GAF Media Software License Agreement
This Software License Agreement ("Agreement") is a binding agreement between GAF Media and the Customer licensing the GAF Media Software ("Software") published by GAF Media. This Agreement governs the Customer's use of the Software including all related documentation.
By downloading and installing the Software the Customer agrees to all terms and conditions of this agreement.
1. GAF Media Software
GAF Media Software includes the GAF Media Converter and GAF Media Runtimes and other software created by GAF Media and available on the GAF Media web site.
2. GAF Media Runtime Software
Per the Free, Studio or Enterprise license indicated in Exhibit A, the Customer may modify, translate, adapt or otherwise create derivative works or improvements of the GAF Media Runtime Software or develop new applications using the GAF Media Runtime Software (collectively, "Derivatives"). The Customer may distribute the Derivatives provided the Customer include the license in Exhibit B in the documentation and/or other materials provided with the Derivatives. "GAF Media Runtime Software" means all programs and data (separate from the Software) provided by GAF Media in source and binary form that are used to load, store, manipulate and render animation and other data created by the Software.
3. License Grant.
Subject to the terms of this Agreement, the terms of the license type indicated in Exhibit A and the payment of any applicable license fees, GAF Media grants the Customer a limited, non-exclusive, non-sublicensable and non-transferable license to (a) download, install, execute and perform the Software in machine readable object code form only and solely for internal use. The Software covered under this Agreement shall also include any and all updates, upgrades, bug fixes, dot releases, version upgrades, or any similar revisions or improvements (collectively, "Updates"), that may be made available to the Customer by GAF Media from time to time.
Without GAF Media's written permission, the Customer may not
(a) copy the Software, except for backup purposes or otherwise as expressly permitted by this Agreement.
(b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software.
(c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof except as and only to the extent this restriction is prohibited by law.
(d) remove, delete, alter or obscure any trademarks, copyright, patent or other intellectual property or proprietary rights notices on or in the Software, including any copy thereof.
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software or any features or functionality of the Software to any third party for any reason
(f) Remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Software.
The Customer must register the Customer's correct contact and billing information with GAF Media. The Customer agrees to take appropriate measures to protect the Customer's license key for the Software from unauthorized use. The Customer is responsible for all damages arising from the use of the Software associated with the Customer's license key in violation of this Agreement. The Customer agrees to promptly notify GAF Media in the event that the Customer becomes aware of any actual or suspected unauthorized use of the Software. The Customer acknowledges that the Software, documents, technical data, and any other materials delivered under this Agreement are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. The Customer shall not, directly or indirectly, export, re-export or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Customer acknowledges and agree that it is the Customer's responsibility to obtain any licenses to export, re-export, or import the Software as may be required after delivery to the Customer and the Customer shall strictly comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software available outside the U.S. the Customer represents and warrant that the Customer is not a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which GAF Media is prohibited from doing business.
GAF Media guarantees that in the case of a force marjeure or any other unknown conditions which may arrise in future which will not allow GAF Media to fully deliver services according to this license agreement, Customer receives a right to continue using GAF Media Software without any technical or financial limitations.
6. Third-Party Licenses.
The Software includes software, content, data or other materials, including related documentation, that are owned by persons other than GAF Media and that are provided to the Customer on licensee terms that are in addition to and/or different from those contained in this Agreement ("Third-Party Licenses"). A list of all materials included in the Software and provided under Third-Party Licenses is set forth in Exhibit C and the applicable Third-Party Licenses are accessible via links therefrom. The Customer is bound by and agree to comply with all Third-Party Licenses. The Customer's breach of any hird-Party License is also a breach of this Agreement. the Customer agrees that GAF Media's third-party licensors and suppliers are intended third-party beneficiaries of all terms and conditions of this Agreement intended to protect intellectual property rights in the Software (including the Third-Party Licenses) and limit certain uses thereof; however, they have no obligations hereunder.
7. Reservation of Rights.
The Customer acknowledges and agree that the Software is provided to the Customer under license and not sold. The Customer does not acquire any ownership interest in the Software under this Agreement, or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. GAF Media reserves and shall retain its entire right, title and interest in and to the Software, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to the Customer in this Agreement.
The Software may require Updates in order to run effectively. Updates are subject to the terms of this Agreement and may include new features, bug fixes or the removal of features of the Software. GAF Media will provide Updates at no cost to the Customer during the term of this Agreement. Updates do not increase the authorized number of computers or named users for the Customer's license type.
9. Collection and Use of Information.
The Customer acknowledges that GAF Media may collect and store information regarding the Customer's use of the Software. The Customer agrees that GAF Media may use such information only to the extent which is necessary to:
(a) verify the Customer's compliance with this Agreement,
(b) enforce GAF Media's rights in the Software,
(c) improve the performance of the Software
(d) develop Updates.
(e) use licensee company name and project name (to be requested) for mentioning in public while but not limited to holding various presentations of GAF Media services at public meetings, in GAF Media site blog entries.
10. License Fees and Returns.
The license fee for the Software is determined by the license type selected from Exhibit A. GAF Media may choose for the license fee to be paid directly or through a third party. If the license fee is paid through a third party, any applicable payment and use terms of such third party will apply to the transaction. The Customer may request a refund of the license fee by notifying GAF Media within thirty (30) days after payment. GAF Media will refund the license fee paid by the Customer and block the Customer's license key(s).
11. Term and Termination.
This Agreement is effective as of the date that the Customer's license key is provided and will continue in effect for the term of the license type selected from Exhibit A unless terminated earlier by the Customer or GAF Media as set forth in this section. The Customer may terminate this Agreement by deleting the Software and all copies thereof. GAF Media may block the Customer's registered account or terminate this Agreement at any time without notice if the Customer violates any of the terms and conditions of this Agreement, provided that GAF Media Enterprise licensees will be given fourteen (14) days notice and opportunity to cure prior to blocking the registered accounts or terminating this Agreement. Upon termination of the Studio/Enterprise licenses registered account will be automatically switched to GAF Free license allowing to use GAF Software including GAF Runtimes according to the rules specified in Exhibit A. Termination will not limit any of GAF Media's rights or remedies at law or in equity. In
12. Warranty and Disclaimer.
For a period of sixty (60) days from the date that the Customer downloaded and installed the Software (the "Warranty Period"), GAF Media warrants that the Software will operate materially in conformance with its documentation. Any Third-Party Licenses shall be subject exclusively to the licensors warranty set forth therein. The foregoing warranties exclude damage or failure resulting from misuse, modification by anyone other than GAF Media, unauthorized repair or installation, malfunctions caused by equipment or software not provided by GAF Media, the use of the Software on or in connection with any hardware or software not specified in the documentation for the Software, the use of the Software in violation of this Agreement or the license type selected and paid for by the Customer or any Software provided free of charge. The Customer must notify GAF Media of any non-conformance within the Warranty Period, and the Customer's sole and exclusive remedy for any non-conformance is that GAF Media Software will repair or replace the Software, provided that the Customer provide all information GAF Media reasonably requests to resolve the reported failure, including sufficient information to enable GAF Media to recreate such failure. If GAF Media, in it sole discretion, determines that it is unable to repair or replace the Software within a commercially reasonable time, GAF Media will refund the fees paid by the Customer for the Software, subject to the Customer's ceasing all use of and deleting all copies of the Software and the Customer's license key.
13. Limitation of Liability.
GAF Media SHALL NOT BE LIABLE TO YOU FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) DAMAGES IN AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAID BY YOU TO GAF Media FOR YOUR SOFTWARE LICENSE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GIVES RISE TO SUCH DAMAGES, (B) COST OF SUBSTITUTE GOODS, ANY DAMAGES BASED ON DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM COMPUTER FAILURE, MALFUNCTION OR SHUTDOWN OR (C) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT
GAF Media HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTHWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14. Governing Law.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of California and the United States without regard to conflicts of laws provision thereof if the Customer is not located in Canada, Australia, England, Wales, Norway, Switzerland or a member state of the European Union. No effect shall be given to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction other than those stated herein. Any legal claim, suit, action or proceeding arising out of this Agreement or the matters contemplate hereunder or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the internal laws set forth herein without giving effect to any choice or conflict of law provision or rule and shall be instituted exclusively in the federal courts of the United States or the courts of the State of California.
15. General Terms.
Notices to be given or submitted by either party to the other pursuant to this Agreement shall be in writing, sent via email and shall be deemed given on the date sent if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient. This Agreement constitutes the sole and entire agreement between the parties with respect to the Software, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Software. This Agreement may only be amended, modified or supplemented by an agreement in writing clearly understood by both parties to be an amendment and signed by each party hereto. No waiver by either party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be illegal, unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable, but shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. The Customer acknowledges and agrees that a material breach of this Agreement would cause irreparable injury to GAF Media for which monetary damages would not be an adequate remedy and that, in the event of any actual or threatened material breach of this Agreement by the Customer, GAF Media shall be entitled to temporary, preliminary and permanent injunctive relief against the Customer and the Customer's officers or employees, without the requirement of posting a bond or proving actual damages, in addition to whatever remedies GAF Media might have at law. GAF Media may subcontract this Agreement, or any part thereof, including support, to subcontractors selected by GAF Media and may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without the Customer's consent. The Customer may not assign or otherwise transfer any of the Customer's rights, or delegate or otherwise transfer any of the Customer's obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without GAF Media's prior written consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
GAF Media License Types
GAF Media Free License, GAF Media Studio License and GAF Media Enterprise License:
(a) The GAF Media Free License may be used in projects directly owned by licensing entity or in projects as part of development services to third parties. The GAF Media Free license can be used for unlimited number of projects by the licensee entity. This license can be used for unlimited number of projects by the licensee entity. If annual revenues exceed $100,000 USD at any time, the license will no longer be valid and use of all Software must cease unless the license is replaced with the purchase of the GAF Media Studio License. By using the GAF Media Free license licensee agrees to place GAF Media logo on the loading screen of each project using GAF Media Free license.
(b) The GAF Media Studio License may be used in projects directly owned by licensing entity or in projects as part of development services to third parties. The GAF Media Studio License is licensed on annual basis. The license is valid for one year starting from the date of purchase. The GAF Media Studio license can be used for unlimited number of projects by the licensee entity. If annual revenues exceed $1,000,000 USD at any time, the license will no longer be valid and use of all Software must cease unless the license is replaced with the purchase of the GAF Media Enterprise License.
(c) The GAF Media Enterprise License may be used in projects directly owned by licensing entity or in projects as part of development services to third parties. The GAF Media Enterprise License is licensed on annual basis. The license is valid for one year starting from the date of purchase. The GAF Media Enterprise license can be used for unlimited number of projects by the licensee entity. License is valid for entities with annual revenues over $1,000,000.
(d) By annual revenue both parties should consider gross revenue from the particular project/projects which is/are using GAF Media license or the overall gross revenue of the entity in case the corresponding entity is a game development and game publishing company.
GAF Media Runtime Software License
Copyright (c) 2013, 2014 GAF Media
All rights reserved.
The Customer is granted a perpetual, non-exclusive, non-sublicensable and non-transferable license to install, execute and perform the GAF Media Runtime Software solely for internal use.
THE GAF Media Runtime Software PROVIDED BY GAF Media "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 GAF Media 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.
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