WebM Community Cross-License

WEBM COMMUNITY CROSS-LICENSE

TERM SHEET


1. Goal:	Create a royalty-free community cross-license for WebM (i.e.VP8, Vorbis, Matroska) (the "WebM Community Cross-License").
2. Structure:	The WebM Community Cross-License Administrator ("CCA") to enter into individual license agreements (all on substantially the same terms and conditions) (each a "WebM Community CrossLicense Agreement") with You and with each WebM Community Cross-License Member. Persons joining the WebM Community Cross-License will not be required to identify Covered Patents. The WebM Community Cross-License website (which will be administered by CCA) will include a FAQ, will list You (after You have signed a WebM Community Cross-License Agreement) and the WebM Community Cross-License Members (updated as new WebM Community Cross-License Members are added) and Your and the other WebM Community Cross-License Member Agreement Dates,will display the form WebM Community Cross-License Agreement and will make announcements pertinent to You and the WebM Community Cross-License Members such as when WebM Community Cross-License Members make Limitation Elections.
3. License from You to WebM Community Cross-License Members:	You, on behalf of Yourself and Your Affiliates, (a) grant to each current and future WebM Community Cross-License Member and their respective Subsidiaries a royalty-free, worldwide,nonexclusive, non-transferable, non-sublicensable (except as set forth in (a)(ii)) license under Your Patents to (i) make,have made, use, import and Distribute Covered Products and (ii) grant to End Users a sublicense to use such Covered Products; and (b) represent and warrant that (i) You have the full right and power on behalf of Yourself and Your Affiliates to grant the foregoing licenses and the release granted by You in Your WebM Community Cross-License Agreement and (ii) Your Affiliates are and will be bound by the obligations of Your WebM Community Cross-License Agreement.
4. Releases	You, on behalf of Yourself and Your Affiliates, irrevocably release and shall release each WebM Community Cross-License Member and its Subsidiaries from Claims relating to Your Patents to the extent such Claims are based on acts prior to Your Agreement Date that, had they been performed after such Agreement Date, would have been licensed under Your WebM Community Cross-License Agreement.
5. Changes to Terms; Limitation of License	CCA may amend Your WebM Community Cross-License Agreement from time to time to modify the definition of Covered Product (each a "Covered Product Amendment"). In the event of a Covered Product Amendment, CCA will notify You in writing or via email of the details of such amendment (including the planned effective date) at least ninety (90) days before the amendment becomes effective. In the event that You do not make a Limitation Election with a Limitation Date that is prior to the effective date of any Covered Product Amendment, the modified definition of Covered Product will apply to (i) the license granted by You and Your Affiliates under Your WebM Community Cross-License Agreement and (ii) future licenses granted by You and Your Affiliates under Your WebM Community Cross-License Agreement. You may make a "Limitation Election" to limit all of Your Patents that are subject to the license granted in Your WebM Community Cross-License Agreement, effective on a "Limitation Date" thirty (30) days after giving email notice to CCA (which notice may be announced on the WebM Community Cross-License website). If a Limitation Election is made: (a) Your Patents licensed under Your WebM Community Cross-License Agreement, and WebM Community Cross-License Member Patents licensed to You and Your Subsidiaries under WebM Community Cross-License Members' WebM Community Cross-License Agreements, shall thereafter be limited to all of those licensable during the applicable Capture Period; (b) The license to Your Patents shall not extend to any Person that becomes a WebM Community Cross-License Member after the Limitation Date, and the licenses to WebM Community Cross-License Member Patents under WebM Community Cross-License Agreements granted by Members that become Members after the Limitation Date will not extend to You or Your Subsidiaries; and (c) For the purpose of defining "Your Patent(s)" after the Limitation Date, the definition of Covered Product shall retain the meaning in effect as of the Limitation Date (note: not the date of Your Limitation Election).
6. Term of Agreement; Termination; Suspension	The term of Your WebM Community Cross-License Agreement shall be from the Agreement Date until no WebM Community Cross-License Agreement other than Your WebM Community Cross-License Agreement is in effect (the "Term"). If a Person ceases to be a Subsidiary of Yours on a given date, the license granted by WebM Community Cross-License Members to such Subsidiary shall terminate on such date. If a Person ceases to be an Affiliate of Yours on a given date, the license granted from such Affiliate to WebM Community Cross-License Members and vesting prior to such date shall continue. Such Person, following such date, shall be deemed an Assignee of Yours for purposes of Section 8 hereof. If a WebM Community Cross-License Member or its Affiliate files one or more Claims against You or Your Subsidiaries alleging that the making, having made, use, import or Distribution by You or Your Subsidiaries of a Covered Product constitutes infringement of a WebM Community Cross-License Member Patent of such WebM Community Cross-License Member or its Affiliate, then You may suspend the license granted by You and Your Affiliates in Your WebM Community Cross-License Agreement to such WebM Community Cross-License Member and its Subsidiaries on written notice to such WebM Community Cross-License Member (with a copy to CCA, which may be published on the WebM Community Cross-License website). Such suspension shall be effective unless and until all of such Claims are dismissed.
7. Most Favorable Terms and Conditions	In the event that CCA enters into a WebM Community Cross-License Agreement with a WebM Community Cross-License Member on terms and/or conditions that are more favorable to the WebM Community Cross-License Member than those set forth in Your WebM Community Cross-License Agreement, whether or not such more favorable terms and/or conditions are accompanied by other terms and/or conditions that are different than those set forth in Your WebM Community Cross-License Agreement, CCA shall send written notice to You specifying the terms and/or conditions that are more favorable to the WebM Community Cross-License Member and any other terms and/or conditions that are different than those set forth in Your WebM Community Cross-License Agreement within sixty (60) days of entering into such WebM Community Cross-License Agreement. You shall be entitled to an amendment of Your WebM Community Cross-License Agreement to the extent of such more favorable terms and/or conditions within thirty (30) days of sending written notice to CCA requesting such amendment; provided, however, that if You send such notice, Your WebM Community Cross-License Agreement shall also be amended to include any other terms and/or conditions provided in connection with the more favorable terms and/or conditions. Any amendment made pursuant to this requirement shall be effective as of the date of Your notice requesting the amendment. CCA shall have the right to extend the thirty (30) day period (but not change the effective date of the amendment) at its discretion.
8. Miscellaneous	None of Your Patents shall be assigned or transferred in whole or in part unless such assignment or transfer is made subject to the terms of Your WebM Community Cross-License Agreement and each assignee or transferee (each an "Assignee") expressly agrees to be bound by the terms and conditions of Your WebM Community Cross-License Agreement as they relate to Your Patents. Neither CCA nor You shall assign Your WebM Community Cross-License Agreement, assign any of its or Your rights under Your WebM Community Cross-License Agreement, or delegate any of its or Your obligations under Your WebM Community Cross-License Agreement, unless otherwise agreed in writing by the other party, provided, however, that CCA may assign Your WebM Community Cross-License Agreement to a third party in connection with a transfer to such third party of CCA's role as administrator of the WebM Community Cross-License. Any attempt to do any of the foregoing prohibited actions shall be void. Each WebM Community Cross-License Member shall be a third party beneficiary of Your WebM Community Cross-License Agreement with the right (but no obligation) to enforce the terms and conditions of Your WebM Community Cross-License Agreement directly against You, Your Affiliates and any Assignee solely with respect to licenses and other rights granted by you to such WebM Community Cross-License Member under this Agreement. CCA shall have the right (but no obligation) to enforce the terms or conditions of any WebM Community Cross-License Agreement against any WebM Community Cross-License Member or its Affiliates. You shall be a third party beneficiary of each WebM Community Cross-License Member's WebM Community Cross-License Agreement with the right (but no obligation) to enforce the terms and conditions of such WebM Community Cross-License Member's WebM Community Cross-License Agreement directly against such WebM Community Cross-License Member and its Affiliates. EXCEPT AS PROVIDED IN SECTION 3 HEREOF, NO PARTY TO YOUR WEBM COMMUNITY CROSS-LICENSE AGREEMENT HEREBY MAKES OR WILL MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED. ALL PARTIES TO YOUR WEBM COMMUNITY CROSS-LICENSE AGREEMENT HEREBY DISCLAIM ANY AND ALL WARRANTIES AS TO THE VALIDITY OF YOUR PATENTS OR THAT YOUR PATENTS OR THEIR PRACTICE DO NOT INFRINGE THE PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN YOUR WEBM COMMUNITY CROSS-LICENSE AGREEMENT, CCA'S AGGREGATE LIABILITY IN CONNECTION WITH YOUR WEBM COMMUNITY CROSS-LICENSE AGREEMENT TO YOU AND YOUR AFFILIATES, OR TO ANY OTHER PERSON CLAIMING THROUGH YOU OR YOUR AFFILIATES, FOR ALL CLAIMS ARISING DURING THE TERM OF YOUR WEBM COMMUNITY CROSS-LICENSE AGREEMENT WILL BE LIMITED TO $25,000.00. MULTIPLE CLAIMS WILL NOT INCREASE THIS LIMIT. IN NO EVENT SHALL THE PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF THE PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Your WebM Community Cross-License Agreement shall be construed in accordance with the laws of the State of New York as such laws apply to contracts entered into and fully performed in the State of New York (excluding New York's choice of law rules). With respect any dispute relating to Your WebM Community Cross-License Agreement, CCA and You consent to personal jurisdiction in, and the exclusive venue of, the courts located in New York County, New York. Upon execution of this Term Sheet, CCA may publicly disclose the fact that You have agreed to this Term Sheet or have agreed in principle to join the WebM Community under cross-licensing and other terms and conditions substantially as described in this Term Sheet. Upon execution of a WebM Community Cross-License Agreement, CCA may publicly disclose (a) the fact that You have entered into a WebM Community Cross-License Agreement, (b) the terms of Your WebM Community Cross-License Agreement, (c) any Limitation Elections You may make and (d) any Covered Product Amendments. The foregoing disclosures may be made by CCA via the WebM Community Cross-License website or otherwise; provided, however, that disclosure via a CCA press release shall require Your prior written consent to the editorial content thereof (which consent shall not be unreasonably withheld). Nothing in this paragraph shall terminate, supersede or affect any confidentiality obligations contained in any other agreements between the parties or their respective Affiliates.
9. Definitions	(a) "Affiliate" means, with respect to any specified Person, any other Person that now or in the future (i) is a Subsidiary of the specified Person, (ii) is a Parent of the specified Person or (iii) is a Subsidiary of a Parent of the specified Person. In each of the foregoing cases, such other Person shall be deemed to be an Affiliate only during the time such relationship exists. (b) "Agreement Date" means the date of Your WebM Community Cross-License Agreement. (c) "Capture Period" means the period beginning on the Agreement Date and ending on the earlier of (i) the date Your WebM Community Cross-License Agreement or the license granted by You or Your Subsidiaries in Your WebM Community Cross-License Agreement is terminated or (ii) the Limitation Date, provided however, that when You exercise a Limitation Election, the Capture Period as to WebM Community Cross-License Member Patents shall end on the Limitation Date and the Capture Period as to Your Patents shall end one year after the Limitation Date. (d) "Claim" means a lawsuit, binding arbitration or administrative action, or other filed legal proceeding, including a counterclaim or cross-claim, alleging patent infringement. (e) "Covered Patents" means any claims of patents issued or issuing on patent applications entitled to an effective filing date prior to the end of the applicable Capture Period,Â including any continuations, divisionals, continuations-in-part (only for claims entitled to an effective filing date prior to the end of the applicable Capture Period), reexaminations, reissues and foreign counterparts thereof, that are infringed by making, having made, using, selling, offering to sell, importing or Distributing Covered Products, as Covered Products is defined during the applicable Capture Period, excluding claims that read only upon Enabling Technologies. (f) "Covered Product" means (i) only those portions of a video encoder and/or decoder that are used to encode and/or decode video data streams or signals in the VP8 Format, and/or (ii) only those portions of an audio encoder and/or decoder that are used to encode and/or decode audio streams or signals in the Vorbis Format and/or (iii) only those portions of a file or media stream writer/muxer and/or reader/demuxer that are used to write/mux and/or read/demux files or media streams in the Matroska File Format. (g) "Distribute" and its cognates means license, lease, sell, transfer or provide, or offer to do any of the foregoing, in each case by any means. (h) "Enabling Technologies" means technologies that may be necessary or useful to make or use a product that complies with the Vorbis Format, the Matroska File Format or the VP8 Format, but are not essential to or expressly set forth in the respective embodiments of those formats described in Sections 9(j), 9(n) and 9(o) hereof (e.g., compiler technology, semiconductor manufacturing technology, SIMD instruction technology, networking technology). (i) "End User" means any Person that uses a Covered Product for such Person's own personal use. (j) "Matroska File Format" means the latest version of the multimedia container file format as embodied in the Matroska bitstream specification identified on the Matroska.org website as of March 31, 2011. (k) "Parent" means, with respect to any specified Person, any other Person that own or controls, directly or indirectly, now or in the future, 50% or more of the total voting power of the specified Person, but such other Person shall be deemed to be a Parent only during the time such ownership or control exists. (l) "Person" means any individual, corporation, association, partnership (general or limited), joint venture, trust, estate, limited liability company or other legal entity or organization. (m) "Subsidiary" means, with respect to any specified Person, any other Person of which 50% or more of the total voting power is owned or controlled, directly or indirectly, now or in the future, by the specified Person, but such other Person shall be deemed to be a Subsidiary only during the time such ownership or control exists. (n) "Vorbis Format" means the latest version of the audio compression format as embodied in the Vorbis bitstream specification identified on the Vorbis section of the xiph.org website which is currently http://xiph.org/vorbis as of March 31, 2011; provided, however, that if such bitstream specification is not tied to any reference source code of the Vorbis software, then as embodied in the latest version of reference source code of the Vorbis software as identified on the Vorbis section of the xiph.org website as of March 31, 2011. (o) "VP8 Format" means the latest version of the VP8 video compression format as embodied in the VP8 bitstream specification identified on the WebM Project website which is currently http://www.webmproject.org (the "WebM Website") as of March 31, 2011; provided, however, that if such bitstream specification is not tied to any reference source code of the VP8 video codec software, then as embodied in the latest version of reference source code of the VP8 video codec software as identified on the WebM Website as of March 31, 2011. (p) "WebM Community Cross-License Member" means at any time, now or in the future, any Person other than You and Your Subsidiaries that is granted a license pursuant to a WebM Community Cross-License Agreement which license has not been terminated and with respect to which license such Person has not made a Limitation Election. (q) "WebM Community Cross-License Member Patent" means any Covered Patent licensed by a WebM Community Cross-License Member or its Affiliate pursuant to a WebM Community Cross-License Agreement. (r) "Your Patent(s)" means any Covered Patent under which You or any of Your Affiliates has the right to grant a license, of or within the scope granted in Your WebM Community Cross-License Agreement with the exception of any Covered Patent wherein such license results in a bona fide obligation to pay royalties or other consideration by You or Your Affiliates to third parties (except for payments to third parties for inventions made by said third parties while employed by You or Your Affiliates). Further, if you file a Limitation Election, then "Your Patent(s)" will be limited to those Covered Patents described in the preceding sentence that are infringed by making, having made, using, selling, offering to sell, importing or Distributing Covered Products, as Covered Products is defined as of the Limitation Date (instead of as Covered Products is defined during the Capture Period), excluding claims that read only upon Enabling Technologies. (s) "You", "Your" and "Yourself" mean [ ] [i.e. the counterparty to the applicable WebM Community Cross-License Agreement].