General LICENSE AGREEMENT - atmoky Ears

This professional LICENSE AGREEMENT sets forth the legally binding terms and conditions for a professional client’s use of ATMOKY SOFTWARE. Carefully read the following LICENSE AGREEMENT.

By accepting this LICENSE AGREEMENT, YOU are agreeing to be bound by the terms of this LICENSE AGREEMENT. Please understand that if YOU refuse to accept these Terms and Conditions, YOU will not be able to order, nor install, nor use any of ATMOKY’s SOFTWARE.

For the purpose of better readability, no gender-specific differentiation is made. This is done without any intention of discrimination.

AGREED TERMS

1. DEFINITIONS

Throughout this agreement, the following definitions shall be in capitals. ATMOKY, LICENSOR: means atmoky GmbH, a company established under Austrian law and with its registered office in Schubertstraße 6a, 8010 Graz, Austria. ATMOKY DEVELOPMENT SOFTWARE: means the ATMOKY software used by game developers to develop or author and create video games. ATMOKY RUNTIME SOFTWARE: means the ATMOKY software that is deployed with a complete video game that runs on a gaming platform. ATMOKY SOFTWARE: means collectively the ATMOKY DEVELOPMENT SOFTWARE, the ATMOKY RUNTIME SOFTWARE, and any provided documentation or user guide. LICENSE AGREEMENT: means the terms and conditions set forth in this agreement. LICENSEE, YOU, YOUR: means the physical person or legal person, the company or other legal entity obtaining a license and being a professional game developer or studio. This LICENSE AGREEMENT is based on the assumption that the LICENSEE is an entrepreneur within the meaning of section (1) para (1) clause (1) of the Austrian Consumer Protection Law (KSchG).

2. LICENSE GRANT

Subject to all terms herein, ATMOKY, grants the LICENSEE a non-exclusive license to use the ATMOKY DEVELOPMENT SOFTWARE (in the sense of section 24 para (1) first sentence Austrian Copy Right Act [UrhG] “Werknutzungsbewilligung”) free of charge to help develop audio and/or video games and applications.

Subject to all terms herein, and subject to the LICENSEE expressly paying for and obtaining from ATMOKY a valid license for each developed game on each gaming platform, ATMOKY grants the LICENSEE a non-exclusive, non-transferable, world-wide license (in the sense of section 24 para (1) first sentence Austrian Copy Right Act [UrhG] “Werknutzungsbewilligung”) to use and distribute the ATMOKY RUNTIME SOFTWARE, in binary form only, as integrated into the developed game of the LICENSEE, for use by game players and users on the selected gaming platforms.

Information on entering a commercial license agreement, the current pricing, licensing options, and payment options can be found on ATMOKY’s webpage (https://atmoky.com/products/ears/ (opens in a new tab)). All inquires are to be directed towards sales@atmoky.com

3. AUDIT CLAUSE

ATMOKY has the authority to verify the license compliant usage of the ATMOKY SOFTWARE. Irrespective of this, ATMOKY may demand a proof from the LICENSEE, stating that the ATMOKY SOFTWARE is used in conformity with the granted purposes. Any inquiries in connection with the usage of the ATMOKY SOFTWARE have to be answered correctly and truthfully.

4. TITLE

Title, ownership rights, and intellectual property rights in the ATMOKY SOFTWARE shall remain with ATMOKY, and/or its suppliers and licensors. The LICENSEE is granted no rights in the ATMOKY SOFTWARE other than the rights expressly set forth above. The ATMOKY SOFTWARE is protected by intellectual property rights including copyright and trade secret laws and treaties.

5. RESTRICTIONS

The LICENSEE shall not:

modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction) or create derivative works based on the ATMOKY SOFTWARE;
rent, lease, loan, merge, grant a security interest in, or otherwise transfer rights to the ATMOKY SOFTWARE;
remove any proprietary notices or labels on the ATMOKY SOFTWARE;
or use the ATMOKY SOFTWARE to transmit any material that is defamatory, offensive or otherwise objectionable.

For clarification:

The right to decompile ATMOKY SOFTWARE is explicitly excluded to the extent permitted by law.
The LICENSEE is not allowed to change or modify ATMOKY SOFTWARE without ATMOKY's consent. The utilization in the sense of section 40d of the Austrian Copyright Act (UrhG) remains unaffected by this.

6. WARRANTY

If the ATMOKY SOFTWARE is used free of charge, all warranty rights are excluded. If, however, the ATMOKY SOFTWARE is used in a payable version the following rules shall apply. Warranty claims expire within six months after the ATMOKY SOFTWARE has been made available. Obligations to notify shortcomings and bugs within the meaning of section 377 Austrian Commercial Code “UGB” must be adhered to. ATMOKY is not liable for third party software and/or software elements (plug-ins, library files) which have not been released by ATMOKY. Likewise ATMOKY is not liable for software elements (plug-ins) programmed and integrated by the LICENSEE himself.

7. TERMINATION

On termination, all rights under this agreement will cease, and the LICENSEE must destroy all copies of the ATMOKY DEVELOPMENT SOFTWARE and any copies of the ATMOKY RUNTIME SOFTWARE that have not yet been distributed to end users and game players as part of YOUR developed interactive product.

8. INDEMNITY

To the extent permitted by law, YOU shall indemnify, defend, and hold harmless ATMOKY and its affiliates, and their respective successors, assigns, officers, directors, employees, and agents, from any claim, liability, loss, damage, lien, judgment, and cost, including reasonable attorneys' fees and litigation expenses, with respect to YOUR and YOUR customers' use of the ATMOKY SOFTWARE.

9. LIMITATION OF LIABILITY

If the ATMOKY SOFTWARE is used free of charge, all claims for damages are excluded.

The LICENSEE acknowledges that the ATMOKY SOFTWARE has not been developed to meet the LICENSEE’s individual requirements, and that it is therefore the LICENSEE’s responsibility to ensure that the facilities and functions of the ATMOKY SOFTWARE, as described in the documentation provided, meet the LICENSEE’s requirements. The liability of ATMOKY for loss of profit of the LICENSEE is excluded.

The liability of ATMOKY for slight negligence is excluded and in no event shall ATMOKY be liable for any damages in excess of the amount received from the LICENSEE for a licence to the ATMOKY SOFTWARE. For the avoidance of doubt, the liability is limited to a maximum amount that corresponds to the order value or license fee.

ATMOKY is not liable for third party software and/or software elements (plug-ins, library files) which have not been released by ATMOKY. Likewise ATMOKY is not liable for software elements (plug-ins) programmed and integrated by the LICENSEE himself.

ATMOKY does not bear any liability for an illegal (especially, but not exclusively, in the sense of the GDPR) implementation and/or use of ATMOKY SOFTWARE in any relation of the LICENSEE towards the end customer.

10. DATA PROTECTION, AND PROTECTION OF BUSINESS AND TRADE SECRETS

The disclosure of data and information to a particular business partners is allowed to the extent necessary for the fulfillment of the contractual LICENSE AGREEMENT only. Otherwise ATMOKY and the LICENSEE are mutually obligated to maintain confidentiality about the details and data which come to their knowledge due to the present business partnership and both parties are in particular obligated to preserve the data confidentiality. These obligations to confidentiality shall also extend beyond the contractual agreement. ATMOKY and the LICENSEE further obligate themselves to inform and instruct their employees and subcontractors in this respect.

Both parties further obligate themselves to protect mutually disclosed business and trade secrets appropriately and in accordance with section 26b paragraph 1 line 3 of the Austrian Act against Unfair Competition (UWG).

11. CIRCUMSTANCES BEYOND THE CONTROL OF ATMOKY

ATMOKY shall not be liable for any failure or delay in performing its obligations where such failure or delay results from any cause that is beyond their reasonable control.

12. MISCELLANEOUS

This LICENSE AGREEMENT represents the complete agreement between YOU and ATMOKY. ATMOKY may amend or change this LICENSE AGREEMENT in its sole discretion on notice to YOU.

If any provision of this LICENSE AGREEMENT is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.

The LICENSEE shall not assign, transfer, sub-licence or otherwise dispose of this LICENSE AGREEMENT or any right or obligation under this LICENSE AGREEMENT except as otherwise permitted by this LICENSE AGREEMENT. Failure or delay by ATMOKY in enforcing any of the terms or conditions of this LICENSE AGREEMENT shall not be construed as a waiver of any of the rights under it. Neither shall it mean that YOU do not have to comply with those obligations. This LICENSE AGREEMENT is based on Austrian law and Austrian law shall be applicable. The exclusive place of jurisdiction is the relevant court in Graz, Austria. The application of the United Nations Convention of Contracts for the International Sale of Goods as well as the application of reference norms are hereby expressly excluded.

Place of performance is the registered office of ATMOKY.

The LICENSEE shall not assign or transfer the terms and conditions contained in this LICENSE AGREEMENT to another third party, by operation of law or otherwise, without the prior written consent of ATMOKY.

13. REFERENCE CLAUSE

ATMOKY is authorized to indicate the business relationship with the LICENSEE by a reference on its homepage. In this context ATMOKY is authorized to use the logo of the LICENSEE.

14. OPEN SOURCE NOTIFICATION AND COPYRIGHT NOTICE

The ATMOKY DEVELOPMENT SOFTWARE uses the fabulous Gin Module for its incredibly efficient StackBlur-effect, licensed under the BSD 3-Clause License. See Annex I for the copyright notice. The ATMOKY DEVELOPMENT and RUNTIME SOFTWARE contains components that rely on data that is licensed as Open Data. The Open Data Sources are listed in Annex I. The origin of the Open Data components (see „Readme“ in Annex II), the respective license texts, any copyright notices and their disclaimers shall be made available to the END CUSTOMER via link in Annex II.

ANNEX I

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, thisllist 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.
Neither the name of the copyright holder 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 COPYRIGHT HOLDER 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.

ANNEX II Open Data Sources

SADIE Ⅱ Database

Function: Ground truth and underlying HRTF data set for optimizing the atmoky binaural rendering engine. Please note that no original data is contained in the Software.

License: Licensed under the Apache License, Version 2.0you may not use this file except in compliance with the License. You may obtain a copy of the License at: http://www.apache.org/licenses/LICENSE-2.0 (opens in a new tab)

Readme: https://www.york.ac.uk/sadie-project/database.html (opens in a new tab)

Disclaimer: Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License. Copyright Notice: Copyright 2018, University of York.

Using atmoky Ears Acknowledgements