Nimbus (C) Managed Games. 2008
Nimbus (tm) SOFTWARE LICENSE AGREEMENT
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE AND AGREE THAT THIS LICENSE IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, YOU ARE NOT AUTHORIZED TO DOWNLOAD, INSTALL OR USE THIS SOFTWARE AND MUST PROMPTLY RETURN THE SOFTWARE UNUSED TO Managed Games. (www.managedgames.com), OR TO ITS ORIGINAL PLACE DOWNLOAD.
1. Scope. This License governs your use of any and all computer software, any printed or electronic documentation, or other code, whether on disk, in read only memory, or on any other media and any modifications, patches, error corrections or updates to such software or materials to which Managed Games. (“Managed Games”) provides you.
2. Certain Definitions.
“Documentation” means any related printed or online documentation pertaining to the Software with which Managed Games provides to the End User in relation to the Software.
“IP Rights” means all patents, trademarks, copyrights, mask works, moral rights and other statutory or common law protections and contract rights having equivalent effect, including without limitation rights in any and all registrations and applications (including renewals, extensions, continuations, and continuations-in-part, reissues, reexaminations, divisional and all foreign applications thereof), rights to income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto, and rights in and to all causes of action, either in law or in equity for past, present, or future infringement based on any of the foregoing rights, and all rights corresponding to the foregoing throughout the world.
“Software” means (1) the binary (object) code version of the software product known as “Nimbus” and any Tools, Controls, exposed methods, source code, demos and intermediate files provided to you by Managed Games with this License and (2) any modifications, patches, updates and error corrections to the Software with which Managed Games may provide you, from time to time at its discretion.
3. License, Not Sale, of Software. The Software and Documentation is licensed under its IP Rights, not sold, to you by Managed Games. You acknowledge and agree that Managed Games retain title to the Software and Documentation. The Software installed on your computer and any copies which this License authorizes you to make are subject to this License. From time to time, Managed Games may provide modifications, patches, error corrections or updates to the Software which may be licensed to you by Managed Games with additional or different terms. Managed Games hereby grants to you a non-exclusive, revocable, limited license to use the Software solely for the purposes and uses described in this License. If you are not a natural person, you may only allow one (1) designated and dedicated employee or agent (natural person) within your organization to use the Software under this License at any one (1) time. Your rights under this License will terminate automatically without notice from Managed Games if you fail to comply with any term(s) of this License. Your continued use of the Software after such termination shall be a violation of Managed Games’s IP Rights in and to the Software.
4. Permitted Uses. This License allows you to use the Software on one (1) compatible computer. You may use or install the Software on such computer through a storage device or over a network server; provided, however, your use and method of installation of the Software shall be limited to use of the Software on such one (1) computer by only one (1) user. You may not share or concurrently use the Software on more than one (1) computer or allow use of the Software by more than one user, without acquiring additional licenses for such usages. You may make one (1) copy of the Documentation and one (1) copy of the Software in machine-readable form for backup purposes only. The backup copies must include all copyright and other proprietary information and notices contained on the original. The Software is licensed and distributed to you by Managed Games solely for building and developing software applications. Notwithstanding anything herein to the contrary, you are not authorized to use the Software in any way to, conceive, develop, create, design, convert, make or reduce to practice or transform any product or any third party product into a competing product of or similar product to the Software. You may not otherwise alter or modify the Software or create a new installer for the Software. You may not distribute or redistribute the Software to any third party. Managed Games or any of it's affiliates may, but without any obligations to do so, provide training, support or other services (directly or indirectly) to you regarding the Software.
5. Not For Resale. The Software is labeled as “Not for Resale” or “NFR”, you may not resell, distribute, or otherwise transfer for value or benefit in any manner, the Software, the Redistributable Output or any derivative work using the Software. This also applies to any and all accompanying intermediate files, source code, exposed methods and compiled executables.
6. Proprietary Rights; Other Restrictions; No Modifications. You acknowledge and agree that the Software is copyrighted and all IP rights related thereto is owned by Managed Games or its applicable licensors. You may not remove, deface or obscure any of Managed Games’s or its licensors’ proprietary rights notices on or in the Software or other output generated (including but not limited to, printed form or displayed as part of a window) there from. Except as expressly stated herein, this License does not grant you any IP Rights to the Software or any Redistributable Output and all rights not expressly granted herein are reserved by Managed Games or its applicable licensor(s). Except as permitted by applicable law and this License, you may not decompile, reverse engineer, disassemble, trace, modify, rent, lease, loan, distribute, assign, transfer the Software, or sale rent and profit from derivative works from the Software. You acknowledge and agree that any such unauthorized use, transfer, sublicensing or distribution may cause irreparable injury to Managed Games, and under such circumstances, Managed Games shall be entitled to equitable relief, without posting bond or other security, including but not limited to, preliminary and permanent injunctive relief.
7. Marks. Customer agrees not to remove, obliterate, or hide any copyright, trademark, confidentiality, patent or other proprietary notice, mark or legend appearing on the Software, Documentation or on output generated by the Software. Customer agrees to include the same on each copy of the Software and Documentation. Nothing in this Agreement shall be construed as conferring any license or right with respect to any trademark or the corporate name of Managed Games, or of any of Managed Games’s suppliers.
8. Disclaimer of warranty on Software. For purposes of this Section 8 and 9 “Software Products” means both the Software and Redistributable Output if any.
(a) YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ANY USE OF THE SOFTWARE PRODUCTS ARE AT YOUR SOLE RISK. UNLESS Managed Games OTHERWISE PROVIDES AN EXPRESS WARRANTY WITH RESPECT TO THE SOFTWARE PRODUCTS AND DOCUMENTATION, EACH IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND AND Managed Games AND MANAGED GAMES’S LICENSOR(S) (FOR THE PURPOSES OF SECTIONS 8 AND 9 Managed Games AND MANAGED GAMES’S LICENSOR(S) SHALL BE COLLECTIVELY REFERRED TO AS “Managed Games”) EXPRESSLY DISCLAIM ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, (WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT OF THIRD PARTY RIGHTS. Managed Games MAKES NO WARRANTY AS TO THE SOFTWARE PRODUCT’S USE OR PERFORMANCE AND Managed Games DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE PRODUCTS. THE PROVISIONS OF SECTIONS 9 AND 10 SHALL SURVIVE THE TERMINATION OF THIS LICENSE, HOWSOEVER CAUSED, BUT THIS SHALL NOT IMPLY OR CREATE ANY CONTINUED RIGHT TO USE THE SOFTWARE PRODUCTS OR DOCUMENTATION AFTER TERMINATION OF THIS LICENSE.
(b) IN ADDITION, MANAGED GAMES DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE PRODUCTS WILL BE CORRECTED. MANAGED GAMES DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE PRODUCTS OR DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Managed Games OR A Managed Games AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. FURTHER, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THE TERMS OF THIS DISCLAIMER DO NOT AFFECT OR PREJUDICE YOUR STATUTORY RIGHTS ACQUIRING SOFTWARE OTHERWISE THAN IN THE COURSE OF A BUSINESS, NEITHER DO THEY LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY MANAGED GAMES’S NEGLIGENCE.
(c) YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE PRODUCTS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE ON ANY APPLICATIONS RELATED TO ANY MEDICAL DEVICE, LIFE SUPPORT SYSTEM, CONNECTIONS TO IMPLANTED MEDICAL DEVICES, COMMERCIAL TRANSPORTATION, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, NUCLEAR FACILITIES OR SYSTEMS, WEAPON SYSTEMS, OR OF ANY EQUIPMENT FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, CATASTROPHIC PROPERTY DAMAGE OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGES (“CRITICAL APPLICATIONS”). ACCORDINGLY, Managed Games DISCLAIMS ALL LIABILITIES AND WARRANTIES RELATED TO ALL USES OF THE SOFTWARE PRODUCTS IN CRITICAL APPLICATIONS. IF YOU OR YOUR CUSTOMER USES THE SOFTWARE PRODUCTS IN A CRITICAL APPLICATION, THEN YOU AND YOUR CUSTOMER ASSUMES FULL RESPONSIBILITY FOR SUCH USE. FURTHER, MANAGED GAMES RESERVES THE RIGHT TO REFUSE TO SERVICE ANY SOFTWARE PRODUCTS USED IN A CRITICAL APPLICATION, AND DISCLAIMS ALL LIABILITY ARISING OUT OF MANAGED GAMES’S SERVICE OR REFUSAL TO SERVICE SUCH SOFTWARE PRODUCTS.
9. Limitation of liability. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL Managed Games BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS LICENSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL MANAGED GAMES’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT PAID FOR THIS LICENSE TO THE SOFTWARE, IF ANY.
10. Rigorous Enforcement Of Intellectual Property Rights. In addition to any other rights or remedies Managed Games may have, if this Software has been licensed by you with any intent to reverse engineer, decompile, create derivative works, trace or transfer any of Managed Games’ IP Rights in and to any exposed methods or source code as provided to you by Managed Games as part of the Software, no licensed right of use shall exist, and any software or products created, conceived, developed or designed by you as a result shall be judged illegal by definition of all applicable law. Any sale or resale of IP Rights or created derivatives or products as a result of the foregoing will be prosecuted to the fullest extent of all local, state federal and international law.
11. Government End Users. If the Software is supplied to the United States government, the Software and any documentation are provided with restricted rights. The Software is classified as “commercial computer software” and the documentation is classified as “commercial computer software documentation” or “commercial items,” pursuant to DFAR Section 227.7202 or FAR Section 12.212, as applicable. Any use, modification, reproduction, display or disclosure of the Software or any documentation by the United States Government shall be governed by the terms of this License.
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 Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if either 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 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 License.
13. Miscellaneous. This License will be governed by and construed in accordance with the laws of the State of Florida, U.S.A. without reference to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. If a court of competent jurisdiction finds any provision of this License invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this License will remain in full force. Failure of a party to enforce any provision of this License shall not constitute and shall not be construed as a waiver of such provision or of the right to enforce such provision. This License sets forth the entire License between the parties with respect to your use of the Software and supersedes all prior or contemporaneous representations or understandings regarding such subject matter. No modification or amendment of this License will be binding unless in writing and signed by an authorized representative of Managed Games.