Gelato End User License Agreement

IMPORTANT-READ BEFORE DOWNLOADING, COPYING, INSTALLING OR USING.

Do not install or use NVIDIA Gelato and/or NVIDIA Gelato Pro and any associated materials and documentation (collectively, the "Software") until you have carefully read and agreed to be bound by the following Gelato End-User License Agreement ("Agreement"). The term "Software" shall also include any third party software incorporated into Gelato and/or Gelato Pro, and any upgrades, modules, features, tools (including without limitation, Sorbetto™, the Mango™ Plug-In, and/or image viewers) and modified versions or updates of the Software provided to you by NVIDIA Corporation and its subsidiaries ("NVIDIA") pursuant to the NVIDIA Gelato Maintenance and Support Agreement. You may obtain services offered under the NVIDIA Gelato Maintenance and Support Agreement by a purchase of license(s) for Gelato Pro and execution of such agreement.

The licensing terms for Gelato and Gelato Pro differ. When licensing a version of Gelato offered at no charge by NVIDIA, the terms and conditions in Section 1 shall apply. When using a copy of Gelato Pro licensed from NVIDIA, the terms and conditions in Section 2 shall apply.

By executing this Agreement by clicking the "ACCEPT" or "YES" button, by typing your acceptance of this Agreement during the download/installation process, and/or by copying, installing or using this Software, you are becoming a party to, indicating your consent to, and agreeing to be fully bound by the terms and conditions of this Agreement, without modification. If you do any of the foregoing on behalf of a company or organization, you represent and warrant that you have the requisite authority to bind such company or organization to the terms and conditions of this Agreement. If you do not understand and accept all of the following terms and conditions, click the "DO NOT ACCEPT" or "NO" button, and you shall not execute this Agreement or copy, install or use the Software.

Gelato License, Limited Warranty, and Limitation of Liability.
1. Gelato License. Subject to the terms and conditions of this Agreement, NVIDIA hereby grants you a limited, personal, revocable, non-exclusive license to (a) install and use Gelato in object code form only, and (b) make back-up copies of Gelato solely for archival purposes; provided, that, any and all copies of Gelato made, as permitted hereunder, must contain all of the original and unmodified proprietary and copyright notices, including, but not limited to, this Agreement.
2. License Keys: NVIDIA may include with Gelato additional features and computer programs that are not covered by this license and access to such features or programs is controlled through use of a License Key (as defined in Section 2(c) below). Inclusion of such additional features or computer programs in no way implies a license from NVIDIA and you shall not access or use such features or programs without express permission and receipt of a valid License Key from NVIDIA.
3. No Support. You agree that NVIDIA will not provide any support or maintenance for Gelato under this Agreement.
4. No Warranty. Gelato and any other materials provided by NVIDIA hereunder are provided "as is." NVIDIA disclaims all warranties, express, implied or statutory, including, without limitation, the implied warranties of title, merchantability, fitness for a particular purpose and noninfringement.
5. Limitation of Liability. NVIDIA and its licensors shall not be liable to you, your customers, or any other person or entity claiming through or under you for any loss of profits, income, savings, or any other consequential, incidental, special, punitive, direct or indirect damages (whether in an action in contract, tort or based on a warranty), even if NVIDIA or its licensors have been advised of the possibility of such damages.
Gelato Pro License, Limited Warranty, and Limitation of Liability
1. Gelato Pro License: Subject to the terms and conditions of this Agreement and payment of the appropriate license fees, NVIDIA hereby grants you a limited, personal, revocable, non-exclusive license to (a) install Gelato Pro in object code form only to use Gelato Pro on your internal computer systems at the site(s) designated in the License Key , provided that the total number of simultaneous executions of Gelato Pro shall not exceed the number of licenses you have purchased and (b) make back-up copies of Gelato Pro solely for archival purposes; provided, that, any and all copies of Gelato Pro made, as permitted hereunder, must contain all of the original and unmodified proprietary and copyright notices, including, but not limited to, this Agreement ("Commercial License").
2. Evaluation License: In the event that Gelato Pro is licensed to you free of charge for internal evaluation purposes, you may use Gelato Pro in object code form only during the period allowed under the License Key , solely and exclusively for your internal, non-commercial, non-revenue-generating, non-production purposes to evaluate Gelato Pro ("Evaluation License"). Notwithstanding anything to the contrary in this Agreement, under the Evaluation License Gelato Pro is provided "as is" without any warranty of any kind and NVIDIA or its licensors shall not be liable to you, your customers, or any other person or entity claiming through or under you for any loss of profits, income, savings, or any other consequential, incidental, special, punitive, direct or indirect damages (whether in an action in contract, tort or based on a warranty), even if NVIDIA or its licensors have been advised of the possibility of such damages..
3. License Keys: NVIDIA employs a license key system to enable use of features and computer programs in the Software that are not licensed under Section 1 above ("License Keys"). NVIDIA and/or a third party authorized by NVIDIA will deliver the License Key(s) to you after NVIDIA receives from you all fees and information required to generate the License Key, including such information as (i) the type of license granted (e.g., Commercial License or Evaluation License), (ii) the number of copies licensed, (iii) duration of the license, and (iv) location where the Software will be used.
4. Support. The Gelato Maintenance and Support Agreement defines the maintenance and support services offered by NVIDIA to licensees of Gelato Pro. All maintenance and support services are governed by such agreement.
5. Subject to the terms and conditions of this Agreement, NVIDIA warrants that Gelato Pro licensed under the Section 2(a) of this Agreement will perform substantially in accordance with the specifications set forth in the accompanying documentation for a period of thirty (30) days from the date of delivery to you ("Warranty Period"). If Gelato Pro does not perform substantially in accordance with the the specifications set forth in the accompanying documentation during the Warranty Period, NVIDIA's entire liability and your exclusive remedy shall be, at NVIDIA's sole option, either to: (a) return the price paid by you for the non-conforming Gelato Pro; or (b) repair or replace Gelato Pro at no charge, if it is returned to NVIDIA during the Warranty Period at its address below along with proof of payment. This warranty shall not be valid if Gelato Pro has been subject to any misuse or modifications. This Section 2(e) shall not apply to Gelato, Gelato Pro licensed under the Evaluation License, or to Pre-Release Software (as defined in Section 2(h) below.
6. To the maximum extent permitted by applicable law, NVIDIA and its licensors disclaim all other warranties and conditions, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, with regard to Gelato Pro, and the provision of, or failure to provide, support services. This limited warranty gives you specific legal rights. You may have others, which vary from state/jurisdiction. NVIDIA does not warrant that Gelato Pro will meet your requirements or that Gelato Pro’s operation will be error free or uninterrupted.
7. To the maximum extent permitted by applicable law, in no event shall NVIDIA or its licensors be liable for any indirect, special, incidental or consequential damages arising out of or in connection with this Agreement, even if NVIDIA or its licensors have been advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort or otherwise) upon which any such claim is based. In any case, NVIDIA's entire liability under any provision of this Agreement shall be limited to the greater of the amount actually paid by you for the affected software or U.S.$5.00.
8. Pursuant to a Gelato Maintenance and Support Agreement, NVIDIA may make available to you pre-release versions of Gelato Pro designated as "alpha," "beta," or "release candidate" ("Pre-Release Software") and License Keys for these pre-release versions. Such pre-release versions may be used for internal, non-commercial, non-revenue-generating, and non-production purposes without affecting the number of commercial licenses granted you. In the event you use such pre-release versions for commercial, revenue-generating, or production purposes, the total number of Software licenses in use, including without limitation, Pre-Release Software in use, shall not exceed the total number of licenses purchased by you. Notwithstanding anything to the contrary in this Agreement, pre-release versions of Gelato Pro is provided "as is" without any warranty of any kind and NVIDIA and its licensors shall not be liable to you, your customers, or any other person or entity claiming through or under you for any loss of profits, income, savings, or any other consequential, incidental, special, punitive, direct or indirect damages (whether in an action in contract, tort or based on a warranty), even if NVIDIA or its licensors have been advised of the possibility of such damages.
9. The Pre-Release Software and all information disclosed by NVIDIA to you hereunder or otherwise in connection with the Pre-Release Software, including without limitation source and object code, performance data, features, and other information relating to or obtained from the Pre-Release Software, shall be deemed to be "Confidential Information" of NVIDIA. Confidential Information disclosed in tangible form may or may not be marked with a "confidential," "proprietary," or other similar legend. You shall not disclose the Confidential Information to any third party without the prior written approval of NVIDIA, and you agree to maintain the Confidential Information with at least the same degree of care you use to protect your own similar categories of confidential and proprietary information, but in no event less than a reasonable degree of care under the circumstances. You shall not be liable for disclosure of Confidential Information that: (a) was in the public domain at the time it was communicated to you by NVIDIA, or entered the public domain subsequent to the time it was communicated to the you by NVIDIA other than by a breach of this Agreement by you; (b) is or was rightfully received or known by you without restriction on disclosure or any obligation of confidentiality; (c) is or was independently developed by you or your employees; (d) is or was generally made available to third parties by NVIDIA without restriction on disclosure; or (e) is required to be disclosed in response to a valid order by a court or other governmental body, provided that you provide NVIDIA with prior written notice of such disclosure in order to permit NVIDIA to seek confidential treatment of such information.
10. If you use Pre-Release Software, either for evaluation or production purposes, you shall provide feedback to NVIDIA concerning the functionality and performance of the Pre-Release Software from time to time as reasonably requested by NVIDIA, including, without limitation, identifying potential errors and improvements ("Feedback"). You acknowledge and agree that Feedback provided to NVIDIA in connection with the Pre-Release Software may be used by NVIDIA to improve or enhance its products and you hereby assign to NVIDIA all right, title and interest in and to all Feedback, reports, designs, inventions, specifications and other materials developed under this Agreement , whether prepared by you or by NVIDIA. All such Feedback, reports, designs, inventions, specifications and other materials shall be deemed NVIDIA "Confidential Information".
Restrictions. In addition to the license restrictions set forth above, you shall not:
1. Modify or create any derivative works of the Software and/or any License Key contained therein or delivered separately. For the avoidance of doubt, plug-ins, extensions, and other computer programs that make use of the Gelato API without modification are not considered derivative works;
2. Attempt to disable the Software and/or any License Key contained therein or delivered separately by any means or in any manner;
3. Attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software or any License Key contained therein or delivered separately (except to the extent applicable laws specifically prohibit such restriction);
4. Redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer the Software and/or the License Key contained therein to any third party. If you wish to incorporate or bundle the Gelato or Gelato Pro into or with another software product, you must execute a separate agreement with NVIDIA. If you wish to do so, contact gelatoinfo@nvidia.com for more information;
5. Remove or alter any patent, copyright, trademark, logo, or other proprietary notice, legend, symbol or label in the Software and any License Key contained therein or delivered separately;
6. Make use of the names "NVIDIA," "Gelato," "Gelato Pro," "Sorbetto" or any other trademark, logo, legend, symbol, or label owned by NVIDIA without express permission from NVIDIA; or
7. Allow others to do any of the foregoing.
Ownership. Except as expressly provided herein, all right, title and interest in and to all copies of the Software, including, without limitation, all patent, copyright, trademark, trade secret and/or any and all other intellectual property rights, remains with NVIDIA and its third-party suppliers, and NVIDIA grants no express or implied right and/or license under its or any of its third-party suppliers' patents, copyrights, trademarks, trade secrets or other intellectual property rights. The Software is copyrighted and otherwise protected by the laws of the United States and other countries, and international treaty provisions. You agree that you will take no action that may jeopardize, limit, or interfere in any way with NVIDIA's or its third party suppliers' ownership or other interest and/or rights regarding the Software.
Termination. This Agreement shall immediately and automatically terminate on the date set forth in the License Key that shall be separately forwarded to you, and you shall comply with the terms of this Section 5 herein upon such termination. NVIDIA may, without prejudice to any other rights under this Agreement or applicable law, terminate the license granted in this Agreement at any time without notice to you if you fail to comply with any of the terms and conditions of this Agreement. In addition to the foregoing, if you commence or participate in any legal proceeding against NVIDIA, then NVIDIA may, in its sole discretion, suspend or terminate all license grants and any other rights provided under this Agreement during the pendency of such legal proceedings. Upon any termination of this Agreement, all rights granted to you under this Agreement shall immediately terminate, and you shall immediately cease any use of the Software and return to NVIDIA or destroy any and all copies of the Software, embodied in any medium, in your possession and certify in writing to NVIDIA that the foregoing has been accomplished within ten (10) days from the termination date. In addition to the foregoing, NVIDIA may terminate this Agreement without cause upon providing you with thirty (30) days’ prior written notice.
Miscellaneous.
1. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof;
2. This Agreement may only be modified by mutual assent of both parties of the revised terms hereof;
3. This Agreement and any dispute arising out of it shall be governed by the laws of the State of Delaware, USA, excluding its principles of conflicts of law;
4. All disputes relating to this Agreement shall be brought exclusively in the state and/or federal courts in Santa Clara County, California, and the parties hereby consent to the personal jurisdiction of such courts;
5. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods;
6. You agree not to export the Software outside the United States except in compliance in all respects with all U.S. and foreign export and re-export laws and regulations applicable to the technology and documentation provided hereunder. You shall be solely responsible for such compliance and shall indemnify NVIDIA for any and all damages and penalties arising from any violation of such laws and regulations.
7. If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent or severed from this Agreement if no such modification is possible, and all other provisions of this Agreement shall remain in full force and effect;
8. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof;
9. The provisions of this Agreement that require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination;
10. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors, and assigns; and
11. Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay), or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
US Government Restricted Rights Legend. The Software is provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the Government is subject to restrictions as set forth in FAR52.227-14 and DFAR252.227-7013 et seq. or its successor. Use of the Software by the Government constitutes acknowledgment of NVIDIA's proprietary rights therein. Contractor or Manufacturer is NVIDIA Corporation, 2701 San Tomas Expressway, Santa Clara, CA 95050.

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