NVIDIA VIDEO CODEC SDK LICENSE AGREEMENT

NVIDIA VIDEO CODEC SDK LICENSE AGREEMENT (“Agreement”)

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.

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.

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.

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.

    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

    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. 

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.

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.

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.

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.

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.

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.

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.
