NVIDIA HOLODECK SOFTWARE PLATFORM END USER LICENSE AGREEMENT
This NVIDIA Holodeck Software Platform End User License Agreement ("Agreement") is made and entered into by and between NVIDIA CORPORATION, a Delaware corporation, on behalf of itself and its subsidiaries (collectively "NVIDIA") and the individual or company accessing the NVIDIA materials provided in this Agreement ("You" or "Company").
BY CHOOSING THE "ACCEPT" BUTTON, OR BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE NVIDIA HOLODECK SOFTWARE PLATFORM, RELATED THIRD PARTY MODELS OR OTHER THIRD PARTY MATERIALS, RELATED HARDWARE WHICH MAY BE PROVIDED BY NVIDIA, AND / OR RELATED MATERIALS WHICH MAY BE PROVIDED BY NVIDIA (COLLECTIVELY, THE "LICENSED MATERIALS"), THE END USER OF THE LICENSED MATERIALS ("YOU" OR "LICENSEE") AGREES TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT (A) DOWNLOAD, INSTALL, COPY ANY OF THE LICENSED MATERIALS; OR (B) ACCESS OR USE THE LICENSED MATERIALS AND / OR RELATED HARDWARE
The following terms and conditions govern Licensee's use of the NVIDIA Licensed Materials:
1. LICENSE.
1.1 License Grant. Subject to the terms of this Agreement, NVIDIA hereby grants you a limited, non-exclusive, royalty-free, non-transferable worldwide license, without the right to sublicense, to during the term of this Agreement, at no cost, install and use the provided NVIDIA Licensed Materials in binary and related documentation for your internal development, testing, public demonstration, and evaluation for interoperability and/or compatibility. You may not create derivative works of the Licensed Materials under this Agreement.
1.2 Enterprise and Contractor Usage. Under this Agreement you may allow (i) your Enterprise employees, and (ii) individuals who work primarily for your Enterprise on a contractor basis and from your secure network (each a "Contractor") to access and use the Licensed Materials pursuant to the terms in Section 1 solely to perform work on your behalf, provided further that with respect to Contractors: (i) you obtain a written agreement from the Contractor which contains terms and obligations with respect to access to or use of Licensed Materials no less protective of NVIDIA than those set forth in this Agreement, and (ii) such Contractor's access and use expressly excludes any sublicensing or distribution rights for the Licensed Materials. You are responsible for the compliance with the terms and conditions of this Agreement by your Enterprise and Contractors. Any act or omission that if committed by you would constitute a breach of this Agreement shall be deemed to constitute a breach of this Agreement if committed by your Enterprise or Contractors. "Enterprise" means you or any company or legal entity for which you accepted the terms of this Agreement, and their subsidiaries of which your company or legal entity owns more than fifty percent (50%) of the issued and outstanding equity.
1.3 No Support. NVIDIA is under no obligation to provide support for the Licensed Materials or to provide any error corrections or updates to the Licensed Materials under this Agreement.
1.4 Pre-Release Software. With respect to alpha, beta, preview, and other pre-release software programs delivered to you under this Agreement you acknowledge and agree that such Licensed Materials (i) may not be fully functional, may contain errors or design flaws, and may have reduced or different security, privacy, accessibility, availability, and reliability standards relative to commercially provided NVIDIA software; and (ii) use of such pre-release software may result in unexpected results, loss of data, project delays or other unpredictable damage or loss. THEREFORE, THE LICENSED MATERIALS ARE NOT INTENDED FOR USE, AND SHOULD NOT BE USED, IN PRODUCTION OR BUSINESS-CRITICAL SYSTEMS. NVIDIA has no obligation to make available a commercial version of any pre-release software provided to you under this Agreement, NVIDIA has the right to abandon development of pre-release software at any time without liability, and NVIDIA has no obligation to provide you any future commercial version of the pre-release software. The Licensed Materials are being provided to You free of charge via this Agreement solely to allow You to test or evaluate the Licensed Materials in a safe, controlled environment where people and property will not be put into potential harm. You represent and warrant that You shall not use the Licensed Materials in any other manner.
2. LIMITATIONS.
2.1 License Restrictions. Except as expressly authorized in this Agreement, you agree that you will not (nor allow third parties to): (i) reverse engineer, decompile, disassemble (except to the extent applicable laws specifically requires that such activities be permitted) or attempt to derive the source code, models (for the sake of clarity, you may not in any way modify or extract any model provided with or as part of the Licensed Materials), underlying ideas, algorithm or structure of Software provided to you in object code form; (ii) sell, transfer, assign, distribute, rent, loan, lease, sublicense or otherwise make available the Licensed Materials or its functionality to third parties (a) as an application services provider or service bureau, (b) by operating hosted/virtual system environments, (c) by hosting, time sharing or providing any other type of services, or (d) otherwise by means of the internet; (iv) modify, translate or otherwise create any derivative works of any of the Licensed Materials; (v) remove, alter, cover or obscure any proprietary notice that appears on or with the Licensed Materials or any copies thereof; (vi) use the Licensed Materials, or allow its use, transfer, transmission or export in violation of any export control laws or regulations administered by the United States government; (vii) distribute, permit access to, or sublicense the Licensed Materials as a stand-alone product; (viii) use the Licensed Materials for the purpose of developing competing products or technologies or assisting a third party in such activities; (ix) disclose to third parties the results of any benchmarking or other competitive analysis relating to the Licensed Materials without the prior written permission from NVIDIA; (x) externally distribute any modification you make to Software or (ix) use the Licensed Materials in any manner that would cause the Licensed Materials to become subject to an Open Source License. Nothing in this Agreement shall be construed to give you a right to use, or otherwise obtain access to, any source code from which the Software or any portion thereof is compiled or interpreted. "Open Source License" includes, without limitation, a software license that requires as a condition of use, modification, and/or distribution of such software that the Software be (i) disclosed or distributed in source code form; (ii) be licensed for the purpose of making derivative works; or (iii) be redistributable at no charge.
2.2 Third Party License Obligations. You acknowledge and agree that the Licensed Materials may include or incorporate third party technology (collectively "Third Party Components"), which is provided for use in or with the Software and not otherwise used separately. If the Licensed Materials includes or incorporates Third Party Components, then the third-party pass-through terms and conditions ("Third Party Terms") for the particular Third Party Component will be bundled with the Software or otherwise made available online as indicated by NVIDIA and will be incorporated by reference into this Agreement. In the event of any conflict between the terms in this Agreement and the Third Party Terms, the Third Party Terms shall govern. Copyright to Third Party Components are held by the copyright holders indicated in the copyright notices indicated in the Third Party Terms.
2.3 Limited Rights. Your rights in the Licensed Materials are limited to those expressly granted in Section 1 and no other licenses are granted whether by implication, estoppel or otherwise. NVIDIA reserves all other rights, title and interest in and to the Licensed Materials not expressly granted to you under this Agreement.
2.4 You may not use Holodeck to create any inappropriate content, which is at NVIDIA's sole discretion. Any content submitted to NVIDIA can be removed at NVIDIA's sole discretion at any time.
2.5 NVIDIA provides no warranty that any Models will work or be bug free when used with Holodeck. Models are provided "as-is," and NVIDIA takes no responsibility or liability for any damage that may occur as a result of the Models. You shall not alter, manipulate, vandalize, or otherwise use the Models (including via screenshots or videos) in any manner that could be deemed offensive or inappropriate to NVIDIA or the third party(s) providing the applicable Model. You shall not extract any Models and use them outside of Holodeck workflow.
2.6 You need prior written approval from NVIDIA in order to publicly demonstrate Holodeck (e.g., tradeshows, show rooms) and you will need to abide by certain branding and demonstration guidelines that NVIDIA will provide.
3. CONFIDENTIALITY.
3.1 Definition of Confidential Information. For the purposes of this Agreement, "Confidential Information" shall mean any information (including but not limited to the Licensed Materials, the terms of this Agreement, and other items) disclosed by either party to the other that is (a) identified as "confidential," "proprietary" or with a similar legend at the time of disclosure; (b) if unmarked or disclosed orally or visually, are identified as confidential at the time of disclosure; and (c) the terms and conditions of this Agreement. Confidential Information shall not include any information which is (a) published or otherwise available to the public other than by breach of this Agreement by the receiving party; (b) rightfully received by the receiving party from a third party without confidentiality limitations; (c) independently developed by the receiving party as evidenced by appropriate records; (d) known to the receiving party prior to its first receipt of same from the disclosing party as evidenced by appropriate records; (e) hereinafter disclosed by the disclosing party to a third party without restriction on disclosure; or (f) approved for public release by written authorization of the disclosing party.
3.2 Protection of Confidential Information. You shall not use or disclose any Confidential Information received from NVIDIA, including discussing NVIDIA Holodeck Licensed Materials without NVIDIA's explicit prior permission, except as expressly authorized by this Agreement, and shall protect all such Confidential Information using the same degree of care which You use with respect to Your own proprietary information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. You shall not use the Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Except as expressly provided in this Agreement, no ownership or license rights are granted in any Confidential Information. You shall use commercially reasonable efforts to prevent any actual or threatened unauthorized copying, use or disclosure of Confidential Information, and shall promptly notify NVIDIA of any such actual or threatened unauthorized disclosure or use. If any Confidential Information must be disclosed to any third party by reason of legal, accounting or regulatory requirements beyond Your reasonable control, You shall promptly notify NVIDIA of the order or request and permit NVIDIA (at its own expense) to seek an appropriate protective order.
Within the limitations and conditions set forth in this Section, you are allowed to publicly share your reasonable opinion, feedback, images, videos, and experiences with Holodeck (collectively, "External Comments"). You acknowledge that you are providing NVIDIA a license to the External Comments as if it were Feedback, as described in Section 4.
4. OWNERSHIP AND FEEDBACK.
4.1 Ownership. The Licensed Materials and its respective intellectual property rights therein, are and will remain the sole and exclusive property of NVIDIA and its licensors, whether the Licensed Materials is separate from or combined with any other products or materials. You shall not knowingly engage in any act or omission that would impair NVIDIA's and/or its licensors' intellectual property rights in the Licensed Materials or any other materials, information, processes or subject matter proprietary to NVIDIA. NVIDIA's licensors are intended third party beneficiaries with the right to enforce provisions of this Agreement with respect to their Confidential Information and/or intellectual property rights. You will reproduce (if applicable) on each copy you make of the Licensed Materials, and not alter, remove or obscure, the intellectual property rights notices of NVIDIA and its licensors that may appear on the Licensed Materials.
4.2 Feedback and External Comments. You have no obligation to provide Feedback to NVIDIA. However, NVIDIA may use and include any Feedback that you provide to improve the Licensed Materials or other NVIDIA products, technologies or materials. Accordingly, if you provide Feedback, you agree that NVIDIA may at its option, and may permit its licensees, to use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Licensed Materials or in other products, technologies or materials without the payment of any royalties or fees to you. All Feedback becomes the sole property of NVIDIA and may be used in any manner NVIDIA sees fit, and you hereby assign to NVIDIA all of your right, title and interest in and to any Feedback. NVIDIA has no obligation to respond to Feedback or to incorporate Feedback into the Licensed Materials. "Feedback" means any and all suggestions, feature requests, comments or other feedback relating to the Licensed Materials, including possible enhancements or modifications thereto.
5. NO WARRANTIES. THE LICENSED MATERIALS IS PROVIDED BY NVIDIA "AS IS" AND "WITH ALL FAULTS," AND NVIDIA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY NVIDIA ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. NVIDIA DOES NOT WARRANT THAT THE LICENSED MATERIALS WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. YOU ACKNOWLEDGE THAT NVIDIA'S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF YOU ONLY. Nothing in this warranty section affects any statutory rights of consumers or other purchasers to the extent that they cannot be waived or limited by contract.
In addition, to the maximum extent permitted by law, You will indemnify NVIDIA and its affiliates, and their directors, officers, agents, and employees from and against any and all claims, suits, actions or proceedings, as well as any and all losses, liabilities, damages, judgments, costs and expenses (including reasonable attorneys' fees) arising from or related to (a) any breach by You of the terms of this agreement (including by not limited to misuse of the Licensed Materials and / or the Models) or Your representations and warranties, including but not limited to negligent, dangerous, or unintended uses of the Licensed Materials (such as outside of safe and controlled environments) or misuse of the UE4 Materials.
6. LIMITATION OF LIABILITY. EXCEPT FOR BREACH OF THE LICENSE GRANT, THE LICENSE RESTRICTIONS, OR THE CONFIDENTIALITY OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY LAW EACH PARTY SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL), OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE LICENSED SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL NVIDIA'S TOTAL CUMULATIVE LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT EXCEED ONE HUNDRED U.S. DOLLARS (US $100). THE NATURE OF THE LIABILITY, THE NUMBER OF CLAIMS OR SUITS OR THE NUMBER OF PARTIES WITHIN YOUR ENTERPRISE THAT ACCEPTED THE TERMS OF THIS AGREEMENT SHALL NOT ENLARGE OR EXTEND THIS LIMIT. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER A PARTY OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
7. TERM AND TERMINATION. This Agreement and your licenses hereunder shall become effective upon the Effective Date. This Agreement may be terminated upon written notice in the event of breach of any of the terms of this Agreement, or by NVIDIA at its convenience at any time without prior notice. Termination of this Agreement shall not release the parties from any liability which, at the time of termination, has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is expressly stated in this Agreement to survive termination. Notwithstanding the foregoing, the party terminating this Agreement shall incur no additional liability merely by virtue of such termination. Termination of this Agreement regardless of cause or nature shall be without prejudice to any other rights or remedies of the parties and shall be without liability for any loss or damage occasioned thereby. Upon any expiration or termination of this Agreement (i) you must promptly discontinue use of the Licensed Materials, and (ii) you must promptly destroy all copies of the Licensed Materials and all portions thereof in your possession or control, and you will promptly destroy NVIDIA's Confidential Information within your possession or control. Upon written request, you will certify in writing that you have complied with your obligations under this section. Sections 2 through 8 will survive the expiration or termination of this Agreement for any reason.
8. MISCELLANEOUS.
8.1 Trademarks. You are granted no rights to use any of NVIDIA's trademarks under this Agreement. NVIDIA's trademarks include company names, product or service names, marks, logos, designs and trade dress. You may not remove, alter, or add to any of NVIDIA's trademarks that appear in or as part of the Licensed Materials.
8.2 Injunctive Relief. The parties agree that a breach of any of the promises or agreements contained in this Agreement may result in irreparable and continuing injury for which monetary damages would not be an adequate remedy and therefore the parties are entitled to seek injunctive relief as well as such other and further relief as may be appropriate.
8.3 Waiver. The failure by either party to enforce its rights under this Agreement at any time for any period will not constitute a waiver of future enforcement of that right or any other right. Any waiver will be effective only if in writing and signed by duly authorized representatives of each party.
8.4 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the other provisions of this Agreement will remain in full force and effect.
8.5 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement to the extent due to causes beyond its reasonable control, including, but not limited to, acts of God, fire, flood, war, earthquake, environmental conditions, governmental action, acts of civil or military authority, riots, wars, sabotage, strikes, compliance with laws or regulations, strikes, lockouts or other serious labor disputes, or shortage of or inability to obtain material or equipment for so long as such event of force majeure continues in effect.
8.6 Export Control. You acknowledge that the Licensed Materials, technology and related documentation described under this Agreement are subject to the U.S. Export Administration Regulations (EAR) and economic sanctions regulations administered by the U.S. Department of Treasury's Office of Foreign Assets Control (OFAC). You agree to comply with the EAR and OFAC regulations and all applicable international and national export and import laws. You agree not to export or re-export the Licensed Materials, technology and related documentation to any destination requiring an export license or other approval under the EAR or OFAC regulations otherwise without first obtaining such export license or approval and NVIDIA's permission. You will not, without prior governmental authorization, export or re-export NVIDIA Licensed Materials, technology and related documentation, directly or indirectly, (i) to any end-user whom you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems; (ii) to any end-user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government; or (iii) to any countries that are subject to U.S. export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria and the Region of Crimea).
8.7 General. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereto and supersede all prior negotiations, conversations, or discussions between the parties relating to the subject matter hereto, oral or written, and all past dealing or industry custom. Any notice delivered by NVIDIA to you under the Agreement will be delivered via mail, email or fax. Any additional and/or conflicting terms and conditions on purchase order(s) or any other documents issued by you are null, void, and invalid. NVIDIA may change or update the terms and conditions of this Agreement at any time. This Agreement and the rights and obligations hereunder may not be assigned by you, in whole or in part, including by merger, consolidation, dissolution, operation of law, or any other manner, without written consent of NVIDIA, and any purported assignment in violation of this provision shall be void and of no effect. Each party acknowledges and agrees that the other is an independent contractor in the performance of this Agreement, and each is solely responsible for all of its employees, agents, contractors, and labor costs and expenses arising in connection therewith. This Agreement will be governed by and construed under the laws of the State of Delaware and the United States without regard to the conflicts of law provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The parties consent to the personal jurisdiction of the federal and state courts located in Santa Clara County, California. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms. Any amendment or waiver under this Agreement must be in writing and signed by representatives of both parties.