EXPRESSPLAY™ SPECIAL PRODUCT EVALUATION LICENSE AGREEMENT
(Agreement Version 1.0)
IMPORTANT READ CAREFULLY: This ExpressPlay Special Product Evaluation License Agreement (“Agreement”) is a legal agreement between you (on behalf of your entity) (“Company”) and Intertrust Technologies Corporation and its majority owned subsidiaries (collectively, “Intertrust”) (each, a “Party” and collectively the “Parties”) for certain evaluation software as summarized in Exhibit A as well as any associated documentation (collectively, the “Eval Software”). The Eval Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
In addition to the terms set forth above the following terms (all of which may be amended from time to time at Intertrust’s sole discretion) set out the rights and obligations you agree to accept if you install, copy, download or otherwise use the Eval Software available on this website. If you do not understand any of these terms, you should seek assistance from your legal advisor.
PLEASE READ THESE TERMS CAREFULLY AS YOU WILL BE REQUIRED TO ACCEPT THEM PRIOR TO USING THE EVAL SOFTWARE.
By checking the “I accept the terms of the ExpressPlay Special Product Evaluation License Agreement” checkbox above and submitting the associated web form to accept this Agreement, or by installing, copying, or otherwise using the Eval Software, you acknowledge that you have read and understood this Agreement, and agree to be bound by its terms and conditions. If you do not agree to the terms and conditions of this Agreement, do not click the button above and do not install, copy or use the Eval Software.
1 – SOFTWARE EVALUATION LICENSE
1.1 Evaluation Software. Intertrust will make available to Company the Eval Software summarized in Exhibit A, which can be amended by Intertrust from time to time at Intertrust’s sole discretion. Company can download the Eval Software to evaluate, subject to the terms of this Agreement.
1.2 License to Eval Software. Subject to Company’s compliance with the terms and conditions of this Agreement, Intertrust grants to Company during the Term (as defined in Section 6.1) a temporary, personal, limited, nonexclusive, nontransferable, non-sublicenseable license to use the Eval Software solely for the purpose of internal evaluation by Company.
1.3 No Additional Licenses. Company understands and acknowledges that: (i) the evaluation license expressly granted under Section 1.2 is the only license granted to Company; and (ii) no other licenses (including no license under any Intertrust patents) have been, or shall be construed to have been, granted, expressly, by implication, estoppel or by any other provision of this Agreement. Intertrust reserves all rights not expressly granted to Company. The license granted herein is granted solely to Company, and not, by implication or otherwise, to any parent, subsidiary or affiliate of Company.
1.4 General Restrictions. Any use by Company of any portion of the Eval Software, except as provided under Section 1.2 of this Agreement, shall constitute a material breach of this Agreement entitling Intertrust to an immediate right of termination. Company may not (and agrees that it shall not) under this license, copy, rent, lease, sell, loan or distribute the Eval Software in any form, nor share the results of its evaluation with parties other than Intertrust. Company further agrees that it shall not modify (except solely to the extent necessary to evaluate the Eval Software), adapt (except solely to the extent necessary to evaluate the Eval Software), translate, or prepare derivative works from the Eval Software and, to the extent permitted by applicable law, shall not, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the binary portions of the Eval Software. Company shall not remove, obscure, or alter Intertrust’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within the Eval Software.
1.5 No Updates or Support. Intertrust has no obligation to commercialize the Eval Software nor to provide any updates, new releases, support or maintenance of the Eval Software.
1.6 No Fees. No license fees are due.
2 – OWNERSHIP
As between Company and Intertrust, Company agrees that Intertrust is the sole and exclusive owner and/or licensor of, and shall retain all right, title and interest in, the Eval Software (including, but not limited to, any enhancements and/or modifications, whether or not made by Intertrust) and any and all intellectual property rights embodied therein (including, but not limited to, patent, copyright, trade secret, trademark, and other proprietary rights). Nothing contained in this Agreement shall be construed to transfer to Company or any other person or entity any title or ownership interest in the Eval Software or in any other Intertrust property, or to grant any license to any intellectual property rights of Intertrust.
3 – CONFIDENTIALITY
Company may receive from Intertrust information (in connection with this Agreement), including, but not limited to, the Eval Software, pricing information, and contract terms for a commercial license, that is proprietary to Intertrust or its licensors, and is marked as confidential or with a similar notice (if disclosed in writing or tangible form), identified as confidential (if disclosed verbally), or should reasonably be treated as confidential under the context in which disclosure was made (“Confidential Information”). Company will: (i) safeguard Confidential Information with the same degree of care as it exercises with its own confidential information, but no less than reasonable care; (ii) not disclose any Confidential Information to third parties other than its agents who have a need to know and who are bound by a confidentiality agreement having similar provisions to those herein and Company agrees to be responsible in the event of use or disclosure by its agents in violation of the terms of this Agreement; and (iii) use Confidential Information solely in the exercise of its rights and obligations under this Agreement and for no other purpose.
Confidential Information does not include information that the Company can demonstrate: (i) is or has become generally available to the public through no fault of Company; (ii) is rightfully obtained by Company from a third party without breach of any confidentiality obligation; or (iii) is independently developed by employees of the Company without use of or reference to such information. Company may disclose Confidential Information if required by a regulation, law or court order, but only to the extent required to comply with such regulation, law or order, and only after providing reasonable advance notice to Intertrust to allow Intertrust to contest such disclosure.
4 – WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
4.1 Warranty Disclaimer. THE EVAL SOFTWARE AND ANY CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, INTERTRUST EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OF NONINFRINGEMENT. THERE IS NO WARRANTY THAT THE FUNCTIONS CONTAINED IN THE EVAL SOFTWARE WILL MEET COMPANY’S REQUIREMENTS, OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE. INTERTRUST DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE EVAL SOFTWARE AND/OR CONFIDENTIAL INFORMATION WITH RESPECT TO ITS PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE.
4.2 Limitation of Liability. Intertrust shall not be liable to Company (including any of its employees, agents, affiliates, and customers) or any other persons, for any lost profits or any incidental, indirect, special, or consequential damages, for the breach of any terms or conditions of this Agreement, the use or performance of the Eval Software, or otherwise related to or arising from this Agreement. In no event will Intertrust be liable in the aggregate to Company or any third party for any claim related to, arising from or in connection with this Agreement, including the use or performance of the Eval Software, for more than the total amount paid by Company to Intertrust under this Agreement or ten (10) dollars, whichever is greater. Company acknowledges and agrees that each provision of this Agreement that provides for a disclaimer of warranties or an exclusion or limitation of damages represents an express allocation of risk, and is part of the consideration of this Agreement.
5 – INDEMNIFICATION
Company agrees to indemnify, hold harmless and, upon Intertrust’s request, defend and/or assist in defending, Intertrust, and its affiliates, licensors and agents from and against any losses, claims, damages, liabilities or expenses paid to a third party (including reasonable attorney’s fees) related to or arising out of any breach by Company of its covenants hereunder, or any exploitation or use by Company of the Eval Software under this Agreement. If any claim is brought by a third party for which a claim of indemnification is or may be provided hereunder, Intertrust shall provide prompt written notice to Company. In such instance, Company shall have the right to control the defense and/or settlement of any claim provided that the parties cooperate reasonably with each other in the defense of any claim, including making available (under seal if desired, and if allowed) all records reasonably necessary to the defense of such claim, and Intertrust shall have the right to join and participate (through its own counsel and at its own expense) actively in Company’s defense of the claim. Intertrust shall be entitled to prior written notice of any settlement of any claim to be entered into by Company. Notwithstanding the foregoing, Company shall have no right, without Intertrust’s written consent, which consent shall not be unreasonably withheld, to settle any such claim if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of Intertrust, or requires any specific performance or non-pecuniary remedy by Intertrust.
6 – TERM AND TERMINATION
6.1 Term of Agreement. The term of this Agreement shall commence on the earlier of (i) the date that you have checked the “I accept the terms of the ExpressPlay Special Product Evaluation License Agreement” checkbox above and submitted the associated web form to accept this Agreement, and (ii) the date that you installed, copied or otherwise used the Eval Software. The term of this Agreement shall continue for a period of six (6) months unless terminated earlier pursuant to Section 6.2 (the “Term”).
6.2 Termination. This Agreement and the licenses granted hereunder shall be subject to termination upon the occurrence of any of the following events or such other provisions hereof expressly so stating: (a) if a Party defaults on any of its material obligations under this Agreement, the non-defaulting Party may immediately terminate this Agreement by written notice describing with reasonable specificity the nature of the default; or (b) upon fifteen (15) days prior written notice by a Party to the other Party. Upon expiration or termination hereof, any and all licenses granted hereunder shall automatically terminate; provided that the provisions of Sections 1.3, 1.4, 1.5, 2, 3, 4, 5, 7 and this Section 6 shall survive such expiration or termination.
7 – GENERAL PROVISIONS
7.1 Dispute Resolution. This Agreement and any actions between the Parties involving this Agreement, the Eval Software and/or any Confidential Information shall be governed solely by, and construed solely in accordance with, the laws of the State of California, excluding conflict of laws principles. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to the Eval Software in any competent jurisdiction. In connection with any litigation between the Parties each Party hereby unconditionally and irrevocably consents to the exclusive jurisdiction of and venue in the U.S. District Court for the Northern District of California (San Jose Division) or if federal jurisdiction and venue is not appropriate, the state courts there located.
7.2 Miscellaneous. If any provision or portion of this Agreement is held to be unenforceable, such provision or portion shall be enforced to the maximum extent permissible consistent with the terms hereof, and the remainder of this Agreement shall continue in full force and effect. Company acknowledges that the Eval Software may be subject to United States export controls imposed under the Export Administration Regulations of the U.S. Department of Commerce and other relevant regulations. Company agrees that it shall comply with all applicable federal, state and local laws, regulations, and export requirements in connection with its use of the Eval Software. This Agreement may not be amended or modified, and no provision may be waived, without a writing signed by the Parties. This Agreement may not be assigned by a Party (whether expressly or by operation of law) without the prior written consent of the other party. Nothing contained herein shall be construed to constitute the Parties as partners, joint venturers, or agents of the other.
7.3 Entire Agreement. This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements and understandings between the Parties with respect to the subject matter hereof.
EXHIBIT A – Eval Software
ExpressPlay™ Source SDK
ExpressPlay Source SDK includes the following software components in source form:
A collection of client components, applications, and tools developed to accelerate the deployment of Marlin-enabled media player applications and Marlin-enabled services access functions on embedded devices and desktop computers. It exposes a subset of the Sushi API, is provided in source form, and has been compiled on and cross-compiled to a number of desktop and embedded OS’s and chipsets.
A C/C++ software development kit (SDK) that exposes a simple application programming interface providing access to the Marlin DRM functionality necessary to implement a Marlin Broadband Client. Included in this SDK are a number of tools and examples, such as command line utilities to exercise the Marlin client-server protocols to the extent necessary for testing and debugging. The SDK is included in binary and source form and includes build targets for a number of platforms, as well as detailed API documentation.
Cryptanium™ CP Tool: A version of the Cryptanium Code Protection command-line tool intended for hardening modern software applications on multiple platforms.
ExpressPlay Server is a Java-based installable server that implements server-side Marlin Broadband DRM functionality. It includes a test service that implements rudimentary backend logic.