General LICENSE AGREEMENT - atmoky trueSpatial (for FMOD)
This professional LICENSE AGREEMENT sets forth the legally binding terms and conditions for a professional client’s use of ATMOKY’s SOFTWARE.
Carefully read the following LICENSE AGREEMENT.
Please understand that if YOU refuse to accept these Terms and Conditions, YOU shall not order, nor install, nor use any of ATMOKY’s SOFTWARE. By accepting this LICENSE AGREEMENT, YOU are agreeing to be bound by the terms of this LICENSE AGREEMENT.
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 SchubertstraĂźe 6a, 8010 Graz, Austria. ATMOKY DEVELOPMENT SOFTWARE: means the ATMOKY software used by developers, sound designers, or engineers to develop, author, and create digital interactive applications. his includes but is not limited to video games, virtual reality (VR) and augmented reality (AR) applications, multimedia installations, and any other form of interactive digital media. ATMOKY RUNTIME SOFTWARE: means the ATMOKY software that is deployed with a complete video game, experience, or service that runs on a hardware platform or in the cloud. 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 developer, studio, sound designer, or engineer. 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
a. ATMOKY DEVELOPMENT SOFTWARE
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 all sorts of applications and experiences including audio and/or video games and applications.
b. ATMOKY RUNTIME SOFTWARE
i. Non-Commercial and Limited Commercial Use:
Under this Agreement, 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, experience or application of the LICENSEE, for use by game players and users on the selected platforms, subject to:
- The development budget of the project is less than USD 50k;
- The total gross revenue/funding per year for the LICENSEE/YOU, before expenses, is less than USD 50k;
- The lifetime gross revenue of the project, application, or experience, before expenses, is less than USD 50k;
- The RUNTIME Software is integrated and distributed in an application (game, experience) only;
- The RUNTIME Software is not distributed as part of a tool set or engine;
- The application includes attribution in accordance with https://atmoky.com/attribution (opens in a new tab).
ii. Other Use:
For any commercial use or non-commercial use not permitted by this LICENSE AGREEMENT, a separate LICENSE is required. 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/true-spatial/ (opens in a new tab)). All inquiries 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;
- 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 LICENSEE’s developed interactive product.
8. INDEMNITY
To the extent permitted by law, LICENSEE 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 LICENSEE’s and LICENSEE’s 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 commercial LICENSE to the ATMOKY SOFTWARE. For the avoidance of doubt, the liability is limited to a maximum amount that corresponds to the order value or LICENCE 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 fulfilment of the contractual LICENCE 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 para 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. 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.
13. MISCELLANEOUS
This LICENCE AGREEMENT represents the complete agreement between YOU and ATMOKY. ATMOKY may amend or change this LICENCE AGREEMENT in its sole discretion upon notice to YOU.
If any provision of this LICENCE 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-LICENSE or otherwise dispose of this LICENCE AGREEMENT or any right or obligation under this LICENCE AGREEMENT except as otherwise permitted by this LICENCE AGREEMENT.
Failure or delay by ATMOKY in enforcing any of the terms or conditions of this LICENCE 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 LICENCE 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 LICENCE AGREEMENT to another third party, by operation of law or otherwise, without the prior written consent of ATMOKY.