Windows Licensing Program license agreement

This License Agreement (“Agreement”) is a legal agreement between your company, a Microsoft Direct OEM for a Windows operating system (“Licensee”) and Dolby Laboratories Licensing Corporation, a New York corporation, and Dolby International AB, a Swedish company residing in The Netherlands (collectively “Dolby”).

LICENSEE IS BOUND BY THIS AGREEMENT BY ACCEPTING THIS AGREEMENT (WHETHER BY CLICKING “ACCEPT” OR SIGNING), OR BY COPYING, DISTRIBUTING, OR SELLING THE SOFTWARE.  IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK “ACCEPT” AT THE END OF THIS AGREEMENT OR SIGN THIS AGREEMENT, OR OTHERWISE IMPORT, COPY, DISTRIBUTE OR SELL THE SOFTWARE.

The person accepting this Agreement on behalf of Licensee represents and warrants to Dolby that he or she has the legal authority to accept this Agreement on behalf of Licensee and to bind Licensee to this Agreement.  If the individual is not so authorized, he or she shall be personally liable for Licensee’s obligations under this Agreement.

1. DEFINITIONS.  Except as otherwise defined, the following terms have the meanings defined below:

“Dolby Digital Plus Consumer Decoder” means Dolby’s Dolby Digital Plus Consumer Decoder technology used for processing of up to 5.1 channels of audio.

“Dolby Digital Consumer Encoder” means Dolby’s Dolby Digital Consumer Encoder technology used for processing of up to 2 channels of audio.

“Microsoft” means Microsoft Corporation.

“Microsoft Direct OEM” means an OEM customer of Microsoft for Windows who is under a direct contractual relationship with Microsoft under which Licensee obtains Windows from Microsoft for installation on PCs to be sold by Licensee.

“Non-Disc Field of Use” means the Software does not enable a PC to play back CSS/AACS protected content sourced from DVD/Blu-ray Discs, whether played from the original disc or a copy, or enable hardware support for a digital TV tuner (ATSC, DVB, ISDB, or SB-DTV).

“PC” means personal computers and tablets on which Windows is installed.  This does not include application-specific devices that are designed for a dedicated function (such as point-of-sale terminals, automated teller machines and voting machines), automotive computing devices and hybrid consumer electronic/personal computer devices (such as set-top boxes, DVD players, residential gateways, game consoles, media jukeboxes, etc.).  Dolby may determine which products are included within the definition of “PC.” 

“Software” means the Dolby Digital Plus Consumer Decoder and Dolby Digital Consumer Encoder technologies included in Windows as obtained by Licensee from Microsoft for installation on a PC sold by Licensee.

“Windows” means Microsoft’s Windows 8 or Windows 10 operating system for a PC and its successors.

“Year” means, in the case of the first Year, the calendar quarter when this Agreement was accepted or signed and the following four calendar quarters, while a subsequent Year after the first Year will consist of the four calendar quarters thereafter.

2. LICENSE GRANT.  Subject to Licensee’s compliance with this Agreement, Dolby grants Licensee, under Dolby’s intellectual property rights, a nonexclusive, revocable, limited, non-transferable license to reproduce the Software for sale only when installed on a maximum of 100,000 PCs per Year, and to distribute and sell such PCs for use in the Non-Disc Field of Use.  If Licensee is affiliated with another Microsoft Direct OEM for Windows, total combined sales by Licensee and its affiliates will count towards the 100,000 annual limit on sales.  This license is non-sublicensable, provided Licensee may allow subcontractors to manufacture PCs containing the Software as long as Licensee is liable for all acts or omissions of any such subcontractors.

3. RESERVATION OF RIGHTS AND OWNERSHIP.  Dolby reserves all rights not expressly granted to Licensee in this Agreement.  The Software is protected by copyright, patent and/or other intellectual property laws and treaties and contains trade secrets of Dolby. Dolby owns 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.

4. LIMITATIONS ON LICENSE.  Licensee is expressly prohibited from reproducing, distributing or selling the Software in any manner not specifically authorized in this Agreement.  Licensee 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.  Licensee 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 Licensee by this Agreement.

5. NEW AGREEMENT.  If at any time Licensee anticipates distributing more than 100,000 PCs that include the Software per Year or any PCs that are not limited to the Non-Disc Field of Use, Licensee will notify Dolby at Windows8Licensing@Dolby.com.  If eligible, Dolby will offer Licensee the opportunity to sign a new, royalty-bearing agreement that expands Licensee’s rights to distribute more than 100,000 such PCs containing the Software per Year.

6. AUDIT.  At Dolby’s written request, not more frequently than once per Year, Licensee shall furnish Dolby with a signed certification from an officer or director of Licensee verifying Licensee’s compliance with this Agreement, and that the Software has not been installed on more than 100,000 PCs in any Year.  Licensee will maintain records relating to the Software until 3 years after termination of this Agreement.  Licensee acknowledges that Dolby may receive reports from Microsoft.  Licensee authorizes Dolby to obtain Licensee information from Microsoft about the business Microsoft conducts with Licensee relevant to this Agreement.  On 30 days’ notice, Dolby may audit Licensee’s records regarding its compliance with the terms of this Agreement and the number of copies of Software distributed by Licensee or on Licensee’s behalf.  Licensee shall cooperate with Dolby’s audit and provide reasonable assistance and access to information in a timely manner, including without limitation, sufficient records showing all distribution of the Software by or for Licensee.  If any audit discloses non-compliance with this Agreement, Licensee shall pay within 30 days of written notification any fees applicable to such non-compliance, and Dolby’s reasonable cost of conducting the audit.  Dolby shall not be responsible for Licensee’s costs incurred in cooperating with the audit.

7. REPRESENTATIONS.  Licensee represents and warrants that (i) Licensee is a Microsoft Direct OEM, (ii) Licensee will, at all times, remain a Microsoft Direct OEM while exercising any rights granted by this Agreement, and (iii) Licensee will not distribute PCs with any Dolby technologies, other than (x) Dolby technologies licensed under this Agreement, or (y) Dolby technologies obtained from another licensee of Dolby that has paid royalties for such technologies to Dolby.   

8. INDEMNIFICATION.  Licensee 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) Licensee’s breach of any term of this Agreement; (ii) the making, using or selling by Licensee of any product with the Software; and (iii) any claim of infringement of any third-party intellectual property.

9. TERMINATION.  Without prejudice to any other rights, Dolby may immediately terminate this Agreement if Licensee or Licensee’s subcontractor breaches this Agreement.  On termination, Licensee must immediately cease reproducing, distributing or selling the Software, Licensee’s subcontractor(s) must immediately cease any manufacture of PCs containing the Software, and Licensee and Licensee’s subcontractor(s) shall destroy all copies of the Software and all of its component parts.  All sections other than Section 2 (License Grant) survive any such termination. 

10. DISCLAIMER OF WARRANTIES.  DOLBY MAKES NO WARRANTIES REGARDING THE SOFTWARE.  FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DOLBY PROVIDES THE SOFTWARE AS IS, AND HEREBY DISCLAIMS 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 LICENSEE MAY SELECT FOR USE, THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ANY 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.

11. LIMITATION OF LIABILITY. IN NO EVENT WILL DOLBY BE LIABLE TO LICENSEE 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.  THE ENTIRE LIABILITY OF DOLBY UNDER ANY PROVISION OF THIS AGREEMENT AND LICENSEE’S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO USD$500.00.  THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTION 10 AND THIS SECTION 11) 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.

12. 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. 

13. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws, without respect to conflict of laws provisions, and Licensee shall submit to the jurisdiction of the court, set forth below based on the applicable region where Licensee is located: 

Region	Governing Law	Court Jurisdiction
European Union and UK	England	English Courts
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 one arbitrator to be appointed according to the UNCITRAL Rules. The language of the arbitration shall be English.
All other countries	State of California, USA	State or Federal Courts located in San Francisco, CA

Notwithstanding the foregoing, nothing in this Section 13 prevents 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 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 this Agreement.

14. COMPLIANCE WITH APPLICABLE LAW.  Licensee shall comply with all applicable local laws and regulations that may govern Licensee’s use of the Software.  Licensee understands that Dolby and Dolby’s products are 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 the Treasury List of Specially Designated Nationals; and Dolby 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.  Accordingly, Licensee will not knowingly assist or participate in any such diversion or other violation of any applicable U.S. laws and regulations and, at Dolby’s request, will certify to Dolby as to Licensee’s compliance with these provisions.  Licensee shall not sell any products covered by this Agreement in countries or to users not approved to receive such products under applicable U.S. laws and regulations, and will abide by such laws and regulations.

15. TAXES.  Any payments required in this Agreement do not include sales, use, excise, VAT, or similar taxes, and Licensee 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 applicable to any payments due hereunder.  In lieu of a specific tax, Licensee may provide Dolby with a tax exemption certificate acceptable to the applicable taxing authority.

16. MISCELLANEOUS.  This Agreement is the entire agreement between Licensee and Dolby relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations about the Software or any other subject matter covered by this Agreement.  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.  If the invalidity or unenforceability of any provision makes a fundamental purpose of the Agreement ineffective in the determination of the party asserting its validity or enforceability, that party may immediately terminate the entire Agreement with written notice.