DISTRIBUTION LICENSE AGREEMENT FOR REALPLAYER BASIC and/or REALPLAYER BASIC with REALJUKEBOX BASIC
This RealPlayer Basic and/or RealPlayer Basic with RealJukebox Basic Distribution License Agreement (this "Agreement") is effective as of _________, 2001 (the "Effective Date"), between RealNetworks, Inc., with an address at 2601 Elliott Avenue, Seattle, Washington 98121 ("RN"); and _____________________________________________, with an address at _________________________________________ ("Licensee"). In consideration for the mutual promises and covenants contained herein, the parties agree as follows:
1. Grant of License. Subject to the terms and conditions of this Agreement, RN hereby grants Licensee a non-exclusive, non-transferable, worldwide, royalty-free license during the term to reproduce and distribute the most current (as indicated on the online Registration Form) free version of the RealPlayer and/or RealJukebox (collectively, "RN Products") to end users in executable, object code form only. Licensee shall comply with the following conditions in connection with the RN Products:
(a) Licensee may only distribute the RN Products on physical media (CD-ROMs, DVDs, or diskettes);
(b) RN Products shall only be licensed and not sold;
(c) a copy of RN's standard end user license agreement, provided by RN, must accompany each copy of the RN Products distributed. Licensee must not interfere with the license acceptance procedure through which end users must click "I accept" before they can install and use the RN Products;
(d) if the RN Products are distributed on a stand-alone basis, Licensee may not charge any amount for the RN Products and must distribute the RN Products for free;
(e) if the RN Products are distributed as part of bundle containing the RN Product and other third party software ("Bundle"), Licensee may charge for such Bundle provided that Licensee shall license the Bundle at the same (or lower) fee at which it licenses any reasonably equivalent bundle which does not include the RN Product;
(f) Licensee may not distribute or transmit the RN Product to any third party electronically or via download from the Internet;
(g) Licensee may not distribute, license, sub-license, offer for sale, or sell the RN Products to other resellers or original equipment manufacturers. Licensee may only distribute the RN Products to end users. Notwithstanding the foregoing Licensee may provide RN Products as a Bundle to resellers for distribution to Licensee's customers.
(h) Licensee will not include on any Licensee Products distributed with the RN Products any other software product that is installed in such a way that it (i) replaces the RN Products as the default player for any file extensions supported by the RN Products, such as RealAudio (.ra), RealVideo (.rm), or MP3; (ii) replaces the RN Products as the default player for any MIME types supported by the RN Products, such as: audio/x-pn-realaudio, audio/x-pn-realaudio-plugin, audio/x-pn-realaudio,ram, audio/vnd.rn-realaudio, vnd.rn-realmedia and video/vnd.rn-realvideo; or (iii) in any way impairs the functionality of the RN Products.
2. RN Products. Notwithstanding anything to the contrary in this Agreement, RN may change the design, functionality or specifications of any of the RN Products to conform to any legal restrictions relating to encryption, copy protection, the U.S. Copyright Act (including the Audio Home Recording Act), or any other applicable legal authority in any country in which the RN Products are intended by either party to be distributed, or in response to a claim that the RN Product infringes the rights of any third party. In such event, RN shall provide Licensee with written notice of such changes as soon as practicable. Licensee shall cease manufacturing and distributing copies of any such potentially non-conforming or infringing version of the RN Products software as identified in such notice, as soon as practical, and in any event within fourteen (14) days of receipt of a replacement version from RN.
3. Reservation of Rights. Title to and ownership of all intellectual property rights in and to the RN Products (including but not limited to all computer codes, animations, photographs, images, video, audio, text, and music therein) are the exclusive property of RN and its suppliers. The RN Products are protected by the laws of the United States and international treaties. All rights not specifically granted herein to Licensee are reserved to RN. Except as expressly provided herein, Licensee shall not copy, modify in any way, reproduce, display, decompile, reverse engineer, store, translate, sell, lease or otherwise transfer, distribute or use the RN Products without RN's prior written consent.
4. Reproduction Kit. RN shall provide a confidential FTP download site from which Licensee may download the RN Products. Licensee shall bear all costs associated with reproducing the RN Products for the purposes of this Agreement.
5. Updates. In the event that RN elects to make available under this Agreement an update to a RN Product, RN shall notify Licensee of the availability of any such updates. Subject to Licensee's right to exhaust its then-existing inventory of the applicable RN Product, Licensee shall use its best effort to immediately replace the RN Products it is distributing with the update. Licensee agrees to give RN written notice of any Licensee update to any Bundles no later than thirty (30) days prior to the start of beta testing of such update. Licensee agrees to include the version of the RN Products that RN requests in the Licensee update.
6. Use of RN's Trademarks. Licensee acknowledges that "RN," "RealNetworks," "RealAudio," "RealVideo," "RealPlayer," "RealJukebox" and other marks and logos used by RN with the RN Products (the "RN Marks") are trademarks of RN. RN hereby grants to Licensee a non-exclusive, limited license to use the RN Marks solely in connection with Licensee's distribution of the RN Product in the form and manner set forth in RN's Trademark Usage Guidelines found at http://www.realnetworks.com/press/resources/trademark-policy.aspx. Licensee shall cooperate with RN in facilitating RN's monitoring and control of the nature and quality of products and services bearing the RN Marks. Upon RN's request, Licensee shall promptly provide RN with samples of any product or documentation bearing the RN Marks. If RN determines that Licensee is using the RN Marks improperly, Licensee shall immediately remedy the improper use. Licensee does not hereby acquire any ownership or other rights in the RN Marks.
7. Proprietary Notices. Licensee and its employees and agents shall not remove or alter any proper trademark, copyright, or other proprietary notices on or in copies of the RN Products. In addition, Licensee shall place a notice in packaging containing the RN Products that reads: "The RealPlayer and the RealJukebox are included under license from RealNetworks, Inc. Copyright 1999. RealNetworks, Inc. Patents pending. All rights reserved."
8. Packaging. Licensee shall place on Bundle packaging (box and any CD packaging therein) RN's RealPlayer Logo and RealJukebox Logo, available for download at http://www.realnetworks.com/company/guide/logos/index.html. Licensee shall use the RealPlayer and RealJukebox Logos only in accordance with the RealPlayer and RealJukebox Logo guidelines available at the foregoing URL. The RealPlayer and RealJukebox Logos must be featured as prominently as all other logos appearing on the Bundle packaging.
9. Hypertext Link. Licensee shall establish and maintain a hypertext link from Licensee's primary website to RN's RealPlayer Download Page at https://www.real.com/player/index.html and to RN's RealJukebox Download page https://www.real.com/jukebox/index.html. Licensee agrees: to either tag the "Get RealPlayer Free" Logo to activate such link, or to place the "Get RealPlayer Free" Logo immediately adjacent to any such hypertext link, and to either tag the "Get RealJukebox Free" Logo to activate the link to the RealJukebox Download page or to place the "Get RealJukebox Free" Logo immediately adjacent to any such hypertext link; Licensee shall to use the Logos only in accordance with RN's Logo usage guidelines at https://www.real.com/company/guide/logos/.
10. Corporate Distribution and Use. Licensee may distribute the RN Products to end users within Licensee's corporation or business entity, however the RN Products shall only be used by such end users to receive content from externally owned and operated Websites. Licensee shall not use the RN Products to stream content from its Intranet servers without first obtaining the appropriate license from RN.
11. Privacy. Licensee shall: (a) post its privacy statement on its Web site; (b) clearly disclose to end users what information is being collected in connection with distributing the RN Products; (c) enable end users to opt-out of receiving e-mails or other communications resulting from the information that is collected in connection with distributing RN Products; and (d) receive informed consent from each end user for any personally identifiable information that is collected by Licensee from such end user. Licensee may not sell, rent or disclose to third parties any personally identifiable information collected from end users in connection with its distribution of RN Products under this Agreement.
12. Reports. Licensee shall report to RN within thirty (30) calendar days after the end of each calendar quarter the quantity of each RN Product distributed during such quarter, specified by country. Such reports shall be provided in written or electronic form to RN (Attention: E-Commerce Marketing Specialist, RealNetworks, Inc., 2601 Elliott Avenue, Seattle, WA 98121 email: client_distribution@real.com).
13. Term/Termination. The term of this Agreement shall be one (1) year from the Effective Date (the "Term"). Without prejudice to any other rights, RN may terminate this Agreement if it provides written notice to Licensee that it has failed to comply with this Agreement, and Licensee does not cure such failure within the ten (10) day period. Upon any termination of this Agreement, Licensee's license rights to the RN Products shall cease and Licensee shall destroy all copies of RN Products. Termination shall not affect the rights of end users to continue using copies of the RN Products already distributed by Licensee.
14. Disclaimer of Warranties and Limitation of Liability. THE RN PRODUCTS ARE PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND. RN DOES NOT WARRANT THAT PERFORMANCE OF THE RN PRODUCTS WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE OR THAT ANY SOFTWARE DEFECTS ARE CORRECTABLE OR WILL BE CORRECTED. RN DOES NOT WARRANT THAT THE RN PRODUCTS DO NOT INCLUDE ANY VIRUS, SOFTWARE ROUTINE OR OTHER SOFTWARE DESIGNED TO PERMIT UNAUTHORIZED ACCESS, TO DISABLE, ERASE OR OTHER WISE HARM SOFTWARE, HARDWARE, OR DATA; OR TO PERFORM ANY OTHER SUCH ACTIONS. TO THE MAXIMUM EXTENT PERMITTED BYAPPLICABLE LAW, RN FURTHER DISCLAIMS ALL WARRANTIES IN THE RN PRODUCT AND RN MARKS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR DISTRIBUTION OF THE RN PRODUCTS OR USE OF THE RN MARKS REMAINS WITH LICENSEE. LICENSEE ACKNOWLEDGES THAT THE RN PRODUCTS ARE NOT INTENDED TO BE USED IN CONNECTION WITH ANY HIGH RISK ACTIVITY OF ANY KIND. RN's TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY CAUSE SHALL NOT EXCEED $5,000 OR THE FEES RECEIVED BY RN UNDER THIS AGREEMENT, WHICHEVER IS GREATER. IN NO EVENT SHALL RN BE LIABLE TO LICENSEE OR ANY OTHER THIRD PARTY FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF RN OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. Indemnity. Licensee shall indemnify, hold harmless, and defend RN from any and all damages, costs and expenses, including reasonable attorney's fees, incurred in connection with any claim that the combination, operation or use of the RN Products with any software or hardware with which Licensee has bundled the RN Products infringes the intellectual property rights of any third party, provided that Licensee is notified promptly in writing of such claim and has sole control over its defense and settlement and RN provides reasonable assistance at Licensee's expense.
16. Independent Contractor. The relationship created by this Agreement is one of independent contractors, and not partners or joint venturers.
17. Notices. All notices and demands under this Agreement will be in writing and will be delivered by personal service, confirmed e-mail, express courier, or certified mail, return receipt requested. All notices to RN shall be to the attention of the Legal Department, RealNetworks, Inc., 2601 Elliott Avenue, Seattle, WA 98121. All notices to Licensee shall be sent to Licensee at the address shown at the beginning of this Agreement. Either party may change its address for Notices by giving the other advance written notice.
18. Survival. The following sections survive any termination of this Agreement: Sections 3, 12, 13, 14, 15, 17, 18, 19, 20 and 21.
19. Export Licenses. Licensee acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin. Licensee is responsible for complying with all trade regulations and laws both foreign and domestic. Licensee acknowledges that the RN Products and their underlying information or technology may not be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria, or any other country subject to a U.S. Embargo; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List. By licensing the RN Products, Licensee agrees to the foregoing and is representing and warranting that (i) no U.S. federal agency has suspended, revoked, or denied Licensee's export privileges, (ii) Licensee is not located in or under control of a national or resident of any such country or on any such list, and (iii) Licensee will not export or re-export the Software to any prohibited country, or to any prohibited person, entity, or end-user as specified by U.S. export controls. If Licensee exports the RN Products from the United States, Licensee shall indemnify and hold RN harmless from and against any duties, penalties on other claims arising out of or relating to such exportation and importation.
20. Non-Waiver. The waiver by either party of any breach of this Agreement by the other party will not waive subsequent defaults by such party of the same or a different kind. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof.
21. Governing Law. This License Agreement shall be governed by the laws of the State of Washington, without regard to conflicts of law provisions, and Licensee consents to the exclusive jurisdiction of the state and federal courts sitting in the state of Washington. Unless otherwise agreed in writing, all unresolved disputes arising under this Agreement shall be submitted to arbitration in the State of Washington. The arbitration shall be conducted under the rules then prevailing of the American Arbitration Association. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
22. Entire Agreement/Amendment. This Agreement constitutes the complete and exclusive agreement between RN and Licensee with respect to its subject matter, and supersedes all prior oral or written understandings, communications or agreements, (notwithstanding any variance with any purchase order or other written instrument submitted by Licensee, whether formally rejected by RN or not), and may not be modified except in a writing duly signed by an authorized signatory of RN and Licensee
INTENDING TO BE LEGALLY BOUND, the parties have executed this Agreement by their duly authorized representatives, to be effective as of the date first written above.