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Plazmic Content Developer's Kit Licence Agreement
This is a legal agreement between you, the Customer ("You"), and Plazmic Inc. ("Plazmic") (Customer and Plazmic together, the "Parties" and individually a "Party"). CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON "I ACCEPT" BELOW, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. If You have any questions or concerns about the terms of this Agreement, please contact us at www.Plazmic.com. IF YOU DECIDE YOU ARE UNWILLING TO AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT INSTALL OR USE THE SOFTWARE.
1.0 Definitions
1.1 "Content" means graphics, sounds, animations, user interfaces, web pages, information services and any other content created for handheld mobile devices.
1.2 "Software" means the software identified and made available as being part of the applicable version of the Plazmic Content Developer’s Kit (the "CDK") on Plazmic’s website. The Software is designed to create, and to assist in the creation of Content for the platform specified on the website and may not work on other mobile devices. The term Software includes as well, all documentation, samples, graphics and other data and materials in whatever form or medium made available to you by Plazmic in relation to the Software and your development efforts, either by way of downloading from Plazmic’s website or otherwise (the "Documentation").
2.0 Grant of License
This Plazmic Content Developer’s Kit License Agreement ("Agreement") hereby grants to You a royalty free, non-exclusive, non-transferable and non-assignable right to install the Software on a single central processing unit and to permit only one person to use or access each installed copy of the Software at any time. The Software may be used solely for the purpose of developing Content manually. It cannot be used for operating a commercial service involving automated or programmatic transcoding. Your use of the Software outside of North America is subject to the terms set out in Section 8.7. You may distribute the Content you create using the Software, provided that except as expressly permitted herein or as authorized by officers of Plazmic in writing, you don’t directly or indirectly market, rent, distribute, transfer, license, sublicense, sell or furnish to any third party all or any part of the CDK or copies thereof (other than the Content samples made available as part of the CDK) in conjuncti on with or as part of that Content and do not purport or attempt to do so. This license does not give You any entitlement to any future upgrades of the Software but unless Plazmic stipulates otherwise, any bug fixes or upgrades made available to You shall be licensed to You on the terms and conditions set out in this Agreement.
3.0 Intellectual Property; Export Restrictions
3.1 The Software is licensed and not sold to You. This Agreement does not convey to You any ownership right, interest or title in or to the Software, or to any related intellectual property rights and You shall not apply for, or claim any such rights in the Software. The Software and Documentation contains information that is confidential and proprietary to Plazmic and You agree to treat it accordingly. The Software is protected by Canadian, U.S., Japanese and various other international intellectual property laws and international treaty provisions. There are severe penalties both civil and criminal for intellectual property infringement. Upon written request Plazmic will provide You with any information about the Software in its possession or control that You require to operate the Software in conjunction with any other software or equipment that You use in the operation of Your business. Except to the extent this restriction is precluded by law, You shall not decompile, disassemble, or otherwis e reverse engineer the Software or any part of it without first obtaining Plazmic’s express written consent.
3.2 You may not (i) use the Software except as expressly permitted in this Agreement and for the purposes contemplated by the Documentation; (ii) copy or reproduce or in any other manner duplicate or attempt to duplicate the Software (including the Documentation), in whole or in part; (iii) sublicense, rent, lease, loan or transfer the Software or otherwise acquiesce in its use by a third party without our prior written consent; or (iv) use the CDK to develop any Content which would constitute or would facilitate the commission of any crime or other illegal or tortious acts in the jurisdiction(s) in which You or Your distribution channels distribute that Content. For the purposes of this provision, "copy, reproduce or duplicate" shall not include any reproduction that: (i) occurs during, and is essential for, the normal operation of the Software; or (ii) occurs in the course of the regular back up of the computer or computer system on which the Software is installed.
4.0 Purchase Orders
Unless Plazmic otherwise expressly agrees in writing any terms and conditions on any purchase order You issue for the Software shall be superseded by the terms and conditions set out in this Agreement. For purposes of clarification, unless Plazmic expressly agrees in writing otherwise, the terms and conditions on Your purchase order shall be of no force or effect.
5.0 Term
Provided that You do not breach the terms and conditions of this Agreement the licenses granted hereunder shall be perpetual. If You fail to comply with any of the terms of this Agreement, all licenses granted hereunder shall automatically terminate without notice, and Plazmic may exercise any or all of its rights under this Agreement or under applicable law, including without limitation, obtaining relief by way of a temporary or permanent injunction. Upon termination of the Agreement or in any event upon Plazmic delivering You notice of termination for breach, You shall immediately purge all Software from your computer system(s) and upon request by Plazmic shall provide a certificate signed by an officer of Your company confirming that You have done so.
6.0 Warranty and Disclaimers
6.1 TO THE EXTENT PERMITTED BY LAW, PLAZMIC PROVIDES THE SOFTWARE ON AN "AS IS" BASIS, AND PLAZMIC DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, WITH RESPECT TO THE SOFTWARE (INCLUDING DOCUMENTATION) AND ANY HANDHELD PRODUCT IN WHICH THE SOFTWARE IS EMBEDDED, PLAYED, LOADED OR VIEWED.
6.2 TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PLAZMIC BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR CORRUPTION OR LOSS OF DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR IN RELATION TO THE CONTENT YOU CREATE USING THE SOFTWARE, THE USE OF OR INABILITY TO USE THE SOFTWARE, OR A HANDHELD PRODUCT IN WHICH IT IS EMBEDDED, PLAYED, LOADED OR VIEWED, EVEN IF PLAZMIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3 THE EXCLUSIONS AND LIMITATIONS SET OUT IN THIS SECTION ARE INTENDED TO APPLY AND DO APPLY WITHOUT REGARD TO WHETHER SUCH DAMAGES ARE CLAIMED, ASSERTED OR BROUGHT IN AN ACTION OR CLAIM BASED IN TORT (INCLUDING NEGLIGENCE) OR CONTRACT, OR BASED ON THE BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, OR UNDER ANY OTHER LAW OR FORM OF ACTION.
7.0 Indemnity/Liability
You shall defend, indemnify, and hold harmless Plazmic and Plazmic’s suppliers, successors, affiliates, agents and assigns from any claims, damages, losses, or expenses (including without limitation attorney fees and costs) incurred by Plazmic or Plazmic’s suppliers in connection with all claims, suits, judgments and causes of action: (i) for infringement of patents or other proprietary rights arising from combining or using any device, system or service in connection with the Software or any portion thereof; or (ii) for libel, slander, defamation or infringement of copyright or other proprietary or intellectual property right related to the Content created using the Software . No remedy herein conferred upon Plazmic is intended to be, nor shall it be construed to be, exclusive of any other remedy provided herein or as allowed by law or in equity, but all such remedies shall be cumulative. You shall pay to Plazmic all attorney fees, collection fees, and related expenses, expended or incurred by Plazm ic in the enforcement of any right or privilege hereunder (including, but not limited to, expenses of paid investigators and reasonable compensation for time of Plazmic’s representatives).
8.0 General
8.1 Except as otherwise specifically stated in this Agreement, the provisions herein are for the benefit of the Parties and not for any other person or entity.
8.2 Waiver by either Party of any default by the other Party shall not be deemed a continuing waiver of such default or a waiver of any other default.\
8.3 The CDK is made available with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in DFARS 227.7202 or in FAR 52.2227-19, or their successors as applicable. Contractor is Plazmic Inc., 295 Phillip Street, Waterloo, Ontario, Canada N2L 3W8.
8.4 You hereby consent to your contact information and information about the specific Plazmic product You acquire and any other information You provide being disclosed to, maintained and used by Plazmic, its affiliates and persons authorized by Plazmic to distribute the Software solely for the purposes of: (i) managing and developing their businesses and operations; (ii) making information about Plazmic products available to You; and (iii) developing new and enhancing existing Plazmic products. You further agree that Plazmic may provide this information to other persons as required to satisfy any legal requirements and to any person that purchases all or substantially all of Plazmic’s assets provided that they agree to use your information only for the purposes for which You have provided your consent. If You wish to gain access to any personally identifiable information You have provided to Plazmic or to make any changes to that information please contact Plazmic directly.
8.5 The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof by either or both Parties shall so survive the completion of performance, cancellation or termination of this Agreement.
8.6 The United Nations Convention on Contracts for the International Sale of Goods (1980) does not apply.
8.7 This Agreement is to be construed in accordance with the laws of Ontario, Canada. Should you import, export or wish to use the CDK outside of North America, You must check the Plazmic website to see if Plazmic has established a separate CDK license for that jurisdiction. If a separate CDK license has been established for that jurisdiction (a "Foreign CDK License") Your use of the CDK in that jurisdiction is subject to the terms and conditions of the Foreign CDK License. If a Foreign CDK license has not been established for that jurisdiction, the terms of this Agreement shall apply to such use. Any disagreement or dispute arising out of or relating to this Agreement, or the breach thereof, which the Parties are unable to resolve after good faith negotiations, shall be submitted to binding arbitration. Upper management or their representatives shall meet within thirty (30) days of a dispute arising and if the Parties are unable to resolve the dispute in this timeframe, the dispute shall be settled by final and binding arbitration to be conducted in Ontario, Canada. The arbitration shall be held before a panel of three arbitrators. Each of the Parties shall appoint one arbitrator and the two arbitrators shall jointly appoint a third arbitrator. Each Party shall bear one half of the costs of the arbitration proceedings. Judgment upon the award rendered may be entered in any Court having jurisdiction thereof. Notwithstanding the foregoing, Plazmic has the right to institute legal or equitable proceedings in court with respect to protecting Plazmic’s intellectual property rights. With respect to these disputes only, the Parties submit to the exclusive jurisdiction of the courts of Ontario as the court of first instance.
8.8 If a provision of this Agreement is found to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather (unless a failure of consideration would result therefrom) the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of each Party shall be construed and enforced accordingly.