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.
(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 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.
7.1. 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.
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