Glint 3d Engine: The Glint 3d License Agreement

By downloading, installing the Product, or executing the Product applications, the individual or organisation accessing the Product ("Licensee") is consenting to be bound by and become a party to this Agreement.

The use of this Product is governed by this license agreement ("Agreement").

Copyrights

The copyright in this document is vested in Capricorn 76 Pty. Ltd. The document must not be reproduced in whole or part, or stored in a retrieval system, or transmitted in any form or by any means electronic, mechanical, photocopying or otherwise without the prior, express written permission of Capricorn 76 Pty. Ltd. The document, or its contents, either in whole or in part, must not be communicated to the press or any person not expressly authorized, in writing, by Capricorn 76 Pty. Ltd., to receive it.

Definitions

ACN means Australian Company Number
Associate has the meaning given to that term in the Corporations Act 2001.
Background IP means all intellectual property that is not Licensor IP or Foreground IP.
Change in Control of the Licensee means that after the date of this Agreement:
1. a Competitor, either alone or together with any Associate (as defined in the Corporations Law) of that person, becomes entitled to more than 5% of the issued voting shares of the Licensee or any of its Related Bodies Corporate;
2. the Licensee or any of its Related Bodies Corporate, either along or together with any Associate of that person, becomes entitled to more than 5% of the issued voting shares of a Competitor;
3. any other person, either along or together with an Associate of that person, becomes entitled to more than 15% person of the issued voting shares of the Supplier or any of its Related Bodies Corporate;
4. a Competitor appoints a member of the board of directors of the Licensee or any of its Related Bodies Corporate to its board of directors; or
5. the Licensee or any of its Related Bodies Corporate appoints a member of the board of directors of a Competitor to its board of directors.
Competitor means any entity that creates, provides, produces, distributes, uses or licenses a product that competes with the Software
Confidential Information of a party:
1. means all information of whatever description, whether in permanently recorded form or not and whether or not belonging to a third party, which is by its nature confidential or which the Party identifies as confidential to itself;
2. does not include information to the extent that information is:
3. independently created or rightfully known by, or in the possession or control of, the other Party and not subject to an obligation of confidentiality on the other Party;
4. in the public domain (otherwise than as a result of a breach of this Agreement); or
5. required to be disclosed by law
Foreground IP means the IPR in the Licensee Product created by the Licensee through the use of the Software under this Agreement
Immediately Available Funds means:
1. cash;
2. bank cheque;
3. telegraphic or other electronic means of transfer of cleared funds into a bank account nominated in advance by the payee
Infringement includes (without limitation) unauthorized acts which would, but for the operation of the current applicable version of section 163 of the Patents Act 1990, section 40A of the Designs Act 1906, Section 183 of theCopyright Act 1968 and Section 25 of the Circuit Layouts Act 1989 or any sections that replace those sections from time to time), constitute an infringement
Intellectual Property Rights or IPR includes both in Australia and throughout the world and for the duration of the rights:
1. any patents, utility models, copyrights, registered or unregistered trade marks or service marks, trade names, brand names, indications of source or appellations of origin, eligible layout rights, plant variety rights, registered designs and commercial names and designations;
2. any invention, discovery, trade secret, know‑how, computer software and confidential, scientific, technical and product information;
3. any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields whether industrial, commercial, agricultural or extractive and whether dealing with manufactured or natural products including moral rights; and
4. any letters patent, deed of grant, certificate or document of title for any thing referred to the preceding clauses of this definition and any medium in which any thing referred to in those paragraphs is stored or embodied; and
5. any application or right to apply for registration of any rights refereed to in the preceding clauses of this definition
Licensor means Capricorn 76 Pty. Ltd. (A.C.N. 102 409 932)
Licensee means the primary individual or organisation accessing the Product.
Third Party/3rd Party means any individual or organisation accessing the Product to execute software created by the Licensee
Licence Fee means the Immediately Available Funds required to License the Product over the term of this License
License Product means any product, and any updates or revisions thereof, that uses or includes the Product in accordance with this License Agreement
Licensor IP means all IPR owned by the Licensor prior to the date of this Agreement including without limitation the Licensor’s IPR in the Software and Source Code
Personnel of a party means that party’s employees, agents and contractors
Related Body Corporate has the meaning given to that term in the Corporations Act 2001
Software/Product/Software Product means the Glint 3d Engine application and supporting files and any updates and revisions thereof
Source Code means the source code of the Product, programmer notes, flow charges and all other information, software and documentation necessary to understand the program logic of the Product, together with a copy of and licence to use the tools and libraries required to recompile the source code and full written details of the development environment to enable the Licensee to replicate that environment

Recitals

The Licensor is the owner of the Product and the Intellectual Property Rights subsisting in the Product.
The Licensee wishes to licence the Product from the Licensor on the terms and conditions set out in this Agreement.
The Licensor has agreed to licence the Product and the Licensee has agreed to accept such licence on the terms and conditions set out in this Agreement.

Grant of License

Overview

Subject to the restrictions below, with effect from the payment of the Licence Fee, the Licensor grants to the Licensee a non exclusive, non transferable licence in perpetuity (subject to termination clause defined below) to use the Product for the purpose of making the Licensee Product.

Agreement Execution

This Agreement is executed and in effect after the Licensee has made payment of the Licence Fee and accessed the Product by starting any of the Product's application executable(s) at least once.

Licensing fee

The Licensee fee is $50AUD (as of 1st Oct 2011). Once payment of the license fee has been completed, Capricorn 76 will deliver the Licensee an individualised registration code for the Glint 3d Engine.

Allowances

Without limiting the scope of the Overview, the Licensee may:

copy the Product application and supporting files;
use the Product application and supporting files;
use the documentation supplied by the Licensor Product application and supporting files;
on-sell, distribute, release, publish, transmit and profit from the Licensee Product

Restrictions

The Licensee may not:

modify the Product;

on-sell, distribute, release, publish, transmit, transfer or assign its rights and obligations under this Agreement;

on-sell, distribute, release, publish, transmit or profit from any Licensee Product that directly competes with the Product or claims to be any form of “scriptable engine’ or use any Product logos, on any computer operating system without the consent of the Licensor which may be withheld at the absolute discretion of the Licensor;

create any derivative works of the Product, including but not limited to translations, localizations, starter kits, technology add-ons, or application making software without the written permission from the Licensor;

reverse engineer, or otherwise attempt to derive the algorithms for the Product;

encumber, sell, rent, lease, sublicense, or otherwise transfer rights in the Product; or

remove or alter any trademark, logo, copyright or other proprietary notices, legends,

symbols or labels in the Product

License Details

Intellectual Property Ownership

This agreement does not transfer ownership or IPR subsisting in the Product to the Licensee

Software Support

The Licensor will publish the latest release of the Product on this website, which shall be made available to the Licensee provided that it has paid the Licence Fee.
Updates to the Product include but are not limited to bug-fixes, upgrades, extensions and documentation

Working Together

Each party will:

act reasonably and in good faith with respect to matters that relate to this Agreement; and
perform its obligations and responsibilities by the dates specified in this Agreement.
The parties will each utilise such Personnel as are necessary to enable them to fulfil their respective obligations under this Agreement. Each party will ensure that the Personnel which it utilises pursuant to this clause have the requisite skills and experience.

Software Messages

The Licensee shall accept Licensor printed text messages, if any, in the main application console window, comprising of:

Product information, including but not limited to, version number, build date, and website address
the Licensee information, including but not limited to, application name, version number, website address and support email address

Logos

The Licensee shall accept Licensor branding, if any, in the main application window, comprising of:

Product logo(s)
Product icon(s)

Intellectual Property

Identification of IP

Any pre-existing Background IP, brought prior to this Agreement execution date, shall be expressly identified to all parties and remains the sole property of the owner.

Background IP

Ownership of Background IP will remain vested in the owner, or other third party, as the case may be. This may include examples and supplementary data, tutorials, online articles and other online content.

Licensor IP

The Product and any IPR subsisting in the Product, remains the sole property of the Licensor unless stated otherwise.

Foreground IP Rights

All Foreground IP created after this Agreement execution date vests in the Licensee immediately upon its creation.

Third Party IPR

Part of the Product is based on third party software or derivations thereof. The Licensor acknowledges the IPR of all third party libraries in the documentation supplied with the Product.

IPR Infringement

Infringement of Third Party IPR

The Licensee shall indemnify, and keep indemnified, the Licensor, and any person acting on its behalf, against any and all liability, loss, damage, costs (including the cost of any settlement and legal costs and expenses on a solicitor/client basis), compensation, or expense whatsoever incurred by them, arising out of any action, claim or proceeding brought by a third party (either within or outside Australia) in respect of:

an infringement or alleged infringement of that third party’s IPR arising from the Licensee’s use of the Product and/or Source Code or through the exploitation or otherwise of the Licensee’s Product; or
breach or alleged breach of a duty of confidentiality owed to that third party, where the breach is caused by an act or omission on the part of the Licensee or its officers, employees, agents or subcontractors (whether or not such act or omission constitutes a breach of this Agreement

Infringement of Licensee IPR

The Licensee must notify the Licensor immediately after the Licensee becomes aware of any Infringement or potential Infringement by a third party of the Licensee’s IPR subsisting in the Product and/or Source Code
The Licensee must provide, at the Licensor’s cost, all assistance reasonably requested by the Licensor relating to any proceedings the Licensee may institute to preserve its IPR (“Proceedings”).
The Licensee must not otherwise infringe on the Licensor’s IPR.
The Licensor will have sole conduct and control of any Proceedings against the third party, and of any resulting settlement negotiations, but must promptly notify the Licensee of the status of the Proceedings when requested.

Confidentiality

Each party (Recipient) must in relation to the Confidential Information of the other party (Discloser):

keep it confidential;
use it only as permitted under this Agreement and only disclose it to employees, contractors and agents with the express written consent of the Discloser;
not copy it or any part of it that is in material form other than as strictly necessary and must mark any such copy ‘Confidential ‑ (Discloser)’; and
promptly comply with any request by the Discloser to return or destroy any or all copies of Confidential Information unless required by law to be retained.

The Recipient must:

implement security practices against unauthorised copying, use and disclosure (whether that disclosure is oral, in writing or in any other form); and
not permit the transmission of the Discloser’s Confidential Information by electronic communications including facsimile and by electronic mail to any person without the Licensor’s consent.
immediately notify the Discloser if the Recipient becomes aware of any:
unauthorised copying, use or disclosure in any form; or
disclosure required by law

Warranties and Exclusions

The Licensor does not give any warranties as to the merchantability, fitness for a particular purpose of the Product and/or Source Code or non infringement of third party IPR.
The Licensor warrants that it has the right to grant all licences contemplated by this Agreement.
Each party excludes all terms, conditions and warranties implied by custom, the general law or statute except any warranties that cannot be excluded by law (Non-Excludable Warranty).
A party’s liability to the other party for breach of any Non-Excludable Warranty is limited, at the first party’s option, to (for services):
1. providing those services again; or
2. paying the cost of having those services provided again;
A party’s liability to the other party for breach of any Non-Excludable Warranty is limited, at the first party’s option, to (for goods):
1. replacing the goods that breach the warranty;
2. paying the cost of replacing the goods that breach the warranty.
The entire risk as to the quality and performance of the Product and/or Source Code is the responsibility of the Licensee.
The Licensee assumes the entire cost of any service and repair of the Product and Source Code used under this Agreement

Limitation of Liability

To the extent permitted by law, the Licensor’s liability under this Agreement is limited to an amount equal to the Licence Fee.
To the extent permitted by law. the Licensor’s liability to the Licensee excludes consequential loss in connection with this Agreement, where consequential loss means any loss of profit, loss of income, loss of opportunity, business interruption, data, goodwill or other pecuniary loss of the Licensee; and includes any loss or damage suffered or incurred by the Licensee in relation to a third party claim

End of Agreement

Either party may end this Agreement immediately by giving notice to the other party if that other party:

breaches any provision of this Agreement and fails to remedy the breach within 30 days after receiving notice requiring it to do so; or
breaches a material provision of this Agreement where that breach is not capable of remedy.

A party may end this Agreement immediately by giving notice to the other party if any of the following events happen to that other party:

there is a Change in Control of that other party;
there is a change in the direct or indirect beneficial ownership or control of the party which would affect its ability to comply with its obligations under this Agreement;
it disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
it ceases to carry on business;
it ceases to be able to pay its debts as they become due;
any step is taken by a mortgagee to take possession or dispose of the whole or any part of its assets, operations or business;
any step is taken to enter into any arrangement between the party and its creditors;
any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of its assets or business; or
where the party is a partnership, any step is taken to dissolve, or which has the effect of dissolving, that partnership

After End of Agreement

After the end of the Agreement:

each party’s (first party) right to use Confidential Information of the other party ceases
the Licensor may suspend the Licensee’s membership to the Licensor’s website and access to the associated forums, online magazines and newsletters at the discretion of the Licensor;
accrued rights or remedies of either party are not affected

Miscellaneous

Licensee Outside of Australia

If the Licensee is located outside of Australia, the Licensee shall be responsible for complying with any local laws in its jurisdiction which might impact on the Licensee’s right to import, export or use the Product and/or Source Code and the Licensee warrants that it has complied with any regulations or registration procedures required by any applicable law to make this Licence enforceable.

All correspondence between the Licensee and Licensor will be in English.

Notices

A party notifying or giving notice under this Agreement must give notice in writing.

General

This Agreement does not create a relationship of employment, agency or partnership between the parties
The rights and obligations of each party under this Agreement are several, not joint or joint and several
Each party must do or cause to be done all things necessary or desirable to give effect to, and refrain from doing things that would hinder performance of, this Agreement
A party must not assign or attempt to assign or otherwise transfer any right arising out of this Agreement without the written consent of the other party
The failure of a party at any time to insist on performance by the other party of any obligation under this Agreement is not a waiver of its right:
1. to insist on providing of, or to claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and
2. at any other time to insist on performance of that or any other obligation of the other party under this Agreement
If part or all of any clause of this Agreement is illegal or unenforceable it will be severed from this Agreement and will not affect the continued operation of the remaining provisions.
Unless specifically stated as otherwise, all payments are to be made in Australian or US dollars.
This Agreement:
1. records the entire Agreement between the parties and supersedes all earlier Agreements and representations by the parties about its subject matter;
2. may only be altered by notifying all parties, in writing or electronic communications
This Agreement is governed by the laws of South Australia.
In this Agreement, unless the context otherwise requires:
1. a reference to any legislation or legislative provision is a reference to that legislation as at the date of this agreement and includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
2. the singular includes the plural and vice versa;
3. a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
4. a reference to any gender includes all genders;
5. a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure, or exhibit of or to this agreement;
6. a recital, schedule, annexure or a description of the Parties forms part of this agreement;
7. a reference to any deed or document is to that deed or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
8. a reference to any party to this agreement, or any other document or arrangement, includes that party's executors, administrators, substitutes, successors and permitted assigns;
9. where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
10. where an expression is defined anywhere in this agreement, it has the same meaning throughout; and
11. a reference to any instrument (such as an agreement, deed poll or document) is to that instrument (or, if required by the context, to a part of it) as amended, novated, substituted or supplemented at any time and from time to time;
12. a reference to '$' is a reference to the lawful currency of Australia or US, as the relevant context implies or explicitly states with a preceding AUD or USD prefix;
13. a reference to 'month' is a reference to a calendar month;
14. including and similar expressions are not and must not be treated as words of limitation;
15. the table of contents and headings are for convenience only and do not affect interpretation; and
16. a reference to a trust is a reference to the trustee of that trust in its capacity as trustee of the trust

Please print this page to retain your hard-copy of the G3E License Agreement.

Pages

Monday 10 October 2011

The Glint 3d License Agreement