OgreMax Scene Exporter - Commercial License Agreement

# COMMERCIAL LICENSE AGREEMENT

## OGREMAX SCENE EXPORTER

## Prolog

Please read this this agreement carefully. By copying, installing or using all or any portion of the software you accept all of the terms and conditions of this agreement, including, in particular the limitations on:

- USE contained in section 2;
- TRANSFERABILITY in section 4.3;
- WARRANTY in section 7; and
- LIABILITY in section 8.

You agree that this agreement is like any written negotiated agreement signed by you.

This agreement is enforceable against you and any legal entity that obtained the software and on whose behalf it is used: for example, if applicable, your employer.

If you do not agree to the terms of this agreement, do not use the software.

You may have another written agreement directly with AND Entertainment LLC that supplements or supersedes all or portions of this agreement.

AND Entertainment LLC and its suppliers own all intellectual property in the software.

The software is licensed, not sold. AND Entertainment LLC permits you to copy, download, install, use or otherwise benefit from the functionality or intellectual property of the software only in accordance with the terms of this agreement.

Use of some AND Entertainment LLC and some third party materials included in or accessed through the software may be subject to other terms and conditions typically found in a separate license agreement. Terms of use, or "read me" file located within or near such materials.

## 1. Definitions

1.1 AND Entertainment: means AND Entertainment LLC.

1.2 OgreMax and Software: means any or all versions of the OgreMax Scene Exporter, OgreMax Installers, OgreMax Viewers, and all related source code, sample files, executables, media, documentation, and updates. OgreMax is owned by AND Entertainment.

1.3 Computer: means a computer device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.

1.4 Output File: means an output file generated by using the Software.

1.5 Internal Network: means a private, proprietary network resource accessible only by employees and individual contractors (i.e., temporary employees) of a specific corporation or similar business entity. Internal Network does not include portions of the Internet or any other network community open to the public, such as membership or subscription driven groups, associations and similar organizations.

1.6 Permitted Number: means one (1) unless otherwise indicated under a valid license (e.g., volume license) granted by AND Entertainment.

1.7 Initial Term: means the date on which the Licensee purchased the Software license.

## 2. Software License

If you obtained the Software from AND Entertainment or one of its authorized licensees and as long as you comply with the terms of this agreement, AND Entertainment grants you a non-exclusive license to use the Software in the manner and for the purposes described in the Documentation, as further set forth below.

2.1 Commercial Use. You may use the Software to produce Output Files that are distributed or sold in any manner.

2.2 General Use. You may install and use one copy of the Software on up to the Permitted Number of your compatible Computers; or

2.3 Server Deployment. You may install the Software on Computer file server(s) within your Internal Network for the purpose of downloading and installing the Software on up to the Permitted Number of Computers within the same Internal Network; or

2.4 Server Use. You may install the Permitted Number of copies of the Software on the Permitted Number of Computer file server(s) within your Internal Network only for use of the Software initiated by an individual through commands, data or instructions (e.g., scripts) from a Computer within the same Internal Network. The total number of users (not the concurrent number of users) permitted to use the Software on such Computer file server(s) may not exceed the Permitted Number. No other network installation or access (either directly or through commands, data or instructions) is permitted, including, but not limited to:

- (i) from or to a Computer not part of your Internal Network,
- (ii) for enabling web hosted workgroups or services available to the public,
- (iii) by any individual or entity to use, download, copy or otherwise benefit from the functionality of the Software unless licensed to do so by AND Entertainment,
- (iv) as a component of a system, workflow or service accessible by more than the Permitted Number of users

2.5 Portable or Home Computer Use. Subject to the important restrictions set forth in Section 2.6 below, the primary user of the Computer on which the Software is installed ("Primary User") may install a second copy of the Software for his or her exclusive use on either a portable Computer or a Computer located at his or her home, provided that the Software on the portable or home Computer is not used at the same time as the Software on the primary Computer.

2.6 Restrictions on Secondary Use by Volume Licensees. If the Software was obtained under an AND Entertainment volume license program, the second copy of the Software made under Section 2.5 must be used solely for the benefit and business of that volume licensee.

2.7 Backup Copy. You may make a reasonable number of backup copies of the Software, provided your backup copies are not installed or used for other than archival purposes.

2.8 OgreMax Sample Scene Viewer Source Code. You may modify and integrate the source code of those portions of such software programs that are identified as OgreMax Scene Viewer source code for the purposes of designing, developing and testing your own applications; you are permitted to copy and distribute the OgreMax Scene Viewer Application Code (modified or unmodified) only if all of the following conditions are met:

- (i) you do not use without prior consent the OgreMax name, logos or other AND Entertainment trademarks to market your application;
- (ii) you agree to indemnify, hold harmless and defend AND Entertainment from and against any loss, damage, claims or lawsuits, including attorney's fees, that arise or result from the use or distribution of your application.

## 3. Intellectual Property Ownership

The Software and any authorized copies that you make are the intellectual property of and are owned by AND Entertainment and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of AND Entertainment and its suppliers. The Software is protected by law, including but not limited to the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by AND Entertainment and its suppliers.

## 4. Restrictions

4.1 Notices. You may not copy the Software except as set forth in Section 2. Any permitted copy of the Software that you make must contain the same copyright and other proprietary notices that appear on or in the Software.

4.2 No Modifications. Except as permitted in Section 2, you may not modify, adapt or translate the Software. You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent you may be expressly permitted under applicable law to decompile only in order to achieve interoperability with the Software.

4.3 No Transfer. YOU MAY NOT RENT, LEASE, SELL, SUBLICENSE, ASSIGN OR TRANSFER YOUR RIGHTS IN THE SOFTWARE, OR AUTHORIZE ANY PORTION OF THE SOFTWARE TO BE COPIED ONTO ANOTHER INDIVIDUAL OR LEGAL ENTITY'S COMPUTER EXCEPT AS MAY BE PERMITTED HEREIN. You may, however, permanently transfer all your rights to use the Software to another individual or legal entity provided that:

- (a) you also transfer
  - (i) this agreement, and
  - (ii) all software bundled, packaged or pre-installed with the Software, including all copies, upgrades, updates and prior versions;
- (b) you retain no upgrades, updates or copies, including backups and copies stored on a computer; and
- (c) the receiving party accepts the terms and conditions of this agreement and any other terms and conditions under which you purchased a valid license to the Software.

NOTWITHSTANDING THE FOREGOING, YOU MAY NOT TRANSFER PRE-RELEASE OR NOT FOR RESALE COPIES OF THE SOFTWARE. Prior to a transfer AND Entertainment may require that you and the receiving party confirm in writing your compliance with this agreement, and that the receiving party provide AND Entertainment with information about themselves and register as end-users of the Software.

## 5. Updates and Support

Updates and upgrades to previous versions of the OgreMax software, as well as support, are provided for a period defined at the point of purchase, starting from the Initial Term. After you install such updates or upgrades, you may continue to use any such previous version in accordance with its end-user license agreement only if

- (a) the upgrade or update and all previous versions are installed on the same device,
- (b) the previous versions or copies thereof are not transferred to another party or device unless all copies of the update or upgrade are also transferred to such party or device and
- (c) you acknowledge that any obligation AND Entertainment may have to support the previous version(s) may be ended upon the availability of the upgrade or update. No other use of the previous version(s) is permitted after installation of an update or upgrade.

## 6. Termination

Without prejudice to any other rights, AND Entertainment may terminate this agreement if you fail to comply with the terms and conditions of this agreement. In such event, you must destroy all copies of the Software in any form and all of its component parts.

## 7. Warranty and Disclaimers

NO WARRANTIES. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND ENTERTAINMENT DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AGAINST INFRINGEMENT, WITH REGARD TO THE SOFTWARE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.

## 8. Limitation of Liability

NO LIABILITY FOR DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AND ENTERTAINMENT BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF AND ENTERTAINMNT 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 YOU.

## 9. General Provisions

If any part of this agreement is found void and unenforceable, it will not affect the validity of the balance of this agreement, which will remain valid and enforceable according to its terms. This agreement will not prejudice the statutory rights of any party dealing as a consumer.

## 10. Compliance With Licenses

If you are a business, company or organization, you agree that upon request from AND Entertainment or its authorized representative you will within thirty (30) days fully document and certify that use of any and all OgreMax software at the time of the request is in conformity with your valid licenses from AND Entertainment.