WARHAMMER 40,000: DAWN OF WAR II BETA TEST END USER LICENSE AGREEMENT ("AGREEMENT")

BEFORE DOWNLOADING OR INSTALLING THIS SOFTWARE PLEASE CAREFULLY READ THE FOLLOWING AGREEMENT. BY DOWNLOADING, INSTALLING, OR OTHERWISE USING THE SOFTWARE PROGRAM, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL THE SOFTWARE OR PROMPTLY DELETE THE SOFTWARE PROGRAM.


You have been invited to play the Warhammer 40,000: Dawn of War II online beta test for the sole purpose of evaluating the game and identifying bugs. Nothing in this Agreement, shall be interpreted as granting you any rights or privileges of any kind with respect to the Warhammer 40,000: Dawn of War II online beta test. The Warhammer 40,000: Dawn of War II online beta game is provided on an "as is" "as available" basis and THQ makes no warranty to you of any kind, express or implied.


This pre-release version of the Warhammer 40,000: Dawn of War II software program and any files that are provided to you (via on-line transmission or otherwise) including to 'patch,' 'update,' or otherwise modify the software program, as well as any on-line or electronic documentation (the "Documentation"), and any and all copies and derivative works of such software program and materials (collectively, with the Software defined below, the "Game") are the copyrighted work of THQ, ("THQ"). All use of the Game is governed by the terms of this Warhammer 40,000: Dawn of War II Beta Test Agreement (the "License Agreement" or "Agreement"). The Game is distributed solely for use by authorized individuals who have received prior authorization from THQ for purposes of testing the Game in accordance with the terms of this Agreement ("Beta Testers" or “You”). Any use, reproduction or redistribution of the Game not expressly authorized by the terms of the License Agreement is expressly prohibited. The Game may only be played by obtaining access from THQ to the Warhammer 40,000: Dawn of War II online beta via the designated online service (the "Service") which may be subject to a separate Terms of Use agreement (the "Terms of Use").


Only Beta Testers are permitted to participate in the Warhammer 40,000: Dawn of War II beta test, and anyone without such authorization is not eligible to enter into this Agreement. In consideration of THQ's authorization for you to participate in the Warhammer 40,000: Dawn of War II Beta test, you agree to be bound by the following terms and conditions:


1. Agreement and Terms of Use. You must accept this Agreement and the Terms of Use in order to access the Service to play the Game.


2. Grant of a Limited Use License. The Game installs computer software (hereafter referred to as the "Software") onto your hardware to allow you to play the Game through your account with the Service (your "Account"). THQ hereby grants, and by installing the Software you thereby accept, a limited, non-exclusive license and right to install and use one (1) copy of the Software for your personal use on one (1) computer which you own or is under your personal control.


3. Ownership. All title, ownership rights and intellectual property rights in and to the Game and all copies thereof (including but not limited to any titles, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, character inventories, structural or landscape designs, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, any related documentation, storylines, character likeness and "applets" incorporated into the Game) are owned or licensed by THQ. The Game is protected by the copyright laws of the United States, international copyright treaties and conventions and other laws. All rights not expressly granted by THQ under this Agreement are reserved by THQ. The Game may contain certain third party licensed materials and licensors of those third party materials may enforce their rights in the event of any violation of this License Agreement by You.


4. Responsibilities of Beta Tester.
A. Subject to the Grant of License herein, you may not, in whole or in part, copy, reproduce, translate, reverse engineer, derive source code, modify, disassemble, decompile, or create derivative works based on the Game, or remove any proprietary notices on the Game. Failure to comply with the restrictions and limitations contained in this Section 4 shall result in the immediate, automatic termination of the license granted hereunder and may subject you to civil and/or criminal penalties.
B. The Game is licensed to you as a single product. Its component parts may not be used, either together or apart, on more than one computer.
C. You agree that you shall not, under any circumstances:
(i) sell, grant a security interest in or transfer reproductions of the Game to other parties in any way not expressly authorized herein, nor shall you rent, lease or license the Game;
(ii) transfer, sell or disclose to any person or entity other than THQ any CD-key, serial number, activation code, or other unique identifier or means of authentication provided to you by THQ;
(iii) exploit the Game or any of its parts, including but not limited to the Software, for any commercial purpose including, but not limited to, use at a cyber café, computer gaming center or any other location-based site;
(iv) host, provide or develop matchmaking services for the Game or intercept, emulate or redirect the communication protocols used by THQ in any way, including without limitation through protocol emulation, tunneling, packet sniffing, modifying or adding components to the Game, use of a utility program or any other techniques now known or hereafter developed, for any purpose including, but not limited to unauthorized network play over the Internet, network play utilizing commercial or non-commercial gaming networks or as part of content aggregation networks; or
(v) create or maintain, under any circumstance, any unauthorized connections to the Game or the Service. All connections to the Game and/or the Service, whether created by the Software or by other tools and utilities, may only be made through methods and means expressly approved by THQ. Under no circumstances may you connect, or create tools that allow you or others to connect, to the Game's proprietary interface or interfaces other than those expressly provided by THQ for public use.


5. Term of the Beta Test. The Game is an 'on-line' game that allows you to play the Game over the internet through the Service. THQ may, at any time and in its sole discretion, terminate this Agreement and/or discontinue the Service with or without notice. In any case, this Agreement will terminate immediately upon the end of the Warhammer 40,000: Dawn of War II beta test.


6. Termination. This License Agreement is effective until terminated. You may terminate the License Agreement at any time by: (i) removing the Software from your hard drive; and (ii) notifying THQ of your intention to terminate this License Agreement. THQ may terminate this License Agreement at its sole discretion for any reason or no reason. In such event, you must immediately destroy the Game and remove the Software from your hard drive. Upon termination of this Agreement for any reason, all licenses granted herein shall immediately terminate.


7. Export Controls. The Software may not be downloaded or otherwise exported or re-exported into (or to a national or resident of) any country to which the U.S. has embargoed goods or to anyone on the U.S. Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. If you do not meet these criteria or are not sure, do not install the software. If you live in such a country, no license is granted hereunder.


8. Patches, Updates and Stat Tracking. THQ may deploy or provide patches, updates and modifications to the Game that must be installed for the user to continue to play the Game. THQ may update the Game remotely, including without limitation the Software residing on the user's machine, without the knowledge or consent of the user, and you hereby grant to THQ your consent to deploy and apply such patches, updates and modifications to the Game. In addition, the Software may contain functions for collecting and tracking information related to an Online Beta Tester’s use of the Software. THQ reserves the right to compile, save and use such information within the scope of THQ’s business activities, and analyze any and all data (online registration data, stats, etc.). THQ intends to use such data for internal purposes only.


9. Limited Warranty. THE GAME, SOFTWARE AND DOCUMENTATION(S) ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF CONDITION, DEFECTS, USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE GAME, SOFTWARE AND DOCUMENTATION(S) REMAINS WITH THE USER. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.


10. Limitation of Liability. NEITHER THQ, NOR ITS PARENT, SUBSIDIARIES OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OF THE GAME INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE IS EXPRESSLY DISCLAIMED. FURTHER, THQ SHALL NOT BE LIABLE IN ANY WAY FOR THE LOSS OR DAMAGE TO PLAYER CHARACTERS, ACCOUNTS, STATISTICS OR USER PROFILE INFORMATION STORED BY THE GAME AND/OR THE SERVICE. THQ SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS OF SERVICE INCLUDING, BUT NOT LIMITED TO ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE. IN NO EVENT WILL THQ BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES. Some states do not allow the exclusion or limitation of incidental or consequential damages, or allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.


11. Equitable Remedies. You hereby agree that THQ would be irreparably damaged if the terms of this License Agreement were not specifically enforced, and therefore you agree that THQ shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this License Agreement, in addition to such other remedies as THQ may otherwise have available to it under applicable laws. In the event any litigation is brought by either party in connection with this License Agreement, the prevailing party in such litigation shall be entitled to recover from the other party all the costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.


12. Indemnity. At THQ's request, you agree to defend, indemnify and hold harmless THQ, its subsidiaries, affiliates, contractors, officers, directors, employees, agents, licensors, licensees, distributors, developers, content providers, and other users of the Software, from all damages, losses, liabilities, claims and expenses, including attorneys' fees, arising directly or indirectly from your acts and omissions to act in using the Software pursuant to the terms of this License Agreement or any breach of this License Agreement by you. THQ reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, and in such event, you shall have no further obligation to provide indemnification for such matter.


13. Modification. This Agreement may be amended, altered or modified only by an instrument in writing, specifying such amendment, alteration or modification, executed by both parties; provided, however, that THQ may, at its sole discretion, change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time effective upon prior notice as follows. THQ will post any revised Agreement on the Warhammer 40,000: Dawn of War II website, and may provide such other notice as THQ may elect in its sole discretion, which may include email, postal mail or pop-up screen. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate this Agreement pursuant to Section 6 hereof. The continued use of the Game by you following notice of changes to this Agreement (as set forth in this Section) will mean you accept any and all such changes. THQ may change, modify, suspend, or discontinue any aspect of the Game at any time. THQ may also impose limits on certain features or restrict your access to parts or all of the Game without notice or liability. You have no interest, monetary or otherwise, in any feature, content or availability of the Game.


14. Confidential Information. As part of the beta testing process You may become privy to certain confidential information (“Information”) regarding the Game. This Information shall be held in strict confidence and shall not be disseminated or disclosed to any third party without the express written consent of THQ. Disclosure of this information without the express written consent of THQ, shall result in immediate termination of this Agreement ending your participation in the Warhammer 40,000: Dawn of War II online beta test and THQ shall pursue all remedies available under Section 11 above.


15. Miscellaneous. This License Agreement shall be deemed to have been made and executed in the State of California and any dispute arising hereunder shall be resolved in accordance with the laws of California without regard to its conflicts of law provisions. You agree that any claim asserted in any legal proceeding by one of the parties against the other shall be commenced and maintained in any state or federal court located in the State of California, County of Los Angeles, having subject matter jurisdiction with respect to the dispute between the parties. In the event that any provision of this License Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of this License Agreement shall remain in full force and effect. This License Agreement constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements; provided however, that this agreement shall coexist with, and shall not supersede, the Terms of Use. To the extent that the provisions of this Agreement conflict with the provisions of the Terms of Use, the conflicting provisions in the Terms of Use shall govern. Sections 9, 10, 11 and 15 hereof shall survive the termination of this Agreement.
You hereby acknowledge that you have read and understand the foregoing License Agreement and agree that the action of installing the Software is an acknowledgment of your agreement to be bound by the terms and conditions of the License Agreement contained herein.