LICENSE.txt

AUDIOKINETIC End-User License Agreement (“EULA” or “Agreement”) for Wwise®, Wwise Motion®, SoundSeed® and/or Wwise Convolution™

WHEREAS AUDIOKINETIC has developed Wwise®, a complete audio solution consisting of an authoring application and a sound engine and/or Wwise Motion, a complete motion engine and/or SoundSeed, an interactive sound generator that enables the development of interactive games for specified platforms; and

WHEREAS you (“Licensee”) have an interest in developing interactive games with AUDIOKINETIC’s authoring application and/or incorporating AUDIOKINETIC’s technology in such games for distribution to third party users of such games; and

WHEREAS, AUDIOKINETIC desires to license Wwise®, a technology proprietary to AUDIOKINETIC, to Licensee under the terms and conditions described herein.

NOW THEREFORE that, in consideration of the mutual covenants provided for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Licensee and AUDIOKINETIC agree as follows:

1.	DEFINITIONS

1.1	 “AUDIOKINETIC Deployment Software” means the AUDIOKINETIC libraries and header files, in object code only, that are required to be incorporated into the Licensee Developed Game for the intended use. 

1.2	“AUDIOKINETIC Wwise Technology” means AUDIOKINETIC’s proprietary audio and motion technology entitled “Wwise”, “Wwise Motion”, “SoundSeed” and/or Wwise Convolution in object code form (and source code form only to the extent provided by AUDIOKINETIC under this Agreement), which allows users to develop interactive games for specified platforms, and includes the AUDIOKINETIC Deployment Software and the Documentation and any updates or upgrades provided by AUDIOKINETIC. 

1.3	“Development License” means a development license granted in respect of the AUDIOKINETIC Wwise Technology and more specifically described herein.

1.4	“Documentation” means all technical, reference and installation manuals, user guides, published performance specifications and other written documentation provided by AUDIOKINETIC generally to its licensees with respect to the AUDIOKINETIC Wwise Technology, along with any modifications and updates thereto.

1.5	“End User” shall mean the third party who is using the Licensee Developed Game.

1.6	“Evaluation License” means an evaluation license granted in respect of the AUDIOKINETIC Wwise Technology and more specifically described herein. 

1.7	“Integration and Distribution License” means an integration and distribution license granted in respect of the AUDIOKINETIC Wwise Technology and more specifically described herein.

1.8	“Level One Source Code” means the portions of the AUDIOKINETIC Wwise Technology released in source code form as part of the SDK installer package, and more particularly the header files necessary to use the API of the AUDIOKINETIC Wwise Technology SDK (sound engine and plug-ins), the source code to the default implementation of the streaming manager interface, to source and effect plug-in samples and to sample applications demonstrating the use of various APIs in the AUDIOKINETIC Wwise Technology SDK. 

1.9	“Level Two Source Code” means the portions of the AUDIOKINETIC Wwise Technology released in source code form for the sound engine portion of the AUDIOKINETIC Wwise Technology but shall exclude (i) any third party source code that may be integrated therein and (ii) any source code for the authoring application of the AUDIOKINETIC Wwise Technology.

1.10	“Level Three Source Code” means the source code for the authoring application portion of the AUDIOKINETIC Wwise Technology but shall exclude any third party source code that may be integrated therein.

1.11	“Licensee” means you and, if different, your organization who is party to the Master License Agreement.

1.12	“Licensee Developed Game” means the interactive software game(s) developed by or on behalf of Licensee on the Licensee Platform. 

1.13	”Licensee Platform” means the AUDIOKINETIC-approved platform on which the Licensee Developed Game is developed and, as applicable, released, as set forth in the applicable purchase order issued by Licensee, if any.

1.14	“Limited Commercial License” means both a Development License and Integration and Distribution License in respect of a limited version of the AUDIOKINETIC Wwise Technology (only 200 media items in the Wwise SoundBank) and more specifically described herein.

1.15	“Modifiable Source Code” means the portions of the Level One Source Code, Level Two Source Code and Level Three Source Code, as applicable, to which AUDIOKINETIC grants access to Licensee in order to enable Licensee to modify such portions of the AUDIOKINETIC Wwise Technology in accordance with the terms of this Agreement. 

1.16	“Non-Commercial License” means both a Development License and an Integration and Distribution License granted in respect of the AUDIOKINETIC Wwise Technology solely for non-commercial purposes (including without limitation for academic and research purposes) and more specifically described herein.

1.17	“Third Party Software” means the software products that have been integrated into or are available through the AUDIOKINETIC Wwise Technology and are available to Licensee as an option.  Each Third Party Software is subject to its individual EULA that can be reviewed during the installation process of the AUDIOKINETIC Wwise Technology.  AUDIOKINETIC reserves the right to add or remove the availability of Third Party Software from time to time at its discretion.


2.	LICENSE GRANT

2.1	AUDIOKINETIC grants Licensee one or more of the following licenses, subject to the payment of the appropriate fees, as applicable:

a)	Evaluation License.  Subject to the terms and conditions of this Agreement, AUDIOKINETIC hereby grants to Licensee a worldwide, paid-up, nonexclusive, non-transferable (subject to Section 12.4), right and license, on the Licensee Platform(s), and in object code only, to install, use and operate the AUDIOKINETIC Wwise Technology in accordance with the Documentation for the purposes of evaluation, prototyping and testing the AUDIOKINETIC Wwise Technology for Licensee’s internal use only with Licensee Developed Games and for a limited period of time determined by AUDIOKINETIC.  Licensee acknowledges that some of the functionalities of the AUDIOKINETIC Wwise Technology may not be available as part of the Evaluation License.  Licensee may also use, reproduce and display the AUDIOKINETIC Deployment Software as contained in such evaluations or demonstrations for the purposes of displaying functionality of such evaluation Licensee Developed Games.  This Evaluation License does not grant any right to distribute the AUDIOKINETIC Deployment Software or any Licensee Developed Games containing the AUDIOKINETIC Wwise Technology.

b)	Development License. Pursuant to this Agreement and subject to the payment of the appropriate Fees as set forth in the applicable PO(s), AUDIOKINETIC hereby grants to Licensee a worldwide, paid-up, nonexclusive, non-transferable (subject to Section 12.4), non-sublicensable, non-refundable right and license pursuant to which Licensee may (a) install, use and operate the AUDIOKINETIC Wwise Technology in accordance with the Documentation, (b) modify the Modifiable Source Code, and (c) make a reasonable number of copies of the AUDIOKINETIC Wwise Technology for the purposes described above, all of the foregoing (i) for Licensee’s internal use only, (ii) solely for the purposes of developing the Licensee Developed Game, and (iii) in the case of Level Two Source Code and the Level Three Source Code, solely for the purposes of debugging the AUDIOKINETIC Wwise Technology, performance balancing, code optimization, timing analysis and identifying Bugs and bottlenecks.

c)	Integration and Distribution License. Pursuant to this Agreement and subject to the payment of the appropriate Fees as set forth in the applicable PO(s), AUDIOKINETIC hereby grants to Licensee a worldwide, paid-up, nonexclusive, non-transferable (subject to Section 12.4), non-sublicensable, non-refundable right and license, on the Licensee Platform, and in object code only, to: (a) use and reproduce the AUDIOKINETIC Deployment Software for the purpose of and to the extent required to develop, test, demonstrate and support the Licensee Developed Game and Add-ons; and (b) make, have manufactured (by third party contractors), reproduce, promote, display, advertise, provide previews and reviews on all media, publish, distribute, license and offer to license the Licensee Developed Game to End Users either as a stand-alone game or bundled with other software or hardware.  The AUDIOKINETIC Deployment Software is licensed for distribution as part of the Licensee Developed Game only and Licensee is not entitled to distribute the AUDIOKINETIC Wwise Technology, or any portion thereof, in stand-alone form.

d)	Limited Commercial License.  The grant of a Limited Commercial License is governed by the terms and conditions of the end user license agreement entered into by Licensee upon download of the limited version of the AUDIOKINETIC Wwise Technology (the “Limited License EULA”).  A Limited Commercial License may be used for commercial production, but any upgrade to a non-limited version of the AUDIOKINETIC Wwise Technology will require the purchase of additional Development Licenses and Integration and Distribution Licenses.

e)	Non-Commercial License.  Subject to the terms and conditions of this Agreement, AUDIOKINETIC hereby grants to Licensee a Non-Commercial License.  A Non-Commercial License does not grant any right to use the AUDIOKINETIC Wwise Technology in any commercial enterprise nor for any commercial production or sub-contracting.

2.2	License Key.  Licensee acknowledges that it has been provided with a key (the “License Key”) that is required to allow Licensee to download and use the AUDIOKINETIC Wwise Technology in accordance with the relevant licenses hereunder.  The License Key can unlock the functionalities of the AUDIOKINETIC Wwise Technology which are available to you,  with one or several platforms and plug-ins, all to the extent provided under the relevant license.  If a license is purchased for a specific Licensee Platform, the License Key shall be designed to unlock the AUDIOKINETIC Wwise Technology with this or these Licensee Platforms only. If Licensee wants to extend the use of the AUDIOKINETIC Wwise Technology to other Licensee Platforms, or purchase additional plug-ins, you need to contact sales@audiokinetic.com. Licensee may not disclose the License Key to any person, and the only reproduction and use of the License Key that is allowed is as required to unlock the relevant portions of the AUDIOKINETIC Wwise Technology for the relevant Licensee Developed Game on the relevant Licensee Platforms.


3.	OWNERSHIP

3.1	Ownership.  Notwithstanding anything else in this Agreement, AUDIOKINETIC and its third party licensors retain (a) all title to, and, except as expressly licensed herein, all rights to the AUDIOKINETIC Wwise Technology, all copies and derivative works thereof (by whomever developed) and all related documentation and materials, and (b) all copyrights, patent rights, trade secret rights and other proprietary rights in the AUDIOKINETIC Wwise Technology.  Except for AUDIOKINETIC’s retained rights in the underlying AUDIOKINETIC Wwise Technology (including without limitation the AUDIOKINETIC Deployment Software) as set forth and licensed to Licensee herein, Licensee shall own the copyright and all other intellectual property rights to the Licensee Developed Game(s) and any updates thereto.

3.2	Open Source Components.  The AUDIOKINETIC Wwise Technology may contain certain open source components (“Open Source Components”) which are not licensed under the terms of this Agreement, but instead are licensed under the terms of their respective licenses.  Such open source components are provided “as is” without warranty of any kind. AUDIOKINETIC grants Licensee no right to receive source code to Open Source Components; however, in some cases, rights and access to source code for the Open Source Components may be available directly from their owners, licensors and/or suppliers.  Licensee’ use of each Open Source Component is subject to the terms of its applicable license. 

AUDIOKINETIC informs Licensee that the Ogg, Vorbis and Tremor Open Source libraries provided by the Xiph.Org Foundation (the “Ogg Vorbis Libraries”) are included as part of the Wwise Technology as an option to Licensee.  If Licensee decides to use this option, in accordance with the terms of the open source license for the Ogg Vorbis Libraries:

“© year, Xiph.Org Foundation”

“Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: 

Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer;

Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution; and

Neither the name of the Xiph.org Foundation nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. 

THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE FOUNDATION OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. “

To avoid any presence of the Vorbis code in your Licensee Developed Game, you should not link to the AkVorbisDecoder.lib.  AUDIOKINETIC guarantees that this will ensure no element of the open source library is embodied in the AUDIOKINETIC Deployment Software.


4.	LICENSEE OBLIGATIONS

4.1	Restrictions on Use.  Except as expressly provided herein, Licensee agrees not to (a) produce hard copy printed output of data from the AUDIOKINETIC Wwise Technology and/or Third Party Software for reports and notes for purposes other than solely for reference purposes in connection with its own internal business, and which may not be published or supplied to any third party; (b) expose any underlying programming interfaces of the AUDIOKINETIC Wwise Technology and/or Third Party Software in the Licensee Developed Game; (c) include any documentation relating to the AUDIOKINETIC Wwise Technology and/or Third Party Software and sample application elements of the AUDIOKINETIC Wwise Technology with the Licensee Developed Game; and (d) remove or alter any copyright or other proprietary notice from the AUDIOKINETIC Wwise Technology and the Documentation and/or Third Party Software; (e) disassemble, decompile or otherwise reverse engineer the AUDIOKINETIC Wwise Technology or otherwise attempt to learn the source code (to the extent not provided by AUDIOKINETIC), or algorithms underlying the AUDIOKINETIC Wwise Technology, to the maximum extent allowed under applicable law; (f) rent, lease or otherwise provide temporary access to the AUDIOKINETIC Wwise Technology and/or Third Party Software otherwise than as specifically authorized herein; (g) copy, alter or modify the AUDIOKINETIC Wwise Technology otherwise than as specifically authorized herein, or (h) authorize or allow others to do any of the foregoing.

4.2	Notice.  Licensee agrees to promptly notify AUDIOKINETIC if the Licensee becomes aware of any unauthorized use of the whole or any part of the AUDIOKINETIC Wwise Technology by any third party. 


5.	TRADEMARK LICENSE 

Each of AUDIOKINETIC and Licensee owns the trademarks, logos and trade names (collectively, “Marks”) for their respective products and/or services, including, but not limited to the Licensee Developed Game and the AUDIOKINETIC Wwise Technology.  No licence to use the Marks is granted under this Agreement.  


6.	LEVEL TWO AND LEVEL THREE SOURCE CODE

6.1	Support.  Before exercising its rights to modify Level Two Source Code or the Level Three Source Code, Licensee will make its best efforts to submit any issues or suggestions surrounding the Level Two Source Code or the Level Three Source Code to AUDIOKINETIC for resolution.  AUDIOKINETIC undertakes to take all reasonable actions to address these issues in a timely manner.  Should the urgency of the changes required not allow Licensee to contact AUDIOKINETIC for resolution, or should AUDIOKINETIC fail to address these issues in a timely manner, Licensee may make changes to the Level Two Source Code or the Level Three Source Code internally.  Should Licensee make any changes to the Level Two Source Code or the Level Three Source Code and as a result of these changes all or part of the AUDIOKINETIC Wwise Technology fails to function according to the Documentation, AUDIOKINETIC reserves the right to no longer provide Support to Licensee for these changes, or more globally for the AUDIOKINETIC Wwise Technology.

6.2	Improvements to the Level Two Source Code or the Level Three Source Code. Licensee will make reasonable efforts to share information about the changes it makes to the Level Two Source Code or the Level Three Source Code, in order for AUDIOKINETIC to be able to maintain supporting Licensee and to improve the AUDIOKINETIC Wwise Technology.

6.3	Title to the Modifiable Source Code. Title to the Modifiable Source Code, any copies thereof or any modification, improvement, adaptation, enhancement or translation, developed as a result of Licensee exercising its rights hereunder, and all rights in and to any patent, trademark, copyright or other intellectual property right developed and/or incorporated in the Modifiable Source Code, shall at all times remain with AUDIOKINETIC. LICENSEE HEREBY ACKNOWLEDGES FULL AND SOLE OWNERSHIP OF AUDIOKINETIC IN AND TO ANY SUCH MODIFICATION, IMPROVEMENT, ADAPTATION, ENHANCEMENT OR TRANSLATION AND UNDERTAKES TO CONFER FULL AND SOLE OWNERSHIP IN SAID MODIFICATION, IMPROVEMENT, ADAPTATION, ENHANCEMENT OR TRANSLATION TO AUDIOKINETIC BY EXECUTING AN ASSIGNMENT OF RIGHTS OR ANY OTHER DOCUMENT EVIDENCING SUCH TRANSFER TO AUDIOKINETIC.  AUDIOKINETIC hereby grants an irrevocable, unlimited, royalty-free, worldwide, transferable license to Licensee to such modifications, improvements and adaptations, enhancements or translations.


7.	SUPPORT

During the term of the Agreement, if generally available to AUDIOKINETIC’s licensees at the time, AUDIOKINETIC may provide support for the AUDIOKINETIC Wwise Technology as described on AUDIOKINETIC’s website at www.audiokinetic.com/support (“Support”), all such support will be provided in accordance with the then current applicable conditions set forth on www.audiokinetic.com/support, subject to the terms and conditions set forth herein.  Licensee assumes all risks arising from Licensee's failure to implement updates and any other corrections released by AUDIOKINETIC.


8.	PROPRIETARY INFORMATION

8.1	Proprietary information.  Licensee acknowledges that pursuant to this Agreement it will be receiving information which is proprietary and confidential to AUDIOKINETIC and/or to the owner(s) of the Third Party Software as applicable and, in the case of the AUDIOKINETIC Wwise Technology, is a confidential trade secret and valuable asset of AUDIOKINETIC which may (i) be the subject of one or more patent applications , which AUDIOKINETIC wishes to protect from public disclosure (“Proprietary Information”).  “Proprietary Information” shall also include (i) any information designated as confidential by AUDIOKINETIC, (ii) the economic terms of this Agreement and (iii) any information relating to AUDIOKINETIC’s products, plans, product designs, product costs, product prices, product names, finances, marketing plans, business opportunities, business plan, personnel, research, development, or know-how.

8.2	Exclusions.  Each party acknowledges that the following will not be considered “Proprietary Information” for the purposes of this Agreement: (a) information which is publicly available in the public domain at the time it is communicated to Licensee by AUDIOKINETIC; (b) information which is or becomes publicly available or public domain information through no fault of Licensee subsequent to the time it is communicated to Licensee by AUDIOKINETIC; (c) information which is in Licensee’s possession free of any obligation of confidence to AUDIOKINETIC at the time it is communicated to Licensee by AUDIOKINETIC; (d) information which is rightfully communicated to Licensee free of any obligation of confidence subsequent to the time it is communicated to Licensee by AUDIOKINETIC; (e) information which was independently developed by Licensee without use of the other party’s Proprietary Information; or (f) information which is required to be disclosed pursuant to law or to the order, requirement or request of a court of government authority.

8.3	Restrictive Use Conditions.  Licensee (i) will hold such Proprietary Information in confidence and will not disclose it, except to its employees, officers or authorized representatives and those of its authorized sub-licensees with a need to know for purposes of performing their duties, who are similarly bound to hold the Proprietary Information in confidence and, with respect to the AUDIOKINETIC Wwise Technology, who have been given an individual access code by AUDIOKINETIC, (ii) shall prevent inadvertent or unauthorized disclosure or dissemination of any Proprietary Information, and (iii) agrees to take appropriate action with its employees, officers and authorized representatives and those of its authorized sub-licensees to satisfy its obligations under this Agreement with respect to the use, copying, modification, protection and security of the Proprietary Information.

8.4	Notice and Return of Information.  Licensee shall notify AUDIOKINETIC immediately upon discovery of any unauthorized use or disclosure of Proprietary Information, and will cooperate with AUDIOKINETIC in every reasonable way to help AUDIOKINETIC regain possession of the Proprietary Information and prevent its further unauthorized use.  Licensee shall return all originals, copies, reproductions and summaries of Proprietary Information at AUDIOKINETIC’s request or, at AUDIOKINETIC’s option, certify destruction of the same with the sworn statement of one of its officers, except where same is required for the exercise of Licensee’s rights under this Agreement.

8.5	Rights and Remedies.  Licensee acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Proprietary Information and that AUDIOKINETIC shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.


9.	WARRANTY AND DISCLAIMER

9.1	Warranty.  AUDIOKINETIC warrants that it has the right and authority to grant the rights granted to Licensee hereunder in the AUDIOKINETIC Wwise Technology on the Licensee Platforms.  AUDIOKINETIC warrants that it is under no contractual or other legal obligation which would interfere in any way with the full, prompt, and complete performance of its obligations pursuant to this Agreement.

9.2	Infringement.  In the event that any part of the AUDIOKINETIC Wwise Technology (other than Open Source Components) becomes, or AUDIOKINETIC believes that it is likely to become, the subject of an infringement claim, AUDIOKINETIC may at its option either (i) secure Licensee’s right to continue using such part of the AUDIOKINETIC Wwise Technology, (ii) replace or modify it to make it non-infringing (in ways not materially adversely affecting the utility of such part of the AUDIOKINETIC Wwise Technology), or if none of the foregoing alternatives is reasonably available to AUDIOKINETIC, (iii) terminate this Agreement upon one (1) months’ notice.  In the event of termination of this Agreement by AUDIOKINETIC, Licensee shall be entitled to a refund of the License Fees paid for the AUDIOKINETIC Wwise Technology.

In addition, AUDIOKINETIC at its own expense shall defend any action brought against Licensee, to the extent that it is based on a claim that the AUDIOKINETIC Wwise Technology used within the scope of the license granted hereunder infringes a third-party patent or copyright in Canada or the United States and shall hold Licensee harmless from any liability for any costs and damages ordered by a court as a result of such a claim or resulting from the settlement thereof, provided Licensee notifies AUDIOKINETIC promptly in writing of the action (and all prior claims relating to such action) and AUDIOKINETIC has sole control of the defense and all negotiations for settlement or compromise of the claim.

AUDIOKINETIC shall have no liability for any claim of infringement based on (i) use of other than the current release of the AUDIOKINETIC Wwise Technology unaltered by anyone except AUDIOKINETIC, if such infringement would have been avoided by the use of such current unaltered release, (ii) use or combination of the AUDIOKINETIC Wwise Technology with programs or data not supplied or approved by AUDIOKINETIC to the extent such use or combination caused the infringement or (iii) use of the Open Source Components.  The remedies set forth in this Section 9.2 constitute the sole remedies of Licensee and AUDIOKINETIC’s exclusive liability with respect to claims for infringement of proprietary rights of third parties.

9.3	DISCLAIMER.  EXCEPT AS SET OUT IN THIS SECTION 9, THE AUDIOKINETIC WWISE TECHNOLOGY IS PROVIDED “AS IS” AND “WHERE IS” BY AUDIOKINETIC AND IS ACCEPTED AS SUCH BY LICENSEE. AUDIOKINETIC DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES RELATING TO THE AUDIOKINETIC WWISE TECHNOLOGY AND DOCUMENTATION, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND NON-INFRINGEMENT.  AUDIOKINETIC DOES NOT WARRANT THAT THE AUDIOKINETIC WWISE TECHNOLOGY OR DOCUMENTATION WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE AUDIOKINETIC WWISE TECHNOLOGY AND THE DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR FREE.   EXCEPT WITH RESPECT TO SECTION 10 BELOW, LICENSEE AGREES THAT AUDIOKINETIC WILL NOT BE LIABLE FOR ANY DAMAGES THAT LICENSEE OR ITS END USERS OR ITS GAME PLAYERS MAY INCUR ARISING OUT OF THE USE OR INABILITY TO USE THE AUDIOKINETIC WWISE TECHNOLOGY OR LICENSEE DEVELOPED GAME.


10.	LIMITATION OF LIABILITY

10.1	EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, AND EXCEPT IN RELATION TO BREACHES OF AUDIOKINETIC’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT, INCLUDING, BUT NOT LIMITED TO, DAMAGE OR LOSS OF PROPERTY, EQUIPMENT, INFORMATION OR DATA, LOSS OF PROFITS, REVENUE OR GOODWILL OR COST OF REPLACEMENT SERVICES OCCASIONED BY ANY DEFECT IN THE AUDIOKINETIC WWISE TECHNOLOGY, THE INABILITY TO USE SERVICES PROVIDED HEREUNDER OR ANY OTHER CAUSE WHATSOEVER WITH RESPECT TO THE AUDIOKINETIC WWISE TECHNOLOGY OR THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY.  THIS LIMITATION WILL APPLY EVEN IF THE OTHER PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

10.2	IN NO EVENT SHALL AUDIOKINETIC’S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT OF FEES DUE FROM LICENSEE TO AUDIOKINETIC FOR THE RELEVANT LICENSEE DEVELOPED GAME, AS APPLICABLE, DURING THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO SUCH CLAIM.


11.	TERM AND TERMINATION

11.1	Term.  Unless terminated earlier as provided herein, this Agreement shall commence upon acceptance of this agreement and shall continue: (a) with respect to the Evaluation License, for a period of 30 days, which may be extended; and (b) with respect to all other licenses, perpetually once such licenses are granted.

11.2	Termination.  AUDIOKINETIC may terminate this Agreement if the Licensee materially breaches this Agreement and such material breach is not cured within thirty (30) days of written notice describing the breach.  

11.3	Effect of Termination/Expiration.  Upon the expiration or termination of this Agreement or any of the licenses granted hereunder:  (a) all of Licensee’s rights hereunder shall terminate; and (b) within fifteen (15) days of the expiration or termination date Licensee shall, at its own expense, and at AUDIOKINETIC’s sole option, either return all copies of the AUDIOKINETIC Wwise Technology in its possession or control, or, shall destroy all copies of the AUDIOKINETIC Wwise Technology in its possession or control.

11.4	Survival.  Section 1 (Definitions), Section 3 (Ownership), Section 4.1 (Restrictions on use), 5 (Trademark License), 6.3 (Title to Modifiable Source Code), Section 8 (Proprietary Information), Section  9 (Warranty and Disclaimer), Section 10 (Limitation of Liability), Section 11.3 (Effect of Termination), this Section 11.4 (Survival) and Section 12.7 (Governing Law) shall survive the termination or expiration of this Agreement in accordance with their terms.


12.	MISCELLANEOUS

12.1	New EULA.  The text of this Agreement may be amended from time to time by AUDIOKINETIC. Such amendments will become effective and enforceable against Licensee upon express acceptance of same either through the execution of a written instrument to that effect or the acceptance of the new terms through AUDIOKINETIC Wwise Technology’s installation process.

Licensee acknowledges that the terms and conditions applicable to Limited Commercial Licenses are those set out in the Limited License EULA.

12.2	Waiver.  Any failure to enforce by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not be deemed or construed to be a waiver of such term or condition or any subsequent breach thereof.

12.3	Notices.  Any notice under this Agreement will be in writing and will be personally delivered, sent by a reputable overnight mail service (e.g. Federal Express) or by registered mail, or by facsimile confirmed by registered mail, to the other party.  Notices will be deemed effective (a) three (3) working days after deposit, postage prepaid, if mailed, (b) the next day if sent by overnight mail, or (c) the same day if sent by facsimile and confirmed as set forth above.  A copy of any notice will be sent to the following:

Notice to AUDIOKINETIC:

	215 St-Jacques St. Suite 1000
	Montreal (Quebec)
	Canada
	H2Y 1M6
	Fax: +1514 499-9109
	Attention: President and Chief Executive Officer

Notice to Licensee: at the address provided by Licensee to AUDIOKINETIC.

12.4	Assignment.  This Agreement or any licenses granted hereunder may not be assigned or sublicensed by Licensee in whole or in part other than as provided hereunder (by contract, merger, operation of law or otherwise) without the prior written consent of AUDIOKINETIC, such consent not to be unreasonably withheld or delayed.  AUDIOKINETIC may assign this Agreement with notice to Licensee in the event of a merger, acquisition or similar corporate activity provided that the surviving entity agrees to be bound by the terms of this Agreement.  This Agreement shall be binding upon and inure for the benefit of the successors in title of the parties hereto.

12.5	Export.  Licensee agrees to comply with all export laws, restrictions, national security controls and regulations of the United States or other applicable national or foreign agency or authority, and not to export or re-export, or allow the export or re-export of any proprietary information or any copy or direct product thereof in violation of any such restrictions, laws or regulations.

12.6	Independent Contractors.  Each party will act at all times as an independent contractor and will have no right or authority to act on behalf of, create any obligation for, or bind the other party in any way.  Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties.

12.7	Governing Law.  This Agreement shall not be modified or amended except in writing and signed by both parties.  This Agreement will be governed by and construed under the laws of the province of Quebec and the laws of Canada applicable therein and the parties hereto submit to the exclusive jurisdiction of the courts of Province of Quebec, District of Montreal.