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Macromedia® Shockwave® w3d File Format Software
Development Kit (SDK) License Agreement
This Adobe 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").
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| 1. |
Definitions |
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| 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 |
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| 2. |
Non Compete |
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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. |
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| 3. |
Agreements |
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| 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). |
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| 4. |
Restrictions |
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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: |
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| 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."
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| 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"). |
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| 5. |
Updates |
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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. |
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| 6. |
Ownership |
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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. |
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| 7. |
Indemnity |
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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. |
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| 8. |
Disclaimer of Warranties and
Technical Support |
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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.
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| 9. |
Limitation of Damages |
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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.
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| 10. |
US Government - Restricted
Rights |
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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." |
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| 11. |
TERMINATION |
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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.
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| 12. |
General |
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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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