End User License Agreement
THIS LICENSE AGREEMENT (the “AGREEMENT”) IS BETWEEN THE YOU (THE INDIVIDUAL OR ORGANIZATION TO WHOM THE LICENSE(S)/PRODUCT KEY(S) IS ISSUED) AND DERIVATIVE INC. (“DERIVATIVE”), a company incorporated under the laws of Ontario, Canada, with offices at 401 Richmond Street West, Suite 386, Toronto, Ontario, Canada M5V 3A8.
BEFORE YOU DOWNLOAD OR INSTALL ANY OF THE PRODUCTS (as defined herein), carefully read this Agreement in its entirety. By checking the “I agree to the License terms and conditions” box and/or installing the software, you are consenting to be bound by all of the provisions of this Agreement. If you do not agree to all of the provisions of this Agreement, you are not permitted to install the software.
1. LIMITED LICENSE
In accordance with the terms of this Agreement, Derivative hereby grants to you a limited, non-transferable, non-exclusive license to download, install and use the TouchDesigner and/or TouchPlayer software products, (as applicable, based on the license(s)/product key(s) issued to you) and any updates or modifications to such software products as may be hereinafter provided to you by Derivative, in its sole discretion (collectively, the “Software”) solely in object code or machine-readable code or scripts, and to use any related documentation provided to you by Derivative and not available for your review on the Derivative website (the “Documentation”, and together with the Software, collectively, the “Products”). (Any Documentation available on the Derivative website shall be subject to the website terms and conditions.) Your right to download, install and use the Products is limited to those rights expressly set out in this Agreement. Use of the Software (other than non-commercial versions of TouchPlayer) requires issuance of a license linked to a product key. Each product key permits installation and use of the Software on a single computer. If you wish to install and use the Software on additional computers, you must obtain an additional license(s) and product key(s). The rights granted under this section apply only to you and, if you are an organization, to your employees, members and/or students, as applicable (“Permitted Users”).
2. RESTRICTIONS ON USE
You shall, and will ensure your Permitted Users shall: (a) not copy or modify all or any portion of the Products, including any code, scripts or files, without the express written consent of Derivative; except that you may copy the Products solely for back-up purposes and you may copy and modify scripts and sample code for use only in connection with permitted installations of the Software; (b) not assign this Agreement or transfer, lease, export or grant a sublicense to use the Products except as and when authorized to do so by Derivative in writing; (c) not translate, reverse engineer, decompile or disassemble any part of the Products; (d) not use the Products except as authorized herein; (e) not use the Products to operate a catalog of applications and components created by third parties using Derivative software (you may however operate a catalog of applications and components created by you using the Software); and (f) take all reasonable precautions to prevent third parties from using the Products in any way that would constitute a breach of this Agreement. COMMERCIAL USE: If you have not paid the fee for a commercial license to the Software, you shall not use the Products for any Commercial use. “Commercial use” means that the work done with the Products is primarily intended for, or directed toward, commercial advantage or private monetary compensation. If you and/or your organization are compensated for your work with the Products, you need a commercial license.
3. OWNERSHIP AND COPYRIGHT
You acknowledge that Derivative and its licensors are the owners of all intellectual property rights in the Products and any written materials, logos, names and other support materials provided to you by Derivative in connection with the Products. No title to any intellectual property rights in the Products, or any support materials provided to you by Derivative in connection with the Products, is transferred to you by this Agreement.
4. NO WARRANTY
The Products are provided “as is” without any representation, warranty or condition of any kind, including but not limited to the implied warranties or conditions of merchantability, fitness for a particular purpose, non-infringement of third party rights and those arising by statute or otherwise in law or from a course of dealing or usage of trade. The entire risk as to the quality and performance of the Products is with you. Without limiting the generality of the foregoing, Derivative does not warrant that: (i) the Products will meet your needs or requirements; (ii) the Software will run without interruption or be error-free; or (iii) without limiting the generality of (ii), any file protection or security features provided by the Software will in any case provide absolute or any given level of protection or security. While Derivative has made reasonable efforts to make the file protection and security features robust, Derivative does not guarantee that they will not be overcome.
5. LIMITATION OF LIABILITY
DERIVATIVE WILL ONLY BE LIABLE FOR DIRECT DAMAGES, SUBJECT TO SECTION 6. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL DERIVATIVE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST OR DAMAGED DATA, OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, WHETHER ARISING OUT OF, OR IN CONNECTION WITH, THE DOWNLOAD, INSTALLATION OR USE OF, OR THE INABILITY TO USE, THE PRODUCTS OR ANY OTHER MATTER RELATING TO THE PRODUCTS OR THIS AGREEMENT, EVEN IF DERIVATIVE HAD KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE.
6. MONETARY CAP ON DAMAGES
You agree that the maximum aggregate liability of Derivative and its affiliates and their respective directors, officers, employees, agents and representatives for all claims under any and all circumstances relating to the Products under all theories of liability will be limited to the fees paid to Derivative by you in respect of the particular Software license(s)/product key(s) relating to the installations giving rise to such liability in the six (6) month period preceding the claim in respect of such liability.
7. ESSENTIAL TERMS
The disclaimer of warranties, limitation of liability and monetary cap on monetary damages in sections 4, 5 and 6 constitute an essential part of this Agreement. A fundamental breach or breach of a fundamental term of this Agreement by Derivative shall not limit the intended effect of sections 4, 5 and 6 or any other provision of this Agreement which is intended to limit Derivative’s liability. You acknowledge that, but for the disclaimer of warranties, limitation of liability and monetary cap on damages, Derivative would not enter into this Agreement.
Support services for the Products, if any, are to be separately arranged between you and Derivative; provided that certain versions of the Software, such as TouchDesigner Pro, include a certain amount of support services as described on the Derivative website.
9. CONFIDENTIAL INFORMATION
The Products incorporate trade secrets and constitute the confidential information of Derivative and its licensors and you shall use all reasonable efforts (and in any event, efforts that are no less than those used to protect your own confidential information) to protect such aspects of the Products from disclosure.
This Agreement, and accordingly, your license to use the Products, shall terminate upon the failure by you to perform any of your obligations under this Agreement. Upon receipt by you of written notice by Derivative of the termination of this Agreement, you shall immediately destroy (including, with respect to electronic copies, permanently delete) all copies of the Products in your possession or control and provide Derivative, upon request, with written confirmation of such destruction. All sections of this Agreement, other than section 1, shall survive the termination of this Agreement.
Derivative may, at any time, without your consent, assign this Agreement, or any of its rights hereunder, in whole or in part, to any third party. You may only assign this Agreement, or any of your rights hereunder, in whole or in part, to any third party, with the prior written consent of Derivative. This Agreement shall enure to the benefit of and be binding upon each of you and Derivative and your respective heirs, executors, successors, assigns, administrators and legal representatives, as applicable.
12. END USERS
If you are a developer who is creating work product for a third party and bundling your work product with the Software, you acknowledge that the third party must obtain a license to use the Products. If you intend to assign this Agreement to the end user upon the completion of the work product, and if Derivative consents to such assignment pursuant to section 11, you agree that the assignment of this Agreement shall be: (a) done on the terms of Derivative’s form of assignment of license agreement, and (b) subject to an additional transfer fee. Please contact Derivative regarding such assignment fees.
13. EMBEDDED SOFTWARE
The Software includes open source software, which is distributed under and is subject to the terms and conditions of the applicable open source software licenses and notices, as set out in Exhibit A to this Agreement.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Ontario and federal laws of Canada applicable therein and shall be treated, in all respects, as an Ontario contract. The parties submit to the non-exclusive jurisdiction of the courts of Ontario. The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and any implementing legislation.
This Agreement, including Exhibit A, and any documents referred to herein or therein, is the entire agreement between you and Derivative pertaining to your right to use the Products and the provision to you by Derivative of any related services, and supersedes all prior or collateral oral or written representations or agreements related thereto. In the event that one or more of the provisions of this Agreement are held to be illegal or unenforceable, this Agreement shall not be rendered inoperative but the remaining provisions shall continue in full force and effect, unless such illegal or unenforceable provisions are held to be a material part of this Agreement such that it may reasonably assumed that the parties would not have entered into this Agreement without such provisions in place.
June 10, 2017