DISTRIBUTION LICENSE AGREEMENT FOR THE REALPLAYER OR REALJUKEBOX
This RealPlayer and/or RealJukebox Distribution License Agreement (this "Agreement") is effective as of the date you click on the "Accept" button to agree to the terms of this Agreement (the "Effective Date"). This Agreement is a legal agreement between RealNetworks, Inc., with an address at 2601 Elliot Avenue, Seattle, Washington 98121 ("RN") and your organization, with the name and address as provided in the information collection registration form ("Licensee"). Further, you represent and warrant that you have the authority to bind the Licensee to the terms of this Agreement. In consideration for the mutual promises and covenants contained herein, the parties agree as follows:
Definition following capitalized terms shall have the meanings set forth below:
(a) "Real Player" means the free version of Real's proprietary software product, currently called the "Real Player," in object code form only, as may be modified from time to time in Real's sole discretion, that is capable of (i) playing streaming audio, video and other datatypes in real time over networks; and (ii) extracting, compressing and encrypting media files, downloading and playing back media files on personal computers, and transferring, managing and playing back media files on electronic devices. The Real Player also includes all Updates of the Real Player made available to Licensee by Real during the Term, but does not include any custom versions of Real Player. The term "RealPlayer" also includes the "RealOne Player".
(b) "Real Marks" means all trademarks and/or registered trademarks of Real, including, but not limited to, "RealAudio", "RealVideo", "Real Player" ,"RealOne Player" and such marks as Real may make available to Licensee from time to time.
(c) "Real Products" means copies of Real’s Real Player software.
(d) "Term" means the term of this Agreement as set forth in Section 10.
(e) "Updates" means patches, fixes, updates, enhancements, and free successor versions to the Real Products provided to the general public by Real at its sole discretion. Updates do not include any version of a Real product that has been customized for a third party.
Grant of License. Subject to the terms and conditions of this Agreement, Real 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 Real Products to end users in executable, object code form only. Licensee shall comply with the following conditions in connection with the Real Products:
(a) Licensee may only distribute the Real Products on physical media (CD-ROMs, DVDs, or diskettes);
(b) Real Products shall only be licensed and not sold;
(c) The copy of Real's standard end user license agreement, provided by Real, must accompany each copy of the Real 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 Real Products;
(d) the Real Products may be distributed as part of bundle containing the Real Product and other third party software ("Bundle");
(e) Licensee may not distribute or transmit the Real Product to any third party electronically or via download from the Internet;
(f) Licensee may not license or sub-license, Real Products to other resellers or original equipment manufacturers. Licensee may provide Real Products as a Bundle to resellers for distribution to Licensee’s customers; and
(g) Licensee will not include on any Licensee Products distributed with the Real Products any other software product that is installed in such a way that it (i) replaces the Real Products as the default player for any file extensions supported by the Real Products, such as RealAudio, RealVideo, or MP3; (ii) replaces the Real Products as the default player for any MIME types supported by the Real 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 Real Products.
Real Products. Notwithstanding anything to the contrary in this Agreement, Real may change the design, functionality or specifications of any of the Real 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 Real Products are intended by either party to be distributed, or in response to a claim that the Real Product infringes the rights of any third party. In such event, Real 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 Real 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 Real.
Reservation of Rights. Title to and ownership of all intellectual property rights in and to the Real Products (including but not limited to all computer codes, animations, photographs, images, video, audio, text, and music therein) are the exclusive property of Real and its suppliers. The laws of the United States and international treaties protect the Real Products. All rights not specifically granted herein to Licensee are reserved to Real. Except as expressly provided herein, Licensee shall not modify in any way, decompile, reverse engineer, otherwise transfer, distribute or use the Real Products without Real's prior written consent.
Reproduction Kit. Real shall provide a download site from which Licensee may download the Real Products. Licensee shall bear all costs associated with reproducing the Real Products for the purposes of this Agreement.
Updates. From time to time, Real may elect to make available under this Agreement an Update to a Real Product. In the event that Licensee is made aware of an Update and subject to Licensee’s right to exhaust its then-existing inventory of the applicable Real Product, Licensee shall use commercially reasonable efforts to immediately replace the Real Products it is distributing with the Update.
Use of Real's Trademarks. Licensee acknowledges that the Real Marks are trademarks of Real. Real hereby grants to Licensee a non-exclusive, limited license to use the Real Marks solely in connection with Licensee's distribution of the Real Products in the form and manner set forth in Real's Trademark Usage Guidelines found at http://www.realnetworks.com/company/logos/index.html
. Licensee shall cooperate with Real in facilitating Real's monitoring and control of the nature and quality of products and services bearing the Real Marks. Upon Real's request, Licensee shall promptly provide Real with samples of any product or documentation bearing the Real Marks. If Real determines that Licensee is using the Real Marks improperly, Licensee shall immediately remedy the improper use. Licensee does not hereby acquire any ownership or other rights in the Real Marks.
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 Real Products. In addition, Licensee shall place a notice in packaging containing the Real Products that reads: "Real Player is included under license from RealNetworks, Inc. Copyright 1995-2003, RealNetworks, Inc. All rights reserved.
Packaging. Licensee shall place on Bundle packaging (box and any CD packaging therein) the logo for the Real Product(s) ("Real Logo"), available for download at http://www.realnetworks.com/company/logos/index.html
. Licensee shall use the Real Logos only in accordance with the Real Logo guidelines available at the foregoing URL. The Real Logos must be featured as prominently as all other 3rd party logos appearing on the Bundle packaging.
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 Real 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 Real 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 Real Products under this Agreement.
Term/Termination. The Term of this Agreement shall be one (1) year from the Effective Date. Without prejudice to any other rights, either party may terminate this Agreement upon written notice to the other party if such other party has failed to comply with this Agreement, and does not cure such failure within a ten (10) day period. Upon the expiration or termination of this Agreement for any reason, Licensee’s license rights hereunder to distribute the Real Product will cease, and Licensee will cease all use of the Real Product.
Disclaimer of Warranties and Limitation of Liability. THE REAL PRODUCTS ARE PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND. REAL DOES NOT WARRANT THAT PERFORMANCE OF THE REAL PRODUCTS WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE OR THAT ANY SOFTWARE DEFECTS ARE CORRECTABLE OR WILL BE CORRECTED. REAL DOES NOT WARRANT THAT THE REAL 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, REAL FURTHER DISCLAIMS ALL WARRANTIES IN THE REAL PRODUCT AND REAL 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 REAL PRODUCTS OR USE OF THE REAL MARKS REMAINS WITH LICENSEE. LICENSEE ACKNOWLEDGES THAT THE REALPRODUCTS ARE NOT INTENDED TO BE USED IN CONNECTION WITH ANY HIGH RISK ACTIVITY OF ANY KIND. REAL’s TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY CAUSE SHALL NOT EXCEED $5,000 OR THE FEES RECEIVED BY REAL UNDER THIS AGREEMENT, WHICHEVER IS GREATER. IN NO EVENT SHALL REAL 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 REAL OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Indemnity. Licensee shall indemnify, hold harmless, and defend Real 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 Real Products with any software or hardware with which Licensee has bundled the Real 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 Real provides reasonable assistance at Licensee’s expense.
Independent Contractor. The relationship created by this Agreement is one of independent contractors, and not partners or joint venturers.
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 Real 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.
Press Releases. Licensee agrees to allow Real the right to issue a press release announcing the relationship of the parties. Neither party will issue any press releases concerning this Agreement without the written consent of the other party.
Survival. The following sections survive any termination of this Agreement: 4, 12, 13, 15, 16, 17, 18, 19, 20 and 21.
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 Real 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 Real 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 Real Products from the United States, Licensee shall indemnify and hold Real harmless from and against any duties, penalties on other claims arising out of or relating to such exportation and importation.
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.
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.
Entire Agreement/Amendment. This Agreement constitutes the complete and exclusive agreement between Real 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 Real or not), and may not be modified except in a writing duly signed by an authorized signatory of Real and Licensee.