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BY ACCESSING OR USING THE INTERNAL TESTING BUILD OR OTHERWISE PARTICIPATING IN THE INTERNAL TESTING PROGRAM, YOU AGREE TO THE TERMS OF THIS INTERNAL TESTING AGREEMENT (“Agreement”). If you do not agree to the terms of this Agreement, you may not access or use the internal testing build.
This Agreement is between Lightforge Games inc. (“Licensor”, “we” or “us”) and you (“you” or “Licensee”). You must be at least the older of (i) the age of majority in your jurisdiction and (ii) 18 years or older to use the internal testing build.
TO THE FULLEST EXTENT PERMITTED BY LAW, THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN SECTION 15 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO ANY DISPUTE (AS DEFINED IN SECTION 15 BETWEEN YOU AND US.) YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED IN SECTION 15.
AGREED TERMS
1. Internal Testing Build. Licensor may provide you with access to one or more internal builds (and associated services and documentation) of Licensor’s work in progress for the purpose of internal testing (collectively, the “Build”). Internal testing participation and access to and use of the Build are subject to this Agreement. Licensor may terminate this Internal testing program at any time without cause or advance notice to you. The features provided in the Build may not be available in the final release.
2. License.
a. Grant. Subject to the terms of this Agreement and solely for the duration of the internal testing program unless earlier terminated as provided herein, Licensor grants Licensee a temporary, limited, revocable, nontransferable, nonsublicensable, nonexclusive license to access and use the Build and any related user manuals, guides and other documentation delivered or otherwise provided to Licensee (“Documentation”) solely for internal use to evaluate and test the Build. In connection with Licensee’s use of the Build, Licensee shall comply with all applicable laws, rules and regulations.
b. Restrictions. Licensee shall not, and shall not permit any third party to: (i) copy, modify, translate, or create derivative works of the Build or any content therein; (ii) reverse engineer, decompile, disassemble, translate or otherwise attempt reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Build, (iii) disclose or authorize disclosure of, lend, lease, license offer for sale, sell, transfer, distribute, assign, or otherwise use the Build to or for the benefit of third parties; or (iv) attempt to circumvent any license, timing or use restrictions that are built into the Build. The Build may not be used by anyone other than Licensee and Licensee’s authorized employees who are bound by confidentiality obligations with respect to such use which are no less restrictive than those in Section 11 hereof.
3. User Content. “User Content” means any and all information and content that Licensee or any other user submits to, or uses with, the Build (e.g., content submitted in forms, uploaded documents, communications with Licensor or otherwise through the Build, etc.).
a. By submitting User Content through the Build you Licensee represents, warrants and agrees:
i. Licensee is at least the older of (i) the age of majority in Licensee’s jurisdiction and (ii)18 years of age.
ii. Licensee agrees that it is solely responsible for and assumes all risks associated with its User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of its User Content that personally identifies Licensee or any third party.
iii. You consent to our use of your personal information as necessary to conduct the internal testing of the Build and to confirm compliance with these terms.
iv. You represent and warrant your User Content does not violate the User Content Restrictions provided in Section 3.c below.
v. You agree to grant Lightforge the license in Section 3.b below.
b. License. You hereby grant (and represents and warrants that it has the right to grant) to Lightforge Games an irrevocable, non exclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit all User Content of Licensee, and to grant sublicenses of the foregoing rights, solely for the purposes of including Licensee’s User Content in the Build or any eventual project or final product of Lightforge, its successors, assigns, affiliates or licensees. Licensee hereby irrevocably waives (and agrees to cause to be waived) any claims and assertions of moral rights or attribution with respect to Licensee’s User Content. Notwithstanding the forgoing, to the extent that you incorporate User Content into Lightforge Games assets through the Build (for example by creating custom adventures through the Build) you hereby grant to Lightforge Games an irrevocable, exclusive, perpetual, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit any such User Content as incorporated into such Lightforge Games assets.
c. User Content Restrictions. Licensee agrees not to use the Build to submit, collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable (as determined by Lightforge in its sole discretion); (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party. Licensee agrees not to: (i) upload, transmit, or distribute to or through the Builds any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Build unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Build to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Build, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Build (or to other computer systems or networks connected to or used together with the Build), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Build; or (vi) use software or automated agents or scripts to produce multiple accounts on the Build, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Build (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Build for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
d. Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the any other provision of this Agreement or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your license to use the Build and/or reporting you to law enforcement authorities.
4. Evaluation Feedback. Licensee agrees that it will provide Licensor input regarding Licensee’s reactions, comments, and suggestions for improvement regarding the Build (“Feedback”). Such input may include, but is not limited to, usability, missing features, functional errors and bug reports. All Feedback made by Licensee shall be the property of Licensor and may be used by Licensor for any purpose whatsoever. Forms of feedback may include personal interview, online questionnaire or e-mail or other contact. For avoidance of doubt, “Feedback” includes all Licensee inputs into the Build. Licensor will be the sole owner of any and all Build, documentation or other inventions developed by Licensor in conjunction with Licensee or based on the Licensee’s input, including but not limited to general enhancements and additions to the Build or any services provided by Licensor.
5. No Purchase Price. Licensee recognizes that the Build is a Beta version software product. Licensee shall pay no purchase price for the Build, but shall abide by the terms of this Agreement, and neither party shall be obligated to enter into any further agreement for the license or purchase of the Build. For avoidance of doubt Licensor grants Licensee no rights or licenses, hereunder, to any other version of the software product. Additionally, nothing herein shall be construed as prohibiting Licensor from charging Licensee a fee in connection with other versions of the software product.
6. Support. Licensor may provide Licensee general support for the Build by telephone, electronic mail or other electronic communication during the Beta Period. Licensor is not obligated to provide maintenance or updates to Licensee for the Build.
7. Updates. Lightforge Games may from time to time in its sole discretion develop and provide Build updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, \""Updates\""). Updates may also modify or delete in their entirety certain features and functionality. You agree that Lightforge Games has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
8. Ownership. Licensee agrees that Licensor and its Licensors own all right title, and interest in and to the Build as it exists as of the date of this Agreement and as may be developed in the future, including, without limitation, all code and screen formats including all patents, trademarks, copyrights, trade secrets, and all other intellectual property rights therein, and that other than the rights expressly granted pursuant to Section 1 above, Licensee shall not acquire any right, title, or interest therein or thereto. All rights in and to the Build not expressly granted herein are reserved to Licensor.
9. Modification. Lightforge Games reserves the right, at any time, to modify, suspend, or discontinue the Build (in whole or in part) with or without notice to you. You agree that Lightforge Games will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Build or any part thereof.
10. Injunctive Relief. Licensee acknowledges and agrees that violation by Licensee of any of the provisions contained in Sections 1, 2, 3, 4, 8, or 11 of this Agreement would cause irreparable harm to Licensor not adequately compensable by monetary damages. In addition to any other relief at law or in equity, Licensee agrees that temporary and permanent injunctive relief should be available without the necessity of proving actual damages.
11. Confidentiality.\tLicensee agrees to hold in strict confidence, not to use or disclose, except in accordance with this Agreement, and to take all necessary precautions to protect the confidentiality of, Confidential Information received from Licensor or its agents under this Agreement, including, without limitation, requiring Licensee’s employees or others with access to the Confidential Information to be subject to confidentiality agreements similar in nature to this Agreement and limiting access to the Confidential Information to employees on a “need to Know” basis. For the purposes of this Agreement, “Confidential Information” of Licensor shall include, without limitation, your Feedback, the Build, all accompanying Documentation and any other information or materials provided to you by Licensor. Confidential Information does not include information that Licensee can establish with competent documentary evidence: (i) was known by Licensee at the time of its disclosure; (ii) is already in the public domain or becomes generally known or published through no fault of Licensee; or (iii) is lawfully disclosed to Licensee by a third party free to disclose such information. The provisions under this confidentiality provision shall survive expiration or termination of this Agreement for any reason. Notwithstanding the foregoing, this confidentiality provision shall not be construed so as to prohibit the use, demonstration and display of the Build as permitted in Section 2 of this Agreement.
12. Indemnification. Licensee agree to indemnify and hold Lightforge Games (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) Licensee’s use of the Service, (b) Licensee’s violation of this Agreement, or (c) Licensee’s violation of applicable laws or regulations. Lightforge Games reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Lightforge Games. Lightforge Games will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
13. Third Party Materials. The Service may contain links to third-party websites and services, including through third party advertising (collectively, “Third-Party Materials”). Such Third Party Materials are not under the control of Lightforge Games, and Lightforge Games is not responsible for any Third Party Materials. Lightforge Games provides access to these Third Party Materials only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Materials. You acknowledge and agree that Lightforge Games is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Lightforge Games does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties\' terms and conditions. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Materials.
14. Release. Licensee hereby releases and forever discharge the Lightforge Games (and our officers, employees, agents, successors, and assigns) from, and hereby waives and relinquishes, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any interactions with, or act or omission of, other Service users or any Third Party Materials). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
15. Disclaimer of Warranties; Limitation of Liability. THERE ARE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE BUILD, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION. THE BUILD IS LICENSED AND PROVIDED “AS IS” AND LICENSOR DOES NOT WARRANT TO LICENSEE THAT THE BUILD WILL MEET LICENSEE’S REQUIREMENTS OR THAT LICENSEE’S USE OF THE BUILD WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE BUILD AND LICENSEE’S USE OF THE BUILD AND ANY RESULTS GENERATED BY THE BUILD IS BORNE BY LICENSEE. SHOULD THE BUILD PROVE DEFECTIVE IN ANY RESPECT, LICENSEE’S SOLE REMEDY IS TO TERMINATE ITS USE OF THE BUILD. THE BUILD CONSTITUTES A PRE-RELEASE PRODUCT AND MAY NEVER BE RELEASED BY LICENSOR OR MAY BE CHANGED SUBSTANTIALLY BEFORE COMMERCIAL RELEASE BY LICENSOR. Under no circumstances shall Licensor be liable for any loss, cost, expense, or damage to Licensee resulting from the use, demonstration or display of the Build or any decisions made with respect to the Build. In no event shall Licensor be liable to Licensee for any direct, indirect, incidental, special or consequential damages, however caused and on any theory of liability, arising out of or related to this Agreement or Licensee’s use of the Build.
16. Term and Termination. The term of this Agreement shall commence on the date the Build is first accessed or used by the Licensee and shall continue until the official commercial release of the product (not in a Beta version), or until access to the Build is suspended or terminated by Licensor (the “Beta Period”) unless terminated by either party in writing at any time, with or without cause. Upon expiration or termination of the Beta Period, Licensee’s right to access and use the Build will immediately terminate, Licensee shall cease all use of the Build, delete and destroy all copies of the Build (if any), and Licensor shall have the right to prohibit Licensee’s use of the Build. The preceding sentence shall not apply if Licensee and Licensor enter into a commercial license agreement that, by its terms, supersedes and replaces this Agreement. For avoidance of doubt even after Licensee’s rights under this Agreement are terminated, the provisions herein which by their nature should survive the termination of this agreement, will survive it, including without limitation: Sections 3.b, 4, 8, 10 – 15 and 18 – 20.\t
17. Severability; Waiver. If any provision of this Agreement is determined to be unlawful and can be deleted without altering the essence of the Agreement, the unlawful provision will be deleted and the remaining provisions will remain in full force or effect. The failure by either party at any time to enforce its rights under this Agreement will not be construed as a waiver of such rights and no waiver by either party will be valid unless it is contained in a signed writing.
18. Governing Law. This Agreement and any related dispute will be governed by and interpreted in accordance with the laws of the State of North Carolina without regard to its conflicts of laws provisions.
19. Limitation of Time for Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE GAME MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
20. Disputes. The term \""Dispute\"" means any dispute, claim, or controversy between you and Licensor or any
of its current or former affiliates, including parents and subsidiaries, and any predecessor or successor entity to any of the foregoing, regarding the use of the Build, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section (with the exception of the enforceability of the Class Action Waiver clause below). If you have a Dispute (other than one described as excluded from arbitration below) with us or any of our officers, directors, employees or agents (\""Adverse Entity\"") that cannot be resolved through negotiation, you and the Adverse Entity agree to seek resolution of the Dispute only through binding arbitration of that Dispute according to this Section’s terms, and not litigate that Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
a. Jury Trial Waiver. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Chrono in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE ADVERSE PARTY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by binding arbitration.
b. Class Action and Consolidated Claims Wavier. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND THE ADVERSE ENTITY SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
c. Arbitration. All arbitration proceedings hereunder shall be conducted in Cary, North Carolina before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or, for claims that do not exceed $250,000, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party\'s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
d. Confidentiality. All aspects of any arbitration proceeding hereunder, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
e. Attorney’s Fees. In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator(s) may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
f. Provisional Remedies. You acknowledge that your obligations under this Agreement are of a unique character and that your breach of your obligations will result in irreparable and continuing damage to Licensor for which money damages would not be a fully adequate remedy, and that Licensor may seek injunctive relief or a decree for specific performance, and other relief as may be proper. Therefore, notwithstanding anything to the contrary in this Section, Licensor will have the unrestricted right to seek equitable relief in any court of competent jurisdiction for any claim arising out of or related to this Agreement, without the need of posting a bond or other form of security.
g. Severability. If any clause within this Section (other than the Class Action Waiver clause above) is illegal or unenforceable, that clause will be severed, and the remainder of this Section will be given full effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable, and the Dispute will be decided by a court. This Section survives this Agreement’s termination.
h. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the exclusive personal jurisdiction of the courts located within or nearest to Cary, North Carolina, for such purpose.
21. Relationship of the Parties. The relationship between Licensor and Licensee under this Agreement is intended to be that of independent contractor. Nothing in this Agreement shall be construed to create any partnership, joint venture, employer-employee or agency relationship of any kind. Neither party has any authority under this Agreement to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking any third party.
22. Assignment. Licensee may not transfer or assign this Agreement or any of its rights or obligations hereunder, directly or indirectly, by operation of law or otherwise without the prior written consent of Licensor. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon each of the parties and its successors and permitted assigns.
23. Integration. This Agreement constitutes the final, complete and exclusive agreement and understanding between Licensor and Licensee and supersede all prior and contemporaneous agreements, oral and written as they regard the licensing of the Build. This Agreement may not be amended except in a writing executed by each of the parties.
This Agreement is between Lightforge Games inc. (“Licensor”, “we” or “us”) and you (“you” or “Licensee”). You must be at least the older of (i) the age of majority in your jurisdiction and (ii) 18 years or older to use the internal testing build.
TO THE FULLEST EXTENT PERMITTED BY LAW, THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN SECTION 15 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO ANY DISPUTE (AS DEFINED IN SECTION 15 BETWEEN YOU AND US.) YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED IN SECTION 15.
AGREED TERMS
1. Internal Testing Build. Licensor may provide you with access to one or more internal builds (and associated services and documentation) of Licensor’s work in progress for the purpose of internal testing (collectively, the “Build”). Internal testing participation and access to and use of the Build are subject to this Agreement. Licensor may terminate this Internal testing program at any time without cause or advance notice to you. The features provided in the Build may not be available in the final release.
2. License.
a. Grant. Subject to the terms of this Agreement and solely for the duration of the internal testing program unless earlier terminated as provided herein, Licensor grants Licensee a temporary, limited, revocable, nontransferable, nonsublicensable, nonexclusive license to access and use the Build and any related user manuals, guides and other documentation delivered or otherwise provided to Licensee (“Documentation”) solely for internal use to evaluate and test the Build. In connection with Licensee’s use of the Build, Licensee shall comply with all applicable laws, rules and regulations.
b. Restrictions. Licensee shall not, and shall not permit any third party to: (i) copy, modify, translate, or create derivative works of the Build or any content therein; (ii) reverse engineer, decompile, disassemble, translate or otherwise attempt reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Build, (iii) disclose or authorize disclosure of, lend, lease, license offer for sale, sell, transfer, distribute, assign, or otherwise use the Build to or for the benefit of third parties; or (iv) attempt to circumvent any license, timing or use restrictions that are built into the Build. The Build may not be used by anyone other than Licensee and Licensee’s authorized employees who are bound by confidentiality obligations with respect to such use which are no less restrictive than those in Section 11 hereof.
3. User Content. “User Content” means any and all information and content that Licensee or any other user submits to, or uses with, the Build (e.g., content submitted in forms, uploaded documents, communications with Licensor or otherwise through the Build, etc.).
a. By submitting User Content through the Build you Licensee represents, warrants and agrees:
i. Licensee is at least the older of (i) the age of majority in Licensee’s jurisdiction and (ii)18 years of age.
ii. Licensee agrees that it is solely responsible for and assumes all risks associated with its User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of its User Content that personally identifies Licensee or any third party.
iii. You consent to our use of your personal information as necessary to conduct the internal testing of the Build and to confirm compliance with these terms.
iv. You represent and warrant your User Content does not violate the User Content Restrictions provided in Section 3.c below.
v. You agree to grant Lightforge the license in Section 3.b below.
b. License. You hereby grant (and represents and warrants that it has the right to grant) to Lightforge Games an irrevocable, non exclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit all User Content of Licensee, and to grant sublicenses of the foregoing rights, solely for the purposes of including Licensee’s User Content in the Build or any eventual project or final product of Lightforge, its successors, assigns, affiliates or licensees. Licensee hereby irrevocably waives (and agrees to cause to be waived) any claims and assertions of moral rights or attribution with respect to Licensee’s User Content. Notwithstanding the forgoing, to the extent that you incorporate User Content into Lightforge Games assets through the Build (for example by creating custom adventures through the Build) you hereby grant to Lightforge Games an irrevocable, exclusive, perpetual, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit any such User Content as incorporated into such Lightforge Games assets.
c. User Content Restrictions. Licensee agrees not to use the Build to submit, collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable (as determined by Lightforge in its sole discretion); (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party. Licensee agrees not to: (i) upload, transmit, or distribute to or through the Builds any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Build unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Build to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Build, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Build (or to other computer systems or networks connected to or used together with the Build), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Build; or (vi) use software or automated agents or scripts to produce multiple accounts on the Build, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Build (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Build for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
d. Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the any other provision of this Agreement or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your license to use the Build and/or reporting you to law enforcement authorities.
4. Evaluation Feedback. Licensee agrees that it will provide Licensor input regarding Licensee’s reactions, comments, and suggestions for improvement regarding the Build (“Feedback”). Such input may include, but is not limited to, usability, missing features, functional errors and bug reports. All Feedback made by Licensee shall be the property of Licensor and may be used by Licensor for any purpose whatsoever. Forms of feedback may include personal interview, online questionnaire or e-mail or other contact. For avoidance of doubt, “Feedback” includes all Licensee inputs into the Build. Licensor will be the sole owner of any and all Build, documentation or other inventions developed by Licensor in conjunction with Licensee or based on the Licensee’s input, including but not limited to general enhancements and additions to the Build or any services provided by Licensor.
5. No Purchase Price. Licensee recognizes that the Build is a Beta version software product. Licensee shall pay no purchase price for the Build, but shall abide by the terms of this Agreement, and neither party shall be obligated to enter into any further agreement for the license or purchase of the Build. For avoidance of doubt Licensor grants Licensee no rights or licenses, hereunder, to any other version of the software product. Additionally, nothing herein shall be construed as prohibiting Licensor from charging Licensee a fee in connection with other versions of the software product.
6. Support. Licensor may provide Licensee general support for the Build by telephone, electronic mail or other electronic communication during the Beta Period. Licensor is not obligated to provide maintenance or updates to Licensee for the Build.
7. Updates. Lightforge Games may from time to time in its sole discretion develop and provide Build updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, \""Updates\""). Updates may also modify or delete in their entirety certain features and functionality. You agree that Lightforge Games has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
8. Ownership. Licensee agrees that Licensor and its Licensors own all right title, and interest in and to the Build as it exists as of the date of this Agreement and as may be developed in the future, including, without limitation, all code and screen formats including all patents, trademarks, copyrights, trade secrets, and all other intellectual property rights therein, and that other than the rights expressly granted pursuant to Section 1 above, Licensee shall not acquire any right, title, or interest therein or thereto. All rights in and to the Build not expressly granted herein are reserved to Licensor.
9. Modification. Lightforge Games reserves the right, at any time, to modify, suspend, or discontinue the Build (in whole or in part) with or without notice to you. You agree that Lightforge Games will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Build or any part thereof.
10. Injunctive Relief. Licensee acknowledges and agrees that violation by Licensee of any of the provisions contained in Sections 1, 2, 3, 4, 8, or 11 of this Agreement would cause irreparable harm to Licensor not adequately compensable by monetary damages. In addition to any other relief at law or in equity, Licensee agrees that temporary and permanent injunctive relief should be available without the necessity of proving actual damages.
11. Confidentiality.\tLicensee agrees to hold in strict confidence, not to use or disclose, except in accordance with this Agreement, and to take all necessary precautions to protect the confidentiality of, Confidential Information received from Licensor or its agents under this Agreement, including, without limitation, requiring Licensee’s employees or others with access to the Confidential Information to be subject to confidentiality agreements similar in nature to this Agreement and limiting access to the Confidential Information to employees on a “need to Know” basis. For the purposes of this Agreement, “Confidential Information” of Licensor shall include, without limitation, your Feedback, the Build, all accompanying Documentation and any other information or materials provided to you by Licensor. Confidential Information does not include information that Licensee can establish with competent documentary evidence: (i) was known by Licensee at the time of its disclosure; (ii) is already in the public domain or becomes generally known or published through no fault of Licensee; or (iii) is lawfully disclosed to Licensee by a third party free to disclose such information. The provisions under this confidentiality provision shall survive expiration or termination of this Agreement for any reason. Notwithstanding the foregoing, this confidentiality provision shall not be construed so as to prohibit the use, demonstration and display of the Build as permitted in Section 2 of this Agreement.
12. Indemnification. Licensee agree to indemnify and hold Lightforge Games (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) Licensee’s use of the Service, (b) Licensee’s violation of this Agreement, or (c) Licensee’s violation of applicable laws or regulations. Lightforge Games reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Lightforge Games. Lightforge Games will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
13. Third Party Materials. The Service may contain links to third-party websites and services, including through third party advertising (collectively, “Third-Party Materials”). Such Third Party Materials are not under the control of Lightforge Games, and Lightforge Games is not responsible for any Third Party Materials. Lightforge Games provides access to these Third Party Materials only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Materials. You acknowledge and agree that Lightforge Games is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Lightforge Games does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties\' terms and conditions. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Materials.
14. Release. Licensee hereby releases and forever discharge the Lightforge Games (and our officers, employees, agents, successors, and assigns) from, and hereby waives and relinquishes, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any interactions with, or act or omission of, other Service users or any Third Party Materials). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
15. Disclaimer of Warranties; Limitation of Liability. THERE ARE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE BUILD, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION. THE BUILD IS LICENSED AND PROVIDED “AS IS” AND LICENSOR DOES NOT WARRANT TO LICENSEE THAT THE BUILD WILL MEET LICENSEE’S REQUIREMENTS OR THAT LICENSEE’S USE OF THE BUILD WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE BUILD AND LICENSEE’S USE OF THE BUILD AND ANY RESULTS GENERATED BY THE BUILD IS BORNE BY LICENSEE. SHOULD THE BUILD PROVE DEFECTIVE IN ANY RESPECT, LICENSEE’S SOLE REMEDY IS TO TERMINATE ITS USE OF THE BUILD. THE BUILD CONSTITUTES A PRE-RELEASE PRODUCT AND MAY NEVER BE RELEASED BY LICENSOR OR MAY BE CHANGED SUBSTANTIALLY BEFORE COMMERCIAL RELEASE BY LICENSOR. Under no circumstances shall Licensor be liable for any loss, cost, expense, or damage to Licensee resulting from the use, demonstration or display of the Build or any decisions made with respect to the Build. In no event shall Licensor be liable to Licensee for any direct, indirect, incidental, special or consequential damages, however caused and on any theory of liability, arising out of or related to this Agreement or Licensee’s use of the Build.
16. Term and Termination. The term of this Agreement shall commence on the date the Build is first accessed or used by the Licensee and shall continue until the official commercial release of the product (not in a Beta version), or until access to the Build is suspended or terminated by Licensor (the “Beta Period”) unless terminated by either party in writing at any time, with or without cause. Upon expiration or termination of the Beta Period, Licensee’s right to access and use the Build will immediately terminate, Licensee shall cease all use of the Build, delete and destroy all copies of the Build (if any), and Licensor shall have the right to prohibit Licensee’s use of the Build. The preceding sentence shall not apply if Licensee and Licensor enter into a commercial license agreement that, by its terms, supersedes and replaces this Agreement. For avoidance of doubt even after Licensee’s rights under this Agreement are terminated, the provisions herein which by their nature should survive the termination of this agreement, will survive it, including without limitation: Sections 3.b, 4, 8, 10 – 15 and 18 – 20.\t
17. Severability; Waiver. If any provision of this Agreement is determined to be unlawful and can be deleted without altering the essence of the Agreement, the unlawful provision will be deleted and the remaining provisions will remain in full force or effect. The failure by either party at any time to enforce its rights under this Agreement will not be construed as a waiver of such rights and no waiver by either party will be valid unless it is contained in a signed writing.
18. Governing Law. This Agreement and any related dispute will be governed by and interpreted in accordance with the laws of the State of North Carolina without regard to its conflicts of laws provisions.
19. Limitation of Time for Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE GAME MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
20. Disputes. The term \""Dispute\"" means any dispute, claim, or controversy between you and Licensor or any
of its current or former affiliates, including parents and subsidiaries, and any predecessor or successor entity to any of the foregoing, regarding the use of the Build, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section (with the exception of the enforceability of the Class Action Waiver clause below). If you have a Dispute (other than one described as excluded from arbitration below) with us or any of our officers, directors, employees or agents (\""Adverse Entity\"") that cannot be resolved through negotiation, you and the Adverse Entity agree to seek resolution of the Dispute only through binding arbitration of that Dispute according to this Section’s terms, and not litigate that Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
a. Jury Trial Waiver. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Chrono in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE ADVERSE PARTY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by binding arbitration.
b. Class Action and Consolidated Claims Wavier. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND THE ADVERSE ENTITY SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
c. Arbitration. All arbitration proceedings hereunder shall be conducted in Cary, North Carolina before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or, for claims that do not exceed $250,000, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party\'s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
d. Confidentiality. All aspects of any arbitration proceeding hereunder, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
e. Attorney’s Fees. In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator(s) may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
f. Provisional Remedies. You acknowledge that your obligations under this Agreement are of a unique character and that your breach of your obligations will result in irreparable and continuing damage to Licensor for which money damages would not be a fully adequate remedy, and that Licensor may seek injunctive relief or a decree for specific performance, and other relief as may be proper. Therefore, notwithstanding anything to the contrary in this Section, Licensor will have the unrestricted right to seek equitable relief in any court of competent jurisdiction for any claim arising out of or related to this Agreement, without the need of posting a bond or other form of security.
g. Severability. If any clause within this Section (other than the Class Action Waiver clause above) is illegal or unenforceable, that clause will be severed, and the remainder of this Section will be given full effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable, and the Dispute will be decided by a court. This Section survives this Agreement’s termination.
h. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the exclusive personal jurisdiction of the courts located within or nearest to Cary, North Carolina, for such purpose.
21. Relationship of the Parties. The relationship between Licensor and Licensee under this Agreement is intended to be that of independent contractor. Nothing in this Agreement shall be construed to create any partnership, joint venture, employer-employee or agency relationship of any kind. Neither party has any authority under this Agreement to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking any third party.
22. Assignment. Licensee may not transfer or assign this Agreement or any of its rights or obligations hereunder, directly or indirectly, by operation of law or otherwise without the prior written consent of Licensor. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon each of the parties and its successors and permitted assigns.
23. Integration. This Agreement constitutes the final, complete and exclusive agreement and understanding between Licensor and Licensee and supersede all prior and contemporaneous agreements, oral and written as they regard the licensing of the Build. This Agreement may not be amended except in a writing executed by each of the parties.