EVOSTREAM MEDIA SERVER END USER LICENCE AGREEMENT (EULA) VERSION 2.0 NOTICE: BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE. "YOU" MEANS (1) THE NATURAL PERSON OR THE ENTITY THAT IS AGREEING TO BE BOUND BY THIS EULA; (2) YOUR EMPLOYEES AND THIRD PARTY CONTRACTORS THAT PROVIDE SERVICES TO YOU; AND (3) ANY OF YOUR CUSTOMERS USING THE SOFTWARE OR ANY SERVICE BASED UPON THE SOFTWARE, AS PERMITTED IN THIS AGREEMENT. YOU SHALL BE LIABLE FOR ANY FAILURE BY SUCH EMPLOYEES, THIRD PARTY CONTRACTORS OR CUSTOMERS TO COMPLY WITH THE TERMS OF THIS EULA. THIS EULA IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT DOWNLOADS, INSTALLS, COPYS OR USES THE SOFTWARE AND ANY PERSON OR ENTITY THAT DOWNLOADS, INSTALLS, COPYS OR USES THE SOFTWARE ON ANOTHER PERSON'S OR ENTITY'S BEHALF. YOU AGREE THAT THIS EULA IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. 1. DEFINITIONS 1.1. "Content" means any video, audio, data and any other output of the Software and any video, audio, data or other input into the Software. 1.2. "Instance" means one unique installation of the Software running on a computer, whether used for development, production, service or testing purposes. 1.3. "License File" means the License.lic file, provided by EvoStream and which You use to run the Software. 1.4. "Computer" means a single physical or virtual computer running a single operating system. Computer also includes devices, such as RaspberryPi, ARM-based systems on a board, which run some Operating System supported by the Software 1.5. "Software" means the EvoStream Media Server, EMS Web Services, EMS Web UI and any other software provided in support of the EvoStream Media Server, as well as the application programming interfaces, associated media, printed materials, online or electronic documentation, and any updates and maintenance releases thereto. 1.6. "Sample Code" means any software code provided by EvoStream to be used with or in conjunction with the Software. 1.7. "EvoStream" means EvoStream Inc, a California Corporation with its principal place of business at 909 Prospect Place, Suite 200, La Jolla, CA 92037, USA. 2. LICENSE GRANT AND LICENSE RESTRICTIONS 2.1. License 2.1.1. The Software is licensed, not sold. Subject to the terms of this EULA and your License File, EvoStream hereby grants You a world-wide, non-exclusive, non-transferable license, without rights to sublicense, to download, install and use the Software subject to this EULA or any paid licensing agreement with EvoStream, and subsequent License File. 2.1.2. Subject to Section 2.2 (License Restrictions), You are permitted to provide services to third parties under the terms of this EULA. 2.1.3. You are permitted to have the Software and Your License File hosted for you by a third party Computer hosting service. 2.1.4. Unless evidenced to the contrary, You shall be deemed to have licensed the EvoStream Media Server. 2.1.5. EvoStream may, at its sole discretion, modify the Software at any time and without notice to You. 2.1.6. You are not granted any rights or interest in any EvoStream copyrights, trademarks or service marks. Contact EvoStream at sales@evostream.com if You are interested in obtaining a license to use the EvoStream trademarks or service marks in connection with Your use of the Software. 2.1.7. EvoStream retains all rights not expressly granted to You. 2.2. License Restrictions. You shall not: 2.2.1. Remove any titles, trademarks, service marks or trade names, copyright notices, legends, or other proprietary markings on the Software or Sample Code; 2.2.2. Sell, lease, license, sublicense, rent, assign, distribute or otherwise transfer in whole or in part the Software, the License File or Your rights in the Software to another party, including rights on a membership, subscription or hosted basis except as otherwise provided herein. 2.2.3. Modify, repackage or create derivative works based upon the Software; 2.2.4. Decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part; 2.2.5. Bundle or distribute the Software in any manner whatsoever; 2.2.6. Make any changes, modifications or alterations to the EvoStream EULA that is distributed by EvoStream with the Software; or 2.2.7. Make any statements, warranties or representations concerning the Software or Sample Code that exceed or are inconsistent with the documentation provided by EvoStream to You. 2.3. Sample Code. You may download, install, use, copy, modify and distribute Sample Code which is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. 2.4. Outsourcing and Third Parties. You are responsible for ensuring that any third party or facilities management contractor that operates the Software or Sample Code on Your behalf fully complies with the terms of this EULA. You shall remain completely liable for any and all acts and omissions of such third parties. 2.5. Customers. You are responsible for ensuring that any of Your customers using the Software or Sample Code or any service based upon the Software or Sample Code comply with the terms of this EULA. You shall remain completely liable for any and all acts and omissions of such customers. 2.6. Title. EvoStream retains all right, title, and interest in and to the Software, copies of the Software and Sample Code and in all related copyrights, trade secrets, patents, trademarks, service marks, domain names and any other intellectual and industrial property and proprietary rights, including but not limited to any registrations, applications, renewals, and extensions of such rights. 2.7. Government Restrictions. You may not export or re-export the Software except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions. 3. CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS 3.1. Any License File to the Software is the confidential information of EvoStream. 3.2. The Software and any copies thereof are the exclusive intellectual property of EvoStream and protected by copyright laws and international treaties as well as other intellectual property laws and treaties. You agree that any disclosure by You of EvoStream's confidential information will cause immediate, irreparable harm to EvoStream for which equitable remedies may be awarded by a court of competent jurisdiction. 3.3. You hereby agree to maintain the confidentiality of the Software, License File and other intellectual property of EvoStream using at least as great a degree of care as You use to maintain the confidentiality of Your own most confidential information. 4. TERMINATION 4.1. Termination. EvoStream may terminate this EULA immediately and without notice if You fail to comply with any term of this EULA. 5. LIMITED WARRANTY AND LIMITATION OF LIABILITY 5.1. Limited Warranty. EvoStream warrants that the media, if any, on which the Software is delivered will be free of defects and that the Software will substantially conform to the description contained in the applicable end user documentation in each case for a period of 90 days after the date of shipment of the License File. EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVOSTREAM PROVIDES THE SOFTWARE WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS EULA OR COMMUNICATION WITH YOU, AND EVOSTREAM SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN THE EVENT YOU OBTAINED THIS LICENSE FROM A RESELLER OR DISTRIBUTOR, EVOSTREAM SHALL HAVE NO OBLIGATION TO YOU UNDER ANY WARRANTY GIVEN BY SUCH RESELLER OR DISTRIBUTOR, OR THEIR RESPECTIVE AGENTS OR EMPLOYEES. 5.2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EVOSTREAM BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. EVOSTREAM'S LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, EXCEED THE LICENSE FEES, IF ANY, PAID BY YOU FOR THE SOFTWARE LICENSED TO YOU UNDER THIS EULA. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER EVOSTREAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 6. GENERAL 6.1. Entire Agreement. This Agreement sets forth EvoStream's entire liability and Your exclusive remedy with respect to the Software and Sample Code. This Agreement may be replaced in part or in whole by a separate Licensing Agreement entered into by You and EvoStream. 6.2. Headings. Headings under this EULA are intended only for convenience and shall not affect the interpretation of this EULA. 6.3. Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. This EULA may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted. 6.4. Severability. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected. 6.5. Independent Contractors. This EULA shall not be construed to create any employment, partnership, joint venture, franchise or agency relationship between You and EvoStream or to authorize either party to enter into any commitment or agreement binding on the other party. 6.6. No Responsibility for Content. You acknowledge and understand that the Content resulting from the use of the Software is entirely the responsibility of the person from whom such Content originated. EvoStream will not be liable for any Content resulting from the use of the Software. 6.7. Representations. You represent and warrant that You are authorized to enter into this EULA and comply with its terms. Furthermore, You represent and warrant that You will at any and all times meet Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Software. 6.8. Force Majeure. Neither party shall be in default by reason of any failure in performance of this EULA if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including but not limited to, default by subcontractors or suppliers, acts of God or of the public enemy, terrorist act, United States of foreign governmental acts in either a sovereign or contractual capacity, fire, flood, epidemic, restriction, strikes or freight embargos. 6.9. Governing Law. This EULA will be governed by California law and the United States of America, without regard to its choice of law principles, and You and EvoStream hereby agree to submit to the exclusive jurisdiction and venue of the United States Federal District Court for the Southern District of California. The United Nations Convention for the International Sale of Goods shall not apply. 6.10. Contact Information. If You have any questions about this EULA, please contact EvoStream at info@evostream.com. 6.11. Survival of Terms. The following terms shall survive termination of this EULA: Section 1 (Definitions); Section 2.2 (License Restrictions); Section 2.4 (Outsourcing and Third Parties); Section 2.5 (Customers); Section 2.6 (Title); Section 3 (Confidentiality and Intellectual Property Rights); Section 5 (Limited Warranty and Limitation of Liability); and Section 6 (General). 7. ADDITIONAL LICENSES 7.1. LUA Copyright (C) 1994-2008 Lua.org, PUC-Rio. All rights reserved. Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. 7.2. TinyXML www.sourceforge.net/projects/tinyxml Original code (2.0 and earlier )copyright (c) 2000-2006 Lee Thomason (www.grinninglizard.com) This software is provided 'as-is', without any express or implied warranty. In no event will the authors be held liable for any damages arising from the use of this software. Permission is granted to anyone to use this software for any purpose, including commercial applications, and to alter it and redistribute it freely, subject to the following restrictions: 1. The origin of this software must not be misrepresented; you must not claim that you wrote the original software. If you use this software in a product, an acknowledgment in the product documentation would be appreciated but is not required. 2. Altered source versions must be plainly marked as such, and must not be misrepresented as being the original software. 3. This notice may not be removed or altered from any source distribution. 7.3. AVConv/LibAV http://libav.org The EvoStream Media Server distributes the AVConv program completely unmodified in binary form. The EvoStream Media Server does not link to or directly incorporate the AVConv/LibAV libraries in any way. The EvoStream Media Server uses AVConv explicitely as a stand-alone application. AVConv is licensed under the terms of the LGPL v2 and/or GPL v2. By using AVConv as part of the EvoStream Media Server you are, in turn, complying with the terms of the GPL v2 so long as you do not disassemble or modify the AVConv executable in any way. Source code for the AVConv program may be found at http://libav.org