Terms of Service

MODBOX SDK LICENSE AGREEMENT

IMPORTANT NOTICE:

BY CHECKING OR CLICKING ON AN ‘I AGREE’, ’I ACCEPT’ OR ANY SIMILAR INTERNET-BASED OR SOFTWARE INSTALLATION BOX OR BUTTON INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING (DEFINED BELOW) THE SOFTWARE (DEFINED BELOW) IN ANY MANNER, YOU AGREE TO BE BOUND BY THE PROVISIONS OF THIS MODBOX SDK LICENSE AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT CHECK OR CLICK ON ANY SUCH BOX OR BUTTON AND DO NOT DOWNLOAD, INSTALL OR OTHERWISE USE THE SOFTWARE FOR ANY PURPOSE.

This Agreement is between Alientrap Games Inc. (“Alientrap”) and you: (i) the individual downloading, installing, accessing, viewing or otherwise using (“collectively “using” or “use”) the Software; and (ii) any person, corporation, partnership or other legal entity (“Beneficial Party”) that you are using the Software for or on their/its behalf; (collectively “you”, “your”). 

BACKGROUND:

1. Alientrap is the creator of Modbox, a virtual reality game made for the HTC Vive (“Modbox”). Alientrap is making its Modbox SDK (“SDK”) available to developers to enable them to develop and upload Modbox mods “Mods” to Alientrap’s specified distribution platform for use by Modbox end users (the “Purpose”).
2. You wish to use the SDK solely for the Purpose and Alientrap wishes to permit such use in accordance with this Agreement.

In consideration for Alientrap’s granting you the right to use its Software to develop Mods and your use thereof, the parties agree as follows: 

: In this Agreement, the following terms have the following meaning:

1. “Software” means the SDK, the Source Code and any related paper-based or electronic Modbox, SDK or Source Code-related documentation, specifications, API’s and the like provided to you by Alientrap.
2. “Source Code” means any Modbox source codes provided to you with the SDK.

: In accordance with the provisions hereof, Alientrap hereby grants to you a limited, personal, non-exclusive, revocable, non-transferable license to use the Software solely for the Purpose. 

1. Software Ownership
   1. : You agree and acknowledge that all right, title and interest in and to the Software and all copies thereof, including all patent, trade-mark, trade secret, copyright rights and all other intellectual property rights and interests therein, are and will remain the sole and exclusive property of Alientrap. Nothing herein conveys to you any right, title or interest in or to any aspect or component of the Software (or its underlying intellectual property) other than the limited license contained in section 2 (above). 
2. Mods Ownership: Save and except for any portion of the Software embedded within or used/accessed by the Mods (which will at all times remain the sole and exclusive property of Alientrap) you will own your Mods including all patent, trade-mark, trade secret, copyright rights and all other intellectual property rights and interests therein.
3. Mods License Grant: You hereby grant to Alientrap the sole and exclusive, word-wide, unlimited, perpetual, irrevocable and transferable license in and to your Mods, including any original works embedded within your Mods, including all underlying and embedded intellectual property therein, to use, host, copy, distribute, make, have made, commercialize, reproduce, sublicense, fix, store, distribute, synchronize, modify, make derivative works from, translate, adapt, arrange, incorporate into one or more works or collections, exhibit, publically perform, broadcast, transmit or otherwise exploit your Mods, any embedded original works and all underlying intellectual property rights therein, for any use or purpose and in any way. The intent of this exclusive license is to grant to Alientrap the same worldwide rights in and to your Mods and underlying intellectual property rights that you have as the owner, except for the right of ownership itself. As such, the foregoing license is intended to be coextensive with all of your rights of ownership in and to the Mods and underling intellectual property rights under all legal systems in every jurisdiction in the world, except for the right of ownership itself. The above rights may be exercised in all media, for all purposes, in all formats by all distribution methods whether now known or hereafter devised.
4. Software Use Restrictions/Obligations:
   1. Restricted Access: You shall restrict access to use of the Software to those developers/engineers reasonably necessary for you to achieve the Purpose. Such developers/engineers may only be your employees or individuals (sub)contracted to you that have entered into a written agreement containing confidentiality provisions substantially similar to those contained herein. You shall inform such individuals that their right to access/use the Software is limited to the Purpose and that they have no rights to use or distribute the Software for any purpose other than the Purpose.
   2. General Restrictions: You will not, nor will you allow any third party to: (i) copy, modify, adapt, translate or otherwise create derivative works of the Software; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code from any object-code provided with or as part of the Software; (iii) use the Software or any Confidential Information (defined below) provided by Alientrap to, or to assist others to, create/develop a product or service that competes with Modbox; or (iv) rent, lease, sell, assign or otherwise transfer rights in or to the Software.
   3. Copy Restriction: You may not make any copies of any component of the Software except as reasonably required by you and your authorized employees or (sub)contractors to fulfill the Purpose.
   4. No Third-Party Access: You shall not distribute to or permit access to or use of the Software by any third party (except for the employee developers/engineers referenced in Subsection 6(a) above) including, any officers, directors, employees, shareholders, subsidiaries or affiliates.
   5. Intellectual Property Notices: You shall not, nor shall you permit others to, remove, alter, cover or obscure any confidentiality, trade secret, proprietary or copyright notices, trade‑marks, proprietary, intellectual property or other identifying marks, designs, notices, legends or indications, from any component of the Software. You shall replicate same within every copy or partial copies of the Software made by you.
   6. Non-Encumbrance: You shall not pledge, mortgage, hypothecate, encumber or offer as security in any manner any part of this Agreement, any of the rights granted hereunder or any part of the Software, its components or underlying intellectual property.
   7. No Other Use: You may not yourself, or through any parent, subsidiary, affiliate, agent or other third party: (i) sell, lease, license, sublicense or otherwise deal with the Software; or (ii) provide, divulge, disclose, or make available to, or permit the use of the Software, by any third party or by anyone other than as expressly permitted under this Agreement.
   8. Seizure: In the event of a pending seizure of the Software by your creditor, you shall immediately inform Alientrap and take all measures to have Alientrap’s intellectual property rights therein recognized and protected. All costs incurred by you to recover the seized Software or its components shall be borne by you.

You shall be fully responsible for the conduct of your employees/(sub)contractors who in any way breach this section 6. You agree to notify Alientrap promptly in the event of any breach of this section 6 including breaches in its security under conditions in which it would appear that Alientrap’s intellectual property, as embodied within the Software, is or could be prejudiced or exposed to loss. You shall take all other reasonable steps necessary to recover any compromised intellectual property disclosed to or placed in the possession of you by virtue of this Agreement. 

1. Mod Requirements: You agree:
   1. Compliance with Laws Generally: that your Mods and the content of your Mods will at all times comply with all applicable local, municipal, state, provincial, territorial, federal, national and international laws, regulations and the like in every relevant jurisdiction including those relating to copyright, trade secrets, privacy, indecency/obscenity, hate speech and defamation; 
   2. Third Party IP: that your Mods may not include, embed, use or in any way rely upon any third party intellectual property that you have not received the explicit right to use/embed/distribute/exploit within your Mods for the Purpose; and
   3. Compliance with Alientrap Guidelines: to comply with any and all Mod guidelines and posted by Alientrap on its website or otherwise generally made available to Alientrap’s developer community from time to time.
2. Mod Restrictions: 
   1. Malware: You shall not use, post, transmit or introduce any bot, back door, drop dead mechanism, shut down mechanism, sniffer, software, spyware, trap door, trojan horse, virus, worm or any other malware or malicious code (collectively “Malware”) into any Mod that will interfere or attempt to interfere with Modbox, Alientrap’s servers, software or networks, Alientrap’s distribution platforms or any end user software, network or hardware.
   2. Cheating: You may not introduce any functionality in a Mod that would permit an end user to cheat.
   3. Modbox Server Compliance: When an end user joins a server, the end user may only use Mods permitted by the server. Accordingly, your Mods may not change or otherwise interfere with how/when Mods are loaded by Modbox.
   4. Compliance with Other Restrictions: You agree to comply with any and all other Mod restrictions posted by Alientrap on its website or otherwise generally made available to Alientrap’s developer community from time to time.
3. Testing Before Upload: You agree to thoroughly test your Mods before uploading them to Alientrap’s distribution platform(s). Such tests shall include tests to ensure that the Mods are bug free, Malware free and stable. You shall also scan all Mods with industry standard malware detection software and shall remove any discovered Malware prior to uploading.
4. Distribution Platforms: You may only upload completed, tested and Malware-free Mods to Alientrap’s then currently approved distribution platform(s). Alientrap may change its distribution platform(s) at any time. Alientrap may use multiple distribution platforms. Alientrap may, without notice: (a) remove any or all of your Mods from any of its distribution platforms; or (ii) move any of your Mods from one distribution platform to any other or multiple other distribution platforms.
5. No Obligation to Use Mods: Alientrap shall not be obligated to use, approve, or make available to its end users, any of your Mods. Alientrap may remove any of your Mods from its distribution platform without notice.
6. Credit for Mods: If Alientrap makes any of your Mods available on its distribution platform(s) it will credit you as the Mod’s developer on the platform(s) in accordance with standard industry practices.
7. No Compensation: You agree and acknowledge that neither Alientrap, nor its end users, nor anyone else has a duty to account to you, nor will anyone be paying any fee or providing any monetary or other compensation or consideration to you for your development and provision of Mods or for any other purpose. 
8. No Maintenance & Support

: Alientrap’s willingness to provide the Software hereunder is predicated upon your agreement that the Software is provide as-is. Alientrap will not be obligated to provide any maintenance, support, upgrade, update, fix, enhancement, modification or other related or like services in respect of the Software.

: You acknowledge and agree that the contents of this Agreement, the Software and any other Alientrap source code, object code, related documentation, design documents, files, data, bench mark tests, specifications, underlying ideas, algorithms, gameplay, physics, concepts, procedures, processes, principles, know-how, methods of operation, designs, programming techniques (including all underlying intellectual property), and input methods, data formats and structures, trade secrets and other proprietary information provided to you or discovered by you or your employees/(sub)contractors due to your/their use or access to the Software are the confidential information and proprietary information of Alientrap (collectively "Confidential Information"). You shall take all necessary steps to protect and safe guard such Confidential Information and keep it confidential. You shall use no less effort to keep the Confidential Information confidential than you use to protect your own similar confidential information. Except as explicitly provided in this Agreement, you agree not to, and agree to ensure that any engineer, developer, employee, subcontractor or other person that you provide the Software to will not, use, duplicate, disclose or distribute any Confidential Information, directly or indirectly, to any person without the prior written consent of Alientrap.

: Either party may terminate this Agreement at any time for any or for no reason. You may terminate this Agreement by ceasing to use the Software. Alientrap may terminate this Agreement at any time by giving you notice in any manner including by email, by notifying the press that it is cancelling the mod program or by posting a notification to its mod/developer community on its website. This Agreement will automatically terminate without notice or any other action if: (a) you breach any provision of this Agreement; or (b) any representation or warranty made by you hereunder is or becomes untrue.

: Upon the termination or expiration of this Agreement for any reason, without prejudice to any other rights which Alientrap may have, you shall: 

1. immediately cease using the Software for any purpose whatsoever; and
2. erase and destroy, all copies, including backup copies, of the Software, Source Code, all software compiled from the Source Code, the Confidential Information and all associated documentation and development/engineering notes, from any computer system, records system or files or storage media in your control or possession.
3. Representations & Warranties: You personally, and on behalf of any Beneficial Party, represent and warrant: (a) that you and your Mods will comply with all applicable laws and regulations; (b) you will at all times develop and provide your Mods in a professional and workmanlike manner; (c) your Mods will be original works that do not infringe the copyright, trade secret, or any other intellectual property of any third party; (d) you have sufficient right, title, and interest (as owner, licensee, or otherwise) to grant on an unencumbered basis the rights in the Mods to Alientrap that you do hereunder; (e) the content of Mods will not be obscene or indecent, libelous, defamatory, contain hate speech or violate the right of privacy or publicity of any third party; (f) Mods will not contain Malware that is injurious or damaging to software, hardware or networks used in conjunction with the Mods; and (g) the Mods are not subject to any "copyleft" or other obligation or condition (including any obligation or condition under any "open source" license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that: (i) could require, or could condition the use or distribution of the Modbox, the Software or any portion thereof on: (A) the disclosure, licensing, or distribution of any source code for any portion of Modbox or the Software; or (B) the granting to licensees of the right to make derivative works or other modifications to Modbox or the Software or portions thereof: or (ii) could otherwise impose any limitation, restriction, or condition on the right or ability of Alientrap to use, distribute or charge for Modbox or the Software.
4. Equitable Relief

: You agree that Alientrap shall be entitled to equitable relief, including such injunction or injunctions as may be required to prevent any breach, infringement or further breach or infringement of: (i) any intellectual property/confidentiality provision herein; or (ii) Alientrap’s intellectual property rights in the Software; and that Alientrap may specifically enforce such provisions or protect such rights by an action instituted in any court having jurisdiction. You acknowledge that the Software has a special and unique character, giving it particular value, the loss of which cannot be reasonably or adequately compensated for in damages. You covenant and agree not to contest the availability to Alientrap of such injunctive relief on any grounds.

1. Moral Rights Waiver: You, individually and on behalf of any Beneficial Party, hereby and forever irrevocably waive in whole all moral rights which you may have in the Mods arising under the Copyright Act (Canada) as amended, or under the laws of any other jurisdiction anywhere in the world (or any successor legislation of similar force and effect) or at common law, including: (a) the right to the integrity of the Mods; (b) the right to be associated with the Mods; (c) the right to restrain or claim damages for any distortion, mutilation or other modification of the Mods; and (d) the right to restrain use or reproduction of the Mods in any context and in connection with any product, service, cause or institution. You, individually and on behalf of any Beneficial Party, agree that, except for the right to be credited as provided under section 12 Alientrap, its, heirs, successors, assigns and their licensees are not required to designate you as the creator of any Mods.
2. Bankruptcy: You personally, and on behalf of any Beneficial Party and any heir or successor in interest to this Agreement (collectively “you”) acknowledge that all rights and licenses to the Mods granted to Alientrap under this Agreement are, and will be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code (the “Bankruptcy Code”), licenses of rights to “intellectual property” as defined under the Bankruptcy Code. You agree that Alientrap, will retain and may fully exercise all of its rights and elections under Bankruptcy Code in perpetuity. You acknowledge that if any of you, as debtor in possession or a trustee-in-bankruptcy (collectively, “Trustee”) in a case under the Bankruptcy Code, rejects this Agreement, Alientrap may elect to retain its licensed rights under this Agreement as provided in Section 365(n) of the Bankruptcy Code. After the commencement of a case under the Bankruptcy Code by or against any of you and unless and until this Agreement is rejected, upon written request of Alientrap to the Trustee, Trustee shall not interfere with the rights of Alientrap under this Agreement, including Alientrap’s right to use, distribute, exploit etc. the Mods as permitted under section 5. 
3. Indemnity
   1. : You shall indemnify and hold harmless Alientrap and its directors, officers, and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including lawyer’s fees and other legal expenses, arising directly or indirectly from: (a) any breach by you or your officers, directors, employees, subcontractors or agents of any of the provisions contained in this Agreement; (b) any negligent, reckless or intentionally wrongful act of you or your officers, directors, employees, subcontractors or agents; (c) failure to comply with the requirements and restrictions contained in sections 6, 7, 8 and 9; or (d) the untruth of any representation or warranty made by you hereunder. 
4. NO WARRANTY

: THE SOFTWARE IS PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT THE SOFTWARE IS BEING PROVIDED WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS OR ADEQUACY FOR ANY PARTICULAR PURPOSE OR USE, NONINFRINGEMENT, QUALITY, PRODUCTIVENESS, CAPACITY, OR THAT THE OPERATION OF ANY PART OF THE SOFTWARE WILL BE ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ALIENTRAP, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, LICENSING, SUPPLY OR DELIVERY OF THE SOFTWARE SHALL CREATE A REPRESENTATION, CONDITION OR WARRANTY AND YOU MAY RELY ON SUCH INFORMATION OR ADVICE. 

: ALIENTRAP SHALL NOT IN ANY CIRCUMSTANCE BE LIABLE TO YOU, OR ANY OTHER PERSON CLAIMING THROUGH YOU INCLUDING BENEFICIARY PARTIES, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES OR EXPENSES OF ANY TYPE, INCLUDING ANY LOSS OF PROFITS, SAVINGS, BUSINESS, DATA, REVENUE, EQUIPMENT, REVENUE, ANTICIPATED BENEFITS ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ALIENTRAP’S REFUSAL TO DISTRIBUTE ANY OF YOUR MODS, COSTS OF OVERHEAD OR COSTS ASSOCIATED WITH THE INABILITY TO USE THE SOFTWARE, LOSS FROM ANY COMPLETE OR PARTIAL COMPUTER, NETWORK OR WORK STOPPAGE OR OTHER SIMILAR DAMAGES, WHETHER SUCH DAMAGES OR EXPENSES ARISE OUT OF CONTRACT (INCLUDING FUNDAMENTAL BREACH) OR TORT (INCLUDING NEGLIGENCE) EVEN IF ANY OF THE PARTIES HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

: No waiver of any provision of this Agreement shall be binding unless it is in writing. No indulgence or forbearance by a party shall constitute a waiver of such party’s right to insist on performance in full and in a timely manner of all covenants in this Agreement. Waiver of any provision shall not be deemed to waive the same provision thereafter or any other provision of this Agreement at any time.

: This Agreement constitutes the entire agreement among the parties pertaining to all the matters herein and supersedes all prior agreements, understandings, negotiations and discussions in respect thereof between the parties, whether oral or written, express or implied.

: This Agreement may be amended by Alientrap at any time may notify you of this change by: (a) email; (b) posting an updated version of it on its website; or (c) by any other reasonable means. This Agreement shall terminate and the updated version shall go into force the moment Alientrap does any of the foregoing.

: If any provision or part of any provision contained in this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions or portions thereof, shall not be in any way affected or impaired thereby.

: This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.

: The relationship of the parties is that of independent contractors. Nothing in this Agreement may be construed to make either party the employee, agent or partner of the other. Neither party may legally bind the other in any manner.

ue: This Agreement shall be governed by the laws of the Ontario and the federal laws of the Canada applicable therein without reference to conflict of laws principles. You agree to submit to the non-exclusive jurisdiction of the courts of the Province of Ontario and the federal courts of Canada located in Toronto. Despite the foregoing, nothing herein will prevent or restrict Alientrap from applying for or seeking a temporary restraining order, a preliminary injunction, permanent injunction or any other injunctive or equitable relief in any jurisdiction anywhere in the world to enforce, preserve or protect its rights hereunder. 

: Except as otherwise explicitly provided herein, a party’s respective rights and remedies hereunder are cumulative and are in addition to and not in substitution for any other rights or remedies provided hereunder or otherwise at law or in equity and any such rights or remedies may be exercised by the parties from time to time concurrently or independently and as often and in such order as the parties may deem expedient in their sole and absolute discretion.

: You may not assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Alientrap. Alientrap may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without your prior consent. 

: In this Agreement: (a) all capitalized derivative forms of defined terms and phrases in this Agreement have meanings that correspond to the defined terms and phrases; (b) the words “include”, “includes” or “including” mean “include without limitation”, “includes without limitation”; and “including without limitation” respectively; (c) the division of this Agreement into separate sections, subsections and schedules, the Agreement's title and the insertion of headings is for convenience of reference only and shall not affect the construction or interpretation of this Agreement; (d) words or abbreviations which have well known or trade meanings are used herein in accordance with their recognized meanings; and (e) references to currency herein are references to Canadian dollars unless otherwise explicitly stated.

1. Contra Proferentem: You acknowledge that you have had the opportunity to have your legal counsel review this Agreement, and that any rule of construction to the effect that any ambiguity is to be resolved against the drafting party will not be applicable in the interpretation of the Agreement.
2. Accuracy of Information & Authority to Bind

: You, the individual agreeing to this Agreement (by checking a check box or clicking an “I Agree” or “I Accept” button or any other Internet-based, or installation-based method of indicating agreement), hereby:

1. represent and warrant that you have the power and authority (by virtue of being an officer, director, attorney or agent of, or otherwise authorized by, the Beneficial Party) to bind any Beneficial Party to all the provisions of this Agreement;
2. certify that the information you provided to Alientrap when applying to access/download the Software (eg: name, email, address, corporation name, title) is true; and
3. agree to update Alientrap by email when any such information changes.

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