YOGURT3D CLICK-THROUGH AGREEMENT
THIS CLICK-THROUGH AGREEMENT (THIS “AGREEMENT”) IS BETWEEN YOGURT3D ENGINE CORPORATION (“YOGURT3D”) AND YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).
BY CLICKING ON THE “ACCEPT” BUTTON BELOW, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOGURT3D IS UNWILLING TO LICENSE Y3D (AS DEFINED BELOW) TO YOU, AND YOU MUST CLICK ON THE “DO NOT ACCEPT” BUTTON BELOW.
THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE UPON WHICH YOU CLICK THE “ACCEPT” BUTTON BELOW. FOR THE PURPOSE OF THIS AGREEMENT, YOU AND, IF APPLICABLE, SUCH COMPANY (OR OTHER ENTITY) CONSTITUTES “DEVELOPER”.
1. Background. Yogurt3D has developed and provides access to a certain 3D Flash game engine (the “Y3D Engine”). The Y3D Engine includes only the rendering engine (source code and/or .SWC file) that is provided by Yogurt3D free of charge through a download from Yogurt3D site identified by the URL http://www.yogurt3d.com (“Website”). It does not include any additional software, features or content, which may be subject to additional fees, terms and conditions.
2. License; Delivery. Subject to the terms and conditions of this Agreement, Yogurt3D grants to Developer a nonexclusive, nontransferable, non-sublicensable, revocable and limited license to: access and use the Y3D Engine to develop games and applications ("Developer Developments"), and use, reproduce and display the Yogurt3D logo (the “Logo”) solely as set forth in Section 4.
3. License Restrictions. Unless expressly otherwise set forth in this Agreement, Developer will not:
(i) modify, translate or create derivative works of the Y3D Engine or the Logo; (ii) sell, assign, sublicense, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Y3D Engine or the Logo; (iii) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Y3D Engine or the Logo; and (iv) cause or permit any other party to do any of the foregoing.
4. Ownership. As between the parties and subject to the grants under this Agreement, Yogurt3D owns all right, title and interest in and to the Y3D Engine, the Logo and any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing (collectively, “Intellectual Property Rights”) embodied therein. Subject to the foregoing and as between the parties, Developer owns all right, title and interest in and to the Developer Developments; provided, however, that, Developer grants to Yogurt3D an unrestricted, royalty-free, perpetual, irrevocable license to display the Developer Developments. There are no implied licenses in this Agreement, and Yogurt3D reserves all rights not expressly granted under this Agreement. Developer will ensure that Developer Developments or the Developer’s web site prominently displayed the following acknowledgement: “powered by the Yogurt3D engine” together with any logo provided on yogurt3d.com website ( http://www.yogurt3d.com/company/logos.html )..
5. Disclosure and Feedback.
Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Developer to Yogurt3D with respect to the Y3D Engine (collectively, “Feedback”) will constitute useful information. Further, Yogurt3D will be free to use, disclose, reproduce, and distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.
6. Representations and Warranties; Disclaimer. Developer represents and warrants that: (i) all of Developer’s registration and account information is true, accurate and complete; (ii) Developer is responsible for all activities that occur under Developer’s name. THE Y3D ENGINE IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. YOGURT3D AND ITS SUPPLIERS DO NOT WARRANT THAT ANY OF THE Y3D ENGINE WILL BE FREE FROM ALL BUGS, ERRORS, OR OMISSIONS. YOGURT3D AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE Y3D ENGINE WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY, (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT YOGURT3D KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. DEVELOPER ACKNOWLEDGES AND AGREES THAT DEVELOPER HAS RELIED ON NO WARRANTIES.
7. Indemnification. Developer will indemnify, defend and hold Yogurt3D and its directors, officers, employees, suppliers, consultants, contractors, and agents (“Yogurt3D Indemnitees”) harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) resulting from any claim (including third party claims), suit, action, or proceeding against any Yogurt3D Indemnitees, whether successful or not, resulting from or arising in connection with: (i) any breach of this Agreement (including, but not limited to, any breach of any of Developer’s representations, warranties or covenants); (ii) the negligence or willful misconduct of Developer; or
(iii) the Developer Developments.
8. Limitation of Liability. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL YOGURT3D BE LIABLE TO DEVELOPER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF YOGURT3D HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT will YOGURT3D’s TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE aggregate of the amounts paid or payable by Developer to YOGURT3D, if any, UNDER THIS AGREEMENT. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
9. Third Party Suppliers. The Y3D Engine may include software or other code distributed under license from third party suppliers. Developer acknowledges that such third party suppliers disclaim and make no representation or warranty with respect to the Y3D Engine or any portion thereof and assume no liability for any claim that may arise with respect to the Y3D Engine or Developer’s use or inability to use the same.
10. Termination. In the event of a breach of Sections 2 or 3, Yogurt3D may immediately terminate this Agreement. Yogurt may terminate this Agreement for any reason upon thirty (30) days written notice to Developer. Upon termination of this Agreement: (i) all rights granted to Developer under this Agreement will immediately cease; and (ii) Developer will promptly provide Yogurt3D with all Confidential Information then in its possession or destroy all copies of such Confidential Information, at Yogurt3D’s sole discretion and direction. In addition to all definitions and this sentence, the following sections will survive any termination or expiration of this Agreement: 3, 4, 5, 6, 7, 8, 9 and 11.
11. Miscellaneous. This Agreement together with any exhibits attached hereto, are the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof. Notwithstanding the foregoing, if the parties enter into a signed agreement relating to the license of the Y3D Engine, such agreement will supersede this Agreement in its entirety, and this Agreement shall be deemed automatically terminated as of the effective date of such signed agreement. This Agreement will be governed by and construed in accordance with the laws of State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The parties agree that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state and federal courts located in San Francisco County. The parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Developer, by operation of law or otherwise, without the prior written consent of Yogurt3D, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Yogurt3D may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled. Any notice, demand or communication required or permitted to be given by any provision of this Agreement will be deemed to have been sufficiently given or served for all purposes if: (i) delivered personally; (ii) deposited with a pre-paid messenger, express or air courier or similar courier; or (iii) transmitted by telecopier, facsimile, email or other communication equipment that transmits a facsimile of the notice to like equipment that receives and reproduces such notice. Notices will be addressed to a party at the party’s address, facsimile number or email address as set forth below. Notices will be deemed to have been received (a) in the case of personal delivery, upon receipt, (b) in the case of messenger, express or air courier or similar courier, two days after being deposited, and (c) in the case of telecopier, facsimile, email or other communication equipment, the day of receipt as evidenced by a telecopier, facsimile, email or similar communication equipment confirmation statement. Further, either party may change the individual designated below or its contact information or both by notice in accordance with this Section 11.