Linden Lab Official:Senra Body SDK License

License Agreement

This Software Development Kit License Agreement (“Agreement”) governs the use of the SDK and SDK Materials (both as defined herein) in object and image/texture format that accompany this Agreement and that are owned or licensable by Linden Research, Inc. (“Linden Lab”), with such use being solely by the person or entity (“Licensee”) that has agreed with the terms of this Agreement.

YOU HEREBY REPRESENT TO LINDEN LAB THAT YOU ARE OVER EIGHTEEN (18) YEARS OF AGE, THAT YOU MAY LEGALLY ENTER INTO THIS AGREEMENT, AND THAT YOU AGREE WITH ALL THE TERMS OF THIS AGREEMENT.

Recitals

Whereas, Linden Lab has developed a software development kit which may be useful with Linden Lab’s Second Life virtual world environment;

Whereas, Licensee wishes to obtain a license to use such SDK, and Linden Lab wishes to grant such a license, both according to the terms of this Agreement;

Now, Therefore, in consideration of the mutual covenants set forth herein, the parties agree as follows

Agreement

1. Definitions.

Capitalized terms used in this Agreement shall have the following meanings:

“Affiliate” shall mean, with respect to either party any Person directly or indirectly controlling, controlled by or under common control with such party. The term “control” as used in the preceding sentence means, with respect to a corporation, the right to exercise, directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the shares of the controlled corporation and, with respect to any Person other than a corporation, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person.

“Avatar” shall mean a graphical representation of a person or entity used online.

“Avatar Items” shall have the meaning assigned to it in Subsection 3.2 (“Avatar Items”).

“Confidential Information” shall have the meaning assigned to it in Section 7 (“Confidential information”).

“Disclosing Party” shall have the meaning assigned to it in Section 7 (“Confidential information”).

“Effective Date” shall have the meaning assigned to it in the first (1st) paragraph.

“Person” shall mean any individual, partnership, joint venture, firm, corporation, association, limited liability company, trust or other enterprise or any governmental or political subdivision or any agency, department or instrumentality thereto.

“Receiving Party” shall have the meaning assigned to it in Section 7 (“Confidential information”).

“Records” shall have the meaning assigned to it in Subsection 3.6 (“Audit”).

“SDK” shall mean the software development kit created and owned by Linden Lab and made available to Licensee hereunder.

“SDK Materials” shall mean all items delivered by Linden Lab to Licensee as part of the SDK.

“Second Life” shall mean the online multimedia platform operated and maintained by Linden Lab and marketed under the SECOND LIFE® trademark.

“Second Life Avatar” shall mean an Avatar used in Second Life.

“Updates” shall have the meaning assigned to it in Subsection 4.2 (“Updates”).

2. Delivery and Acceptance.

Promptly following the Effective Date, Linden Lab shall provide one (1) copy of the SDK Materials to Licensee. Such SDK Materials shall be deemed accepted by Licensee upon delivery, and Licensee hereby waives all right of rejection. Further, such SDK Materials shall belong solely to Linden Lab at all times, and Licensee shall return or destroy such SDK Materials, including all copies, to Linden Lab upon request, or upon the expiration or termination of this Agreement, whichever comes first. Licensee hereby agrees to use and protect such SDK materials as required by this Agreement.

3. Licenses.

3.1 Second Life Terms and Conditions. As a condition of this Agreement, and the licenses granted by Linden Lab hereunder, Licensee understands and agrees that Licensee shall also be deemed to have agreed to (or has already agreed to) all terms appearing on the www.secondlife.com website, including without limitation those terms applicable to privacy, and creation of content, and the marketplace. Accordingly, any Avatar Items created pursuant to this Agreement shall be subject to those terms also, including without limitation as to violence, sex, gambling, obscenity, drugs and other matters. Such terms are hereby incorporated by reference into this Agreement. In the event of any conflict between such terms and the body of this Agreement, the terms of this Agreement shall control, but only as to the specific associated conflict.

3.2 Avatar Items. The licenses granted in this Agreement may be used to enable Licensee to create certain content for use and sale in Second Life (“Avatar Items”). Such Avatar Items may include, without limitation, content to map or fit on the heads and bodies of Second Life Avatars.

3.3 Grant. Subject to Licensee’s timely performance under this Agreement, Linden Lab hereby grants to Licensee a worldwide, non-exclusive, non-transferable, royalty-free license, without the right to grant sublicenses, to use the SDK Materials internally solely to develop Avatar Items.

3.4 Creation of Avatar Items. Licensee hereby agrees that: A. The quality and subject matter for all Avatar Items shall fully conform to the requirements of the SDK Materials; and B. The Avatar Items shall be original works of authorship, created solely by Licensee, and shall not infringe or misappropriate the rights of any third party.

3.5 Inspection and Review. Upon completion of each Avatar Item, Licensee shall submit such Avatar Item to Linden Lab (in such form and format as Linden Lab may require) for review and approval upon Linden Lab’s request. Licensee shall fully cooperate with Linden Lab in the course of such review and approval, providing to Linden Lab such information and assistance as Linden Lab deems desirable.

3.6 Audit. Licensee hereby agrees to keep reasonable, written records in the English language regarding this Agreement, Licensee’s use of the SDK Materials, and the creation and status of all Avatar Items (“Records”). During the Term and for one (1) year thereafter, Linden Lab shall have the right to obtain true and correct copies of all such Records, and to audit such Records (either by itself, or through a reputable third-party accounting firm) to confirm Licensee’s performance of and compliance with the terms of this Agreement.

4. Ownership of SDK and SDK Materials; Updates.

4.1 Copies. Licensee hereby acknowledges that Linden Lab is the owner of all copies of SDK and the SDK Materials. Licensee hereby agrees that it shall not transfer or otherwise dispose of, or authorize the disposal of, or the possession of any such copies by rental, lease, or lending, or by any other act or practice.

4.2 Updates. Linden Lab may, from time to time, provide changes, corrections, updates, upgrades, new versions and new releases (collectively, “Updates”) for the SDK Materials. Where Linden Lab has done so, Licensee hereby agrees to use the SDK Materials along with such Updates, and to cease using any prior versions of the SDK Materials. All license rights and legal terms in this Agreement regarding any of the SDK Materials shall also apply to any SDK Updates provided by Linden Lab.

4.3 Restrictions. In order to protect Linden Lab’s trade secrets and other rights in the SDK Materials, Licensee agrees not to: (a) modify, translate, reverse engineer, decompile or disassemble (except and solely to the extent an applicable statute expressly and specifically prohibits such restrictions) any portion of the SDK Materials; or (b) create derivative works of any of the SDK Materials. Licensee also agrees not to disclose any of the SDK Materials.

4.4 Reservation of Rights. All rights except those expressly granted to Licensee in this Agreement are reserved to Linden Lab and any use of the SDK Materials which is not expressly permitted in the Agreement is prohibited.

4.5 Open Source Rights. Linden Lab may have certain obligations to provide notices about, access to and grant rights, as applicable, with regard to open source software as a result of granting rights to the SDK Materials under this Agreement. Licensee agrees that it will view additional information about such notices, access and rights with regard to certain open source software provided with the SDK Materials, or via such URLs or other means as Linden Lab may designate from time to time.

5. Technical Support.

Linden Lab shall use its commercially reasonable efforts to respond within five (5) business days to support ticket requests for support and assistance in using the SDK Materials. Such responses may include preparation and deliver of Updates, but Linden Lab does not guaranty the quality, functionality or timeliness of any such responses or Updates.

6. No Fees.

The parties understand and agree that there shall be no cash payment by or to either party in consideration of the rights and assignments contained herein.

7. Confidential Information.

7.1 Description. Each party (the “Disclosing Party”) may from time to time during the Term of this Agreement disclose to the other party (the “Receiving Party”) certain non-public information regarding the Disclosing Party’s business, including without limitation the terms of this Agreement and technical, marketing, financial, personnel, planning, and other information (“Confidential Information”). The Disclosing Party shall mark all such Confidential Information in tangible form with the legend ‘confidential’, ‘proprietary’, or with a similar legend. With respect to Confidential Information disclosed orally, the Disclosing Party shall describe such Confidential Information as such at the time of disclosure, and shall confirm such Confidential Information as such in writing within ten (10) days after the date of oral disclosure; provided, however, that: (a) the SDK Materials and all non-public information regarding the goods and services of Linden Lab shall be deemed the Confidential Information of Linden Lab, regardless of whether so marked or confirmed; and (b) the existence and terms of this Agreement shall also be deemed the Confidential Information of Linden Lab regardless of whether so marked or confirmed.

7.2 Protection of Confidential Information. Except as expressly permitted by this Agreement, the Receiving Party shall refrain from disclosing the Confidential Information of the Disclosing Party using the same degree of care which the Receiving Party ordinarily uses with respect to its own proprietary information, but in no event with less than reasonable care. The Receiving Party shall not use the Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and shall limit the disclosure of the Confidential Information of the Disclosing Party to the employees or agents of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement, and who are, with respect to the Confidential Information of the Disclosing Party, bound by confidentiality obligations no less restrictive than those contained herein. Any breach by either party of this Subsection 7.2 (“Protection of Confidential Information”) shall be a material breach of this Agreement.

7.3 Exceptions. Notwithstanding anything herein to the contrary, Confidential Information shall not be deemed to include any information which: (a) was already lawfully known to the Receiving Party without confidentiality obligation at the time of disclosure by the Disclosing Party as reflected in the written records of the Receiving Party; (b) was or has been disclosed by the Disclosing Party to a third party without obligation of confidentiality; (c) was or becomes lawfully known to the general public without breach of this Agreement; (d) is independently developed by the Receiving Party without access to, or use of, Confidential Information; (e) is approved in writing by the Disclosing Party for disclosure by the Receiving Party; (f) is required to be disclosed in order for the Receiving Party to enforce its rights under this Agreement; or (g) is required to be disclosed by law or by the order of a court or similar judicial or administrative body; provided, however, that the Receiving Party shall notify the Disclosing Party of such requirement immediately and in writing (if permitted by law), and shall cooperate reasonably with the Disclosing Party, at the Disclosing Party’s expense, in the obtaining of a protective or similar order with respect thereto.

7.4 Return of Confidential Information. The Receiving Party shall return to the Disclosing Party, destroy or erase all Confidential Information of the Disclosing Party in tangible form upon the expiration or termination of this Agreement, whichever comes first, and in both cases, the Receiving Party shall certify promptly and in writing that it has done so. Except for the rights expressly described herein, neither party is granted any rights to any of the other party’s patents, copyrights, trade secrets, trade names, trademarks, or any other rights, franchises or licenses.

8. Disclaimer.

LINDEN LAB PROVIDES THE SDK MATERIALS AND ALL GOODS AND SERVICES ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LINDEN LAB HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING FROM COURSE OF DEALING, USAGE OR TRADE, AND INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS.

9. Indemnities and Limitation of Liability.

9.1 Indemnity. Licensee shall indemnify, defend and hold harmless Linden Lab and its Affiliates, the assignees of each, and their respective directors, officers, agents and employees, from and against all claims and liabilities arising out of or related to this Agreement or to the use of the Avatar Items, whether or not arising in contract, tort or occasioned by the negligence or willful misconduct of Licensee or its Affiliates, including costs, expenses and attorneys’ fees, arising out of or related to: (a) injury to or death of any person or persons; or (b) loss of or damage to any property; and (c) infringement or misappropriation of any rights of any third party.

9.2 Limitation of Liability. LINDEN LAB WILL NOT HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF LINDEN) OR OTHERWISE, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY APPLICATION, SDK MATERIALS, INFORMATION AND SERVICES OR ANY OTHER ITEMS PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF POTENTIAL REVENUES, LOSS OF BUSINESS OPPORTUNITIES, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES OF ANY KIND EVEN LINDEN LAB HAS BEEN INFORMED OR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF LINDEN LAB EXCEED TWO HUNDRED AND FIFTY DOLLARS ($250), REGARDLESS OF THE CAUSE OF ACTION.

10. Compliance with Law.

The parties hereby agree to comply with the applicable provisions of all foreign and U.S. federal, state and local laws and rules, and all regulations issued thereunder, and any provisions required to be included, when performing any of its obligations or exercising any of its rights under this Agreement.

11. Term and Termination.

11.1 Term. Subject to Subsection 11.2 (“Termination for Cause”), the term of this Agreement (“Term”) shall commence upon the Effective Date, and shall continue in full force and effect unless terminated by either party without cause through a written termination notice which must be given at least fifteen (15) days in advance of the intended termination date.

11.2 Termination for Cause. Either party may terminate this Agreement for the material breach of this Agreement which breach has remained uncured by the breaching party after five (5) days’ written notice thereof. Linden Lab may also terminate this Agreement upon notice if Licensee challenges the validity or enforceability of any intellectual property rights in any of the SDK Materials. If Licensee’s account in Second Life expires or is terminated for any reason, this Agreement shall be deemed terminated at the same time.

11.3 Effect. Where this Agreement has expired or been terminated as provided herein: (a) all licenses granted with respect to the SDK Materials shall terminate; and (b) each party shall, upon request of the other party destroy or return all copies of Confidential Information in their possession.

12. Choice of Law and Jurisdiction.

THIS AGREEMENT WILL BE INTERPRETED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA AS APPLY TO CONTRACTS ENTERED INTO AND PERFORMED IN CALIFORNIA BETWEEN CALIFORNIA RESIDENTS, AND WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. SUBJECT TO SECTION 13 (“AGREEMENT TO BINDING ARBITRATION AND CLASS ACTION WAIVER”), THE STATE AND FEDERAL COURTS LOCATED IN SAN FRANCISCO, CALIFORNIA SHALL HAVE SOLE JURISDICTION OVER ANY DISPUTES ARISING HEREUNDER, AND THE PARTIES HEREBY CONSENT TO THE PERSONAL JURISDICTION OF SUCH COURTS. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AGREEMENT.

13. Agreement to Binding Arbitration and Class Action Waiver.

13.1 Effect. EXCEPT AS EXPRESSLY STATED TO THE CONTRARY HEREIN, LICENSEE AND LINDEN LAB ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE DISPUTES IN A COURT (OTHER THAN SMALL CLAIMS COURT) OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO A DISPUTE. OTHER RIGHTS THAT LICENSEE WOULD HAVE IF LICENSEE WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION OR SMALL CLAIMS COURT.

13.2 Statement of Agreement. Licensee and Linden Lab each agrees that all disputes (whether based in contract, tort, statute or otherwise) between Licensee and Linden Lab that in any way relate to or arise from any aspect of this Agreement or the SDK, including without limitation Licensee’s use or attempted use of the SDK, and the validity and enforceability of the Agreement, including its arbitration provisions, any applicable warranty, or the sale, condition, or performance of the SDK, shall be resolved exclusively through final and binding arbitration, and not by a court or jury. Any such dispute shall not be combined or consolidated with a dispute involving any other person’s or entity’s product or claim. Specifically, and without limitation of the foregoing, Licensee shall not under any circumstances proceed as part of a class action. The arbitration shall be conducted before a single arbitrator, whose award may not exceed, in form or amount, the relief allowed by the applicable law.

13.3 Process. The arbitration shall be conducted according to the American Arbitration Association (“AAA”) Arbitration Rules applicable to consumer disputes. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. This Agreement is entered into pursuant to the Federal Arbitration Act.

13.4 Scope. The arbitrator shall determine the scope and enforceability of this arbitration agreement and all arbitrability issues, including without limitation whether a dispute is subject to arbitration. This arbitration agreement also applies to claims against Linden Lab’s employees, representatives, parents and other affiliates. If a lawsuit filed in court includes claims or requests for relief that are arbitrable and claims or requests for relief that are not, Licensee and Linden Lab agree that any non-arbitrable claims or requests for relief shall be stayed pending the completion of the arbitration of the arbitrable claims or requests for relief.

13.5 Legal Counsel. Each party will have the right to use legal counsel in connection with arbitration at its own expense. If the law allows for an award of attorney’s fees, expert witness fees, arbitration fees and/or costs incurred by Licensee should Licensee prevail in arbitration, an arbitrator may award them too. Licensee will not be required to pay any fees or costs incurred by us if Licensee does not prevail in arbitration, unless the arbitrator determines that the claim was brought in bad faith, in which case the arbitrator may award Linden Lab its attorney’s fees, expert witness fees, arbitration fees and/or costs. Judgment may be entered on the arbitrator’s award in any court of competent jurisdiction.

13.5 Other Rights. The parties understand that, absent these mandatory provisions, they would have the right to sue in court (other than small claims court) and have a jury trial. The parties further understand that the right to discovery may be more limited in arbitration or small claims court; and review of an arbitration award (or small claims court judgment) also may be limited.

13.6 Exception - Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to Licensee for the SDK under this Agreement. Claims expressly excepted from arbitration are subject to the jurisdiction and applicable law provisions in Section 12 (“Choice of Law and Jurisdiction”) of this Agreement.

13.7 Small Claims Court. Either party may also seek relief in a small claims court for any individual disputes or claims within the scope of that court's jurisdiction. If an arbitration is filed, before the arbitrator is formally appointed either party may send written notice to the opposing party and the AAA that it wants the case decided by a small claims court, after which the AAA may close the case.

13.8 30 Day Right to Opt Out. Licensee have the right to opt out and not be bound by the arbitration agreement and class action waiver provisions above by sending written notice of Licensee’s decision to opt out to the following email address: optout@lindenlab.com, using the subject line “Arbitration Opt Out.” Such notice must be sent within thirty (30) days of Licensee’s acceptance of this Agreement; otherwise, Licensee shall be bound to arbitrate disputes in accordance with the terms above. If Licensee opts out of these arbitration provisions, Linden Lab will also not be bound by them. Opting out will not affect in any way the other benefits to which Licensee otherwise may be entitled to under the Agreement.

14. Survival.

In the event of any expiration or termination of this Agreement, the following provisions shall survive: Section 1 (“Definitions”), Section 4 (“Ownership of SDK and SDK Materials; Updates”), Section 6 (“No Fees”), Section 7 (“Confidential information”), Section 8 (“Disclaimer”), Section 9 (“Indemnities and Limitation of Liability”), Subsection 11.3 (“Effect”), Section 12 (“Choice of Law and Jurisdiction”), Section 13 (“Agreement to Binding Arbitration and Class Action Waiver”), Section 14 (“Survival”) and Section 15 (“General”).

15. General.

15.1 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect.

15.2 Waiver. Failure by either party to enforce any of the provisions of this Agreement will not be construed as a waiver of such provisions.

15.3 Assignment. Neither this Agreement, nor any other obligations under it, may be assigned or delegated by Licensee without the prior written consent of Linden Lab. Linden Lab may unilaterally assign this Agreement, in whole or in part, to any subsidiary of Linden Lab or to any third party in connection with sale of equity, assets, merger, recapitalization, or any similar transaction.

15.4 Publicity. Licensee shall not use the name or trademarks of Linden Lab in any press release, public announcement, advertisement, or other form of publicity without securing Linden Lab’s prior written consent. Notwithstanding the foregoing, so long as this Agreement remains in effect, Licensee may disclose that Licensee is authorized to create content for Second Life Avatars.

15.5 Waiver. Either party’s failure to exercise any of its rights under this Agreement shall not constitute a waiver of any past, present, or future right or remedy.

15.6 Expenses. Each party shall be responsible for bearing its own costs and expenses incurred in connection with the negotiation, preparation, execution and delivery of this Agreement and for performing its obligations under this Agreement.

15.7 Relationship of Parties. Each party agrees that, except as otherwise expressly provided herein, they are acting independently to each other in performing their respective obligations hereunder. Nothing in this Agreement shall be deemed or is intended to be deemed, nor shall it cause, any of the parties to be treated as partners, joint ventures, or otherwise as joint associates for profit, or as conferring upon either party the power or authority to bind the other party in any transaction with third parties.

15.8 Construction of this Agreement. The headings to the sections and subsections of this Agreement are included merely for the convenience of reference and shall not affect the meaning of the language included therein. Each party acknowledges that it has had the opportunity to negotiate the language of this Agreement, including its risk allocation provisions, warranties and disclaimers, and that the language of this Agreement shall not be construed for or against any party.

15.9 Entire Agreement. This Agreement contains the complete and exclusive statement of terms of the agreement between Linden Lab and Licensee and integrates and supersedes all prior discussions and agreements between them related to its subject matter.

15.10 Notices. All notices required or permitted hereunder shall be given in writing and be addressed to the respective parties as set forth below and shall be deemed duly given or served upon delivery, addressed as follows. If to Licensee, then to the email address provided by Licensee to Linden Lab, and if to Linden Lab, then to: Linden Lab, 945 Battery Street, San Francisco, CA 94111, ATTENTION: Office of Legal Counsel.