1. Client Responsibilities and Representations
During the term of this Agreement, Client represents and warrants that (i) Client changes to software, hardware, or internet access that render the Game inaccessible or inoperable for Client are the full responsibility of Client and Client agrees that DWC has no obligation to continue to provide the Game or any associated support in this event; (ii) Client shall use the Game for his or her own account and only use the Game in accordance with the terms and conditions set forth in this Agreement; and (iii) Client shall be responsible for any violations by any third parties using the Game by or through Client’s account. By using the Game, Client agrees that DWC is not responsible for the acts or omissions of other users of the Game.
Client further represents and warrants that its activities regarding its use of the Game shall not: (i) be false, inaccurate or misleading; (ii) be fraudulent; (iii) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (iv) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising); (v) be defamatory, trade libelous, or invasive of another’s privacy; (vi) contain child pornography or be harmful to minors in any way; (vii) be hateful, vulgar, obscene, racially or ethically offensive; (viii) knowingly or negligently contain any viruses, Trojan horses, worms, time bombs, cancel bots, Easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information (and Client shall use its best efforts to detect, deter and remove such items from any of its transmissions or data); (ix) upload, post, email, or transmit any unsolicited or unauthorized promotional materials, junk mail, spam, chain letters or other similar types of solicitations; or (x) create liability for DWC or cause DWC to lose (in whole or in part) the services of DWC’s ISPs or other suppliers.
2. Client Restrictions
Except as specifically permitted in this Agreement, Client shall not, and shall not permit or assist others to: (i) use the Game for anything other than as specifically authorized in Article 1; (ii) copy any ideas, graphics, features, or functions of the Game or build or replicate any game using such ideas, graphics, features, or functions; (iii) disassemble, decompile, decipher, modify, or attempt to reverse engineer the Game or apply any procedure or process to the Game in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Game, any trade secret information, process or other information contained in the Game; (iv) modify or customize the Game in any way or make derivative works based on the Game; (v) create internet links to the Game or frame or mirror any of the screens, information, data, or other components of the Game in any manner; (vi) transmit, re-transmit or store materials on or through the Game that are harmful to the Game, or which violate any applicable laws or regulations, including without limitation laws relating to infringement of intellectual property and proprietary rights of others; (vii) export, directly or indirectly, the Game or any DWC information or materials without obtaining all required licenses and approvals from DWC and any the appropriate government agencies. Client shall be solely responsible for compliance with all applicable laws, including the export and import laws and regulations of other countries. Client does not assume any liability for information or material that is generally made available to the public by DWC via the internet and which is not protected by means of access control specifically administered by Client.
In the event Client fails to make any payment when due, DWC reserves the right, at its discretion, to suspend or terminate this Agreement, suspend provision of the Game by DWC and remove Client’s access to the Game or Client Data through the Game. In addition, DWC retains the right to pursue any other remedies provided by this Agreement, by law or otherwise. Any amounts due under delinquent invoices are subject to interest at a rate of 1.5% per month or the maximum amount permitted by law, whichever is less. In addition, Client shall pay to DWC all expenses, including without limitation reasonable attorneys’ fees, incurred by DWC in the collection of amounts due.
Prior to reconnection by DWC to the Game, Client shall pay the total amount of the delinquent invoice(s). In addition, in the event Client is suspended and thereafter desires that DWC reconnect Client to the Game, DWC may impose a reactivation fee equal to the lower of 1) $25 or 2) the most recently billed amount (on a monthly basis) for the Game. Client specifically agrees that DWC has no obligation to retain Client Data if Client is more than thirty (30) days delinquent and that such Customer Data may be irretrievably lost.
4. Data Storage
Subject to the provisions of this section, no limit will be applied to the amount of data that Client may enter into the Game. DWC will provide Client 10 MB of disk storage space per project entered into the Game for attached files whether they are documents, pictures, or other media supported by the Game. Client will have the option to purchase additional disk storage space for projects needing in excess of 10 MB. DWC will use reasonable efforts to notify Client when the amount of disk storage space used by Client is about 90% of the disk storage space provided at no charge. Failure of DWC to notify Client shall not affect Client’s responsibility to pay the fee associated with the use of additional disk storage space. Under no circumstances will a refund be due to Client from DWC if Client does not use all of the disk storage space identified in the Agreement.
5. Term and Termination
The term of this Agreement shall commence on DWC’s execution of the Software License Agreement with Client and shall continue in full force and effect for a period indicated therein unless otherwise terminated pursuant to the terms of this Agreement. Thereafter, it may be extended upon mutual agreement by the parties.
DWC, in its sole discretion, may terminate this Agreement if Client breaches its payment obligations hereunder or otherwise fails to comply with this Agreement. Any breach of Client’s payment obligations; any unauthorized use of the Game; any failure to comply with Client Responsibilities and Representations identified in Article 1 or Client Restrictions identified in Article 2; and any violation by Client of DWC’s Intellectual Property Rights shall be deemed a material breach of this Agreement and is cause for immediate termination of the Agreement by DWC. Client agrees and acknowledges that DWC has no obligation to retain Client Data, and that DWC may delete Client Data, if Client has materially breached this Agreement. In no event shall DWC have any obligation to retain Client Data more than thirty (30) days following the termination date.
Client shall be responsible for providing DWC with Client’s address by email at ___________. DWC shall be permitted to provide a notice of a change to its contact information to Client through email. Any notice under this Agreement shall be deemed given upon confirmed receipt if sent by email, facsimile, courier, a nationally recognized overnight delivery service, certified mail, or similar reliable means of delivery. All notices required under this Agreement to be sent to DWC should be sent to _______________________ or the following email address: _______________, and in either case addressed to Joe Jaeger.
7. Privacy and Security Policies
8. Third Party Promotions
From time to time, DWC may provide links through the Game to websites and advertisements of third party organizations. Client may elect to enter into correspondence with, purchase from or participate in promotions with such third party organizations. All correspondence or other business dealings between Client and a third party organization, including payment, delivery, conditions, warranties, and representations are solely between Client and the third party organization. DWC does not endorse any sites that are linked through the Game but is providing the sites to Client as a matter of convenience. Client agrees that DWC shall not be responsible or liable for any loss or damage of any sort incurred as the result of Client’s dealing with any third party organization identified through the Game.
9. Ownership of Intellectual Property Rights
The Game and all other materials associated therewith, including all associated Intellectual Property Rights, are and shall remain the sole and exclusive property of DWC. Client agrees that this Agreement is not, and shall not be construed as, a sale of any rights of ownership in the Game or any associated Intellectual Property Rights from DWC to Client. If ownership of any portion of the Game does not automatically vest in DWC as a result of this Agreement or by operation of law, then Client hereby presently assigns, agrees to assign and shall cause its respective employees, agents, representatives and contractors to assign to DWC, without further consideration, the ownership of the Intellectual Property Rights in and to the Game, including all associated Intellectual Property Rights, as necessary to give effect to the ownership terms regarding the Game specified in this Agreement or in separate Work Orders. Client agrees to perform, upon reasonable request, such further acts as may be necessary or desirable to evidence or transfer ownership of, and to perfect and defend DWC’s title to the Game in order to give effect to such ownership terms. All suggestions, solutions, improvements, corrections and other contributions provided by Client regarding the Game become the property of DWC, and Client hereby assigns any such rights to DWC. In no event shall the Game or any related Intellectual Property Rights be considered a work for hire as a result of their delivery by DWC, in whole or in part, including any related Intellectual Property Rights.
10. Ownership and Use of Data
During the term of this Agreement, Client will enter, or cause to have entered, Client Data into the Game. Client shall remain the sole and exclusive owner of Client Data as between the parties, regardless of where such data is maintained. Client shall have the sole responsibility for the quality, accuracy, appropriateness, legality, integrity, reliability, and copyright protection of all Client Data. DWC shall not be responsible for any destruction, loss, deletion, or damage to Client Data.
Client grants DWC a non-exclusive, worldwide license and right to access, use, store, transmit, display, promote, analyze, discuss, advertise and otherwise utilize that portion of the Client Data Client has elected to make public. DWC agrees to use reasonable efforts to display to third parties only that portion of the Client Data to third parties through the Game that Client elects to be made publicly available through the Game.
11. Client References
Client grants DWC the right to reference Client in DWC’s list of clients and may place Client’s name and logo (if any) in DWC’s collateral marketing materials, advertising, business plans, websites, and press releases. Client hereby grants DWC the right to use Client’s trademarks (name and logo) for such limited uses only. Project-specific Client Data held privately by Client in the Game may not be referenced by DWC without the express, written consent of Client. Except for the limited uses provided in this Article 11, DWC agrees that it may not use Client’s trademarks (name and logo) without Client’s prior consent. Information regarding DWC’s actual use of Client trademarks will be provided to Client as reasonably requested by Client.
DWC reserves the right to change the terms and conditions of this Agreement or its policies relating to the Game at any time. Such changes shall be effective immediately or such other time as DWC elects. Client agrees that notice of any material changes will be given via email to the Client along with an updated version of this Agreement being posted through the Game. DWC has no obligation to provide notice of any non-material changes to this Agreement. In the event of any materially adverse changes, Client will have thirty (30) days from the issuance of such notice to notify DWC whether Client elects to negotiate mutually agreeable terms or immediately terminate this Agreement. If Client does not provide such written notice to DWC, Client shall be deemed to have accepted such changes in their entirety.
This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Client may not assign, transfer, delegate, or subcontract, in whole or in part, its rights or responsibilities under this Agreement without DWC’s prior written consent. Any attempt to do so in contravention of this Article 13 shall be void and of no force and effect. DWC may assign, transfer, delegate or subcontract this Agreement to a subsidiary or affiliate or to a third party as a result of a merger, consolidation, or the acquisition of all or substantially all of its stock or assets without the prior written consent of Client.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES OR RECEIVES ANY WARRANTIES, REPRESENTATIONS, AGREEMENTS OR GUARANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER FOR ITS PERFORMANCE INCLUDING ANY LIABILITY FOR NEGLIGENCE. DWC DOES NOT MAKE ANY REPRESENTATION REGARDING THE RELIABILITY, ACCURACY, SECURITY, TIMELINESS, COMPLETENESS, OR QUALITY OF THE GAME AND DOES NOT REPRESENT THAT THE GAME WILL BE ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE GAME IS PROVIDED TO CLIENT ON AN “AS IS” BASIS AND DWC DOES NOT MAKE ANY REPRESENTATION THAT THE GAME WILL MEET CLIENT’S EXPECTATIONS OR OPERATE IN COMBINATION WITH ANY PARTICULAR SOFTWARE OR HARDWARE. DWC SPECIFICALLY HEREBY DISCLAIMS ALL WARRANTIES RESPECTING THE GAME, INCLUDING, WITHOUT LIMITATION (I) ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (II) ANY WARRANTY REGARDING NON-INFRINGEMENT OF THIRD PARTY RIGHTS; (III) ANY WARRANTY REGARDING THE FUNCTIONAL CHARACTERISTICS OR PERFORMANCE OF THE GAME; (IV) ANY WARRANTY REGARDING THE BENEFITS TO BE OBTAINED BY THE GAME; AND (V) ANY WARRANTY THAT THE GAME WILL BE FREE FROM ERRORS, BUGS, INTERRUPTIONS OR OTHER ACCESS LIMITATIONS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
15. Limitation of Liability
IN NO EVENT (OTHER THAN CLIENT’S IMPROPER USE OF THE GAME, MISAPPROPRIATION OF DWC INTELLECTUAL PROPERTY OR VIOLATION OF AN OBLIGATION OF CONFIDENTIALITY) SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF USE OR DATA, DISCLOSURE OF CLIENT DATA OR INTERRUPTION OF BUSINESS, WHETHER SUCH ALLEGED DAMAGES ARE LABELED IN TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR INDEMNITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ANY CLAIMS OR CAUSES OF ACTION RELATED TO CLIENT’S ILLEGAL USE OF THE GAME, THE ENTIRE LIABILITY OF THE PARTIES UNDER THIS AGREEMENT FOR ANY DAMAGES FROM ANY CAUSE WHATSOEVER, REGARDLESS OF FORM OR ACTION, WHETHER IN CONTRACT, NEGLIGENCE, OR OTHERWISE, SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE AMOUNT ACTUALLY PAID FOR THE GAME DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM AND (IN THE CASE OF DELINQUENCIES BY CLIENT) DUE FOR THE GAME; PROVIDED THAT AN INDEMNIFYING PARTY REGARDING INFRINGEMENT CLAIMS UNDER SECTION 17(ii) BELOW SHALL BE RESPONSIBLE FOR PAYMENT OF ALL DAMAGES (AS DEFINED IN SUCH SECTION) REQUIRED TO BE PAID UNDER SUCH INDEMNIFICATION.
16. Internet Usage
Client is responsible for providing and maintaining its own internet access and all necessary telecommunications equipment, software and other materials necessary for accessing the Game through the internet and shall ensure that its IT infrastructure and environment conform to the specifications required to access the Game. The use of the Game by Client may be subject to limitations, delays and other problems related to the use of the internet and electronic communications. DWC is not responsible for the payment of any third party fees, the purchase of any equipment or for any delays, delivery failures, or other damage or failure which may result from problems related to the use of the internet and other electronic communications.
Subject to Article 21 above, Client agrees to indemnify and hold harmless DWC and its subsidiaries, affiliates, officers, managers, employees, attorneys, and agents from and against any and all actual and direct costs, claims, damages, liability, losses and expenses (“Damages”), arising out of or in connection with a third party claim arising specifically from (i) a violation of Client’s representations contained in this Agreement, (ii) a violation by Client of the intellectual property rights of such third party, or (iii) a breach by Client of this Agreement. In order to take advantage of the indemnification provided by this section, DWC must give written notice to Client within a reasonable time after becoming aware of the third party claim, provide all available information and assistance to Client, and allow Client to control the defense and settlement of the claim. DWC shall have no indemnification obligation under this section and Client shall indemnify DWC from any claims of infringement arising from the combination of the Game with any of Client’s or other third party’s systems, software, hardware or processes.
18. Force Majeure
Neither party will be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of material or supplies or any other cause reasonably beyond the control of such party (“Force Majeure”), provided such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its diligent, good faith efforts to cure the breach. In the event of such Force Majeure, the time for performance or cure will be extended for a period equal to the duration of the Force Majeure.
19. General Provisions
This Agreement shall be governed by the laws of the State of Texas without reference to the conflicts of law principles thereof. Client represents and warrants that it has the authority to bind Client to the terms and conditions contained in this Agreement, which will govern the use of the Game Each party agrees that, unless otherwise required in order to comply with deadlines under the law, it will not file action or institute legal proceedings with respect to any dispute controversy or claim arising out of, relating to, or in connection with, this Agreement, until (i) it has given the other party written notice of its grievance and the other party has failed to provide a prompt and effective remedy, and (ii) it has requested that both parties meet and discuss the matter in order to consider informal and amicable means of resolution and either such meeting failed to occur within thirty (30) days after such request or the meeting did not produce a mutually satisfactory resolution of the matter. DWC and Client agree that any legal action relating to this Agreement shall be brought only in the Texas District Courts for Travis County or in the federal courts located in Austin, Texas and expressly consent and submit to the personal jurisdiction of such courts and hereby waive, to the maximum extent permitted by law, any objection, including any objection based on forum non coveniens, to the bringing of any proceeding in such courts. A waiver by DWC of any provision of this Agreement on any occasion shall not constitute a waiver of such provision on any succeeding occasion or of any other provision of this Agreement. If any provisions of this Agreement are held by a court of competent jurisdiction to be invalid or unenforceable, such provisions are, to the extent necessary, deemed omitted from this Agreement without impacting the validity of the remainder of this Agreement and such provision shall be amended, to the maximum extent allowable by law, to effect the original intent of the parties. Unless stated otherwise, all remedies available under this Agreement (other than the limitations on liability set forth in Article 15, which shall control the full extent of liability in any case) shall be cumulative and in addition to and not in lieu of any other remedies available at law, in equity or otherwise. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous negotiations, discussions, or agreements.
Unless the context clearly requires otherwise, or unless otherwise defined in the Agreement for purposes of a specific reference, capitalized terms appearing in the Agreement shall have the meaning given them in the Software License Agreement with Client or the following meaning:
“Client Data” shall mean the information, instructions and data, in whatever form, that is entered into the Game by Client, representatives of Client, or others on behalf of Client.
“Code” shall mean computer-programming code. “Code” may consist of “Object Code” or “Source Code” and, if not otherwise specified, Code shall include both Object Code and Source Code. “Object Code” shall mean the machine-readable form of a program. “Source Code” shall mean the human readable form of the Code and related system documentation, including all comments and any procedural code such as job control language.
“Intellectual Property Rights” shall mean collectively, any and all now known or hereafter known tangible or intangible rights with respect to inventions, discoveries, or improvements, including patents, patent applications and certificates of invention; trade secrets, know-how, or similar rights; semiconductor chip protection; the protection of works of authorship or expression, including copyrights and future copyright; and trademark, service marks, logos, and trade dress rights whether arising under common law or registered under state or federal law; and all other similar rights under any laws or international conventions throughout the world, including the right to apply for registrations, certificates, or renewals with respect thereto, the rights to prosecute, enforce and obtain damages.