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diff --git a/licenses/realsdk b/licenses/realsdk deleted file mode 100644 index 605855905651..000000000000 --- a/licenses/realsdk +++ /dev/null @@ -1,913 +0,0 @@ -REALSYSTEM SDK AGREEMENT -Software License for RealNetworks Products - -IMPORTANT -- READ CAREFULLY BEFORE USING THIS SOFTWARE: This License -Agreement for certain RealNetworks Products ("Agreement") is a legal -agreement between you (either an individual or an entity, hereafter -"Licensee") and RealNetworks, Inc. and its suppliers and licensors -(collectively "RN") for use of RN?s RealSystem Software Development Kit -("SDK"), for the sole purpose of developing and distributing the Licensee -Application (as defined below). By installing, copying or otherwise using -the Software, you agree to be bound by the terms of this Agreement. If you -do not agree to the terms of this License Agreement, click on the "cancel" -button and/or do not install the Software. - -YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS -LICENSE, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. - -ANY THIRD PARTY SOFTWARE THAT MAY BE PROVIDED WITH THE SOFTWARE IS INCLUDED -FOR USE AT YOUR OPTION. IF YOU CHOOSE TO USE SUCH THIRD PARTY SOFTWARE, THEN -SUCH USE SHALL BE GOVERNED BY SUCH THIRD PARTY'S LICENSE AGREEMENT, AN -ELECTRONIC COPY OF WHICH WILL BE INSTALLED IN THE APPROPRIATE RN PRODUCT -FOLDER ON YOUR COMPUTER UPON INSTALLATION OF THE SOFTWARE. RN IS NOT -RESPONSIBLE FOR ANY THIRD PARTY?S SOFTWARE AND SHALL HAVE NO LIABILITY FOR -YOUR USE OF THIRD PARTY SOFTWARE. - -In consideration of the rights and licenses granted below, Licensee hereby -agrees as follows: - - -DEFINITIONS - - - - -"API," or application programming interface, means the specific method -prescribed by a - -computer operating system or by another application program (such as -RealSystem Server) by which a programmer writing an application program -(such as a plugin) can make requests of the operating system or another -application. - - - -"Break Interoperability" means to: (i) Transcode, Convert or Encapsulate RN -Media Files; and/or -(ii) to impair or disable programs or applications that have been licensed -by RN to create, access, or utilizeuse RN Media Files by exposing a means or -method by which such programs or applications access or utilizeuse RN Media -Files. - - - -"Code" means the APIs, Header Files, and Sample from the SDK, collectively. - - - -"Compromise Interoperability" means exposing a means or method (including, -but not limited to, - -publicly defined interfaces or debugging information left in a Licensee -Application) by which other programs, plug-ins, or applications can access -or utilizeuse: (i) the function of any part of this SDK or the RealPlayer; -or (ii) Content extracted from RN Media Content. - - - -"Content" means digital audio (including, but not limited to, -timeline-synchronized audio, music, -voice, or sounds), digital video, and other digital information including -data, text (including, but not limited to, script command data and related -metadata such as a song title or an artist?s name), animation, graphics, -photographs, and artwork, and combinations of any or all of the foregoing. - - - -"Convert" means: : (i) to decompose RN Media Content into one or more pieces -of Content, and -then to recompose into any form other than RN Media Content; or (ii) to -remove any DRM protection from RN Media Content for any purpose not -explicitly authorized by the DRM Flags of the license for that Content, -including, but not limited to, writing that unprotected DRM Content to disk -or to a network. - - - -"Copy Switch Bit" is the flag in the file header of RN Media Files that is -set when the files are -encoded and indicates whether the content creator has authorized duplication -of its content. - - - -"Digital Rights Management Systems" or "DRMs" are plugins to, or components -of, certain RN -Client and server products designed to manage and enforce intellectual -property rights in digital content, including RN?s proprietary digital -rights management software that enables enforcement of business rules and -license-based access to RN Media Files, consistent with the terms and -conditions of this Agreement. - - - -"Encapsulate" means to place any form of containment around or to remove -such containment -from any portion or entirety of Content in RN Media Files, with the -exception of standard file-system and network protocol containment not -specific to the form or function of any digital media playing software. For -purposes of this definition of "Encapsulate," example protocol and standard -file- system exceptions include, but are not limited to, the Windows File -Allocation Table file system, and the TCP/IP network protocol. - - - -"Header File" means a text file that defines the interfaces available to a -programmer. A Header -File contains APIs. At the time of SDK installation, the Header Files are -located in the subfolder named "include" in the folder named "rmasdk." - - - -"Licensee Application" means the software application developed by Licensee -that uses the APIs -and the Header Files contained in the SDK, or any part of this SDK, and may -include the Sample. Licensee Application may not be designed for or intended -to be used as a replacement of the SDK for use by third parties to develop -other software products or programs (e.g., software development tools). - - - -"New Version" means any update, upgrade, and any and all corrections, -modifications, -enhancements, bug fixes, or successor versions of the SDK issued by RN -during the Term, and any update, upgrade, and any and all corrections, -modifications, enhancements, bug fixes, or successor versions to the -Licensee Application created by Licensee during the Term. - - - -"RN AutoUupdate Serviceystem" means the method by which, in the RealSystem, -end users can -elect to receive automatic plugin updates to their RealPlayer or RealJukebox -software. - - - -"RN Client" means any RN client application used for playing multimedia, -including RealPlayer, -RealJukebox and RealDownload and any future versions. - - - -"RN Marks" means RealAudio®, RealVideo®, RealPlayer®, RealSystem®, -RealSystem® Server, -RealJukebox®, and such other trademarks or registered trademarks of RN, as -RN may make available to Licensee from time to time. - - - -"RN Media File(s)" or "RN Media Content" means any Content encoded in -RealAudio, RealVideo, -or any other RN codec or secured by the RN DRM, including any file with the -.ra, .rms, or .rm file format, and also includes without limitation, audio, -video or other media, as applicable. - - - -"RN MIME Type" means the MIME registry, browser preferences, or local -file/protocol associations -invoking any RN Client application for playback of RealAudio, RealVideo, RN -DRM, other RealMedia MIME types or datatypes (e.g., .ram, .rnx, .rpm, .ra, -.rm, .rp, .rt, .rf, .prx, .mpe, .rmp, .rmj, .rav, .rjs, .rmx, .rjt, .rms), -other RN-specific or proprietary MIME types that RN may introduce in the -future, or any MIME types or file/protocol associations that can be played -back by an RN Client. For the purposes of this Agreement, "MIME type" means -a description of what type of media or other content is in a file, including -by way of example but not limited to 'audio/x-pn-realaudio-plugin.? - - - -"Sample" means the sample plugin included in the SDK, which, at the time of -SDK installation, is -located in the sub-folder named "sample" in the folder named "rmasdk." - - - -"Transcode" means to alter the current encoding or form of music files that -was decoded from its -original form, including by way of example but not limited to: (i) -decompression of an audio or video stream and recompression using a -different compression algorithm; and (ii) decompression of an audio or video -stream and recompression using the same compression algorithm but with -different settings. "Transcode" includes Converting. - - - -LICENSE TO DEVELOP - - - - -License Grant. Subject to the provisions contained herein, RN hereby grants -Licensee a limited, - - -non-exclusive, royalty-free license to install and use the SDK solely for -the purpose of developing a Licensee Application. - - - -Integration of Sample with Licensee Application. RN grants Licensee a -limited, non-exclusive, -nontransferable, royalty-free license to use, modify, adapt, and reproduce -the Sample solely as an integrated component of the Licensee Application. - - - -Use of APIs and Integration of Header Files with Licensee Application. RN -grants Licensee a -limited, non-exclusive, royalty-free right to use but not reproduce the APIs -and use and reproduce the compiled object code versions of the unmodified -Header Files solely as integrated components of the Licensee Application. - - - -SDK Use. Licensee will only use the SDK on a single computer or on its -internal computer -network, providing that each person accessing the SDK through the network -abides by this Agreement. Licensee may download the online documentation, if -any, in conjunction with the SDK, but may not make further copies of any -printed or electronically transmitted materials accompanying the SDK. - - - -Limitations on Licensee Application. Licensee Application must be designed, -developed, and -tested to function with a RN commercial server and not degrade or in any way -impair the functionality of any RN product. The SDK may not be used to -develop a Licensee Application that: - - - - -encodes, serves, or plays a file format competitive to any RN file format, -as determined by RN in -its sole discretion; - - - -Transcodes RN media files into any other file format or is used as part of a -system that -Transcodes RN media files into any other file format; - - - -contains any third party product or any Licensee product that is competitive -with an RN product; - - - -markets or sells competitive products to RN product end users; - - - -exposes or otherwise makes available to other applications or third parties -any media files stored - - -on the end user?s computer hard drive; - - - -contains any code that disrupts, disables, harms, or otherwise impedes the -operation of RN -products or any other software, firmware, hardware, computer system or -network (sometimes referred to as "viruses" or "worms"); - - - -accesses any end user's computer to disable or impair any end user's -software or hardware -(sometimes referred to as "traps," "access codes" or "trap door" devices), -or to track such end user?s behavior; - - - -contains any other similar harmful, malicious or hidden procedures, routines -or mechanisms -which would damage or corrupt data, storage media, programs, equipment or -communications, or otherwise interfere with operations; or - - - -has any autoupdate functionality independent of the RN AutoUpdate Service. - - - -The SDK further may not be used in any way to create software that serves, -downloads, delivers, or distributes audio, video, or other media files -across the Internet or any computer network, or that uses any SDK component -to encode content. - -Interoperability. Licensee shall not develop or have developed any Licensee -Application which -Breaks Interoperability or Compromises Interoperability. Licensee may not -expose any of the APIs in this SDK to any other application or person, and -may not use or include any part of this SDK as part of any other software -development kit without the express written approval of a RN vice president. - - - -Use of RN MIME Types. Licensee Application will not change the RN MIME -Types. Licensee may -not create any Licensee Application that plays back any RN Media Content. -Licensee Applications must comply with the file extension and metafile usage -and format requirements and guidelines as provided by RN in this Agreement, -as may be modified upon reasonable notice from RN from time to time. -Licensee will not suggest to the end user that it may change, or otherwise -encourage the user to change, the default player to be used with such files, -or any other files or RN MIME Types for which an RN Client is set as the end -user?s default player, without RN's prior written consent. For any other -non-RN MIME types for which the RN Client is not currently set as the end -user?s default player, but that can be played back by an RN Client, Licensee -agrees that it will not change the MIME registry, browser preferences, -protocol associations, or local file associations invoking an RN Client -without first presenting the user with a dialog box or sequence of dialog -boxes informing them of the fact that they already have the RN Client as the -default player for such files and of the consequences of making a change and -asking the user whether the user wants to change the default player. Such -communication will not state or imply that there is a problem with -continuing to use the RN Client. When asking for permission to become the -default program Licensee shall provide to the user an explanation of any -limitations on Licensee's program's ability to read and/or write the type(s) -of files that Licensee is proposing to take by default. If Licensee's -program encounters a specific file that it cannot read or play, and if the -RN Client does play that file, Licensee will point the user to information -on how he or she can download the RN Client. - - - -Copy Switch Bit. Licensee Application must detect and abide by the intent -and setting of the Copy -Switch Bit before attempting to make a digital recording of RN Media Files. - - - -DRMs. DRMs included in, compatible with, or later added to RN Clients may be -able to prevent -Licensee Application?s ability to use RN Content protected by the DRM. The -Licensee Application may not take any action to circumvent or defeat the -security or content usage rules provided or enforced by either the DRM or -any RN Client product. To ensure Licensee Application compatibility with -DRMs requires development with a separate RN software development kit, and -the signing of a separate RN license agreement. - - - -Privacy Requirements. In the event that Licensee, through the Licensee -Application or any -individual component thereof, desires to communicate with, track end user -information of, or collect any personally identifiable information from an -end user of the Licensee Application, Licensee will: - - - - -post its privacy statement applicable to the Licensee Application/component -on its website; - - - -clearly disclose to end users what information is being collected; - - - -enable end users to opt-out of receiving emails or other communications -resulting from the - - -information that is collected; - - - -clearly disclose any communications or tracking features (including -anonymous tracking across -websites) and allow users to opt out of such features; - - - -receive explicit opt-in consent from each end user for any personally -identifiable information, -including personally identifiable tracking information, that is collected -from such end user; and - - - -not sell, rent or disclose to third parties any personally identifiable -information collected from end -users in connection with the Licensee Application/component without the end -user's express consent. - - -Notwithstanding the foregoing, Licensee will be free to use such information -collected from users in order to inform such users of specific security -problems, system problems, patches necessary to ensure proper operation of -the system and the like, or for customer service purposes, unless an end -user has opted-out of receiving further emails or other communications from -Licensee. Licensee will not use any information which personally identifies, -selects, or categorizes end users as users of the RN products, and will not -gather, track or otherwise collect information concerning a user?s specific -uses of RN products. - -RN Copyright Notice in Licensee Application. Licensee must provide -attribution to RN in the -"About" box or user interface of the Licensee Application in the form and -manner prescribed and approved by RN (current attribution form: RealSystem® -technology is provided under license from RealNetworks, Inc., copyright © -1995-2002 RealNetworks, Inc. and/or its suppliers. P.O. Box 91123, Seattle, -Washington 98111-9223, U.S.A. Patents Pending. All rights reserved. -RealNetworks and RealSystem are registered trademarks of RealNetworks, -Inc.). To assure compliance with this Section, on RN's reasonable request, -Licensee will furnish RN with samples of attribution in and/or on Licensee -Application. Upon notice by RN that Licensee?s attribution does not comply -with this Agreement, Licensee will, within a reasonable period of time, make -all requested changes. - - - -RealJukebox Plugins. Licensee Applications created with this SDK that are -plugins specifically -intended for the RN Client currently known as RealJukebox may not have full -functionality with such RN Client. If Licensee wishes to ensure Licensee -Application compatibility with RealJukebox, contact -realjukebox-approval@real.com for further information. - - - -SDK New Versions. For each New Version of the SDK released by RN during the -Term, Licensee -will create a Licensee Application New Version within six (6) months of such -release to be compatible with the SDK New Version. - - - -No Other Use. Except as expressly provided herein, or to the extent -expressly allowed by law, -Licensee will not copy, modify, reproduce, display, decompile, reverse -engineer, store, translate, sell, sublicense, lease or otherwise transfer or -distribute the Code, in whole or in part, nor may Licensee use the Code with -the intent to clone any proprietary client or server software product -proprietary to RN. All rights not specifically granted herein to Licensee -are reserved to RN. - -DISTRIBUTION LICENSE TO LICENSEE - - - - -Licensee Distribution of Licensee Application. Subject to the limitations -set forth herein, RN hereby grants Licensee a non-exclusive, -non-transferable, non-sublicensable, royalty-free license to distribute to -end users the Licensee Application created using production versions of the -SDK only if Licensee Application contains only the Code required for the -execution of Licensee Application. For any SDK in beta or pre-release form, -the following restrictions will apply: (i) if distributing a beta version of -the Code, Licensee will clearly mark Licensee Application as either "beta" -or "pre- release;" (ii) Licensee may not use the beta version of any SDK -component, or distribute or have distributed the beta version of Code, in a -live operating environment where such may be relied upon to perform in the -same manner as a commercially released product, nor may Licensee use such -beta SDK components with data that has not been sufficiently backed up; -(iii) Licensee understands that beta or pre-release versions of SDK -components may be changed substantially before the final commercial release; -(iv) Licensee may not use the SDK components for benchmark or performance -testing; (v) if Licensee has distributed or had distributed as permitted by -this Agreement a beta version of the Code, Licensee will be solely -responsible for updating Licensee?s customer end users with versions of any -Licensee Application that operates satisfactorily with the final commercial -release of such Code; (vi) for Licensees providing reasonable feedback to -RN, including but not limited to usability, bug reports and test results, -with respect to the testing of the SDK or any component thereof, such -feedback should be directed to supportsdk@real.com; (vii) Licensee will use -reasonable efforts to review and comment on all documentation supplied; -(viii) any and all bug reports, test results and other feedback made by -Licensee will be the property of RN and may be used by RN for any purpose it -sees fit; and (ix) Licensee understands and acknowledges that, due to the -nature of the development work, RN may not correct errors or discrepancies -in the SDK by the time of final release. - - - -End User License Agreement Requirements. Any distribution of the Licensee -Application will be -under the terms of an End User License Agreement containing terms that: - - - - -License use of the Code only as an integrated component of the Licensee -Application; - - - -Prohibit any modifications to the Code; - - - -Prohibit any distribution of the Code separate from the Licensee -Application; - - - -Prohibit transfer or assignment of the Code; - - - -Prohibit the reverse engineering, disassembly or decompilation of the Code; - - - -Disclaim any and all warranties on behalf of RN; - - - -Disclaim, to the extent permitted by applicable law, RN?s liability for any -damages, whether - - - - - - -direct, indirect, incidental or consequential, arising from the use of the -Code and/or the Licensee Application; - - - -Require the end user to comply fully with all relevant export laws and -regulations of the United -States to assure that the Licensee Application or the SDK is not exported, -directly or indirectly, in violation of United States law. - - - -Inform the end user that in order to protect the integrity of certain third -party content, DRMs may -impair the Licensee Application. - - - -License to Use RN Marks. RN hereby grants to Licensee a non-exclusive, -limited license to use, -and Licensee agrees that it will always use, RN Marks solely in connection -with Licensee's distribution of Licensee Application. Licensee will only use -the RN Marks in the form and manner set forth in RN's Trademark Usage -Guidelines found at http://www.realnetworks.com/company/logos/ policy.html. - - - -Limitations on RN Marks. Licensee may use RN Marks for the sole purpose of -informing users that -applications developed through the use of the SDK are compatible with RN's -technology. Licensee will not use any RN Mark in a way which may imply that -Licensee is affiliated with or related to RN, or that RN endorses any of -Licensee's products or services. Licensee's use of any RN Mark in connection -with this Agreement will not create any right, title or interest, in or to -the use of the RN Marks and all such use and goodwill associated with the RN -Marks will inure to the benefit of RN. Licensee further acknowledges and -agrees that it will not have the right to use any trademarks associated with -third party technologies (e.g., Dolby, MP3, etc.) contained within any RN -products without first obtaining a separate trademark license from such -third party. - - - -Branding. Licensee will place RN?s corporate logo ("RN Logo"), available for -download at http:// -www.real.com/company/guide/logos/index.html, on the Licensee Application -download page, on the main Licensee Application description page, in -Licensee Application product installer, on Licensee Application marketing -materials, and on Licensee Application CDs and product packaging. Licensee -Application and its installation process windows, product packaging, -website, and marketing materials must give equal or more prominent -attribution to RN in all instances and in the same manner where any -attribution is made to any third party company?s technology, products, or -services. - - - -Licensee Application Registration with RN. Prior to commencing distribution -of the Licensee -Application, Licensee must send or fax two signed copies of this Agreement -to RN at the address listed in Section 12, including reasonable information -regarding the Licensee Application. A printable version of this Agreement is -available at http://partners.real.com/distlicenses.html. - - - -Sample Copies of Licensee Application to RN. Licensee will promptly provide -RN with two -packaged copies of any Licensee Applications, including associated -documentation, upon RN?s request. RN may use the copies for testing and -evaluation purposes only. RN reserves the right to terminate the -distribution rights contained in this Agreement in the event that RN?s -testing demonstrates that the Licensee Application is not fully compatible -with any RN product or otherwise violates the terms of this Agreement. Prior -to terminating the Licensee?s distribution rights under this Section, RN -will provide Licensee with notice and a reasonable opportunity to cure, not -to exceed 30 days. - - - -No AutoUupdate. RN will not post Licensee Applications developed under this -Agreement on RN?s -AutoUupdate Serviceystem for delivery to end users of the RealPlayer or -RealJukeboxan RN Client unless RN and Licensee enter into a signed amendment -providing for such distribution (an "AutoUupdate Amendment"). RN reserves -the right to decline to enter into an AutoUupdate Amendment for any Licensee -Application. To apply for an AutoUupdate Amendment, please contact RN at -partners@real.com. - - - -No OEM. This Agreement does not allow distribution of the Licensee -Application through Original -Equipment Manufacturers ("OEMs") s or other third party distributors. If -Licensee would like to request OEM distribution rights, please submit a -request by sending email to partners@real.com. RN reserves the right to -decline to enter into an agreement to allow OEM distribution. - - - -No Other Distribution. Except as provided in this Section 3, no distribution -of any other part of the -SDK (such as the documentation included with the SDK) is allowed under this -Agreement. - - - -PRODUCT MAINTENANCE & TECHNICAL SUPPORT - - - - -RN is not obligated to provide maintenance, updates, or technical support to -Licensee for the SDK. However, any maintenance or updates provided by RN -will be governed by this Agreement, unless expressly subject to the terms of -another written agreement between the parties. Licensee will be solely -responsible for providing, and agrees that it will provide, customer, -technical, and help desk support to end users for the Licensee Application. -RN will refer to Licensee all customer support inquiries regarding the -Licensee Application. - -SOFTWARE OWNERSHIP - - - - -RN?s Ownership. Title, ownership rights and intellectual property rights in -and to the SDK, - - -accompanying printed materials, and any copies Licensee is permitted to make -herein are owned by RN or its suppliers and are protected by United States -copyright law and international treaty provisions. Licensee may (a) make one -copy of the SDK solely for backup or archival purposes (in accordance with -customary practices for such purpose), provided such copy must contain all -of the original SDK?s proprietary notices; or (b) transfer the SDK to a -single hard disk, provided Licensee keeps the original solely for backup or -archival purposes. Licensee?s rights to use the SDK are specified in this -Agreement, and RN retains all rights not expressly granted to Licensee in -this Agreement. Nothing in this Agreement constitutes a waiver of RN's -rights under U.S. or international copyright law or any other federal or -state law. - - - -Licensee?s Ownership. Title, ownership rights, and intellectual property -rights in and to the -Licensee Application are owned by Licensee, with the exception of RN?s -ownership as defined herein. - - - -DISCLAIMER OF WARRANTY - - - - -The SDK is deemed accepted by Licensee. The SDK is provided to Licensee AS -IS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED -BYAPPLICABLE LAW, RN FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT -LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A -PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE -USE OR PERFORMANCE OF THE SDK AND DOCUMENTATION REMAINS WITH LICENSEE. TO -THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL RN OR ITS -SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, -PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, -DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF -BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT -OR THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF RN HAS BEEN ADVISED -OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT -ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR -INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. RN?S -ENTIRE LIABILITY UNDER THIS AGREEMENT FOR ANY REASON WILL NOT EXCEED $50.00. - -INDEMNIFICATION - - - - -Indemnity. Licensee will, at its expense and RN?s request, defend any claim -or action brought by - - -a third party against RN, or hold harmless, indemnify, and defend RN -affiliates, its officers, directors, and/or employees, arising out of or -related to the Licensee Application ("Licensee Claims"). Licensee will -indemnify and hold RN harmless from and against any claim, suit, or -proceeding and any losses, damages, fines, and expenses (including -attorneys? fees and costs) arising out of or relating to any claims that -Licensee?s use of the SDK in conjunction with the Licensee Application -infringes the patent, copyright, trademark, trade secret, or other -proprietary rights of any third party, or resulting from any breach of this -agreement. Licensee will indemnify and hold RN harmless from and against any -costs, damages, and fees incurred by RN, including but not limited to fees -of outside attorneys and other professionals, that are attributable to such -Licensee Claims. RN will: (i) provide Licensee reasonably prompt notice in -writing of any such Licensee Claims and permit Licensee, through counsel -chosen by Licensee, to answer and defend such Licensee Claims; and (ii) -provide the entity defending such claim information, assistance, and -authority, at such entity?s expense, to help defend such Licensee Claims. -Licensee will not be responsible for any settlement made by RN without -Licensee?s written permission, which permission will not be unreasonably -withheld or delayed. Licensee will consult with RN on the choice of any -counsel under this Section. - - - -Settlement by Licensee. Unless Licensee obtains for RN a complete release of -all Licensee Claims -hereunder, without any admission of wrongdoing or liability, Licensee may -not settle any Licensee Claim under this Section on RN?s behalf without -first obtaining RN?s written permission, which permission will not be -unreasonably withheld or delayed. In the event Licensee and RN agree to -settle a Licensee Claim, Licensee agrees to not disclose terms of the -settlement without first obtaining RN?s written permission. - - - -TERM AND TERMINATION - - - - -Term. This Agreement will be in effect for one (1) year after the Effective -Date ("Term"). - - -Thereafter the Agreement will automatically renew for additional terms of -one year each unless terminated in accordance with this Agreement. - - - -Termination. Either party may terminate this Agreement without cause by -giving written notice at -least thirty (30) days prior to the end of the Term. After the initial one -(1) year Term, RN may terminate this Agreement without cause by giving sixty -(60) days? prior written notice. Without prejudice to any other rights, -either party may terminate this Agreement immediately if the other party -materially breaches this Agreement and fails to cure such breach within ten -(10) days after receiving notice of such breach, and RN may immediately -terminate this Agreement with no prior notice for Licensee?s breach of -Sections 2e, 2f, 2g, 2h or 2i. - - - -Effect of Termination. Upon termination of this Agreement, Licensee will -immediately discontinue -the use of the SDK and distribution of any Licensee Applications and will -within five (5) days either return to RN, or certify destruction of, all -full or partial copies of the SDK, documentation and related materials -provided by RN. The provisions of Sections 5 through 14 will survive any -termination of this Agreement, except that RN?s distribution rights will -terminate if this Agreement is terminated for RN?s breach. Termination will -not affect the rights of end users to continue using copies of the Licensee -Application already distributed. - - - -ASSIGNMENT - - - - -This Agreement is personal to Licensee. Licensee may not assign, transfer, -or otherwise dispose of this Agreement, or any rights or obligations -hereunder, without RN?s prior written consent, including pursuant to a -"Change of Control." As used herein, a Change of Control means (a) a sale of -all or substantially all of Licensee?s assets to another entity; (b) the -assignment, transfer, or other disposition of the majority of Licensee?s -equity securities; or (c) a merger of Licensee with another entity, if as a -result of the transaction the holders of a majority or Licensee?s equity -securities before the transaction hold less than a majority of the voting -securities of the surviving entity. Notwithstanding the foregoing, if RN -does not consent to an assignment of the Agreement pursuant to a Change of -Control, Licensee may terminate this Agreement upon notice to RN. This -Agreement will be binding upon and inure to the benefit of the parties, -their successors and permitted assigns. - -NO REVENUE PARTICIPATION - - - - -Nothing in this Agreement provides any right, express or implied, for either -party concerning the other party?s revenue from any source. Nothing in this -Agreement provides a right to Licensee to participate in any way in revenue -derived by RN from any RN product or other proprietary technology, and -nothing in this Agreement provides a right to RN to participate in any way -in revenue derived by Licensee from the Licensee Application or any other -Licensee proprietary technology. Each party is responsible for any cost or -expenses it incurs in connection with its performance under this Agreement, -except as otherwise provided herein. - -GOVERNING LAW; ATTORNEYS' FEES - - - - -This Agreement will be governed by the laws of the State of Washington. -Licensee consents to exclusive jurisdiction by the state and federal courts -sitting in the State of Washington. 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. If RN employs -attorneys to enforce any rights arising out of or relating to this -Agreement, RN will be entitled to recover reasonable attorneys' fees in the -event it prevails. - -NOTICES - - - -All notices, including notices of change of address, required to be sent -hereunder will be in writing - - -and will be deemed effective upon personal delivery (including courier -service), overnight mail delivery, or five (5) days after deposit, postage -prepaid, in registered or certified mail, properly addressed as set forth -below: -RN: -RealNetworks, Inc. -Attn: General Counsel -2601 Elliott Ave., Suite 1000 -Seattle, WA 98121 -U.S.A. - -cc: GM, Developer and Partner Relations - -MISCELLANEOUS - IMPORTANT - - -This Agreement constitutes the complete and exclusive agreement between RN -and Licensee with respect to the subject matter hereof, and supersedes all -prior oral or written understandings, communications or agreements not -specifically incorporated herein. The relationship of RN and Licensee is -that of independent contractors, and nothing contained in this Agreement -will be construed to (a) give either party the power to direct and control -the activities of the other; (b) constitute the parties as partners, joint -venturers, co-owners or otherwise as participants in a joint undertaking; or -(c) allow either party to create or assume any obligation on behalf of the -other party for any purpose whatsoever. Each party is solely responsible for -the payment of its own costs and expenses including, without limitation, -payments on behalf of its agents, contractors, and employees in connection -with this Agreement. This Agreement may not be modified except in writing -duly signed by an authorized representative of RN and Licensee. The waiver -by either party of any breach of this Agreement by the other party will not -waive subsequent defaults by such party of the same or a different kind. If -any provision of this Agreement is held to be unenforceable for any reason, -such provision will be reformed only to the extent necessary to make it -enforceable, and such decision will not affect the enforceability (i) of -such provision under other circumstances, or (ii) of the remaining -provisions hereof under all circumstances. The failure of any party to -enforce any of the provisions hereof will not be construed to be a waiver of -the right of such party thereafter to enforce such provisions. Any and all -remedies herein expressly conferred upon a party will be deemed cumulative -and not exclusive of any remedy conferred hereby or by law, and the exercise -of any one remedy will not preclude the exercise of any other. Headings will -not be considered in interpreting this Agreement. - -U.S. GOVERNMENT RESTRICTED RIGHTS AND EXPORT RESTRICTIONS - - - - -Use, duplication, or disclosure by the Government is subject to restrictions -as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and -Computer Software clause of DFARS 252.227-7013 or subparagraphs (c)(i) and -(2) of the Commercial Computer Software-Restricted Rights at 48 CFR -52.227-19, as applicable. Manufacturer is RealNetworks, 2601 Elliott Avenue, -Suite 1000, Seattle, Washington 98121. Licensee acknowledges that neither -the SDK or underlying information or technology may be downloaded or -otherwise exported or re-exported: (i) into (or to a national or resident -of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to -which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury -Department's list of Specially Designated Nationals or the U.S. Commerce -Department's Table of Denial Orders. By using the SDK, Licensee is agreeing -to the foregoing and is representing and warranting that it is not located -in or under the control of, a national or resident of any such country or on -any such list. - - |