR USE THE SOFTWARE (“EFFECTIVE DATE”). IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN YOU SHOULD EXIT THIS PAGE AND NOT DOWNLOAD OR INSTALL OR USE THE SOFTWARE. BY DOING SO YOU FOREGO ANY IMPLIED OR STATED RIGHTS TO DOWNLOAD OR INSTALL OR USE A SOFTWARE.
Limited License Grant. Conviva hereby grants to you a limited, personal, non-exclusive, fully paid, royalty-free, worldwide, non-assignable, non-transferable license, without the right to sublicense, to use the Software solely for the purposes of performing or supporting the integration or validation of Conviva technology with the video player(s) of a Conviva customer or a Conviva-authorized business development partner (“Permitted Purpose”), and any user manuals, reference manuals, release, application and methodology notes, and other materials in any form provided by Conviva for use with the Software (“Documentation”) subject to the following terms and conditions:
A. You acknowledge and agree that you will not, nor shall you allow any third party to: (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatever, or disclose any of the foregoing; (ii) distribute, lease, lend, use for timesharing, service bureau, and/or application service provider purposes the Software; or (iii) modify or create a derivative work of any part of the Software. B. You agree: (i) that the Software is the confidential information of Conviva; (ii) to protect Conviva’s confidential information from unauthorized dissemination and use with the same degree of care that you use to protect your own like information but, in no event, less than a reasonable degree of care; (iii) not to disclose to third parties Conviva’s confidential information without Conviva’s prior written consent; and (iv) to use the Software solely for the Permitted Purpose and for no other purpose.
Ownership Rights. Conviva and/or its licensors own and shall retain all right, title and interest in and to the Software and Documentation, including all intellectual property rights embodied therein, and you shall have no rights with respect thereto other than the rights expressly set forth in this Agreement. All rights not expressly granted to you in this Agreement are retained by Conviva. You acknowledge and agree that any misuse or disclosure of the Software shall be deemed a material breach of this Agreement.
No Warranty. Conviva does not represent or warrant that (i) the Software will meet your requirements or expectations or will be error-free, or (ii) the results that may be obtained from the use of the Software will be accurate or reliable. THE SOFTWARE IS LICENSED "AS IS" AND CONVIVA MAKES NO WARRANTY EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SOFTWARE AND DOCUMENTATION AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.
Limitation of Liability. A. Direct Damages. CONVIVA'S TOTAL LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THE LICENSING OR THE USE OF THE SOFTWARE SHALL NOT EXCEED THE GREATER OF US$1,000 OR THE LICENSE FEE, IF ANY, RECEIVED BY CONVIVA FROM YOU FOR THE PARTICULAR SOFTWARE INVOLVED. B. Consequential Damages. UNDER NO CIRCUMSTANCES SHALL CONVIVA BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE USE OF THE SOFTWARE AND DOCUMENTATION, HOWEVER CAUSED, WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE), INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
Term and Termination. A. Term. The term of this Agreement commences on the Effective Date and ends on the completion or termination of the Permitted Purpose, unless terminated earlier as provided hereunder. B. Termination. Conviva may terminate this Agreement if you breach or are in default of any obligation hereunder, which default is incapable of cure or which, being capable of cure, has not been cured within fifteen (15) business days after receipt of written notice thereof. For the avoidance of doubt, your breach of Section 1 (Limited License Grant) shall be deemed a material breach hereof. C. Effect of Termination. Upon expiration or termination of this Agreement, you shall, at Conviva’s discretion, destroy or return to Conviva all Software and related Documentation and other confidential information of Conviva, including all copies thereof, whether in written or other tangible form, provided to you pursuant to this Agreement. You shall provide Conviva with written notice of such return or destruction within thirty (30) days following any such expiration or termination. D. Survival. Sections 2, 3, 4, 5C and D, 6, 7 and 8 shall survive any termination or expiration of this Agreement.
Export Controls. You agree and certify that neither the Software, nor any other technical data received from Conviva, nor the direct product thereof, will be exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. You will not, without a U.S. Bureau of Industry and Security license or license exception, (i) export, re-export, or transfer any technology, software, or source code subject to this agreement, either directly or indirectly, to any national of any country identified in Country Groups D:1 or E:2 as defined in the EARs, or (ii) export to any country identified in Country Groups D:1 or E:2 the direct product of the technology, software or source code, if such foreign produced product is subject to the national security controls as identified on the Commerce Control List (“CCL”). In addition, goods, software and any technology subject to this Agreement may not be exported, re-exported, or transferred to (a) to any person or entity listed on the “Entity List”, “Denied Persons List” or the list of “Specifically Designated Nationals and Blocked Persons" as such lists are maintained by the U.S. Government, or (b) an end-user engaged in activities related to weapons of mass destruction. Such activities include but are not necessarily limited to activities related to: (1) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production, or use of missiles or support of missiles projects; and (3) the design, development, production, or use of chemical or biological weapons.
Transfers and Assignments: You may not transfer or assign your license rights to any other person in any manner (by assignment, operation of law or otherwise) unless you have obtained written consent from Conviva. If you attempt to transfer or assign any of your license rights without Conviva’s consent, the transfer or assignment will be ineffective, null, and void (and you will be in material breach of this agreement). For purposes of this Section 8, if you are a company or corporation a transfer or assignment of your license rights will be deemed to have occurred (a) if a third party (or group of third parties acting in concert) acquires beneficial ownership of fifty percent (50%) or more of either your assets or of the stock or other equity interests entitled to vote for your directors or equivalent managing authority, or (b) in the event of a merger, consolidation or other business combination between you and one or more third parties where your stockholders immediately before that transaction own (directly or indirectly), after that transaction, less than fifty percent (50%) of the stock or other equity interests entitled to vote for the directors or equivalent managing authority of the surviving entity.
General. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior agreements and representations, oral or written, express or implied, regarding such subject matter. No additional or inconsistent terms on any purchase order or similar document that you submit to Conviva will be binding on Conviva or have any legal effect. This Agreement shall only be modified or amended in a writing signed by duly authorized representatives of the parties hereto. For all purposes under this Agreement each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract. This Agreement shall be governed by and construed under the laws of the State of California, USA, without regard for its conflict of laws principles. In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. Each party irrevocably agrees that the federal and state courts located in San Francisco County, California, USA, shall have exclusive venue and jurisdiction to settle all actions and disputes relating in any manner to this Agreement. The prevailing party in any litigation in connection with this Agreement shall be entitled to an award of reasonable attorneys’ fees and costs. If, for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. (version 26 April 2018)