End User License Agreement for EVS Wideband Implementation

TERMS AND CONDITIONS OF LICENSING OF IMPLEMENTATION FROM CODECPROS INC.
By using the Implementation, you hereby agree to be bound by the following terms and conditions. If you agree to these terms and conditions on behalf of your employer or another legal entity, you hereby represent to have full right, capacity, power and authority to bind that employer or legal entity to said terms and conditions. If you do not agree to these terms and conditions, click "I do not accept the terms of the license agreement" and do not use the Implementation.

1 DEFINITIONS
The following terms when used in this Agreement shall have the following meaning:
"Agreement" means these terms and conditions governing the use by Licensee of the Implementation, as amended from time to time by Licensor.
"AS IS" in the context of a Standard as defined in this Agreement, means no modification of the bit allocation in the bitstream, frame size or sampling frequency of the Standard.
"Confidential Information" shall have the meaning ascribed to it in Section 5 hereof.
"Evaluation Location" shall mean Licensee’s principal place of business.
"Evaluation Period" shall mean thirty (30) days from the date of receipt of the Implementation by Licensee.
"Implementation" shall mean the downloaded optimized software program [object code library] that is compliant with the applicable Standard AS IS or that is a proprietary solution, as the case may be, developed by Licensor and written specifically for a target processor.
"Licensee" means the person and entity, as the case may be, using the Implementation.
"Licensee’s Product(s)" means a device or apparatus incorporating a target processor or multiple target processors in which one or more of the Implementation is embedded.
"Licensor" means CodecPros Inc.
"Permitted Use" shall have the meaning ascribed to it in Section 2.1.
"Proprietary Information" shall have the meaning ascribed to it in Section 4 hereof.
"Standard" means one of the following applicable standards directly and solely related to the Implementation: the G.711 Standard, the G.722 Standard, the G.722.1 Standard, the G.723.1 Standard, the G.726 Standard, the G.728 Standard, the G.729 Standard, the G.729a Standard, the G.729b Standard, the G.729d Standard, the G.729e Standard, the AMR Wideband Standard, the AMR Wideband Plus Standard, the AMR Narrowband Standard, the EVRC Standard, the GSM-FR Standard, the GSM-EFR, the GSM-HR, the QCELP-13 Standard, the Microsoft GSM Standard or the VMR Wideband Standard, or any other audio compression standard issued as a recommendation by the ITU-T, the 3GPP, the 3GPP2 or any other telecommunications standardization body, for which Licensor licenses an Implementation, as applicable.

2 LICENSE – OBJECT CODE ONLY
2.1 Subject to the provisions of this Agreement, including, without limitation, Section 2.3, Licensor hereby grants to Licensee, and Licensee hereby accepts a personal, limited, non-exclusive, non-licensable and non-transferable license,
(i) to create interfaces ("Interface") with the Implementation as long as they do not constitute derivative works and do not infringe upon Licensor’s intellectual property rights in or related to the Implementation or the intellectual property rights that may be owned by third parties;
(ii) to bundle object code of the Implementation with the object code of the Interface (Bundled Product");
(iii) to reproduce the object code of the Implementation or of the Bundled Product for the sole purpose of incorporating such reproduction in Licensee’s Products,
provided, however, that said license shall be solely for Licensee’s internal evaluation and demonstration purposes at the Evaluation Location during the Evaluation Period ("Permitted Use")

2.2 No rights to distribute or transmit the Implementation, Confidential Information or any derivative work thereof, to third parties are granted herein. Licensee must acquire the final commercial release of the Implementation (and an appropriate license thereto) from Licensor in order to distribute any of its products that incorporate any portions of the Implementation. Licensee acknowledges that Licensor will not be obligated to make the Implementation available as a final commercial product or enter into any further license agreements, with Licensee or otherwise, with respect to the Implementation.

2.3 Exclusions
(A) THE IMPLEMENTATION IS AN OPTIMIZED VERSION OF THE SOFTWARE CODE OF THE STANDARDS (THE "STANDARDS CODE"). THE LICENSE GRANTED BY LICENSOR IN SECTION 2.1 IS LIMITED TO LICENSOR'S OPTIMIZATION WORK, INCLUDING ANY NEW CODE ADDED TO THE STANDARDS CODE OR ANY MODIFICATIONS TO THE STANDARDS CODE CREATED BY LICENSOR.
(B) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THIS AGREEMENT DOES NOT COVER INTELLECTUAL PROPERTY RIGHTS (INCLUDING, BUT NOT LIMITED TO, PATENTS, COPYRIGHT AND TRADE SECRETS) (I) OWNED OR CONTROLLED BY LICENSOR AND BY THIRD PARTIES, INCLUDING PATENTS THAT HAVE BEEN DECLARED AS ESSENTIAL TO STANDARD SETTING ORGANIZATIONS OR THAT ARE OTHERWISE ESSENTIAL FOR THE PRACTICE OF THE STANDARDS OR ANY OTHER STANDARD, OR (II) IN ANY SOFTWARE IMPLEMENTING THE STANDARDS, NOR SHOULD THIS AGREEMENT BE INTERPRETED AS AN IMPLIED LICENSE RELATED TO LICENSOR OR THIRD PARTIES' INTELLECTUAL PROPERTY RIGHTS. WITHOUT LIMITING THE FOREGOING, (I) LICENSEE SHALL NOT OBTAIN ANY RIGHTS TO LICENSOR'S AND ITS SUPPLIERS' INTELLECTUAL PROPERTY, OR ANY PART THEREOF, BY IMPLICATION, ESTOPPEL, OR OTHERWISE, AND (II) THIS AGREEMENT DOES NOT AUTHORIZE LICENSEE TO USE, MAKE OR SELL THE LICENSEE PRODUCT WHICH IS SUBJECT TO THE CONCLUSION OF AN APPROPRIATE LICENSE AGREEMENT WITH THE OWNERS (INCLUDING LICENSOR) OF INTELLECTUAL PROPERTY RIGHTS (A) RELATED TO THE STANDARDS OR ANY OTHER STANDARD, OR (B) RELATED TO ANY SOFTWARE IMPLEMENTING THE STANDARDS OR ANY OTHER STANDARD, OR WITH THE PARTIES WHO HAVE THE RIGHT TO GRANT LICENSES WITH RESPECT TO SUCH INTELLECTUAL PROPERTY RIGHTS.
3 RESTRICTED RIGHTS
3.1 Licensee shall not use or copy the Implementation or any related materials supplied to Licensee by Licensee, except and only to the extent necessary for the Permitted Use.
3.2 Nothing contained in this Agreement shall be construed as conveying any license to the Implementation except as specifically set forth in Section 2.1 hereof and nothing in this Agreement shall be construed as an implied license. Without limiting the foregoing, Licensee shall not obtain any rights to Licensor’s property, or any part thereof, by implication, estoppel, or otherwise.
3.3 Licensee agrees (i) not to modify, remove or replace any of Licensor’s copyright, patent, trademarks or any other notices included in or placed upon the Implementation or in related documentation; (ii) not to reverse engineer, decompile or disassemble the Implementation at all times; (iii) not to refer or to utilize any of Implementation, Confidential Information or any part thereof, in the course of the development of any of its products ("Prohibited Actions").
3.4 Licensee further represents it has taken and will maintain all reasonable measures to prevent the occurrence of the Prohibited Actions. In the event of the occurrence of any of the Prohibited Actions, Licensee agrees to inform Licensor promptly after it has been informed of same. Licensee hereby agrees to take, at its own cost, the required measures to stop as soon as possible any such Prohibited Actions.

4 OWNERSHIP
Notwithstanding anything to the contrary in this Agreement, Licensor and its suppliers own and shall retain all right, title and interest in and to the Implementation, Confidential Information, improvements, modifications, derivative works, in whole or in part, and in any form, and in all copies thereof ("Proprietary Information") as well as intellectual property rights related thereto, including, but not limited to, copyright, patents and trade secrets. Licensee hereby assigns to Licensor any interest it may have in the same and hereby waives, and shall cause to be waived, any moral rights, if any.

5 CONFIDENTIALITY
Licensee expressly undertakes to retain in confidence all information and knowhow supplied to Licensee by Licensor, including, but not limited to, technical and commercial information relating to Licensor’s business, products, techniques and processes in form of oral disclosure, demonstration, test or evaluation results, device, apparatus, model, sample of any kind, computer program and all other information that by the nature of the information or by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential ("Confidential Information").

Licensee undertakes to exercise the same degree of care as it itself protects its own confidential computer programs and technical information and, in any event, with not less than reasonable care, and to make no use of the Confidential Information except under the terms and during the existence of this Agreement. Licensee undertakes not to disclose the Confidential Information except to those employees who must examine or otherwise possess the Confidential Information as part of their official duties and who have signed confidentiality agreements preventing disclosure of proprietary information or any other contract or covenant to the same effect. Licensee shall appropriately notify each employee to whom any such disclosure is made that such disclosure is made in confidence pursuant to a confidentiality agreement and must be kept in confidence by such employee.

Without limiting the foregoing, Licensee shall notify Licensor immediately of any unauthorized use, modification, reproduction or distribution of the Confidential Information, and shall furnish such details to Licensor in any action against third parties deemed necessary by Licensor to protect its rights. Licensee 's compliance with this paragraph shall not be construed in any way as a waiver of Licensor’s right to recover damages or obtain other relief against Licensee for its negligent or intentional harm to Licensor’s rights, or for breach of contractual rights.

6 NO WARRANTY, DISCLAIMER, AND HARMLESS CLAUSE
6.1 FOR THE PURPOSE OF SECTION 6 ONLY, THE EXPRESSION "IMPLEMENTATION" SHALL INCLUDE CONFIDENTIAL INFORMATION AS DEFINED IN THIS AGREEMENT AND "LICENSOR" SHALL INCLUDE ITS SUPPLIER(S). THE IMPLEMENTATION IS PROVIDED AND ACCEPTED STRICTLY "AS IS" AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY AGAINST LATENT DEFECTS. LICENSOR DOES NOT WARRANT THAT THE IMPLEMENTATION IS EXEMPT FROM ERRORS, THAT ALL ERRORS MAY BE DETECTED OR CORRECTED OR THAT USE OF THE IMPLEMENTATION WILL BE UNINTERRUPTED OR ERROR FREE. LICENSOR GIVES NO WARRANTY THAT THE IMPLEMENTATION WILL OPERATE WITH LICENSEE'S PRODUCTS OR WILL MEET THE REQUIREMENTS OF LICENSEE. IN NO EVENT SHALL LICENSOR BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THIS AGREEMENT OR USE OF, OR INABILITY TO USE THE IMPLEMENTATION, OR FOR TECHNICAL LIMITATIONS, OR FOR ANY UPDATE, IF ANY, OR USE OR MISUSE OF PASSWORDS OR ACCOUNTS, OR THE PROVISION OR LACK OF PROVISION OF THE SUPPORT SERVICES, INCLUDING LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE OR INTERRUPTION OF BUSINESS EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SAME.

NOTHING CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED AS (I) A WARRANTY OR REPRESENTATION THAT ANY USE OF IMPLEMENTATION AND CONFIDENTIAL INFORMATION WILL BE FREE FROM INFRINGEMENT OF PATENTS, COPYRIGHT OR TRADEMARKS; (II) AN AGREEMENT TO BRING OR PROSECUTE ACTIONS OR SUITS AGAINST THIRD PARTIES FOR INFRINGEMENT OF ANY OF THE RIGHTS LICENSED HEREBY, OR CONFERRING ANY RIGHTS TO BRING OR PROSECUTE ACTIONS OR SUITS AGAINST THIRD PARTIES FOR INFRINGEMENT.

6.2 THE TOTAL LIABILITY OF LICENSOR FOR ANY CLAIM OR DAMAGES ARISING FROM THE USE OF THE IMPLEMENTATION, OR OTHERWISE RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES WHICH SHALL NOT EXCEED ONE US DOLLAR.

6.3 LICENSEE AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND LICENSOR, ITS AFFILIATES, SUPPLIERS, SUBSIDIARIES, SHAREHOLDERS, OFFICERS AND DIRECTORS, AGENTS, EMPLOYEES, AND OTHER PARTNERS (COLLECTIVELY, THE "INDEMNIFIED PARTY") FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, INTERESTS, PENALTIES, EXPENSES AND COSTS, INCLUDING REASONABLE ATTORNEYS' FEES, RELATING TO, INCURRED IN CONNECTION WITH OR ARISING OUT OF ANY THIRD PARTY CLAIM OR DEMAND RELATING TO (I) ANY BREACH OF THIS AGREEMENT, (II) ANY LIABILITY RESULTING FROM ANY THIRD PARTY CLAIM OR DEMAND DUE TO OR ARISING OUT OF THE USE OF THE IMPLEMENTATION, THE SERVICES OR LICENSEE PRODUCTS, OR (III) ANY INTELLECTUAL PROPERTY INFRINGEMENT LIABILITY OF LICENSEE OR LICENSOR, INCLUDING LIABILITY ARISING OUT OF PATENT INFRINGEMENT, RELATING TO OR INCURRED IN CONNECTION WITH THE IMPLEMENTATION, THE SERVICES OR LICENSEE PRODUCTS. UNLESS LICENSEE OBTAINS FOR THE INDEMNIFIED PARTY COMPLETE RELEASE OF CLAIM OR DEMAND, LICENSEE SHALL NOT SETTLE ANY SUCH CLAIM OR DEMAND WITHOUT THE LICENSOR'S PRIOR WRITTEN CONSENT, AND IN SUCH CASE, LICENSOR SHALL BE PERMITTED TO PARTICIPATE IN THE DEFENSE OF SUCH CLAIM OR DEMAND AND IN ANY NEGOTIATIONS FOR THE SETTLEMENT THEREOF WITH COUNSEL OF ITS CHOICE.

6.4 In any action or suit to enforce any right or remedy under this Agreement, or to interpret any provision of this Agreement, Licensor will be entitled to recover its reasonable, documented costs, including attorney’s fees and fees of other litigation-related professionals, such as expert witnesses and accountants.

7 EQUITABLE RELIEF
A breach of any of the promises or agreements contained herein by Licensee may result in irreparable and continuing damage for Licensor for which there may be no adequate remedy at law, and Licensor shall be entitled, without waiving any rights or remedies, to seek injunctive or equitable relief and/or a decree for specific performance, and such other relief as may be deemed proper (including monetary damages if appropriate).


8 TERM
This Agreement shall automatically expire without notice at the end of the Evaluation Period, unless Licensor previously terminates this Agreement according to Section 9.1

9 TERMINATION
9.1 Licensor may, at its sole discretion, suspend the performance and/or terminate this Agreement without notice to Licensee and, without thereby a) limiting its rights, recourses or claims provided for under this Agreement, at law or in equity, against Licensee, and b) incurring any indemnity, liability or claim to the Licensee or any other party,
(i) if Licensee fails to comply with any provision of this Agreement; or
(ii) if Licensee's normal business operations are disrupted or discontinued for reason of insolvency, bankruptcy, receivership or business termination.
10 EFFECT OF EXPIRATION OR TERMINATION
Upon the expiration or termination of this Agreement, all grants pursuant to this Agreement shall be terminated and Licensee shall stop and shall cause to be stopped any use of the Implementation and return to Licensor the Implementation, Proprietary Information or shall destroy or shall cause to be destroyed the foregoing. Licensee agrees to provide forthwith to Licensor a statement executed (which shall be verified if so requested by Licensor) by a duly authorised officer of Licensee attesting that all such material has been returned or destroyed, and erased from all of Licensee’s storage elements or devices..

The following sections shall survive the termination or expiration of this Agreement: Sections 2.3, 3, 4, 5, 6, 7, 10, 11, 13 (those paragraphs impliedly intended to remain in force after such termination or expiration) and 14.

11 ASSIGNMENT
Licensee shall not lend, Sell, encumber, sublicense, assign or otherwise transfer ("Transfer") any of the rights, duties or obligations granted to Licensee under this Agreement to any third parties. Any attempt to Transfer any of the rights, duties or obligations hereunder is null and void. A merger with, acquisition by, or sale of all or substantially all of Licensee’s assets to another entity shall be deemed a Transfer prohibited by the present Section 11. Except as otherwise provided, this Agreement will be binding upon and inure to the benefit of the Parties’ permitted successors and lawful assigns.

12 TECHNICAL SUPPORT
12.1 Technical Support to Licensee for Integration
(i) Licensor shall not be responsible for providing technical support, maintenance or field services to Licensee, except as expressly provided otherwise under Section 12.1.
(ii) Subject to the availability of Licensor’s technical resources and upon Licensee’s request, Licensor agrees to supply remote technical support via telephone and/or e-mail during regular business hours for up to five hours at no charge to assist in the integration of the Implementations ("Free Technical Support").
(iii) For technical support other than the Free Technical Support, subject to the availability of Licensor’s technical resources and upon Licensee’s request, Licensor shall supply technical support at an hourly rate of US$200, plus the Expenditures, for each technician involved. On-site technical support may be supplied by Licensor to Licensee at a fixed-fee of US$1,500 per day (one day minimum), plus the Expenditures, for each technician involved. The expression "Expenditures" shall mean (i) an allocation for Licensor’s administrative expenses fixed at 12% of labor charge; (ii) the cost of calls, faxes, copying, and media; (iii) reasonable travel and living expenses of technicians when required to be away from their normal place of business to perform the services; and (iv) all other reasonable expenses incurred to perform the services, including, but not limited to, project-specific material or equipment.

13 GENERAL
(i) All overdue accounts shall bear interest at the rate of 1.5% per month (18% per year); (ii) there are no terms, obligations, covenants, representations, statements or conditions other than those contained herein; (iii) no variation or modification of this Agreement nor waiver of any of the terms and provisions hereof shall be deemed valid unless in writing signed by the Parties; (iv) if any provision or part of any provision of this Agreement shall be held by a Court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions or part of any provision shall remain in full force and effect and the illegal, invalid or unenforceable provisions or part of any provision shall be replaced by legal provisions or part of a provision carrying to the extent legally permissible, the intent of the Parties as to such illegal, invalid or unenforceable provision or part of a provision; (v) unless the context otherwise requires or unless it is specified otherwise, words importing the singular include the plural and vice versa and words importing gender include all genders and the inclusion of headings are for convenience of reference only and shall not affect the construction or interpretation thereof; (vi) this Agreement shall be deemed to be an original and shall have the same force and effect as an executed original; (vii) this Agreement sets forth the entire understanding between the Parties with respect to the subject matter herein, and supersedes all prior written agreements and discussions concerning the subject matter of this Agreement; (viii) the parties to this Agreement are independent contractors, and nothing in this Agreement shall be construed as creating any joint venture relationship. Neither party has any right or authority to make any representation or enter into any obligation on the other party’s behalf; (ix) this Agreement has been negotiated by the Parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party; (x) the Parties hereto have requested that this Agreement be drafted in English. Les Parties aux présentes ont exigé que ce contrat soit rédigé en langue anglaise.

14 GOVERNING LAWS
This Agreement is governed, interpreted and defined by and under the laws of the Province of Québec and the laws of Canada applicable therein, without regard to the conflicts of laws principles. The courts of the district of Montreal, Province of Québec, Canada, shall have exclusive jurisdiction with respect of any action or litigation concerning this Agreement. The Parties expressly consent to jurisdiction of and venue in such courts and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to such courts.





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SOFTWARE EVALUATION LICENSE AGREEMENT (SELA)


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