• END-USER LICENSE AGREEMENT (“AGREEMENT”) FOR Dolby Atmos Production Suite

    This Agreement is a legal agreement between you (either as an individual or an entity, hereinafter referred to as “you” or “Customer”) and Dolby Laboratories, Inc., a California Corporation and Dolby International AB, a Swedish company residing in The Netherlands (collectively “Dolby”) for the Dolby Atmos Production Suite that accompanies this Agreement, which includes computer software and may include associated media, printed materials, “online” and electronic documentation and updates thereto that Dolby may provide to Customer (collectively, the “Software”). YOU HEREBY AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY ACCEPTING THIS AGREEMENT, OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK THE “ACCEPT” BUTTON AT THE END OF THIS AGREEMENT OR SIGN THE AGREEMENT (IF APPLICABLE), INSTALL, COPY, OR USE THE SOFTWARE. FURTHERMORE, BY LICENSING THE SOFTWARE THROUGH THE AVID MARKETPLACE, YOU AGREE TO THE TERMS OF THE AVID MARKETPLACE SET FORTH AT http://apps.avid.com/store/documents/AvidMarketplaceT&Cs.pdf BY ACCEPTING THIS AGREEMENT, OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE.

    1. LICENSE GRANT. Dolby grants you only those rights expressly granted to you in this Agreement provided that you comply with all terms and conditions of this Agreement.

    • 1.1 Software License Grant. Subject to Customer’s compliance with the terms of this Agreement, Dolby grants Customer a nonexclusive, revocable, limited, non-transferable license to (a) install and run up to the authorized number of licenses of the Software, a “license” being either the maximum the number of simultaneous encoding processes permitted (“Concurrent Uses”) or the maximum number of unique devices on which the Software may be installed (“Named Devices”) and (b) make one copy of the Software solely for backup or archival purposes.
    • 1.2 Documentation. Customer may make and use an unlimited number of copies of the documentation, if any, provided that such copies shall be used solely for its own use in association with the Software and are not to be republished nor distributed (in hard copy, electronic or any other form) beyond your premises or to any third party.
    • 1.3 Use of Subcontractors. Customer may allow subcontractors to use the Software only on its behalf in accordance with the terms of this Agreement provided that the subcontractor accepts the terms of this Agreement. The subcontractors authorized to use the Software on Customer’s behalf will be identified in the Software order you submit to Dolby. Customer agrees to be liable for all acts or omissions of any such subcontractors.
    • 1.4 Third Party Software. Dolby may include third party software in the Software. The use of such third party software is subject to the terms of the license agreement governing such third party software, as described more fully in the documentation accompanying the third party software.

    2. RESERVATION OF RIGHTS AND OWNERSHIP. Dolby reserves all rights not expressly granted Customer in this Agreement. The Software is protected by copyright, patent and/or other intellectual property laws and treaties and contains trade secrets of Dolby and its suppliers. Dolby and its suppliers own the title, copyright, and other intellectual property rights in the Software. Notwithstanding any statements to the contrary contained in any terms of sale for the Software, the Software is licensed, not sold and Dolby retains ownership of all copies of the Software.

    3. LIMITATIONS ON LICENSE. Customer is expressly prohibited from using the Software in any manner not specifically authorized by Dolby in this Agreement. Customer may not make any copies of the Software except and to the extent necessary for backup and archival purposes. Customer may not modify, create derivative works, reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Customer may not rent, lease, lend or provide commercial hosting services with the Software. Customer may not delete, fail to reproduce or modify any patent, copyright, trademark or other proprietary rights notices which appear on or in the Software or documentation. No license, right, or interest in any Dolby trademark, trade name or service mark is granted to you pursuant to this Agreement.

    4. SOFTWARE MAINTENANCE. For a period of thirty six (36) months after the date of your purchase of the Software (the “Maintenance Period”), Dolby will provide updates containing bug fixes or error corrections to the Software (“Updates”) in accordance with Dolby’s published Software Maintenance Policy. Such Updates shall be considered part of the Software and subject to the terms and conditions of this Agreement. Extended coverage is not available after the expiration of the Maintenance Period. For additional details please review the Software Maintenance Policy located at www.dolby.com/software. Unless otherwise set forth in such policy, all fees for software maintenance are nonrefundable. Dolby may annually increase any such fees for software maintenance in an amount equal to any increase in the annual unadjusted Consumer Price Index measure for all Urban Consumers (CPI-U) as published by the US Bureau of Labor Statistics.

    5. EXPORT RESTRICTIONS. Customer acknowledges that the Software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.

    6. PRIVACY NOTICE. Your use of the Software is subject to the Dolby Privacy Notice that is available at https://www.dolby.com/us/en/about/privacy/avid.html and which is hereby incorporated by reference into this Agreement. By using the Software, you agree that you have read, understood, and agree to the data collection, use, and disclosure provisions set forth in the Dolby Atmos Production Suite Privacy Notice.

    7. INDEMNIFICATION AND REPRESENTATION. Customer represents and warrant that it will not make or sell a product using the Software if the purpose and/or result of such product is that it violates copyrights or other intellectual property rights of Dolby or any third party. Customer shall indemnify, defend and hold harmless Dolby, its affiliates, their respective successors and their respective officers, directors, employees, agents, and representatives for any claim, liability, loss or damage arising out of: (i) Customer’s breach of any term of this Agreement; (ii) the making, using or selling by Customer of any product using the Software, except with respect to such claim, liability, loss or damage that directly and to the extent it arises out of the Software as originally delivered to Customer; and (iii) any claim of allegedly unauthorized use or violation of any third-party intellectual property.

    8. TERMINATION. Without prejudice to any other rights, Dolby may immediately terminate this Agreement if Customer or its subcontractor fails to comply with any of the terms or conditions of this Agreement. In such event, Customer and its subcontractor must immediately cease using the Software and destroy all copies of the Software and all of its component parts. All confidentiality obligations and all limitations of liability and remedy, exclusions of damages, and warranty disclaimers shall survive any termination of the Agreement. In addition, sections titled “Indemnification and Representation,” “U.S. Government License Rights,” “Governing Law,” “Compliance with Applicable Law,” “Miscellaneous,” and “Audit” shall survive any such termination.

    9. REPRESENTATIONS AND WARRANTIES.

    • 9.1 Customer represents, warrants, and covenants that its use of the Software will at all times comply with the terms of this Agreement and that it will not install, use, access, or run more Software licenses than those for which you have paid the required license fees.
    • 9.2 Dolby represents and warrants that it owns or has the right to license the Software.

    10. DISCLAIMER OF WARRANTIES. DOLBY MAKES NO WARRANTIES REGARDING THE SOFTWARE. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DOLBY AND ITS SUPPLIERS PROVIDE THE SOFTWARE AS IS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. THERE IS NO WARRANTY THAT THE SOFTWARE WILL OPERATE IN THE COMBINATIONS THAT YOU MAY SELECT FOR USE, THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DOLBY OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. THE ENTIRE RISK AS TO THE QUALITY, OR ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU.

    11. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. IN NO EVENT WILL DOLBY BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT DOLBY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. CUSTOMER AGREES THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

    12. LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT CUSTOMER MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF DOLBY AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SOFTWARE, BUT IN NO EVENT MORE THAN USD $500.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING THIS SECTION 12) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

    13. U.S. GOVERNMENT LICENSE RIGHTS. This Software is commercial computer software developed exclusively at private expense, and is provided to the U.S. Government only as commercial computer software (with "Restricted Rights," as applicable). Use, duplication, and disclosure by civilian agencies of the U.S. Government shall be in accordance with the terms of this Agreement and FAR 52.227-19(b), or its current equivalent. Consistent with DFARS 227.7202 or its current equivalent, use, duplication, and disclosure by DOD agencies is subject solely to the terms of this Agreement.

    14. GOVERNING LAW. The validity, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws, without respect to conflict of laws provisions, and you agree to submit to the jurisdiction of the court, set forth below based on the applicable region where you are located:

    Region     Governing Law Court Jurisdiction
    Europe England English Courts
    All other countries State of California, USA State or Federal Courts located in San Francisco, CA
    People's Republic of China State of California, USA Arbitration at the Hong Kong International Arbitration Centre in accordance with the UNCITRAL Arbitration Rules ("UNCITRAL Rules"). The arbitration tribunal shall consist of the one arbitrator to be appointed according to the UNCITRAL Rules. The language of the arbitration shall be English.

    Notwithstanding the foregoing, nothing in this Section 14 shall prevent Dolby from seeking any injunctive or equitable relief by a court of competent jurisdiction that is necessary to protect Dolby’s rights or property until such dispute is resolved. This Agreement will be interpreted and construed in accordance with the English language. The parties agree that the provisions of the Uniform Computer Information Transactions Act (“UCITA”) and the U.N. Convention on Contracts for the International Sale of Goods will have no force or effect on these terms and conditions

    15. COMPLIANCE WITH APPLICABLE LAW. Customer agrees to comply with all applicable local laws and regulations that may govern your use of the Software. You understand that Dolby is subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibits export or diversion of Dolby’s products to certain countries and persons and entities listed on the U.S. Government lists of restricted or prohibited persons, including the Bureau of Industry and Security's List of Denied Persons and the Department of Treasury List of Specially Designated Nationals; and is also subject to the Foreign Corrupt Practices Act, which prohibits giving anything of value to any foreign government official, foreign political party, or official of a foreign political party or any candidate for foreign political office in order to influence improperly his or her judgment in the performance of official duties. Customer agrees that it will not knowingly assist or participate in any such diversion or other violation of any applicable U.S. laws and regulations, will allow Dolby to audit your books and records for compliance and, at Dolby’s request, will certify to Dolby as to your compliance with these provisions. Customer warrants that it shall not sell any products in countries or to users not approved to receive such products under applicable U.S. laws and regulations, and that it will abide by such laws and regulations. Customer shall hold harmless and indemnify Dolby for any damages, expenses and costs (including reasonable attorneys’ fees) arising from Customer’s breach of this section.

    16. TAXES. Prices quoted do not include sales, use, excise, VAT, or similar taxes, and Customer shall pay, or reimburse Dolby for, the gross amount of all such taxes (other than taxes on Dolby’s net income), imposed by any governmental authority (collectively, “Taxes”) applicable to the sale or furnishing of any products hereunder. In lieu of a specific tax, Customer may provide Dolby with a tax exemption certificate acceptable to the applicable taxing authority.

    17. MISCELLANEOUS. This Agreement (including any amendment to this Agreement which is included with the Software and any Dolby terms of sale or invoice provided to you in connection with your order for the Software) is the entire agreement between Customer and Dolby relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this Agreement. If there exists any conflict between the terms of this Agreement, the terms of any amendments and any terms of sale or invoice, the terms of any amendments shall prevail. For avoidance of doubt, any additional or conflicting terms in any purchase order or other document provided by you shall be null and void unless expressly agreed to in writing by Dolby. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. There may be technological measures in or part of the Software or that may be enabled by use of the Software that are designed to prevent the unlicensed, unauthorized or illegal use of the Software and/or to identify users of the Software. Customer understands and agree that Dolby may use such measures.

    18. AUDIT. At Dolby’s written request, not more frequently than annually, Customer shall furnish Dolby with a signed certification verifying that the Software Licenses are being used in accordance with the provisions of the Invoice and this Agreement. Upon forty-five (45) days’ written notice, Dolby may audit Customer’s use of the Software, including but not limited to the number of Named Devices on which the Software is installed or are capable of executing the Software and the maximum number of Concurrent Uses during the period of the audit. Customer agrees to cooperate with Dolby’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Customer’s normal business operations. In the event any audit discloses non-compliance with this Agreement, Customer agrees to pay within 30 days of written notification any fees applicable to Customer’s use of the Software plus Dolby’s reasonable cost of conducting the audit. Customer agrees that Dolby shall not be responsible for any costs incurred by Customer in cooperating with the audit.