LIMITED LICENSE AGREEMENT for the use of the CryEngine as a Service for Games
This limited license agreement (this "Agreement") for the commercial use of the CryEngine object code on subscription basis is entered into between Crytek GmbH, Frankfurt/Main, Germany ("Crytek") and you, the user (the "Licensee" or "You").
The Agreement is made effective beginning on the date on which you, the Licensee, first accept this agreement or download, install, load or otherwise use Software as defined below (whichever occurs first).
By doing so, you, the Licensee, agree to all terms and conditions of this Agreement or in the accompanying documentation. You should read this Agreement carefully before the Start Date. If you do not agree with the terms and conditions set forth in this Agreement you are not authorized to use the CryEngine.
You agree to check www.cryengine.com periodically for new information and terms that govern your use of CryEngine as a Service. Crytek may modify this Agreement at any time. Crytek will inform you about revisions to this Agreement by email and/or by a notice on our home page and/or during log in. Revisions to terms affecting existing CryEngine as a Service shall be effective thirty (30) days after posting at www.cryengine.com. If you do not agree with the new terms your only remedy is to stop using CryEngine as a Service.
1.1. “CryEngine”: the CryEngine for PC/Windows in object code form, including the CryEngine Tools, the CryEngine Assets and any updates thereto as made available by Crytek at its sole discretion under the “CryEngine as a Service” program. Crytek may offer parts of the CryEngine code as (example) source code upon its sole discretion.
1.2. “CryEngine Assets”: the audiovisual files included in the CryEngine as distributed by Crytek.
1.3. “CryEngine Tools” editors and other tools included in the CryEngine that may be used to develop products based on the CryEngine.
1.4. “Game(s)”: an interactive product for PC/Windows (which might have CryEngine Assets embedded) in object code form for the sole purpose of entertainment developed and compiled by using the CryEngine pursuant to its documentation. Under this Agreement the following will not be considered Games:
- military projects;
- simulation (technical, scientific, other);
- Serious Games;
1.5. “License”: defined in Sec. 2.
1.6. “Subscription Fee”: the fee for the License for a certain period as announced by Crytek or its authorized agent. Crytek may change the Subscription Fee for future Subscription Periods at its sole discretion.
1.7. “Subscription Period”: the period of the License the Licensee has paid the Subscription Fee for.
1.8. “Serious Games”, i.e. ‘games’ which are not developed for the sole purpose of entertainment but for purposes training, simulation, science etc.;
1.9. “UGC”: (a) code created by License for the development of Games (e.g. plug-ins); and (b) audiovisual content (including tutorials) created by Licensees using the CryEngine which is not based on CryEngine Assets for the development of Games, to be distributed via the UGC Marketplace (except for tutorials).
1.10. “UGC Marketplace”: the platform(s) designated by Crytek where the distribution and sale of UGC is admissible. Crytek reserves the right to remove UGC from the UGC Marketplace at any time at its sole discretion.
2. Grant of License
2.1. Grant: Subject to strict and continuous compliance with the restrictions of this Agreement, the payment of the Subscription Fee and any other obligations by Licensee, Crytek grants to Licensee during the Subscription Period a non-exclusive, non-transferable, non-sublicensable, limited license (the “License”) only to:
· install CryEngine and use it on one (1) computer at the same time pursuant to its documentation for the purpose of developing Games;
· distribute, sublicense or exploit Games in object code form only and only under terms consistent with and no less protective of Crytek’s rights than those contained in this Agreement;
· distribute, sublicense or exploit UGC on an UGC Marketplace subject to a certain share payable to Crytek and/or the UGC Marketplace provider.
2.2. Restrictions on Use: Crytek reserves all rights not expressively granted in this Agreement. Without limitation, Licensee shall not:
· install and use the CryEngine after expiration or termination of the Subscription Period;
· install and use the CryEngine on more computers than you have Licenses for;
· distribute, sublicense or exploit:
- the CryEngine (if not in the form of Games rendered by CryEngine);
- the CryEngine Tools;
· use the CryEngine for the development of any product other than Games, including without limitation:
- military projects
- simulation (technical, scientific, other);
- Serious Games;
· use the CryEngine for the development of any Games which are harmful, abusive, racially or ethnically offensive, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, or in a reasonable person's view, objectionable;
· remove any technical safeguards from the CryEngine, e.g. to allow use outside the Subscription Period or the License;
· copy, replicate or mimic Crytek’s games;
· remove, modify or substitute any trademark, copyright or proprietary notices from the CryEngine,
· infringe or violate any intellectual property or proprietary, personal, moral or other rights or the privacy of Crytek or any third party;
· use CryEngine for applications that are unlawful or offensive under applicable laws;
· use the Cryengine to develop cheats, hacks or similar applications;
· transfer or assign the License or this Agreement.
2.3. Intellectual Property Rights: CryEngine and all copyrights, trademarks, and all other conceivable intellectual property rights related thereto are owned by Crytek and are protected by German, US and other national and international law. Licensee shall have no ownership or intellectual property rights in or to CryEngine, including, without limitation, all copyrights related thereto.
3. Copyright Notice and Trademarks
3.1. The splash screen, credits screen, documentation and packaging (if any) as well as the marketing material (print, online etc.) of the Game shall include the following wording: “Portions of this software are included under license © 2004-201_ Crytek GmbH. All rights reserved.” Crytek's copyright notices shall be no less prominently displayed than Licensee’s own copyright notices.
3.2. Crytek grants Licensee the right to use the trademarks "Crytek" and "CryEngine" only to promote the Game. The splash screen, credits screen, documentation and packaging (if any) as well as the marketing material (print, online etc.) of the Game shall include the trademarks "Crytek" and "CryEngine". Licensee shall use the trademarks as made available online by Crytek within eight (8) weeks before the final design of the respective material. Crytek's trademarks shall be no less prominently displayed than Licensee’s own trademarks.
3.3. The design of the splash screen, the credits screen, the documentation, the packaging and the marketing material is subject to Crytek's prior written approval regarding Crytek's copyright notice and trademarks. The approval shall be deemed given if Crytek does not give any notice within ten (10) days from receipt of a sample.
4. Subscription Period, Auto-Renewal
4.1. You shall pay the applicable Subscription Fee to Crytek or its authorized agent/payment services provider.
4.2. You acknowledge that the Subscription Period might be auto-renewal and payments might be processed automatically. You may cancel the auto-renewal at any time at Crytek or its authorized agent/payment services provider. Cancellation of auto-renewal shall be effective at the end of the current Subscription Period for which you have paid the Subscription Fee.
4.3. Crytek shall be entitled to discontinue the “CryEngine as a Service” program after due notice at any time. You shall not be entitled to any claims for damages for such discontinuation.
5. UGC, UGC Marketplace
5.1. You may distribute and sell UGC but only on the UGC Marketplace designated by Crytek. You are obliged to use the UGC Marketplace for trading UGC, use the designated payment methods and follow all further guidelines set forth by Cryek on the UGC Marketplace from time to time.
5.2. You may not create, distribute and sell UGC which infringes or violate any intellectual property or proprietary, personal, moral or other rights or the privacy of Crytek or any third party, is unlawful or offensive under applicable laws, harmful, abusive, racially or ethnically offensive, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, or in a reasonable person's view, objectionable. Crytek reserves the rights to remove any UGC from the UGC Marketplace and/or terminate the License and/or the Agreement in case of violations.
5.3. Crytek may set forth certain shares to be paid on Licensee’s revenues arising from the distribution and sale of UGC on the UGC Marketplace. Crytek may change such rates from time to time at its sole discretion.
6. Service and Support
6.1. Crytek shall not be obliged to render any technical support (no telephone support, no training, no bug fixing).
6.2. Licensee may access public developer support forums and online support pages as they are made available to the public by Crytek in Crytek's sole discretion.
7. Warranty, Indemnification
7.1. CRYTEK WARRANTY DISCLAIMER. CRYTEK GIVES NO WARRANTY. SOFTWARE IS DELIVERED "AS IS". CRYTEK DOES NOT MAKE AND HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRATICE.
7.2. CRYTEK INDEMNIFICATION DISCLAIMER.
A. In case that German law applies:
7.2.1. Crytek is liable for damages, regardless on which legal basis (be it contract, tort or otherwise) only if (a) such damages are cause by violation of essential obligations of this Agreement (Kardinalpflichten) for Crytek's negligence or intent (Verschulden) which endangers the purpose of the Agreement; or (b) such damages are caused by Crytek’s gross negligence or intent.
7.2.2. In case that Crytek is liable for the violation of an essential obligation of this Agreement (Kardinalpflicht) without acting with gross negligence or intent then the liability is limited to amount of payments received from the respective Licensee.
7.2.3. If Crytek is liable for damages pursuant to Section (a) above for gross negligence or intent of Crytek staff other than the managing directors then the liability is also limited to the amount set forth in Section (b).
7.2.4. Crytek is not liable for indirect or consequential damages (Mangelfolgeschäden), loss of profits or frustrated costs if such damages are not a result of gross negligence or intent of Crytek's managing directors.
7.2.5. The exclusion or limitation of liability pursuant to this Sec. 5 also applies with respect to claims against Crytek’s staff or contractors.
7.2.6. The liability of Crytek with respect to death, bodily injury or health, a guarantee by Crytek (if any) or pursuant to the Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
7.2.7. If the Licensee is also liable for certain damages then Crytek shall bear an amount of such damages in accordance to its contributory negligence (Mitverschulden). With respect to the User’s responsibility for reduction of damages (Schadensminderungsobligenheit) the Licensee is responsible for regular back-ups of its data and in case of an assumed bug shall take all further reasonable measures. In case of loss of data Crytek is thus liable only to the extent that such loss of data would have occurred in case of a due data back-up as well.
B. In case that German law does NOT apply:
INDEMNIFICATION DISCLAIMER. EXCEPT FOR INTENTIONAL ACTS OR OMISSIONS OF CRYTEK, IN NO EVENT SHALL CRYTEK BE LIABLE FOR ANY DAMAGES, including INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF CRYTEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CRYTEK’S MAXIMUM AGGREGATE LIABILITY TO LICENSEE IN CONNECTION WITH OR IN ANY MANNER RELATED TO THIS AGREEMENT (WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY OR ON BEHALF OF LICENSEE TO CRYTEK UNDER THIS AGREEMENT. THE FOREGOING ALLOCATION OF RISK IS REFLECTED IN THE AMOUNT OF THE COMPENSATION CONTEMPLATED UNDER THIS AGREEMENT.
7.3. Licensee Indemnification: Licensee shall indemnify and hold harmless Crytek against all costs and expenses (including reasonable attorney’s fees and expenses) and all other liability related to any claim on Licensee’s use of the CryEngine.
You are not obliged to report to Crytek any feedback, bug fixes and optimizations made to the CryEngine (including the CryEngine Tools) (collectively the “Feedback”). However, if you report Feedback to Crytek you hereby grant Crytek a worldwide, non-exclusive, royalty-free, transferrable, sub-licensable and perpetual license to such Feedback for the purposes of (1) using the Feedback internally at Crytek, (2) incorporating the Feedback in future releases of the CryEngine and (3) distributing the CryEngine with the embedded Feedback to third parties without restriction in any way and without payment of any additional fees or royalties to Licensee. Crytek acknowledges that it does not obtain any rights in the Game itself.
9. Term and Termination
9.1. The Term of this Agreement and the license granted herein begin on the Start Date and shall terminate automatically and without notice to you or any other notice when the Subscription Period expires or the Agreement is terminated.
9.2. Crytek shall be entitled to terminate this Agreement for Licensee’s breach of this Agreement of any kind with or without cure notice.
9.3. Upon the termination or expiration of this Agreement, any and all rights of Licensee hereunder shall terminate without prejudice to any rights or claims Crytek may have, Licensee shall have no right to use the CryEngine in any manner. All rights granted hereunder shall revert, without notice, to and be vested in Crytek. In case of termination or expiration Licensee shall immediately destroy all copies of the CryEngine in its possession, custody or control. The right to distribute Games developed and compiled until expiry as well as UGC as set forth in Sec. 2 shall survive expiry (but not termination for breach).
9.4. Termination or expiration of this Agreement shall not create any liability against Crytek and shall not relieve Licensee from any liability which arises prior to termination or expiration. The provisions of this Agreement which by their terms or sense are intended to survive shall survive cancellation, expiration or termination of this Agreement.
10. General Provisions
10.1. Oral agreements have not been made. This Agreement supersedes all prior agreements made between the Parties regarding CryEngine. This Agreement and any other general term published by Crytek reflect the entire agreement and understanding of the Parties with respect to its subject matter.
10.2. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture between Crytek and Licensee. Neither party hereto shall have any right to obligate or bind the other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third persons.
10.3. If any provision of this Agreement shall be found to be invalid or unenforceable for legal or factual reasons the invalidity or unenforceability of such provisions shall not affect the other provisions of this Agreement and all provisions of this Agreement not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic and legal objective of the Agreement. This applies as well in case of an omission or invalidity of the whole Agreement.
10.4. This Agreement shall be governed and construed by the laws of Germany. Place of performance of this Agreement is Frankfurt a.M. (Germany). If the Licensee is defendant, Crytek might, if admissible, determine as court of jurisdiction the court where the Licensee is resident or the court competent for the corporate domicile of Crytek which currently is in Frankfurt a.M. (Germany). If Crytek is the defendant the parties expressively agree on the exclusive jurisdiction of the courts of Frankfurt a.M. This Agreement on jurisdiction applies to all claims, be they based on contract, on tort or on any other legal basis, arising under or in connection with this agreement.
10.5. CryEngine contains third party code listed at the end of this Agreement or in a READ ME file. Such code is distributed under its own license terms as indicated. These third party licenses are incorporated by reference. In case of a conflict between the third party license and this Agreement the third party license shall prevail.
10.6. For users subject to German law the following shall apply:
Right of Revocation
You can revoke this Agreement and within fourteen (14) days without reason in text form (for example letter, fax, e-mail). The revocation deadline starts upon the receipt of this instruction in text form but not before a) entering into these Terms of Service; and b) the fulfillment of the information obligations under - 246 par. 2 in connection with - 1 German Civil Code as well as - 312e section 1 German Civil Code in accordance with - 246 par. 3 German Civil Code. To obey the revocation deadline timely posting of such revocation is sufficient. The revocation notice has to be addressed to: Crytek GmbH, Grüneburgweg 16-18, 60322 Frankfurt am Main.
In case of an effective revocation the benefits received by each party shall be returned and any uses (e. g. interest) shall be surrendered. In case that you cannot return services received in whole or in part or only in deteriorated condition you will be obliged to provide compensation, if applicable. Refund of payments is due within 30 days. This payment term commences for you upon execution of your revocation, for us upon its receipt.
YOUR RIGHT OF REVOCATION WILL PREMATURELY EXPIRE IF BOTH PARTIES HAVE COMMENCED PERFORMANCE AND FULFILLED OBLIGATIONS UNDER THESE TERMS AND CONDITIONS PRIOR TO EXECUTING YOUR REVOCATION RIGHT.
BY ACCEPTING BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.