License Agreement update
Changes to October 13, 2021 Version Since May 5, 2020 Version
We have made the following changes to the EULA:
- Removed grants of consent to use names and logos.
- Adjusted and clarified which information can be sent to SideFX from the Software.
- Added clarity around feedback and source code contributions.
- Prevented purchase orders from amending the EULA.
- Removed references to Google Zync and Foundry's Athera since they have been retired. Nimble Collective is now AWS Nimble Studio and uses a bring-your-own-license approach for the Software.
- Clarified that ethical hacking is permitted if it follows the Responsible Disclosure Program.
- Added standard confidentiality and force majeure sections.
- Made a number of other small changes and fixes.
Section 1.4: We plan to remove IP masks on licenses in the future to make license management easier.
1.4 Communication of Usage Data. Licensee acknowledges that the Software may communicate to SideFX certain technical, non-personal information concerning Licensee's Licenses and Use of the Software in the form of anonymous usage statistics. As well, the Software is capable of transmitting License usage information to SideFX, but only if Licensee explicitly chooses to do so. In order to detect License Servers open to the internet and protect Licensee’s Licenses from unauthorized Use, the Software will also attempt to ping SideFX from the Licensee’s License Servers, sending only the License Server name, version, and IP address. In addition, User's names, usernames and Computer names may be communicated to SideFX if the Software detects the Use of fraudulent Licenses. Licensee hereby consents to such communication.
Section 2.2: Fixing a reference to the undefined term Network Server in the last sentence.
Each License permits Use of the Software on a single Computer (in the case of a Workstation Installation) or on a single LicenseNetwork Server and single Client Computer (in the case of a Network Installation).
Section 3.6: Updating the list of authorized third parties.
Notwithstanding section 4.1, the following and only the following authorized third parties are permitted to sell, lease, or rent the Software in a software-as-a-service or other similar basis: Google Zync, GridMarkets, Foundry's Athera, and AWS ThinkboxNimble Collective. The agreement for Use of the Software through the aforementioned third party services supercedes this agreement.
Section 4.1 (xvi): Reflecting that ethical hacking is permitted.
(xvi) perform load tests, brute-force attacks, spamming, network scans, penetration tests, ethical hacks or any other security testauditing procedures on the SideFX network that are disallowed by SideFX’s Responsible Disclosure Program set out at https://www.sidefx.com/responsible-disclosure- program/.
Section 5.2: Clarifying how feedback works.
5.2 Feedback. SideFX shall have a royalty-free, perpetual, fully-paid, irrevocable, transferable, sublicensable, worldwide license to use own, and Licensee shall not have any right, title or interest in, any enhancements or other modifications to the Software created based on any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) provided by or on behalf of Licensee or Authorized Users, and Licensee shall not have any right, title or interest in any enhancements or other modifications to the Software that SideFX creates based on any Feedback.
7.3 Limitation on Types of Recoverable Damages. SIDEFX WILL ONLY BE LIABLE FOR DIRECT DAMAGES, SUBJECT TO SECTION 7.4. IN NO EVENT WILL SIDEFX BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST OR DAMAGED DATA, OR THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES OR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, WHETHER BASED ON BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SIDEFX IS INFORMED OR OTHERWISE HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE.
7.4 Monetary Cap on Damages. LICENSEE AGREES THAT THE MAXIMUM AGGREGATE LIABILITY OF SIDEFX AND ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES FOR ALL CLAIMS UNDER ANY AND ALL CIRCUMSTANCES RELATING TO THIS AGREEMENT AND THE SOFTWARE AND ANY SERVICES PROVIDED BY SIDEFX UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO: (I) WITH RESPECT TO SIDEFX' INDEMNITY OBLIGATION UNDER SECTION 8, THE FEES PAID TO SIDEFX BY LICENSEE IN RESPECT OF THE INFRINGING SOFTWARE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM IN RESPECT OF SUCH LIABILITY; AND (II) IN ALL OTHER INSTANCES, THE FEES PAID TO SIDEFX BY LICENSEE IN RESPECT OF THE APPLICABLE
7.5 Essential Terms. The disclaimer of warranties and the limitation of liability in this Section 7 constitute an essential part of this Agreement. A fundamental breach or breach of a fundamental term of this Agreement by SideFX shall not limit the intended effect of Section 7 or any other provision of this Agreement which is intended to limit SideFX' liability. Licensee acknowledges that, but for the disclaimer of warranties and conditions and limitation of liability, SideFX would not enter into this Agreement.
Section 8.2: Handling patents that involve combinations of software, hardware, and data, and not providing IP infringement indemnity for old versions of the software that we are not able to modify or when the Software is modified by someone other than SideFX.
8.2 Exclusions. SideFX shall have no obligation or liability under Section 8.1 if the infringement relates to: (i) Use of the Software other than as expressly authorized under this Agreement; (ii) the combination, merger or interface of the Software with other software, hardware, or data by Licensee or a third party; (iii) Use of any release of the Software other than the most current supported release(s) made available to Licensee; (iv) any modification of the Software by anyone other than SideFX; or (viii) compliance with any Licensee instructions or requests. SideFX shall also have no obligation or liability under Section 8.1 in connection with any software or other technology not claimed to be owned by SideFX, including without limitation, the Open Source Software and any materials related thereto.
Section 9: Clarifying that Contributions means Source Code Contributions
9.1 Assigning Rights. If Licensee provides SideFX with any Feedback, SideFX is free to use the Feedback however it chooses. If Licensee makes any Source Code Contribution available to SideFX, Licensee hereby assigns to SideFX all right, title, and interest (including all copyright, patent, and other intellectual property rights) in that Source Code Contribution for all current and future methods and forms of exploitation in any country. If any of those rights are not effectively assigned under applicable law, Licensee hereby grants SideFX a non-exclusive, fully-paid, irrevocable, royalty-free, transferable, sublicensable license to reproduce, distribute, publicly perform, publicly display, make, use, have made, sell, offer to sell, import, modify and make derivative works based on, and otherwise exploit that Source Code Contribution for all current and future methods and forms of exploitation in any country. If any of those rights may not be assigned or licensed under applicable law (such as moral and other personal rights), Licensee hereby waives and agrees not to assert all of those rights. However, Licensee may continue to freely use any Feedback that Licensee provides to SideFX, and Licensee may continue to use, in any manner consistent with the License, any Source Code Contribution that Licensee makes available to SideFX.
9.2 Credit and Compensation. Licensee understands and agrees that SideFX is not required to make any use of any Feedback or Source Code Contribution that Licensee provides. Licensee agrees that if SideFX makes use of Licensee's Feedback or Source Code Contribution, SideFX is not required to credit or compensate Licensee for their contribution.
9.3 Ability to Grant Rights. Licensee represents and warrants that Licensee has sufficient rights in any Feedback or Source Code Contribution that Licensee provides to SideFX to grant SideFX and other affected parties the rights described above. This includes but is not limited to intellectual property rights and other proprietary or personal rights.
Definitions Section: More clearly defining Source Code Contributions
"Contribution" means any code, whether in source code format or object code format, or any other content or information that you make available to SideFX in order to improve the Software.
"Source Code Contribution" means any source code or any modifications to source code shipped with the Software that Licensee makes available to SideFX in order to improve the Software.
Section 10: Making consent for Change of Control more fair.
10.3 Termination by SideFX. SideFX may terminate this Agreement, and therefore the right granted under Section 2.1, upon notice to Licensee: (i) if Licensee breaches any of the terms and conditions of this Agreement and, if curable, fails to cure such breach to the satisfaction of SideFX within fifteen (15) days of SideFX notifying Licensee of the breach; (ii) if Licensee breaches any of its payment obligations under this Agreement and fails to make full payment within ten (10) days of SideFX notifying Licensee of such breach; (iii) Licensee undergoes a Change of Control without the prior written consent of SideFX (which consent may not be unreasonably withheld by SideFX in its sole and absolute discretion); (iv) Licensee commits any act of bankruptcy, becomes insolvent or admits its insolvency (as defined or provided for in any applicable statute); (v) any proceeding, voluntary or involuntary, is commenced respecting Licensee pursuant to any statute relating to bankruptcy, insolvency, reorganization of debts, liquidation, winding up or dissolution, including any proceedings under the Bankruptcy and Insolvency Act, the Companies' Creditors Arrangement Act or the Winding-Up and Restructuring Act; (vi) Licensee passes any resolution for its liquidation, winding up or dissolution; or (vii) Licensee ceases to carry on business in the ordinary course.
Section 10.4: Accommodating the new sections on Confidentiality.
10.4 Licensee Obligations Upon Termination. Upon receipt by Licensee of written notice of termination from SideFX, or termination by Licensee, Licensee shall immediately: (i) unredeem all Entitlements (i.e. return all Licenses) using the tools provided as part of the Software; (ii) cease Using the Software; (iii) permanently delete all installed and back-up copies of the Software; (iv) return or destroy all Confidential Information made available to Licensee by SideFX; and (iv) within five (5) days after the date of such termination, provide SideFX with a written confirmation that Licensee has complied with all of the foregoing.
Section 10.5: Renumbering
10.5 Survival. The provisions of Sections 2.3 (excluding part (v)), 3.11, 4 (without limiting the intended effect of Section 10.4), 5, 6, 7.3, 7.4, 7.5, 9, 10.4, 10.5, 11, 12, 132. (excluding 132.11) and 143 shall survive termination of this Agreement.
New Section 12: Adding a standard Confidentiality section.
12.1 Confidential Information. 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 information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). Confidential Information of SideFX includes, without limitation, the Software and accompanying documentation. Regardless of whether any information is marked or identified as confidential, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party.
12.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
12.3 Exceptions. The Receiving Party’s obligations under Section 12.2 with respect to any Confidential Information of the Disclosing Party will terminate if: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is/was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; or c) is, or through no fault of the Receiving Party has become, generally available to the public. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
12.4 Return of Confidential Information. The Receiving Party will either, at the Disclosing Party’s option, return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first.
12.5 Confidentiality of Agreement. Neither party will disclose any terms of this Agreement to anyone other than its Affiliates, legal counsel, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law or (b) pursuant to a mutually agreeable press release or c) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement consistent with the terms of this Section 12).
Definitions section: Adding definitions related to the Confidentiality section.
"Confidential Information" has the meaning set out in Section 12.1.
"Disclosing Party" has the meaning set out in Section 12.1.
"Receiving Party" has the meaning set out in Section 12.1.
Section 13.5 (was Section 12.5): Renumbering and preventing purchase orders from amending this Agreement.
132.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter and there are no representations, warranties, conditions or other agreements between the parties in connection with the subject matter hereof except as specifically set forth herein. The terms of any purchase order or similar document submitted by Licensee to SideFX shall not modify, add to or otherwise amend the terms of this Agreement.
Section 13.6 (was Section 12.6) Renumbering and adding this new sentence at the end.
Nothing in this Agreement shall prevent SideFX from seeking immediate equitable relief.
Section 13.10 (was Section 12.10):
132.10 Non-Exclusive Remedies. Except as provided in this Agreement, Aall remedies provided for under this Agreement are non-exclusive and are in addition, and without prejudice, to any other rights as may be available to SideFX, whether in law or equity. By electing to pursue a remedy, SideFX does not waive its right to pursue any other available remedies.
Section 13.12 (was Section 12.12): Removing consent to use names and logos.
132.12 Publicity. Neither party may issue press releases relating to this Agreement without the other party's prior written consent, or use in any manner the name(s), logo(s) or trade-mark(s) of the other party without such other party's prior written consent. Each party hereby consents to the inclusion of its name and logo by the other party among at least three other companies in lists of customers or vendors in accordance with the other party's standard guidelines.
Section 13.15 (was Section 12.15): Adding a force majeure clause.
13.15 Force Majeure. Any delay in the performance of any duties or obligations of either SideFX or Licensee (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labour dispute, pandemic, shortage of materials, fire, earthquake, flood, failure of third party suppliers, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
Other changes to Definitions section
"Agreement" means this SideFX Effects Software License Agreement, as may be amended in accordance with its terms.
"Notice to Arbitrateor" has the meaning set forth in Section 12.6.
"Person" includes an individual, corporation, partnership, joint venture, trust, unincorporated organization, the Crown or any agency or instrumentality of the foregoing or any other judicial entity recognized by law.
Appendix A's "Dedicated Computer / License Server Relocation" sections: Making relocations subject to applicable law
Subject to applicable law, Licensee may relocate the dedicated Computer...
Footnotes: Removing unreferenced (**) and (***)
(**) For all License Types, interactive use of the Software is permitted only on a non-concurrent basis (as further described in Section 3.6 of the Agreement) and Use of the Software is otherwise subject to the restrictions and limitations set out in Sections 3 and 4 of the Agreement.
(***) Note: The terms "Agreement", "Authorized Users", "Commercial", "Computer", "License(s)", "License Activation Date", "Licensee Personnel", "Software", "Territory", "Transaction Confirmation", and "Used" have the meaning set out in Section 13 of the Agreement. The terms "License Server" and "Network Installation" have the meaning set out in Section 3.3 of the Agreement. The term "Workstation Installation" has the meaning set out in Section 3.4 of the Agreement. The terms "Licensee" and "Organization" have the meaning set out in Section 1.1 of the Agreement. The term "SideFX" has the meaning set out in the preamble to the Agreement.