GameDev Marketplace Terms of Service and EULA

Last Updated: September 20, 2016

1. BACKGROUND

1.1

The GameDev Marketplace (“GameDev Marketplace”) is owned and operated by GameDev.net, LLC, 6549 Mission Gorge Road #264, San Diego, CA (“GameDev.net”). Your use of the GameDev Marketplace is governed by a legal agreement between you and GameDev.net consisting of these GameDev Marketplace Terms of Service (“Terms”) which you accept by registering as a user of the GameDev Marketplace.

1.2

In addition any Product that you acquire from the GameDev Marketplace that has been developed by GameDev.net or that has been made available by third-parties (“Sellers”) that are not affiliated with GameDev.net, will be subject to GameDev.net’s standard GameDev Marketplace End User License Agreement (“GameDev-EULA”), which is Appendix 1 to these Terms and which you must accept as an integrated part of these Terms by registering as a user of the GameDev Marketplace. Certain Products may be governed by a Provider end user license agreement.

1.3

You may use GameDev Marketplace to browse, locate, and download Products (defined as (i) software or software development kits designed in order to facilitate the development of electronic games and interactive media (ii) content (for example – without limitation – computer graphics, including 3D computer graphics, sounds and music), tutorials and other digital materials created in order to become integrated parts of electronic games). Some of these Products may be offered by GameDev.net while others may be made available by Providers. You agree that GameDev.net is not responsible for any Asset on the GameDev Marketplace that originates from a source other than GameDev.net. Additionally, some Products may be made available to you at no charge while other Products may be purchased for a fee. You agree that you are solely responsible for all fees associated with purchases you make on the GameDev Marketplace.

1.4

In order to use GameDev Marketplace you must be 18 years of age or older. On using the service you warrant that you have legal capacity to enter into the agreement.

2. GAMEDEV.NET’S PROVISION OF THE GAMEDEV MARKETPLACE

2.1

You agree that GameDev.net may stop (permanently or temporarily) providing the GameDev Marketplace (or any features within the GameDev Marketplace) to you or to users generally at GameDev.net’s sole discretion, without prior notice to you.

2.2

GameDev.net may make available to you various payment processing methods to facilitate the purchase of Products from the GameDev Marketplace. You agree to abide by any relevant terms of service or other legal agreement, whether with GameDev.net or a third party, that governs your use of a given payment processing method. You agree that GameDev.net reserves the right to add or remove payment processing methods at its sole discretion and without notice to you.

2.3

From time to time, GameDev.net may discover a Product on the GameDev Marketplace that violates the GameDev Marketplace Seller Agreement between a Seller and GameDev.net or other legal agreements, laws, regulations or policies. You agree that in such an instance GameDev.net retains the right at its sole discretion to demand that such Product is removed from any computer or other equipment under your control and you agree to promptly comply with such demand.

3. YOUR USE OF THE GAMEDEV MARKETPLACE

3.1

In order to access certain services in the GameDev Marketplace, you may be required to provide information about yourself such as your name, address, and billing details. You agree that any such information you provide to GameDev.net will always be accurate, correct and up to date.

3.2

You agree to use the GameDev Marketplace only for purposes that are permitted by (a) the Terms and GameDev Marketplace Guidelines and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions. You agree to comply with all local laws and regulations regarding the download, installation and/or use of the Products.

3.3

You agree not to access (or attempt to access) the GameDev Marketplace by any means other than through the interface that is provided by GameDev.net, unless you have been specifically allowed to do so in a separate agreement with GameDev.net. You specifically agree not to access (or attempt to access) the GameDev Marketplace through any automated means (including use of scripts, crawlers or similar technologies from time to time).

3.4

You agree that you will not engage in any activity that interferes with or disrupts the GameDev Marketplace (or the servers, payment systems or networks which are connected to the GameDev Marketplace). You agree that you will not use any of the Products found on the GameDev Marketplace in a way that interferes or disrupts any servers, payment systems, networks, or websites operated by GameDev.net or any third party.

3.5

Unless you have been specifically permitted to do so in a separate agreement with GameDev.net and except as permitted under the GameDev-EULA, you agree that you will not reproduce, duplicate, copy, sell, trade or resell any Product that you have acquired from the GameDev Marketplace for any purpose.

3.6

You agree that you are solely responsible for (and that GameDev.net has no responsibility to you or to any third party for) your use of the GameDev Marketplace or any Products, any breach of your obligations under the Terms, and for the consequences (including loss or damage of any kind which GameDev.net may suffer) of any such breach.

3.7

You agree to comply with any and all applicable tax laws, including the reporting and payment of any taxes arising in connection with your use of the GameDev Marketplace or the purchase of Products through the GameDev Marketplace, and that the reporting and payment of any such applicable taxes are your responsibility.

3.8

You agree that GameDev.net and/or third parties own all right, title and interest in and to the GameDev Marketplace and the Products available through the GameDev Marketplace, including without limitation all applicable Intellectual Property Rights in the GameDev Marketplace and Products. “Intellectual Property Rights” means any and all intellectual property rights wherever in the world and whenever arising (and including any application), including patent laws, copyright, trade secrets, know-how, confidential information, business names and domain names, computer programs, trademark laws, service marks, trade names, utility models, design rights, semi-conductor topography rights, database rights, goodwill or rights to sue for passing off, and any and all other proprietary rights worldwide. You agree that you will not, and will not allow any third party to,

(i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the GameDev Marketplace or the Products, unless otherwise permitted,

(ii) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management or forward-lock functionality) in the GameDev Marketplace or Products,

(iii) use the GameDev Marketplace or Products to access, copy, transfer, transcode or retransmit content in violation of any law or third party rights, or

(iv) remove, obscure, or alter GameDev.net’s or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within the GameDev Marketplace or Products.

3.9

While GameDev.net does not undertake any legal obligation to monitor, pre-screen, review, flag, filter, modify, refuse or remove any or all Products or their content from the GameDev Marketplace, GameDev.net reserves the right to do so, and if GameDev.net is notified by Seller or otherwise becomes aware and determines in its sole discretion that an Product or any portion thereof; (a) violates the intellectual property rights or any other rights of any third party; (b) violates any applicable law or is subject to an injunction; (c) is pornographic, obscene or otherwise violates GameDev.net’s hosting policies or other terms of service as may be updated by GameDev.net from time to time in its sole discretion; (d) is being distributed by Seller improperly; (e) may create liability for GameDev.net; (f) is deemed by GameDev.net to have a virus or is deemed to be malware, spyware or have an adverse impact on GameDev.net; (g) violates the terms of this Agreement; or (h) the display of the Product is impacting the integrity of GameDev.net servers (i.e., Customers are unable to access such content or otherwise experience difficulty), GameDev.net may demand that Seller fixes the Product. In addition GameDev.net shall itself be entitled to edit and make changes in the Product. Finally GameDev.net shall be entitled to remove the Product from the GameDev Marketplace immediately, or reclassify the Product at its sole discretion. GameDev.net reserves the right to suspend and/or bar any Seller from the GameDev Marketplace at its sole discretion. Irrespective of the above, you agree that by using the GameDev Marketplace you may be exposed to Products that you may find offensive, indecent or objectionable and that you use the GameDev Marketplace at your own risk.

4. GAMEDEV.NET SERVICES AND THIRD PARTY PRODUCTS AND SERVICES

4.1

Some components of Products (whether developed by GameDev.net or third parties) may also be governed by applicable open source software licenses. In the event of a conflict between the Terms, the applicable EULA and any such licenses, the open source software licenses shall prevail with respect to those components.

5. AUTOMATIC UPDATES

5.1

Products originating from GameDev.net and Sellers may communicate with GameDev.net servers or Sellers’ servers as the case may be from time to time to check for available updates to the GameDev Marketplace and the Products, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions (collectively, “Updates”). By installing and using these Products, you agree to such automatically requested and received Updates. The GameDev Marketplace may make connections to remote servers to provide GameDev.net with anonymous usage statistics collected by Google Analytics that GameDev.net uses to improve the GameDev Marketplace. The GameDev Marketplace may also have features that confirm your compliance with the terms of this Agreement.

6. INDEMNIFICATIONS

6.1

To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless GameDev.net, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from your use of the GameDev Marketplace, including your downloading, installation, or use of any Products, or your violation of these Terms.

7. TERMINATION

7.1

These Terms will continue to apply until terminated by either you or GameDev.net as set out below.

7.2

If you want to terminate these Terms, you may do so by ceasing your use of the GameDev Marketplace and any Products downloaded or shipped from the GameDev Marketplace.

7.3

GameDev.net may at any time, terminate these Terms with you if: (A) you have breached any provision of these Terms; or (B) GameDev.net is required to do so by law; or (C) GameDev.net decides to no longer provide the GameDev Marketplace.

7.4

When these Terms come to an end, all of the legal rights, obligations and liabilities that you and GameDev.net have benefited from, been subject to (or which have accrued over time whilst these Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of Section 11.7 shall continue to apply to such rights, obligations and liabilities indefinitely.

8. DISCLAIMER OF WARRANTIES

8.1

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE GAMEDEV MARKETPLACE AND ANY PRODUCTS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE GAMEDEV MARKETPLACE IS AT YOUR SOLE RISK AND THAT THE GAMEDEV MARKETPLACE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN PARTICULAR, GAMEDEV.NET, ITS SUBSIDIARIES, HOLDING COMPANIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:

(A) YOUR USE OF THE PRODUCTS WILL MEET YOUR REQUIREMENTS,

(B) YOUR USE OF THE PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,

(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE PRODUCTS WILL BE ACCURATE OR RELIABLE, AND

(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE PRODUCTS WILL BE CORRECTED.

8.2

YOUR USE OF THE GAMEDEV MARKETPLACE AND ANY PRODUCTS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE GAMEDEV MARKETPLACE IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, OR OTHER DEVICE, OR LOSS OF DATA THAT RESULTS FROM SUCH USE.

8.3

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GAMEDEV.NET FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES TERMS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES TERMS AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO ANY PRODUCTS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE GAMEDEV MARKETPLACE AS WELL AS THE GAMEDEV MARKETPLACE ITSELF.

8.4

NONE OF THE PRODUCTS ARE INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER SUCH ACTIVITIES IN WHICH CASE THE FAILURE OF THE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

9. LIMITATION OF LIABILITY

9.1

GAMEDEV.NET AND ITS SUBSIDIARIES, HOLDING COMPANIES AND OTHER AFFILIATES TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY UNDER THESE TERMS WILL BE LIMITED TO THE AMOUNTS PAID TO GAMEDEV.NET BY YOU IN THE PAST SIX MONTHS FOR THE PRODUCTS RELATING TO THE DISPUTE. IN NO EVENT WILL GAMEDEV.NET OR ITS SUBSIDIARIES, HOLDING COMPANIES AND OTHER AFFILIATES SHALL BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF THE GAMEDEV MARKETPLACE OR ANY PRODUCTS DOWNLOADED OR OTHERWISE OBTAINED FROM THE GAMEDEV MARKETPLACE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT GAMEDEV.NET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

9.2

YOU EXPRESSLY UNDERSTAND AND AGREE THAT GAMEDEV.NET, ITS SUBSIDIARIES, HOLDING COMPANIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:

(I) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY, DEVELOPER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS IN THE PRODUCTS OR ON THE GAMEDEV MARKETPLACE;

(II) ANY CHANGES WHICH GAMEDEV.NET MAY MAKE TO THE PRODUCTS OR ON THE GAMEDEV MARKETPLACE, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE GAMEDEV MARKETPLACE OR THE PRODUCTS (OR ANY FEATURES WITHIN THE PRODUCTS);

(III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE GAMEDEV MARKETPLACE OR THE PRODUCTS;

(IV) YOUR FAILURE TO PROVIDE GAMEDEV.NET WITH ACCURATE ACCOUNT INFORMATION;

9.3

NOTHING IN THE TERMS EXCLUDES THE LIABILITY FOR GAMEDEV.NET, ITS SUBSIDIARIES OR AFFILIATES FOR: (I) DEATH AND PERSONAL INJURY CAUSED BY NEGLIGENCE; (II) FRAUDULENT MISREPRESENTATION; OR (III) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED BY APPLICABLE LAW.

10. CHANGES OF TERMS

10.1

GameDev.net may add or make changes to the Terms from time to time. When these changes are made, GameDev.net will make a new copy of the Terms available at the GameDev Marketplace.

10.2

You understand and agree that if you use the GameDev Marketplace and the Products after the date on which the Terms have changed GameDev.net will treat your use as acceptance of the updated Terms.

11. GENERAL LEGAL TERMS

11.1

These Terms constitutes the whole legal agreement between you and GameDev.net and govern your use of the GameDev Marketplace and the Proudcts, and completely replace any prior agreements between you and GameDev.net in relation to the GameDev Marketplace and the Products. Each party confirms that, in entering into the Terms it has not relied upon any representations or statements not expressly incorporated herein. Notwithstanding anything else in the Terms, neither party limits or excludes liability for fraudulent misrepresentation.

11.2

You agree that if GameDev.net does not exercise or enforce any legal right or remedy which is contained in these Terms (or which GameDev.net has the benefit of under any applicable law), this will not be taken to be a formal waiver of GameDev.net’s rights and that those rights or remedies will still be available to GameDev.net.

11.3

If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of these Terms will continue to be valid and enforceable.

11.4

You acknowledge and agree that each member of the group of companies with which GameDev.net is affiliated shall be third party beneficiaries to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms that confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to these Terms. (whether pursuant to the contract, law or otherwise).

11.5

The rights granted in the Terms may not be assigned or transferred by you without the prior written approval of GameDev.net. Nor shall you be permitted to delegate your responsibilities or obligations under these Terms without the prior written approval of GameDev.net.

11.6

The rights granted in the Terms may be assigned or transferred by GameDev.net without your prior written approval. In addition GameDev.net shall be permitted to delegate its responsibilities or obligations under these Terms without your written approval.

11.7

These Terms, and your relationship with GameDev.net under these Terms, shall be governed by the laws of the State of California in the United States of America without regard to its conflict of laws provisions. Any dispute arising out of or in connection with these Terms, including any disputes regarding the existence, validity or termination thereof, shall be settled by simplified arbitration arranged by the American Arbitration Association (AAA) under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes.  Notwithstanding this, you agree that GameDev.net shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

APPENDIX 1

ASSET STORE END USER LICENSE AGREEMENT

1. PARTIES TO THE AGREEMENT/THE SUBJECT MATTER OF THE AGREEMENT

1.1

This GameDev Marketplace End User License Agreement (hereinafter referred to as “EULA”) is a non-exclusive, legally binding end user license agreement between any individual or a single entity (“END-USER”) that acquires a Product from the GameDev Marketplace and either (i) GameDev.net, LLC (“Licensor” or “GameDev.net”), or as the case may be (ii) any third party (“Seller”) that distributes its Products from the GameDev Marketplace. Consequently, this EULA shall apply regardless of whether a purchased Product is produced by GameDev.net or by a Seller (“Licensor”). This EULA is therefore a non-exclusive, legally binding end user license agreement as the case may be between either (i) GameDev.net and END-User (in which case the term “Licensor” shall refer to GameDev.net), or (ii) Seller and End User (in which case the term “Licensor” shall refer to Seller).

1.2

By installing, copying, accessing, downloading or otherwise using the Products, End User agrees to be bound the provisions of this EULA. All definitions of the Terms shall also apply in this EULA unless the context clearly provides for a different understanding.

1.3

The subject matter of this EULA is the licensing to END-USER of Licensed Products acquired by End User from the GameDev Marketplace.

1.4

END USER hereby acknowledges that in the event it acquires a Licensed Product which in the GameDev Marketplace is marked as a Product which is distributed by Seller (as opposed to GameDev.net), then Seller shall be considered as Licensor of such Product and, consequently, only Seller (as opposed to GameDev.net) shall be responsible for any liability whatsoever under, any EULA or any breach by Seller, including (without limitation) liability for infringement of any intellectual property rights, irrespective of the fact that payment takes place to GameDev.net.

2. END USER’S RIGHTS AND OBLIGATIONS

2.1

END-USER may use the Licensed Products only for their intended purpose.

2.2

Licensor grants to the END-USER a non-exclusive, worldwide, and perpetual license to the Product to integrate Products only as incorporated and embedded components of electronic games and interactive media and distribute such electronic game and interactive media. Except for game services software development kits (“Services SDKs”), END-USERS may modify Products. END-USER may otherwise not reproduce, distribute, sublicense, rent, lease or lend the Products. It is emphasized that the END-USERS shall not be entitled to distribute or transfer in any way (including, without, limitation by way of sublicense) the Products in any other way than as integrated components of electronic games and interactive media. Without limitation of the foregoing it is emphasized that END-USER shall not be entitled to share the costs related to purchasing a Product and then let any third party that has contributed to such purchase use such Product (forum pooling).

2.3

END-USER is granted a license to install and use Products on an unlimited number of computers provided that these computers are either all (i) physically located at a single physical location (“Site”) belonging to END-USER, or (ii) laptops belonging to END-USER which have been made available by END-USER to its employees that are employed at the same Site. Consequently, any Product may only be used at particular Site or on computers assigned to END-USER’s employees employed at the same Site and may only be moved to another Site subject to prior written approval from Licensor.

2.4

Game Services SDKs: If END-USER downloads and integrates Services SDKs, END-USER may be required to accept a Licensor end user agreement and/or additional Licensor terms and conditions to use such services.

2.5

END-USER shall pay for the license to the Products in accordance with the payment process provided in the GameDev Marketplace. END USER shall provide customary billing and tax information such as name, billing address, credit card information and VAT number (for EU residents). END USER agrees to pay for all purchases hereby authorizes the collection of such amounts including applicable taxes by charging the credit card provided, either directly by GameDev.net or indirectly, via a third party online payment processor. VAT numbers cannot be added or changed after the purchase is completed. If you are directed to a third party payment processor, you may be subject to terms and conditions governing use of that third party’s service and that third party’s Privacy Policy. Please review such third party’s terms and conditions and privacy policy before using the services. All sales are final and there shall be no refunds except as required by law.

2.6

Some components of Products (whether developed by GameDev.net or third parties) may also be governed by applicable open source software licenses. In the event of a conflict between the applicable EULA and any such open source licenses, the open source software licenses shall prevail with respect to those components.

3. LICENSOR’S RIGHTS AND OBLIGATIONS

3.1

Licensor shall render support services to END-USER only in the event a special agreement to this effect has been entered into.

4. TERMINATION

4.1

Without prejudice to any other rights, Licensor may terminate this EULA if END-USER fails to comply with the terms and conditions of this EULA and the Terms.

4.2

END-USER may terminate END-USER’s license at any time.

4.3

In the event that GameDev.net at its discretion or as a result of a decision made by any competent court or authority makes a refund to END-USER of the fees paid for any Product, then this EULA shall terminate for such Product.

4.4

In the event that GameDev.net at its discretion or as a result of a decision made by any competent court or authority makes a refund to END-USER of the fees paid for any Product, then this EULA shall terminate for such Product.

5. DUPLICATION RIGHTS/BACK UP COPY

5.1

END-USER may not make copies of the Products, except and only to the extent that such activity is expressly permitted under mandatory statutory applicable law. In addition Licensor acknowledges that copies of the Products may be made when the Products have been integrated as parts of electronic games and interactive media, cf. Section 2.3 above.

5.2

After installation of one copy of the Product pursuant to this EULA, END USER may keep the original copy of the Product solely for back up or archival purposes.

6. REVERSE ENGINEERING, DECOMPILATION, DISASSEMBLY

6.1

Except for Services SDKs, END USER may modify assets. END USER shall not reverse engineer, decompile, or disassemble Services SDKs, except and only to the extent that such activity is expressly permitted under mandatory statutory applicable law.

7. TRADEMARKS

7.1

This EULA does not grant END-USER any rights in connection with any trademarks or service marks of Licensor, Seller or Licensor’s other suppliers.

8. UPGRADES AND SUPPORT

8.1

Products identified as upgrades replace and/or supplement the licensed Products.

8.2

Licensor may at its own discretion from time to time provide upgrades of the Products to END USER without requesting further payment. Irrespective hereof END-USER is only entitled to licenses to upgrades if END-USER has entered into an Upgrade Agreement with Licensor. END-USER may use the upgraded Products only in accordance with the terms of this EULA.

8.3

END-USER is only entitled to support if END-USER has entered into a Support Agreement with Licensor.

9. COPYRIGHT

9.1

The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.

9.2

All title and intellectual property rights in and to the Products (including but not limited to any software, images, photographs, animations, graphics, 3D graphics, video, audio, music, text, tutorials, and “applets” incorporated into the Products), the accompanying printed materials, and any copies of the Products are owned by Licensor. All rights not expressly granted are reserved by Licensor.

10. DISCLAIMER OF WARRANTIES

10.1

END-USER UNDERSTANDS AND ACCEPTS THAT PRIOR TO PLACING ANY PRODUCT ON THE GAMEDEV MARKETPLACE, GAMEDEV.NET DOES NOT UNDERTAKE ANY LEGAL OBLIGATION TO MONITOR, PRE-SCREEN, REVIEW, FLAG, FILTER, MODIFY, REFUSE OR REMOVE ANY PRODUCT OR THEIR CONTENT FROM THE GAMEDEV MARKETPLACE. CONSEQUENTLY, END-USER EXPRESSLY UNDERSTANDS AND AGREES THAT ITS USE OF THE PRODUCTS IS AT END-USER’S SOLE RISK AND THAT THE PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN PARTICULAR, LICENSOR, ITS SUBSIDIARIES, HOLDING COMPANIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO END-USER THAT:

(A) END-USER’S USE OF THE PRODUCTS WILL MEET END-USER’S REQUIREMENTS,

(B) END-USER’S USE OF THE PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,

(C) ANY INFORMATION OBTAINED BY END-USER AS A RESULT OF END-USER’S USE OF THE PRODUCTS WILL BE ACCURATE OR RELIABLE, AND

(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO END-USER AS PART OF THE PRODUCTS WILL BE CORRECTED.

10.2

END-USER’S USE OF ANY PRODUCTS IS AT END-USER’S OWN DISCRETION AND RISK AND END-USER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO END-USER’S COMPUTER SYSTEM, OR OTHER DEVICE, OR LOSS OF DATA THAT RESULTS FROM SUCH USE.

10.3

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES TERMS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES TERMS AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO ANY PRODUCTS .

10.4

NONE OF THE PRODUCTS ARE INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER SUCH ACTIVITIES IN WHICH CASE THE FAILURE OF THE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

11. LIMITATION OF LIABILITY

11.1

LICENSOR AND ITS SUBSIDIARIES, HOLDING COMPANIES AND OTHER AFFILIATES TOTAL LIABILITY TO END-USER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY UNDER THESE TERMS WILL BE LIMITED TO THE AMOUNTS PAID TO END-USER BY END-USER IN THE PAST SIX MONTHS FOR THE PRODUCTS RELATING TO THE DISPUTE. IN NO EVENT WILL LICENSOR OR ITS SUBSIDIARIES, HOLDING COMPANIES AND OTHER AFFILIATES SHALL BE LIABLE TO END-USER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF THE GAMEDEV MARKETPLACE OR ANY PRODUCTS DOWNLOADED OR OTHERWISE OBTAINED FROM THE GAMEDEV MARKETPLACE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

11.2

END-USER EXPRESSLY UNDERSTANDS AND AGREES THAT LICENSOR, ITS SUBSIDIARIES, HOLDING COMPANIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO END-USER FOR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY END-USER, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:

(I) ANY RELIANCE PLACED BY END-USER ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN END-USER AND LICENSOR OR ANY, DEVELOPER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS IN THE PRODUCTS OR ON THE GAMEDEV MARKETPLACE;

(II) ANY CHANGES WHICH LICENSOR MAY MAKE TO THE PRODUCTS OR ON THE GAMEDEV MARKETPLACE, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE GAMEDEV MARKETPLACE OR THE PRODUCTS (OR ANY FEATURES WITHIN THE PRODUCTS);

(III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH END-USER’S USE OF THE PRODUCTS;

(IV) END-USER’S FAILURE TO PROVIDE GAMEDEV.NET WITH ACCURATE ACCOUNT INFORMATION;

11.3

NOTHING IN THE TERMS EXCLUDES THE LIABILITY FOR LICENSOR, ITS SUBSIDIARIES OR AFFILIATES FOR: (I) DEATH AND PERSONAL INJURY CAUSED BY NEGLIGENCE; (II) FRAUDULENT MISREPRESENTATION; OR (III) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED BY APPLICABLE LAW.

12. EXPORT RESTRICTIONS

12.1

Products available on the GameDev Marketplace may be subject to laws, administrative regulations and executive orders of those authorities responsible according to any applicable laws relating to the control of imports and exports of the Products (“Export Laws”). You agree to comply with all applicable Export Laws and you shall not export or re-export directly or indirectly (including via remote access) any part of the Products to any country to which a license is required under the Export Laws without first obtaining a license.