AirFlinger SDK Evaluation, Development and Demonstration
LICENSE AGREEMENT
PLEASE READ
THIS SDK LICENSE AGREEMENT ("AGREEMENT") BEFORE DOWNLOADING,
INSTALLING OR USING THE AIRFLINGER SOFTWARE DEVELOPMENT KIT (SDK) (THE "SOFTWARE"):
By selecting
the "I Accept" button, or otherwise downloading, installing or using
the Software, you acknowledge that you, on your own behalf as an individual and
on behalf of your employer or another legal entity (collectively "you"
or "your"), have read and understood and agree to comply with
the terms and conditions of this Agreement, and are entering into a binding
legal agreement with TVersity Inc. ("TVersity"). You represent and warrant that you are at
least 18 years old and, if you are entering into this Agreement on behalf of
your employer or other legal entity, that you have full authority to bind said
employer or other legal entity to this Agreement. If you do not
agree to comply with and be bound by this Agreement or do not have authority to
bind your employer or other legal entity, please do not accept this Agreement
or use the Software. You
hereby waive any applicable rights or requirements under any laws or
regulations in any jurisdiction which require an original (non-electronic)
signature or delivery or retention of non-electronic records, to the extent not
prohibited under applicable law. You
assume all responsibility for the selection of the Software to achieve your
intended results and for the installation, use and results obtained from the
Software.
1.
Background.
(i)
TVersity is the
developer of the Software. The Software may
include certain demonstration applications ("Demos") which TVersity
distributes in either: (a) binary executable form ("Binary Demos");
or (b) source code form ("Source Code Demos").
(ii)
The purpose of
this Agreement is to provide a commercial framework whereby you may: (a) use
the Software and Demos for your own internal evaluation and testing purposes in
order to add the Software's media shifting functionality to your mobile
software application ("App"); and/or (b) demonstrate your App to
third parties, all in accordance with the terms and conditions of this
Agreement.
2.
License
Grant.
2.1.
Subject to the
terms and conditions of this Agreement, TVersity hereby grants you a limited, non-transferable,
non-sublicensable, non-exclusive, license during the
Term (defined below) to (collectively, the "License"):
(i)
Use the
Software (in binary executable form only): (a) for your internal testing and
evaluation purposes in connection the development of your App, and (b) to add
the Software's media shifting functionality to your App.
(ii)
Use the Source
Code Demo to add the Software's media shifting functionality to your App.
(iii)
Use the Binary
Demo (in binary executable form only): (a) to test and evaluate the Software;
and/or (b) to demonstrate the App to third parties.
(iv)
Use the
Software (in binary executable form only), but solely as incorporated within
your App (and not as a stand-alone product), to demonstrate the App to third
parties.
2.2.
All references
herein to the Software shall include TVersity's standard
user documentation which describes the Software and which it generally makes available
to its customers.
2.3.
Contractors. Subject to the terms and conditions hereof, you
may permit a contractor or agent to use the Software on your behalf ("Contractor"),
provided, however, that: (i) the Contractor may only
use the Software for the purpose of adding the Software's media shifting
functionality to your App on your behalf; (ii) such Contractor agrees to be
bound by the terms and conditions of this Agreement; and (iii) you shall remain
liable to TVersity for any damages and expenses suffered by TVersity as a
result of the acts or omissions of a Contractor that would constitute a breach
of this Agreement if such acts or omissions were by you.
2.4.
License
Restrictions. You may not
directly or indirectly, and shall not permit any third party to: (i) use or access the Software, except under the terms and
conditions of this Agreement; (ii) alter, merge, adapt, modify, translate,
reverse engineer, decompile, disassemble the Software (except to the extent
that this restriction is expressly prohibited by law); (iii) derive, or attempt
to derive, the source code of the Software or reduce the Software to a
human-perceivable form (except with respect to the Source Code Demo); (iv)
create derivative works based upon the Software; (v) sell, rent, lease,
transfer, sublicense, or otherwise transfer or distribute rights to the
Software (except to the extent expressly permitted herein); (vi) copy the
Software (except for back-up or archival purposes); (vii) remove any
proprietary notices or labels on or affixed to the Software or any copies
thereof, or use the TVersity Marks (defined below) for any purpose except as
expressly permitted herein; (viii) use the Software to develop any product
other than your App; (ix) use the Software to develop any software or product
which is the same as or similar to or competes with the Software; (x) except as
permitted herein for your own internal testing and evaluation purposes in
connection with your App, use the Software for purposes of monitoring
its availability, performance or functionality, or for any other benchmarking
or competitive purposes; (xi) access, store, distribute, or transmit during the
course of use of the Software any unlawful, threatening, libelous,
obscene or infringing material or any viruses, trojan
horses, malware or other harmful computer code, files or programs; (xii)
interfere with or disrupt the integrity or performance of the Software;
(xiii) work around any technical limitations in the Software, or use any
tool to enable features or functionalities that are otherwise disabled in
the Software, or (xiv) use the Software for any unlawful
purpose, or one that could associate TVersity with any improper or
inappropriate purpose. You shall use all
reasonable efforts to prevent any unauthorized access to, or use of, the Software. Any action taken by you which is prohibited
by this Agreement shall immediately terminate your License to the Software.
2.5.
Security
Mechanism. TVersity reserves the
right to include a security mechanism within the Software to control access to
and/or use of the Software in order to enforce the license terms granted
herein.
3.
Demo
Versions.
3.1.
Source Code
Demo. In addition to, and without derogating from, any other
restriction on use set forth herein: (i) you shall
not use the Source Code Demo for any purpose other than to develop your App as
permitted herein; and (ii) you agree that the
Source Code Demo constitutes confidential information and proprietary trade
secrets of TVersity and shall not be disclosed to any third party (except a
Contractor as permitted herein).
3.2.
App Demo and Binary
Demo. If you demonstrate your
App or the Source Code Demo or the Binary Demo to a third party you shall: (i) prominently and conspicuously attribute TVersity as the
developer and owner of the Software and/or Source Code Demo and/or Binary Demo;
and (ii) display the TVersity logo so that it is visible when your App utilizes
the Software (and not only in the App "about" or "general
information" page).
3.3.
References. All references to the Software in Sections 2.3
('Contractors'), 2.4 ('License Restrictions'), 2.5 ('Security Mechanism') and 4
('Your App') to 21 ('General'), of this Agreement shall include the Demos.
4.
Your
App. You acknowledge
that the term "App" as used herein refers solely to a mobile software
application which is used in connection with an electronic device (such as a
mobile device, tablet, or computer). You
represent and warrant that: (i) you are the owner of,
or have obtained all of the necessary rights to use, develop and distribute, your
App; (ii) your App does not infringe any copyright, patent, trade secret, or
other proprietary or intellectual property right of any third party, (iii) as
between TVersity and you, you shall be fully and solely responsible for your
App and any related warranties or support to your end users; (iv) as between
TVersity and you, you shall be fully and solely responsible for the
distribution of your App and complying with any terms and conditions imposed by
a third party mobile application distribution platform, such as the Apple App
Store or Google Play; (v) your App is not unlawful, does not violate any law
and is not otherwise inappropriate; and (iv) your App does not contain software
viruses, or other harmful computer code, files or programs. You retain all title, ownership rights and
intellectual property rights in and to your App (but not including any Software
as incorporated therein). You
acknowledge that you (and your end users) are solely responsible to make all
payments required to be made in connection with any royalties due for use of
industry standards, or codecs and media formats in
connection with your (and your end users') use of the Software. Notwithstanding anything to the contrary in
this Section, this Agreement does not grant any right to distribute the Software
(any such distribution is governed by a separate TVersity agreement).
5.
Ownership
and Title. The Software is licensed,
not sold. As between the parties, all
title, ownership rights, and intellectual property rights (including all
copyrights, patents, trade secret rights and trademarks) in and to the Software
and all copies thereof, and any related documentation, including any
modifications and derivative works of the foregoing, shall remain in and with TVersity. Your possession, installation, or use of the
Software does not transfer to you or any third party any title to the
intellectual property in the Software, and you will not acquire any rights to
the Software except as expressly set forth in this Agreement. All rights not specifically granted in this
Agreement are reserved by TVersity.
6.
Third
Party Software Components. Portions
of the Software include third party open source software components that are
subject to their respective open source licenses ("Third Party Software"). A list of Third Party Software is available
at www.tversity.com and/or
www.airflinger.com. If there is a conflict between any Third
Party Software license terms and the terms of this Agreement, the Third Party Software
license terms shall prevail in connection with the related Third Party Software.
7.
Fees.
7.1.
Any Software
license fees (if any) are displayed on the AirFlinger
website www.airflinger.com
(the "Site"). Your use
of the Software is subject to your compliance with the terms of this Agreement,
including without limitation your payment in full of any related fees (if any) set
forth in the online order form which you must complete prior to downloading or
otherwise using the Software.
7.2.
Unless
otherwise stated in the online order form, all fees shall be paid in US
Dollars, are non-refundable and are exclusive of all taxes, levies, or duties,
which are your responsibility. Overdue
payments shall accrue interest at the lesser of one and one-half percent (1.5%)
per month or the maximum rate permitted by applicable law.
7.3.
If you
authorize the charging of fees to your credit card, TVersity may charge the
credit card account that you authorize. If
payment is not received from your card issuer, you agree to promptly pay all
amounts due upon demand. TVersity may
use the tools, software or services of third party payment service providers to
complete your licensing of the Software, or any other product or service you
purchase via the Site. You acknowledge
and agree to: (i) review and be bound by the terms of
use and privacy policy of any such third party payment service provider; and
(ii) hold TVersity harmless, and expressly release TVersity, from any and all
liability arising from your interaction with any such third party payment
service provider.
8.
Term
and Termination. This Agreement shall become effective on the earlier of:
(i) the date that you download or otherwise commence
to use the Software; or (ii) the date that TVersity receives payment of any
applicable Software license fees, and shall continue until terminated as
permitted herein (the "Term"). TVersity reserves
the right to terminate this Agreement and the license granted hereunder at any
time and without notice. You may
terminate this Agreement at any time by ceasing to use the Software. Upon any termination of this Agreement, you
shall immediately: (i) discontinue use of the
Software; (ii) cease to distribute versions of your App which include the
Software; and (iii) remove the Software from all hard drives, networks and
other storage media and destroy all copies of the Software in your possession
or under your control. Upon TVersity's request you shall within three (3) days certify
destruction of all copies of the Software.
9.
Effect
of Termination. Sections
2.4 ('License Restrictions'), 3.1 ('Source Code Demo'), 4 ('Your App'), 5
('Ownership and Title'), 6 ('Third Party Software Components'), 7 ('Fees', to
the extent any amounts due hereunder remain outstanding), 10 ('Warranty
Disclaimer'), 11 ('Limitation of Liability'), 12 ('Indemnification'), and 14 ('Use
of TVersity Marks') to 21 ('General') shall survive the termination of this
Agreement.
10.
Warranty
Disclaimer. THE
SOFTWARE IS PROVIDED TO YOU ON AN “AS IS” BASIS, WITHOUT ANY REPRESENTATIONS OR
WARRANTIES WHATSOEVER. TVERSITY EXPRESSLY
DISCLAIMS, AND YOU HEREBY EXPRESSLY WAIVE, ALL WARRANTIES, EXPRESS OR IMPLIED,
IN CONNECTION WITH THE SOFTWARE OR THE USE OR INABILITY TO USE THE SOFTWARE,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AS TO ANY
RESULTS TO BE OBTAINED FROM ANY USE OF THE SOFTWARE OR INFORMATION TO BE
DERIVED THEREFROM. TVERSITY DOES NOT
WARRANT THAT THE SOFTWARE WILL OPERATE ERROR-FREE, THAT THE SOFTWARE IS FREE OF
VIRUSES OR OTHER HARMFUL MECHANISMS OR THAT TVERSITY WILL CORRECT ANY ERRORS IN
THE SOFTWARE. TVERSITY DISCLAIMS ANY AND
ALL RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS,
LEGALITY, RELIABILITY, OR OPERABILITY OR AVAILABILITY OF THE SOFTWARE. THE ENTIRE RISK AS TO THE RESULTS AND
PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU.
11.
Limitation
of Liability.
11.1.
TO THE FULLEST
EXTENT PERMISSIBLE BY LAW, TVERSITY SHALL NOT BE LIABLE FOR ANY INDIRECT,
EXEMPLARY, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND
(INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS OR REVENUE, LOSS OF GOODWILL,
LOSS OF DATA OR COMPUTER OR DEVICE FAILURE) ARISING OUT OF THIS AGREEMENT OR IN
CONNECTION WITH THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF TVERSITY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2.
IN NO EVENT
SHALL THE AGGREGATE LIABILITY OF TVERSITY FOR ANY DAMAGES UNDER THIS AGREEMENT,
OR IN CONNECTION WITH THE USE OF OR THE INABILITY TO USE THE SOFTWARE, EXCEED
THE TOTAL AMOUNT OF FEES PAID BY YOU TO TVERSITY FOR THE SOFTWARE DURING THE
SIX (6) MONTHS PRIOR TO BRINGING THE CLAIM.
12.
Indemnification. You agree to indemnify, defend and
hold harmless TVersity, its officers, directors, employees, agents,
shareholders, and licensors from and against any losses, damages, fines and
expenses (including attorneys’ fees and costs) arising out of or relating to any
third party claims that arise from or are in connection with: (i) your violation of any terms of this Agreement; (ii) your
use of the Software; and/or (iii) your App.
TVersity shall provide you with written notice of the claim, permit you
to control the defense, settlement, adjustment or compromise of any such claim,
and reasonably cooperate with you in the defense and any related settlement
action. TVersity reserves the right, at its own expense, to assume the
exclusive defense and control of any matter subject to indemnification by you.
13.
Support
Services. TVersity is not required under this Agreement to provide any
Software support or maintenance services.
Such services may be purchased separately under TVersity's
then-current standard support services agreement.
14.
Use
of TVersity Marks. All
Marks in the Software are marks of TVersity. Other than as specified in this
Agreement, you may not copy, imitate or use any such Mark unless you obtain the
prior written consent of TVersity. All
references in this Section to TVersity shall include TVersity's
licensors. You will not: (i) use the Marks to state
or suggest that TVersity is associated with or endorses your App, other than
the fact that your App incorporates and utilizes the Software; (ii) use the
Marks in any manner that disparages TVersity, or that otherwise dilutes or
tarnishes the Marks; or (iii) challenge the validity of the Marks, or attempt
to register confusingly similar trademarks, trade names, service marks or logos.
TVersity retains all right, title and
interest in and to the Marks, and all goodwill arising out of any use of the
Marks by you will inure to the sole benefit of TVersity. Neither you nor any third party will acquire
any right in the Marks, except as expressly set forth herein. You will
immediately discontinue use of any Mark if requested to do so by TVersity.
"Marks" means any trademark, service mark, trade name, logo
and graphic image, word or symbol that identifies a product, service or
business, whether or not registered, which is owned or operated by TVersity.
15.
Export
Restrictions. You
acknowledge that the Software may be subject to international rules that govern
the export of software. You agree to comply with all applicable
international and national laws that apply to the Software as well as end-user,
end-use and destination restrictions issued by national governments.
16.
Government
Users. If
the Software is acquired by or on behalf of a unit or agency of the U.S.
Government (the “Government”), then the use, duplication, reproduction,
release, modification, disclosure or transfer of the Software is restricted in
accordance with the Federal Acquisition Regulations as applied to civilian
agencies and the Defense Federal Acquisition Regulation Supplement as applied
to military agencies. The Software is a "commercial item",
"commercial computer software" and "commercial computer software
documentation". In accordance with such provisions, any use of the Software
by the Government shall be governed solely by the terms of this Agreement.
17.
Hazardous
Uses. The Software is not
intended for use in connection with any application requiring fail-safe
performance, such as the operation of life support systems, or any other system
whose failure could lead to injury, death, environmental damage or mass
destruction. You agree that TVersity
will have no liability of any nature, and you are solely responsible, for any
expense, loss, injury or damage incurred as a result of such use of the
Software.
18.
Assignment. This Agreement, and any rights
granted hereunder, may not be transferred or assigned by you but may be
assigned by TVersity without restriction.
19.
Modifications. TVersity reserves the right, at its discretion,
to change this Agreement at any time.
Such change will be effective ten (10) days following TVersity sending a
notice thereof to you or posting the revised Agreement on the Site, and your
continued use of the Software thereafter means that you accept those changes.
20.
Governing
Law and Venue for Disputes. This
Agreement shall be governed by the laws of the State of New York, without
regard to conflicts of law provisions, and you hereby consent to the exclusive
jurisdiction of the state and federal courts sitting in New York, New York in
connection with any dispute, cause of action or claim arising out of this
License Agreement. Notwithstanding the
foregoing, TVersity reserves the right to seek injunctive relief in any court
of competent jurisdiction. You and
TVersity agree that any proceedings to resolve or litigate any dispute, whether
in arbitration, in court, or otherwise, will be conducted solely on individual
basis, and that neither you nor TVersity will seek to have any dispute heard as
a class action, a representative action, a collective action, a private
attorney-general action, or in any proceeding in which you or TVersity act or
propose to act in a representative capacity. You and TVersity further agree
that no arbitration or proceeding will be joined, consolidated, or combined
with another arbitration or proceeding without the prior written consent of you
and TVersity. This Agreement will not be governed by the United Nations
Convention of Contracts for the International Sale of Goods, the application of
which is hereby expressly excluded.
21.
General. This Agreement represents the
complete agreement concerning the evaluation, testing, development and
demonstration of the Software (and App) between you and TVersity and supersedes
all prior agreements and representations related to the subject matter
hereof. Section headings are provided
for convenience only and have no substantive effect on construction. Except for your obligation to pay TVersity,
neither party shall be liable for any failure to perform due to causes beyond
its reasonable control. Nothing herein
shall be construed to create any employment relationship, partnership, joint
venture or agency relationship or to authorize any party to enter into any
commitment or agreement binding on the other party. If any provision of this Agreement is held to
be unenforceable, this Agreement shall be construed without such
provision. The failure by a party to
exercise any right hereunder shall not operate as a waiver of such party's
right to exercise such right or any other right in the future.
Last
revised: 13 March 2013