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1 REALSYSTEM SDK AGREEMENT
2 Software License for RealNetworks Products
3
4 IMPORTANT -- READ CAREFULLY BEFORE USING THIS SOFTWARE: This License
5 Agreement for certain RealNetworks Products ("Agreement") is a legal
6 agreement between you (either an individual or an entity, hereafter
7 "Licensee") and RealNetworks, Inc. and its suppliers and licensors
8 (collectively "RN") for use of RN?s RealSystem Software Development Kit
9 ("SDK"), for the sole purpose of developing and distributing the Licensee
10 Application (as defined below). By installing, copying or otherwise using
11 the Software, you agree to be bound by the terms of this Agreement. If you
12 do not agree to the terms of this License Agreement, click on the "cancel"
13 button and/or do not install the Software.
14
15 YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS
16 LICENSE, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
17
18 ANY THIRD PARTY SOFTWARE THAT MAY BE PROVIDED WITH THE SOFTWARE IS INCLUDED
19 FOR USE AT YOUR OPTION. IF YOU CHOOSE TO USE SUCH THIRD PARTY SOFTWARE, THEN
20 SUCH USE SHALL BE GOVERNED BY SUCH THIRD PARTY'S LICENSE AGREEMENT, AN
21 ELECTRONIC COPY OF WHICH WILL BE INSTALLED IN THE APPROPRIATE RN PRODUCT
22 FOLDER ON YOUR COMPUTER UPON INSTALLATION OF THE SOFTWARE. RN IS NOT
23 RESPONSIBLE FOR ANY THIRD PARTY?S SOFTWARE AND SHALL HAVE NO LIABILITY FOR
24 YOUR USE OF THIRD PARTY SOFTWARE.
25
26 In consideration of the rights and licenses granted below, Licensee hereby
27 agrees as follows:
28
29
30 DEFINITIONS
31
32
33
34
35 "API," or application programming interface, means the specific method
36 prescribed by a
37
38 computer operating system or by another application program (such as
39 RealSystem Server) by which a programmer writing an application program
40 (such as a plugin) can make requests of the operating system or another
41 application.
42
43
44
45 "Break Interoperability" means to: (i) Transcode, Convert or Encapsulate RN
46 Media Files; and/or
47 (ii) to impair or disable programs or applications that have been licensed
48 by RN to create, access, or utilizeuse RN Media Files by exposing a means or
49 method by which such programs or applications access or utilizeuse RN Media
50 Files.
51
52
53
54 "Code" means the APIs, Header Files, and Sample from the SDK, collectively.
55
56
57
58 "Compromise Interoperability" means exposing a means or method (including,
59 but not limited to,
60
61 publicly defined interfaces or debugging information left in a Licensee
62 Application) by which other programs, plug-ins, or applications can access
63 or utilizeuse: (i) the function of any part of this SDK or the RealPlayer;
64 or (ii) Content extracted from RN Media Content.
65
66
67
68 "Content" means digital audio (including, but not limited to,
69 timeline-synchronized audio, music,
70 voice, or sounds), digital video, and other digital information including
71 data, text (including, but not limited to, script command data and related
72 metadata such as a song title or an artist?s name), animation, graphics,
73 photographs, and artwork, and combinations of any or all of the foregoing.
74
75
76
77 "Convert" means: : (i) to decompose RN Media Content into one or more pieces
78 of Content, and
79 then to recompose into any form other than RN Media Content; or (ii) to
80 remove any DRM protection from RN Media Content for any purpose not
81 explicitly authorized by the DRM Flags of the license for that Content,
82 including, but not limited to, writing that unprotected DRM Content to disk
83 or to a network.
84
85
86
87 "Copy Switch Bit" is the flag in the file header of RN Media Files that is
88 set when the files are
89 encoded and indicates whether the content creator has authorized duplication
90 of its content.
91
92
93
94 "Digital Rights Management Systems" or "DRMs" are plugins to, or components
95 of, certain RN
96 Client and server products designed to manage and enforce intellectual
97 property rights in digital content, including RN?s proprietary digital
98 rights management software that enables enforcement of business rules and
99 license-based access to RN Media Files, consistent with the terms and
100 conditions of this Agreement.
101
102
103
104 "Encapsulate" means to place any form of containment around or to remove
105 such containment
106 from any portion or entirety of Content in RN Media Files, with the
107 exception of standard file-system and network protocol containment not
108 specific to the form or function of any digital media playing software. For
109 purposes of this definition of "Encapsulate," example protocol and standard
110 file- system exceptions include, but are not limited to, the Windows File
111 Allocation Table file system, and the TCP/IP network protocol.
112
113
114
115 "Header File" means a text file that defines the interfaces available to a
116 programmer. A Header
117 File contains APIs. At the time of SDK installation, the Header Files are
118 located in the subfolder named "include" in the folder named "rmasdk."
119
120
121
122 "Licensee Application" means the software application developed by Licensee
123 that uses the APIs
124 and the Header Files contained in the SDK, or any part of this SDK, and may
125 include the Sample. Licensee Application may not be designed for or intended
126 to be used as a replacement of the SDK for use by third parties to develop
127 other software products or programs (e.g., software development tools).
128
129
130
131 "New Version" means any update, upgrade, and any and all corrections,
132 modifications,
133 enhancements, bug fixes, or successor versions of the SDK issued by RN
134 during the Term, and any update, upgrade, and any and all corrections,
135 modifications, enhancements, bug fixes, or successor versions to the
136 Licensee Application created by Licensee during the Term.
137
138
139
140 "RN AutoUupdate Serviceystem" means the method by which, in the RealSystem,
141 end users can
142 elect to receive automatic plugin updates to their RealPlayer or RealJukebox
143 software.
144
145
146
147 "RN Client" means any RN client application used for playing multimedia,
148 including RealPlayer,
149 RealJukebox and RealDownload and any future versions.
150
151
152
153 "RN Marks" means RealAudio®, RealVideo®, RealPlayer®, RealSystem®,
154 RealSystem® Server,
155 RealJukebox®, and such other trademarks or registered trademarks of RN, as
156 RN may make available to Licensee from time to time.
157
158
159
160 "RN Media File(s)" or "RN Media Content" means any Content encoded in
161 RealAudio, RealVideo,
162 or any other RN codec or secured by the RN DRM, including any file with the
163 .ra, .rms, or .rm file format, and also includes without limitation, audio,
164 video or other media, as applicable.
165
166
167
168 "RN MIME Type" means the MIME registry, browser preferences, or local
169 file/protocol associations
170 invoking any RN Client application for playback of RealAudio, RealVideo, RN
171 DRM, other RealMedia MIME types or datatypes (e.g., .ram, .rnx, .rpm, .ra,
172 .rm, .rp, .rt, .rf, .prx, .mpe, .rmp, .rmj, .rav, .rjs, .rmx, .rjt, .rms),
173 other RN-specific or proprietary MIME types that RN may introduce in the
174 future, or any MIME types or file/protocol associations that can be played
175 back by an RN Client. For the purposes of this Agreement, "MIME type" means
176 a description of what type of media or other content is in a file, including
177 by way of example but not limited to 'audio/x-pn-realaudio-plugin.?
178
179
180
181 "Sample" means the sample plugin included in the SDK, which, at the time of
182 SDK installation, is
183 located in the sub-folder named "sample" in the folder named "rmasdk."
184
185
186
187 "Transcode" means to alter the current encoding or form of music files that
188 was decoded from its
189 original form, including by way of example but not limited to: (i)
190 decompression of an audio or video stream and recompression using a
191 different compression algorithm; and (ii) decompression of an audio or video
192 stream and recompression using the same compression algorithm but with
193 different settings. "Transcode" includes Converting.
194
195
196
197 LICENSE TO DEVELOP
198
199
200
201
202 License Grant. Subject to the provisions contained herein, RN hereby grants
203 Licensee a limited,
204
205
206 non-exclusive, royalty-free license to install and use the SDK solely for
207 the purpose of developing a Licensee Application.
208
209
210
211 Integration of Sample with Licensee Application. RN grants Licensee a
212 limited, non-exclusive,
213 nontransferable, royalty-free license to use, modify, adapt, and reproduce
214 the Sample solely as an integrated component of the Licensee Application.
215
216
217
218 Use of APIs and Integration of Header Files with Licensee Application. RN
219 grants Licensee a
220 limited, non-exclusive, royalty-free right to use but not reproduce the APIs
221 and use and reproduce the compiled object code versions of the unmodified
222 Header Files solely as integrated components of the Licensee Application.
223
224
225
226 SDK Use. Licensee will only use the SDK on a single computer or on its
227 internal computer
228 network, providing that each person accessing the SDK through the network
229 abides by this Agreement. Licensee may download the online documentation, if
230 any, in conjunction with the SDK, but may not make further copies of any
231 printed or electronically transmitted materials accompanying the SDK.
232
233
234
235 Limitations on Licensee Application. Licensee Application must be designed,
236 developed, and
237 tested to function with a RN commercial server and not degrade or in any way
238 impair the functionality of any RN product. The SDK may not be used to
239 develop a Licensee Application that:
240
241
242
243
244 encodes, serves, or plays a file format competitive to any RN file format,
245 as determined by RN in
246 its sole discretion;
247
248
249
250 Transcodes RN media files into any other file format or is used as part of a
251 system that
252 Transcodes RN media files into any other file format;
253
254
255
256 contains any third party product or any Licensee product that is competitive
257 with an RN product;
258
259
260
261 markets or sells competitive products to RN product end users;
262
263
264
265 exposes or otherwise makes available to other applications or third parties
266 any media files stored
267
268
269 on the end user?s computer hard drive;
270
271
272
273 contains any code that disrupts, disables, harms, or otherwise impedes the
274 operation of RN
275 products or any other software, firmware, hardware, computer system or
276 network (sometimes referred to as "viruses" or "worms");
277
278
279
280 accesses any end user's computer to disable or impair any end user's
281 software or hardware
282 (sometimes referred to as "traps," "access codes" or "trap door" devices),
283 or to track such end user?s behavior;
284
285
286
287 contains any other similar harmful, malicious or hidden procedures, routines
288 or mechanisms
289 which would damage or corrupt data, storage media, programs, equipment or
290 communications, or otherwise interfere with operations; or
291
292
293
294 has any autoupdate functionality independent of the RN AutoUpdate Service.
295
296
297
298 The SDK further may not be used in any way to create software that serves,
299 downloads, delivers, or distributes audio, video, or other media files
300 across the Internet or any computer network, or that uses any SDK component
301 to encode content.
302
303 Interoperability. Licensee shall not develop or have developed any Licensee
304 Application which
305 Breaks Interoperability or Compromises Interoperability. Licensee may not
306 expose any of the APIs in this SDK to any other application or person, and
307 may not use or include any part of this SDK as part of any other software
308 development kit without the express written approval of a RN vice president.
309
310
311
312 Use of RN MIME Types. Licensee Application will not change the RN MIME
313 Types. Licensee may
314 not create any Licensee Application that plays back any RN Media Content.
315 Licensee Applications must comply with the file extension and metafile usage
316 and format requirements and guidelines as provided by RN in this Agreement,
317 as may be modified upon reasonable notice from RN from time to time.
318 Licensee will not suggest to the end user that it may change, or otherwise
319 encourage the user to change, the default player to be used with such files,
320 or any other files or RN MIME Types for which an RN Client is set as the end
321 user?s default player, without RN's prior written consent. For any other
322 non-RN MIME types for which the RN Client is not currently set as the end
323 user?s default player, but that can be played back by an RN Client, Licensee
324 agrees that it will not change the MIME registry, browser preferences,
325 protocol associations, or local file associations invoking an RN Client
326 without first presenting the user with a dialog box or sequence of dialog
327 boxes informing them of the fact that they already have the RN Client as the
328 default player for such files and of the consequences of making a change and
329 asking the user whether the user wants to change the default player. Such
330 communication will not state or imply that there is a problem with
331 continuing to use the RN Client. When asking for permission to become the
332 default program Licensee shall provide to the user an explanation of any
333 limitations on Licensee's program's ability to read and/or write the type(s)
334 of files that Licensee is proposing to take by default. If Licensee's
335 program encounters a specific file that it cannot read or play, and if the
336 RN Client does play that file, Licensee will point the user to information
337 on how he or she can download the RN Client.
338
339
340
341 Copy Switch Bit. Licensee Application must detect and abide by the intent
342 and setting of the Copy
343 Switch Bit before attempting to make a digital recording of RN Media Files.
344
345
346
347 DRMs. DRMs included in, compatible with, or later added to RN Clients may be
348 able to prevent
349 Licensee Application?s ability to use RN Content protected by the DRM. The
350 Licensee Application may not take any action to circumvent or defeat the
351 security or content usage rules provided or enforced by either the DRM or
352 any RN Client product. To ensure Licensee Application compatibility with
353 DRMs requires development with a separate RN software development kit, and
354 the signing of a separate RN license agreement.
355
356
357
358 Privacy Requirements. In the event that Licensee, through the Licensee
359 Application or any
360 individual component thereof, desires to communicate with, track end user
361 information of, or collect any personally identifiable information from an
362 end user of the Licensee Application, Licensee will:
363
364
365
366
367 post its privacy statement applicable to the Licensee Application/component
368 on its website;
369
370
371
372 clearly disclose to end users what information is being collected;
373
374
375
376 enable end users to opt-out of receiving emails or other communications
377 resulting from the
378
379
380 information that is collected;
381
382
383
384 clearly disclose any communications or tracking features (including
385 anonymous tracking across
386 websites) and allow users to opt out of such features;
387
388
389
390 receive explicit opt-in consent from each end user for any personally
391 identifiable information,
392 including personally identifiable tracking information, that is collected
393 from such end user; and
394
395
396
397 not sell, rent or disclose to third parties any personally identifiable
398 information collected from end
399 users in connection with the Licensee Application/component without the end
400 user's express consent.
401
402
403 Notwithstanding the foregoing, Licensee will be free to use such information
404 collected from users in order to inform such users of specific security
405 problems, system problems, patches necessary to ensure proper operation of
406 the system and the like, or for customer service purposes, unless an end
407 user has opted-out of receiving further emails or other communications from
408 Licensee. Licensee will not use any information which personally identifies,
409 selects, or categorizes end users as users of the RN products, and will not
410 gather, track or otherwise collect information concerning a user?s specific
411 uses of RN products.
412
413 RN Copyright Notice in Licensee Application. Licensee must provide
414 attribution to RN in the
415 "About" box or user interface of the Licensee Application in the form and
416 manner prescribed and approved by RN (current attribution form: RealSystem®
417 technology is provided under license from RealNetworks, Inc., copyright ©
418 1995-2002 RealNetworks, Inc. and/or its suppliers. P.O. Box 91123, Seattle,
419 Washington 98111-9223, U.S.A. Patents Pending. All rights reserved.
420 RealNetworks and RealSystem are registered trademarks of RealNetworks,
421 Inc.). To assure compliance with this Section, on RN's reasonable request,
422 Licensee will furnish RN with samples of attribution in and/or on Licensee
423 Application. Upon notice by RN that Licensee?s attribution does not comply
424 with this Agreement, Licensee will, within a reasonable period of time, make
425 all requested changes.
426
427
428
429 RealJukebox Plugins. Licensee Applications created with this SDK that are
430 plugins specifically
431 intended for the RN Client currently known as RealJukebox may not have full
432 functionality with such RN Client. If Licensee wishes to ensure Licensee
433 Application compatibility with RealJukebox, contact
434 realjukebox-approval@real.com for further information.
435
436
437
438 SDK New Versions. For each New Version of the SDK released by RN during the
439 Term, Licensee
440 will create a Licensee Application New Version within six (6) months of such
441 release to be compatible with the SDK New Version.
442
443
444
445 No Other Use. Except as expressly provided herein, or to the extent
446 expressly allowed by law,
447 Licensee will not copy, modify, reproduce, display, decompile, reverse
448 engineer, store, translate, sell, sublicense, lease or otherwise transfer or
449 distribute the Code, in whole or in part, nor may Licensee use the Code with
450 the intent to clone any proprietary client or server software product
451 proprietary to RN. All rights not specifically granted herein to Licensee
452 are reserved to RN.
453
454 DISTRIBUTION LICENSE TO LICENSEE
455
456
457
458
459 Licensee Distribution of Licensee Application. Subject to the limitations
460 set forth herein, RN hereby grants Licensee a non-exclusive,
461 non-transferable, non-sublicensable, royalty-free license to distribute to
462 end users the Licensee Application created using production versions of the
463 SDK only if Licensee Application contains only the Code required for the
464 execution of Licensee Application. For any SDK in beta or pre-release form,
465 the following restrictions will apply: (i) if distributing a beta version of
466 the Code, Licensee will clearly mark Licensee Application as either "beta"
467 or "pre- release;" (ii) Licensee may not use the beta version of any SDK
468 component, or distribute or have distributed the beta version of Code, in a
469 live operating environment where such may be relied upon to perform in the
470 same manner as a commercially released product, nor may Licensee use such
471 beta SDK components with data that has not been sufficiently backed up;
472 (iii) Licensee understands that beta or pre-release versions of SDK
473 components may be changed substantially before the final commercial release;
474 (iv) Licensee may not use the SDK components for benchmark or performance
475 testing; (v) if Licensee has distributed or had distributed as permitted by
476 this Agreement a beta version of the Code, Licensee will be solely
477 responsible for updating Licensee?s customer end users with versions of any
478 Licensee Application that operates satisfactorily with the final commercial
479 release of such Code; (vi) for Licensees providing reasonable feedback to
480 RN, including but not limited to usability, bug reports and test results,
481 with respect to the testing of the SDK or any component thereof, such
482 feedback should be directed to supportsdk@real.com; (vii) Licensee will use
483 reasonable efforts to review and comment on all documentation supplied;
484 (viii) any and all bug reports, test results and other feedback made by
485 Licensee will be the property of RN and may be used by RN for any purpose it
486 sees fit; and (ix) Licensee understands and acknowledges that, due to the
487 nature of the development work, RN may not correct errors or discrepancies
488 in the SDK by the time of final release.
489
490
491
492 End User License Agreement Requirements. Any distribution of the Licensee
493 Application will be
494 under the terms of an End User License Agreement containing terms that:
495
496
497
498
499 License use of the Code only as an integrated component of the Licensee
500 Application;
501
502
503
504 Prohibit any modifications to the Code;
505
506
507
508 Prohibit any distribution of the Code separate from the Licensee
509 Application;
510
511
512
513 Prohibit transfer or assignment of the Code;
514
515
516
517 Prohibit the reverse engineering, disassembly or decompilation of the Code;
518
519
520
521 Disclaim any and all warranties on behalf of RN;
522
523
524
525 Disclaim, to the extent permitted by applicable law, RN?s liability for any
526 damages, whether
527
528
529
530
531
532
533 direct, indirect, incidental or consequential, arising from the use of the
534 Code and/or the Licensee Application;
535
536
537
538 Require the end user to comply fully with all relevant export laws and
539 regulations of the United
540 States to assure that the Licensee Application or the SDK is not exported,
541 directly or indirectly, in violation of United States law.
542
543
544
545 Inform the end user that in order to protect the integrity of certain third
546 party content, DRMs may
547 impair the Licensee Application.
548
549
550
551 License to Use RN Marks. RN hereby grants to Licensee a non-exclusive,
552 limited license to use,
553 and Licensee agrees that it will always use, RN Marks solely in connection
554 with Licensee's distribution of Licensee Application. Licensee will only use
555 the RN Marks in the form and manner set forth in RN's Trademark Usage
556 Guidelines found at http://www.realnetworks.com/company/logos/ policy.html.
557
558
559
560 Limitations on RN Marks. Licensee may use RN Marks for the sole purpose of
561 informing users that
562 applications developed through the use of the SDK are compatible with RN's
563 technology. Licensee will not use any RN Mark in a way which may imply that
564 Licensee is affiliated with or related to RN, or that RN endorses any of
565 Licensee's products or services. Licensee's use of any RN Mark in connection
566 with this Agreement will not create any right, title or interest, in or to
567 the use of the RN Marks and all such use and goodwill associated with the RN
568 Marks will inure to the benefit of RN. Licensee further acknowledges and
569 agrees that it will not have the right to use any trademarks associated with
570 third party technologies (e.g., Dolby, MP3, etc.) contained within any RN
571 products without first obtaining a separate trademark license from such
572 third party.
573
574
575
576 Branding. Licensee will place RN?s corporate logo ("RN Logo"), available for
577 download at http://
578 www.real.com/company/guide/logos/index.html, on the Licensee Application
579 download page, on the main Licensee Application description page, in
580 Licensee Application product installer, on Licensee Application marketing
581 materials, and on Licensee Application CDs and product packaging. Licensee
582 Application and its installation process windows, product packaging,
583 website, and marketing materials must give equal or more prominent
584 attribution to RN in all instances and in the same manner where any
585 attribution is made to any third party company?s technology, products, or
586 services.
587
588
589
590 Licensee Application Registration with RN. Prior to commencing distribution
591 of the Licensee
592 Application, Licensee must send or fax two signed copies of this Agreement
593 to RN at the address listed in Section 12, including reasonable information
594 regarding the Licensee Application. A printable version of this Agreement is
595 available at http://partners.real.com/distlicenses.html.
596
597
598
599 Sample Copies of Licensee Application to RN. Licensee will promptly provide
600 RN with two
601 packaged copies of any Licensee Applications, including associated
602 documentation, upon RN?s request. RN may use the copies for testing and
603 evaluation purposes only. RN reserves the right to terminate the
604 distribution rights contained in this Agreement in the event that RN?s
605 testing demonstrates that the Licensee Application is not fully compatible
606 with any RN product or otherwise violates the terms of this Agreement. Prior
607 to terminating the Licensee?s distribution rights under this Section, RN
608 will provide Licensee with notice and a reasonable opportunity to cure, not
609 to exceed 30 days.
610
611
612
613 No AutoUupdate. RN will not post Licensee Applications developed under this
614 Agreement on RN?s
615 AutoUupdate Serviceystem for delivery to end users of the RealPlayer or
616 RealJukeboxan RN Client unless RN and Licensee enter into a signed amendment
617 providing for such distribution (an "AutoUupdate Amendment"). RN reserves
618 the right to decline to enter into an AutoUupdate Amendment for any Licensee
619 Application. To apply for an AutoUupdate Amendment, please contact RN at
620 partners@real.com.
621
622
623
624 No OEM. This Agreement does not allow distribution of the Licensee
625 Application through Original
626 Equipment Manufacturers ("OEMs") s or other third party distributors. If
627 Licensee would like to request OEM distribution rights, please submit a
628 request by sending email to partners@real.com. RN reserves the right to
629 decline to enter into an agreement to allow OEM distribution.
630
631
632
633 No Other Distribution. Except as provided in this Section 3, no distribution
634 of any other part of the
635 SDK (such as the documentation included with the SDK) is allowed under this
636 Agreement.
637
638
639
640 PRODUCT MAINTENANCE & TECHNICAL SUPPORT
641
642
643
644
645 RN is not obligated to provide maintenance, updates, or technical support to
646 Licensee for the SDK. However, any maintenance or updates provided by RN
647 will be governed by this Agreement, unless expressly subject to the terms of
648 another written agreement between the parties. Licensee will be solely
649 responsible for providing, and agrees that it will provide, customer,
650 technical, and help desk support to end users for the Licensee Application.
651 RN will refer to Licensee all customer support inquiries regarding the
652 Licensee Application.
653
654 SOFTWARE OWNERSHIP
655
656
657
658
659 RN?s Ownership. Title, ownership rights and intellectual property rights in
660 and to the SDK,
661
662
663 accompanying printed materials, and any copies Licensee is permitted to make
664 herein are owned by RN or its suppliers and are protected by United States
665 copyright law and international treaty provisions. Licensee may (a) make one
666 copy of the SDK solely for backup or archival purposes (in accordance with
667 customary practices for such purpose), provided such copy must contain all
668 of the original SDK?s proprietary notices; or (b) transfer the SDK to a
669 single hard disk, provided Licensee keeps the original solely for backup or
670 archival purposes. Licensee?s rights to use the SDK are specified in this
671 Agreement, and RN retains all rights not expressly granted to Licensee in
672 this Agreement. Nothing in this Agreement constitutes a waiver of RN's
673 rights under U.S. or international copyright law or any other federal or
674 state law.
675
676
677
678 Licensee?s Ownership. Title, ownership rights, and intellectual property
679 rights in and to the
680 Licensee Application are owned by Licensee, with the exception of RN?s
681 ownership as defined herein.
682
683
684
685 DISCLAIMER OF WARRANTY
686
687
688
689
690 The SDK is deemed accepted by Licensee. The SDK is provided to Licensee AS
691 IS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED
692 BYAPPLICABLE LAW, RN FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT
693 LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
694 PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE
695 USE OR PERFORMANCE OF THE SDK AND DOCUMENTATION REMAINS WITH LICENSEE. TO
696 THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL RN OR ITS
697 SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL,
698 PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
699 DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF
700 BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT
701 OR THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF RN HAS BEEN ADVISED
702 OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT
703 ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR
704 INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. RN?S
705 ENTIRE LIABILITY UNDER THIS AGREEMENT FOR ANY REASON WILL NOT EXCEED $50.00.
706
707 INDEMNIFICATION
708
709
710
711
712 Indemnity. Licensee will, at its expense and RN?s request, defend any claim
713 or action brought by
714
715
716 a third party against RN, or hold harmless, indemnify, and defend RN
717 affiliates, its officers, directors, and/or employees, arising out of or
718 related to the Licensee Application ("Licensee Claims"). Licensee will
719 indemnify and hold RN harmless from and against any claim, suit, or
720 proceeding and any losses, damages, fines, and expenses (including
721 attorneys? fees and costs) arising out of or relating to any claims that
722 Licensee?s use of the SDK in conjunction with the Licensee Application
723 infringes the patent, copyright, trademark, trade secret, or other
724 proprietary rights of any third party, or resulting from any breach of this
725 agreement. Licensee will indemnify and hold RN harmless from and against any
726 costs, damages, and fees incurred by RN, including but not limited to fees
727 of outside attorneys and other professionals, that are attributable to such
728 Licensee Claims. RN will: (i) provide Licensee reasonably prompt notice in
729 writing of any such Licensee Claims and permit Licensee, through counsel
730 chosen by Licensee, to answer and defend such Licensee Claims; and (ii)
731 provide the entity defending such claim information, assistance, and
732 authority, at such entity?s expense, to help defend such Licensee Claims.
733 Licensee will not be responsible for any settlement made by RN without
734 Licensee?s written permission, which permission will not be unreasonably
735 withheld or delayed. Licensee will consult with RN on the choice of any
736 counsel under this Section.
737
738
739
740 Settlement by Licensee. Unless Licensee obtains for RN a complete release of
741 all Licensee Claims
742 hereunder, without any admission of wrongdoing or liability, Licensee may
743 not settle any Licensee Claim under this Section on RN?s behalf without
744 first obtaining RN?s written permission, which permission will not be
745 unreasonably withheld or delayed. In the event Licensee and RN agree to
746 settle a Licensee Claim, Licensee agrees to not disclose terms of the
747 settlement without first obtaining RN?s written permission.
748
749
750
751 TERM AND TERMINATION
752
753
754
755
756 Term. This Agreement will be in effect for one (1) year after the Effective
757 Date ("Term").
758
759
760 Thereafter the Agreement will automatically renew for additional terms of
761 one year each unless terminated in accordance with this Agreement.
762
763
764
765 Termination. Either party may terminate this Agreement without cause by
766 giving written notice at
767 least thirty (30) days prior to the end of the Term. After the initial one
768 (1) year Term, RN may terminate this Agreement without cause by giving sixty
769 (60) days? prior written notice. Without prejudice to any other rights,
770 either party may terminate this Agreement immediately if the other party
771 materially breaches this Agreement and fails to cure such breach within ten
772 (10) days after receiving notice of such breach, and RN may immediately
773 terminate this Agreement with no prior notice for Licensee?s breach of
774 Sections 2e, 2f, 2g, 2h or 2i.
775
776
777
778 Effect of Termination. Upon termination of this Agreement, Licensee will
779 immediately discontinue
780 the use of the SDK and distribution of any Licensee Applications and will
781 within five (5) days either return to RN, or certify destruction of, all
782 full or partial copies of the SDK, documentation and related materials
783 provided by RN. The provisions of Sections 5 through 14 will survive any
784 termination of this Agreement, except that RN?s distribution rights will
785 terminate if this Agreement is terminated for RN?s breach. Termination will
786 not affect the rights of end users to continue using copies of the Licensee
787 Application already distributed.
788
789
790
791 ASSIGNMENT
792
793
794
795
796 This Agreement is personal to Licensee. Licensee may not assign, transfer,
797 or otherwise dispose of this Agreement, or any rights or obligations
798 hereunder, without RN?s prior written consent, including pursuant to a
799 "Change of Control." As used herein, a Change of Control means (a) a sale of
800 all or substantially all of Licensee?s assets to another entity; (b) the
801 assignment, transfer, or other disposition of the majority of Licensee?s
802 equity securities; or (c) a merger of Licensee with another entity, if as a
803 result of the transaction the holders of a majority or Licensee?s equity
804 securities before the transaction hold less than a majority of the voting
805 securities of the surviving entity. Notwithstanding the foregoing, if RN
806 does not consent to an assignment of the Agreement pursuant to a Change of
807 Control, Licensee may terminate this Agreement upon notice to RN. This
808 Agreement will be binding upon and inure to the benefit of the parties,
809 their successors and permitted assigns.
810
811 NO REVENUE PARTICIPATION
812
813
814
815
816 Nothing in this Agreement provides any right, express or implied, for either
817 party concerning the other party?s revenue from any source. Nothing in this
818 Agreement provides a right to Licensee to participate in any way in revenue
819 derived by RN from any RN product or other proprietary technology, and
820 nothing in this Agreement provides a right to RN to participate in any way
821 in revenue derived by Licensee from the Licensee Application or any other
822 Licensee proprietary technology. Each party is responsible for any cost or
823 expenses it incurs in connection with its performance under this Agreement,
824 except as otherwise provided herein.
825
826 GOVERNING LAW; ATTORNEYS' FEES
827
828
829
830
831 This Agreement will be governed by the laws of the State of Washington.
832 Licensee consents to exclusive jurisdiction by the state and federal courts
833 sitting in the State of Washington. This Agreement will not be governed by
834 the United Nations Convention of Contracts for the International Sale of
835 Goods, the application of which is hereby expressly excluded. If RN employs
836 attorneys to enforce any rights arising out of or relating to this
837 Agreement, RN will be entitled to recover reasonable attorneys' fees in the
838 event it prevails.
839
840 NOTICES
841
842
843
844 All notices, including notices of change of address, required to be sent
845 hereunder will be in writing
846
847
848 and will be deemed effective upon personal delivery (including courier
849 service), overnight mail delivery, or five (5) days after deposit, postage
850 prepaid, in registered or certified mail, properly addressed as set forth
851 below:
852 RN:
853 RealNetworks, Inc.
854 Attn: General Counsel
855 2601 Elliott Ave., Suite 1000
856 Seattle, WA 98121
857 U.S.A.
858
859 cc: GM, Developer and Partner Relations
860
861 MISCELLANEOUS - IMPORTANT
862
863
864 This Agreement constitutes the complete and exclusive agreement between RN
865 and Licensee with respect to the subject matter hereof, and supersedes all
866 prior oral or written understandings, communications or agreements not
867 specifically incorporated herein. The relationship of RN and Licensee is
868 that of independent contractors, and nothing contained in this Agreement
869 will be construed to (a) give either party the power to direct and control
870 the activities of the other; (b) constitute the parties as partners, joint
871 venturers, co-owners or otherwise as participants in a joint undertaking; or
872 (c) allow either party to create or assume any obligation on behalf of the
873 other party for any purpose whatsoever. Each party is solely responsible for
874 the payment of its own costs and expenses including, without limitation,
875 payments on behalf of its agents, contractors, and employees in connection
876 with this Agreement. This Agreement may not be modified except in writing
877 duly signed by an authorized representative of RN and Licensee. The waiver
878 by either party of any breach of this Agreement by the other party will not
879 waive subsequent defaults by such party of the same or a different kind. If
880 any provision of this Agreement is held to be unenforceable for any reason,
881 such provision will be reformed only to the extent necessary to make it
882 enforceable, and such decision will not affect the enforceability (i) of
883 such provision under other circumstances, or (ii) of the remaining
884 provisions hereof under all circumstances. The failure of any party to
885 enforce any of the provisions hereof will not be construed to be a waiver of
886 the right of such party thereafter to enforce such provisions. Any and all
887 remedies herein expressly conferred upon a party will be deemed cumulative
888 and not exclusive of any remedy conferred hereby or by law, and the exercise
889 of any one remedy will not preclude the exercise of any other. Headings will
890 not be considered in interpreting this Agreement.
891
892 U.S. GOVERNMENT RESTRICTED RIGHTS AND EXPORT RESTRICTIONS
893
894
895
896
897 Use, duplication, or disclosure by the Government is subject to restrictions
898 as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and
899 Computer Software clause of DFARS 252.227-7013 or subparagraphs (c)(i) and
900 (2) of the Commercial Computer Software-Restricted Rights at 48 CFR
901 52.227-19, as applicable. Manufacturer is RealNetworks, 2601 Elliott Avenue,
902 Suite 1000, Seattle, Washington 98121. Licensee acknowledges that neither
903 the SDK or underlying information or technology may be downloaded or
904 otherwise exported or re-exported: (i) into (or to a national or resident
905 of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to
906 which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury
907 Department's list of Specially Designated Nationals or the U.S. Commerce
908 Department's Table of Denial Orders. By using the SDK, Licensee is agreeing
909 to the foregoing and is representing and warranting that it is not located
910 in or under the control of, a national or resident of any such country or on
911 any such list.

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