TORQUE GAME BUILDER "PLATFORMER KIT" FRAMEWORK WITH SOURCE CODE END USER LICENSE AGREEMENT (EULA) The use of the InstantAction, Inc. Torque Game Builder "Platformer Kit" ("Framework") is governed by this license agreement ("Agreement"). These license terms are an agreement between InstantAction, Inc. and you. Please read them. They apply to the software, game engine, source code, and any other assets or works that are included with the product named above, which includes the media on which you received it, if any. These terms also apply to any Updates, Supplements, Internet-based services, and support services for this software and its associated assets, unless other terms accompany those items. If so, those terms apply. The Torque Game Builder "Platformer Kit" Framework with Source Code License is intended to be used for games only, by sole individuals funding their own game development. Any other use is governed by the Torque Game Builder "Platformer Kit" Framework Commercial Product License. This License Agreement is specific to the full source-code version of Torque Game Builder "Platformer Kit" Framework and its binary distributable and associated assets. This License Agreement does not cover the Torque Game Builder "Free" or "Pro" software products, as they are entirely separate Products. You must read and agree to this Agreement terms BEFORE installing the Framework to your hard drive or using the Framework in any way. If you do not agree to the license terms, do not download, install or use the Framework. It is important that you print out a copy of this Agreement on your date of acquisition as a record of the governing terms and conditions. Please make copies for all those in your organization who need to be familiar with the license terms. BY CLICKING THE ACCEPTANCE BUTTON AND/OR INSTALLING OR USING THIS FRAMEWORK, THE INDIVIDUAL ACCESSING THE FRAMEWORK ("LICENSEE") IS CONSENTING TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT INSTALL OR USE THIS FRAMEWORK. IF YOU COMPLY WITH THESE LICENSE TERMS, YOU HAVE THE RIGHTS BELOW: 1. LICENSE AGREEMENT. This sets forth the entire agreement between InstantAction, Inc. ("Licensor") and the End User ("Licensee") relating to the use of the Framework shipped on hard media or downloadable from the Licensor website, www.torquepowered.com, or affiliates. 2. INSTALLATION AND USE RIGHTS. You may install and use one copy of the Framework on your device. 3. LICENSE GRANT. Licensor grants Licensee a single 'seat' to an individual, a limited non-exclusive, non-transferable license to use the Framework for the purposes of making source code and object code for an unlimited number of electronic single or multi-user Games ("Games"). This License Agreement only permits multi-user Games through the use of multiple control mechanisms (up to eight control mechanisms) on a single machine and does not apply to multi-user games in which more than one player is using the Games through a network of any sorts. A control
mechanism is any device that is directly connected to the machine to direct input commands and data to control the game. (a) Licensee may publicly sell, distribute, release, publish, transmit and/or exploit any Games created hereunder. (b) Licensee may have the Games published in any channel by any publisher with no royalties. Licensee does not have to offer the Games to InstantAction, Inc. for publication. (c) The Framework is licensed, not sold. This agreement only gives you some rights to use the Framework. InstantAction, Inc. reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the Framework only as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the Framework that only allow you to use it in certain ways. (d) With the exception of the platforms and their respective successors described in Section 3, Licensee may have the Games published by any publisher with no royalties. Licensee may have the games published on PC, Macintosh, or Linux through any downloadable channel or retail distribution (CD / DVD box sales) including but not limited to self-publishing, Games for Windows, Steam, Direct2Drive, RealArcade, Yahoo! Games, PopCap, Big Fish, MSN Games, Pogo. Licensee does not have to offer the Games to InstantAction, Inc. for publication. 4. RESTRICTIONS. The following restrictions apply to the use of this Framework: (a) This license is granted to individuals only, and cannot be owned by corporate or business entities. (b) If Licensee is using the Framework in affiliation with or directly for a business entity, the Licensee may not use this Framework if the annual revenue of the Company employing, partnering, or affiliated in any way with the Licensee is greater than $250,000 USD annually. If the affiliated Company grows to annual revenue greater than $250,000 USD the Licensee must upgrade to the Torque Game Builder "Platformer Kit" Commercial Product License for each seat of Torque Game Builder "Platformer Kit" currently owned. (c) Licensee may not: (i) create any derivative works of the Framework of any kind, including translations or localizations, other than the Games; (ii) reverse engineer, or otherwise attempt to derive the algorithms for the Framework; (iii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Framework; or (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Framework; (v) work around any technical limitations in the Framework; (vi) make more copies of the Framework than specified in this agreement or allowed by applicable law, despite this limitation; (vii) transfer the Framework or this agreement to any third party; (vii) or use the Framework for commercial software or Framework hosting services. (d) Licensee may not distribute the source code and/or documentation to the Framework in any manner or any form, unless recipient also has a license to the Framework. (e) Licensee may not distribute any or all of the Torque Game Builder "Platformer Kit" editors, including but not limited to the Level Builder, Tile Builder and Particle Builder, in any manner.
(f) Licensee may not create a Game derived from the Framework which is designed or intended to be used as a game making tool or game engine itself. (g) Licensee may not be a government contractor, government entity, including but not limited to corporations, partnership, proprietorships, independent contractors, or companies or individuals of any size performing any form of subcontract work for any of these governmental entities without first obtaining an appropriate Torque Game Builder "Platformer Kit" Commercial License for each developer working on the project. (h) Licensee may not release Games intended for operation on Game Console Systems including the Sony Playstation 2, Sony Playstation 3, Sony PSP, Nintendo GameCube, Nintendo DS, Microsoft Xbox, Microsoft Xbox 360 and Nintendo Wii or any successors or future console platforms without first obtaining a separate Torque Game Builder "Platformer Starter Kit" Console License from InstantAction, Inc.. Contact licensing@torquepowered.com for these applications of the Engine. (i) Licensee may not distribute the documentation to the Framework in any manner, in part or whole. 5. FEES. (a) The Torque Game Builder "Platformer Kit" License fee for the Framework is $49.95 USD per each developer seat using or accessing the Source Code, Framework, Binary Distributable, Software Development Kit, or any associated media or assets included with Framework. There are no additional royalties due to InstantAction, Inc., and Licensee does not have to show the Games or publish the Games with InstantAction, Inc.. (b) Licensee agrees to display a full screen Torque Game Builder logo in the start up sequence of any game created and released with the Framework. (c) Licensee agrees to include in the "About" box or in the credits screen in any game, software, or product created with this Framework: (i) a link to www.torquepowered.com, and (ii) the wording "This game powered by Torque Game Builder." (d) Licensee grants Licensor a full release for Licensor to use Licensee's name in connection with the Games and in any customer reference list or in any press release issued by Licensor regarding the licensing of the Framework. 6. TERMINATION. Without prejudice to any other rights, Licensor may terminate this Agreement, without refund or compensation in any form, if Licensee breaches any of its terms and conditions. Upon termination, Licensee shall destroy all copies of the Framework. Licensee's access to any InstantAction, Inc. private forums, support, updates, and associated programs and access to upgrades may be pulled at InstantAction, Inc. sole discretion that Licensee is not abiding by reasonable rules and etiquette regarding such access. InstantAction, Inc. reserves the right to terminate this license agreement at any time at InstantAction, Inc.' sole discretion. 7. DISCLAIMER OF WARRANTY. THE FRAMEWORK IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OR GUARANTEED
UPDATES 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 FRAMEWORK IS THE RESPONSIBILITY OF LICENSEE. SHOULD THE FRAMEWORK PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT LICENSOR OR ITS SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE FRAMEWORK IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. 8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE FRAMEWORK, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, 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. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. LICENSOR IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS INCORPORATED WITH THE FRAMEWORK AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. 9. LICENSEE'S REPRESENTATIONS, WARRANTIES & INDEMNIFICATION. Licensee shall defend, indemnify and hold harmless Licensor, 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 attorney's fees) resulting from or relating to: (i) any third party claims or lawsuits related to the Games and assignment of intellectual property ownership hereunder; (ii) any third party claims or lawsuits related to any and all obligations Licensee has undertaken to perform hereunder; or (iii) a breach of any representations and warranties Licensee has made hereunder. Such indemnification obligation of Licensee is conditioned upon Licensor immediately notifying Licensee in a writing that sets forth with specificity the claim or action to which such indemnification obligation applies. Licensee will have the right to control the defense of each such claim and any lawsuit or proceeding arising there from. In no event will Licensee settle any such claim or lawsuit or proceeding arising there from without the prior written approval of Licensor. 10. MISCELLANEOUS. InstantAction, Inc. may amend this agreement at any time, at its sole discretion. This Agreement shall be governed by the laws of the State of Oregon, U.S.A., excluding its conflict of law provisions. Unless otherwise agreed in writing, all disputes relating to this Agreement (excepting any dispute relating to intellectual property rights) shall be subject to final and binding arbitration in Lane County, Oregon, with the losing party paying all costs of arbitration. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If any provision in this Agreement 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 Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. A waiver by either party 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. The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination. Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. The relationship between Licensor and Licensee is that of independent contractors and neither Licensee nor its agents shall have any authority to bind Licensor in any way. If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith. 11. LICENSEE OUTSIDE THE U.S. If Licensee is located outside the U.S., then the provisions of this Section shall apply. Licensee is responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Framework, and Licensee represents that it has complied with any regulations or registration procedures required by applicable law to make this license enforceable. The language of this Agreement is English. 12. EXPORT RESTRICTIONS. The Framework is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Framework. These laws include restrictions on destinations, end users and end use. 13. SUPPORT SERVICES. Because this Framework is "as is," we may not provide support services for it. 14. ENTIRE AGREEMENT. This agreement, and the terms for supplements, updates, Internet-based services and support services that you use, are the entire agreement for the Framework and support services. 15. LEGAL EFFECT. This agreement describes certain legal rights. You may have other rights under the laws of your country. You may also have rights with respect to the party from whom you acquired the Framework. This agreement does not change your rights under the laws of your country if the laws of your country do not permit it to do so.