| SILK PATENT LICENSE |
| |
| PLEASE READ THIS SKYPE SILK PATENT LICENSE AGREEMENT (THE "LICENSE |
| AGREEMENT") CAREFULLY BEFORE USING OR EXPLOITING THE SKYPE SILK CODEC |
| (THE "SILK CODEC"). THIS LICENSE AGREEMENT GRANTS YOU CERTAIN LIMITED |
| RIGHTS UNDER SKYPE PATENTS TO USE AND EXPLOIT THE SILK CODEC. THE |
| SOFTWARE CODE AND COPYRIGHTS FOR SKYPE'S SOFTWARE IMPLEMENTATION OF |
| THE SILK CODEC (THE "SKYPE SILK SOFTWARE") ARE LICENSED SEPARATELY, |
| AND THIS LICENSE AGREEMENT APPLIES ONLY TO SKYPE'S PATENT RIGHTS IN |
| THE SILK CODEC. |
| |
| NO OTHER SKYPE AGREEMENT GRANTS YOU ANY RIGHT, EXPRESS OR IMPLIED, |
| UNDER SKYPE PATENTS WITH RESPECT TO THE SILK CODEC. SKYPE IS WILLING |
| TO GRANT YOU THE LIMITED PATENT LICENSE SET FORTH HEREIN ONLY UPON THE |
| CONDITION THAT YOU EXPRESSLY ACCEPT AND COMPLY WITH THE TERMS AND |
| CONDITIONS OF THIS LICENSE AGREEMENT. |
| |
| BY CLICKING "I AGREE" BELOW, YOU INDICATE THAT YOU UNDERSTAND THIS |
| LICENSE AGREEMENT AND AGREE TO ALL OF ITS TERMS. IF YOU DO NOT ACCEPT |
| AND AGREE TO ALL OF THE TERMS OF THIS LICENSE AGREEMENT, THEN SKYPE IS |
| UNWILLING TO GRANT YOU ANY RIGHTS UNDER SKYPE PATENTS WITH RESPECT TO |
| THE SILK CODEC AND SKYPE RESERVES THE RIGHT TO ENFORCE ITS PATENT |
| RIGHTS AGAINST YOU AND ANY USE OR EXPLOITATION YOU MAY MAKE OF THE |
| SILK CODEC. |
| |
| 1. Definitions |
| |
| "Affiliate" means, with respect to any entity, any other entity |
| directly or indirectly controlling or controlled by, or under direct |
| or indirect common control with such entity. |
| |
| "Compare Tool" means the tool supplied with the Skype Silk Software |
| for comparing the decoder output Test Vectors provided by Skype with |
| the output of a decoder part of a Licensed Product to determine |
| whether the Licensed Product is Fully Compatible. The output of the |
| Compare Tool will be either a "pass" or "fail" based on fixed |
| thresholds hardcoded into the Compare Tool. |
| |
| "Compatibility Test" means the test script supplied with the Skype |
| Silk Software to determine whether a Licensed Product is Fully |
| Compatible. At the user's request, the test script will invoke the |
| decoder of the Licensed Product, input the encoder output Test |
| Vectors, and compare the output from the Licensed Product with the |
| decoder output Test Vectors using the Compare Tool. |
| |
| "Fully Compatible" means that (i) upon successfully running the |
| Compatibility Test on a Licensed Product, the Compare Tool indicates |
| that the Licensed Product has passed the test; and (ii) the use of |
| such Licensed Product with the Skype Silk Software does not create or |
| result in any errors or bugs or otherwise negatively impair or |
| negatively impact the functioning or operation of the Skype Silk |
| Software. |
| |
| "Licensed Patents" means patents, patent applications and other patent |
| rights owned or controlled by Skype or its Affiliates that would be |
| infringed by any unlicensed manufacture, use, sale, offer for sale or |
| importation of the Silk Codec that is implemented by the Skype Silk |
| Software made publicly available by Skype at |
| http://developer.skype.com/silk. |
| |
| "Licensed Products" means products having encoder and/or decoder |
| functionality based on a version of the Silk Codec released prior to |
| the date set forth at the top of this License Agreement (a) the |
| unlicensed manufacture, use, sale, offer for sale or importation of |
| which would infringe any issued, unexpired claim or pending claim |
| contained in the Licensed Patents in the country in which any such |
| product is made, used, imported, offered for sale or sold and (b) that |
| are Fully Compatible with the most current version of the Skype Silk |
| Software made publicly available by Skype at |
| http://developer.skype.com/silk at the time you entered into this |
| License Agreement. |
| |
| "Skype" means Skype Software S.a.r.l., a Luxembourg corporation. |
| |
| "Test Vector" means the bit representation of a signal provided by |
| Skype with the Skype Silk Software. |
| |
| 2. License and Restrictions |
| |
| 2.1 License Grant. Subject to your compliance with the terms and |
| conditions of this License Agreement, Skype hereby grants you a |
| non-exclusive, non-transferable license under the Licensed Patents to |
| use, make, have made, sell, offer for sale, and import Licensed |
| Products. The license rights granted under this Section 2.1 will |
| remain in force and effect until the earlier of (i) termination of |
| this License Agreement in accordance with its terms or (ii) expiration |
| of the last to expire of the Licensed Patents. |
| |
| 2.2 No Technology Transfer Obligation. Nothing in this License |
| Agreement will be deemed to require Skype to furnish any technology, |
| information, materials or services of any kind. |
| |
| 2.3 No Other Rights. Nothing in this License Agreement will be deemed |
| to confer on you, by implication, estoppel or otherwise, any license |
| or other right under any patent or other intellectual property rights |
| of Skype, except as expressly granted herein. |
| |
| 3. Non-Assert |
| |
| 3.1 You agree that you will not, and you will procure that your |
| Affiliates, officers, employees and assignees will not, assert or |
| otherwise claim or allege infringement of any patents or patent rights |
| capable of being infringed by use, manufacture, marketing, making, |
| having made, keeping, disposing of, offering to dispose of, |
| distribution, sale, offering for sale or importation of (i) the Silk |
| Codec or any other or modified version thereof as such or on any |
| device or (ii) any combination of the Silk Codec or any other or |
| modified version thereof with any hardware and/or software, against |
| (a) Skype or its Affiliates, (b) any direct or indirect licensee of |
| Skype or any Affiliate of Skype, or (c) distributors, customers and |
| end users of any of the foregoing. |
| |
| 3.2 You shall be released from the non-assertion obligation under |
| Section 3.1 in relation to any beneficiary (but not in relation to |
| other beneficiaries) of Section 3.1 that asserts any patent against |
| you for your use of the Skype Silk Software. |
| |
| 4. No Warranty |
| |
| 4.1 Skype, its Affiliates, officers, employees and agents, make no |
| representations or warranties that Licensed Patents are or will be |
| held valid or enforceable, or that the manufacture, importation, use, |
| offer for sale, sale or other distribution of any Licensed Products |
| will not infringe upon any patent or other rights. |
| |
| 4.2 SKYPE, ITS AFFILIATES, OFFICERS, EMPLOYEES AND AGENTS, MAKE NO |
| REPRESENTATIONS, EXTEND NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR |
| IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF |
| MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ASSUME NO |
| RESPONSIBILITIES WHATEVER WITH RESPECT TO DESIGN, DEVELOPMENT, |
| MANUFACTURE, USE, SALE OR OTHER DISPOSITION OF ANY LICENSED PRODUCTS. |
| |
| 4.3 YOU ASSUME THE ENTIRE RISK AS TO PERFORMANCE OF LICENSED PRODUCTS. |
| In no event shall Skype, its Affiliates, officers, employees and |
| agents, be responsible or liable for any direct, indirect, special, |
| incidental, or consequential damages or lost profits or other economic |
| loss or damage with respect to Licensed Products or your exercise of |
| any rights granted herein, regardless of legal or equitable theory. |
| The above limitations on liability apply even though Skype, its |
| Affiliates, officers, employees or agents may have been advised of the |
| possibility of such damage. |
| |
| 4.4 You agree not to make any statements, representations or |
| warranties whatsoever to any person or entity, or accept any |
| liabilities or responsibilities whatsoever from any person or entity |
| that are inconsistent with any disclaimer or limitation included in |
| this Section 4. |
| |
| 5. Termination |
| |
| 5.1 Skype may terminate this License Agreement and any rights granted |
| hereunder in the event that you or any of your Affiliates (i) |
| materially breaches any of the terms and conditions of this Agreement; |
| or (ii) asserts any patent or patent rights against Skype, its |
| Affiliates, or its or their successors or assigns. |
| |
| 5.2 Sections 1, 3, 4, 5.2, 6, and 7 will survive any termination or |
| expiration of this Agreement. |
| |
| 6. Governing Law |
| |
| This License Agreement will be governed by and construed in accordance |
| with the laws of the State of California and the United States of |
| America, without regard to or application of conflicts of law rules or |
| principles. The United Nations Convention on Contracts for the |
| International Sale of Goods will not apply. Any dispute, controversy |
| or claim arising out of or relating to this License Agreement shall be |
| adjudicated in the state or federal courts located in Santa Clara |
| County, California, and you expressly consent to the exclusive |
| personal jurisdiction and venue therein. Notwithstanding the |
| foregoing, Skype shall have the right to seek injunction or any other |
| equitable or similar relief from any court of competent jurisdiction. |
| Any monetary award shall be payable in United States dollars. |
| |
| 7. General |
| |
| You may not assign, novate or transfer this License Agreement or any |
| rights granted hereunder, by operation of law or otherwise, without |
| Skype's prior written consent, and any attempt by you to do so, |
| without such consent, will be void and of no effect. Skype may assign, |
| transfer or otherwise dispose of any rights or obligations under this |
| Agreement or novate this License Agreement to any third party. Except |
| as expressly set forth in this License Agreement, the exercise by |
| either party of any of its remedies under this License Agreement will |
| be without prejudice to its other remedies under this License |
| Agreement or otherwise. The failure by Skype to enforce any provision |
| of this License Agreement will not constitute a waiver of future |
| enforcement of that or any other provision. Any waiver, modification |
| or amendment of any provision of this License Agreement will be |
| effective only if in writing and signed by authorized representatives |
| of both parties. If any provision of this License Agreement is held to |
| be unenforceable or invalid, that provision will be enforced to the |
| maximum extent possible and the other provisions will remain in full |
| force and effect. This License Agreement is the complete and exclusive |
| understanding and agreement between the parties regarding its subject |
| matter, and supersedes all proposals, understandings or communications |
| between the parties, oral or written, regarding its subject matter, |
| unless you and Skype have executed a separate agreement. |