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RealSystem G2 SDK Agreement

This RealNetworks RealSystem G2 SDK License Agreement ("Agreement") is a legal agreement between you ("you" or "Licensee") and RealNetworks, Inc. and its suppliers and licensors (collectively, "RN") for the RealSystem™ G2 Software Development Kit ("SDK"), which includes computer software and associated media and printed materials, whether provided in physical form or received on-line in electronic form (collectively referred to as "Product"). By downloading this SDK, you agree to the terms and conditions herein. You may install only ONE copy of the Product.

If you have any questions about the SDK or this Agreement, please contact RN at devapproval@real.com.

SDK DEVELOPMENT & DISTRIBUTION AGREEMENT

You, on behalf of yourself and your organization agree that the following terms and conditions govern your use of the Product:

1. SOFTWARE OWNERSHIP

This is a license agreement and NOT an agreement for sale. Title, ownership rights and intellectual property rights in and to the Product (including any images, animations, video, audio, music, and text incorporated into the Product), accompanying printed materials, and any copies Licensee is permitted to make herein are owned by RN or its suppliers and are protected by United States copyright law and international treaty provisions. Licensee may (a) make one copy of the SDK solely for backup or archival purposes (in accordance with customary practices for such purpose), provided such copy must contain all of the original Product's proprietary notices, or (b) transfer the SDK to a single hard disk, provided Licensee keeps the original solely for backup or archival purposes. Licensee may not copy the printed or electronically transmitted materials accompanying the SDK. Licensee's rights to use the Product are specified in this Agreement, and RN retains all rights not expressly granted to Licensee in this Agreement. Nothing in this Agreement constitutes a waiver of RN's rights under U.S. or international copyright law or any other federal or state law.

2. LICENSE TO DEVELOP

(a) Product Use. Licensee shall only use the Product on a single computer or on its internal computer network, providing that each person accessing the Product through the network has licensed a copy of the Product by personally accepting this Agreement. Licensee may make a single copy of the Product for back-up and archival purposes only, provided that any copy must contain all proprietary notices included in the original. Licensee may download the online Documentation for purposes of using in conjunction with the Product, but may not make further copies of the Documentation.

(b) Definition of Licensee Application. Subject to the provisions contained herein, RN hereby grants Licensee a limited, non-exclusive, royalty-free license to install and use the SDK solely for the purpose of developing a Licensee Application. The "Licensee Application" is defined as a software application that utilizes the application programming interfaces (APIs) of the RealSystem G2 Architecture, or includes Sample Source Code and/or Header Files from the SDK as described below. The Product may not be used to develop any application which has the capability of streaming, playing, or encoding to any file format or data type that competes with RN, as determined by RN in its sole discretion. The Product further may not be used in any way to create software that serves, downloads, delivers, or distributes audio, video, or other media files across the Internet or any computer network. The Product shall not be used to transcode or create a Licensee Application that transcodes any RN file format or data type into any other file format or data type. The Licensee Application may not install itself in an end-user computer's registry as the default player for any RN file format or data type.

(c) Integration of Sample Source Code with Licensee Application. The SDK includes identified sample source code ("Sample Source Code") which, at the time of Product installation, is located in the sub-folder named "sample" in the folder named "rmasdk." RN grants Licensee a limited, non-exclusive, nontransferable, royalty-free license to use, modify, adapt, and reproduce the Sample Source Code as an integrated component of the Licensee Application.

(d) Integration of Header Files with Licensee Application. The SDK also contains certain Header Files ("Header Files"), which, at the time of Product installation, are located in the subfolder named "include" in the folder named "rmasdk." RN grants Licensee a limited, non-exclusive, royalty-free right to use and reproduce the complied object code versions of the unmodified Header Files as integrated components of the Licensee Application.

3. LICENSE TO DISTRIBUTE

(a) Definition of Distribution. Subject to the provisions contained herein, RN hereby grants Licensee a limited, non-exclusive, royalty-free license to distribute the Licensee Application identified in Exhibit A to end users.

(b) Distribution of Code. Licensee may distribute Sample Source Code and/or Header Files (collectively, "Code") from production version SDKs only in conjunction with and as part of Licensee Application and only if Licensee Application contains only the Code required during the execution of Licensee Application. For any SDK components in beta or pre-release form, the following restrictions shall apply: (i) if distributing a beta version of the Code, Licensee shall clearly mark Licensee Application as either "beta" or "pre-release;" (ii) Licensee may not use the beta version of any SDK component, or distribute or have distributed the beta version of Code, in a live operating environment where such may be relied upon to perform in the same manner as a commercially released product, nor may Licensee use such beta SDK components with data that has not been sufficiently backed up; (iii) Licensee understands that beta or pre-release versions of SDK components may be changed substantially before the final commercial release; (iv) Licensee may not use the SDK components for benchmark or performance testing; (v) if Licensee has distributed or had distributed as permitted by this Agreement a beta version of the Code, Licensee shall be solely responsible for updating Licensee's customer end users with versions of any Licensed Application that operates satisfactorily with the final commercial release of such Code; (vi) for Licensees providing reasonable feedback to RN, including but not limited to usability, bug reports and test results, with respect to the testing of the SDK or any component thereof, such feedback should be directed to supportsdk@real.com; (vii) Licensee shall use reasonable efforts to review and comment on all documentation supplied; (viii) any and all bug reports, test results and other feedback made by Licensee shall be the property of RN and may be used by RN for any purpose it sees fit; and (ix) Licensee understands and acknowledges that, due to the nature of the development work, RN may not be able to correct errors or discrepancies in the SDK by the time of final release.

(c) No OEM. This Agreement does not allow distribution of the Licensee Application through OEMs or other third party distributors. If you would like to request OEM distribution rights, please submit a request by sending email to devapproval@real.com. RN reserves the right to decline to enter into an agreement to allow OEM distribution.

(d) No Auto-Update. RN will not post custom datatypes developed under this Agreement on RN's auto-update server for delivery to its RealPlayer licensees unless RN and Licensee enter into a signed amendment providing for such distribution (an "Auto-Update Amendment"). RN reserves the right to decline to enter into an Auto-Update Amendment for any custom datatype. To apply for an Auto-Update Amendment, please contact RN at devapproval@real.com.

(e) Other. Except as provided in this section, no distribution of any other part of the Product is allowed under this Agreement.

4. LICENSEE OBLIGATIONS

The following terms limit the licenses granted under this Agreement:

(a) Copy Switch Bit. The "Copy Switch Bit" is a flag in the file header of RealMedia files that is set when the files are encoded. The Copy Switch Bit indicates whether the content creator has authorized duplication of their content. Licensee Application must detect and abide by the intent and setting of the Copy Switch Bit before attempting to make a digital recording of RealMedia files.

(b) Licensee Application Registration with RN. Licensee must complete the registration process with RN for Licensee Application prior to commencing distribution of the product. This includes providing RN with reasonable information regarding the Licensee Application and faxing a signed version of this license to RN. The registration form is available at http://partners.real.com/distlicenses.html.

(c) Compatibility. Licensee Application must be designed, developed, and tested to function with a RN commercial server and not degrade the functionality of any RealPlayer or other RealNetworks product.

(d) End User License Agreement Requirements. Any distribution of the Licensee Application shall be under the terms of an End User License Agreement that contains terms which:

(i) License use of the RealNetworks software only as an integrated component of the Licensee Application;

(ii) Prohibit any modifications to the RealNetworks software;

(iii) Prohibit any distribution of the RealNetworks software separate from the Licensee Application;

(iv) Prohibit transfer of the RealNetworks software except for temporary transfer in the event of computer malfunction; title to the RealNetworks software passing to any party; and assignment of the RealNetworks software;

(v) Prohibit the reverse engineering, disassembly or decompilation of the RealNetworks software;

(vi) Disclaim any and all warranties on behalf of RN;

(vii) Disclaim, to the extent permitted by applicable law, RN's liability for any damages, whether direct, indirect, incidental or consequential, arising from the use of the RealNetworks software and/or the Licensee Application;

(viii) Require the end user to comply fully with all relevant export laws and regulations of the United States to assure that the Licensee Application and/or the RealSystem G2 SDK software is not exported, directly or indirectly, in violation of United States law.

(e) Copyright Notice and Branding.

(i) Copyright Notice. Licensee must provide attribution to RN in the "About" box or user interface of the Licensee Application in the form and manner prescribed and approved by RN (current attribution form: RealSystem™ technology is provided under license from RealNetworks, Inc., copyright © 1995-2000 RealNetworks, Inc. and/or its suppliers. 2601 Elliott Avenue, Suite 1000, Seattle, Washington 98121, U.S.A. All rights reserved. RealNetworks is a registered trademark of RealNetworks, Inc.). To assure compliance with with this Section 4.e.i, on RN's reasonable request, Licensee will furnish RN with samples of attribution in and/or on Licensee Application. Upon notice by RN that Licensee's attribution does not comply with this Agreement, Licensee shall, within a reasonable period of time, make all requested changes.

(ii) Branding. Licensee shall place the RN logo in accordance with the provisions of Section 5 on the Licensee Application download page, on the main Licensee Application description page, in Licensee Application product installer, on Licensee Application marketing materials, and on Licensee Application CDs and product packaging. Licensee application and its installation process windows, product packaging, website, and marketing materials must give equal or more prominent attribution to RN in all instances and in the same manner where any attribution is made to any other company's streaming media technology, products, or services.

(f) Updates. For each new production version of the SDK released by RN, Licensee shall update the latest version of the distributed Licensee Application within six (6) months of such release to be compatible with the new version of the SDK. New versions of the SDK are made freely available at http://www.realnetworks.com/devzone/index.html.

(g) Sample Copies of Licensee Application to RN. Licensee must provide RN with two packaged copies of any Licensee Applications, including associated documentation. Send packaged Licensee Applications to: RealPartner Program, RealNetworks, Inc., 2601 Elliott Avenue, Suite 1000, Seattle, Washington 98121, U.S.A. If the Licensee Applications are not packaged, but distributed electronically, Licensee must enable RN to download two copies of the Licensee Application. To inquire about electronic delivery, send email to devapproval@real.com. RN shall have a license to use the copies for testing and evaluation purposes only. RN reserves the right to terminate the distribution rights contained in this Agreement in the event that RN's testing demonstrates that the Licensee Application is not fully compatible with a commercial RealNetworks server or any other RealNetworks product. Prior to terminating this Licensee's distribution rights under this section, RN will provide Licensee with notice and a reasonable opportunity to cure, not to exceed 30 days.

(h) Other. Except as expressly provided herein, Licensee shall not copy, modify, reproduce, display, decompile, reverse engineer, store, translate, sell, sublicense, lease or otherwise transfer or distribute the Product, in whole or in part, nor may Licensee use the Product with the intent to clone any proprietary client or server software product proprietary to RN. All rights not specifically granted herein to Licensee are reserved to RN.

5. USE OF RN'S TRADEMARKS.

(a) License to Use. Licensee acknowledges that "RN," "RealNetworks," "RealAudio," "RealVideo," "RealPlayer" and other marks used by RN from time to time (the "RN Marks") are trademarks or registered trademarks of RN. RN hereby grants to Licensee a non-exclusive, limited license to use, and Licensee agrees that it shall always use, the RN Marks solely in connection with Licensee's distribution of Licensee Applications. Licensee shall only use the RN Marks in the form and manner set forth in RN's Trademark Usage Guidelines found at http://www.real.com/company/guide/policy.html.

(b) Limitations. Licensee may use RN trademarks for the sole purpose of informing users that applications developed through the use of RN Products are compatible with RN's RealAudio and/or RealVideo Software system. Licensee shall not use any RN trademark in a way which may imply that Licensee is an agency or branch of RN, or that RN endorses any of Licensee's products or applications. Licensee's use of any RN Mark in connection with this Agreement shall not create any right, title or interest, in or to the use of the RN Marks and all such use and goodwill associated with the RN Marks will inure to the benefit of RN. Any questions concerning trademark usage may be directed to devapproval@real.com.

6. PRODUCT MAINTENANCE & TECHNICAL SUPPORT

RN is not obligated to provide maintenance or updates to Licensee for the Product. However, any maintenance or updates provided by RN shall be covered by this Agreement, unless expressly subject to the terms of another written agreement between the parties. Licensee shall be solely responsible for providing, and agrees that it will provide, customer, technical, and help desk support to end users and sublicensees for the Licensee Application for the term of this Agreement. RN will refer to Licensee all customer support inquiries regarding the Licensee Application.

7. DISCLAIMER OF WARRANTY

The Product is deemed accepted by Licensee. The Product is provided to Licensee AS IS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BYAPPLICABLE LAW, RN FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCT AND DOCUMENTATION REMAINS WITH LICENSEE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL RN OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF RN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.

8. INDEMNIFICATION

(a) Indemnity. Licensee shall, at its expense and RN's request, defend any claim or action brought by a third party against RN, or hold harmless, indemnify, and defend RN affiliates, its officers, directors, and/or employees, arising out of or related to the Licensee Application ("Licensee Claims"). Licensee shall indemnify and hold RN harmless from and against any claim, suit, or proceeding and any losses, damages, fines, and expenses (including attorneys' fees and costs) arising out of or relating to any claims that Licensee's use of the SDK in conjunction with the Licensee Application infringes the patent, copyright, trademark, trade secret, or other proprietary rights of any third party, or resulting from any breach of this agreement. Licensee shall indemnify and hold RN harmless from and against any costs, damages, and fees incurred by RN, including but not limited to fees of outside attorneys and other professionals, that are attributable to such Licensee Claims. RN shall: (i) provide Licensee reasonably prompt notice in writing of any such Licensee Claims and permit Licensee, through counsel chosen by Licensee, to answer and defend such Licensee Claims; and (ii) provide the entity defending such claim information, assistance, and authority, at such entity's expense, to help defend such Licensee Claims. Licensee will not be responsible for any settlement made by RN without Licensee's written permission, which permission will not be unreasonably withheld or delayed. Reasonable withholdings of permission may be based upon, among other factors, editorial and business concerns. Licensee shall consult with RN on the choice of any counsel under this Section 7.

(b) Settlement by Licensee. Unless Licensee obtains for RN a complete release of all Licensee Claims hereunder, Licensee may not settle any Licensee Claim under this Section 7 on RN's behalf without first obtaining RN's written permission, which permission will not be unreasonably withheld or delayed. In the event Licensee and RN agree to settle a Licensee Claim, Licensee agrees to not disclose terms of the settlement without first obtaining RN's written permission, which will not be unreasonably withheld or delayed.

9. TERM AND TERMINATION

(a) Term. This Agreement shall be in effect for one (1) year after the Effective Date ("Term"). Thereafter the Agreement shall renew automatically for consecutive one (1) year terms thereafter unless terminated in accordance with this Agreement.

(b) Termination. Either party may terminate this Agreement without cause by giving written notice within thirty (30) days of the end of the Term. After the initial one (1) year Term, RN may terminate this Agreement without cause by giving sixty (60) days' prior written notice. Without prejudice to any other rights, RN may terminate this Agreement immediately if Licensee fails to comply with the terms and conditions herein.

(c) Effect of Termination. Upon termination of this Agreement, Licensee shall immediately discontinue the use of the SDK and shall within five (5) days either return to RN, or certify destruction of, all full or partial copies of the SDK, Documentation and related materials provided by RN, including any Header Files and Sample Source Code. Licensee may also terminate this Agreement at any time by destroying the SDK and Documentation and all copies thereof. The provisions of sections 7, 8, 9, 10, 11, 12, and 13 shall survive any termination of this Agreement.

10. ASSIGNMENT

This Agreement is personal to Licensee. Licensee shall not sublicense, assign, or otherwise transfer any of its rights in this Agreement, including by operation of law, without the express written consent of RN.

11. GOVERNING LAW; ATTORNEYS' FEES

This Agreement shall be governed by the laws of the State of Washington. Licensee consents to jurisdiction by the state and federal courts sitting in the State of Washington. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. If RN employs attorneys to enforce any rights arising out of or relating to this Agreement, RN shall be entitled to recover reasonable attorneys' fees in the event it prevails.

12. MISCELLANEOUS

This Agreement constitutes the complete and exclusive agreement between RN and Licensee with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein. The relationship of RN and Licensee is that of licensor and licensee, and nothing contained in this Agreement shall be construed to (a) give either party the power to direct and control the activities of the other; (b) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking; or (c) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. This Agreement may not be modified except in writing duly signed by an authorized representative of RN and Licensee. 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 (i) of such provision under other circumstances, or (ii) of the remaining provisions hereof under all circumstances. All notices, including notices of change of address, required to be sent hereunder shall be in writing and shall be deemed effective upon personal delivery (including courier service), overnight mail delivery, or five (5) days after deposit, postage prepaid, in registered or certified mail, properly addressed as set forth below:

RealNetworks, Inc.
Attn: Legal Department
2601 Elliott Ave., Suite 1000
Seattle, WA 98121
U.S.A.

cc: RealPartner Program

13. U.S. GOVERNMENT RESTRICTED RIGHTS AND EXPORT RESTRICTIONS

Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraphs (c)(i) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is RealNetworks, 2601 Elliott Avenue, Suite 1000, Seattle, Washington 98121. Licensee acknowledges that neither the SDK or underlying information or technology may be downloaded or otherwise exported or re-exported: (i) into (or to a national or resident of) Cuba, Iraq, Libya, Yugoslavia (Serbia and Montenegro), North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By using the SDK, Licensee is agreeing to the foregoing and is representing and warranting that it is not located in or under the control of, a national or resident of any such country or on any such list.

Copyright © RealNetworks, Inc. and/or its licensors, 1995-2000, all rights reserved.


Copyright © 2000 RealNetworks
For technical support, please contact supportsdk@real.com.
This file last updated on 05/17/00 at 12:50:14.
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