Genvid SDK License Agreement
Last updated 12/19/2019
This Genvid SDK License Agreement (the “License”) governs your use of the Genvid SDK (defined below) provided by Genvid Technologies, Inc., a Delaware corporation located at 1325 Avenue of the Americas 28th Floor, Suite 2822, New York, NY 10019 USA (“Genvid”) except to the extent you have executed a separate supplementary agreement governing your use of the Genvid SDK, as set out below. You are required to indicate your acknowledgement and consent to this License in order to complete the installation process for the Genvid Technologies SDK. By clicking on the Submit button, you are acknowledging to the terms of this License and are consenting to be bound by it.
If you agree to this License on behalf of a legal entity such as a company, corporation, partnership, etc. (referred to as the “Business”), you represent and warrant that you have the power and authority to bind the Business to this License. In such case, the terms “you” and “your” refer to the Business.
IF, HOWEVER, YOU ARE UNWILLING TO AGREE TO THIS LICENSE OR DO NOT HAVE THE POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND THE BUSINESS, DO NOT CLICK ON THE BUTTON AND DO NOT INSTALL OR OTHERWISE USE THE GENVID SDK.
The following terms have the following meanings:
(a) “Business” has the meaning set out in the preamble of this License.
(b) “Commercially-Licensed Product” means a Licensee Product in connection with which Licensee desires to generate Interactive Streams for public broadcasting and from which Interactive Streams Licensee directly or indirectly derives revenues.
(c) “Feedback” means all suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Licensee (whether in oral, electronic or written form) to Genvid in connection with Licensee’s use of the Genvid SDK.
(d) “Game Item” means an item that is generated by and used in a Licensee Product’s engine or that otherwise has an effect on Player’s game account.
(e) “Genvid SDK” means the software and documentation contained in this package, which is a software development kit that provides developers the ability to add a functionality to their games or other similar interactive media or products allowing them to produce Interactive Streams. The Genvid SDK comprises object libraries that are incorporated into Licensee Products to enable the production of Interactive Streams as well as server and client components that are respectively deployed to broadcast Interactive Streams and allow viewers to connect to, and interact with, Interactive Streams.
(f) “Interactive Stream” means a dynamic, interactive broadcast stream generated in real-time from a Licensee Product incorporating the Genvid SDK.
(g) “Licensee” means the individual or Business accepting this License;
(h) “Licensee Products” means Licensee’s games or other interactive media or products in which Licensee uses and integrates the Genvid SDK to enable the generation of Interactive Streams.
(i) “Player” means a player whose performance playing the Licensee Product is captured through an Interactive Stream.
(j) “Purchases” means purchases of Game Items and Viewer Items.
(k) “Royalties” has the meaning set out in Section 3.3(a).
(l) “Supplementary Commercial License” means a supplementary agreement between Licensee and Genvid pursuant to which certain restrictions set out in this License are lifted or modified.
(m) “Taxes” has the meaning set out in Section 3.3(b).
(n) “Unique Monthly Viewers” means a viewership metric aiming at calculating the number of unique Viewers of each Interactive Streams broadcast by Licensee or on its behalf during a calendar month.
(o) “Viewer” means an individual viewer of an Interactive Stream.
(p) “Viewer Item” means an item solely represented in Interactive Streams that is not a Game Item. Examples of Viewer Items include subscriptions, visual overlays, skins or other premium items that are not generated by and used in the Licensed Product’s engine.
2.1. Licenses. Subject to Section 2.2 and the other terms and conditions of this License, Genvid grants the following licenses to Licensee:
(a) Installation: a non-exclusive, non-transferable, limited royalty-free license to reproduce and install the Genvid SDK on Licensee computers and workstations and use the Genvid SDK for the incorporation and integration of the Genvid SDK into Licensee Products.
(b) Evaluation and Testing Purposes: a non-exclusive, non-transferable, limited royalty-free license to (i) use the Genvid SDK to produce Licensee Products, (ii) integrate and incorporate the server components of the Genvid SDK into Licensee Products, (iii) use and run Licensee Products to produce and broadcast Interactive Streams, and (iv) use, reproduce, publicly perform, display, and distribute, make available for downloading and make available for access the client components of the Genvid SDK to allow viewers to connect to Interactive Streams produced by Licensee, but solely for evaluation and testing purposes. Once Licensee produces Interactive Streams for purposes other than evaluation and testing, including once Licensee derives revenue from Interactive Streams in connection with a specific Licensee Product, the right and license granted pursuant to this paragraph 2.1(b) in connection with such Licensee Product will automatically terminate; and
(c) Public Broadcast of Interactive Streams: subject to Licensee’s compliance with the provisions of Section 3, a non-exclusive, non-transferable, and limited license to (i) use the Genvid SDK to produce the Commercially-Licensed Product; (ii) integrate and incorporate the server components of the Genvid SDK into the Commercially-Licensed Product, (iii) use and run the Commercially-Licensed Product to produce and broadcast Interactive Streams, and (iii) use, reproduce, publicly perform, display, and distribute, make available for downloading and make available for access the client components of the Genvid SDK to allow viewers to connect to Interactive Streams produced by Licensee. Licensee will notify Genvid of its planned commercial use of the Genvid SDK in connection with a Commercially-Licensed Product by contacting Genvid at firstname.lastname@example.org at least 15 days prior to the first public broadcast of an Interactive Stream for the Commercially-Licensed Product.
2.2. Restrictions. Licensee may not
(a) use the Genvid SDK (i) to develop software, products or services that: (A) constitute, promote or is used primarily for activities which are illegal, violate the rights of third parties, are fraudulent or misleading, (B) could harm the name or reputation of Genvid, or (C) which could harm, modify or misappropriate software or data on an end user’s computer, including but not limited to spyware, or other malicious programs or code, the distribution of unsolicited email (“spam”), multi-level marketing proposals, hate materials, or containing content which is libelous, defamatory, obscene, pornographic, abusive or otherwise offensive (ii) in support of a claim by you or any third party that the Licensed Technology infringes a patent.
(b) reproduce, copy, distribute, sublicense, make available, display, disclose or use the Genvid SDK or any components of the Genvid SDK in any manner not expressly authorized in this License. Licensee may not reverse engineer, reverse compile or otherwise attempt to reveal or access source code to the Genvid SDK (except to the extent already visible in source code form in the Genvid SDK). The restriction against reverse engineering, reverse compilation or other measure to access source code set out in the preceding sentence does not apply to the “Gvencode” executable of the Licensed Technology, which comprises the following files from the distribution package: bin/gvencode.exe, images/gvencode_*.zip. For clarity, the restrictions against unauthorized reproduction, copy, distribution, display, disclosure, etc. set out in the first sentence of this paragraph 2.2(b) still apply to the “Gvencode” executable.
(c) copy the Genvid SDK, Licensee Products or Commercially-Licensed Products onto any public or distributed network.
(d) use the Genvid SDK to operate in or as a time-sharing, outsourcing, service bureau, application service provider or managed service provider environment.
(e) use the Genvid SDK or any of its components as a standalone application or any other purpose than the production of, or integration into Licensee Products or Commercially-Licensed Products.
(f) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Genvid SDK;
(g) modify the Genvid SDK.
(h) release any Licensee Product pursuant to any “copyleft” or “community source” license, including but not limited to the GNU General Public License, Lesser General Public License or similar license arrangement in a manner that would require (or purport to require) the distribution, license, or disclosure of the source code of the software being licensed or derivative works thereof.
(i) use the Genvid SDK in any type of a system or application in which the failure of the software or hardware could create a situation where personal injury or death may occur (e.g., medical systems, life sustaining or lifesaving systems). Should Licensee use the Genvid SDK for any such unintended or unauthorized use, Licensee hereby agrees to indemnify, defend, and hold Genvid and its officers, employees and affiliates harmless against all claims, costs, damages, expenses, and reasonable attorney fees arising out of, directly or indirectly, such use and any claim of product liability, personal injury or death associated with such unintended or unauthorized use, even if such claim alleges that Genvid was negligent regarding the design or development of the Genvid SDK.
2.3. Updates and Upgrades. Genvid may release updates or upgrades to the Genvid SDK from time to time and such updates and upgrades will be governed by this License, unless Genvid makes access to such updates or upgrades subject to entering into a new agreement.
3. COMMERCIAL USE OF GENVID SDK
3.1. Commercially-Licensed Product. Should Licensee’s use of the Genvid SDK be made pursuant to Section 2.1(c), all references to Licensee Products in this License will be meant to be references to the specific Commercially-Licensed Product.
3.2. Restrictions. Should Licensee’s use of the Genvid SDK be made pursuant to Section 2.1(c), the License does not allow for stream-based transactions such as Game Items or Viewer Items Purchases, unless Licensee executes a Supplementary Commercial License by contacting Genvid at email@example.com.
(a) In consideration for the grant of a license to use the Genvid SDK for commercial purposes pursuant to Section 2.1(c), Licensee agrees to pay to Genvid a USD$0.07 fee per Unique Monthly Viewer (the “Royalties”) for each Interactive Stream generated by its Commercially-Licensed Product(s).
(b) The amount of Royalties is exclusive of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, “Taxes”) and Licensee is solely responsible for the payment of all such Taxes, arising from Genvid’s provision of the License hereunder and Licensee’s payment of the Royalties, except any taxes assessed on Genvid’s net income. If Genvid is required to directly pay Taxes related to Licensee’s use of the Genvid SDK hereunder, Licensee agrees to promptly reimburse Genvid for any amounts paid by Genvid.
3.4. Tracking and Reporting. Licensee is responsible for tracking and reporting on a monthly basis Unique Monthly Viewers of the Interactive Streams for its Commercially-Licensed Product(s). Licensee will deploy and maintain a tracking mechanism acceptable to Genvid to account for and report the number of Unique Monthly Viewers as well as the following reporting metrics: average viewing time, total hours streamed and peak concurrent viewers. Such tracking mechanism should provide comprehensive logging capability to allow an audit of reported Unique Monthly Viewers. In addition to monthly reporting associated with the payment of Royalties as set out in Section 3.5(a), Licensee will also provide up-to-date reports to Genvid at any time upon demand.
3.5. Payment of Royalties.
(a) Licensee will produce the activity reports referenced in Section 3.4 and pay the associated Royalties within 30 days from the end of a month. Licensee will produce activity reports even when the amount of Royalties owed during a month is nil. Once monthly Royalties payable by Licensee reach $1,000, Licensee will pay in advance each month 25% of the average monthly Royalties for the preceding 3 months. The difference between the amount of Royalties actually due by Licensee for a month and the amount invoiced in advance for such month will be paid upon presentation of the activity report for such month.
(b) If Genvid does not receive Royalties by the due date, then at Genvid’s discretion, (i) such charges may accrue late interest at the rate of 15% per annum, calculated on a monthly basis on the outstanding balance, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
(c) Except to the extent required by law, all payments, fees and Royalties are non-refundable, regardless of whether or not this License has been terminated.
3.6. Adjustment of Rate of Royalties. Genvid may from time to time but not more than once per 12-month period notify Licensee of a modification of the rates of Royalties at least 90 days prior to such modification becoming effective. Should Licensee oppose such modification, Licensee will then cease to use the Genvid SDK for commercial purposes pursuant to Section 2.1(c).
4. INTELLECTUAL PROPERTY
4.1. Genvid SDK. The Genvid SDK is the property of Genvid and contains components that are the property of its third-party licensors. The Genvid SDK and its components are licensed, not sold, and Licensee is granted a limited license to use the Genvid SDK and its components as provided in this License. All right, title and interest in and to the intellectual property embodied in the Genvid SDK, including any improvements, enhancements or other modifications thereto made by Genvid, is owned by, and will remain the property of Genvid, including, without limitation, any associated patents, copyrights, trademarks and other intellectual property rights.
4.2. Licensee Products. All right, title and interest in and to the intellectual property embodied in the Licensee Products, including any improvements, enhancements or other modifications thereto made by Licensee, is owned by, and will remain the property of Licensee, including, without limitation, any associated patents, copyrights, trademarks and other intellectual property rights, subject to Genvid’s ownership of the Genvid SDK.
4.3. Third Party Software. The Genvid SDK and software it incorporates contain certain third party software that are subject to separate terms and conditions. The list of such third party software and of the required notices and/or additional terms and conditions are located in the installation folder and at https://www.genvidtech.com/Releases/Third%20Party%20Licenses.txt and are made a part of and incorporated by reference into this License. Such third-party software are not owned by Genvid but by their respective owners and the terms and conditions of this License do not apply to such third party software. By accepting this License, Licensee is also accepting the additional terms and conditions set out therein.
4.4. Feedback. Genvid is free to use, implement and incorporate in the Genvid SDK any Feedback of Licensee without payment of any consideration to Licensee. In the event Genvid uses Licensee’s Feedback, Licensee grants Genvid an unrestricted, perpetual, worldwide, exclusive, transferable, irrevocable, sublicensable, royalty-free, fully paid-up license to use, copy, modify, create derivative works of, make, have made, distribute (through multiple tiers of distribution), publicly perform or display, import, export, sell, offer to sell, rent, or license copies of the Feedback as part of or in connection with the Genvid SDK as well as any Genvid product, service, technology, content, material, specification or documentation. Licensee acknowledges that the Genvid Technologies SDK will remain the sole and exclusive property of Genvid, notwithstanding the use, implementation or incorporation of Feedback in them.
5.1. Indemnification. Licensee will defend, indemnify and hold harmless Genvid in connection with any third party claims asserted against Genvid related to or arising out of any Licensee Product, including but not limited to any product liability claim or any claim that a Licensee Product infringes a third party’s intellectual property rights, including patents, copyrights, trade secrets or trademarks (“Claim”); provided, however, that Licensee will not be required to provide indemnification under this Section in the event the claim is based solely on the Genvid SDK. In the event of any Claim being made or action brought against Genvid with respect to which Licensee is liable to indemnify Genvid hereunder, Genvid will promptly notify Licensee thereof and Licensee will be entitled to assume, control and conduct the defense of such Claim, including the settlement or compromise thereof; provided, however, that Licensee will not settle or compromise such Claim without the prior written consent of Genvid, which consent will not be unreasonably withheld or delayed.
5.2. Disclaimer. THE FOREGOING STATES THE ONLY INDEMNIFICATION OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT AND IN CONNECTION WITH THE GENVID SDK AND LICENSEE PRODUCTS.
6. DISCLAIMER OF WARRANTIES
Licensee acknowledges that the Genvid SDK may not be free from defects and may not satisfy all of Licensee’s needs. The Genvid SDK and any accompanying written materials are licensed “as is”. GENVID HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES IN CONNECTION WITH THE GENVID SDK, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO LICENSEE’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE OR THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The parties further agree that Genvid’s maximum liability pursuant to this License will be limited to $100.
8.1. Confidentiality. “Confidential Information” means all non-public information and documentation of Genvid, regardless of its form or medium and whether or not formally identified as “confidential”, including the Genvid SDK. All Confidential Information disclosed by Genvid to Licensee must be held in confidence by Licensee and protected from unauthorized use or disclosure using the same degree of care, but not less than a reasonable degree of care, as Licensee uses to protect its own information of a similar nature. Licensee must not disclose, publish, release, transfer or otherwise make available Confidential Information of, or obtained from, Genvid in any form to, or for the use or benefit of, any third party without Genvid’s consent. Licensee may disclose Genvid’s Confidential Information to its officers, directors, agents, professional advisors, contractors, subcontractors and employees, but only to the extent that such disclosure is reasonably necessary for the performance of its duties and obligations, or exercise of its rights, under this Agreement; provided, however, that (1) Licensee must take reasonable measures to ensure that Confidential Information of Genvid is not disclosed or duplicated in contravention of the provisions of this Agreement by such officers, directors, agents, professional advisors, contractors, subcontractors and employees, and (2) such officers, directors, agents, professional advisors, contractors, subcontractors and employees of Licensee are bound by obligations of confidentiality materially consistent with the obligations of confidentiality set forth in this paragraph. “
8.2. Exclusions. The obligations in section 8.1 do not restrict any disclosure required pursuant to any law (provided that Licensee gives prompt notice to Genvid of such order) and do not apply with respect to information (a) that is already or becomes publicly known other than through unauthorized disclosure, (b) Licensee can demonstrate to have had rightfully in its possession without an obligation of confidentiality prior to disclosure hereunder, as evidenced by Licensee’s contemporaneous written records, or (c) rightfully received from a third party free of any obligation of confidentiality provided that (i) such third party has no knowledge that such information is subject to a confidentiality agreement, and (ii) such information is not of a type or character that a reasonable person would have regarded it as confidential.
9. COMPLIANCE WITH LAWS
Each party will comply with all applicable laws in connection with their performance under this License. Licensee acknowledges that the Genvid SDK is subject to U.S. export control laws and regulations and will comply with those laws and regulations. Licensee represents that it is not, and does not employ anyone who is, a citizen of an embargoed country or prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists.
10. GOVERNING LAW
This License is governed by and construed in accordance with the laws of the State of New York, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Except for recourses for injunctive relief, which may be filed in any competent jurisdiction, any other legal action or proceeding arising under this License will be brought exclusively in the federal or state courts located in New York, New York and the parties hereby consent to the personal jurisdiction of such courts.
11. TERM AND TERMINATION
11.1. This License is effective until terminated. Licensee may terminate this License at any time by destroying all copies of the Software. Each Party may immediately terminate this License by giving the other written notice if the other Party: (i) defaults in the performance of any of its obligations under any of the terms or conditions of this License which default is not remedied within ten(10) days after notice thereof; (ii) defaults in the performance of any of its obligations under the terms and conditions which default, by its nature, cannot be remedied; (iii) is unable to pay any and/or all of its debts as they become due or becomes insolvent or ceases to pay any and/or all of its debts as they mature in the ordinary course of business, or makes an assignment for the benefit of its creditors; (iv) is liquidated or dissolved or if any proceedings are commenced by, for or against it under any bankruptcy, insolvency, reorganization
of debts or debtors relief law, or law providing for the appointment of a receiver or trustee in bankruptcy;.
11.2. All provisions except Section 2 of this License, will survive the termination or expiration of this License.
11.3. Upon any termination, the licenses granted pursuant to Section 2.1 will automatically terminate and Licensee must then destroy all copies of the Genvid SDK in its possession and cease distributing the Genvid SDK and Licensee Product incorporating such code. End users who have purchased Licensee Products prior to termination of this License may continue to use such Licensee Products after termination.
12. GENERAL CONDITIONS
(a) Genvid may give notice to Licensee by means of a general notice through the SDK download interface, electronic mail to Licensee’s e-mail address on record in Genvid’s account information, or by written communication sent by postal mail or nationally recognized overnight delivery service to Licensee’s address on record in Genvid’s account information. Licensee may give notice to Genvid by electronic mail or by written communication sent by postal mail or nationally recognized overnight delivery service addressed to Genvid Technologies, Inc., 1325 Avenue of the Americas 28th Floor, Suite 2822, New York, NY 10019 USA, Attention: Legal Department. Notice will be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable.
(b) Genvid may modify this License at any time in its discretion by providing notice to Licensee or by providing Licensee with access to the amended License upon login to Licensee’ s account or download of new versions of the Genvid SDK. Licensee is not required to accept the amended License. However, in order to continue to use the Genvid SDK, Licensee must accept the amended License in a similar fashion to the original License.
(c) Genvid does not have any support obligations with respect to the Genvid SDK pursuant to this License. Support resources may be obtained by contacting firstname.lastname@example.org.
(d) Genvid may conduct reasonable audits to ensure Licensee’s compliance with the terms and conditions of this License. Audits will be conducted during business hours on reasonable prior notice to Licensee. Genvid will bear the costs of audits unless the results show material non- compliance with the terms and conditions of this License, in which case Licensee will be responsible for the cost of the audit in addition to any recourse that may be exercised by Genvid.
(e) The parties to this License are independent contractors, and this License must not be construed to create a partnership, joint venture, employment or agency relationship between the parties.
(f) This License is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter.
(g) Licensee may not assign this License, or any of its rights or obligations hereunder, to any third party without the Genvid’s prior written consent, which consent will not be unreasonably withheld, but will, in any event, be subject to transfer terms requiring (i) Licensee to deliver all copies of the Genvid SDK and of the Licensee Products or Commercially-Licensed Products to the assignee, along with this License, and (ii) the assignee accepting the terms and conditions of this License as a condition for the assignment. The License will terminate in relation to Licensee upon completion of the assignment as set out above.
(h) In the event that any of the provisions of this License are held by to be unenforceable by a court, the remaining portions of this License will remain in full force and effect.