END USER LICENSE AGREEMENT
This End User License Agreement ("EULA") governs your ("You" or "Your") use of the InstantAction, Inc. ("InstantAction") software that you have selected to download (the "Software," as more fully defined below). By clicking "I Accept" in connection with Your purchase of the Software or by installing the Software on Your computer or by using the Software in any way, you accept the terms of this EULA. Inquiries about this EULA and other licenses offered by InstantAction should be directed to licensing@torquepowered.com.
1. Definitions.
1.1. "Console" means any game console system including but not limited to Microsoft Xbox and Xbox 360; Sony Playstation 2, 3, and Portable; Nintendo GameCube, Wii, and DS; and their successors.
1.2. "Game" means software that is intended for non-gambling entertainment purposes only. A Game may include tools specific to that Game that allow users to modify the Game (e.g., add new levels, etc.).
1.3. "Apple Mobile Device" means the Apple iPhone, iPod Touch, or iPad.
1.4. "Logo Guidelines" mean that guidelines for using the Torque Logo that are provided on the Website (which may be changed from time to time).
1.5. "Mobile Device" means any handheld or mobile device including but not limited to an Apple Mobile Device, the RIM Blackberry, a device running the Android operating system, or a device running the Microsoft Windows Phone operating system.
1.6. "Non-game" means software that is intended, in whole or in part, for non-entertainment purposes.
1.7. "Personal Computer" means any personal computer, including but not limited to any personal computer that uses Windows, Mac, or Linux operating system software, but does not include any Console or Mobile Device.
1.8. "Product" means any Game or Non-game.
1.9. "Software" includes the source code and executable code provided to You in connection with Your purchase and all associated documentation (if any). The Software also includes any update to the Software that corrects bugs or provides minor feature enhancements. The Software does not include next generation versions of the Software or versions of the Software that include major feature enhancements.
1.10. "Torque Logo" means the TORQUE mark and logo provided on the Website.
1.11. "Website" means the website located at www.torquepowered.com and any successor website.
2. Grant of License.
2.1. Individual License. If you have purchased an "Individual License," InstantAction hereby grants You a limited, non-exclusive, non-sublicenseable, non-transferrable, non-assignable, right and license to use the Software to develop Games for Personal Computers. If you are an individual, only You may use the Software. If You are a business entity, only one officer or employee may use the Software. You may install the Software on up to two (2) Personal Computers.
2.2. Studio License. If you have purchased a "Studio License," InstantAction hereby grants You a limited, non-exclusive, non-sublicenseable, non-transferrable (except as expressly provided herein), non-assignable, right and license to use the Software to develop Games for the Personal Computer. You have the right to designate one (1) individual user per "Seat License" that you purchase from InstantAction to use the Software for the foregoing purposes. Each such individual user must be Your employee or contractor, have an account on the Website, and be registered to use the particular Seat License. You may re-designate a Seat License to a different user once per thirty (30) day period without InstantAction's prior written consent; more frequent or greater re-designations require InstantAction's prior written consent. You shall be responsible for each individual user who uses a Seat License. You may install the Software on up to two (2) Personal Computers per individual user.
2.3. Educational License. If you have purchased an "Educational License," InstantAction hereby grants You a limited, non-exclusive, non-sublicenseable, non-assignable right and license to use the Software for educational purposes. You may not use the Software for commercial purposes or to develop or distribute commercial Products. Your staff and students may use the Software for the above purposes. You shall be responsible for the conduct of any staff or students with respect to the use of the Software. You may install one (1) copy of the software per Personal Computer on your premises. Educational Licenses may only be purchased by educational institutions. Please contact licensing@torquepowered.com for details.
2.4. Apple Mobile Device License. If the Software you have licensed is a version of iTorque (including Torque for 2D for iPhone or Torque 3D for iPhone), the words "Personal Computer" in the first sentence of each of Sections 2.1 and 2.2 shall be replaced with "Apple Mobile Device."
2.5. Xbox Live Indie Games. If the Software You have licensed is a version of Torque X (including Torque X 2D and Torque X 3D), the licenses in Section 2.1 and 2.2 shall be extended to allow You to use the Software to develop Xbox LIVE Indie Games, but not XBox LIVE Arcade games or any CD/DVD-based Xbox games.
2.6. Limited License to Make Derivative Works. In addition to the applicable licenses set forth above, InstantAction hereby grants You a limited license to make and use a correction, improvement, or minor modification (such as a genre kit) to the Software (a "Permitted Derivative Work") (a) for Your personal purposes; (b) to include in a Game to the extent the Permitted Derivative Work is necessary for the operation of the Game; and (c) to sell or distribute such Permitted Derivative Work, provided that You may only sell the Permitted Derivative Work to persons who have licenses to the version of the Software to which the Permitted Derivative Work pertains. In the event that You post a copy of the Permitted Derivative Work on the Website, You will grant InstantAction a worldwide, perpetual, non-exclusive, royalty-free license to use, distribute, and make derivative works from, the Permitted Derivative Work. Under no circumstances shall you develop or distribute (whether for free or for compensation) any derivative work based upon the Software that either competes with the Software or is a standalone Non-game.
2.7. All Rights Reserved. You agree and acknowledge that, as between InstantAction and You, InstantAction owns all right, title, and interest to the Software. Except as expressly set forth in Section 2, no right, title, or interest in or to the Software is transferred to you. All rights not expressly granted by InstantAction are hereby reserved.
3. License Conditions.
3.1. Fees. You shall pay the license fees indicated on the Website for the Software. In the event of a chargeback or refund, this EULA and the licenses granted herein shall immediately terminate. Subject to compliance with this EULA, the licenses granted hereunder are royalty-free.
3.2. Permitted Uses. You shall only use the Software for the purposes expressly set forth in Section 2. Without limiting the generality of the foregoing, You may not develop or distribute (a) a Game for operation on a Console without entering into an addendum to this EULA (Studio License holders only); (b) a Non-game for any platform without entering into an addendum to this EULA (Studio License holders only); or (c) any Product that is illegal.
3.3. Restrictions. Except as expressly set forth in Section 2 or as permitted by InstantAction in writing, You shall not: (a) create any derivative works of the Software including but not limited to translations, localizations, starter kits, technology add-ons, or game-making software; (b) reverse engineer, decompile, or otherwise attempt to derive the algorithms of the Software; (c) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Software; or (d) copy the Software, provided that You may make a copy for archival/backup purposes; or (e) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols or labels in the Software.
3.4. Attribution. You shall comply with the following with respect to any Product that you develop using the Software:
3.4.1. Press Releases. You shall credit "InstantAction's Torque [Name, Version]" as the engine middleware used to develop the Product in any public or press announcement.
3.4.2. Logo Screen. You shall display the Torque Logo, consistent with the Logo Guidelines, in the start-up sequence of the Product. For an additional fee, InstantAction may waive this requirement for holders of Studio Licenses in an addendum to this EULA.
3.4.3. Credits. You shall (a) include in the "About" box or in the credits screen of the Product the text "Powered by Torque [Version]"; (b) display the Torque Logo, consistent with the Logo Guidelines, on all external Product packaging materials and the back cover of any printed instruction manual or the end of any electronic instruction manual.
3.4.4. Permissions. InstantAction hereby grants You a permission to use the INSTANTACTION trademark and the Torque Logo for the above purposes, subject to compliance with these terms. You hereby grant InstantAction permission to use Your name in its list of customers for marketing purposes. All goodwill in each party's' trademarks and logos will inure to the sole benefit of that party.
4. Term and Termination. This EULA shall commence on the date You accept it or install the Software or first use the Software (whichever is earlier) and shall continue unless and until terminated in accordance with this Section. InstantAction may terminate this EULA if You breach any of its terms or conditions. Any such termination shall immediately terminate the licenses granted in Section 2. Upon termination, You shall destroy all copies of the Software. The provisions of this EULA which require or contemplate performance after the expiration or termination of this EULA shall remain enforceable.
5. DISCLAIMER OF WARRANTY. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS YOUR RESPONSIBILITY. SHOULD THE SOFTWARE PROVE DEFECTIVE IN ANY RESPECT, YOU AND NOT INSTANTACTION, ASSUME THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS EULA. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
6. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL INSTANTACTION BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED; OR (B) DAMAGES EXCEEDING THE GREATER OF (X) THE TOTAL FEES PAID BY YOU FOR THE SOFTWARE; OR (Y) U.S. $5,000.
7. Representations and Warranties. You represent and warrant that You have the right and authority to enter into and perform the obligations of this EULA.
8. Indemnification. You shall defend, indemnify and hold harmless InstantAction, its parent, subsidiaries, affiliated companies and partners and their respective officers, directors, employees and agents from and against any and all liabilities, damages, costs and fees (including reasonable attorneys' fees) resulting from or relating to: (a) any third party claims or lawsuits related to any Product you create using the Software; (b) any third party claims or lawsuits asserting that You breached any obligation, representation, or warranty hereunder.
9. Miscellaneous.
9.1. Nothing in this EULA shall create, evidence, or imply any agency, partnership, or joint venture between the parties.
9.2. This EULA shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. You may not assign this EULA without InstantAction's prior written consent. No third party beneficiaries are intended; except for the parties hereto, no person or entity shall have the right to assert or enforce any provision of this Agreement.
9.3. This EULA shall be governed by the laws of the State of Nevada, excluding its conflict of law provisions. This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of or relating to this EULA shall be commenced in the state or federal courts located in Clark County, Nevada, and You irrevocably submit to the exclusive jurisdiction of such courts. In any such proceeding, (a) EACH PARTY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY; and (b) the substantially prevailing party shall be entitled to recover its attorneys' fees and costs.
9.4. If You are located outside the United States, then You shall be responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Software, and You represent and warrant that You have complied with any regulations or registration procedures required by applicable law to make this EULA enforceable.
9.5. If any provision in this EULA should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this EULA if no such modification is possible, and other provisions of this EULA shall remain in full force and effect. A waiver by InstantAction of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. This EULA expresses the parties' final agreement as to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This EULA may only be amended in a writing approved by InstantAction.
This End User License Agreement ("EULA") governs your ("You" or "Your") use of the InstantAction, Inc. ("InstantAction") software that you have selected to download (the "Software," as more fully defined below). By clicking "I Accept" in connection with Your purchase of the Software or by installing the Software on Your computer or by using the Software in any way, you accept the terms of this EULA. Inquiries about this EULA and other licenses offered by InstantAction should be directed to licensing@torquepowered.com.
1. Definitions.
1.1. "Console" means any game console system including but not limited to Microsoft Xbox and Xbox 360; Sony Playstation 2, 3, and Portable; Nintendo GameCube, Wii, and DS; and their successors.
1.2. "Game" means software that is intended for non-gambling entertainment purposes only. A Game may include tools specific to that Game that allow users to modify the Game (e.g., add new levels, etc.).
1.3. "Apple Mobile Device" means the Apple iPhone, iPod Touch, or iPad.
1.4. "Logo Guidelines" mean that guidelines for using the Torque Logo that are provided on the Website (which may be changed from time to time).
1.5. "Mobile Device" means any handheld or mobile device including but not limited to an Apple Mobile Device, the RIM Blackberry, a device running the Android operating system, or a device running the Microsoft Windows Phone operating system.
1.6. "Non-game" means software that is intended, in whole or in part, for non-entertainment purposes.
1.7. "Personal Computer" means any personal computer, including but not limited to any personal computer that uses Windows, Mac, or Linux operating system software, but does not include any Console or Mobile Device.
1.8. "Product" means any Game or Non-game.
1.9. "Software" includes the source code and executable code provided to You in connection with Your purchase and all associated documentation (if any). The Software also includes any update to the Software that corrects bugs or provides minor feature enhancements. The Software does not include next generation versions of the Software or versions of the Software that include major feature enhancements.
1.10. "Torque Logo" means the TORQUE mark and logo provided on the Website.
1.11. "Website" means the website located at www.torquepowered.com and any successor website.
2. Grant of License.
2.1. Individual License. If you have purchased an "Individual License," InstantAction hereby grants You a limited, non-exclusive, non-sublicenseable, non-transferrable, non-assignable, right and license to use the Software to develop Games for Personal Computers. If you are an individual, only You may use the Software. If You are a business entity, only one officer or employee may use the Software. You may install the Software on up to two (2) Personal Computers.
2.2. Studio License. If you have purchased a "Studio License," InstantAction hereby grants You a limited, non-exclusive, non-sublicenseable, non-transferrable (except as expressly provided herein), non-assignable, right and license to use the Software to develop Games for the Personal Computer. You have the right to designate one (1) individual user per "Seat License" that you purchase from InstantAction to use the Software for the foregoing purposes. Each such individual user must be Your employee or contractor, have an account on the Website, and be registered to use the particular Seat License. You may re-designate a Seat License to a different user once per thirty (30) day period without InstantAction's prior written consent; more frequent or greater re-designations require InstantAction's prior written consent. You shall be responsible for each individual user who uses a Seat License. You may install the Software on up to two (2) Personal Computers per individual user.
2.3. Educational License. If you have purchased an "Educational License," InstantAction hereby grants You a limited, non-exclusive, non-sublicenseable, non-assignable right and license to use the Software for educational purposes. You may not use the Software for commercial purposes or to develop or distribute commercial Products. Your staff and students may use the Software for the above purposes. You shall be responsible for the conduct of any staff or students with respect to the use of the Software. You may install one (1) copy of the software per Personal Computer on your premises. Educational Licenses may only be purchased by educational institutions. Please contact licensing@torquepowered.com for details.
2.4. Apple Mobile Device License. If the Software you have licensed is a version of iTorque (including Torque for 2D for iPhone or Torque 3D for iPhone), the words "Personal Computer" in the first sentence of each of Sections 2.1 and 2.2 shall be replaced with "Apple Mobile Device."
2.5. Xbox Live Indie Games. If the Software You have licensed is a version of Torque X (including Torque X 2D and Torque X 3D), the licenses in Section 2.1 and 2.2 shall be extended to allow You to use the Software to develop Xbox LIVE Indie Games, but not XBox LIVE Arcade games or any CD/DVD-based Xbox games.
2.6. Limited License to Make Derivative Works. In addition to the applicable licenses set forth above, InstantAction hereby grants You a limited license to make and use a correction, improvement, or minor modification (such as a genre kit) to the Software (a "Permitted Derivative Work") (a) for Your personal purposes; (b) to include in a Game to the extent the Permitted Derivative Work is necessary for the operation of the Game; and (c) to sell or distribute such Permitted Derivative Work, provided that You may only sell the Permitted Derivative Work to persons who have licenses to the version of the Software to which the Permitted Derivative Work pertains. In the event that You post a copy of the Permitted Derivative Work on the Website, You will grant InstantAction a worldwide, perpetual, non-exclusive, royalty-free license to use, distribute, and make derivative works from, the Permitted Derivative Work. Under no circumstances shall you develop or distribute (whether for free or for compensation) any derivative work based upon the Software that either competes with the Software or is a standalone Non-game.
2.7. All Rights Reserved. You agree and acknowledge that, as between InstantAction and You, InstantAction owns all right, title, and interest to the Software. Except as expressly set forth in Section 2, no right, title, or interest in or to the Software is transferred to you. All rights not expressly granted by InstantAction are hereby reserved.
3. License Conditions.
3.1. Fees. You shall pay the license fees indicated on the Website for the Software. In the event of a chargeback or refund, this EULA and the licenses granted herein shall immediately terminate. Subject to compliance with this EULA, the licenses granted hereunder are royalty-free.
3.2. Permitted Uses. You shall only use the Software for the purposes expressly set forth in Section 2. Without limiting the generality of the foregoing, You may not develop or distribute (a) a Game for operation on a Console without entering into an addendum to this EULA (Studio License holders only); (b) a Non-game for any platform without entering into an addendum to this EULA (Studio License holders only); or (c) any Product that is illegal.
3.3. Restrictions. Except as expressly set forth in Section 2 or as permitted by InstantAction in writing, You shall not: (a) create any derivative works of the Software including but not limited to translations, localizations, starter kits, technology add-ons, or game-making software; (b) reverse engineer, decompile, or otherwise attempt to derive the algorithms of the Software; (c) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Software; or (d) copy the Software, provided that You may make a copy for archival/backup purposes; or (e) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols or labels in the Software.
3.4. Attribution. You shall comply with the following with respect to any Product that you develop using the Software:
3.4.1. Press Releases. You shall credit "InstantAction's Torque [Name, Version]" as the engine middleware used to develop the Product in any public or press announcement.
3.4.2. Logo Screen. You shall display the Torque Logo, consistent with the Logo Guidelines, in the start-up sequence of the Product. For an additional fee, InstantAction may waive this requirement for holders of Studio Licenses in an addendum to this EULA.
3.4.3. Credits. You shall (a) include in the "About" box or in the credits screen of the Product the text "Powered by Torque [Version]"; (b) display the Torque Logo, consistent with the Logo Guidelines, on all external Product packaging materials and the back cover of any printed instruction manual or the end of any electronic instruction manual.
3.4.4. Permissions. InstantAction hereby grants You a permission to use the INSTANTACTION trademark and the Torque Logo for the above purposes, subject to compliance with these terms. You hereby grant InstantAction permission to use Your name in its list of customers for marketing purposes. All goodwill in each party's' trademarks and logos will inure to the sole benefit of that party.
4. Term and Termination. This EULA shall commence on the date You accept it or install the Software or first use the Software (whichever is earlier) and shall continue unless and until terminated in accordance with this Section. InstantAction may terminate this EULA if You breach any of its terms or conditions. Any such termination shall immediately terminate the licenses granted in Section 2. Upon termination, You shall destroy all copies of the Software. The provisions of this EULA which require or contemplate performance after the expiration or termination of this EULA shall remain enforceable.
5. DISCLAIMER OF WARRANTY. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS YOUR RESPONSIBILITY. SHOULD THE SOFTWARE PROVE DEFECTIVE IN ANY RESPECT, YOU AND NOT INSTANTACTION, ASSUME THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS EULA. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
6. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL INSTANTACTION BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED; OR (B) DAMAGES EXCEEDING THE GREATER OF (X) THE TOTAL FEES PAID BY YOU FOR THE SOFTWARE; OR (Y) U.S. $5,000.
7. Representations and Warranties. You represent and warrant that You have the right and authority to enter into and perform the obligations of this EULA.
8. Indemnification. You shall defend, indemnify and hold harmless InstantAction, its parent, subsidiaries, affiliated companies and partners and their respective officers, directors, employees and agents from and against any and all liabilities, damages, costs and fees (including reasonable attorneys' fees) resulting from or relating to: (a) any third party claims or lawsuits related to any Product you create using the Software; (b) any third party claims or lawsuits asserting that You breached any obligation, representation, or warranty hereunder.
9. Miscellaneous.
9.1. Nothing in this EULA shall create, evidence, or imply any agency, partnership, or joint venture between the parties.
9.2. This EULA shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. You may not assign this EULA without InstantAction's prior written consent. No third party beneficiaries are intended; except for the parties hereto, no person or entity shall have the right to assert or enforce any provision of this Agreement.
9.3. This EULA shall be governed by the laws of the State of Nevada, excluding its conflict of law provisions. This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of or relating to this EULA shall be commenced in the state or federal courts located in Clark County, Nevada, and You irrevocably submit to the exclusive jurisdiction of such courts. In any such proceeding, (a) EACH PARTY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY; and (b) the substantially prevailing party shall be entitled to recover its attorneys' fees and costs.
9.4. If You are located outside the United States, then You shall be responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Software, and You represent and warrant that You have complied with any regulations or registration procedures required by applicable law to make this EULA enforceable.
9.5. If any provision in this EULA should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this EULA if no such modification is possible, and other provisions of this EULA shall remain in full force and effect. A waiver by InstantAction of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. This EULA expresses the parties' final agreement as to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This EULA may only be amended in a writing approved by InstantAction.