IMPORTANT This is a legal agreement between the licensee ("you", "your") and Massive Limited ("Massive"). Permission to use this software is conditional upon you agreeing to the terms and
conditions set out below. By copying, downloading, installing, using, or otherwise accessing this
software, you agree to be bound by the terms of this agreement. If you do not agree to these
terms, you must not use this software. You agree that this agreement is enforceable like any
written negotiated agreement signed by you. This agreement is enforceable both against you and
against any legal entity that obtained this software and on whose behalf it is used.
1 Interpretation
1.1 In this Agreement, unless the context requires otherwise:
“Additional Licensed Materials” has the meaning set out in Clause 5.2;
“Agreement” means this Massive Software End User License Agreement;
“Computer” means a desktop, laptop, or server computer containing a single microprocessor or a dual-core or multi-core microprocessor;
“Documentation” means any and all documentation and other materials provided to you by Massive in relation to the Software;
“License” has the meaning set out in Section 2;
“Licensed Materials” means the Software, the Documentation, and the Additional Licensed Materials, including any portion thereof in any form, including copies thereof, and any other information or data relating to the Software, in written, graphic, or machine readable form, received by you from Massive, including, but not limited to, designs, improvements, concepts and ideas, provided, however, Licensed Materials do not include information or data that is rightfully in your possession prior to its receipt from Massive;
“Non-commercial Purposes” means any use of the software directly for projects or productions that generate revenue. Non-commercial Purposes specifically includes the use of the Software for learning, the production of demo reels, and for personal amusement;
“Site” means your premises as notified to, and approved in writing by, Massive from time to time;
“Software” means the Massive software products provided to you pursuant to this Agreement includes any and all updates or upgrades thereto subsequently acquired by, or provided to, you;
“Working Day” means any day of the week (other than Saturday, Sunday or any public holiday observed in Wellington, New Zealand) between the hours of 9.00 am and 5.00 pm (New Zealand standard time).
1.2 Unless the context otherwise requires:
(a) the singular in all cases includes the plural and vice versa;
(b) words importing the gender include the other gender;
(c) references to clauses, sections, schedules or appendices are references to clauses, sections, schedules or appendices in this Agreement unless expressly specified otherwise;
(d) any schedules and the provisions and conditions contained therein will have the same affect as if set out in the body of this Agreement;
(e) headings in this Agreement are for convenience of reference only and shall not in any way affect the construction or interpretation of this Agreement;
(f) references to persons shall be deemed to include references to individuals, companies, corporations, firms, partnerships, joint ventures, associations, organizations, trusts, in each case whether or not having separate legal personality.
2 License
2.1 You are not entitled to use the Software until registering an account with the Massive 101 online forum.
2.2 Upon an account, you acquire a non-exclusive non-transferable personal non-sublicensable limited license (the “License”) to:
(a) use the Software strictly in accordance with the terms and conditions of this Agreement; and
(b) make one (1) copy of the Software for backup purposes.
2.3 Pursuant to this Agreement, you may use the Software on any computer for which it is designed provided that the Software may be installed on only one (1) Computer and used by only one (1) user at one (1) Site at any one time. If you wish to install the Software on multiple Computers (“Concurrent Installations”) or allow the Software to be used concurrently or near-concurrently by more than one user (whether through Concurrent Installation or through installation on a network server or other shared device for use or access by Concurrent Users)(“Concurrent Users”), you must purchase additional Licenses for each Concurrent User and Concurrent Installation.
2.4 You may use the Software only for “Non-commercial Purposes”.
3 Term of License
3.1 The License will remain in effect until this Agreement terminated as provided in Section 9 (Termination).
4 Your Obligations
4.1 You agree to:
(a) not copy, reproduce, translate, adapt, vary, modify or make any changes or modifications to the Licensed Materials, nor to decompile, disassemble, or reverse engineer the Software without the express consent of Massive, or to the extent that Massive is not permitted by law to exclude or limit such rights;
(b) not rent, lease or otherwise make available the Software or other Licensed Materials to others;
(c) ensure that the number of Concurrent Users and Concurrent Installations does not exceed the number of Licenses for Concurrent Users and Concurrent Installations obtained by you;
(d) purchase additional Licenses for each Concurrent User and Concurrent Installation;
(e) not provide or otherwise make available the Licensed Materials in any form to any person other than your employees, or other persons under your control, without the written consent of Massive;
(f) ensure that all your employees and other persons under your control who are permitted to use the Licensed Materials are made aware of and agree to the terms and conditions of this Agreement and always use the Licensed Materials in accordance with the terms of this Agreement.
5 Intellectual Property and Trade Secrets
5.1 All intellectual property rights including, without limitation, all rights under any applicable patents, trademarks, copyrights and trade secrets that may subsist, in or relate to, the Licensed Materials (and any copies thereof made by you) are the property of Massive or its licensors. You shall not during, or any time after the termination of this Agreement, do or permit any act which infringes those rights. Without limiting the generality of the foregoing, you specifically acknowledge that you may not copy the Licensed Materials except as expressly authorized by this Agreement.
5.2 Where Massive at any time performs services for you, or supplies deliverables to you, relating to the Software (for example, where Massive develops or modifies an “agent” for use with the Software), you acknowledge and agree that Massive shall be the owner of all intellectual property rights that may arise from those services or subsist in those deliverables (as the case may be) (the “Additional Licensed Materials”). Subject to your payment of Massive’s charges relating to the Additional Licensed Materials (if any), you shall be licensed to use the Additional Licensed Materials under the terms of this Agreement.
5.3 You acknowledge the Licensed Materials are confidential and constitute valuable trade secrets of Massive. You shall not disclose, publish, display or otherwise make available to any persons any of the Licensed Materials or copies thereof without Massive's prior written consent. You shall take appropriate action to protect the Licensed Materials from unauthorized publication, disclosure, and use.
5.4 You shall not remove any copyright or other intellectual property or proprietary rights notices included in or on any Licensed Materials and shall reproduce all such notices on any permitted copies made of any Licensed Materials.
5.5 You acknowledge that in the event of any breach of your obligations under this Agreement, Massive will suffer irreparable harm of a nature that is not compensable by damages and Massive shall be entitled to seek injunctive or other equitable relief on an expedited basis.
5.6 You shall indemnify Massive fully against all liabilities, costs, and expenses incurred by Massive to a third party as a result of your breach of the terms of this Agreement.
5.7 Subject to clause 5.8, Massive shall defend or, at its option, settle, any claim or proceeding brought against you to the extent that it is based on an assertion that your authorized use of the Licensed Materials constitutes direct infringement of any copyright, trademark, trade secret or patent, and shall indemnify you against all reasonable costs, damages, and expenses finally awarded by a court of law against you in relation to any such claim or proceeding, provided that:
(a) you notify Massive promptly in writing of any such claim or proceeding; and
(b) you give Massive full and complete authority, information, and assistance to defend such claim or proceeding and all negotiations for its compromise or settlement.
5.8 The indemnity granted under clause 5.7 shall not apply, and Massive shall have no liability or obligation to you, in respect of:
(a) any costs incurred by you without Massive's express prior written authorization; and
(b) any claims, costs, damages, or expanses arising from any addition to, or modification of, the Licensed Materials made any person or entity other than Massive.
5.9 If the Licensed Materials or any part thereof become, or in Massive's opinion are likely to become, the subject of a claim of infringement, Massive shall have the right, at Massive's option and expense, to:
(a) procure for you the right to continue using the Licensed Materials;
(b) replace or modify the Licensed Materials so that they become non-infringing; or
(c) terminate this Agreement and refund the amounts actually paid to Massive by you under this Agreement, less a reasonable allowance to provide for use of the Licensed Materials by you prior to the date of the refund.
5.10 THE PROVISIONS OF THIS SECTION STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF MASSIVE AND YOUR SOLE, EXCLUSIVE, AND ENTIRE REMEDY WITH RESPECT TO ANY CLAIM OF TRADE MARK, TRADE SECRET, PATENT OR COPYRIGHT INFRINGEMENT IN RELATION TO THE LICENSED MATERIALS, OR ANY PART THEREOF.
6 Inspection
6.1 Massive shall have the right to inspect, upon reasonable prior notice and during normal business hours, any of your Sites or other locations at which any Licensed Materials are used or kept to ensure or confirm compliance with the terms of this Agreement.
7 Warranty
7.1 You acknowledge that the Licensed Materials are not error free and further acknowledge that the existence of any such errors shall not constitute a breach of Massive’s obligations.
8 Exclusions and Limitations
8.1 You agree that:
(a) MASSIVE MAKES NO WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE OR OTHERWISE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE.
(b) You have exercised your independent judgement in obtaining the Licensed Materials and acknowledge that you have not relied upon (i) any representation made by Massive that has not been stated expressly in this Agreement or (ii) any descriptions or illustrations or specifications contained in any document other than the Documentation.
(c) Massive is not responsible for problems caused by the operating characteristics of your computer hardware or operating system.
8.2 In the event any statute implies terms into this Agreement which cannot be lawfully excluded, such terms will apply to this Agreement, save that the liability of Massive for breach of any such term will be limited, at the option of Massive, to any one or more of:
(a) replacing the Licensed Materials to which the breach relates or the supply of equivalent licensed materials;
(b) repairing of such Licensed Materials;
8.3 In no event shall Massive’s total aggregate liability relating to this Agreement exceed the amount paid by you hereunder. In no event shall Massive be liable to you for any:
(a) special, consequential, incidental, indirect, punitive or exemplary damages, however caused, whether for breach of warranty, contract, tort, negligence, strict liability or otherwise; or
(b) lost profits, savings, business, opportunities, or data, even if Massive has been advised of the possibility of such damages and even if such damages were foreseeable.
9 Termination
9.1 Massive may terminate this Agreement by giving written notice of termination to you, which shall be effective immediately upon its sending, if you:
(a) breach or fail to perform any term of this Agreement;
(b) intentionally destroy the Licensed Materials for any reason.
9.2 Within ten (10) Working Days after any termination of this Agreement, you must:
(a) as directed by Massive, deliver to Massive or destroy any and all Licensed Materials, including all copies thereof, within your possession, custody or control;
(b) as directed by Massive, delete any and all Licensed Materials that are stored in any computer or storage facility that cannot be delivered to Massive;
(c) warrant that you shall delete or destroy any and all Licensed Materials that may be detected or discovered subsequent to the ten (10) Working Days after termination of this Agreement, and warrant in writing to Massive that all Licensed Materials have been so deleted or destroyed.
9.3 Termination of this Agreement for any reason shall not affect the validity and enforceability of:
(a) any rights of a party against the other party which accrued up to and including termination; or
(b) the provisions of this Agreement which by their nature survive termination, namely, Section 5 (INTELLECTUAL PROPERTY), Section 7 (WARRANTIES), Section 8 (EXCLUSIONS AND LIMITATIONS) and this Section 9 (TERMINATION).
10 Transfer of Agreement
10.1 This Agreement is non-transferable and you shall not attempt to assign or transfer this Agreement without the prior written consent of Massive, which may be granted or withheld in Massive’s sole and absolute discretion. Any such attempted transfer or assignment in the absence of Massive’s prior written consent shall be void and without effect.
10.2 If transfer is authorized by Massive in accordance with Clause 10.1:
(a) you must transfer the all copies of the Licensed Materials on a permanent basis;
(b) you must you retain no copies of the Licensed Materials; and
(c) the proposed transferee must agree to the terms of this Agreement.
10.3 Any transfer authorized by Massive in accordance with Clause 10.1 must include the most recent update and all prior versions of the Licensed Materials in your possession or control. You agree to provide any and all information reasonably requested by Massive relating to such transfer and you agree to promptly execute or have executed by the proposed transferee any and all documentation provided by Massive required to effect such transfer.
11 Restrictions On Military Use
11.1 ANY USAGE OF THE LICENSED MATERIALS FOR MILITARY PURPOSES IS EXPRESSLY FORBIDDEN. For the avoidance of doubt, this restriction does not apply to use of the Licensed Materials for military and battle scenes in computer games, movies, presentations, and other video sequences purely for entertainment purposes.
12 General Provisions
12.1 Amendment: This Agreement may only be amended by written agreement signed by Massive.
12.2 Assignment: You may not assign or transfer this Agreement, except as provided in accordance with Section 10. This Agreement may be assigned by Massive without notice.
12.3 Export: You shall at all times comply with any applicable export laws and regulations with respect to the acquisition, shipment, or receipt of the Licensed Materials.
12.4 Entire Agreement: This Agreement constitutes the entire agreement and understanding between the parties and supersedes any prior agreement or understanding whether oral or written relating to the subject of this Agreement. Neither party shall be bound by or be liable for any representation, promise, or statement of intention not expressly stated herein.
12.5 Governing Law: This Agreement will be governed and construed in accordance with the substantive laws in force (i) in the State of California, if at the time the License is granted you are resident or primarily doing business in the United States, Mexico or Canada, or (ii) in New Zealand, if at the time when the License is granted you are resident in or primarily doing business in any other jurisdiction than those described in (i). The respective courts of California when Californian law applies, and New Zealand when New Zealand law applies, shall each have exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed or construed by the conflict of law rules of any jurisdiction, or by the United Nations Convention on Contracts for the International Sale of goods, the application of which is expressly excluded.
12.6 Successors and assigns: This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns and legal representatives, provided however that the rights and obligations you may have hereunder may not be assigned, sublicensed or otherwise transferred, in whole or in part, except in accordance with Section 10.
12.7 Notices: Any notice or other document required or permitted to be given hereunder shall be validly given only if delivered personally (including courier service), by registered mail, sent by email, or sent by or facsimile transmission to the addressee thereof. Notices shall be deemed received three (3) Working Days after mailing in the case of registered mail, on the next Working Day in the case of courier delivery or email, and in the case of facsimile transmission, when sent (as evidenced by the confirmation printout on the transmitting facsimile machine). Notices shall be sent to Massive as follows:
Massive Limited
P.O. Box 5456
Auckland
New Zealand
12.8 Severability: In the event that one or more of the provisions contained in this Agreement is for any reason held invalid, illegal, or unenforceable in any respect, no other provisions contained in this Agreement shall be affected.
12.9 Waiver: No waiver, alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made in writing and signed by the parties. The failure of either party to require performance of any provision of this Agreement shall not affect the right at a later time to enforce such provision.
