Software End User Agreement
NOTICE TO USER: PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE.
IN ORDER TO PLAY ANY AERIA GAMES GMBH ("AG") GAME FROM A PARTICULAR COMPUTER FOR THE FIRST TIME YOU HAVE TO INSTALL CERTAIN AG SOFTWARE. BY INSTALLING, USING, COPYING OR DISTRIBUTING ALL OR ANY PORTION OF THE SOFTWARE (DEFINED BELOW) DISTRIBUTED THROUGH THE WEB SITE WWW.AERIAGAMES.COM OR ITS AFFILIATES OR OTHERWISE DISTRIBUTED BY AG, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT ("AGREEMENT"), INCLUDING, IN PARTICULAR THE LIMITATIONS ON: USE CONTAINED IN SECTION 2; TRANSFERABILITY IN SECTION 4; WARRANTY IN SECTION 9; AND LIABILITY IN SECTION 10. YOU AGREE THAT THIS AGREEMENT IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND AG. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE.
AG and its licensors (collectively, the "Licensor") own all intellectual property in the Software. Licensor permits you to Use (as defined below) the Software only in accordance with the terms of this Agreement. Use of some third-party materials included in the Software may be subject to other terms and conditions typically found in a separate license agreement. This Agreement incorporates the Terms of Service available at www.aeriagames.com or any affiliated site.
1. Definitions. "Software" means (a) all of the contents of the files (provided either by electronic download, on physical media or any other method of distribution), disk(s), CD-ROM(s) or other media as applicable with which this Agreement is provided, including but not limited to (i) Licensor or third party computer information or software; (ii) related explanatory written materials, files or web pages ("Documentation"); and (iii) fonts; and (b) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to you by Licensor (collectively, "Updates"). "Use" or "Using" means to access, install, download, copy, or otherwise benefit from using the functionality of the Software in accordance with the Documentation. "Computer" means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
2. Software License. Subject to your compliance with the terms of this Agreement, including the restrictions in Section 3, Licensor grants to you a non-exclusive license to Use the Software for the purposes described as follows.
a. General Use. You may install and Use a copy of the Software on one or more compatible Computers under your legitimate control, exclusively for non-commercial entertainment purpose only.
b. No Modification. You may not modify, adapt, translate or create derivative works based upon the Software. You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent you may be expressly permitted to decompile under applicable law, only if it is essential to do so in order to achieve operability of the Software with another software program, and you have first requested Licensor to provide the information necessary to achieve such operability and Licensor has not made such information available. Licensor has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any such information supplied by Licensor and any information obtained by you by such permitted decompilation may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software.
c. Third-Party Website Access. The Software may allow you to access third party websites ("Third Party Sites"). Your access to and use of any Third Party Sites, including any goods, services or information made available from such sites, is governed by the terms and conditions found at each Third Party Site, if any. Third Party Sites are not owned or operated by Licensor. YOUR USE OF THIRD PARTY SITES IS AT YOUR OWN RISK. LICENSOR MAKES NO WARRANTIES, CONDITIONS, INDEMNITIES, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, INTEGRATION, ACCURACY, SECURITY, AVAILABILITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE THIRD PARTY SITES.
3. Restrictions. You agree that you shall not, under any circumstances,
(i) sell, grant a security interest in or transfer reproductions of the Software to other parties in any way not expressly authorized herein, nor shall you rent, lease or license the Software to others;
(ii) exploit the Software or any of its parts for any commercial purpose, including without limitation use at a cyber cafe, computer gaming center or any other location-based site without the express written consent of Licensor;
(iii) host, provide or develop matchmaking services for the Software or intercept, emulate or redirect the communication protocols used by Licensor in any way, including without limitation through protocol emulation, tunneling, packet sniffing, modifying or adding components to the Software, use of a utility program or any other techniques now known or hereafter developed, for any purpose, including without limitation unauthorized network play over the Internet, network play utilizing commercial or non-commercial gaming networks, or as part of content aggregation networks; or
(iv) facilitate, create or maintain any unauthorized connection to the Software or the Site, including without limitation any connection to any unauthorized server that emulates, or attempts to emulate, the Software or the Site. All connections to the Software and/or the Site, whether created by the game client or by other tools and utilities, may only be made through methods and means expressly approved by Licensor. Under no circumstances may you connect, or create tools that allow you or others to connect, to the Software 's proprietary interface other than those expressly provided by Licensor for public use.
4. Transfer. You may rent, lease, sublicense, assign or transfer your rights in the Software, or authorize all or any portion of the Software to be copied onto another user's Computer only if you also transfer (a) this Agreement, and (b) the Software and all other software or hardware bundled or pre-installed with the Software, including all copies, Updates and prior versions, to such person or entity.
5. Intellectual Property Ownership, Copyright Protection. The Software and any authorized copies that you make are the intellectual property of and are owned by Licensor. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Licensor. The Software is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by Licensor.
6. Updates. The function of Software may only work smoothly when you agree to use an Update and/or in fact install an Update to a previous version of the Software. Any obligation Licensor may have to support the previous versions of the Software may be ended upon availability of the Update.
7. Consent to Monitor. The Software may communicate your computer's information including but not limited to hardware capacity, patches and modification information, and any unauthorized third-party program running with the Software back to Licensor in order to assist users' uninterrupted game play. An unauthorized third-party program as used herein shall be defined as any third party software, including without limitation any addon,mod,hack,trainer,cheat,that in Licensors sole determination (i) enable or facilitates cheating of any type, (ii) allows users to modify or hack the game interface, environment, and/or experience in any way not expressly authorized by Licensor, (iii) intercepts, mines,or otherwise collects information from or through the Software. In the event that the Software detects an unauthorized third-party program, (a) the Software may (a) communicate information back to Licensor, including information on the User ID and account, details about the unauthorized third-party program and the time and date it was detected and/or (b) Licensor may exercise any or all rights under this Agreement, without any notice to the user.
8. Changes to the Agreement. Licensor reserves the right, at its sole discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement without prior notice. Any updated Agreement shall be available on its website at www.aeriagames.com or any affiliated websites. Such updated Agreement is effective upon publication, and your installation and continued use of the Software following publication of updated Agreement constitute your acceptance of any and all such changes. If any future changes to this Agreement are unacceptable to you, you may terminate this Agreement in accordance with the terms hereof.
9. NO WARRANTY. The Software is being delivered to you "AS IS" and Licensor makes no warranty as to its use or performance. Licensor provides no technical support, warranties or remedies for the Software. LICENSOR DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, LICENSOR MAKES NO WARRANTIES CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. The provisions of Section 9 and Section 10 shall survive the termination of this Agreement, howsoever caused, but this shall not imply or create any continued right to Use the Software after termination of this Agreement.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL LICENSOR BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A LICENSOR REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. Nothing contained in this Agreement limits Licensor's liability to you in the event of death or personal injury resulting from Licensor's negligence or for the tort of deceit (fraud). Licensor is acting on behalf of its licensors for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose.
11. Termination. This Agreement is effective until terminated. You may terminate the Agreement at any time by (i) permanently destroying all copies of the Software in your possession or control; (ii) removing the Software from your hard drive; and (iii) notifying Licensor of your intention to terminate this Agreement. Licensor may terminate this Agreement at any time for any reason or no reason whatsover. In such event, you must immediately and permanently destroy all copies of the Software in your possession and control and remove the Software from your hard drive. Upon termination of this Agreement for any reason, all licenses granted herein shall immediately terminate.
12. Export Rules. You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Regulations or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Syria, Sudan, Libya, Cuba, and North Korea) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to Use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
13. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, United States. The respective courts of Santa Clara County, California shall have exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by the conflict of law rules of any jurisdiction.
14. General Provisions. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. This Agreement may only be modified by a writing signed by an authorized officer of Licensor. Updates may be licensed to you by Licensor with additional or different terms. This is the entire agreement between Licensor and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
15. Notice to U.S. Government End Users. The Software and Documentation are commercial in nature and constitute "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used under the relevant sections of the Code of Federal Regulations, as applicable. Consistent with the relevant section of the Code of Federal Regulations, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
16. Specific Provisions and Exceptions.
Pre-Release Product Additional Terms. If the product you have received with this license is pre-commercial release or beta Software ("Pre-release Software"), then the following Section applies. To the extent that any provision in this Section is in conflict with any other term or condition in this Agreement, this Section shall supercede such other term(s) and condition(s) with respect to the Pre-release Software, but only to the extent necessary to resolve the conflict. You acknowledge that the Software is a pre-release version, does not represent final product from Licensor, and may contain bugs, errors and other problems that could cause system or other failures and data loss. Consequently, the Pre-release Software is provided to you "AS-IS", and Licensor disclaims any warranty or liability obligations to you of any kind. WHERE LIABILITY CANNOT BE EXCLUDED FOR PRE-RELEASE SOFTWARE, BUT IT MAY BE LIMITED, LICENSOR'S LIABILITY AND THAT OF ITS SUPPLIERS SHALL BE LIMITED TO THE SUM OF 0NE DOLLAR (U.S. $1) IN TOTAL. You acknowledge that Licensor has not promised or guaranteed to you that Pre-release Software will be announced or made available to anyone in the future, Licensor has no express or implied obligation to you to announce or introduce the Pre-release Software and that Licensor may not introduce a product similar to or compatible with the Pre-release Software. Accordingly, you acknowledge that any research or development that you perform regarding the Pre-release Software or any product associated with the Pre-release Software is done entirely at your own risk. During the term of this Agreement, if requested by Licensor, you will provide feedback to Licensor regarding testing and use of the Pre-release Software, including error or bug reports. If you have been provided the Pre-release Software pursuant to a separate written agreement, your use of the Software is also governed by such agreement. You agree that you may not and certify that you will not sublicense, lease, loan, rent, assign or transfer the Pre-release Software. Upon receipt of a later unreleased version of the Pre-release Software or release by Licensor of a publicly released commercial version of the Software, whether as a stand-alone product or as part of a larger product, you agree to return or destroy all earlier Pre-release Software received from Licensor and to abide by the terms of the license agreement for any such later versions of the Pre-release Software. Notwithstanding anything in this Section to the contrary, if you are located outside the United States of America, you agree that you will return or destroy all un-released versions of the Pre-release Software within thirty (30) days of the completion of your testing of the Software when such date is earlier than the date for Licensor's first commercial shipment of the publicly released (commercial) Software.