AUDIOKINETIC End-User License Agreement (“EULA” or “Agreement”) for Wwise®, Wwise Motion™, SoundSeed ® and/or Wwise Convolution™
BY SELECTING THE “I ACCEPT” OPTION BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS
AGREEMENT, INSTALLATION OF THE AUDIOKINETIC WWISE TECHNOLOGY WILL NOT BE POSSIBLE.
WHEREAS
AUDIOKINETIC has developed Wwise®, a complete audio solution consisting of an authoring application and a sound engine and/or Wwise Motion,
a complete motion engine and/or SoundSeed®, an interactive sound generator that enables the development of interactive games for specified
platforms; and
WHEREAS
you (“Licensee”) have an interest in exporting the audio formats necessary for use with the “Saints Row IV” game to
develop new modifications (”Mods”) for such game, which Mods shall be freely available and open to the developer community;
and
WHEREAS
, AUDIOKINETIC desires to grant a Non-Commercial License (as defined below) to use a limited-use version of Wwise®, a technology
proprietary to AUDIOKINETIC, to Licensee under the terms and conditions described herein.
NOW THEREFORE
that, in consideration of the mutual covenants provided for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Licensee and AUDIOKINETIC agree as follows:
1.1 “AUDIOKINETIC Deployment Software” means the AUDIOKINETIC libraries and header files, in object code only, that are
required to be incorporated into the Licensee Developed Game for the intended use.
1.2 “AUDIOKINETIC Wwise Technology” means AUDIOKINETIC’s proprietary audio and motion technology entitled
“Wwise”, “Wwise Motion”, “SoundSeed” and/or Wwise Convolution in object code form (and source code form only to the
extent provided by AUDIOKINETIC under this Agreement), which allows users to develop interactive games for specified platforms, and includes the
AUDIOKINETIC Deployment Software and the Documentation and any updates or upgrades provided by AUDIOKINETIC.
1.3 “Development License” means a development license granted in respect of the AUDIOKINETIC Wwise Technology and more
specifically described herein.
1.4 “Documentation” means all technical, reference and installation manuals, user guides, published performance specifications
and other written documentation provided by AUDIOKINETIC generally to its licensees with respect to the AUDIOKINETIC Wwise Technology, along with any
modifications and updates thereto.
1.5 “End User” shall mean the third party who is using the Licensee Developed Game.
1.6 “Integration and Distribution License” means an integration and distribution license granted in respect of the
AUDIOKINETIC Wwise Technology and more specifically described herein.
1.7 “Licensee” means you and, if different, your organization who is party to the Master License Agreement.
1.8 “Licensee Developed Game” means the Mods developed by or on behalf of Licensee on the Licensee Platform.
1.9 “Modifiable Source Code” means the portions of the Level One Source Code, Level Two Source Code and Level Three Source
Code, as applicable, to which AUDIOKINETIC grants access to Licensee in order to enable Licensee to modify such portions of the AUDIOKINETIC Wwise
Technology in accordance with the terms of this Agreement.
1.10 “Non-Commercial License” means both a Development License and an Integration and Distribution License granted in respect
of the AUDIOKINETIC Wwise Technology solely for non-commercial purposes (including without limitation for academic and research purposes) and more
specifically described herein.
1.11 “Third Party Software” means the software products that have been integrated into or are available through the
AUDIOKINETIC Wwise Technology and are available to Licensee as an option. Each Third Party Software is subject to its individual EULA that can be reviewed
during the installation process of the AUDIOKINETIC Wwise Technology. AUDIOKINETIC reserves the right to add or remove the availability of Third Party
Software from time to time at its discretion.
2. LICENSE GRANT
2.1 AUDIOKINETIC grants Licensee one or more of the following licenses, subject to the payment of the appropriate fees, as applicable:
2.2 Evaluation License. Subject to the terms and conditions of this Agreement, AUDIOKINETIC hereby grants to Licensee a worldwide, paid-up,
nonexclusive, non-transferable (subject to Section 10.5), right and license, on the Licensee Platform(s), and in object code only, to install, use and
operate the AUDIOKINETIC Wwise Technology in accordance with the Documentation for the purposes of evaluation, prototyping and testing the AUDIOKINETIC
Wwise Technology for Licensee’s internal use only with Licensee Developed Games and for a limited period of time determined by AUDIOKINETIC. Licensee
acknowledges that some of the functionalities of the AUDIOKINETIC Wwise Technology may not be available as part of the Evaluation License. Licensee may
also use, reproduce and display the AUDIOKINETIC Deployment Software as contained in such evaluations or demonstrations for the purposes of displaying
functionality of such evaluation Licensee Developed Games. This Evaluation License does not grant any right to distribute the AUDIOKINETIC Deployment
Software or any Licensee Developed Games containing the AUDIOKINETIC Wwise Technology.
2.3 Development License
.
Pursuant to this Agreement and subject to the payment of the appropriate Fees as set forth in the applicable PO(s), AUDIOKINETIC hereby grants to Licensee
a worldwide, paid-up, nonexclusive, non-transferable (subject to Section 10.5), non-sublicensable, non-refundable right and license pursuant to which
Licensee may (a) install, use and operate the AUDIOKINETIC Wwise Technology in accordance with the Documentation, (b) modify the Modifiable Source Code,
and (c) make a reasonable number of copies of the AUDIOKINETIC Wwise Technology for the purposes described above, all of the foregoing (i) for
Licensee’s internal use only, (ii) solely for the purposes of developing the Licensee Developed Game, and (iii) in the case of Level Two Source Code
and the Level Three Source Code, solely for the purposes of debugging the AUDIOKINETIC Wwise Technology, performance balancing, code optimization, timing
analysis and identifying Bugs and bottlenecks.
2.4 Integration and Distribution License
. Pursuant to this Agreement and subject to the payment of the appropriate Fees as set forth in the applicable PO(s), AUDIOKINETIC hereby grants to
Licensee a worldwide, paid-up, nonexclusive, non-transferable (subject to Section 10.5), non-sublicensable, non-refundable right and license, on the
Licensee Platform, and in object code only, to: (a) use and reproduce the AUDIOKINETIC Deployment Software for the purpose of and to the extent required to develop, test, demonstrate and support the Licensee Developed
Game and Add-ons; and (b)
make, have manufactured (by third party contractors), reproduce, promote, display, advertise, provide previews and reviews on all media, publish,
distribute, license and offer to license the Licensee Developed Game to End Users either as a stand-alone game or bundled with other software or
hardware.
The AUDIOKINETIC Deployment Software is licensed for distribution as part of the Licensee Developed Game only and Licensee is not entitled to distribute
the AUDIOKINETIC Wwise Technology, or any portion thereof, in stand-alone form.
2.5 Non-Commercial License. Subject to the terms and conditions of this Agreement, AUDIOKINETIC hereby grants to Licensee a Non-Commercial License.
A Non-Commercial License does not grant any right to use the AUDIOKINETIC Wwise Technology in any commercial enterprise nor for any commercial production
or sub-contracting.
3.1 Ownership. Notwithstanding anything else in this Agreement, AUDIOKINETIC and its third party licensors retain (a) all title to, and,
except as expressly licensed herein, all rights to the AUDIOKINETIC Wwise Technology, all copies and derivative works thereof (by whomever developed) and
all related documentation and materials, and (b) all copyrights, patent rights, trade secret rights and other proprietary rights in the AUDIOKINETIC Wwise
Technology. Except for AUDIOKINETIC’s retained rights in the underlying AUDIOKINETIC Wwise Technology (including without limitation the AUDIOKINETIC
Deployment Software) as set forth and licensed to Licensee herein, Licensee shall own the copyright and all other intellectual property rights to the
Licensee Developed Game(s) and any updates thereto.
3.2 Open Source Components. The AUDIOKINETIC Wwise Technology may contain certain open source components (“ Open Source Components”) which are not licensed under the terms of this Agreement, but instead are licensed under the terms of their
respective licenses. Such open source components are provided “as is” without warranty of any kind. AUDIOKINETIC grants Licensee no right to
receive source code to Open Source Components; however, in some cases, rights and access to source code for the Open Source Components may be available
directly from their owners, licensors and/or suppliers. Licensee’ use of each Open Source Component is subject to the terms of its applicable
license.
3.3 AUDIOKINETIC informs Licensee that the Ogg, Vorbis and Tremor Open Source libraries provided by the Xiph.Org Foundation (the “ Ogg Vorbis Libraries”) are included as part of the Wwise Technology as an option to Licensee. If Licensee decides to use this
option, in accordance with the terms of the open source license for the Ogg Vorbis Libraries:
(a) “© year, Xiph.Org Foundation”
(b) “Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
(c) Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer;
(d) Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation
and/or other materials provided with the distribution; and
(e) Neither the name of the Xiph.org Foundation nor the names of its contributors may be used to endorse or promote products derived from this software
without specific prior written permission.
3.4 THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE FOUNDATION OR CONTRIBUTORS
BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE
GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT
LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE. “
3.5 To avoid any presence of the Vorbis code in your Licensee Developed Game, you should not link to the AkVorbisDecoder.lib. AUDIOKINETIC guarantees that
this will ensure no element of the open source library is embodied in the AUDIOKINETIC Deployment Software.
4. LICENSEE OBLIGATIONS
4.1 Restrictions on Use
. Except as expressly provided herein, Licensee agrees not to (a) produce hard copy printed output of data from the AUDIOKINETIC Wwise Technology and/or
Third Party Software for reports and notes for purposes other than solely for reference purposes in connection with its own internal business, and which
may not be published or supplied to any third party; (b) expose any underlying programming interfaces of the AUDIOKINETIC Wwise Technology and/or Third
Party Software in the Licensee Developed Game; (c) include any documentation relating to the AUDIOKINETIC Wwise Technology and/or Third Party Software and
sample application elements of the AUDIOKINETIC Wwise Technology with the Licensee Developed Game; and (d) remove or alter any copyright or other
proprietary notice from the AUDIOKINETIC Wwise Technology and the Documentation and/or Third Party Software; (e) disassemble, decompile or otherwise
reverse engineer the AUDIOKINETIC Wwise Technology or otherwise attempt to learn the source code (to the extent not provided by AUDIOKINETIC), or
algorithms underlying the AUDIOKINETIC Wwise Technology, to the maximum extent allowed under applicable law; (f) rent, lease or otherwise provide temporary
access to the AUDIOKINETIC Wwise Technology and/or Third Party Software otherwise than as specifically authorized herein; (g) copy, alter or modify the
AUDIOKINETIC Wwise Technology otherwise than as specifically authorized herein, or (h) authorize or allow others to do any of the foregoing.
4.2 Notice. Licensee agrees to promptly notify AUDIOKINETIC if the Licensee becomes aware of any unauthorized use of the whole or any part
of the AUDIOKINETIC Wwise Technology by any third party.
5.1 Each of AUDIOKINETIC and Licensee owns the trademarks, logos and trade names (collectively, “Marks”) for their respective
products and/or services, including, but not limited to the Licensee Developed Game and the AUDIOKINETIC Wwise Technology. No licence to use the Marks is
granted under this Agreement.
6.1 Proprietary information. Licensee acknowledges that pursuant to this Agreement it will be receiving information which is proprietary
and confidential to AUDIOKINETIC and/or to the owner(s) of the Third Party Software as applicable and, in the case of the AUDIOKINETIC Wwise Technology, is
a confidential trade secret and valuable asset of AUDIOKINETIC which may (i) be the subject of one or more patent applications , which AUDIOKINETIC wishes
to protect from public disclosure (“Proprietary Information”). “Proprietary Information” shall also include (i)
any information designated as confidential by AUDIOKINETIC, (ii) the economic terms of this Agreement and (iii) any information relating to
AUDIOKINETIC’s products, plans, product designs, product costs, product prices, product names, finances, marketing plans, business opportunities,
business plan, personnel, research, development, or know-how.
6.2 Exclusions. Each party acknowledges that the following will not be considered “Proprietary Information” for the purposes
of this Agreement: (a) information which is publicly available in the public domain at the time it is communicated to Licensee by AUDIOKINETIC; (b)
information which is or becomes publicly available or public domain information through no fault of Licensee subsequent to the time it is communicated to
Licensee by AUDIOKINETIC; (c) information which is in Licensee’s possession free of any obligation of confidence to AUDIOKINETIC at the time it is
communicated to Licensee by AUDIOKINETIC; (d) information which is rightfully communicated to Licensee free of any obligation of confidence subsequent to
the time it is communicated to Licensee by AUDIOKINETIC; (e) information which was independently developed by Licensee without use of the other
party’s Proprietary Information; or (f) information which is required to be disclosed pursuant to law or to the order, requirement or request of a
court of government authority.
6.3 Restrictive Use Conditions. Licensee (i) will hold such Proprietary Information in confidence and will not disclose it, except to its
employees, officers or authorized representatives and those of its authorized sub-licensees with a need to know for purposes of performing their duties,
who are similarly bound to hold the Proprietary Information in confidence and, with respect to the AUDIOKINETIC Wwise Technology, who have been given an
individual access code by AUDIOKINETIC, (ii) shall prevent inadvertent or unauthorized disclosure or dissemination of any Proprietary Information, and
(iii) agrees to take appropriate action with its employees, officers and authorized representatives and those of its authorized sub-licensees to satisfy
its obligations under this Agreement with respect to the use, copying, modification, protection and security of the Proprietary Information.
6.4 Notice and Return of Information. Licensee shall notify AUDIOKINETIC immediately upon discovery of any unauthorized use or disclosure
of Proprietary Information, and will cooperate with AUDIOKINETIC in every reasonable way to help AUDIOKINETIC regain possession of the Proprietary
Information and prevent its further unauthorized use. Licensee shall return all originals, copies, reproductions and summaries of Proprietary Information
at AUDIOKINETIC’s request or, at AUDIOKINETIC’s option, certify destruction of the same with the sworn statement of one of its officers, except
where same is required for the exercise of Licensee’s rights under this Agreement.
6.5 Rights and Remedies. Licensee acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of
Proprietary Information and that AUDIOKINETIC shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as
may be deemed proper by a court of competent jurisdiction.
7.1 DISCLAIMER. THE AUDIOKINETIC WWISE TECHNOLOGY IS PROVIDED “AS IS” AND “WHERE IS” BY AUDIOKINETIC AND IS
ACCEPTED AS SUCH BY LICENSEE. AUDIOKINETIC DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES RELATING TO THE AUDIOKINETIC WWISE TECHNOLOGY AND DOCUMENTATION,
INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND NON-INFRINGEMENT. AUDIOKINETIC DOES NOT WARRANT THAT
THE AUDIOKINETIC WWISE TECHNOLOGY OR DOCUMENTATION WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE AUDIOKINETIC WWISE TECHNOLOGY AND
THE DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE AGREES THAT AUDIOKINETIC WILL NOT BE LIABLE FOR ANY DAMAGES THAT LICENSEE OR ITS END USERS
OR ITS GAME PLAYERS MAY INCUR ARISING OUT OF THE USE OR INABILITY TO USE THE AUDIOKINETIC WWISE TECHNOLOGY OR LICENSEE DEVELOPED GAME.
8.1 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, AND EXCEPT IN RELATION TO BREACHES OF AUDIOKINETIC’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT
SHALL AUDIOKINETIC BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT,
INCLUDING, BUT NOT LIMITED TO, DAMAGE OR LOSS OF PROPERTY, EQUIPMENT, INFORMATION OR DATA, LOSS OF PROFITS, REVENUE OR GOODWILL OR COST OF REPLACEMENT
SERVICES OCCASIONED BY ANY DEFECT IN THE AUDIOKINETIC WWISE TECHNOLOGY, THE INABILITY TO USE SERVICES PROVIDED HEREUNDER OR ANY OTHER CAUSE WHATSOEVER WITH
RESPECT TO THE AUDIOKINETIC WWISE TECHNOLOGY OR THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF THE OTHER PARTY HAS
BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 IN NO EVENT SHALL AUDIOKINETIC’S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT OF FEES DUE FROM LICENSEE TO
AUDIOKINETIC FOR THE RELEVANT LICENSEE DEVELOPED GAME, AS APPLICABLE, DURING THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO SUCH CLAIM.
9. TERM AND TERMINATION
9.1 Term. Unless terminated earlier as provided herein, this Agreement shall commence upon acceptance of this agreement and shall
continue: (a) with respect to the Evaluation License, for a period of 30 days, which may be extended; and (b) with respect to all other licenses,
perpetually once such licenses are granted.
9.2 Termination. AUDIOKINETIC may terminate this Agreement if the Licensee materially breaches this Agreement and such material breach is
not cured within thirty (30) days of written notice describing the breach.
9.3 Effect of Termination/Expiration.
Upon the expiration or termination of this Agreement or any of the licenses granted hereunder: (a) all of Licensee’s rights hereunder shall
terminate; and (b) within fifteen (15) days of the expiration or termination date Licensee shall, at its own expense, and at AUDIOKINETIC’s sole
option, either return all copies of the AUDIOKINETIC Wwise Technology in its possession or control, or, shall destroy all copies of the AUDIOKINETIC Wwise
Technology in its possession or control.
9.4 Survival.
Section 1 (Definitions), Section 3 (Ownership), Section 4.1 (Restrictions on use), 5 (Trademark License), Section 6 (Proprietary Information), Section 7
(Disclaimer), Section 8 (Limitation of Liability), Section 9.3 (Effect of Termination), this Section 9.4 (Survival) and Section 10.8 (Governing Law) shall
survive the termination or expiration of this Agreement in accordance with their terms.
10. MISCELLANEOUS
10.1 Recitals. The recitals form an integral part of this Agreement.
10.2 New EULA. The text of this Agreement may be amended from time to time by AUDIOKINETIC. Such amendments will become effective and
enforceable against Licensee upon express acceptance of same either through the execution of a written instrument to that effect or the acceptance of the
new terms through AUDIOKINETIC Wwise Technology’s installation process. This EULA replaces and supercedes any previous EULA(s) which may have been
entered into by Licensee for the AUDIOKINETIC Wwise Technology.
10.3 Waiver. Any failure to enforce by either party of any term or condition of this Agreement or any breach thereof, in any one instance,
shall not be deemed or construed to be a waiver of such term or condition or any subsequent breach thereof.
10.4 Notices. Any notice under this Agreement will be in writing and will be personally delivered, sent by a reputable overnight mail
service (e.g. Federal Express) or by registered mail, or by facsimile confirmed by registered mail, to the other party. Notices will be deemed effective
(a) three (3) working days after deposit, postage prepaid, if mailed, (b) the next day if sent by overnight mail, or (c) the same day if sent by facsimile
and confirmed as set forth above. A copy of any notice will be sent to the following:
Notice to AUDIOKINETIC:
409 Saint-Nicolas St.
Suite 300,
Montreal, Quebec H2Y 2P4
Fax: (514) 499-9109
Attention: President and Chief Executive Officer
Notice to Licensee: at the address provided by the Licensee to Audiokinetic.
10.5 Assignment.
This Agreement or any licenses granted hereunder may not be assigned or sublicensed by Licensee in whole or in part other than as provided hereunder (by
contract, merger, operation of law or otherwise) without the prior written consent of AUDIOKINETIC, such consent not to be unreasonably withheld or
delayed. AUDIOKINETIC may assign this Agreement with notice to Licensee in the event of a merger, acquisition or similar corporate activity provided that
the surviving entity agrees to be bound by the terms of this Agreement. This Agreement shall be binding upon and inure for the benefit of the successors in
title of the parties hereto.
10.6 Export. Licensee agrees to comply with all export laws, restrictions, national security controls and regulations of the United States
or other applicable national or foreign agency or authority, and not to export or re-export, or allow the export or re-export of any proprietary
information or any copy or direct product thereof in violation of any such restrictions, laws or regulations.
10.7 Independent Contractors. Each party will act at all times as an independent contractor and will have no right or authority to act on
behalf of, create any obligation for, or bind the other party in any way. Nothing in this Agreement will be deemed to create a partnership or joint venture
between the parties.
10.8 Governing Law.
This Agreement shall not be modified or amended except in writing and signed by both parties. This Agreement will be governed by and construed under the
laws of the province of Quebec and the laws of Canada applicable therein and the parties hereto submit to the exclusive jurisdiction of the courts of
Province of Quebec, District of Montreal.
