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 applicable local, state, provincial, federal or international 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, 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,
translate, or 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, trade secrets, algorithms,
process or the source code, architectural framework, source listings, or data records, within or
associated with for the Game; (iv) use, reproduce, modify, adapt, customize, create an derivative
works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make,
have made, assign, pledge, transfer or otherwise grant rights to the Game, except as expressly
permitted under this Agreement; (v) provide use of the Game on a service bureau, rental or
managed services basis, provide or permit other individuals or entities to 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 on any other server, or wireless or Internet-based device; (vi) transmit, retransmit
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; (xiii) interfere
with or disrupt the integrity or performance of the Game, including by disrupting the ability of
any other person to use or enjoy the Game; (xi) access the Game for the purpose of developing,
marketing, selling or distributing any product or service that competes with or includes features
substantially similar to the Game; (xvi) remove or obscure any proprietary notice that appears
within the Game; (xvii) impersonate any person or entity, including DWC personnel, or falsely
state or otherwise misrepresent your affiliation with DWC, or any other entity or person; or
(xviii) take any action that imposes an unreasonable or disproportionately heavy load on the
Services or its infrastructure. 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.
3. Non-Payment
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), any interest thereon and, if applicable, collection amounts. 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) $35 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. Confidentiality
Definition. “Confidential Information” means information that either: (i) is designated as
confidential by the Discloser at the time of disclosure; or (ii) would reasonably be understood by
the Recipient, given the nature of the information or the circumstances surrounding its
disclosure, to be confidential, including without limitation, Discloser’s product designs, product
plans, data, software and technology, financial information, marketing plans, business
opportunities, proposed terms, pricing information, discounts, inventions and know-how
disclosed by Discloser to Recipient, whether in writing, verbally or otherwise, and whether prior
to, on or after the Effective Date (as such term is defined in Section 6 below). Confidential
Information of DWC also includes the Game and the existence and terms and conditions of this
Agreement.
Use of Confidential Information. A party which receives Confidential Information under this
Agreement (“Recipient”) may not use the Confidential Information from the party which
discloses Confidential Information under this Agreement (“Discloser”) in any way, for its own
benefit or the benefit of any third party, except as expressly permitted by, or as required to
implement, this Agreement.
Disclosure of Confidential Information. Recipient will: (i) hold Confidential Information in strict
confidence and take reasonable precautions to protect and secure such Confidential Information
(such precautions to include, at a minimum, all precautions Recipient employs with respect to its
own Confidential Information); and (ii) not divulge any Confidential Information to any third
party (other than to employees or contractors as set forth below). Any employee or contractor
given access to any Confidential Information must have a legitimate “need to know” such
Confidential Information for use specified in software license agreement attached hereto as
Exhibit A (the “Software License Agreement”) and Recipient will remain responsible and liable
for each such person’s compliance with this Agreement.
implement, this Agreement.
Confidentiality Period. Irrespective of any termination of this Agreement, Recipient’s obligations
with respect to Confidential Information under this Agreement expire 5 years from the date of
receipt of the Confidential Information (except with respect to any trade secrets where such
obligations will be perpetual).
Exclusions. This Agreement imposes no obligations with respect to information which: (i) was in
Recipient’s possession before receipt from Discloser; (ii) is or becomes a matter of public
knowledge through no fault of Recipient; (iii) was rightfully disclosed to Recipient by a third
party, who has no restriction on disclosure; or (d) is developed by Recipient without use of the
Confidential Information as can be shown by documentary evidence. Recipient may make
disclosures to the extent required by law or court order, provided Recipient makes reasonable
efforts to provide Discloser with notice of such disclosure as promptly as possible and uses
diligent efforts to limit such disclosure and obtain confidential treatment or a protective order,
and has allowed Discloser to participate in the proceeding.
Return or Destruction of Confidential Information. Upon termination of this Agreement or
written request by Discloser, the Recipient will: (i) cease using the Confidential Information; and
(ii) return or destroy the Confidential Information and all copies, notes or extracts thereof to
Discloser within seven (7) business days of such request or termination.
6. Term and Termination
The term of this Agreement shall commence on DWC’s execution of the Software License
Agreement (the “Effective Date”) 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 and the Software License 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 and the Software License Agreement by DWC. Client agrees and
acknowledges that DWC has no obligation to retain Client Data, and that DWC may delete
Client Data upon termination of this Agreement. In no event shall DWC have any obligation to
retain Client Data more than thirty (30) days following the termination date.
Immediately upon termination, (i) all Software License Agreement and licenses granted under
this Agreement will immediately terminate and Client will immediately cease all use of the
Game; (ii) Client will destroy the Game in its possession, or upon request by DWC, return to
DWC the confidential information that is in its possession or control; and (iii) any and all of
Client’s payment obligations under each Software License will immediately become due. Upon
DWC’s request, Client will certify in writing that Client has returned or destroyed all copies of
DWC’s confidential Information. Sections 1- 3 and 5 - 24, will survive termination of this
Agreement. Neither party shall be under any obligation to enter into an agreement after
termination or expiration of this Agreement.
DWC reserves the right at any time to modify, suspend, or discontinue the Game (or any portion
thereof) with or without notice, and DWC shall not be liable to Client or any third party for any
such modification, suspension or discontinuance.
7. Notice
Client shall be responsible for providing DWC with Client’s address by email at
help@statecraftsims.com. 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 13809 Research Blvd Suite 500
PMB 92888 Austin, TX 78750 or the following email address: help@statecraftsims.com , and
in either case addressed to Joe Jaeger.
8. Privacy and Security Policies
DWC has taken certain precautions to protect the security and privacy of Client Data and any
individual data that is entered into the Game. While these precautions are designed to protect
Client Data and any individual data, DWC does not represent that the Game is totally secure or
private. DWC reserves the right to access, compile and summarize Client Data in order to
increase the level of service provided to Client by DWC. DWC’s privacy policy located at
https://www.statecraftsims.com/privacy
may be changed by DWC from time to time in its sole
and reasonable discretion.
9. Third Party Promotions
From time to time, DWC may provide links through the Game to third party products, services,
content, offerings, websites and advertisements (“Third Party Services”). 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 Third Party
Services that are linked through the Game but is providing the Third Party Services 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. Client acknowledges that different terms of use and privacy
policies may apply to your use of such Third Party Services and that terms and policies are solely
between you and the advertiser or other third party.
10. 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.
11. Feedback
Client agrees to provide DWC with Feedback as hereinafter defined. DWC, in its sole discretion,
may or may not respond to Client’s Feedback or promise to address all of Client’s Feedback in
the development of future features or functionalities of the Game or any related or subsequent
versions of such Game. All suggestions, solutions, improvements, corrections and other
contributions provided by Client regarding the Game (“Feedback”) become the property of
DWC. Client hereby assigns, at no charge, all rights, title and interests in Feedback to DWC,
and agrees that DWC is free to use, reproduce, modify, adapt, create derivative works from,
publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or
otherwise grant rights in the Feedback in any form and any medium (whether now known or later
developed), without credit or compensation to Client. Client warrants that the Feedback does not
infringe any copyright or trade secret of any third party, and that Client has no knowledge of any
patent of any third party that may be infringed by the Feedback (including any implementation
thereof recommended by Client). Client further warrants that its Feedback is not subject to any
license terms that would purport to require DWC to comply with any additional obligations with
respect to the Game incorporating Client’s Feedback.
12. Client 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.
DWC shall process and use any personal Client Data in accordance with the DWC Privacy
Policy located at https://www.statecraftsims.com/privacy. Client grants DWC a perpetual,
irrevocable, non-exclusive, royalty-free, paid-up, worldwide, worldwide, sublicensable license
and right to access, use, host, store, transmit, display, promote, analyze, discuss, advertise and
otherwise utilize all or any portion of the Client Data Client solely for the purpose of providing
and improving the Game, including rights to extract, compile, aggregate, synthesize, use, and
otherwise analyze all or any portion of the Client Data. DWC may use, publish, share, distribute,
or disclose such Client Data on an aggregate basis or in a de-identified manner that does not
allow personal data about Client to be separated from the aggregate data and identified as
originating from Client. 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.
Client represents, warrants and agrees that Client has all rights to provide the Client Data and
other materials that Client provides or makes available to DWC. Client acknowledges and agrees
that it is solely responsible for all Client Data and for its conduct while using the Game. Client
acknowledges and agrees that: (i) it will evaluate and bear all risks associated with its use and
distribution of all Client Data; (ii) it is responsible for protecting and backing up the Client Data;
(iii) it is responsible for protecting the confidentiality of all Client Data in its possession and
control; and (iv) under no circumstances will DWC be liable in any way for the content of any
Client Data, including, but not limited to, any errors or omissions in any Client Data, or any loss
or damages or any kind incurred as a result of Client’s use, deletion, modification, or correction
of any Client Data. Client has full discretion and control on how to store, protect, remove or
delete any Client Data on or through the Game and DWC shall have no liability for any damages
caused by such deletion or removal of or failure to store or protect Client Data.
13. 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 13, 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.
14. Warranty
Mutual Representations and Warranties. Each party represents and warrants that it has full right,
power, and authority to enter into this Agreement and to perform its obligations and duties under
this Agreement, and that the performance of such obligations and duties does not conflict with or
result in a breach of any other agreement of such party or any judgment, order, or decree by
which such party is bound.
Beta Disclaimer. ALL PORTIONS OF THE GAME LABELED ALPHA, BETA, PRERELEASE,
TRIAL, PREVIEW OR SIMILARLY (“Beta Services”) ARE PROVIDED “AS IS”,
“AS AVAILABLE”, WITH ALL FAULTS, AND CLIENT’S USE OF SUCH BETA SERVICES
IS AT ITS SOLE RISK. DWC has no obligations in connection with or in the course of
providing the Beta Services. Any expectations and estimates regarding Beta Services are based
on factors currently known and actual events or results could differ materially. DWC does not
assume any obligation to update any Beta Services. In addition, any information about DWC’s
roadmap or outlines DWC’s general product direction and is subject to change at any time
without notice. It is for informational purposes only and shall not be incorporated into this
Agreement or any contract or other commitment. DWC undertakes no obligation either to
develop the features or functionality provided in the Beta Services, or to include any such feature
or functionality in a future release of the Game. Client expressly acknowledges that the Beta
Services have not been fully tested, and may contain defects or deficiencies which may not be
corrected by DWC. The Beta Services may undergo significant changes prior to release of the
corresponding generally available final version.
15. Modification
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 may be given via email to the
Client along with an updated version of this Agreement being posted through the Game or on
DWC’s website. 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.
16. Assignment
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 15 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.
17. Disclaimer
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.
18. Limitation of Liability
IN NO EVENT (OTHER THAN CLIENT’S IMPROPER USE OF THE GAME,
MISAPPROPRIATION OF DWC INTELLECTUAL PROPERTY, CLIENT’S
INDEMNIFICATION OBLIGATIONS OR VIOLATION OF AN OBLIGATION OF
CONFIDENTIALITY) SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY 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 CLIENT’S IMPROPER USE OF THE GAME,
MISAPPROPRIATION OF DWC INTELLECTUAL PROPERTY, CLIENT’S
INDEMNIFICATION OBLIGATIONS OR VIOLATION OF AN OBLIGATION OF
CONFIDENTIALITY, 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.
INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY
HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY
MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION
COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE
LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF
RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
19. 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 or
third party equipment.
20. Indemnification
Client agrees to defend, indemnify and hold harmless DWC and its affiliates and their respective
subsidiaries, officers, managers, employees, attorneys, and agents (collectively, the “Indemnified
Parties”) 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 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, (iii) a breach by Client of this Agreement, or
(iv) thee Indemnified Parties’ use of Client Data. In order to take advantage of the
indemnification provided by this section, the Indemnified Parties 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 (at Client’s expense), and allow Client to control
the defense and settlement of the claim. The Indemnified Parties shall have no indemnification
obligation under this section and Client shall indemnify the Indemnified Parties 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. Client may not settle, compromise or resolve a
claim without the consent of the Indemnified Parties, if such settlement, compromise or
resolution causes or requires an admission or finding of guilt against the Indemnified Parties,
imposes any monetary damages against the Indemnified Parties, or does not fully release the
Indemnified Parties from liability with respect to the claim.
21. 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.
22. Compliance with Laws
Client will comply fully with all applicable laws, including all applicable laws relating to bribery
or corruption, and export laws and regulations of the United States and any other country
(“Export Laws”) where Client uses any of the Game. Client represents and warrants that it is not
(a) located in, or a resident or a national of, a restricted country; or (b) on any of the relevant
U.S. Government Lists of prohibited persons, including but not limited to the Treasury
Department’s List of Specially Designated Nationals and the Commerce Department’s List of
Denied Persons or Entity List. Client further represents and warrants that it shall not export, reexport,
ship, or transfer the Game to any restricted countries or restricted end users or use the
Game in any restricted countries or for any purposes prohibited by the Export Laws, including,
but not limited to, nuclear, chemical, missile or biological weapons related end uses. Client
understands that the requirements and restrictions of the Export Laws may vary depending on the
specific portions of the Game and may change over time, and that, to determine the precise
controls applicable to the Game, it is necessary to refer to the U.S. Export Administration
Regulations and the U.S. Department of Treasury, Office of Foreign Assets Control Regulations.
23. General Provisions
This Agreement shall be governed by the laws of the State of Texas without reference to the
conflicts of law principles thereof. 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 18, 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 negotiating, discussions, or agreements.
24. Definitions
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 worldwide patent rights
(including patent applications and disclosures); copyright rights (including copyrights, copyright
registration and copy rights with respect to computer software, software design, software code,
software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard,
business rules, use cases, screens, alerts, notifications, drawings, specifications and databases);
moral rights; trade secrets and other rights with respect to confidential or proprietary
information; know-how; other rights with respect to inventions, discoveries, ideas,
improvements, techniques, formulae, algorithms, processes, schematics, testing procedures,
technical information and other technology; and any other intellectual and industrial property
rights, whether or not subject to registration or protection; and all rights under any license or
other arrangement with respect to the foregoing.