IMPORTANT -- READ CAREFULLY BEFORE USING THIS SOFTWARE: This Helix Producer SDK License Agreement ("Agreement"), is a legal agreement between you (either as an individual developer or as a developer representative and on behalf of a single entity, known herein as "Licensee"), and RealNetworks, Inc. and its suppliers and licensors (collectively, "RN") for the use of the Helix Producer Software Development Kit 9 from RealNetworks ("SDK"), which includes computer software and associated media and printed materials, whether provided in physical form or received on-line in electronic form, and is for the sole purpose of developing and distributing the Licensee Application (as defined below). By choosing "Accept," "I Agree," 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 Agreement, select "I do not accept," "Cancel," or "No," and uninstall and delete the Software.
YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT, 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. REALNETWORKS 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:
1. DEFINITIONS
(a) "API," or application programming interface, means the specific method prescribed by a computer operating system or by another application program (such as RealNetworks Server) by which a programmer writing an application program (such as a plug-in) can make requests of the operating system or the application program.
(b) "Break Interoperability" means to: (i) Transcode, Convert or Encapsulate RealMedia Files; and/or (ii) to impair or disable programs or applications that have been licensed by RN to create, access, or use RealMedia Files.
(c) "Code" means the APIs, Header Files, and Sample from the SDK, collectively.
(d) "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 use: (i) the function of any part of this SDK or the RN Client; or (ii) Content extracted from RealMedia Content.
(e) "Content" means digital audio (including, but not limited to, timeline-synchronized audio, music, voice, or sounds), digital video, and other digital information including data, metadata, 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.
(f) "Convert" means: (i) to decompose RealMedia Content into one or more pieces of Content, and then to recompose into any form other than RealMedia Content; or (ii) to remove any DRM protection from RealMedia 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 RealMedia Content to disk or to a network.
(g) "Copy Switch Bit" is the flag in the file header of RealMedia Files that is set when the files are encoded and indicates whether the content creator has authorized duplication of its content.
(h) "Digital Rights Management Systems" or "DRMs" are plug-ins to, or components of, certain RN products that are designed to manage and enforce intellectual property rights in Content, including, but not limited to, RN's proprietary digital rights management software that enables enforcement of business rules and license-based access to RealMedia Files, consistent with the terms and conditions of this Agreement.
(i) ".DLL Files" means the RN proprietary .dll and/or Shared Library files included in the SDK, which, at the time of SDK installation, are located in the BIN directory.
(j) "Encapsulate" means to place any form of containment around any portion or entirety of Content in RealMedia 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.
(k) "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 folder named "include".
(l) "Licensee Application" means the software application developed by Licensee that, subject to the terms and conditions of this Agreement: (i) encodes and saves media files in a RealMedia File format using only the codecs included by RN in the SDK; (ii) delivers a live RealMedia File stream to a RN server; and/or (iii) is an input file reader plug-in, pre-filter plug-in, or post-filter plug-in for use with the command line version of the Helix Producer from RealNetworks or a third party application also built using this SDK. "Input file reader plug-in," "pre-filter plug-in," and "post-filter plug-in" as used herein have the definitions set forth in the documentation accompanying the SDK.
(m) "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.
(n) "Object Code" means a file that contains the compiled version of source code. Object Code contains a sequence of instructions that a computer processor can read, but that, in contrast to source code, is difficult for a person to understand or modify.
(o) "RN AutoUpdate Service" means the method by which, in the RealSystem, end users can elect to receive automatic plug-in updates to their RN Client software.
(p) "RN Client" means any RN client application used for playing multimedia, including RealOne Player, RealPlayer, RealJukebox, and any future versions.
(q) "RN Marks" means RealAudio(r), RealVideo(r), RealOne(tm), RealPlayer(r), RealSystem(r), RealNetworks(r), RealJukebox(r), Helix(tm), and such other trademarks or registered trademarks of RN, as RN may make available to Licensee from time to time.
(r) "RealMedia File(s)" or "RealMedia 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.
(s) "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, .rmvb), 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-plug-in.'
(t) "Sample" means the samples included in the SDK, which consist of source code and a project file for compiling, and are located in the subdirectory of the "samples" directory in the SDK.
(u) "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.
2. LICENSE TO DEVELOP
(a) License Grant. Subject to the provisions contained herein, RN hereby grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license under RN copyrights and trade secret rights to install and use the SDK solely for the purpose of developing Licensee Application.
(b) Integration of Sample with Licensee Application. RN grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license under RN copyrights and trade secret rights to use, modify, and copy the Sample solely as an integrated component of the Licensee Application.
(c) Integration of .DLL Files with Licensee Application. RN grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license under RN copyrights and trade secret rights to use and reproduce the compiled object code versions of the unmodified .DLL Files solely as integrated components of the Licensee Application.
(d) Use of APIs and Integration of Header Files with Licensee Application. RN grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license to, under RN copyrights and trade secret rights, 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.
(e) 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 will not make further copies of any printed or electronically transmitted documentation or other materials accompanying the SDK.
(f) Limitations on Licensee Application. Licensee Application must be designed, developed, and tested to function with RN Clients 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:
(i) uses any SDK component to encode a file format competitive to any RN file format, as determined by RN in its sole discretion;
(ii) serves or plays a file format competitive to any RN file format, as determined by RN in its sole discretion;
(iii) Transcodes RealMedia Files into any other file format or is used as part of a system that Transcodes RealMedia Files into any other file format;
(iv) Breaks Interoperability or Compromises Interoperability;
(v) is designed or intended to be used as a software development kit for use by third parties to develop other software products or programs (unless Licensee has received the express written approval of a RN vice president);
(vi) exposes or otherwise makes available in any way to any applications or third parties (other than the Licensee Application) any of the Code in any form, or media files stored on the end user's computer hard drive;
(vii) 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 (such code sometimes referred to as "viruses" or "worms");
(viii) 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;
(ix) 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
(x) takes any action to circumvent or defeat the security or content usage rules provided or enforced by either a DRM or any RN Client product.
(g) 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 RealMedia 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.
(h) 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 existing RealMedia Files.
(i) 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:
(i) post its privacy statement applicable to the Licensee Application/component on its website;
(ii) clearly disclose to end users what information is being collected;
(ii) enable end users to opt-out of receiving emails or other communications resulting from the information that is collected;
(iv) clearly disclose any communications or tracking features (including anonymous tracking across websites) and allow users to opt out of such features;
(v) 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
(vi) 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.
(j) 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: RealNetworks(r) technology is provided under license from RealNetworks, Inc., copyright (c) 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 is a 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.
(k) 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. The terms of this Agreement may be subject to change from time to time with the release of such SDK New Versions.
(l) No Other Use. Except as expressly provided herein, or to the extent expressly allowed by law, Licensee will not copy, modify, reproduce, display, de-compile, 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.
3. DISTRIBUTION LICENSE TO LICENSEE
(a) Licensee Distribution of Licensee Application. Subject to the limitations set forth herein and to RN's receipt of a fully executed copy of this Agreement, RN hereby grants Licensee a non-exclusive, non-transferable, non-sublicensable, royalty-free license under its copyrights and trade secret rights to distribute to end users the Object Code for 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. Licensee may not create, or purport to create, obligations for RN with respect to the Code, or grant, or purport to grant, to any third party any rights or immunities under RN's intellectual property or proprietary rights in the Code. For any SDK in beta or pre-release form, the following restrictions will also 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 http://www.realnetworks.com/special/producer/button.html?act=feedback&plat=sdk; (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.
(b) 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:
(i) License use of the Code only as an integrated component of the Licensee Application;
(ii) Prohibit any modifications to the Code;
(iii) Prohibit any distribution of the Code separate from the Licensee Application;
(iv) Prohibit transfer or assignment of the Code;
(v) Prohibit the reverse engineering, disassembly or decompilation of the Code;
(vi) Disclaim any and all warranties on behalf of RN;
(vii) 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;
(viii) 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;
(ix) Inform the end user that in order to protect the integrity of certain third party content, DRMs may impair the Licensee Application; and
(x) Inform end users that RN is a 3rd party beneficiary to the End User License Agreement.
(c) 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.
(d) 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 that 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.
(e) Branding. Licensee will place RN's corporate logo ("RN Logo"), available for download at http://www.realnetworks.com/company/logos/index.html, on the Licensee Application download page, on the main web page where Licensee Application is marketed or described, in the 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.
(f) 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 13, including reasonable information regarding the Licensee Application. A printable version of this Agreement is available at http://www.realnetworks.com/resources/sdk/index.html. The signed version of this Agreement shall supercede any terms or conditions Licensee agreed to when downloading or installing the SDK to the extent that any terms or conditions directly conflict.
(g) Sample Copies of Licensee Application to RN. Upon RN's request, Licensee will promptly provide RN with two packaged copies of any Licensee Applications, including associated documentation. 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.
(h) No AutoUpdate. RN will not post Licensee Applications developed under this Agreement on RN's AutoUpdate Service for delivery to end users of an RN Client unless RN and Licensee enter into a signed amendment providing for such distribution (an "AutoUpdate Amendment"). RN reserves the right to decline to enter into an AutoUpdate Amendment for any Licensee Application. To apply for an AutoUpdate Amendment, please contact Developer and Partner Relations pursuant to Section 13.
(i) 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.
4. 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.
5. CONFIDENTIALITY
Licensee acknowledges that the SDK is confidential and trade secret information of RN ("Confidential Information"). Licensee will: (a) keep the Confidential Information in confidence, in the same manner as Licensee maintains its own confidential information, and in no event with less than a reasonable degree of care; (b) use the Confidential Information only for the purposes described herein; (c) limit the disclosure of all Confidential Information received under this Agreement to employees and contractors having a need-to-know, provided that each are under written confidentiality obligations substantially similar to those contained herein; and (d) make no copies of the Confidential Information, in whole or in part, except as allowed herein. Licensee may not otherwise disclose the Confidential Information without the RN's prior written consent. Licensee may disclose Confidential Information to the extent required by law, provided that Licensee gives RN prompt notice to allow RN a reasonable opportunity to obtain a protective order. The restrictions on use and disclosure of Confidential Information as set forth herein shall not apply to information that is independently developed by Licensee without reference to the Confidential Information, as demonstrated by competent evidence.
6. SOFTWARE OWNERSHIP
(a) 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 (i) 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 (ii) 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.
(b) 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.
7. 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.
8. INDEMNIFICATION
(a) 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.
(b) 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.
9. TERM AND TERMINATION
(a) 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.
(b) 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, either party may terminate this Agreement at any time 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 terminate this Agreement immediately, effective upon receipt by Licensee of notice, for Licensee's breach of Sections 2f through 2j.
(c) Effect of Termination. Upon termination of this Agreement, Licensee will immediately discontinue 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.
10. 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.
11. 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.
12. 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.
13. 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: Developer and Partner Relations
14. 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.
15. 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.
Copyright (c) 1995-2002 RealNetworks, Inc. and/or its suppliers. 2601 Elliott Ave., Suite 1000, Seattle, Washington 98121 U.S.A. This product may incorporate one or more of the following: U.S. Patent # 5,854,858; U.S. Patent # 5,917,954; U.S. Patent # 6,112,219. Other U.S. patents pending. All rights reserved. RealNetworks, Helix, RealSystem, RealPlayer, RealJukebox, RealAudio, RealVideo, and RealOne are trademarks or registered trademarks of RealNetworks.
