PLEASE READ THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE START TO DOWNLOAD (“DOWNLOADING”) G’AUDIO WORKS (AS DEFINED UNDER ARTICLE 1, “WORKS”). EXCEPT TO THE EXTENT G’AUDIO LAB, INC. (“G’AUDIO”) AND LICENSEE HAVE EXECUTED A SEPARATE AGREEMENT, THE FOLLOWING TERMS AND CONDITIONS GOVERN ACCESS TO AND USE OF WORKS.
G’Audio is willing to license Works to Licensee only upon the condition that Licensee accepts all the terms contained in this Agreement. By Downloading Works, Licensee is considered to be fully competent to enter into this Agreement and to have agreed to be bound by all of the terms of this Agreement. If Licensee is accepting the terms of this Agreement on behalf of a legal entity, Licensee represents and warrants that Licensee has the authority to bind that legal entity to the terms of this Agreement. If Licensee does not accept all of the terms of this Agreement, then G’Audio is unwilling to license Works to Licensee.
Regarding any third-party materials included in Works such as open source licenses, please refer to the separate third-party license agreements or “READ ME” files included in such third-party materials as well as “Legal Notice” included in the Works installation package.
“Intellectual Property Rights” means any and all tangible and intangible: (i) rights associated with works of authorship, including copyrights, moral rights, neighboring rights, and derivative works thereof, (ii) trademark and trade name rights, (iii) trade secret rights, (iv) patents, design rights, and other industrial property rights, and, (v) all other intellectual property rights (of every kind and nature however designated) whether arising by operation of law, treaty, contract, license, or otherwise, together with all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof.
“Licensee Content” means games, demos, applications, video or any other 360/VR contents that Licensee develops with Works and distributes pursuant to this Agreement.
“Works” means G’Audio audio plug-in for digital audio workstation (hereinafter, “Works”) provided to anyone interested for purposes stipulated in Article 2.1, including but not limited to updates, manuals, data, programs (source and/or code), records, techniques, demos (if applicable), and any other related information.
2. SCOPE OF LICENSE
2.1 Grant of License. Subject to all terms of this Agreement, G’Audio hereby grants Licensee, during the Term, a limited, non-exclusive, non-transferable, non-assignable, royalty-free, world-wide license, without the right to sub-license, to install and use Works for testing, developing, selling and otherwise distributing Licensee Content. Works shall be distributed solely as incorporated in the Licensee Content.
2.2 Reservation of Rights. Any rights not expressly granted to Licensee under this Agreement are reserved by and for the benefit of G’Audio. Licensee acknowledges and agrees that except as specially set forth in this Agreement, G’Audio retains all rights, title and interest in and to Works and Licensee does not acquire any right, title or interest in and to Works. Works is protected by copyright, patent and/or any other applicable international treaties. Licensee will not delete or in any manner alter any G’Audio or third-party copyright, trademark or other proprietary rights notices or markings appearing on or in Works.
Licensee acknowledges and agrees that any portion of Works, including but not limited to the source code, specific design, and structure of individual modules or programs, is confidential and constitute or contain trade secrets of G’Audio (and its licensors, if any). Accordingly, Licensee may not (i) copy Works except and to the extent necessary for backup and archival purposes; (ii) for whatever purposes, reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the binary code portions of Works (collectively, “reverse engineer”) or permit or induce the foregoing; (iii) use Works for any other purposes than as permitted in above Article 2.1; or (iv) make Works available to other user(s) or third parties without the express prior written consent of G’Audio.
4. CONSENT TO DATA COLLECTION
4.2 Updates. Licensee acknowledges and agrees that G’Audio may provide updates in its sole discretion by using data collected pursuant to Article 4.1, and may notify Licensee about such updates and its products (including Works) and service offerings.
5. TERM AND TERMINATION
This Agreement shall become effective on the date when the Licensee Downloads Works. Unless otherwise defined in this Agreement, the Agreement and the license granted hereunder shall continue for as long as Licensee operates Works; provided that in case of Licensee’s violation of any obligation stipulated in this Agreement, G’Audio is entitled to terminate this Agreement unilaterally and immediately without giving any notice. In such case, Licensee will stop using all and any of Works, and destroy all copies of Works and all of its components. Sections 5 through 8 will survive termination of this Agreement.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 Licensor’s Representations. Notwithstanding anything to the contrary and to the maximum extent permitted by applicable law, Works is provided “AS IS” and “AS AVAILABLE”, without warranty of any kind. G’Audio (and its licensors, if any) disclaim all warranties and conditions, express or implied, including but not limited to any implied warranties and conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, title, quiet enjoyment, and non-infringement, of accuracy and any warranties and conditions about Works. No advice or information, whether oral or written, obtained from G’Audio will create any warranty or condition not expressly stated in this Agreement. G’Audio makes no warranty that Works will be uninterrupted, free of viruses or other harmful code, timely, secure, or error-free.
Licensee uses Works at its own discretion and sole risk. Licensee will be solely responsible for any and all loss, liability, or damages resulting from its use of Works.
6.2 Licensee’s Representations. Licensee covenants and agrees that it shall at all times comply with the terms of this Agreement.
7. LIABILITY AND INDEMNITY
7.1 Limitation on Liability. G’AUDIO’S TOTAL AGGREGATE LIABILITY TO LICENSEE FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY RELATED TO WORKS WILL BE LIMITED TO THE GREATER OF (I) THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE LICENSE, OR (II) ONE HUNDRED DOLLARS (USD 100). IN NO EVENT WILL G’AUDIO BE LIABLE TO LICENSEE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF WORKS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON AGREEMENT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT G’AUDIO OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. ABOVE LIMITATION OR EXCLUSION WILL BE APPLIED TO LICENSEE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. IN SUCH JURISDICTIONS, THE LIMITATIONS AND EXCLUSIONS SET FORTH HEREIN MAY NOT APPLY TO LICENSEE. CONSEQUENTLY, IN SUCH JURISDICTIONS, THE LIABILITY OF G’AUDIO IS LIMITED TO THE EXTENT PERMITTED BY LAW, THEREBY MINIMIZING THE LIABILITY OF G’AUDIO TO LICENSEE TO THE LOWEST AMOUNT PERMITTED BY APPLICABLE LAW.
7.2 Indemnity. To the maximum extent permitted by law, Licensee agrees to indemnify, defend and hold harmless G’Audio and its affiliates from and against any claims and liabilities (including, without limitation, reasonable legal fees), regardless of the form of action, arising out of or related to (i) a breach of terms in this Agreement by Licensee, (ii) access to or use of any of Works, or (iii) any of Licensee Content developed by Licensee.
8. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, excluding its conflicts of law principles. In the event of any dispute, claim or disagreement arising from or relating to this Agreement or the breach thereof (the “Dispute”), the parties hereto shall use their best efforts to settle the Dispute through amicable discussion with each other in good faith. Any resolution of such Dispute shall be set forth in writing signed by both parties. If such Dispute cannot be satisfactorily resolved by the parties themselves within a period of thirty (30) days from the occurrence thereof, then, upon notice by either party to the other, such Dispute shall be finally settled by arbitration administered by the American Arbitration Association (the “AAA”) in accordance with its Commercial Arbitration Rules, for the time being in force. The arbitration shall be conducted in the English language and the place of arbitration shall be California, USA. The award rendered by the arbitrator(s) shall be final and binding. Judgment on the award rendered by the arbitrator(s) may be entered into any court having jurisdiction thereof. The prevailing party shall be entitled to an award of reasonable attorney fees.
9. EXPORT COMPLIANCE
Licensee agrees not to export or re-export Works in violation of any applicable export control laws or regulations.
10.1 Entire Agreement. This Agreement is the complete and final agreement of the parties with respect to the subject matter. To the extent that the terms and conditions of this Agreement and any subsequently entered business agreement are inconsistent, the terms and conditions of such subsequently entered business agreement will govern.
10.2 Severability. If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed, if practicable, or deleted, if not practicable, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this Agreement shall remain in full force and effect.
10.3 Notices. Any notice or other communication to be given under this Agreement, unless otherwise specified, shall be in writing and delivered by certified email, which is deemed to be given upon receipt. All notices or approvals will be sent to the e-mail address provided by Licensee when downloading Works.
10.4 Assignment. This Agreement and all rights, duties and obligations hereunder are personal to Licensee and may not be assigned, delegated or otherwise transferred by either party, by operation of law or otherwise, without G’Audio’s prior written consent, and any attempt by Licensee to do so, without such consent, will be void.