NVIDIA GELATO MAINTENANCE & SUPPORT TERMS AND CONDITIONS NVIDIA will provide the Maintenance & Support Services only under the terms and conditions stated herein. Customer expressly acknowledges and agrees that, by ordering and/or making use of the Maintenance & Support Services, or any part thereof, Customer shall be bound by and adhere to these terms and conditions. ARTICLE 1 - DEFINITIONS Agreement means the terms and conditions for the NVIDIA Gelato Maintenance and Support Services which may be amended by NVIDIA from time to time. Pre-Release Software means versions of the Software provided to the Customer designated as alpha, beta, release candidate or otherwise designated as pre-release versions. Critical Error means an Error that prevents the Software from being used at all, or creates a significant loss of functionality with no reasonably acceptable workaround and that causes the Customer s production to either stop or be so severely affected that Customer cannot reasonably continue work. For clarity, a Critical Error is classified as Priority 0: Showstopper in the NVIDIA bug reporting system ( NV Bugs ). Customer means a licensed user of the Software Product who has purchased Maintenance & Support Services from NVIDIA or its authorized agent. Error means any failure of the Software to conform substantially to the published specifications relating to the Software provided directly to Customer by NVIDIA, which failure is reproducible by NVIDIA on a Qualified System. Fee means the pre-paid and non-refundable amount payable by Customer for Maintenance & Support Services provided hereunder. The amount of the Fee is defined by the Gelato Price List current at the time of purchase of the Software or renewal of Term or by the conditions of sale agreed to by the parties in writing. Unless otherwise agreed in writing, the Fee for the Initial Term (as defined in Section 2.1) is included in the license fee for the Software. Gelato Price List means a schedule of Fees maintained by NVIDIA, which may be updated from time to time and made available to the Customer. Maintenance & Support Services is defined in Article 3. Minor Error means an Error that would be a Critical or Serious Error, but for which a reasonably acceptable workaround is available or an Error that renders less significant features of the Software unavailable with no reasonably acceptable workaround. For clarity, a Minor Error is classified as Priority 2: Fix Before Next Build or lower in NV Bugs. NVIDIA means NVIDIA Corporation or its subsidiaries, as applicable. Product Inquiry means a Customer question or issue relating to one or more features of the Software or a question or issue relating to the manner in which such features may be accessed or used by Customer. 1 Gelato M&S (081506)
Qualified System means a system and, if applicable, graphics adapters, capable of running the Software and that are listed on the NVIDIA qualification chart, as may be updated from time to time by NVIDIA. Serious Error means an Error that renders significant features of the Software unavailable with no reasonably acceptable workaround and that the Customer s production is significantly degraded. For clarity, a Serious Error is classified as Priority 1: Urgent in NV Bugs. Software Support Web Site means an NVIDIA extranet site containing technical information about the Software. NVIDIA shall provide the URL and login information for the site to the Customer. Software means NVIDIA Gelato, the Mango plug-in for Maya, the Amaretto plug-in for 3ds Max, and Sorbetto interactive technology, as licensed by NVIDIA to Customer. Technical Assistance is defined in Article 3.2. Term is defined in Article 2.1. Updates mean minor version releases and/or patch releases (i.e. dot releases) of the Software that are not Upgrades, designated as such by NVIDIA, which may be released during the Term, if any. Upgrades mean major version releases of the Software, designated as such by NVIDIA, which may be released during the Term, if any. ARTICLE 2 TERM, TERMINATION, AND FEE 2.1. Term. The initial term of this Agreement shall commence on the date that Customer first licenses the Software from NVIDIA and will automatically terminate twelve (12) months from such initial licensing date ( Initial Term ) unless renewed by Customer. On or before the expiration of the Initial Term, Customer may, at its option, renew for subsequent, sequential terms of one (1) year by paying the Fee within 30 days of end of the current term ( Subsequent Terms ). The Initial Term and Subsequent Terms together shall constitute the Term of this Agreement. NVIDIA may, at its option, decline to renew Maintenance & Support Services by refusing or returning payment for renewal. 2.2. Suspension, Termination, and Survival. (a) NVIDIA may suspend or terminate provision of Maintenance & Support Services prior to the end of Term if: o Customer fails to make full payment for either Maintenance & Support Services or Software in accordance with Customer s obligations. o Customer is in breach of the Software s End-User License Agreement. o Customer commences or participates in any legal proceeding against NVIDIA, then NVIDIA may, in its sole discretion, suspend or terminate all and any rights provided under this Agreement during the pendency of such legal proceedings. (b) In the event provision of Maintenance & Support Services is suspended for any of the reasons listed in Article 2.2(a) and then reinstated, the Term shall not be extended and will end on the original expiration date, unless renewed for a subsequent Term or Terms. (c) In the event provisions of Maintenance & Support Services are suspended or terminated for any of the reasons listed in Article 2.2(a), no refund of fees paid shall be due to Customer. 2 Gelato M&S (081506)
(d) NVIDIA may, at its option, terminate provision of Maintenance & Support Services prior to the end of any Term for reasons other than those listed in 2.2(a) by refunding the fees paid by the Customer for the unused period on a pro rata basis. (e) Articles 1, 2.2(e), 2.3, 4.3, 5, 6, and 7 shall survive the termination or expiration of this Agreement. 2.3 Fee. (a) Maintenance & Support Services are provided solely during the Term for which Maintenance and Support Services are purchased. All Fees are due in advance. To continue to receive Maintenance & Support Services at the end of the Term, the Customer must renew the Maintenance & Support Services either directly with NVIDIA or through NVIDIA s authorized agent and pay the applicable Fees in advance. Failure to pay in advance may result in additional Fees being levied, as defined by the then-current Gelato Price List. (b) To receive Maintenance & Support Services, Customer must purchase Maintenance & Support Services for all licenses of the Software licensed, including Gelato licenses provided free of charge by NVIDIA. For the avoidance of doubt and by way of example, if Customer purchased ten (10) copies of the Software ( Gelato Pro ) and also uses 100 copies of the free Gelato version, Customer must purchase Maintenance & Support Services for 110 copies. (c) If Customer declines to renew Maintenance & Support Services and subsequently decides to reinstate Maintenance & Support Services, Customer will be charged an additional Fee, as defined by the then-current Gelato Price List, for any Updates and Upgrades released during the period when Maintenance & Support Services had lapsed. (d) Prices for Maintenance & Support Services may be changed at any time without notice to the Customer. Changes to prices will not be applied retroactively. (e) Payments made for Maintenance & Support Services are non-refundable. No refunds or credits will be given for any unused Maintenance & Support Services, except in the case of termination by NVIDIA under 2.2(d). All Fees shall be paid to NVIDIA in the currency of the United States. ARTICLE 3 - MAINTENANCE & SUPPORT SERVICES 3.1 Definition. Maintenance & Support Services consist of: (a) Unlimited access to the Software Support Web Site on the NVIDIA extranet. (b) Unlimited access to certain online discussion forums. (c) Updates to the Software as generally released by NVIDIA during the Term. (d) Upgrades to the Software as generally released by NVIDIA during the Term. (e) Access to Pre-Release Software versions made available by NVIDIA during the Term. (f) Access to NVIDIA s bug-tracking database, allowing Customer file bugs relating to the Software and to obtain status reports relating to any bug filed by Customer. (g) Relocation of any Software node-locked license keys to different machines and floating license keys to different license servers, provided the number of simultaneous executions of the Software does not exceed the number of licenses purchased. 3 Gelato M&S (081506)
(h) Technical Assistance, as defined below. 3.2 Technical Assistance. Technical Assistance consists of: o Timely response, during NVIDIA s support hours, to Customer s request for assistance by an NVIDIA support engineer. o Reasonable commercial efforts by a support engineer and, if deemed warranted by NVIDIA, by Software development engineers, to assist the Customer in resolving its problem. (a) Hours. NVIDIA will make available Technical Assistance to the Customer during normal working hours, Pacific Time, Monday through Friday, excluding holidays and periods when NVIDIA offices are closed. The hours will be posted on the Software Support Web Site and are subject to change from time to time. Support will be available, as a minimum, for five (5) hours each working day. (b) Language. NVIDIA offers Technical Support in English only. (c) Requests for Technical Assistance. (i) Customer may report to NVIDIA any suspected Error and request correction of same, or submit a Product Inquiry. (ii) Customer shall designate no more than three (3) individuals as support points of contact. All requests for Technical Assistance should be initiated by one of these individuals. At its option, NVIDIA may not respond to requests for Technical Assistance initiated by others in the Customer s organization. (iii) Customers shall submit requests for Technical Assistance electronically. For Errors, the preferred method is to report Errors using the NVIDIA bug reporting system, known as NV Bugs, available via the Software Support Web Site. Errors and Product Inquiries may also be submitted via email to the address posted on the Software Support Web Site. (iv) Customers shall include, as a minimum, the following in their request: o Description of the Qualified System upon with the Software is operating, hardware configuration, operating system version, Software version, NVIDIA driver version, and versions of other, non-nvidia software that may be relevant to the issue (e.g., Maya or 3ds Max). o If an Error, a Customer assessment of severity as Critical, Severe, or Minor. Requests that are not classified will be considered Minor. o Description of the Error or Product Inquiry. o Circumstances or stimuli that are perceived to cause Error. o Copies of error logs or other pertinent information. o Preferred means of contact, if other than email. (v) Customers shall cooperate with NVIDIA personnel in resolving the issue. Such cooperation shall include, but not be limited to, providing Error reproduction test cases and other information, executing test cases on Customer systems, installing different versions of NVIDIA drivers on their systems, and installing different versions of or patches to Software on their systems. (d) Response to requests for Technical Assistance. (i) NVIDIA will use reasonable commercial efforts to provide an initial response to the request for Technical Assistance within one (1) hour for Critical Errors, within six (6) 4 Gelato M&S (081506)
hours for Serious Errors, and within twenty-four (24) hours for Minor Errors and Product Inquiries. For requests for Technical Assistance received outside of support hours, these times will be from the start of support hours on the next working day. (ii) The initial response may include: o Acknowledgement of the request. o Requests for further information to define and/or reclassify the problem. o Provision of solutions or workarounds to known problems. o Requests that the Customer attempt particular solutions or workarounds. o Clarification of the functionality and proper operation of the Software. (iii) If the initial response is insufficient to resolve the issue, NVIDIA will continue to use reasonable commercial efforts to resolve the issue, which may include: o Continued contact with the Customer. o Collection of additional information, as necessary. o Reproduction of the Error on NVIDIA systems. o Development of an action plan and escalation path to development engineers. o Reclassification of the severity of the Error, if NVIDIA deems it appropriate. (iv) NVIDIA will: o For Critical Errors, commit full-time resources around the clock until the Error is corrected or a workaround is in place. o For Serious Errors, commit full-time resources during normal business hours until the Error is corrected or a workaround is in place. o For Minor Errors and Product Inquiries, commit resources as available until the Error is corrected, or placed on the development schedule for resolution, or until the Customer s Product Inquiry is answered. (v) Requests for Technical Assistance will be closed when: o Customer cancels the request or otherwise reports the issue is resolved. o NVIDIA corrects the Error by one of the following: o Providing a patch to the Software. o Providing a practical circumvention or workaround to the Error. o Releases or otherwise provides a version of the Software in which the Error has been corrected. o Releases or otherwise provides a version of the NVIDIA OpenGL driver that corrects the Error. o Customer does not respond to a request from NVIDIA for further information or does not test a potential correction within ten (10) business days. o NVIDIA determines the problem is not in the Software. o NVIDIA is unable to reproduce the Error. o NVIDIA determines the problem is otherwise outside the scope of this Agreement. ARTICLE 4 PRE-RELEASE SOFTWARE 4.1 License to Pre-Release Software. NVIDIA may, from time to time, make available to the Customer Pre-Release Software versions containing new features and performance improvements. Although NVIDIA provides no warranty and no support for Pre-Release Software, Customers may use the Pre-Release Software in production, subject to the terms and conditions stated in the Gelato End User License Agreement. 4.2 No Support. NVIDIA is under no obligation to fix or correct Errors in the Pre-Release Software or to provide Maintenance and Support Services to the Customer in regards to the Pre- Release Software. Because of the increased possibility of Errors occurring in Pre-Release 5 Gelato M&S (081506)
Software, NVIDIA does not recommend that Pre-Release Software be used for production purposes or be installed on any critical or production systems. 4.3 NO WARRANTY ON PRE-RELEASE SOFTWARE. THE PRE-RELEASE SOFTWARE MAY CONTAIN ERRORS. THE PRE-RELEASE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NVIDIA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. ARTICLE 5 - LIMITATIONS, EXCLUSIONS, AND CUSTOMER OBLIGATIONS 5.1 No Guarantee. No software product will operate uninterrupted or error-free. NVIDIA makes no promises, guarantees, or assurances of any kind that Maintenance & Support Services will answer or resolve the Customer s questions or problems relating to the Software or provide satisfactory guidance on usage and functionality of the Software. 5.2 Versions Supported. NVIDIA will only provide Maintenance & Support Services in relation to then-current version or in relation to older releases of the Software that have not been designated as end-of-life by NVIDIA. 5.3 Non-Qualified Systems. NVIDIA will not provide Maintenance & Support Services in relation to Software running on non-qualified System(s). 5.4 Relocation of License Keys. If governed by a site license, relocation of Software to new machines must be to machines within the facility covered by that license. In the event NVIDIA has a good faith belief that the relocation is being requested by Customer for other than bona fide purposes (e.g., to enable instances of the same Software license on multiple platforms), NVIDIA reserves the right to refuse a relocation request or to request such reasonable documentation or information as deemed necessary by NVIDIA to substantiate such a request. 5.5. Exclusions. Customer acknowledges and agrees Maintenance & Support Services do not include: (a) API or Gelato Shading Language (GSL) support, beyond answering Product Inquiries about functionality and proper syntax. (b) Configuration of hardware, software, or networking services. (c) General solution provider services. (d) General computer system maintenance. (e) Hardware maintenance and/or support. (f) NVIDIA driver maintenance and/or support. (g) On-site services. (h) Training and/or general consulting services. (i) Software enhancement requests. (j) Creating custom workflows, unless provided as a correction to an Error. 6 Gelato M&S (081506)
(k) Customized programming or scripting, to include the creation of Gelato shaders. (l) Custom engineering. 5.7. Invalidating Actions. NVIDIA will not provide Maintenance and Support Services if Customer has modified the Software; the Software has been misused; the Software has been damaged, altered or affected by accident, neglect, misuse or abuse; or the Error has been caused, in whole or in part, by persons other than NVIDIA or by products, equipment or computer programs not owned by NVIDIA. ARTICLE 6 - WARRANTY AND LIMITATION OF LIABILITY 6.1. No Warranty. MAINTENANCE & SUPPORT SERVICES OR ANY PART THEREOF FURNISHED HEREUNDER IS PROVIDED "AS IS." NO WARRANTIES, EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE ARE MADE, AND ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED. NO OBLIGATION OR LIABILITY ARISES OUT OF PROVISION OF MAINTENANCE & SUPPORT SERVICES OR ANY PART THEREOF. 6.2 Limitation of Liability. NVIDIA S LIABILITY IN CONNECTION WITH THIS AGREEMENT WHETHER IN CONTRACT, TORT OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH MAINTENANCE IS LIMITED TO A REFUND OF THE PRO RATA ANNUAL AMOUNT PAID FOR THE SPECIFIC COMPONENTS OF THE MAINTENANCE INVOLVED IN THE CLAIM, OR $300 WHICHEVER IS LESS AND IN NO EVENT IS NVIDIA OR ITS LICENSORS LIABLE TO THE CUSTOMER NOR TO ANY THIRD PARTY FOR ANY PUNITIVE OR MULTIPLE DAMAGES OR LOST PROFITS OR OTHER SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY DAMAGES RESULTING FROM LOSS OF BUSINESS, PROFITS, USE, DATA, SOFTWARE PRODUCT AND/OR GOODWILL, AND/OR DAMAGE TO PROPERTY, DATA AND/OR REMOVABLE STORAGE MEDIA, WHETHER FORESEEABLE OR NOT, EVEN IF NVIDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS AND/OR DAMAGE. THESE LIMITATIONS APPLY NOTWITHSTANDING THE INVALIDITY OF ANY OTHER LIMITATION IN THIS AGREEMENT. ARTICLE 7 - GENERAL 7.1 Jurisdiction. This Agreement shall be governed by the laws of the state of Delaware, United States of America, provided the conflicts of laws provisions shall not apply. All disputes relating to this Agreement shall be brought in the state and/or federal courts in Santa Clara County, California. The parties hereby consent to the personal jurisdiction of the state and/or federal courts sitting in Santa Clara County, California. 7.2 Remedies. No remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available at law or in equity. 7.3 Assignment. Customer may not assign, sub-license or otherwise transfer, in whole or in part its rights and obligations under this Agreement or any contract for the purchase of Maintenance & Support Services. 7.4 Severability. If any of the terms and conditions set forth in this Agreement is found to be invalid, illegal or unenforceable, the remaining portions of the terms and conditions remain in effect. 7 Gelato M&S (081506)
7.5 Representations. Any alleged representation, promise, inducement or statement of intention not set forth in this Agreement is not binding and no liability to NVIDIA shall arise there from. 7.6 Amendments. (a) NVIDIA may alter, modify, or cancel any of the terms and conditions set forth in this agreement at any time through notice to the Customer via posting an updated Agreement to the NVIDIA support web site. (b) Any alteration, modification or cancellation of any of the terms and conditions set forth in this Agreement by the Customer is not binding on NVIDIA unless expressly agreed to by NVIDIA in writing. Only an individually and manually signed signature of an authorized representative of NVIDIA will signify NVIDIA s express assent to be bound by any alteration, modification or any cancellation of any terms or conditions set forth in this Agreement. Failure to object to such alteration, modification or cancellation shall not be construed as a waiver of the terms and conditions contained in this Agreement or as an acceptance of any such alteration, modification and/or cancellation. (c) Any provisions of a purchase order for Maintenance & Support Services that are in any way inconsistent with or in addition to the terms and conditions set forth in this Agreement are not binding on NVIDIA unless expressly agreed to by NVIDIA. Failure to object to such provisions shall not be construed as a waiver of the terms and conditions of this Agreement or as an acceptance of any such provision. 7.7 Compliance With Laws. Maintenance & Support Services are subject to the United States export regulations, including, without limitation, regulation under the U.S. Export Administration Regulations. Performance of Maintenance & Support Services or any part thereof is subject to compliance with applicable laws, regulations and government directives. Any inability to obtain approval, either under the applicable laws, regulations or other government directives, or pursuant to an individual license, from the U.S. government for the export of Maintenance & Support Services, or any part thereof, constitutes an event of Force Majeure and excuses, without liability, the provision of Maintenance & Support Services or any other item under this Agreement. The Parties acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. 7.8 Paragraph Headings. Paragraph headings used herein are for reference purposes only and will not be used in the interpretation of this document. This document and any exhibits attached hereto and referenced herein will constitute the entire agreement between the parties concerning the subject matter hereof. 8 Gelato M&S (081506)