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old licenses #104660

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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