This Limited Evaluation License Agreement (this " Agreement") is entered into between OpenTV, Inc., a Delaware corporation on behalf of itself and its Affiliates (" OpenTV") and the party receiving the accompanying software (" Licensee"). For the purpose of this Agreement, "Affiliate(s)" means any legal entity that a party controls, that controls a party, or with which it is under common control and for so long as such control exists. Control is deemed to happen by exercising 50% or more of the voting rights.
The purpose of this Agreement is to grant Licensee a limited license to the accompanying software and documentation provided by OpenTV (collectively, the " Software") for the sole purpose of evaluation and testing.
LICENSE TO USE. OpenTV hereby grants Licensee a non-exclusive, royalty-free, non-assignable and non-transferable license to use the Software for the period beginning on the date that this Agreement is accepted by Licensee (e.g. by clicking on the appropriate box or button indicating acceptance or by downloading or using the Software) and ending thirty (30) days thereafter (the " Evaluation Period") for the express and limited purpose of internally evaluating and testing the Software. Licensee understands that this is a restricted license that does not grant Licensee any rights to use the Software for commercial purposes. Licensee shall, as reasonably requested by OpenTV, provide OpenTV with written feedback regarding the results of Licensee's testing and evaluation of each "build" of the Software provided hereunder.
LICENSE RESTRICTIONS. Licensee shall not exceed the scope of the license granted in Section 1. Licensee shall not copy the Software. Licensee shall not use the Software to attempt to learn the source code, structure, algorithms or ideas underlying any of the intellectual property rights of OpenTV referenced, embodied or otherwise incorporated in the Software (collectively, the " OpenTV Intellectual Property Rights"), nor shall Licensee modify, translate or create derivative works based on the Software except as expressly provided in this Agreement. Licensee agrees that it will not distribute or transfer the Software to any third party. Licensee shall not remove any proprietary rights notices from the Software.
OWNERSHIP. This Agreement does not convey any rights of ownership in the Software. All right, title and interest in the Software (and the OpenTV Intellectual Property Rights), and in any ideas, know-how and programs which are developed by OpenTV in the course of providing any technical services, including any enhancements or modifications made to the Software (or the OpenTV Intellectual Property Rights), shall, at all times, remain the property of OpenTV or its licensors.
CONFIDENTIALITY. Licensee acknowledges that, in the course of using the Software pursuant to this Agreement, it may obtain or have access to confidential and proprietary information relating to, among other things, OpenTV Intellectual Property Rights, OpenTV's products and services and intellectual property rights of OpenTV's licensors (collectively, " Confidential Information"). Such Confidential Information shall belong solely to OpenTV and includes, but is not limited to, the Software and its features, specifications and mode of operation, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, problem reports, analysis and performance information, documents, and other technical, business, marketing and financial information, plans and data. As regards to the Confidential Information:
(a) Licensee agrees to take all reasonable measures to maintain the Confidential Information in strict confidence.
(b) Licensee will disclose the Confidential Information only to those of its employees and consultants (and, if Licensee is an educational institution, students) as are necessary for the use of the Software as contemplated hereunder, and only after such employees, contractors and students have agreed in writing to be bound by confidentiality provisions applicable to the Confidential Information that are at least as restrictive as those contained in this Agreement. Licensee shall not, without the prior written consent of OpenTV, disclose or otherwise make available the Confidential Information or copies thereof to any third party.
(c) Confidential Information shall not include any information that (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of Licensee; (ii) was previously known to Licensee free of any obligation of confidentiality at or after the time it was communicated to Licensee by OpenTV; (iii) was independently developed by Licensee without any use of the Confidential Information; or (iv) is or becomes available to Licensee on a non-confidential basis from a person other than OpenTV who is not known by Licensee to be otherwise bound by a confidentiality agreement with OpenTV or to be under an obligation to OpenTV not to transmit the information to Licensee.
(d) Licensee acknowledges and agrees that due to the unique nature of OpenTV's Confidential Information, there can be no adequate remedy at law for any breach of this Section 5 and that OpenTV is therefore entitled to injunctive and other equitable relief in addition to whatever remedies it may have at law.
THIRD PARTY PRODUCTS AND INTELLECTUAL PROPERTY. All third-party products, services, and related documentation accessed by the use of the Software or used as components of the Software, including, without limitation, any open source Software, remain the property of the applicable third party owner and may be protected by applicable intellectual property laws. Nothing in this Agreement shall be construed to give Licensee any rights to such third-party products, services, and related documentation or third-party components of the Software. Except as expressly provided in this Agreement, no license under any patents, copyrights, trademarks, trade secrets or any other intellectual property right, express or implied, are granted by OpenTV to Licensee under this Agreement. Licensee acknowledges and agrees that the use of the Software may require licenses on (i) codecs and/or transport stream related third party intellectual property rights such as but not limited to H264, MPEG2 TS, AAC audio and mp4 and/or on (ii) user interface ("UI") design related third party intellectual property rights. To the extent such a third party a license is required, Licensee acknowledges and agrees that it shall be responsible for obtaining any such required licenses and Licensee expressly agrees to indemnify and hold OpenTV and its Affiliates harmless for all fees, damages and costs incurred as a result of Licensee's failure to obtain or comply with such licenses.
DISCLAIMER OF WARRANTY. THE SOFTWARE IS PROVIDED TO LICENSEE "AS IS." ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGENENT ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT ALLOWED BY LAW.
LIMITATION OF LIABILITY. IN NO EVENT WILL OPENTV BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF OPENTV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall OpenTV's liability to Licensee HEREUNDER, whether in contract, tort or otherwise exceed the license fees, if any, paid by Licensee for the SOFTWARE.
TERMINATION. OpenTV shall issue a license key to Licensee which is necessary to activate and use the Software. The license granted under this Agreement shall expire and this Agreement shall terminate upon the earlier of (a) the end of the Evaluation Period and (b) the expiration of the license key, unless earlier terminated by either party pursuant to this Section 8. Either party may terminate this Agreement at any time and for any reason or no reason upon seven (7) days prior written notice to the other party. In addition, OpenTV may terminate this Agreement immediately upon a material breach by Licensee of this Agreement by delivering written notice of such termination to Licensee. Upon the expiration or termination of this Agreement, the license granted hereunder shall terminate, and Licensee shall immediately destroy the Software, together with any and all notes and other materials regarding the Software, including, without limitation, all Confidential Information and all copies and extracts of the foregoing. Licensee shall confirm said destruction in writing within three (3) calendar days after the request of OpenTV. Notwithstanding the expiration or termination of this Agreement, the terms and obligations pertaining to confidentiality in this Agreement shall nevertheless remain in full force and effect for a period of fifteen (15) years from the date of expiration or termination.
EXPORT REGULATIONS. The Software, including technical data, is subject to United States export control laws, including the United States Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to use the Software in compliance with all such laws and to indemnify OpenTV for any damages, losses or expenses it may suffer as a result of Licensee's noncompliance.
RELATION BETWEEN THE PARTIES. This Agreement does not obligate either party to enter into any other agreement or relationship with the other party. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the parties.
ARBITRATION; GOVERNING LAW. Any dispute, controversy or claim arising out of or in relation to this Agreement, including the validity, invalidity, breach or termination thereof, shall be resolved by final and binding arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce (in force on the date when the Notice of Arbitration is submitted). The number of arbitrators shall be one. The seat of the Arbitration shall be New York, New York and the arbitral proceedings shall be conducted in English. The prevailing party shall be entitled to seek its reasonable attorneys' fees, costs and other reasonable expenses. This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of New York without regard to its conflict of law provisions.
SEVERABILITY. If any of the provisions of this Agreement are held to be in violation of applicable law, void or unenforceable in any jurisdiction, then such provisions are herewith waived to the extent necessary for the Agreement to be otherwise enforceable in such jurisdiction. However, if in OpenTV's reasonable opinion, deletion of any provision of this Agreement by operation of this Section 12 unreasonably compromises the rights or liabilities of OpenTV or its licensors, OpenTV shall have the right to terminate this Agreement immediately.
SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement shall inure to the benefit and be binding upon the respective successors and assigns of either party. Notwithstanding the foregoing, this Agreement may not be assigned by Licensee without the prior written consent of OpenTV, and any attempted assignment by Licensee without such consent shall be null and void.
INTEGRATION. This Agreement is the entire agreement between Licensee and OpenTV relating to the Software and i) supersedes all prior contemporaneous oral or written communications proposals and representations with respect to its subject matter and ii) prevails over any conflicting or additional terms of any quote, order acknowledgment or similar communication between the parties during the term of this Agreement. No modification to this Agreement will be binding unless in writing and signed by a duly authorized representative of each party.