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old licenses #104660

1 vapier 1.1 Torque Game Engine SDK
2    
3     End User License Agreement (EULA)
4    
5     TERMS OF SERVICE
6    
7     The use of the Garagegames.com software product ("Software") is governed by a license
8     agreement (the "Agreement"). You must read and agree to the license agreement terms
9     BEFORE installing the Software to your hard drive or using the Software in any way. If
10     you do not agree to the license terms, do not download, install or use the Software. It
11     is important that you print out a copy of the applicable product license(s) on your date
12     of acquisition as a record of the governing terms and conditions. Please make copies for
13     all those in your organization who need to be familiar with the license terms.
14    
15     BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE SOFTWARE, THE INDIVIDUAL OR
16     ENTITY ACCESSING THE PRODUCT ("LICENSEE") IS CONSENTING TO BE BOUND BY AND BECOME A
17     PARTY TO THIS AGREEMENT AS A LICENSEE. IF THE INDIVIDUAL OR ENTITY DOES NOT AGREE TO ALL
18     OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED,
19     AND THE INDIVIDUAL OR ENTITY MUST NOT INSTALL OR USE THE SOFTWARE
20    
21     1. LICENSE AGREEMENT
22    
23     This sets forth the entire agreement between Garagegames.com, Inc. ("Licensor") and the
24     Licensee relating to the use of the Software source code downloadable from the Licensor
25     website, www.garagegames.com ("Website").
26    
27     2. LICENSE GRANT.
28    
29     Licensor grants Licensee a limited non-exclusive and non-transferable license to
30     reproduce and use only for purposes of making source code and object code for electronic
31     single or multi-player games ("Games"), the Torque Game Engine code version of the
32     Software. This license does not entitle Licensee to receive from Licensor hard-copy
33     documentation, technical support, telephone assistance, or enhancements or updates to
34     the Software. Licensee may not redistribute, transfer, sublicense or sell the Software
35     or exploit the Software in any other manner than as expressly allowed in this Agreement.
36    
37     (a) Licensee may publicly sell, distribute, release, publish and/or transmit any
38     Games created hereunder or otherwise exploit the Software.
39    
40     (b) Licensee may distribute free demos of the Games through third party distribution
41     channels. Free games may be distributed from Licensee´s own web site.
42    
43     (c) Accredited public education institutions may use the Software for non-commercial
44     applications and educational activities with written permission from the Licensor.
45    
46    
47     3. RESTRICTIONS.
48    
49     The following restrictions apply to the use of this Software:
50    
51     (a) Licensee may not: (i) modify or create any derivative works of the Software,
52     including translations or localizations, other than the Games; (ii) reverse engineer, or
53     otherwise attempt to derive the algorithms for the Software (except to the extent
54     applicable laws specifically prohibit such restriction); (iii) redistribute, encumber,
55     sell, rent, lease, sublicense, or otherwise transfer rights to the Software; or (iv)
56     remove or alter any trademark, logo, copyright or other proprietary notices, legends,
57     symbols or labels in the Software.
58    
59     (b) Licensee may not use the Software in whole or in part to create products for
60     competing game publishing companies, commercial websites, or any other commercial or
61     non-commercial entity, whether public or private if the sum of the annual revenue of the
62     Licensee and publishing entity exceeds $500,000, without obtaining a COMMERCIAL LICENSE
63     from the Licensor.
64    
65     (c) Licensee may not distribute the source code to the engine in any manner, unless
66     recipient also has a license to the Software.
67    
68    
69     4. FEES.
70    
71     The license fee is the current price indicated on the GarageGames website.
72    
73     5. TERMINATION.
74    
75     Without prejudice to any other rights, Licensor may terminate this Agreement if Licensee
76     breaches any of its terms and conditions. Upon termination, Licensee shall destroy all
77     copies of the Software and all Games containing the Software.
78    
79     6. PROPRIETARY RIGHTS/USES OF GAMES.
80    
81     The following restrictions apply to games submitted for publication:
82    
83     (a) Except as expressly licensed hereunder, all rights in the Software remain the
84     sole and exclusive property of Licensor or its licensors. Licensee acknowledges such
85     ownership and intellectual property rights and will not take any action to jeopardize,
86     limit or interfere in any manner with Licensor´s or its licensor´s ownership of or
87     rights with respect to the Software. The Software is protected by copyright and other
88     intellectual property laws and by international treaties.
89    
90     (b) Commercial use of the Software for applications other than Games may be
91     permitted with the written permission of the Licensor, and subject to a separate
92     agreement.
93    
94     (c) On-line subscription revenue based games may be created with the Software by the
95     Licensee.
96    
97    
98     7. DISCLAIMER OF WARRANTY.
99    
100     THE SOFTWARE IS PROVIDED FOR A SMALL CHARGE, AND, THEREFORE, ON AN "AS IS" BASIS,
101     WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF
102     MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE ENTIRE RISK
103     AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS THE RESPONSIBILITY OF LICENSEE.
104     SHOULD THE SOFTWARE PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT LICENSOR OR ITS
105     SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS
106     DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE
107     SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. This disclaimer may not
108     apply to you if you reside a jurisdiction that does not recognize such disclaimers.
109    
110     8. LIMITATION OF LIABILITY.
111    
112     TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS
113     SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
114     DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT
115     LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR
116     MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE
117     POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR
118     OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR´S ENTIRE LIABILITY UNDER
119     ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES
120     LICENSEE PAID FOR THIS LICENSE (IF ANY). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION
121     OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION
122     MAY NOT BE APPLICABLE. LICENSOR IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF
123     CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS INCORPORATED WITH THE SOFTWARE
124     AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
125    
126     9. LICENSEE´S REPRESENTATIONS, WARRANTIES & INDEMNIFICATION.
127    
128     Licensee warrants, covenants and represents that (a) the Games do not contain any
129     libelous or otherwise unlawful material or violate any personal, proprietary or
130     contractual right of any person or entity and the Games will be free and clear of all
131     claims of any kind now known or later discovered, including without limitation copyright
132     or trademark infringement, trade secret violations, publicity or privacy rights
133     infringements, failure to pay or breach of contract; (b) the Games are unique, were and
134     will be created solely by Licensee (and/or its employees) and contain no unlicensed
135     third party materials; (c) Licensee will not violate any third party agreements or
136     relationships by entering into this Agreement or creating or transferring full ownership
137     of the Games to Licensor hereunder; (d) no further payments or agreements are required
138     for Licensor´s use of the Games as authorized hereunder; and (e) Licensee has full right
139     and power to enter into this Agreement.
140    
141     Licensee shall defend, indemnify and hold harmless Licensor, its parent, subsidiaries,
142     affiliated companies and partners and their respective officers, directors, employees
143     and agents from and against any and all liabilities, damages, costs and fees (including
144     reasonable attorney´s fees) resulting from or relating to: (i) any third party claims or
145     lawsuits related to the Games and assignment of intellectual property ownership
146     hereunder; (ii) any third party claims or lawsuits related to any and all obligations
147     Licensee has undertaken to perform hereunder; or (iii) a breach of any representations
148     and warranties Licensee has made hereunder. Such indemnification obligation of Licensee
149     is conditioned upon Licensor immediately notifying Licensee in a writing that sets forth
150     with specificity the claim or action to which such indemnification obligation applies.
151     Licensee will have the right to control the defense of each such claim and any lawsuit
152     or proceeding arising therefrom. In no event will Licensee settle any such claim or
153     lawsuit or proceeding arising therefrom without the prior written approval of Licensor.
154    
155     10. MISCELLANEOUS.
156    
157     This Agreement may be amended only by a writing signed by both parties. Except to the
158     extent applicable law, if any, provides otherwise, this Agreement shall be governed by
159     the laws of the State of Oregon, U.S.A., excluding its conflict of law provisions.
160     Unless otherwise agreed in writing, all disputes relating to this Agreement (excepting
161     any dispute relating to intellectual property rights) shall be subject to final and
162     binding arbitration in Lane County, Oregon, with the losing party paying all costs of
163     arbitration. This Agreement shall not be governed by the United Nations Convention on
164     Contracts for the International Sale of Goods. If any provision in this Agreement should
165     be held illegal or unenforceable by a court having jurisdiction, such provision shall be
166     modified to the extent necessary to render it enforceable without losing its intent, or
167     severed from this Agreement if no such modification is possible, and other provisions of
168     this Agreement shall remain in full force and effect. A waiver by either party of any
169     term or condition of this Agreement or any breach thereof, in any one instance, shall
170     not waive such term or condition or any subsequent breach thereof. The provisions of
171     this Agreement which require or contemplate performance after the expiration or
172     termination of this Agreement shall be enforceable notwithstanding said expiration or
173     termination. Licensee may not assign or otherwise transfer by operation of law or
174     otherwise this Agreement or any rights or obligations herein. This Agreement shall be
175     binding upon and shall inure to the benefit of the parties, their successors and
176     permitted assigns. Neither party shall be in default or be liable for any delay, failure
177     in performance (excepting the obligation to pay) or interruption of service resulting
178     directly or indirectly from any cause beyond its reasonable control. The relationship
179     between Licensor and Licensee is that of independent contractors and neither Licensee
180     nor its agents shall have any authority to bind Licensor in any way. If any dispute
181     arises under this Agreement, the prevailing party shall be reimbursed by the other party
182     for any and all legal fees and costs associated therewith. Licensor may use Licensee´s
183     name in connection with the Game and in any customer reference list or in any press
184     release issued by Licensor regarding the licensing of the Software and may provide
185     Licensee´s name to third parties.
186    
187     11. LICENSEE OUTSIDE THE U.S.
188    
189     If Licensee is located outside the U.S., then the provisions of this Section shall
190     apply. Licensee is responsible for complying with any local laws in its jurisdiction
191     which might impact its right to import, export or use the Software, and Licensee
192     represents that it has complied with any regulations or registration procedures required
193     by applicable law to make this license enforceable. The language of this Agreement is
194     English.

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