| NVIDIA VIDEO CODEC SDK LICENSE AGREEMENT (“Agreement”) |
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| BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE AND OTHER AVAILABLE MATERIALS, |
| YOU (“LICENSEE”) AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS OF THIS |
| AGREEMENT. If Licensee does not agree to the terms and condition of this |
| Agreement, THEN do not downLOAD, INSTALL OR USE the SOFTWARE AND MATERIALS. |
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| The materials available for download to Licensees may include software in both |
| sample source code ("Source Code") and object code ("Object Code") versions |
| (collectively, the “Software”), documentation and other materials (collectively, |
| these code and materials referred to herein as "Licensed Materials"). Except as |
| expressly indicated herein, all terms and conditions of this Agreement apply to |
| all of the Licensed Materials. |
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| Except as expressly set forth herein, NVIDIA owns all of the Licensed Materials |
| and makes them available to Licensee only under the terms and conditions set |
| forth in this Agreement. |
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| License: Subject to Licensee’s compliance with the terms of this Agreement, |
| NVIDIA grants to Licensee a nonexclusive, non-transferable, worldwide, |
| royalty-free, fully paid-up license and right to install, use, reproduce, |
| display, perform, modify the Source Code of the Software, and to prepare and |
| have prepared derivative works thereof, and distribute the Software and |
| derivative works thereof (in object code only) as integrated in Licensee |
| software products solely for use with supported NVIDIA GPU hardware products as |
| specified in the accompanying release notes. The following terms apply to the |
| Licensed Material: |
| |
| Derivative Works: Subject to the License Grant Back below, Licensee shall own |
| any Derivative Works it creates directly to the Source Code that integrates with |
| Licensee’s software product ("Modification(s)") subject to NVIDIA’s ownership of |
| the underlying Source Code and all intellectual property rights therein. |
| |
| Distribution: Licensee may distribute the Software (in object code form) |
| integrated with Licensee software products only to Licensee’s authorized |
| distributors, resellers, and others in Licensee’s distribution chain for |
| Licensee product and end users and grant to such third party a sublicense to use |
| the Software under a written, legally enforceable agreement that has the effect |
| of protecting the Software and the rights of NVIDIA under terms no less |
| restrictive than this Agreement. |
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| Limitations: Unless otherwise authorized in the Agreement, Licensee shall not |
| otherwise assign, sublicense, lease, or in any other way transfer or disclose |
| Software to any third party. Licensee agrees not to disassemble, decompile or |
| reverse engineer the Object Code or use or modify any of the Licensed Materials |
| to enable screen scraping, data scraping, or any other activity with the purpose |
| of capturing copyright protected content in violation of a third party party’s |
| intellectual property or other proprietary rights. Licensee shall indemnify |
| NVIDIA for any and all claims, liabilities, damages, expenses and costs arising |
| from Licensee’s breach of the foregoing limitations. |
| |
| License Grant Back: Licensee hereby grants to NVIDIA and its affiliates a |
| worldwide, non-exclusive, irrevocable, perpetual, sublicenseable (through |
| multiple tiers of sublicensees), royalty-free and fully paid-up right and |
| license to the Modification(s) created by or on behalf of Licensee so that |
| NVIDIA may copy, modify, create derivatives works thereof, to use, have used, |
| import, make, have made, sell, offer to sell, sublicense (through multiple tiers |
| of sublicensees), distribute (through multiple tiers of distributors) such |
| derivative work(s) on a stand-alone basis or as incorporated into the Licensed |
| Materials or other related technologies. For the sake of clarity, NVIDIA is not |
| prohibited or otherwise restricted from independently developing new features or |
| functionality with respect to the Licensed Materials |
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| No Other License: No rights or licenses with respect to any proprietary |
| information or patent, copyright, trade secret or other intellectual property |
| right owned or controlled by NVIDIA are granted by NVIDIA to Licensee under this |
| Agreement, expressly or by implication, except as expressly provided in this |
| Agreement. |
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| Confidentiality: If applicable, any exchange of Confidential Information (as |
| defined in the NDA) shall be made pursuant to the terms and conditions of a |
| separately signed Non-Disclosure Agreement (“NDA”) by and between NVIDIA and |
| You. For the sake of clarity, You agree that (a) the Software (in source code |
| form); and (b) Your use of the Software is considered Confidential Information |
| of NVIDIA. |
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| If You wish to have a third party consultant or subcontractor ("Contractor") |
| perform work on Your behalf which involves access to or use of Software, You |
| shall obtain a written confidentiality agreement from the Contractor which |
| contains terms and obligations with respect to access to or use of Software no |
| less restrictive than those set forth in this Agreement and excluding any |
| distribution or sublicense rights, and use for any other purpose than permitted |
| in this Agreement. Otherwise, You shall not disclose the terms or existence of |
| this Agreement or use NVIDIA's name in any publications, advertisements, or |
| other announcements without NVIDIA's prior written consent. Unless otherwise |
| provided in this Agreement, You do not have any rights to use any NVIDIA |
| trademarks or logos. |
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| Intellectual Property Ownership: Except as expressly licensed to Licensee under |
| this Agreement, NVIDIA reserves all right, title and interest, including but not |
| limited to all intellectual property rights, in and to the Licensed Materials |
| and any derivative work(s) made thereto. The algorithms, structure, organization |
| and Source Code are the valuable trade secrets and confidential information of |
| NVIDIA. |
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| Licensee acknowledges and agrees that it is Licensee’s sole responsibility to |
| obtain any, additional, third party licenses required to make, have made, use, |
| have used, sell, import, and offer for sale Licensee products that include or |
| incorporate any third party technology such as operating systems, audio and/or |
| video encoders and decoders or any technology from, including but not limited |
| to, Microsoft, Thomson, Fraunhofer IIS, Sisvel S.p.A., MPEG-LA, and Coding |
| Technologies (“Third Party Technology”). Licensee acknowledges and agrees that |
| NVIDIA has not granted to Licensee under this Agreement any necessary patent |
| rights with respect to the Third Party Technology. As such, Licensee’s use of |
| the Third Party Technology may be subject to further restrictions and terms and |
| conditions. Licensee acknowledges and agrees that Licensee is solely and |
| exclusively responsible for obtaining any and all authorizations and licenses |
| required for the use, distribution and/or incorporation of the Third Party |
| Technology. |
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| Licensee shall, at its own expense fully indemnify, hold harmless, defend and/or |
| settle any claim, suit or proceeding that is asserted by a third party against |
| NVIDIA and its officers, employees or agents, to the extent such claim, suit or |
| proceeding arising from or related to Licensee’s failure to fully satisfy and/or |
| comply with the third party licensing obligations related to the Third Party |
| Technology (a “Claim”). In the event of a Claim, Licensee agrees to: (a) pay |
| all damages or settlement amounts, which shall not be finalized without the |
| prior written consent of NVIDIA, (including other reasonable costs incurred by |
| NVIDIA, including reasonable attorneys fees, in connection with enforcing this |
| paragraph); (b) reimburse NVIDIA for any licensing fees and/or penalties |
| incurred by NVIDIA in connection with a Claim; and (c) immediately |
| procure/satisfy the third party licensing obligations before using the Software |
| pursuant to this Agreement. |
| |
| Term of Agreement: This Agreement shall become effective from the date of the |
| initial download and shall remain in effect for one year thereafter, unless |
| terminated as provided below. Unless either party notifies the other party of |
| its intent to terminate this Agreement at least thirty (30) days prior to the |
| end of the Initial Term or the applicable renewal period, this Agreement will be |
| automatically renewed for one (1) year renewal periods thereafter, unless |
| terminated in accordance with the “Termination” provision of this Agreement. |
| |
| NVIDIA may terminate this Agreement (and with it, all of Licensee’s right to the |
| Licensed Materials) if (i) Licensee fails to comply with any of the terms and |
| conditions of this Agreement and if the breach is not cured within thirty (30) |
| days after notice thereof. Upon expiration or termination of this Agreement |
| pursuant to this paragraph, Licensee shall immediately cease using the Licensed |
| Materials and return or destroy or copies thereof in its possession. |
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| Defensive Suspension: If Licensee commences or participates in any legal |
| proceeding against NVIDIA, then NVIDIA may, in its sole discretion, suspend or |
| terminate all license grants and any other rights provided under this Agreement. |
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| No Support: NVIDIA has no obligation to support or to continue providing or |
| updating any of the Licensed Materials. |
| |
| No Warranty: THE LICENSED MATERIALS PROVIDED BY NVIDIA TO LICENSEE HEREUNDER |
| ARE PROVIDED "AS IS." NVIDIA DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR |
| STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, |
| MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. |
| |
| Limitation of Liability: NVIDIA SHALL NOT BE LIABLE TO LICENSEE, LICENSEE’S |
| CUSTOMERS, OR ANY OTHER PERSON OR ENTITY CLAIMING THROUGH OR UNDER LICENSEE FOR |
| ANY LOSS OF PROFITS, INCOME, SAVINGS, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, |
| SPECIAL, PUNITIVE, DIRECT OR INDIRECT DAMAGES (WHETHER IN AN ACTION IN CONTRACT, |
| TORT OR BASED ON A WARRANTY), EVEN IF NVIDIA HAS BEEN ADVISED OF THE POSSIBILITY |
| OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF |
| THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL NVIDIA’S |
| AGGREGATE LIABILITY TO LICENSEE OR ANY OTHER PERSON OR ENTITY CLAIMING THROUGH |
| OR UNDER LICENSEE EXCEED THE AMOUNT OF MONEY ACTUALLY PAID BY LICENSEE TO NVIDIA |
| FOR THE LICENSED MATERIALS. |
| |
| Applicable Law and Jurisdiction: This Agreement shall be deemed to have been |
| made in, and shall be construed pursuant to, the laws of the State of Delaware. |
| The state and/or federal courts residing in Santa Clara County, California shall |
| have exclusive jurisdiction over any dispute or claim arising out of this |
| Agreement. The United Nations Convention on Contracts for the International Sale |
| of Goods is specifically disclaimed. |
| |
| Feedback: Licensee may, but is not obligated to, provide to NVIDIA any |
| suggestions, comments and feedback regarding the Licensed Materials that are |
| delivered by NVIDIA to Licensee under this Agreement (collectively, “Licensee |
| Feedback”). NVIDIA may use and include any Licensee Feedback that Licensee |
| voluntarily provides to improve the Licensed Materials or other related NVIDIA |
| technologies. Accordingly, if Licensee provides Licensee Feedback, Licensee |
| grants NVIDIA and its licensees a perpetual, irrevocable, worldwide, |
| royalty-free, fully paid-up license grant to freely use, have used, sell, |
| modify, reproduce, transmit, license, sublicense (through multiple tiers of |
| sublicensees), distribute (through multiple tiers of distributors), and |
| otherwise commercialize the Licensee Feedback in the Licensed Materials or other |
| related technologies. |
| |
| RESTRICTED RIGHTS NOTICE: Licensed Materials has been developed entirely at |
| private expense and is commercial computer software provided with RESTRICTED |
| RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. |
| Government subcontractor is subject to the restrictions set forth in the license |
| agreement under which Licensed Materials was obtained pursuant to DFARS |
| 227.7202-3(a) or as set forth in subparagraphs (c)(1) and (2) of the Commercial |
| Computer Software - Restricted Rights clause at FAR 52.227-19, as applicable. |
| Contractor/manufacturer is NVIDIA, 2701 San Tomas Expressway, Santa Clara, CA |
| 95050. |
| |
| Miscellaneous: If any provision of this Agreement is inconsistent with, or |
| cannot be fully enforced under, the law, such provision will be construed as |
| limited to the extent necessary to be consistent with and fully enforceable |
| under the law. This Agreement is the final, complete and exclusive agreement |
| between the parties relating to the subject matter hereof, and supersedes all |
| prior or contemporaneous understandings and agreements relating to such subject |
| matter, whether oral or written. This Agreement is solely between NVIDIA and |
| Licensee. There are no third party beneficiaries, express or implied, to this |
| Agreement. This Agreement may only be modified in writing signed by an |
| authorized officer of NVIDIA. Licensee agrees that it will not ship, transfer |
| or export the Licensed Materials into any country, or use the Licensed Materials |
| in any manner, prohibited by the United States Bureau of Industry and Security |
| or any export laws, restrictions or regulations. This Agreement, and Licensee’s |
| rights and obligations herein, may not be assigned, subcontracted, delegated, or |
| otherwise transferred by Licensee without NVIDIA’s prior written consent, and |
| any attempted assignment, subcontract, delegation, or transfer in violation of |
| the foregoing will be null and void. The terms of this Agreement shall be |
| binding upon assignees. |