End User License Agreement

GIGANTIC SOFTWARE END USER LICENSE AGREEMENT (EULA)

IMPORTANT NOTICE –PLEASE READ CAREFULLY

This End User License Agreement (“EULA”) sets forth the terms applicable to use and licensing by the customer, your employees, contractors,  affiliates, and subsidiaries (“Customer”, “You” and/or “you”) of software provided by Gigantic Software, LLC. (“Gigantic Software”, “We” and/or “us”.) It is important that you read this document before installing or using the software provided by Gigantic Software (the “Software”) and any associated documentation or materials provided by Gigantic Software (“Documentation”). By clicking the “I accept” and “Next” buttons associated with the Software, or by installing, or otherwise using, the Software, you acknowledge and agree that you are binding Customer to the terms of this EULA.

If you do not agree to the terms of this EULA, then you are not licensed to install and/or use the Software and/or the products of the Software.

1. GRANT OF LICENSE.

The Software is licensed, not sold. Subject to the condition that you are in compliance with the terms of this EULA, we grant you a non-exclusive, non-transferable, limited license to use the Software. Your use of the Software shall be subject to restrictions and limitations as specified in this EULA.

All Gigantic Software Software products and solutions are licensed under the registered mark Gigantic(TM).

2. RESTRICTIONS AND LIMITATIONS ON USE OF THE SOFTWARE.

You will not, nor will you permit others to, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatsoever, directly or indirectly, or disclose any of the foregoing, except to the extent such a restriction is unenforceable under local law.

The Software is licensed as a single product, and its component parts may not be separated for use on more than one computer. Except to the extent such a restriction is unenforceable under local law, you may not modify, amend, or create derivative works of the Software.

You will not, nor will you permit others to, modify the Software and/or disable any licensing features of the Software.

Except to the extent such a restriction is unenforceable under local law, you may not lease, sublicense, lend, or rent the Software to anyone.

3. COPIES.

You may make one archival copy of the Software, provided that your archival copy is not installed or used on any computer, and further provided that the copy shall bear the original and unmodified copyright, patent and other intellectual property markings that appear on or in the Software. You may not transfer the rights to an archival copy.

4. KEY CODES AND UPGRADES.

Certain features of the Software may only by used after you purchase a key code that will enable you to activate these features of the Software. You may not re-license, reproduce or distribute any key code except with the express advance written permission of Gigantic Software. Upon receipt of a Software upgrade, you may, at our option, receive a new key code to activate the upgraded version. Gigantic Software’s provision of a new key code does not constitute the granting of a second license to the Software, in that Customer may not use the upgraded version in addition to the prior version of the Software that is being replaced. If you are installing this copy of the Software as an upgrade, update, patch or enhancement of a prior release of the same Software which was installed on the same computer, your rights under the prior EULA for the Software are terminated, and all of your use of the Software (including its prior versions) are solely under the terms of the newer EULA.

5. OWNERSHIP OF INTELLECTUAL PROPERTY.

Gigantic Software and its suppliers retain all right, title and interest in and to the Software, the Documentation, and all copies thereof (including but not limited to any images, photographs, animation, videos, audio, music, text and “applets” incorporated into the Software), as well as to all modifications to the Software, whether created by supplier or any other person or entity, including all corrections, revisions, bug fixes, workarounds, translations, adaptations, derivative works, customizations, configurations, updates, upgrades, new releases, new versions, improvements, and enhancements thereof, and all copyrights, trade secrets, patent rights, trademarks, service marks, trade dress, and any other intellectual property rights embodied therein or associated therewith. The ontology models that support and manage the operation of the Software are issued under a restricted copyright license that prohibits reproduction, distribution, copying and any other form of sharing.

All title and intellectual property rights in and of the content which may be accessed or generated through use of the Software is the property of the respective content owners and may be protected by the applicable copyright or other intellectual property laws and treaties. You agree not to use the Software to infringe, alter or otherwise bypass the intellectual property rights of the respective content owners.

You agree not to distribute or make functions of the Software available over a network. You agree not to provide remote or distributed access to the functions of the Software as a service.

You agree not to sell, rent, lease, or subcontract the output of the Software, except as part of a larger creative work such as a video game, film, television show, theatrical production, trade show, theme park, or similar larger creative work.

You agree not to sell, rent, lease, or subcontract the output of the Software as part of a set of sound effects sold publicly as a collection (“Sound Library”).

You agree not to provide functions of the Software as a service, whether over a networked server, the Internet, or any source of income for the Customer.

All rights not specifically granted to Customer in this EULA are reserved by Gigantic Software. Customer will take all reasonable measures to protect, and will not take any action which could prejudice or impair Gigantic Software’s rights in, and will not challenge or contest the validity of, or Gigantic Software’s complete and exclusive ownership of, the Gigantic Software Rights.

6. PAYMENT.

All license fees applicable to the Software will be invoiced and paid pursuant to the terms of the Agreement. Any consulting, development, installation, integration, training, support, or other professional services provided to Customer will be charged at Gigantic Software’s then-prevailing hourly rates, plus reimbursement of reasonable expenses, and invoiced in arrears on a monthly basis. Payment shall be due within 30 days after the date of the invoice. Any amount due that is not timely paid shall bear interest at the rate of 1.5% (or a lesser amount as may be the maximum permitted by law) per month or portion thereof that the amount remains unpaid after the due date. Customer shall reimburse Gigantic Software’s reasonable attorneys’ fees and other costs incurred by Gigantic Software in collecting any amount due to Gigantic Software. All amounts payable to Gigantic Software are exclusive of all federal, state, local, national, and international taxes.

7. LIMITED WARRANTY.
Gigantic Software warrants to Customer that the Software will perform substantially in accordance with the Documentation for a period of 30 days from the date of receipt. Gigantic Software does not warrant that the Software is error or bug free. Gigantic Software’s and its suppliers’ entire liability and Customer’s sole and exclusive remedy for breach of the above warranty shall be, at Gigantic Software’s option, either (i) return of the price paid, if any, or (ii) repair or replacement of the nonconforming Software. Gigantic Software does not warrant that Customer will experience no down-time or data loss in connection with the Software, that the operation of the Software will be uninterrupted or error free, or that all Software errors will be corrected. Moreover, the above warranty shall not apply to (and Gigantic Software shall have no obligation with respect to): (1) any Software that has been modified or altered by any party other than Gigantic Software; (2) use of the Software with any equipment or software not recommended by Gigantic Software; (3) noncompliance with Documentation, improper operation, or mismanagement of the Software; or (4) electrical failures or surges, poor circuitry, or other accidents or causes not within the reasonable control of Gigantic Software.

8. DISCLAIMER OF OTHER WARRANTIES.
OTHER THAN THE WARRANTY SET FORTH IN SECTION, GIGANTIC SOFTWARE AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, AS TO ANY MATTERS, INCLUDING THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY USING THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. GIGANTIC SOFTWARE AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES WITH REGARD TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, INFORMATIONAL CONTENT OR ACCURACY, QUIET ENJOYMENT, TITLE, AND NONINFRINGEMENT.

9. LIMITATION OF LIABILITY.
You are solely and entirely liable for the performance or results you may obtain by using the Software and Gigantic Software shall not be liable for losses arising from your use of the Software. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL GIGANTIC SOFTWARE OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF GIGANTIC SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, GIGANTIC SOFTWARE’S ENTIRE LIABILITY UNDER ANY PROVISION OF THE AGREEMENT OR THIS EULA SHALL BE LIMITED TO THE LESSER OF CUSTOMER’S ACTUAL DAMAGES OR THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SOFTWARE.

10. THIRD-PARTY AND OPEN SOURCE PROGRAMS.
One or more third-party proprietary or open source programs or services may be embodied in, bundled with, or otherwise provided by Gigantic Software to Customer in connection with the Software. Any third party software that is provided to you shall be subject to terms and conditions of the third party, and support for such third party software products shall be subject to the support for such third party software made available and provided by the third party. Gigantic Software does not have any support obligations for such third party software products. Further, although a third-party program or service may be embedded in the Software, in certain cases Gigantic Software may require Customer to obtain its own copy of such program or its own account or subscription for such service, to continue use of the Software. Customer acknowledges that open source programs are distributed under the terms of the open source license applicable to each such program, and only such license, with no additional license conditions. Where required by the applicable license, the source code for each open source program distributed by Gigantic Software can be accessed by Customer via Gigantic Software’s website. Any rights associated with any open source program apply to that program only and not to any other programs owned by Gigantic Software or its licensors even if distributed together with the open source program.

11. CONSENT TO USE OF DATA.
Gigantic Software may collect and use technical information you provide in relation to your installation and use of the Software or the provision of support services related to the Software. All such information will be subject to Gigantic Software’s then privacy policy.

12. TERM AND TERMINATION.
The Agreement (including this EULA) may be terminated (a) by Customer’s giving Gigantic Software written notice of termination or (b) by Gigantic Software’s giving Customer written notice of termination if Customer commits a breach of the Agreement and fails to cure the breach within ten days after notice from Gigantic Software. Upon termination of your rights under this EULA for any reason, or upon termination of the EULA itself, the Customer must cease all use of the Software, destroy all copies of the Software and all of its component parts then in Customer’s possession or control (including all component parts, the media and printed materials, and any prior versions) and take any other actions as Gigantic Software may reasonably request to ensure that no copies of the Software remain in Customer’s possession or control. The terms and conditions set forth in Sections 2, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, and 16 shall survive termination as applicable.

13. SUPPORT AND MAINTENANCE.
Subject to timely payment by Customer of the applicable maintenance and support fees under the Agreement or any applicable Maintenance and Support Agreement, Gigantic Software shall provide maintenance and support services in accordance with its standard maintenance and support terms for such services. Gigantic Software reserves the right to change the nature and scope of its standard maintenance and support services upon reasonable notice to Customer.
With respect to information that you provide to Gigantic Software as part of the support, Gigantic Software may use it with a view of supporting and developing its products, and all other use of such information shall be subject to Gigantic Software’s then privacy policy.

14. INDEMNIFICATION.

Customer shall indemnify and defend Gigantic Software against any claims against Gigantic Software, and shall pay the amount of any resulting damages, arising from or in connection with (i) Customer’s breach of the Agreement, (ii) Customer’s use of the Software, or (iii) Customer’s Modifications to the Software.

15. CONFIDENTIALITY.

For a period of three years following disclosure or exposure (or, in the case of trade secrets as defined under applicable law, for so long beyond the three-year period as the information continues to be a trade secret as so defined), Customer shall maintain confidentiality with respect to, and refrain from using other than as provided in the Agreement, any proprietary, confidential, or trade secret information of Gigantic Software acquired by Customer, including the design, functionality, structure, organization, code, and operation of, and pricing for, the Software, and proprietary information contained in the Software or Documentation. Customer shall use confidentiality agreements and other similar measures with, and to be fully responsible for, any parties who obtain any Gigantic Software confidential information through Customer, including any of Customer’s employees, former employees, contractors, and former contractors.

16. GENERAL PROVISIONS.

This Agreement shall be governed by and construed in accordance with those laws of the State of California applicable to agreements entered into and performed entirely within the State of California.  Any disputes which arise under this Agreement that can not be resolved through good faith discussions, will be submitted to binding arbitration to be conducted in accordance with its Streamlined Arbitration rules by the Judicial Arbitration and Mediation Service (“JAMS”) located in Orange, California, USA.  Discloser and Recipient expressly consent to the exclusive jurisdiction of JAMS and waive any jurisdictional or forum non-conveniens defenses each may have.

If Gigantic Software is delayed in or prevented from performing any obligation under the Agreement due to causes or events beyond its control, including any act of God, fire, riot, legal action, hardware/equipment breakdown or failure, non-Gigantic Software software failure, present or future law, governmental order, rule or regulation, such delay or nonperformance shall be excused and the time for performance shall be extended or rescheduled on mutually agreeable terms.

Customer shall notify Customer’s employees who may have access to the Software of the restrictions contained in this EULA and ensure their compliance with these restrictions. Customer agrees to bear responsibility for the actions of its employees or other parties who obtain access to the Software through Customer.

Any notice or other communication given under the Agreement shall be in writing and shall have been properly given by either party to the other if sent by certified or registered mail, return receipt requested, or by overnight courier to the address shown on Gigantic Software’s website for Gigantic Software and the address shown in Gigantic Software’s records for Customer, or such other address as the parties may designate by notice given in the manner set forth above.

The Agreement contains the entire agreement and understanding of the parties with respect to the matters addressed in the Agreement, and supersedes all prior written and oral understandings of the parties with respect to those matters. The Agreement may be amended only by a document in writing signed by both parties. If, for any reason, any provision of the Agreement is held invalid or otherwise unenforceable, such invalidity or unenforceability shall not affect the remainder of the Agreement, and the Agreement shall continue in full force and effect to the fullest extent allowed by law. The failure of either party at any time to require performance of any provision hereof shall in no manner affect such party’s right at a later time to enforce the same or any other term of the Agreement.

17. PRE-RELEASE, EVALUATION AND FREE EDITION SOFTWARE.

If Customer is licensing from Gigantic Software a pre-commercial release or beta version of Software (“Pre-release Software”), or is using the Software on an evaluation or demonstration basis (“Evaluation Software”), or is licensing from Gigantic Software a free edition of Software (“Free Edition Software”), then the terms of this Section 17 shall apply. If any provision of this Section 17 conflicts with any other term or condition in this EULA, this Section 17 shall supersede and control over such other term with respect to Pre-release Software, Evaluation Software and/or Free Edition Software, but only to the extent necessary to resolve the conflict. Notwithstanding the foregoing, if Customer has been provided Pre-release Software, Evaluation Software, or Free Edition Software pursuant to a separate written agreement, Customer’s use of the Software is governed by that agreement.
Pre-release Software. The Pre-release Software is a pre-release version and may contain bugs, errors and other problems that could cause system or other failures and data loss. The Pre-release Software does not represent a final product, and a final product that is the same as, similar to, or compatible with, the Pre-release Software may not be introduced or made available in the future. Any research or development that Customer performs regarding the Pre-release Software or any product associated with the Pre-release Software is done entirely at Customer’s own risk. During the term of Customer’s use of the Pre-release Software, Customer will, upon request by Gigantic Software, provide feedback to Gigantic Software regarding testing and use of the Pre-release Software, including error or bug reports. Customer shall not be entitled to use Pre-release Software in live, production environments. All use shall be strictly for non-commercial, internal, non-production purposes.
Evaluation Software. If the Evaluation Software has a time-out feature, then the Software will cease operation at the conclusion of the designated evaluation period. Upon the expiration date, Customer’s license will expire unless otherwise extended. Access to any files created with the Evaluation Software is entirely at Customer’s risk. Customer shall not be entitled to use Evaluation Software in live, production environments. All use shall be strictly for non-commercial, internal, non-production purposes.
Free Edition Software. Free Edition Software does not have the same functionality or features as commercial versions of the Software. Gigantic Software does not provide support and maintenance with respect to Free Edition Software. If Customer has questions regarding the use of Free Edition Software, Gigantic Software may elect, in its sole discretion, to respond to the questions, but Customer’s use of any advice provided by Gigantic Software is at Customer’s own risk. All use of Free Edition Software shall be strictly for non-commercial, internal, non-production purposes. Customer may not sublicense or otherwise distribute, or allow others to use, Free Edition Software.
Disclaimer of Warranties; Limitation of Liability. PRE-RELEASE SOFTWARE, EVALUATION SOFTWARE AND/OR FREE EDITION SOFTWARE IS PROVIDED TO CUSTOMER “AS-IS,” AND GIGANTIC SOFTWARE AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, AS TO ANY MATTERS, INCLUDING THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY USING THE PRE-RELEASE SOFTWARE, EVALUATION SOFTWARE AND/OR FREE EDITION SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GIGANTIC SOFTWARE AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES WITH REGARD TO THE PRE-RELEASE SOFTWARE, EVALUATION SOFTWARE AND/OR FREE EDITION SOFTWARE AND INFORMATION PROVIDED TO CUSTOMER WITH RESPECT TO SUCH PRODUCTS, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, INFORMATIONAL CONTENT OR ACCURACY, QUIET ENJOYMENT, TITLE AND NONINFRINGEMENT. WHERE LEGALLY LIABILITY CANNOT BE EXCLUDED, BUT IT MAY BE LIMITED, GIGANTIC SOFTWARE’S LIABILITY AND THAT OF ITS SUPPLIERS SHALL BE LIMITED TO THE SUM OF $50 IN TOTAL.
Remedy. Customer’s sole REMEDY in the event of any dissatisfaction is to cease using the Pre-release Software, Evaluation Software, and/or Free Edition Software and erase all copies of same from Customer’s computers and memory storage devices, and return to Gigantic Software all copies of those products and any associated documentation.

18. OTHERS.
If you have any questions regarding this agreement and other products, please contact Gigantic Software.