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Plan V End User License Agreement
Please read this Agreement carefully. It is a legal document that explains your rights and obligations related to your use of Plan V® and related content. By downloading or using this software or any related content, you are agreeing to be bound by the terms of this Agreement. If you do not or cannot agree to the terms of this Agreement, please do not download or use this software or any related content.
Certain words or phrases are defined to have certain meanings when used in this Agreement. Those words and phrases are defined below in Section 25.
If your primary residence (or primary place of business, if you are a legal entity like a corporation or an academic institution) is inside or outside the United Kingdom, your agreement is with Painting Practice Ltd.
1. License Grant
Painting Practice grants you a non-exclusive, non-transferable, non-sublicensable (except as described in this Agreement) license to use, reproduce, display, and perform the Licensed Technology for any lawful purpose (the “License”). However, the rights that Painting Practice grants you under the License are subject to the terms of this Agreement, and you may only make use of the License if you comply with all applicable terms.
The License becomes effective on the date you accept this Agreement or download Plan V or any Content. The License does not grant you any title or ownership in the Licensed Technology.
(A) Allowed forms of Distribution and Sublicensing
There is no restriction on your Distribution of a Product made using the Licensed Technology that does not include any Plan V or any Paid Content Distributed in uncooked source format (in each case, including as modified by you under the License) and does not require any Licensed Technology (including as modified by you under the License) to run (“Unrestricted Products”). For clarity, the foregoing does not constitute a license under any patents, copyrights, trademarks, trade secrets or other intellectual property rights, whether by implication, estoppel or otherwise.
You may only Distribute the Licensed Technology as follows:
a. Distribution to end users - You may Distribute the Licensed Technology incorporated in object code format only as an inseparable part of a Product to end users who are subject to an end user license agreement which explicitly disclaims any representations, warranties, conditions, and liabilities related to the Licensed Technology. The Product may not contain any Paid Content Distributed in uncooked source format or any Plan V Tools.
b. Distributions to employees and contractors - You also may Distribute Content (other than Paid Plug-ins) to a Plan V Licensee who is your employee or your contractor who does not have rights under their license to the same Content, but only to permit that Plan V Licensee to utilize that Content in good faith to develop a Product on your behalf for Distribution by you under the License, and not for the purpose of Content pooling or any other Distribution or sub-licensing of Content that is not permitted under this Agreement. Recipients of such a Distribution have a limited license to use, reproduce, display, perform, and modify that Content to develop your Product as outlined above, and for no other purpose.
d. Distribution of Paid Plug-ins - You may Distribute Paid Plug-ins to each of your Paid Plug-in Users so that they may use those Paid Plug-ins on your behalf under the License.
e. Distribution and sublicensing of Examples - You may Distribute or sublicense Examples (including as modified by you under the License) in Source Code or object code format to any third party. However, the rights in this Section 1(e) do not expand or modify your limited Distribution and sublicensing rights for Plan V Code and Content (including as modified by you under the License) that are not Examples.
f. You may not Distribute an integration of a programming language other than C++ for the Licensed Technology.
You are not permitted to post snippets of Plan V Code online or any type of public forums.
You may not sublicense the Licensed Technology in Source Code format. You may not sublicense the Licensed Technology in object code format, or any Content, except to grant end users the ability to use, or to permit your publishers and distributors to market and Distribute, a Product that you Distribute as permitted in Section 1(a) above. This paragraph does not limit your rights to Distribute and sublicense Examples.
When you generate revenue from a Product or Distribute it to end users, you must provide Painting Practice with advance notification at plan-v@paintingpractice.com, as early as reasonably possible, including the name of the Product, the format of distribution, unique Product id (where applicable), and the distribution channel(s).
(B) Other Restrictions
(i) Plan V-Only Content
For Plan V-Only Content, you may exercise your rights under the License only if and to the extent that the Plan V -Only Content is utilized in a Product that requires Plan V Code to operate or is a non-interactive linear media product (e.g., broadcast or streamed video files, cartoons, movies, or images) rendered using Plan V Code. The Plan V -Only Content is subject to all of the terms of this Agreement that apply to Content, as well as the additional limitations described in this paragraph. All references in this paragraph to Plan V -Only Content include modified versions thereof made by you under the License.
(ii) Non-Compatible Licenses
You may not combine, Distribute, or otherwise use the Licensed Technology with any code or other content which is covered by a license that would directly or indirectly require that all or part of the Licensed Technology be governed under any terms other than those of this Agreement (“Non-Compatible License”). Code or content under the following licenses, for example, are prohibited: GNU General Public License (GPL), Lesser GPL (LGPL) (unless you are merely dynamically linking a shared library), or Creative Commons Attribution-ShareAlike License. Code or content under the following licenses, for example, are allowed: BSD License, MIT License, Microsoft Public License, or Apache License. You may not sublicense the Licensed Technology under a Non-Compatible License.
(iii) General Restrictions
You may not engage in any activity with respect to the Licensed Technology, including as incorporated into a Product, (1) in violation of any applicable law or regulation; (2) in which the Licensed Technology is rented or leased; (3) that misappropriates any of Plan V’s other products or services; (4) in support of a claim by you or any third party that the Licensed Technology infringes a patent. You also may not sell or grant a security interest in the Licensed Technology.
2. User License
The Licensed Technology is licensed to you for use by a single User (other than Paid Plug-ins, which may also be used by your Paid Plug-in Users as described below). The User may store the Licensed Technology on any of the User’s computers, but the Licensed Technology cannot be shared with others (including any other employees or agents) except through a permitted Distribution as described above.
In order to access and download the Plan V and Content, you must set up an Account. You may not share or allow others to use your Account. You are responsible for the security of your Account.
Under the License, the User may use the Licensed Technology for as long as you comply with this Agreement. If you are a legal entity, references to “you” in this agreement also apply to the User in all cases. You are responsible for the User’s compliance with this Agreement.
For Paid Plug-ins, in addition to use by a single User, each Paid Plug-in User with respect to whom you have paid the associated fee may store the Paid Plug-in on any of the Paid Plug-in User’s computers and may use the Paid Plug-in on your behalf under the License, but the Paid Plug-in cannot be otherwise shared with others except through a permitted Distribution as described above. You are responsible for each Paid Plug-in User’s compliance with this Agreement.
If you are an Academic Institution, your use is not limited to a single User for any Licensed Technology other than Paid Content. Instead, you may store that Licensed Technology on any of your computers, and you may allow all users of those computers to use that Licensed Technology under the License. However, those users are not authorized under your License to Distribute or sublicense the Licensed Technology (including as incorporated in a Product) or to use Plan V and/or the Content commercially. For that, they must obtain a License of their own.
3. New Versions and Content
During the term of your License, you will be entitled to access future Versions of Plan V and new Content that Painting Practice chooses to make available to you. Painting Practice does not have any obligation to make new Versions of Plan V or new Content available. Nor does Painting Practice have any obligation to continue to make available for access or download any or all Versions of Plan V or Content. However, any Versions of the Plan V and Content that Painting Practice has made available to you, and for which you have accepted any applicable amendment to this Agreement as described in Section 22, are considered part of the Licensed Technology and may be used under the License (as amended by that amendment).
4. Paid Content
Painting Practice may make Paid Content available to you for a fee. Your License to Paid Content is subject to your payment of the associated fee. In addition, your Paid Plug-in Users’ use of any Paid Plug-in under the License is subject to your payment of the associated fee for each Paid Plug-in User for that Paid Plug-in. When you pay the fee to obtain Paid Content, you are purchasing from Painting Practice the right to have your License include that Paid Content. Regardless of any references Painting Practice may make outside this Agreement to purchasing or selling Paid Content, Paid Content is licensed, not sold, to you under the License.
When you provide payment information to Painting Practice or its authorized processor, you represent that you are an authorized user of the payment card, PIN, key, account, or other payment method specified by you, and you authorize Painting Practice to charge such payment method for the full amount of the transaction.
From time to time, Painting Practice may display links to Third Party Licensor Content on the Marketplace. Painting Practice does not license or provide Third Party Licensor Content to you under this Agreement. Any use of Third Party Licensor Content requires you to enter into a separate license agreement directly with the provider of the Third Party Licensor Content. The terms of your license agreement with the provider of the Third Party Licensor Content will govern all matters related to your use of Third Party Licensor Content rather than the terms of this Agreement.
5. Royalty
You agree to pay Painting Practice a royalty equal to 5% of all worldwide gross revenue actually attributable to each Product, regardless of whether that revenue is received by you or any other person or legal entity, as follows:
a. Gross revenue resulting from any and all sales of a Product to end users through any and all media, including but not limited to digital and retail;
b. Gross revenue resulting from any and all in-app purchases, downloadable content, microtransactions, subscriptions, sale, transfer, or exchange of content created by end users for use with a Product, or redemption of virtual currency, either within a Product or made externally but which directly affect the operation of the Product;
c. Gross revenue from any Kickstarter or other crowdfunding campaign which is directly associated with Product access or in-Product benefit (e.g., in a multi-tiered campaign, if an amount is established in an early tier solely for Product access, your royalty obligation will apply to that amount for each backer with the same access, but not on additional amounts in higher tiers based on ancillary benefits);
d. Your revenue from in-app advertising and affiliate programs;
e. Revenue from advance payments for a Product (from a publisher or otherwise);
f. Revenue received in connection with a Product’s inclusion in a streaming, subscription, or other game-delivery service (e.g., Apple Arcade, Microsoft GamePass, or any similar or successor services), including without limitation development funds and bonuses; and
g. Revenue in any other form actually attributable to a Product (unless excluded below).
However, no royalty is owed on the following forms of revenue:
1. The first £3,000.00 in gross revenue for each Product per calendar quarter;
2. The first £5,000,000.00 in gross revenue for each Product built in Virtual Reality.
3. Consulting fees or work-for-hire fees which are non-recoupable for services performed using the Licensed Technology (e.g., an architect-created walkthrough simulation or a contractor-developed in-house training simulator);
4. Revenue from an Unrestricted Product, including for clarity, revenue from a Product which solely relies on the Licensed Technology for production of non-interactive linear media (e.g., broadcast or streamed video files, cartoons, or movies) and which is Distributed in a form that does not contain the Licensed Technology or, in order to deliver, rely on servers running the Licensed Technology;
5. Revenue from a Product which is only Distributed to Plan V Licensees (such as through the Marketplace);
6. Revenue from ancillary products which are not software and which do not contain embedded information (such as QR codes) which affects the operation of the Product (e.g., comic books, soundtracks, apparel);
7. Financial winnings generated by awards for the Product;
8. Revenue from donations for a Product which are not tied to Product access or in-Product benefits;
9. Revenue from Location-Based Experiences, such as interactive amusement park rides, coin-op arcades, or VR experiences, which use the Licensed Technology; and
10. Revenue collected from an end-user buyer of in-game items or other in-game content for your Product which is sold by an end-user seller and which is actually paid to the end-user seller and is not retained by you or any other party.
The royalty is based on gross revenue from end users, regardless of whether you sell your Product to end users directly, self-publish via the App Store or any similar store, or work with a publisher. The following simplified example illustrates the application of the royalty to gross sales: if your Product earns £10 on the App Store, Apple may pay you £7 (having deducted 30% as a distribution fee), but your royalty to Painting Practice would still be 5% of £10 (or £0.50).
Royalties that you pay on an advance payment of revenue for a Product that is recoupable by the payer, such as a publisher, may be credited against future royalty payments that you incur under this Agreement for that Product.
Royalties must be reported and paid on a per-Product basis. The £3,000 per Product per calendar quarter royalty exemption may not be aggregated across multiple Products.
Within 45 days after the end of each calendar quarter in which a Product earns revenue outside of the above-listed royalty exclusions, you must pay to Painting Practice the full amount of the royalty due for that quarter and send Painting Practice a royalty report on a per Product basis. Detailed information on royalty reporting and payment can be found at www.paintingpractice.com/planv
The royalty will be payable under this Agreement with respect to each Product for as long as Plan V or Content (including as modified by you under the License) incorporated in or used to make the Product are protected under copyright or other applicable intellectual property law.
6. Payments
Painting Practice reserves the right to charge a 2% late fee, per calendar quarter (compounding), for any amounts unpaid after the required due date.
You are responsible for all taxes on all payments required to be made by you under this Agreement (other than taxes that Painting Practice is obligated to pay on its income, which are Painting Practice’s responsibility). If you are required by a government agency to reduce your payment to Painting Practice for any reason, you are required to provide sufficient documentation to Painting Practice supporting the withholding.
7. Records and Audits
You agree to keep accurate books and records related to your development, manufacture, Distribution, and sale of Products and related revenue. Painting Practice may conduct reasonable audits of those books and records. Audits will be conducted during business hours on reasonable prior notice to you. Painting Practice will bear the costs of audits unless the results show a shortfall in payments in excess of 5% during the period audited, in which case you will be responsible for the cost of the audit.
8. Support
Painting Practice does not have any support obligations with respect to the Licensed Technology under this Agreement. Support resources may be obtained at support@paintingpractice.com
9. Feedback and Contributions
If you provide Painting Practice with any Feedback, Painting Practice is free to use the Feedback however it chooses. If you make any Contribution available to Painting Practice, you hereby assign to Painting Practice all right, title, and interest (including all copyright, patent, and other intellectual property rights) in that Contribution for all current and future methods and forms of exploitation in any country. If any of those rights are not effectively assigned under applicable law, you hereby grant Painting Practice a non-exclusive, fully-paid, irrevocable, transferable, sublicensable license to reproduce, distribute, publicly perform, publicly display, make, use, have made, sell, offer to sell, import, modify and make derivative works based on, and otherwise exploit that Contribution for all current and future methods and forms of exploitation in any country. If any of those rights may not be assigned or licensed under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert all of those rights. However, you may continue to freely use any Feedback that you provide to Painting Practice, and you may continue to use, in any manner consistent with the License, any Contribution that you make available to Painting Practice.
You understand and agree that Painting Practice is not required to make any use of any Feedback or Contribution that you provide. You agree that if Painting Practice makes use of your Feedback or Contribution, Painting Practice is not required to credit or compensate you for your contribution.
You represent and warrant that you have sufficient rights in any Feedback or Contribution that you provide to Painting Practice to grant Painting Practice and other affected parties the rights described above. This includes but is not limited to intellectual property rights and other proprietary or personal rights.
10. Third Party Software
Plan V includes Third Party Software components. If Third Party Software has separate software license or attribution requirements, the license terms or other attribution requirements for Third Party Software components can be found in the installation directory for each Plan V version (under the /PlanV/Source/ThirdParty/Licenses sub-folder). By entering into this Agreement and using Third Party Software, you are accepting the terms of those licenses. In this case, the Third Party Software terms will govern your use of the Third Party Software, and if there is inconsistency, those terms will take precedence over the terms of the License for the Third Party Software. You agree that the owners of the Third Party Software are intended third party beneficiaries to this Agreement in relation to your uses of Third Party Software.
11. Ownership
Painting Practice or its licensors own all title, ownership rights, and intellectual property rights in Plan V and Content. You own all rights in the Products you develop under the License, other than Plan V and Content, Third Party Software, and any Contributions. All rights granted to you under this Agreement are granted by express license only and not by sale, and all of those rights are limited by the terms of this Agreement. No license or other rights will be created hereunder by implication, estoppel, or otherwise. Any attempted sublicense under this Agreement that is not consistent with the terms of this Agreement will be null and void.
12. Proprietary Notices and Attribution
You agree to retain and reproduce in all copies of the Licensed Technology the copyright, trademark, and other proprietary notices and disclaimers of Painting Practice and third parties as they appear in Plan V and the Content.
You agree to place the following notices in the credits (replacing xxxx with the current year) for any Product, to the extent such product has credits:
“[Product name] uses Plan V®. Plan V® is a trademark or registered trademark of Painting Practice Ltd. in the United Kingdom and elsewhere”
“Plan V®, Copyright 2019 – xxxx, Painting Practice Ltd. All rights reserved.”
No other license or right in the Painting Practice Trademarks is granted under this Agreement. All use of the Painting Practice Trademarks will insure to the sole benefit of Painting Practice. You agree not to engage in any activity that could tarnish, dilute, or affect the validity or enforceability of Painting Practice Trademarks or cause consumer confusion or diminish any goodwill relating to any Painting Practice Trademarks. If you wish to make further use of the Painting Practice Trademarks, please go to https://www.paintingpractice.com/planv
Painting Practice may use your trademarks, service marks, trade names, and logos used with any Product, as well as publicly released screen shots and video content from the Product, in connection with Painting Practice’s marketing, advertisement, and promotion of the Plan V® in any and all media without restriction.
13. Hardware and Usage Data
You acknowledge that, as a default setting, Plan V will collect and send to Painting Practice anonymous hardware and usage data from end users of Products. This functionality is used by Painting Practice to improve Plan V. You may modify the Plan V under the License to turn off that functionality in your Product.
14. Disclaimers and Limitation of Liability
The Licensed Technology, the Marketplace, and all other materials and information provided by Painting Practice (the “Painting Practice Materials”) are provided on an “as is” and “as available” basis, “with all faults” and without warranty of any kind. Painting Practice, its licensors, and its and their affiliates disclaim all warranties, conditions, common law duties, and representations (express, implied, oral, and written) with respect to the Painting Practice Materials, including without limitation all express, implied, and statutory warranties and conditions of any kind, such as title, non-interference with your enjoyment, authority, non-infringement, merchantability, fitness or suitability for any purpose (whether or not Painting Practice knows or has reason to know of that purpose), system integration, accuracy or completeness, results, reasonable care, workmanlike effort, lack of negligence, and lack of viruses, whether alleged to arise under law, by reason of custom or usage in the trade, or by course of dealing. Without limiting the generality of the foregoing, Painting Practice, its licensors, and its and their affiliates make no warranty that (1) any of the Painting Practice Materials will operate properly, including as integrated in any Product, (2) that the Painting Practice Materials will meet your requirements, (3) that the operation of the Painting Practice Materials will be uninterrupted, bug free, or error free in any or all circumstances, (4) that any defects in Painting Practice Materials can or will be corrected, (5) that Painting Practice Materials are or will be in compliance with a platform manufacturer’s rules or requirements, or (6) that a platform manufacturer will approve any of your Products, or will not revoke approval of any Product for any or no reason. Any warranty against infringement that may be provided in Section 2-312 of the Uniform Commercial Code or in any other comparable statute is expressly disclaimed. Painting Practice, its licensors, and its and their affiliates do not guarantee continuous, error-free, virus-free, or secure operation of or access to the Painting Practice Materials. This paragraph will apply to the maximum extent permitted by applicable law.
To the maximum extent permitted by applicable law, neither Painting Practice, its licensors, nor its or their affiliates, nor any of Painting Practice’s service providers, shall be liable in any way for loss or damage of any kind resulting from the use or inability to use Painting Practice Materials or otherwise in connection with this Agreement, including but not limited to loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses. In no event will Painting Practice, its licensors, nor its or their affiliates, nor any of Painting Practice’s service providers be liable for any loss of profits or any indirect, incidental, consequential, special, punitive, or exemplary damages, or any other damages arising out of or in connection with this Agreement or Painting Practice Materials, or the delay or inability to use or lack of functionality of Painting Practice Materials, even in the event of Painting Practice’s or its affiliates’ fault, tort (including negligence), strict liability, indemnity, product liability, breach of contract, breach of warranty, or otherwise and even if Painting Practice or its affiliates have been advised of the possibility of such damages. These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in those states or jurisdictions, the foregoing limitations of liability shall apply only to the full extent permitted by law.
15. Indemnity
You agree to indemnify, pay the defense costs of, and hold Painting Practice, its licensors, its and their affiliates, and its and their employees, officers, directors, agents, contractors, and other representatives harmless from all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs, and expert witnesses’ fees) that arise from or in connection with (a) any claim that, if true, would constitute a breach by you of this Agreement (including, without limitation, any Distribution or sublicensing of the Licensed Technology in violation of this Agreement) or negligence by you, (b) any claim brought by any third party to whom you Distribute or sublicense the Licensed Technology in violation of this Agreement (including without limitation any claim that the Licensed Technology infringes a patent), (c) any claim that any Product or any other matter you created, or your exercise of the Painting Practice Licenses, infringes any third party’s intellectual property rights or other proprietary or personal rights (except to the extent of any claim that your authorized use of unmodified Plan V or Content originally provided to you by Painting Practice under this Agreement infringes any United Kingdom patent, trademark or copyright), or (d) any federal, state, or foreign civil or criminal actions related to any Product. You agree to reimburse Painting Practice on demand for any defense costs incurred by Painting Practice and any payments made or loss suffered by Painting Practice , whether in a court judgment or settlement, based on any matter covered by this Section 15.
If you are prohibited by law from entering into the indemnification obligation above, then you assume, to the extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs and expert witnesses’ fees) that are the stated subject matter of the indemnification obligation above.
16. Export Compliance
You agree to comply with all applicable federal and foreign laws, regulations, and rules, and complete any required undertakings. You will obtain any necessary export license or other governmental approval prior to accessing, downloading, exporting, re-exporting, or releasing the Licensed Technology. You represent and warrant that you do not appear on any United Kingdom list of prohibited or restricted parties (including the Specially Designated Nationals List).
17. Term and Termination
A. Term of the License. This Agreement will continue in effect unless terminated as described below.
17. Term and Termination
A. Term of the License. This Agreement will continue in effect unless terminated as described below.
B. Termination by Painting Practice. Painting Practice may terminate the Agreement by providing written notice if you materially breach any provision of this Agreement and the breach is not curable or, if it is curable, you fail to cure the breach within thirty (30) days of notice of the breach from Painting Practice. Without limiting the foregoing, your failure to make any payment due under this Agreement or breach of any restriction under the Painting Practice Licenses constitutes a material breach of this Agreement.
C. Termination for Patent Action. The Agreement will terminate automatically as of the date you commence any claim that the Licensed Technology infringes a patent, or otherwise support any claim by a third party that the Licensed Technology infringes a patent.
D. Effect of Termination. Upon any termination, Painting Practice Licenses will automatically terminate, you may no longer exercise any of the rights granted to you by Painting Practice Licenses, and you must destroy all copies of the Licensed Technology in your possession and cease distributing any Products developed under this Agreement (other than Unrestricted Products). Within 30 days of termination, unless otherwise agreed by Painting Practice, you must destroy all Products in your inventory (other than Unrestricted Products).
E. No Refunds
Except to the extent required by law, all payments, fees and royalties are non-refundable under all circumstances, regardless of whether or not this Agreement has been terminated.
F. Surviving Provisions
Sections 5-7, 9-11, 13-15, 17-19, and 23-24 will survive termination of this Agreement.
18. Governing Law and Jurisdiction -
You agree that this Agreement will be deemed to have been made and executed in England and Wales, and any dispute will be resolved in accordance with the laws of England and Wales.
19. Class Action Waiver
You agree not to bring or participate in a class or representative action, private attorney general action, or collective arbitration related to the Licensed Technology or this Agreement. You also agree not to seek to combine any action or arbitration related to the Licensed Technology or this Agreement with any other action or arbitration without the consent of all parties to this Agreement and all other actions or arbitrations
20. Independent Contractor
You and Painting Practice are independent contractors and are not the legal representative, agent, joint venture, partner, or employee of the other. Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party.
21. Amendments of this Agreement
Painting Practice may issue an amended Agreement at any time in its discretion by providing notice to you or by providing you with digital access to the amended Agreement when you next log in to your Account, access the Marketplace, or download additional Content or new Versions. You are not required to accept the amended Agreement. However, in order to continue accessing your Account or the Marketplace or to download or use additional Content or new Versions, you must accept the amended Agreement. By logging in to your Account, using the Marketplace, or downloading or using additional Content or a new Version, you hereby agree to be bound by the amended Agreement then most recently issued by Painting Practice. If you do not accept the amended Agreement, you may not log in to your Account, access the Marketplace, download or use additional Content, or download or use any new Version that is made available by Painting Practice contemporaneously with or after the issuance of that amended Agreement (but this will not terminate your License for the Licensed Technology that you downloaded prior to the issuance of the amended Agreement). If you are a legal entity, acceptance of an amended Agreement by any of your Users will be binding on you.
22. Notices
Where this Agreement calls for notice from Painting Practice, including written notice, Painting Practice may provide notice to you at the email address that you provided when you registered for the License (or any updated email address you subsequently provide). Painting Practice’s notices to you will be effective when they are sent to that email address.
23. No Assignment
You may not, without the prior written consent of Painting Practice, assign, transfer, charge, or sub-contract all or any of your rights or obligations under this Agreement, and any attempt without that consent will be null and void. You also may not transfer your Account. Painting Practice may at any time assign, transfer, charge, or sub-contract all or any of its rights or obligations under this Agreement. For clarity, you are not prohibited by Painting Practice from assigning or transferring your rights in your Product, other than the Plan V, Content, and Contributions. Third Party Software assignment and transfer is governed by the terms of the applicable licenses.
24. Definitions
As used in this Agreement, the following capitalized words have the following meanings:
“Academic Institution” means any educational institution such as, but not limited to, a university, college, or high school, as well as libraries.
“Account” means a user account with a unique ID and associated password selected by you or us, depending from the type of account, which enables you to download Plan V and Content under the License.
“Content” means any code, artwork, or other content that Painting Practice makes available to you for use with Plan V. For clarity, Content includes but is not limited to Paid Content and Plan V-Only Content.
“Contribution” means any code, whether in Source Code format or object code format, or any other information or content, that you make available to Painting Practice by any means (e.g., via submissions to forums, wiki, Painting Practice’s GitHub Painting Practice Network, or through email or otherwise). However, code, information, or content that you only make available to Painting Practice as part of a Marketplace Submission at plan-v@paintingpractice.com, and any Modified Plan V Tools Package that you provide to Painting Practice for Distribution, do not constitute Contributions. In addition, mere use of code or content with the Licensed Technology, without making that code or content available to Painting Practice, does not constitute a Contribution.
“Custom License” means any agreement between you Painting Practice, or any sublicensor authorized by Painting Practice, other than this Agreement or any amendment to this Agreement, under which you are granted a license to use the Plan V® to develop one or more product(s), other than Plan V® Creator EULA.
“Custom Product” means a product developed pursuant to a Custom License.
“Distribute” means to provide or otherwise make a copy available, or to make its functionality available on a network.
“Plan V and/or Plan V Code” means the Source Code and object code of the Plan V®, including any future Versions, as made available to you by Painting Practice under this Agreement, and any object code compiled from that Source Code.
“Painting Practice Licensee” means a third party who is separately licensed by Painting Practice to use the Plan V Code and Content.
“Plan V Tools” means (a) editors and other tools included in Plan V; (b) any code and modules in either the Developer or Editor folders, including in object code format, whether statically or dynamically linked; and (c) other software that may be used to develop standalone products based on the Licensed Technology.
“Painting Practice” means, depending on the location of your primary residence or primary place of business: The Old Workshop, 1 Ecclesall Road South, Sheffield, S11 9PA
“Plan V Licenses and/or Painting Practice Licenses” means the License.
“Painting Practice Trademarks” means the trademarks, service marks, trade names and logos associated with Painting Practice, Painting Practice’s games and other intellectual property, and Plan V®.
“Examples” means the Plan V and Content made available by Painting Practice in the Samples and Templates folders in the install directory or in the Content Examples projects available through the Marketplace.
“Feedback” means any feedback or suggestions that you provide to Painting Practice regarding the Licensed Technology or the Marketplace.
“Licensed Technology” means any or all of Plan V and the Content, including as modified by you under the License.
“Location-Based Experience” means a Product that is used, displayed, and performed solely at a physical location under the control of You or Your authorized distributors and that is not otherwise Distributed to users.
“Marketplace” means Plan V® digital marketplace or other Plan V® learning resource maintained by Painting Practice or its affiliates, through which, among other things, Painting Practice makes certain Content and Plan V available for use under the License.
“Modified Plan V Tools Package” means (a) Plan V Tools, as modified by you under the License, that you provide to Painting Practice for Distribution, and (b) any code, artwork, or other content that you provide to Painting Practice for Distribution for use with the modified Plan V Tools.
“Paid Content” means Content made available to you through the Marketplace for an additional fee, including but not limited to Paid Plug-ins.
“Paid Plug-in” means any Paid Content which includes a C++ code plug-in.
“Paid Plug-in User” means, for a particular Paid Plug-in, your individual employee or contractor for whom you have purchased the right to have your License include their use.
“Product” means any product developed under this Agreement that is made using the Licensed Technology or that combines the Licensed Technology with any other software or content, regardless of how much or little of the Licensed Technology is used.
“Source Code” means the human readable form of a software program, including all modules it contains, plus any associated interface definition files, scripts used to control compilation, and installation of an executable (object code).
“Third Party Licensor Content” means third party content to which Painting Practice displays links in the Marketplace and that is designated in the Marketplace as content licensed directly from the third party content provider.
“Third Party Software” means third party software components included in Plan V. For avoidance of doubt, software in the following directory - (LIST OF SOFTWARES TO ADD) is not Third Party Software under this Agreement and is not distributed under this Agreement.
“PV-Only Content” means Content that is designated in the Marketplace as usable only in conjunction with Plan V Code.
“Plan V®” means the proprietary computer software program known as Plan V ® and any updates or upgrades to the program made available by Painting Practice.
“Plan V® Creator EULA” means Plan V® End User License Agreement for Creators
“Plan V® Creator Product” means a product developed pursuant to Plan V® Creator EULA.
“User” means an individual user who uses a valid Account to access Plan V, Content, and the Marketplace. If you are an individual, “User” means you. For legal entities, “User” means the individual employee or agent through whom you are exercising rights under this Agreement.
“Version” means any updated or upgraded version of Plan V or Content that Painting Practice chooses to make available to the public.
“You,” “your” or “yourself”, whether or not capitalized in this Agreement, means you as an individual or the legal entity exercising rights under this Agreement through you. For legal entities, “you,” “your” and “yourself” include any entity that controls, is controlled by, or is under common control with you, where “control” means the power, direct or indirect, to cause the direction or management of the entity in question, whether by contract or otherwise, or ownership of 50% or more of the outstanding shares or beneficial ownership of the entity in question.
26. Custom Licenses
Neither Custom Licenses nor Plan V® Creator EULA are modified or otherwise affected by this Agreement. For Custom Products or Plan V® Creator Products, the terms of your applicable Custom License or, with respect to Plan V® Creator Products, Plan V® Creator EULA will govern all matters (including royalties, notifications, Feedback, Contributions, trademarks, service marks, trade names, logos, screen shots, and video content related to those Custom Products or Plan V® Creator Products) related to your use of the code, artwork, and content that are licensed to you under that Custom License or Plan V® Creator EULA, as applicable, instead of the terms of this Agreement.
You may exercise your rights in Paid Content under this License in connection with Custom Products or Plan V® Creator Products that are developed and Distributed under your Custom License or Plan V® Creator EULA, as applicable, as if they were Products developed and Distributed under the License. However, your exercise of those rights in connection with Custom Products and Plan V® Creator Products is governed by and subject to the terms of this Agreement, including without limitation all obligations and limitations that apply to use of Paid Content in connection with Products, as well as all disclaimers, limitations of liability, and indemnification rights of Painting Practice, whether related to Paid Content, Products, or otherwise. Despite this, no royalty is owed under this Agreement on Custom Products, but royalties may be owed on Custom Products under the terms of a Custom License.
As used in this Agreement, the defined term “Product” does not include Custom Products or Plan V® Creator Products, and except as described above, the terms of this Agreement applicable to Products do not apply to Custom Products or Plan V® Creator Products.
27. Miscellaneous
This Agreement and any document or information referred to in this Agreement constitute the entire agreement between you and Painting Practice relating to the subject matter covered by this Agreement. All other communications, proposals, and representations with respect to the subject matter covered by this Agreement are excluded.
The original of this Agreement is in English; any translations are provided for reference purposes only. You waive any right you may have under the law of your country to have this Agreement written or construed in the language of any other country.
This Agreement describes certain legal rights. You may have other rights under the laws of your jurisdiction. This Agreement does not change your rights under the laws of your jurisdiction if the laws of your jurisdiction do not permit it to do so. Limitations and exclusions of warranties and remedies in this Agreement may not apply to you because your jurisdiction may not allow them in your particular circumstance. In the event that certain provisions of this Agreement are not enforceable in your jurisdiction, those provisions shall be enforceable to the furthest extent possible under applicable law.
Any act by Painting Practice to exercise, or failure or delay in exercise of, any of its rights under this Agreement, at law or in equity will not be deemed a waiver of those or any other rights or remedies available in contract, at law or in equity.
Unless otherwise stated in this Agreement, if any term of this Agreement is held by a court or tribunal of competent jurisdiction to be unenforceable, the term will be enforced to the maximum extent permissible and the remaining terms of this Agreement will remain in full force and effect. You agree that this Agreement does not confer any rights or remedies on any person other than the parties to this Agreement, except as expressly stated.
Painting Practice’s obligations are subject to existing laws and legal process, and Painting Practice may comply with law enforcement or regulatory requests or requirements despite any contrary term in this Agreement.
Please read this Agreement carefully. It is a legal document that explains your rights and obligations related to your use of Plan V® and related content. By downloading or using this software or any related content, you are agreeing to be bound by the terms of this Agreement. If you do not or cannot agree to the terms of this Agreement, please do not download or use this software or any related content.
Certain words or phrases are defined to have certain meanings when used in this Agreement. Those words and phrases are defined below in Section 25.
If your primary residence (or primary place of business, if you are a legal entity like a corporation or an academic institution) is inside or outside the United Kingdom, your agreement is with Painting Practice Ltd.
1. License Grant
Painting Practice grants you a non-exclusive, non-transferable, non-sublicensable (except as described in this Agreement) license to use, reproduce, display, and perform the Licensed Technology for any lawful purpose (the “License”). However, the rights that Painting Practice grants you under the License are subject to the terms of this Agreement, and you may only make use of the License if you comply with all applicable terms.
The License becomes effective on the date you accept this Agreement or download Plan V or any Content. The License does not grant you any title or ownership in the Licensed Technology.
(A) Allowed forms of Distribution and Sublicensing
There is no restriction on your Distribution of a Product made using the Licensed Technology that does not include any Plan V or any Paid Content Distributed in uncooked source format (in each case, including as modified by you under the License) and does not require any Licensed Technology (including as modified by you under the License) to run (“Unrestricted Products”). For clarity, the foregoing does not constitute a license under any patents, copyrights, trademarks, trade secrets or other intellectual property rights, whether by implication, estoppel or otherwise.
You may only Distribute the Licensed Technology as follows:
a. Distribution to end users - You may Distribute the Licensed Technology incorporated in object code format only as an inseparable part of a Product to end users who are subject to an end user license agreement which explicitly disclaims any representations, warranties, conditions, and liabilities related to the Licensed Technology. The Product may not contain any Paid Content Distributed in uncooked source format or any Plan V Tools.
b. Distributions to employees and contractors - You also may Distribute Content (other than Paid Plug-ins) to a Plan V Licensee who is your employee or your contractor who does not have rights under their license to the same Content, but only to permit that Plan V Licensee to utilize that Content in good faith to develop a Product on your behalf for Distribution by you under the License, and not for the purpose of Content pooling or any other Distribution or sub-licensing of Content that is not permitted under this Agreement. Recipients of such a Distribution have a limited license to use, reproduce, display, perform, and modify that Content to develop your Product as outlined above, and for no other purpose.
d. Distribution of Paid Plug-ins - You may Distribute Paid Plug-ins to each of your Paid Plug-in Users so that they may use those Paid Plug-ins on your behalf under the License.
e. Distribution and sublicensing of Examples - You may Distribute or sublicense Examples (including as modified by you under the License) in Source Code or object code format to any third party. However, the rights in this Section 1(e) do not expand or modify your limited Distribution and sublicensing rights for Plan V Code and Content (including as modified by you under the License) that are not Examples.
f. You may not Distribute an integration of a programming language other than C++ for the Licensed Technology.
You are not permitted to post snippets of Plan V Code online or any type of public forums.
You may not sublicense the Licensed Technology in Source Code format. You may not sublicense the Licensed Technology in object code format, or any Content, except to grant end users the ability to use, or to permit your publishers and distributors to market and Distribute, a Product that you Distribute as permitted in Section 1(a) above. This paragraph does not limit your rights to Distribute and sublicense Examples.
When you generate revenue from a Product or Distribute it to end users, you must provide Painting Practice with advance notification at plan-v@paintingpractice.com, as early as reasonably possible, including the name of the Product, the format of distribution, unique Product id (where applicable), and the distribution channel(s).
(B) Other Restrictions
(i) Plan V-Only Content
For Plan V-Only Content, you may exercise your rights under the License only if and to the extent that the Plan V -Only Content is utilized in a Product that requires Plan V Code to operate or is a non-interactive linear media product (e.g., broadcast or streamed video files, cartoons, movies, or images) rendered using Plan V Code. The Plan V -Only Content is subject to all of the terms of this Agreement that apply to Content, as well as the additional limitations described in this paragraph. All references in this paragraph to Plan V -Only Content include modified versions thereof made by you under the License.
(ii) Non-Compatible Licenses
You may not combine, Distribute, or otherwise use the Licensed Technology with any code or other content which is covered by a license that would directly or indirectly require that all or part of the Licensed Technology be governed under any terms other than those of this Agreement (“Non-Compatible License”). Code or content under the following licenses, for example, are prohibited: GNU General Public License (GPL), Lesser GPL (LGPL) (unless you are merely dynamically linking a shared library), or Creative Commons Attribution-ShareAlike License. Code or content under the following licenses, for example, are allowed: BSD License, MIT License, Microsoft Public License, or Apache License. You may not sublicense the Licensed Technology under a Non-Compatible License.
(iii) General Restrictions
You may not engage in any activity with respect to the Licensed Technology, including as incorporated into a Product, (1) in violation of any applicable law or regulation; (2) in which the Licensed Technology is rented or leased; (3) that misappropriates any of Plan V’s other products or services; (4) in support of a claim by you or any third party that the Licensed Technology infringes a patent. You also may not sell or grant a security interest in the Licensed Technology.
2. User License
The Licensed Technology is licensed to you for use by a single User (other than Paid Plug-ins, which may also be used by your Paid Plug-in Users as described below). The User may store the Licensed Technology on any of the User’s computers, but the Licensed Technology cannot be shared with others (including any other employees or agents) except through a permitted Distribution as described above.
In order to access and download the Plan V and Content, you must set up an Account. You may not share or allow others to use your Account. You are responsible for the security of your Account.
Under the License, the User may use the Licensed Technology for as long as you comply with this Agreement. If you are a legal entity, references to “you” in this agreement also apply to the User in all cases. You are responsible for the User’s compliance with this Agreement.
For Paid Plug-ins, in addition to use by a single User, each Paid Plug-in User with respect to whom you have paid the associated fee may store the Paid Plug-in on any of the Paid Plug-in User’s computers and may use the Paid Plug-in on your behalf under the License, but the Paid Plug-in cannot be otherwise shared with others except through a permitted Distribution as described above. You are responsible for each Paid Plug-in User’s compliance with this Agreement.
If you are an Academic Institution, your use is not limited to a single User for any Licensed Technology other than Paid Content. Instead, you may store that Licensed Technology on any of your computers, and you may allow all users of those computers to use that Licensed Technology under the License. However, those users are not authorized under your License to Distribute or sublicense the Licensed Technology (including as incorporated in a Product) or to use Plan V and/or the Content commercially. For that, they must obtain a License of their own.
3. New Versions and Content
During the term of your License, you will be entitled to access future Versions of Plan V and new Content that Painting Practice chooses to make available to you. Painting Practice does not have any obligation to make new Versions of Plan V or new Content available. Nor does Painting Practice have any obligation to continue to make available for access or download any or all Versions of Plan V or Content. However, any Versions of the Plan V and Content that Painting Practice has made available to you, and for which you have accepted any applicable amendment to this Agreement as described in Section 22, are considered part of the Licensed Technology and may be used under the License (as amended by that amendment).
4. Paid Content
Painting Practice may make Paid Content available to you for a fee. Your License to Paid Content is subject to your payment of the associated fee. In addition, your Paid Plug-in Users’ use of any Paid Plug-in under the License is subject to your payment of the associated fee for each Paid Plug-in User for that Paid Plug-in. When you pay the fee to obtain Paid Content, you are purchasing from Painting Practice the right to have your License include that Paid Content. Regardless of any references Painting Practice may make outside this Agreement to purchasing or selling Paid Content, Paid Content is licensed, not sold, to you under the License.
When you provide payment information to Painting Practice or its authorized processor, you represent that you are an authorized user of the payment card, PIN, key, account, or other payment method specified by you, and you authorize Painting Practice to charge such payment method for the full amount of the transaction.
From time to time, Painting Practice may display links to Third Party Licensor Content on the Marketplace. Painting Practice does not license or provide Third Party Licensor Content to you under this Agreement. Any use of Third Party Licensor Content requires you to enter into a separate license agreement directly with the provider of the Third Party Licensor Content. The terms of your license agreement with the provider of the Third Party Licensor Content will govern all matters related to your use of Third Party Licensor Content rather than the terms of this Agreement.
5. Royalty
You agree to pay Painting Practice a royalty equal to 5% of all worldwide gross revenue actually attributable to each Product, regardless of whether that revenue is received by you or any other person or legal entity, as follows:
a. Gross revenue resulting from any and all sales of a Product to end users through any and all media, including but not limited to digital and retail;
b. Gross revenue resulting from any and all in-app purchases, downloadable content, microtransactions, subscriptions, sale, transfer, or exchange of content created by end users for use with a Product, or redemption of virtual currency, either within a Product or made externally but which directly affect the operation of the Product;
c. Gross revenue from any Kickstarter or other crowdfunding campaign which is directly associated with Product access or in-Product benefit (e.g., in a multi-tiered campaign, if an amount is established in an early tier solely for Product access, your royalty obligation will apply to that amount for each backer with the same access, but not on additional amounts in higher tiers based on ancillary benefits);
d. Your revenue from in-app advertising and affiliate programs;
e. Revenue from advance payments for a Product (from a publisher or otherwise);
f. Revenue received in connection with a Product’s inclusion in a streaming, subscription, or other game-delivery service (e.g., Apple Arcade, Microsoft GamePass, or any similar or successor services), including without limitation development funds and bonuses; and
g. Revenue in any other form actually attributable to a Product (unless excluded below).
However, no royalty is owed on the following forms of revenue:
1. The first £3,000.00 in gross revenue for each Product per calendar quarter;
2. The first £5,000,000.00 in gross revenue for each Product built in Virtual Reality.
3. Consulting fees or work-for-hire fees which are non-recoupable for services performed using the Licensed Technology (e.g., an architect-created walkthrough simulation or a contractor-developed in-house training simulator);
4. Revenue from an Unrestricted Product, including for clarity, revenue from a Product which solely relies on the Licensed Technology for production of non-interactive linear media (e.g., broadcast or streamed video files, cartoons, or movies) and which is Distributed in a form that does not contain the Licensed Technology or, in order to deliver, rely on servers running the Licensed Technology;
5. Revenue from a Product which is only Distributed to Plan V Licensees (such as through the Marketplace);
6. Revenue from ancillary products which are not software and which do not contain embedded information (such as QR codes) which affects the operation of the Product (e.g., comic books, soundtracks, apparel);
7. Financial winnings generated by awards for the Product;
8. Revenue from donations for a Product which are not tied to Product access or in-Product benefits;
9. Revenue from Location-Based Experiences, such as interactive amusement park rides, coin-op arcades, or VR experiences, which use the Licensed Technology; and
10. Revenue collected from an end-user buyer of in-game items or other in-game content for your Product which is sold by an end-user seller and which is actually paid to the end-user seller and is not retained by you or any other party.
The royalty is based on gross revenue from end users, regardless of whether you sell your Product to end users directly, self-publish via the App Store or any similar store, or work with a publisher. The following simplified example illustrates the application of the royalty to gross sales: if your Product earns £10 on the App Store, Apple may pay you £7 (having deducted 30% as a distribution fee), but your royalty to Painting Practice would still be 5% of £10 (or £0.50).
Royalties that you pay on an advance payment of revenue for a Product that is recoupable by the payer, such as a publisher, may be credited against future royalty payments that you incur under this Agreement for that Product.
Royalties must be reported and paid on a per-Product basis. The £3,000 per Product per calendar quarter royalty exemption may not be aggregated across multiple Products.
Within 45 days after the end of each calendar quarter in which a Product earns revenue outside of the above-listed royalty exclusions, you must pay to Painting Practice the full amount of the royalty due for that quarter and send Painting Practice a royalty report on a per Product basis. Detailed information on royalty reporting and payment can be found at www.paintingpractice.com/planv
The royalty will be payable under this Agreement with respect to each Product for as long as Plan V or Content (including as modified by you under the License) incorporated in or used to make the Product are protected under copyright or other applicable intellectual property law.
6. Payments
Painting Practice reserves the right to charge a 2% late fee, per calendar quarter (compounding), for any amounts unpaid after the required due date.
You are responsible for all taxes on all payments required to be made by you under this Agreement (other than taxes that Painting Practice is obligated to pay on its income, which are Painting Practice’s responsibility). If you are required by a government agency to reduce your payment to Painting Practice for any reason, you are required to provide sufficient documentation to Painting Practice supporting the withholding.
7. Records and Audits
You agree to keep accurate books and records related to your development, manufacture, Distribution, and sale of Products and related revenue. Painting Practice may conduct reasonable audits of those books and records. Audits will be conducted during business hours on reasonable prior notice to you. Painting Practice will bear the costs of audits unless the results show a shortfall in payments in excess of 5% during the period audited, in which case you will be responsible for the cost of the audit.
8. Support
Painting Practice does not have any support obligations with respect to the Licensed Technology under this Agreement. Support resources may be obtained at support@paintingpractice.com
9. Feedback and Contributions
If you provide Painting Practice with any Feedback, Painting Practice is free to use the Feedback however it chooses. If you make any Contribution available to Painting Practice, you hereby assign to Painting Practice all right, title, and interest (including all copyright, patent, and other intellectual property rights) in that Contribution for all current and future methods and forms of exploitation in any country. If any of those rights are not effectively assigned under applicable law, you hereby grant Painting Practice a non-exclusive, fully-paid, irrevocable, transferable, sublicensable license to reproduce, distribute, publicly perform, publicly display, make, use, have made, sell, offer to sell, import, modify and make derivative works based on, and otherwise exploit that Contribution for all current and future methods and forms of exploitation in any country. If any of those rights may not be assigned or licensed under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert all of those rights. However, you may continue to freely use any Feedback that you provide to Painting Practice, and you may continue to use, in any manner consistent with the License, any Contribution that you make available to Painting Practice.
You understand and agree that Painting Practice is not required to make any use of any Feedback or Contribution that you provide. You agree that if Painting Practice makes use of your Feedback or Contribution, Painting Practice is not required to credit or compensate you for your contribution.
You represent and warrant that you have sufficient rights in any Feedback or Contribution that you provide to Painting Practice to grant Painting Practice and other affected parties the rights described above. This includes but is not limited to intellectual property rights and other proprietary or personal rights.
10. Third Party Software
Plan V includes Third Party Software components. If Third Party Software has separate software license or attribution requirements, the license terms or other attribution requirements for Third Party Software components can be found in the installation directory for each Plan V version (under the /PlanV/Source/ThirdParty/Licenses sub-folder). By entering into this Agreement and using Third Party Software, you are accepting the terms of those licenses. In this case, the Third Party Software terms will govern your use of the Third Party Software, and if there is inconsistency, those terms will take precedence over the terms of the License for the Third Party Software. You agree that the owners of the Third Party Software are intended third party beneficiaries to this Agreement in relation to your uses of Third Party Software.
11. Ownership
Painting Practice or its licensors own all title, ownership rights, and intellectual property rights in Plan V and Content. You own all rights in the Products you develop under the License, other than Plan V and Content, Third Party Software, and any Contributions. All rights granted to you under this Agreement are granted by express license only and not by sale, and all of those rights are limited by the terms of this Agreement. No license or other rights will be created hereunder by implication, estoppel, or otherwise. Any attempted sublicense under this Agreement that is not consistent with the terms of this Agreement will be null and void.
12. Proprietary Notices and Attribution
You agree to retain and reproduce in all copies of the Licensed Technology the copyright, trademark, and other proprietary notices and disclaimers of Painting Practice and third parties as they appear in Plan V and the Content.
You agree to place the following notices in the credits (replacing xxxx with the current year) for any Product, to the extent such product has credits:
“[Product name] uses Plan V®. Plan V® is a trademark or registered trademark of Painting Practice Ltd. in the United Kingdom and elsewhere”
“Plan V®, Copyright 2019 – xxxx, Painting Practice Ltd. All rights reserved.”
No other license or right in the Painting Practice Trademarks is granted under this Agreement. All use of the Painting Practice Trademarks will insure to the sole benefit of Painting Practice. You agree not to engage in any activity that could tarnish, dilute, or affect the validity or enforceability of Painting Practice Trademarks or cause consumer confusion or diminish any goodwill relating to any Painting Practice Trademarks. If you wish to make further use of the Painting Practice Trademarks, please go to https://www.paintingpractice.com/planv
Painting Practice may use your trademarks, service marks, trade names, and logos used with any Product, as well as publicly released screen shots and video content from the Product, in connection with Painting Practice’s marketing, advertisement, and promotion of the Plan V® in any and all media without restriction.
13. Hardware and Usage Data
You acknowledge that, as a default setting, Plan V will collect and send to Painting Practice anonymous hardware and usage data from end users of Products. This functionality is used by Painting Practice to improve Plan V. You may modify the Plan V under the License to turn off that functionality in your Product.
14. Disclaimers and Limitation of Liability
The Licensed Technology, the Marketplace, and all other materials and information provided by Painting Practice (the “Painting Practice Materials”) are provided on an “as is” and “as available” basis, “with all faults” and without warranty of any kind. Painting Practice, its licensors, and its and their affiliates disclaim all warranties, conditions, common law duties, and representations (express, implied, oral, and written) with respect to the Painting Practice Materials, including without limitation all express, implied, and statutory warranties and conditions of any kind, such as title, non-interference with your enjoyment, authority, non-infringement, merchantability, fitness or suitability for any purpose (whether or not Painting Practice knows or has reason to know of that purpose), system integration, accuracy or completeness, results, reasonable care, workmanlike effort, lack of negligence, and lack of viruses, whether alleged to arise under law, by reason of custom or usage in the trade, or by course of dealing. Without limiting the generality of the foregoing, Painting Practice, its licensors, and its and their affiliates make no warranty that (1) any of the Painting Practice Materials will operate properly, including as integrated in any Product, (2) that the Painting Practice Materials will meet your requirements, (3) that the operation of the Painting Practice Materials will be uninterrupted, bug free, or error free in any or all circumstances, (4) that any defects in Painting Practice Materials can or will be corrected, (5) that Painting Practice Materials are or will be in compliance with a platform manufacturer’s rules or requirements, or (6) that a platform manufacturer will approve any of your Products, or will not revoke approval of any Product for any or no reason. Any warranty against infringement that may be provided in Section 2-312 of the Uniform Commercial Code or in any other comparable statute is expressly disclaimed. Painting Practice, its licensors, and its and their affiliates do not guarantee continuous, error-free, virus-free, or secure operation of or access to the Painting Practice Materials. This paragraph will apply to the maximum extent permitted by applicable law.
To the maximum extent permitted by applicable law, neither Painting Practice, its licensors, nor its or their affiliates, nor any of Painting Practice’s service providers, shall be liable in any way for loss or damage of any kind resulting from the use or inability to use Painting Practice Materials or otherwise in connection with this Agreement, including but not limited to loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses. In no event will Painting Practice, its licensors, nor its or their affiliates, nor any of Painting Practice’s service providers be liable for any loss of profits or any indirect, incidental, consequential, special, punitive, or exemplary damages, or any other damages arising out of or in connection with this Agreement or Painting Practice Materials, or the delay or inability to use or lack of functionality of Painting Practice Materials, even in the event of Painting Practice’s or its affiliates’ fault, tort (including negligence), strict liability, indemnity, product liability, breach of contract, breach of warranty, or otherwise and even if Painting Practice or its affiliates have been advised of the possibility of such damages. These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in those states or jurisdictions, the foregoing limitations of liability shall apply only to the full extent permitted by law.
15. Indemnity
You agree to indemnify, pay the defense costs of, and hold Painting Practice, its licensors, its and their affiliates, and its and their employees, officers, directors, agents, contractors, and other representatives harmless from all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs, and expert witnesses’ fees) that arise from or in connection with (a) any claim that, if true, would constitute a breach by you of this Agreement (including, without limitation, any Distribution or sublicensing of the Licensed Technology in violation of this Agreement) or negligence by you, (b) any claim brought by any third party to whom you Distribute or sublicense the Licensed Technology in violation of this Agreement (including without limitation any claim that the Licensed Technology infringes a patent), (c) any claim that any Product or any other matter you created, or your exercise of the Painting Practice Licenses, infringes any third party’s intellectual property rights or other proprietary or personal rights (except to the extent of any claim that your authorized use of unmodified Plan V or Content originally provided to you by Painting Practice under this Agreement infringes any United Kingdom patent, trademark or copyright), or (d) any federal, state, or foreign civil or criminal actions related to any Product. You agree to reimburse Painting Practice on demand for any defense costs incurred by Painting Practice and any payments made or loss suffered by Painting Practice , whether in a court judgment or settlement, based on any matter covered by this Section 15.
If you are prohibited by law from entering into the indemnification obligation above, then you assume, to the extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs and expert witnesses’ fees) that are the stated subject matter of the indemnification obligation above.
16. Export Compliance
You agree to comply with all applicable federal and foreign laws, regulations, and rules, and complete any required undertakings. You will obtain any necessary export license or other governmental approval prior to accessing, downloading, exporting, re-exporting, or releasing the Licensed Technology. You represent and warrant that you do not appear on any United Kingdom list of prohibited or restricted parties (including the Specially Designated Nationals List).
17. Term and Termination
A. Term of the License. This Agreement will continue in effect unless terminated as described below.
17. Term and Termination
A. Term of the License. This Agreement will continue in effect unless terminated as described below.
B. Termination by Painting Practice. Painting Practice may terminate the Agreement by providing written notice if you materially breach any provision of this Agreement and the breach is not curable or, if it is curable, you fail to cure the breach within thirty (30) days of notice of the breach from Painting Practice. Without limiting the foregoing, your failure to make any payment due under this Agreement or breach of any restriction under the Painting Practice Licenses constitutes a material breach of this Agreement.
C. Termination for Patent Action. The Agreement will terminate automatically as of the date you commence any claim that the Licensed Technology infringes a patent, or otherwise support any claim by a third party that the Licensed Technology infringes a patent.
D. Effect of Termination. Upon any termination, Painting Practice Licenses will automatically terminate, you may no longer exercise any of the rights granted to you by Painting Practice Licenses, and you must destroy all copies of the Licensed Technology in your possession and cease distributing any Products developed under this Agreement (other than Unrestricted Products). Within 30 days of termination, unless otherwise agreed by Painting Practice, you must destroy all Products in your inventory (other than Unrestricted Products).
E. No Refunds
Except to the extent required by law, all payments, fees and royalties are non-refundable under all circumstances, regardless of whether or not this Agreement has been terminated.
F. Surviving Provisions
Sections 5-7, 9-11, 13-15, 17-19, and 23-24 will survive termination of this Agreement.
18. Governing Law and Jurisdiction -
You agree that this Agreement will be deemed to have been made and executed in England and Wales, and any dispute will be resolved in accordance with the laws of England and Wales.
19. Class Action Waiver
You agree not to bring or participate in a class or representative action, private attorney general action, or collective arbitration related to the Licensed Technology or this Agreement. You also agree not to seek to combine any action or arbitration related to the Licensed Technology or this Agreement with any other action or arbitration without the consent of all parties to this Agreement and all other actions or arbitrations
20. Independent Contractor
You and Painting Practice are independent contractors and are not the legal representative, agent, joint venture, partner, or employee of the other. Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party.
21. Amendments of this Agreement
Painting Practice may issue an amended Agreement at any time in its discretion by providing notice to you or by providing you with digital access to the amended Agreement when you next log in to your Account, access the Marketplace, or download additional Content or new Versions. You are not required to accept the amended Agreement. However, in order to continue accessing your Account or the Marketplace or to download or use additional Content or new Versions, you must accept the amended Agreement. By logging in to your Account, using the Marketplace, or downloading or using additional Content or a new Version, you hereby agree to be bound by the amended Agreement then most recently issued by Painting Practice. If you do not accept the amended Agreement, you may not log in to your Account, access the Marketplace, download or use additional Content, or download or use any new Version that is made available by Painting Practice contemporaneously with or after the issuance of that amended Agreement (but this will not terminate your License for the Licensed Technology that you downloaded prior to the issuance of the amended Agreement). If you are a legal entity, acceptance of an amended Agreement by any of your Users will be binding on you.
22. Notices
Where this Agreement calls for notice from Painting Practice, including written notice, Painting Practice may provide notice to you at the email address that you provided when you registered for the License (or any updated email address you subsequently provide). Painting Practice’s notices to you will be effective when they are sent to that email address.
23. No Assignment
You may not, without the prior written consent of Painting Practice, assign, transfer, charge, or sub-contract all or any of your rights or obligations under this Agreement, and any attempt without that consent will be null and void. You also may not transfer your Account. Painting Practice may at any time assign, transfer, charge, or sub-contract all or any of its rights or obligations under this Agreement. For clarity, you are not prohibited by Painting Practice from assigning or transferring your rights in your Product, other than the Plan V, Content, and Contributions. Third Party Software assignment and transfer is governed by the terms of the applicable licenses.
24. Definitions
As used in this Agreement, the following capitalized words have the following meanings:
“Academic Institution” means any educational institution such as, but not limited to, a university, college, or high school, as well as libraries.
“Account” means a user account with a unique ID and associated password selected by you or us, depending from the type of account, which enables you to download Plan V and Content under the License.
“Content” means any code, artwork, or other content that Painting Practice makes available to you for use with Plan V. For clarity, Content includes but is not limited to Paid Content and Plan V-Only Content.
“Contribution” means any code, whether in Source Code format or object code format, or any other information or content, that you make available to Painting Practice by any means (e.g., via submissions to forums, wiki, Painting Practice’s GitHub Painting Practice Network, or through email or otherwise). However, code, information, or content that you only make available to Painting Practice as part of a Marketplace Submission at plan-v@paintingpractice.com, and any Modified Plan V Tools Package that you provide to Painting Practice for Distribution, do not constitute Contributions. In addition, mere use of code or content with the Licensed Technology, without making that code or content available to Painting Practice, does not constitute a Contribution.
“Custom License” means any agreement between you Painting Practice, or any sublicensor authorized by Painting Practice, other than this Agreement or any amendment to this Agreement, under which you are granted a license to use the Plan V® to develop one or more product(s), other than Plan V® Creator EULA.
“Custom Product” means a product developed pursuant to a Custom License.
“Distribute” means to provide or otherwise make a copy available, or to make its functionality available on a network.
“Plan V and/or Plan V Code” means the Source Code and object code of the Plan V®, including any future Versions, as made available to you by Painting Practice under this Agreement, and any object code compiled from that Source Code.
“Painting Practice Licensee” means a third party who is separately licensed by Painting Practice to use the Plan V Code and Content.
“Plan V Tools” means (a) editors and other tools included in Plan V; (b) any code and modules in either the Developer or Editor folders, including in object code format, whether statically or dynamically linked; and (c) other software that may be used to develop standalone products based on the Licensed Technology.
“Painting Practice” means, depending on the location of your primary residence or primary place of business: The Old Workshop, 1 Ecclesall Road South, Sheffield, S11 9PA
“Plan V Licenses and/or Painting Practice Licenses” means the License.
“Painting Practice Trademarks” means the trademarks, service marks, trade names and logos associated with Painting Practice, Painting Practice’s games and other intellectual property, and Plan V®.
“Examples” means the Plan V and Content made available by Painting Practice in the Samples and Templates folders in the install directory or in the Content Examples projects available through the Marketplace.
“Feedback” means any feedback or suggestions that you provide to Painting Practice regarding the Licensed Technology or the Marketplace.
“Licensed Technology” means any or all of Plan V and the Content, including as modified by you under the License.
“Location-Based Experience” means a Product that is used, displayed, and performed solely at a physical location under the control of You or Your authorized distributors and that is not otherwise Distributed to users.
“Marketplace” means Plan V® digital marketplace or other Plan V® learning resource maintained by Painting Practice or its affiliates, through which, among other things, Painting Practice makes certain Content and Plan V available for use under the License.
“Modified Plan V Tools Package” means (a) Plan V Tools, as modified by you under the License, that you provide to Painting Practice for Distribution, and (b) any code, artwork, or other content that you provide to Painting Practice for Distribution for use with the modified Plan V Tools.
“Paid Content” means Content made available to you through the Marketplace for an additional fee, including but not limited to Paid Plug-ins.
“Paid Plug-in” means any Paid Content which includes a C++ code plug-in.
“Paid Plug-in User” means, for a particular Paid Plug-in, your individual employee or contractor for whom you have purchased the right to have your License include their use.
“Product” means any product developed under this Agreement that is made using the Licensed Technology or that combines the Licensed Technology with any other software or content, regardless of how much or little of the Licensed Technology is used.
“Source Code” means the human readable form of a software program, including all modules it contains, plus any associated interface definition files, scripts used to control compilation, and installation of an executable (object code).
“Third Party Licensor Content” means third party content to which Painting Practice displays links in the Marketplace and that is designated in the Marketplace as content licensed directly from the third party content provider.
“Third Party Software” means third party software components included in Plan V. For avoidance of doubt, software in the following directory - (LIST OF SOFTWARES TO ADD) is not Third Party Software under this Agreement and is not distributed under this Agreement.
“PV-Only Content” means Content that is designated in the Marketplace as usable only in conjunction with Plan V Code.
“Plan V®” means the proprietary computer software program known as Plan V ® and any updates or upgrades to the program made available by Painting Practice.
“Plan V® Creator EULA” means Plan V® End User License Agreement for Creators
“Plan V® Creator Product” means a product developed pursuant to Plan V® Creator EULA.
“User” means an individual user who uses a valid Account to access Plan V, Content, and the Marketplace. If you are an individual, “User” means you. For legal entities, “User” means the individual employee or agent through whom you are exercising rights under this Agreement.
“Version” means any updated or upgraded version of Plan V or Content that Painting Practice chooses to make available to the public.
“You,” “your” or “yourself”, whether or not capitalized in this Agreement, means you as an individual or the legal entity exercising rights under this Agreement through you. For legal entities, “you,” “your” and “yourself” include any entity that controls, is controlled by, or is under common control with you, where “control” means the power, direct or indirect, to cause the direction or management of the entity in question, whether by contract or otherwise, or ownership of 50% or more of the outstanding shares or beneficial ownership of the entity in question.
26. Custom Licenses
Neither Custom Licenses nor Plan V® Creator EULA are modified or otherwise affected by this Agreement. For Custom Products or Plan V® Creator Products, the terms of your applicable Custom License or, with respect to Plan V® Creator Products, Plan V® Creator EULA will govern all matters (including royalties, notifications, Feedback, Contributions, trademarks, service marks, trade names, logos, screen shots, and video content related to those Custom Products or Plan V® Creator Products) related to your use of the code, artwork, and content that are licensed to you under that Custom License or Plan V® Creator EULA, as applicable, instead of the terms of this Agreement.
You may exercise your rights in Paid Content under this License in connection with Custom Products or Plan V® Creator Products that are developed and Distributed under your Custom License or Plan V® Creator EULA, as applicable, as if they were Products developed and Distributed under the License. However, your exercise of those rights in connection with Custom Products and Plan V® Creator Products is governed by and subject to the terms of this Agreement, including without limitation all obligations and limitations that apply to use of Paid Content in connection with Products, as well as all disclaimers, limitations of liability, and indemnification rights of Painting Practice, whether related to Paid Content, Products, or otherwise. Despite this, no royalty is owed under this Agreement on Custom Products, but royalties may be owed on Custom Products under the terms of a Custom License.
As used in this Agreement, the defined term “Product” does not include Custom Products or Plan V® Creator Products, and except as described above, the terms of this Agreement applicable to Products do not apply to Custom Products or Plan V® Creator Products.
27. Miscellaneous
This Agreement and any document or information referred to in this Agreement constitute the entire agreement between you and Painting Practice relating to the subject matter covered by this Agreement. All other communications, proposals, and representations with respect to the subject matter covered by this Agreement are excluded.
The original of this Agreement is in English; any translations are provided for reference purposes only. You waive any right you may have under the law of your country to have this Agreement written or construed in the language of any other country.
This Agreement describes certain legal rights. You may have other rights under the laws of your jurisdiction. This Agreement does not change your rights under the laws of your jurisdiction if the laws of your jurisdiction do not permit it to do so. Limitations and exclusions of warranties and remedies in this Agreement may not apply to you because your jurisdiction may not allow them in your particular circumstance. In the event that certain provisions of this Agreement are not enforceable in your jurisdiction, those provisions shall be enforceable to the furthest extent possible under applicable law.
Any act by Painting Practice to exercise, or failure or delay in exercise of, any of its rights under this Agreement, at law or in equity will not be deemed a waiver of those or any other rights or remedies available in contract, at law or in equity.
Unless otherwise stated in this Agreement, if any term of this Agreement is held by a court or tribunal of competent jurisdiction to be unenforceable, the term will be enforced to the maximum extent permissible and the remaining terms of this Agreement will remain in full force and effect. You agree that this Agreement does not confer any rights or remedies on any person other than the parties to this Agreement, except as expressly stated.
Painting Practice’s obligations are subject to existing laws and legal process, and Painting Practice may comply with law enforcement or regulatory requests or requirements despite any contrary term in this Agreement.