(BETA TESTING OF A PRE-RELEASE GAME)
Daybreak Game Company LLC has designed and developed and is the publisher of a software product entitled PlanetSide 2 (the "Game"). Daybreak has established a Beta Test program (the "Beta Program") to, among other things, allow a limited number of people to test the features, capabilities and performance of one or more prerelease version(s) of the Game, (the "Beta Software") and provide feedback and comments to Daybreak Games. By selecting the "I AGREE" box below:
(1) You promise that you (a) are eighteen years of age or older, (b) you are not a principal or employee of a developer, manufacturer or publisher of video or computer games (other than Daybreak Games), and (c) are entering into this Agreement on a completely voluntary basis with no expectation of consideration, remuneration, credit or any other form of compensation whatsoever other than what is expressly provided for in this Agreement (IF YOU ARE UNDER 18 YEARS OF AGE, YOU MAY NOT PARTICIPATE IN THE BETA PROGRAM).
(2) You acknowledge that Daybreak may, in its discretion and at any time before or during the Beta Program, accept or reject your application for the Beta Program (or terminate your participation therein), and if you are accepted, the Agreement below is a binding contract between you and Daybreak Games; furthermore, your acceptance of this Agreement does not guarantee your participation in the Beta Program as your acceptance and invitation to participate in the Beta Program is at Daybreak Gamess sole and absolute discretion.
(3) You acknowledge that your application shall not be complete, nor shall you be considered for entry into the Beta Program, unless and until you provide Daybreak with certain diagnostic information from your computer as part of this application process, if requested by Daybreak Games.
(4) Daybreak may, in its discretion, reschedule the start date or end date of the Beta Program, or may even cancel the Beta Program entirely, at any time in its sole discretion.
(5) You agree, grant Daybreak the right and consent, for the term of your participation in the Beta Program, to allow Daybreak to upload certain DxDiag DirectX diagnostic information, hardware, software, driver, operating system and related information, including crash logs, from your computer solely for the purpose of analyzing, improving and maintaining the Game.
(6) In addition to the terms set forth above, you agree to the terms set forth below.
1. License Terms.
1.1 License Grant. Daybreak grants you (the "Recipient") the non-exclusive, non-transferable, revocable, limited right to install the Beta Software onto a single computer for Recipients personal use. Recipient may not use, copy, reproduce, modify, publicly perform or display, create derivative works of, sell, auction, loan, lease, rent, distribute, transfer or disclose all or any part of the Beta Software (including, without limitation, any screenshots, videos, documentation or manuals relating to the Game) except as provided in this Agreement. Recipient may only use the Beta Software for testing and evaluation purposes as set forth in Section 1.4 below. All other rights are reserved by Daybreak Games.
1.2 License Restrictions. Recipient shall not:
(a) Sublicense to, transfer, network, transmit, distribute, or permit use of the Beta Software by any third party;
(b) Reverse engineer, decompile, or disassemble the Beta Software;
(c) Make copies of the Beta Software other than one (1) copy for back-up purposes to be used solely as a replacement for the original copy, provided that Recipient includes on the back-up copy all copyright and other notices that are included on the Beta Software and Recipients use of such back-up copy shall be subject to this Agreement; or
(d) Export the Beta Software in violation of the export control and similar laws and regulations of the United States of America and other countries.
1.3 Indemnification. Recipient: (i) agrees to indemnify, defend and hold harmless, and (ii) hereby releases, Daybreak Games, its licensors, and their direct and indirect parent, subsidiary and sister corporations, and their respective officers, directors, employees, and agents from and against any and all losses, liabilities, claims, obligations, costs and/or expenses (including reasonable legal fees) which result from, arise out of or in connection with the use of the Beta Program and/or Beta Software and all other services or activities related thereto.
1.4 Testing and Evaluation Obligations. Recipient hereby agrees to perform all of the following obligations during participation the Beta Program: (i) test, evaluate and analyze the Beta Software and its operation, features, capabilities and performance, (ii) comply with reasonable requests of Daybreak from time to time regarding testing, and (iii) provide feedback and comments to Daybreak (including, but not limited to, bug reports and test results). All of Recipients feedback and comments shall be the sole and exclusive property of Daybreak and/or its licensors, and Daybreak and/or its licensors shall have the perpetual right to use all or part of Recipients feedback or comments in any manner or media now known or hereafter devised.
1.6 Term of the Agreement. Recipients participation in the Beta Program and the grant of the license herein may be terminated by Daybreak at any time, for any reason or for no reason, in Daybreak Gamess sole and absolute discretion, by providing written, electronic or emailed notice to Recipient. Recipient may, at any time and for any reason or for no reason, terminate his or her participation in the Beta Program by providing written or emailed notice to Daybreak Games. The Beta Program will be terminated upon the earlier of: (a) Daybreak Gamess written, electronic or emailed notice to Recipient, or (b) the commercial release of the Game. The termination of Recipients participation in the Beta Program and/or the termination of the Beta Program, however, shall not modify or supersede the survival provision in Section 6.1 below.
2.1 Confidential Information Defined. "Confidential Information" shall mean: (a) any and all information relating to or contained in the Beta Software, Beta Program and/or the Game, including, without limitation, information relating to: (i) the performance, capabilities, bugs and contents of the Beta Software, (ii) Recipients feedback and comments, (iii) any other Beta Program participants feedback and comments, and (iv) any Daybreak employees feedback and comments, (b) the terms of this Agreement, and (c) any and all information relating to the future or proposed games, services or business operations of Daybreak Games. Confidential Information includes, without limitation, all such information disclosed to Recipient prior to Recipient accepting this Agreement. Recipient acknowledges and agrees that the Confidential Information constitutes valuable trade secrets of Daybreak Games.
2.2 Confidentiality Obligation. Recipient shall keep the Confidential Information in confidence and shall not publish, disclose, or otherwise make available, directly or indirectly, any Confidential Information to any third party. However, Recipient may disclose the Confidential Information in accordance with a judicial or governmental order; provided, however, that Recipient shall give Daybreak reasonable written notice prior to disclosure and shall comply with any applicable protective order or equivalent. ONCE THE COMMERCIAL VERSION OF THE GAME HAS BEEN RELEASED BY Daybreak TO THE PUBLIC, RECIPIENTS CONFIDENTIALITY OBLIGATION SHALL CONTINUE ONLY WITH RESPECT TO INFORMATION CONCERNING THIS BETA PROGRAM AND ALL FEEDBACK AND COMMENTS (WHETHER FROM RECIPIENT, ANY OTHER PARTICIPANT, OR FROM Daybreak EMPLOYEES).
3. Ownership. Except for the revocable, limited license expressly granted hereunder, Daybreak retains all rights, title and interests in and to the Beta Software and all copies thereof, and all game character data in connection therewith. The Beta Software is copyrighted and is protected by United States copyright laws and international treaty provisions. Recipient acknowledges that the Beta Software contains valuable trade secrets of Daybreak Games, and that Daybreak and/or its licensors own all intellectual property rights in and to the Beta Software, including, without limitation, all patent rights, copyrights, inventions, trade secret rights, trade dress rights, trademark rights and intellectual property rights therein and thereto. Recipient may not remove the copyright and other proprietary rights notices from the Beta Software. Recipient agrees that this Agreement shall be retained with all printed and electronic copies of the Beta Software and documentation constituting the Beta Software. Recipient agrees to prevent any unauthorized copying or distribution of the Beta Software. Except for the license as expressly provided herein, Daybreak does not grant Recipient any express or implied right in any patents, copyrights, trademarks, or trade secret information of Daybreak and/or its licensors. In accordance with the terms set forth herein, Recipient agrees that Daybreak and/or its licensors own all rights, title, and interests in any and all of Recipients feedback and comments, without any remuneration, compensation or credit to Recipient. To the extent that any of the rights assigned herein cannot presently be assigned under applicable law, Recipient agrees to assign such rights at such time as the rights are capable of being assigned. Recipient agrees at Daybreak Gamess request to execute such further documents and to do such further acts as may be necessary or desirable to document, perfect, register or enforce Daybreak Gamess and/or its licensors ownership of any of the rights, title and/or interests hereunder, in whole or in part including, without limitation, execution of a copyright assignment in a form provided by Daybreak in its sole discretion. If Recipient fails or refuses to execute any such documents, Recipient hereby appoints Daybreak as Recipients attorney in fact, which appointment is coupled with an interest and is irrevocable, to act on Recipients behalf and to execute, deliver, record and file such documents. The rights granted, assigned and/or to be assigned by Recipient hereunder are granted for the entire universe and shall inure in perpetuity, and, as set forth above, no further consideration shall be payable to Recipient at anytime in connection therewith. Recipient will acquire no right to use, and will not use without Daybreak Gamess prior written consent, the names, characters, artwork, designs, tradenames, copyrighted materials, trademarks or service marks of Daybreak or its parent, related or subsidiary companies, employees, directors, shareholders, assigns, successors or licensees: (a) in any advertising, publicity or promotion, or (b) in any manner other than in accordance with this Agreement.
4. Injunctive Relief. Recipient acknowledges and agrees that a breach or threatened breach of any covenant contained in this Agreement would cause irreparable injury, that money damages would be an inadequate remedy, and that Daybreak shall be entitled to temporary and/or permanent injunctive relief, without the posting of any bond or other security, to restrain Recipient, from such breach or threatened breach. Nothing in this Section 4 shall be construed as preventing Daybreak from pursuing any and all remedies available to it, including the recovery of money damages from Recipient.
5. No Warranty; No Liability for Damages; No Support; Character Data.
5.1 No Warranty. Recipient acknowledges that the Beta Software is a pre-release version and is not a final game. RECIPIENT ACKNOWLEDGES THAT THE BETA SOFTWARE MAY WELL CONTAIN ERRORS AND DEFECTS. THE BETA SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, NONINFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY, OR FITNESS FOR ANY PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY OF THE BETA SOFTWARE, THE BETA PROGRAM, THE GAME AND ALL OTHER SERVICES IS WITH RECIPIENT. SHOULD THEY PROVE DEFECTIVE FOLLOWING THEIR RECEIPT BY RECIPIENT, RECIPIENT AND NOT Daybreak ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING OR REPAIR. Without limiting the foregoing, we do not ensure continuous, error-free, secure or virus-free operation of the Beta Program, the Beta Software, the Game, your account or continued operation or availability of any given server. Some states do not allow limitations as to how long an implied warranty lasts and/or exclusions or limitations of consequential damages, so the above limitations and/or exclusions of liability may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights which vary from state to state.
5.2 No Liability for Damages. IN NO EVENT SHALL Daybreak Games, ITS DIRECT OR INDIRECT PARENT, SISTER OR SUBSIDIARY CORPORATIONS, EMPLOYEES, AGENTS, OFFICERS AND/OR DIRECTORS OF ANY OF THE ABOVE, BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER DAMAGES OR LOST PROFITS, DATA OR BUSINESS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE BETA PROGRAM OR BETA SOFTWARE, EVEN IF ANY OF THE ABOVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Without limiting the generality of the foregoing, no warranty is made that the Beta Software will generate computer programs with the characteristics or specifications desired by Recipient or that the Beta Program or Beta Software will be error-free. THESE DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT.
5.3 No Support. Daybreak does not provide any support for the Beta Program or Beta Software. However, Daybreak may provide an e-mail address and/or a passworded board for Recipient to send questions and/or comments regarding the Beta Software. Daybreak does not, however, make any representations or warranties as to the accuracy of any statements or advice provided in response to Recipients e-mail(s) and/or board postings.
5.4 Test Environment. Recipient acknowledges that the Beta Program is a test environment, that game characters and/or character data will be frequently wiped or modified at Daybreak Gamess sole discretion, and that Beta Program game characters and/or character data will likely not be exported into the Game once the Game is commercially released.
6.1 Survival. The provisions of this Agreement, other than the first sentence of Section 1.1 and Sections 1.4(i), 1.4(ii) and 1.4(iii), shall continue in full force and effect even after: (i) the Beta Program has been terminated or completed, and/or (ii) Recipients participation in the Beta Program has been terminated.
6.2 Governing Law; Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California excluding conflict of law rules and principles. Both parties submit to personal jurisdiction in California and further agree that any cause of action relating to this Agreement shall be brought in the County of San Diego, State of California (if under State law) or the Southern District of California (if under Federal law) and such courts shall have exclusive jurisdiction to determine the validity, construction and performance of this Agreement and the legal relations between the parties hereto. Recipient hereby waives any claim that such venue is improper or inconvenient.
6.3 Severability. If any provision of this Agreement shall be held invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it valid and enforceable, and the validity and enforceability of all other provisions of this Agreement shall not be affected thereby.
6.4 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof, and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties. Changes made by Recipient to this Agreement will not be effective unless set forth in a writing describing the changes and agreed to and signed by both Daybreak and Recipient. Daybreak reserves the right to change the terms of this Agreement at any time upon notice to Recipient by e-mail. Such changes by Daybreak shall be effective upon notice to Recipient, and Recipients continued participation in the Beta Program after notice of a change in terms by Daybreak shall constitute Recipients acknowledgement of, and agreement to, be bound by such changes.