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Macromedia® Shockwave® w3d File Format Software Development Kit (SDK) License Agreement

This Macromedia Shockwave w3d File Format Software Development Kit (SDK) License Agreement ("Agreement") by and between Macromedia, Inc., a Delaware corporation with principal offices at 600 Townsend St., San Francisco, California 94103 ("Macromedia") and You ("Licensee"), shall be effective as of Licensee??s acceptance hereof ("Effective Date").

 
1. Definitions
 
a. "Director" means the Macromedia® Director® Shockwave® Studio software product.
b. "Errors" mean any reproducible quality assurance issue, failure, or malfunction in a Translator including, but not limited to, the inability to import successfully files outputted by the Products into Director authoring software.
c. "Exporter" means an exporter software product that permits the end user thereof to export in the w3d file format files or data created in the Products.
d. "Importer" means an importer software product that permits the end user thereof to import into Director files outputted in the default file format for the Products.
e. "Object Files" means the object files included in the SDK
f. "Products" means Licensee software product(s) and/or service(s) in which the end users thereof will be able to either (i) output files and data created therewith in the w3d file format through the Exporter or (ii) import, using the Importer, files outputted in the default file format of such Licensee software products into Director.
g. ."Sample Code" means the sample code included in the SDK
h. "SDK" means the sample code, object files, libraries and file format documentation provided to the Licensee pursuant to this Agreement to assist the Licensee in the creation of the Translator.
i. "w3d" means the .w3d file format.
j. "Translator" means Exporter and Importer
 
2. Non Compete
  By entering into this Agreement, Licensee is representing and warranting that (a) Licensee is not a competitor of Macromedia or Intel; (b) Licensee is not an affiliate, wholly-owned subsidiary or parent company of a competitor; and (c) no Licensee employees who will have access to the SDK are officers or directors of competitors or related to employees, officers or directors of competitors.
   
3. Agreements
 
a. Pursuant to the terms and conditions of this Agreement, Licensee is granted a nonexclusive, non-transferable, revocable license (i) to use the SDK within Licensee??s organization and to modify the Sample Code, in each case, for the sole purpose of developing one or more Translators and (ii) to distribute, pursuant to an end-user license agreement that includes, at a minimum, the Minimum EULA Terms (as defined), the object code format of such modified Sample Code and unaltered Object Files, in each case, solely as incorporated in the object code format of one or more Translators. As long as the Product outputs w3d files that can be opened without Errors in the latest version of the Macromedia Director authoring software, Licensee shall be permitted to identify the Licensee's Product as Macromedia® Shockwave® Enabled subject to the terms of the Logo Usage Guidelines located at http://www.macromedia.com/macromedia/style_guide/logos/shockwave_enabled/.
b. Licensee shall provide Macromedia with a golden master of each Translator released or otherwise made available by Licensee. Pursuant to the terms and conditions of this Agreement, Licensee grants to Macromedia a non-exclusive, non-transferable, perpetual, royalty free, worldwide license to use, publicly perform, publicly display, reproduce, and distribute, and sublicense each of such rights to, each Translator in object code format (directly or indirectly, through distributors or resellers, if applicable, or by electronic means).
 
4. Restrictions
  The license granted in Section 3(a) hereof with respect to the SDK shall be subject to the following restrictions, and the licenses granted in Section 3(a) hereof shall terminate immediately without any further action by either party upon breach by the Licensee of any of the following restrictions:
 
   
a. The Licensee shall not make or distribute copies of the SDK, or electronically transfer the SDK, to a third party.
b. The Licensee shall not modify, sell, rent, transfer, resell for profit, distribute the SDK or any part thereof.
c. The Licensee shall not create derivative works based upon, or otherwise use, the SDK or any part thereof other than for the sole purpose of developing a Translator.
d. The SDK shall be used by the Licensee for internal purposes only.
e. Other than for the sole purpose of developing a Translator, the SDK or any software or technology derived or created directly or indirectly therefrom, shall not be used or integrated for any purpose by the Licensee, including but not limited to, developing or creating an application that converts or exports any file or data into a file format other than the w3d file format or that has the capability to read, open or translate w3d files.
f. Licensee agrees to identify the w3d output from within the Product, whether from the Save As, Export, or equivalent menus, as "Shockwave w3d file". The Licensee acknowledges that Macromedia, Director, and Shockwave are each trademarks or registered trademarks of Macromedia and shall be referred to according to the Trademark Usage Guidelines at www.macromedia.com/go/director_trademark.
g. If a Translator shall be added to the Product via a stand-alone plug-in or equivalent, the Licensee agrees to identify such exporter or importer feature, as applicable, as "Shockwave w3d file."
h. h. Any direct or indirect distribution of any Translator by Licensee shall be under the terms of an end user license agreement containing terms that: (i) prohibit any modifications to the Translator or any part thereof, (ii) prohibit any reverse engineering, disassembly or recompilation of the Translator or any part thereof, (iii) disclaim any and all warranties on behalf of Macromedia and each of its licensors, (iv) disclaim, to the extent permitted by applicable law, liability of Macromedia and/or its licensors for any damages, whether direct, indirect, incidental or consequential, arising from the use of the Translator, (v) require the end user to comply fully with all relevant export laws and regulations of the United States to assure that the Translator or any part thereof is not exported, directly or indirectly, in violation of United States law, and (vi) include the appropriate copyright notice (the terms set forth in clauses (i) through (vi) hereof, the "Minimum EULA Terms").
 
5. Updates
  Licensee understands and agrees that Macromedia may amend, modify, change, and cease distribution or production of the SDK at any time. The Licensee understands that this Agreement does not entitle the Licensee to receive any upgrades, updates, or future versions of, or any support for, the SDK.
   
6. Ownership
  Macromedia and its suppliers or licensors if applicable shall retain all right, title, and interest to Director, the SDK, w3d, and any respective part thereof and all intellectual property rights therein (the "Macromedia Property"). All rights not expressly granted herein are reserved by Macromedia and its suppliers or licensors. Licensee and its suppliers or licensors if applicable shall retain all right, title, and interest to those elements of any Translator written or produced by Licensee; provided, however, that nothing in this Agreement, including this Section 6, shall be deemed to transfer, grant or assign any right, title and interest to the Macromedia Property or any other intellectual property of Macromedia, irrespective of whether any portion of the Macromedia Property is incorporated in a Translator, other than the licenses specifically granted under Section 3(a) hereof. All rights not expressly granted herein with respect to the Translators are reserved by Licensee.
   
7. Indemnity
  The Licensee will indemnify and hold Macromedia harmless from any third party claim, loss, or damage (including attorney??s fees) related to the Products or any Translator, the Licensee's use of the SDK or any Translator, the Licensee's inclusion of the Exporter into the Product(s) or any violation or breach by the Licensee of the restrictions and covenants set forth in Section 4 hereof.
   
8. Disclaimer of Warranties and Technical Support
 

THE SDK IS PROVIDED TO THE LICENSEE FREE OF CHARGE, AND ON AN "AS IS" BASIS AND "WITH ALL FAULTS", WITHOUT ANY TECHNICAL SUPPORT OR WARRANTY OF ANY KIND FROM MACROMEDIA. THE LICENSEE ASSUMES ALL RISKS THAT THE SDK IS SUITABLE OR ACCURATE FOR THE LICENSEE'S NEEDS AND THE LICENSEE'S USE OF THE SDK IS AT THE LICENSEE'S OWN DISCRETION AND RISK. MACROMEDIA AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES FOR THE SDK INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT, TITLE OR QUIET ENJOYMENT.

EACH TRANSLATOR IS PROVIDED TO MACROMEDIA FREE OF CHARGE, AND ON AN "AS IS" BASIS AND "WITH ALL FAULTS", WITHOUT ANY TECHNICAL SUPPORT OR WARRANTY OF ANY KIND FROM LICENSEE. MACROMEDIA ASSUMES ALL RISKS THAT ANY TRANSLATOR IS SUITABLE OR ACCURATE FOR MACROMEDIA'S NEEDS AND MACROMEDIA'S USE OF SUCH TRANSLATOR IS AT MACROMEDIA'S OWN DISCRETION AND RISK. LICENSEE DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES FOR ALL TRANSLATORS INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT, TITLE OR QUIET ENJOYMENT.

   
9. Limitation of Damages
 

NEITHER MACROMEDIA NOR ITS SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, OR THE LIKE), ARISING OUT OF THIS AGREEMENT WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, EVEN IF MACROMEDIA OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE LIMITED WARRANTY, EXCLUSIVE REMEDIES AND LIMITED LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MACROMEDIA AND THE LICENSEE. THE LICENSEE AGREES THAT MACROMEDIA WOULD NOT BE ABLE TO PROVIDE THE LICENSES PROVIDED IN SECTION 3 HEREOF ON AN ECONOMIC BASIS WITHOUT SUCH LIMITATIONS. IN NO EVENT WILL MACROMEDIA BE LIABLE FOR ANY AMOUNT GREATER THAN WHAT THE LICENSEE ACTUALLY PAID FOR THE SDK.

OTHER THAN FOR SUCH DAMAGES OR LOSS RESULTING FROM A BREACH OF SECTION 4 HEREOF AND FOR DAMAGES OR LOSS SET FORTH IN SECTION 7 HEREOF, NEITHER LICENSEE NOR ITS SUPPLIERS OR LICENSOR OR LICENSOR??S SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, OR THE LIKE), ARISING OUT OF THIS AGREEMENT WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, EVEN IF LICENSEE OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE LIMITED WARRANTY, EXCLUSIVE REMEDIES AND LIMITED LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LICENSEE AND MACROMEDIA. MACROMEDIA AGREES THAT LICENSEE WOULD NOT BE ABLE TO PROVIDE THE LICENSES PROVIDED IN SECTION 3 HEREOF ON AN ECONOMIC BASIS WITHOUT SUCH LIMITATIONS.

   
10. US Government - Restricted Rights
  Licensee will not export the SDK or any Translator into any country prohibited by the United States Export Administration Act and the regulations thereunder. "This Software is ??Restricted Computer Software.?? Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable."
   
11. TERMINATION
 

Licensee may terminate this Agreement, with or without cause, at any time upon delivery to Macromedia a notice of termination no less than sixty (60) days prior to the effective date of such termination.

If Licensee defaults in the performance of any material provisions of this Agreement other than the provisions of Section 4 hereof, then Macromedia may give written notice to Licensee that if the default is not cured within thirty (30) days, the Agreement shall be terminated. If Macromedia gives such notice and the default is not cured during the thirty-day period, then the Agreement shall terminate immediately without further notice.
This Agreement shall terminate automatically, without notice, (i) upon the institution by or against Licensee of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of Licensee's debts, (ii) upon Licensee's making an assignment for the benefit of creditors, (iii) upon Licensee's dissolution, or (iv) upon any breach by Licensee of any provision of Section 4 hereof.

If this Agreement is terminated for any reason, the provisions of Sections 2, 3(b), 4, 5, 6, 7, 8, 9, 10, 11 and 12 shall survive.

   
12. General
  This Agreement shall be governed by the internal laws of the State of California, without regard to its choice of law rules. This Agreement contains the complete agreement between the Licensee and Macromedia with respect to the subject matter of this Agreement, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by both parties. All questions concerning this Agreement shall be directed to Macromedia, Inc., 600 Townsend Street, San Francisco, CA 94103, Attention: General Counsel.
   
   
 
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