ELIAS SOFTWARE AB
END USER LICENSE AGREEMENT
This End User License Agreement (hereinafter referred to as the “Agreement”) is a legal agreement between you (an individual or entity) (the “Licensee” or “You”) and ELIAS Software AB, company reg. no. 556959-4194, a company incorporated in Sweden with registered address at Grev turegatan 3, 114 46 Stockholm, Sweden (“ELIAS”) and governs the Licensee’s commercial use of ELIAS Products (as defined below) owned by ELIAS, its affiliated companies and its third party suppliers and licensors.
This Agreement is applicable to commercial use of ELIAS Products only. Please contact ELIAS at firstname.lastname@example.org in the event You intend to use any ELIAS Products solely for personal use (i.e. in your capacity as a consumer).[If you represent a Studio and wish to enter into an individualized agreement with ELIAS regarding use of ELIAS Products, including use in games, please contact ELIAS at email@example.com for further information.]
By downloading, installing or otherwise using any of ELIAS Products (as defined below), the Licensee agrees to be bound by the terms and conditions of this Agreement. If You are accepting the terms and conditions of this Agreement on behalf of a company or other legal entity, You represent and warrant that you have full authority to act for and to bind that company or legal entity to this Agreement. If You do not agree to the terms and conditions of this Agreement, or do not have the authority to bind the legal entity to the terms and conditions of this Agreement, you must not download, install or otherwise use any of ELIAS Products, and you must delete or return the unused ELIAS Product to ELIAS.
ELIAS offers a wide range of products and this Agreement applies to all of ELIAS Products (as defined below). The descriptions and functionalities of each ELIAS Product are described on ELIAS’ website, on the product packaging and/or in the documentation that accompanies the ELIAS Product.
Whenever used in this Agreement, the following terms shall have the meanings described below:
|“ELIAS Engine”||ELIAS’ proprietary adaptive music engine, developed by ELIAS, which is a middleware software solution for handling music for games and which can be integrated and used in digital games pursuant to the terms and conditions of this Agreement;|
|“ELIAS Studio”||ELIAS’ proprietary software tool primarily designed for music composers where the user can construct and arrange their adaptive music themes for ELIAS’ Engine;|
|“ELIAS Assets”||ELIAS’ and, as the case may be, ELIAS’ licensors’ samples, sound libraries, soundtracks and other add-ons available for purchase on ELIAS’ website for use in both ELIAS Engine and ELIAS Studio;|
|“ELIAS Products”||ELIAS Engine, ELIAS Studio, ELIAS Assets and such other software, software programs, software tools, plug-ins, sound, sound collections, sound arrangements, sound libraries, MIDI files, MIDI packs, presets, preset files, documentation, images and other content as a whole, as collections or as singles files, from time to time available for purchase on ELIAS’ website;|
|“Licensee’s Game”||means the interactive software game developed by or on behalf of the Licensee in which ELIAS Engine shall be integrated, pursuant to the terms and conditions of this Agreement.|
|means the development of Licensee’s Game or, if You are a composer, another interactive software game in which ELIAS Engine shall be integrated (pursuant to a valid license with ELIAS) and in relation to which You will compose adaptive game music using ELIAS Products (such as ELIAS Studio or ELIAS Assets).|
|“Quote”||Your request to ELIAS to obtain a commercial license to integrate ELIAS Engine in Licensee’s Game and which shall be filled in and filed via the following link: http://www.eliassoftware.com/request-quote/ ELIAS’ response to your Quote forms an integral part of this Agreement.|
2 Grant of License
2.1 General license
- Subject to (i) Your submission and completion, and ELIAS’ subsequent acceptance, of an individualized Quote for a commercial license via http://www.eliassoftware.com/request-quote (applicable to ELIAS Engine and [ELIAS Studio] only), (ii) Your full and final payment of the applicable fees (as set out on ELIAS’ website), and (iii) Your adherence to the terms and conditions of this Agreement, ELIAS grants to You, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable, non-sublicensable (except as described in this Agreement) and non-refundable right and license to download, install and use the ELIAS Products for internal and lawful use solely in Your own business (the “License”). However, the rights that ELIAS grants to you under the License are subject to all of the terms and conditions of this Agreement, and You may only make use of the abovementioned license rights if You comply with all applicable terms and conditions.
- You may install and use an ELIAS Products (such as ELIAS Studio or ELIAS Asset (such as a specific soundtrack)) on [one] computer or on more than [one] computer only if these computers form a single production unit or constitute separate workstations necessary for the task at hand and belong to You. The number of permitted concurrent installations is subject to change without notice.
- The License becomes effective on the date You accept this Agreement or download any ELIAS Product. This Agreement does not grant you any title or ownership in any of ELIAS Products.
- The Licensee may not, and undertakes not to,
- copy (except as expressly permitted by this Agreement), decompile, reverse engineer, disassemble, attempt to derive or learn the source code of, or algorithms underlying the ELIAS Products, decrypt, alter, modify or create derivative works of, ELIAS Products or any services provided by ELIAS or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law);
- rent, lease, loan, sell, license, sublicense or otherwise provide temporary access to ELIAS Products otherwise than as specifically authorised in this Agreement;
- produce hard copy printed output of data from ELIAS Products for reports and notes for purposes other than solely for reference purposes in connection with the Licensee’s own internal business, and which may not be published or supplied to any third party;
- expose any underlying programming interfaces of ELIAS Products in the Licensee’s Game or otherwise;
- include any documentation relating to ELIAS Products and sample application elements of ELIAS Products in the Licensee’s game or otherwise;
- remove or alter any copyright or other proprietary notice or marking from ELIAS Products;
- permit third parties to benefit from the use or functionality of any ELIAS Product or any part thereof through a timesharing, service bureau or other arrangement; or
- authorize or allow any third party to do any of the foregoing.
2.2 Additional license terms and conditions applicable to ELIAS Engine
- As regards ELIAS Engine, including for the avoidance of doubt ELIAS Engine delivered as part of ELIAS Studio, the License granted under this Agreement is, in addition to the terms and conditions set out in this Agreement, subject to any and all additional terms and conditions set out in ELIAS’ offer to the Licensee’s Quote. Such offer may include provisions on approved game platforms, game engine(s) used, and approved number of copies of Licensee’s Game to be sold.
- ELIAS Engine may only be used for integration and bundling with the Licensee’s Game (limited to one (1) game title), subject to the terms and conditions in this Agreement and in ELIAS’ offer to the Licensee’s Quote, for use on approved platforms only. Thus, the Licensee is restricted from and undertakes not to, inter alia, incorporate or integrate ELIAS Engine into any other software tools, including but not limited to software tools intended for development purposes nor to distribute ELIAS Engine to any third party for integration or incorporation into any software tools intended for development purposes. ELIAS Engine is licensed for integration into Licensee’s Game only and Licensee is not entitled to distribute ELIAS Engine, or any portion thereof, in stand-alone form.
- The Licensee may, subject to the terms and conditions set out in this Agreement and in ELIAS’ offer to the Licensee’s Quote, distribute ELIAS Engine incorporated in [object code format only] as an integrated and inseparable part of Licensee’s Game to end users [who are subject to an end user license agreement which explicitly disclaims any representations, warranties, conditions and liabilities related to ELIAS Engine]. You, or your publisher/distributor, may copy and distribute such number of copies of Licensee’s Game as set out in ELIAS’s offer to Your Quote. You may not sublicense ELIAS Engine in source code format. You may not sublicense ELIAS Engine in object code format except to grant end users the ability to use, or to permit your publishers and distributors to market and distribute, the Licensee’s Game that You distribute as permitted according to this Agreement.
- This Section 2.2.4 does not apply in the event You have agreed otherwise with ELIAS in a separate written agreement or in ELIAS’ response to your Quote.
When You generate revenue from Licensee’s Game or when You distribute Licensee’s Game to end users, You undertake to provide ELIAS with advance notification by contacting ELIAS via firstname.lastname@example.org as early as reasonably possible, including information on the name of the Licensee’s Game, the format of distribution and the distribution channel(s). The Licensee furthermore undertakes to provide ELIAS with information on numbers of Licensee’s Game’s sold on a quarterly basis.
- The Licensee shall, without any undue delay, notify ELIAS if the actual number of Licensee’s Game distributed by the Licensee exceeds the approved number of Licensee’s Game set out in ELIAS’ offer to Licensee’s Quote. Such notice shall include the number of additional Licensee’s Game and the date(s) on which such copies of Licensee’s game were distributed. ELIAS will invoice Licensee for copies of distributed Licensee’s Game exceeding the approved number of copies and the Licensee undertakes to pay for such services no later than thirty (30) days from the date of invoice.
- You agree to maintain accurate books and records of you use of ELIAS Engine sufficient to demonstrate Your compliance with the terms and conditions of this Agreement and ELIAS’ offer to Your Quote, including but not limited to books and records on Your development, manufacturing, distribution and sale of Licensee’s Game and thereto related revenue. You hereby acknowledge and agree that ELIAS, or ELIAS’ third party auditor, may, upon fourteen (14) days’ notice to You, audit such records and books in order to verify that You have (i) used ELIAS Engine solely in the manner authorized herein, (ii) paid all applicable fees, and (iii) otherwise complied with the terms of this Agreement and all offers that ELIAS have provided to Your Quote(s). Audits will be conducted during normal business hours and ELIAS will use commercially reasonable efforts to minimize the disruption of Your normal business activities. You will reasonably cooperate with ELIAS and/or its third-party auditor and will promptly pay directly to ELIAS any underpayments revealed by such audit (including if You e.g. have distributed Licensee’s Game in excess of the approved number by ELIAS). ELIAS shall bear the costs of such audits unless the results of such audit entail a shortfall of agreed payments in relation to agreed fees or approved number of distributed copies of Licensee’s Game, in which case You shall bear the costs of such audit.
- The Licensee undertakes to procure that each Licensee’s Game features the following wording in the documentation and other accompanying material where copyright notices and/or credits related to the Licensee’s Game are displayed: “[Adaptive music technology by Elias Software AB (eliassoftware.com)]”.
Further, the Licensee undertakes to procure that the Licensee’s Game features and displays one of ELIAS’ image logos in a prominent place, including but not limited in (i) a splash screen, title screen or end credits screen, and (ii) on the physical product packaging (where applicable) (please refer to http://www.eliassoftware.com/in-game-credits/ for examples).
- You may not combine, distribute, or otherwise use ELIAS Engine with any code or other content which is covered by a license that would directly or indirectly require that all or part of ELIAS Engine be governed under any terms other than those of this Agreement.
- ELIAS may use Your trademark and logo that you have used in relation to Licensee’s Game, as well as publicly released screen shot and video content from the Licensee’s Game, in connection with ELIAS’ marketing, advertisement and promotion of ELIAS Products in any and all media without restriction.
2.3 Additional license terms and conditions applicable to ELIAS Studio and ELIAS Assets
- ELIAS Studio and ELIAS Assets, including but not limited to samples, sound libraries and soundtracks provided by ELIAS, may contain sample content including but not limited to audio files, audio loops, recordings, built-in sound files, sound settings, video files, graphics, images, artwork, photographs or similar assets (“Sample Content”). This Sample Content is proprietary to ELIAS and/or its licensors, and is protected by applicable intellectual property laws and other laws, including but not limited to copyright. Sample Content may only be used together with [ELIAS Studio] and may only be used for synchronization in the relevant Game Project and/or for synchronization in the Licensee’s Game only. Any other use, including for the avoidance of doubt creation of a sound library, virtual instrument, sample library, sample-based product or other musical instrument is strictly prohibited. Individual Sample Content, such as individual samples, soundtracks, sound sets or audio loops may not be distributed (commercially or otherwise) on a standalone basis. Furthermore, Sample Content may not be repackaged in whole or in part as audio samples, sound libraries, music beds, sound effects, sound files, sound libraries or similar assets. You may not (a) extract, copy or otherwise produce from an ELIAS Product any single preset, sound or MIDI file, an assembly of presets, sounds or MIDI files or assemble presents, sounds or MIDI files for resale, commercialization or any other form of distribution, (b) assemble solo agglomerates known as a loop for resale or other form of distribution or (c) create derivatives of content, including as single sounds, files or any other parts of an ELIAS Product as a whole for resale or other form of distribution.
- You are, subject to Section 2.3.3 below, authorized to synchronize Sample Content provided as part of ELIAS Assets, in its original or modified form, only in Licensee’s Game or in a Game Project only and provided that you credit the composer of the respective Sample Content in the credit section of the Licensee’s Game. The name and further information on the respective composer of ELIAS Assets (such as Soundtracks) are listed in/on http://www.eliassoftware.com/eula-for-soundtracks.
- The Licensee undertakes, without undue delay, to inform ELIAS about which ELIAS Assets, including which Sample Content, that have or will be used in Licensee’s Game or a Game Project by contacting ELIAS on email@example.com. If You refrain from informing ELIAS in accordance with the above, You are not entitled to synchronize Sample Content in Licensee’s Game or in a Game Project.
- The license set out in this Agreement does not include performing rights. Please contact ELIAS on firstname.lastname@example.org in the event you have any questions concerning performing rights.
- Some of ELIAS Assets are proprietary to ELIAS’ licensors and may be governed by licensing terms and conditions issued by such licensors. You hereby acknowledge and confirm that such third party licensing terms and conditions shall, in addition to this Agreement, apply to Your use of such ELIAS Asset.
- In the event of late payment of any licensee fees or other fees, penalty interest shall be paid by the Licensee in accordance with the Swedish Interest Act ( räntelag (1975:635)).
- You are responsible for all applicable taxes on all payments required to be made to ELIAS (other than taxes that ELIAS is obliged to pay on its income, which are ELIAS’ responsibility).
4 Upgrades/additional products or software/Component License
ELIAS has no obligation to provide You with upgrades, updates or supplements to any ELIAS Product (collectively referred as “Upgrades”) that You purchase, unless You expressly order and pay for such Upgrades. If ELIAS does provide you with any Upgrades, this Agreement shall apply to such Upgrades, unless other terms and conditions are provided along with the Upgrade. Such Upgrades may contain certain components that include a separate end user license agreement which You must review and agree to before using such component. The terms and conditions of any component agreement are herein incorporated by reference to this Agreement and in the event of any inconsistencies between this Agreement and any component agreement, the terms of this Agreement shall prevail.
The Licensee agrees and undertakes not to reveal to any third party confidential information which the Licensee obtains from ELIAS or which arises during the use of ELIAS Products. Confidential information refers in this Agreement to any item of information – technical, commercial or of any other nature – regardless of whether or not such information has been documented, with the exception of:
- Information which is generally know or which becomes a matter of general knowledge in a manner other than through the Licensee’s breach of the provisions of this Agreement; or
- Information which the Licensee can prove that the Licensee possessed before the Licensee received it from ELIAS.
The Licensee undertakes to procure that the Licensee’s employees, consultants and board members do not disclose confidential information to third parties. The Licensee is thus under a duty to ensure that employees who can be expected to come into contact with confidential information are required to keep such information secret to the same extent that this Agreement required the Licensee to do so.
7 Disclaimer OF WARRANTIES and limitation of liability
- You expressly acknowledge and agree that, to the extent permitted by applicable law, use of ELIAS Products and any services performed by or accessed through ELIAS Products is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with You.
- Each ELIAS Product is provided “AS IS” and “AS AVAILABLE” and ELIAS makes no warranty as to its use or performance. Except for any warranty, condition, representation or term the extent of which cannot be excluded or limited by applicable law, ELIAS makes no warranty, condition, representation, or term (express or implied, whether by statute, common law, custom, usage or otherwise) as to any matter including without limitation, non-infringement of intellectual property or other third party rights, merchantability, system integration, or fitness for a particular purpose (including fitness or suitability for use in combination with and integration into game engines and use for game consoles, games or similar). Without limiting the generality of the foregoing, ELIAS and its licensors make no warranty that (i) any of the ELIAS Products will operate properly, including as integrated in any Licensee’s Game, (ii) that ELIAS Products will meet Your requirements, (iii) that the operation of ELIAS Products will be uninterrupted, bug free or error free in any or all circumstances, (iv) that any defects in ELIAS Products can or will be corrected, (v) that ELIAS Products are or will be in compliance with a platform manufacturer’s rules or requirements, or (vi) that a platform manufacturer will approve Licensee’s Game, or will not revoke approval of any Licensee’s Game for any or no reason. You assume responsibility for selecting any ELIAS Product to achieve Your intended results, and for the installation of, use of, and results obtained from each ELIAS Product. You expressly assume responsibility for what you create using the ELIAS Product, be it Licensee’s Game, musical compositions, or other end results, including without limitation, with respect to any claim of infringement on any intellectual property or other rights of any person or entity.
- To the extent not prohibited by mandatory applicable law, under no circumstances and under no legal theory, whether in tort, contract, or otherwise, shall ELIAS (or ELIAS’ employees, contractors, subcontractors or third party suppliers) be liable to You or to any other person (including but not limited to end users, game developers, publishers and similar companies) for loss of profits, loss of goodwill, damages, costs and expenses arising out of or related to Your use or inability to use any ELIAS Products or any third party software, hardware or applications (including computers, mobile devices and game consoles) in conjunction with ELIAS Products, however caused, (including but not limited to claims that Licensee’s Game or Your musical compositions infringe on intellectual property or other rights of any person) or any indirect, special, incidental, or consequential damages, of any character including, without limitation, damages for loss of goodwill, work stoppage, business interruption, infringement of intellectual property or other rights of any person, computer or game console failure or malfunction, or for any other damage or loss. In no event shall ELIAS (or ELIAS’ employees, contractors, subcontractors or third party suppliers) be liable for any damages with respect to any ELIAS Product exceeding fifty percent (50%) of the price paid for such ELIAS Product, even if ELIAS has been advised of the possibility of such damages.
You acknowledge and agree to defend, indemnify, and hold harmless ELIAS’, and ELIAS’ employees, contractors, officers, and directors, from any and all claims, damages, costs, penalties and expenses (including attorney’s fees) that arise from Your use or misuse of the ELIAS Products, violation of this Agreement or violation of any rights of a third party.
9 Term and termination
- Unless terminated earlier as provided herein, this Agreement shall commence upon acceptance of this Agreement as set out in the introductory section of this Agreement and shall remain in full force and effect until the expiration of all licenses granted under this Agreement.
- ELIAS may terminate this Agreement and or any licenses granted under this Agreement, with immediate effect upon written notice to the Licensee if
- the Licensee is in material breach of any of its obligations and has failed to remedy such breach within ten (10) days after receiving written notice thereof from ELIAS;
- the Licensee fails to pay any portion of applicable fees, including licensee fees and subscription fees within ten (10) days after receiving written notice thereof from ELIAS, or
- the Licensee commits a material breach that is not capable of being cured.
- Notwithstanding the above, ELIAS may terminate this Agreement with immediate effect if:
- the Licensee is declared bankrupt, enters into liquidation, applies for company re-organization, suspends its payments or if any similar event occurs; or
- the Licensee is acquired by, sells substantially all of its assets to, or undergoes a change of control in favour of a direct competitor of ELIAS.
9.3 Effect of Termination
If ELIAS terminates this Agreement under this Section 9 (i) all licensed rights to all ELIAS Products granted to you under this Agreement shall immediately cease to apply; and (ii) You must promptly discontinue all use of all ELIAS Products and destroy all copies of ELIAS Products and return, or if requested by ELIAS, destroy any related documentation and material in Your possession or control and certify in writing to ELIAS that You have fully complied with these requirements. Sections 6, 7, 8 and 10 shall survive any termination of this Agreement.
10.1 No Illegal Use and Compliance with Laws and Regulations
- ELIAS Products may be used only for lawful purposes and in a lawful manner, and the Licensee agrees to comply with all applicable laws and regulations. ELIAS reserves the right to investigate any reported violation of this Agreement and take any action ELIAS deems appropriate, including terminating this Agreement and Your right to use ELIAS Products. In such event, You undertake to immediately uninstall and destroy all copies of ELIAS Products in Your possession, as well as any material or documentation related thereto.
- The Licensee undertakes to comply with all laws applicable to the actions contemplated by this Agreement, including but not limited to applicable export and re-export restrictions and regulations and the Licensee undertakes not to transfer, or encourage, assist or authorize the transfer of ELIAS Products to a prohibited country or otherwise in violation of any such restrictions or regulations.
This Agreement, including any offers to Licensee’s Quote, and any of Your rights or obligations hereunder, may not be assigned, subcontracted or transferred by You, in whole or in part, whether voluntary, by operation of contract, law or otherwise, without the prior written consent of ELIAS.
Any notice and other communication concerning the application of this Agreement must be in English or Swedish language, in writing, and will be deemed given when delivered by hand or (5) days after being sent by registered mail to the following address (with an e-mail copy to email@example.com) Elias Software, Grev turegatan 3, 11446 Stockholm, SWEDEN.
No consent or waiver, express or implied, by ELIAS of any breach or default of the Licensee in performing its obligations under this Agreement shall be deemed or construed to be a consent or waiver of any other breach or default by the Licensee of the same or any other obligation hereunder. Any failure by ELIAS to complain of any act or failure to act of the Licensee or to declare the Licensee in default shall not constitute a waiver by ELIAS of its rights under this Agreement. No waiver of any rights under this Agreement shall be effective unless in writing.
If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the Parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement.
10.6 Third Party Rights
Other than as expressly set out in this Agreement, this Agreement does not create any rights for any person who is not a party to it, and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.
10.7 Entire Agreement and Amendments
This Agreement, including ELIAS’ offer to Licensee’s Quote, contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the Parties regarding the subject matter hereof. This Agreement may be amended only in writing signed by authorized representatives of both Parties.
10.8 Governing Law and Disputes
- This Agreement shall be governed by and construed in accordance with the substantive laws of Sweden, without giving effect to the rules on conflict of laws within such jurisdiction. The UN Convention on Contracts for the International Sale of Goods shall not apply.
- Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce.
- The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English unless the parties have agreed on another language. The Parties undertake and agree that all arbitral proceedings conducted under this Section 10.8 shall be kept confidential and that all information, documentation and materials in whatever form disclosed in the course of such arbitral proceedings shall be used solely for the purpose of such proceedings.
- Notwithstanding the above, claims regarding undisputed debts that are overdue may be brought before a general court or enforcement service.