Xenko 2.x End User License Agreement
[Xenko Pro / Xenko Pro Plus / Xenko Education / Xenko Personal]
Last updated: April 24, 2017
IMPORTANT: PLEASE READ THIS XENKO 2.X END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE INSTALLING OR USING THE PROPRIETARY COMPUTER SOFTWARE KNOWN AS “XENKO PRO 2.X VERSION” (“XENKO PRO”), “XENKO PRO PLUS 2.X VERSION” (“XENKO PRO PLUS”), “XENKO EDUCATION 2.X VERSION” (“XENKO EDUCATION”) OR “XENKO PERSONAL 2.X VERSION” (“XENKO PERSONAL”) (BOTH BINARY OR CODE FORM. INCLUDING, BUT NOT LIMITED TO, RELATED DOCUMENTS, ALL ITS UPDATES AND UPGRADES. COLLECTIVELY, “SOFTWARE”), SO THAT YOU UNDERSTAND THE TERMS AND CONDITIONS FOR OBTAINING A LICENSE TO USE THE SOFTWARE.
* What is written in this Agreement will be the terms and conditions of the contract between you and Silicon Studio Corporation (“SS”) concerning use of the Software. Please retain a copy of this Agreement if necessary.
IF YOU AGREE TO ALL OF THE PROVISIONS IN THIS AGREEMENT APPLICABLE TO THE LICENSE OBTAINED BY YOU, PLEASE CHOOSE THE COLUMN [I AGREE TO THE PROVISIONS OF THE XENKO 2.X END USER LICENSE AGREEMENT] BELOW AND PROCEED TO INSTALLATION. THIS WILL EXECUTE THIS AGREEMENT BETWEEN YOU AND SS, AND SS WILL GRANT YOU A LICENSE TO INSTALL AND USE THE SOFTWARE PURSUANT TO THIS AGREEMENT.
IF YOU DO NOT AGREE TO ANY OF THE PROVISIONS IN THIS AGREEMENT, PLEASE CHOOSE THE COLUMN [I DISAGREE ABOUT THE PROVISIONS OF THE LICENSE AGREEMENT] AND STOP THE PROCEDURE OF INSTALLATION OR USE IMMEDIATELY.
IF YOU HAVE INSTALLED OR USED THE SOFTWARE IN ANY MANNER, SS WILL DEEM THAT YOU HAVE AGREED TO THIS AGREEMENT AND THAT THIS AGREEMENT HAS BEEN EFFECTIVELY MADE BETWEEN YOU AND SS. IF AN INDIVIDUAL INDICATING THE ABOVE-MENTIONED AGREEMENT OR DISAGREEMENT COLUMN IS YOUR REPRESENTATIVE OR EMPLOYEE, SUCH INDIVIDUAL SHOULD REPRESENT AND WARRANT THAT HE/SHE IS DULY AUTHORIZED TO ACT ON YOUR BEHALF WITH BINDING EFFECT, WHEREBY HIS/HER ACT WILL BE DONE FOR AND ON BEHALF OF YOU AND THE EFFECTS OF SUCH ACTS WILL BELONG TO YOU.
The Software is intended for persons aged 13 years old and older provided, however, you must be at least 18 years old to make purchases or submit content to SS.
In this Agreement, “you” means an entity (or a similar organization) or an individual who will obtain the Software and the license for the Software, and install and use the Software.
1. User Restrictions for Xenko Education and Xenko Personal.
1.1. If you accept the terms of this Agreement for use of Xenko Education, you shall represent and warrant that you are accepting the terms on behalf of an educational or academic institution such as a university, college, or high school.
1.2. If you are accepting the terms of this Agreement for use of Xenko Personal, you shall represent and warrant that: (a) if you are accepting the terms on behalf of a Commercial Entity, both (i) its annual gross revenues do not exceed US$200,000, and (ii) its raised funds (including but not limited to crowdfunding) do not exceed US$200,000, in each case during the most recently completed fiscal year and in any equivalent currency; or (b) you are an individual. The exchange rate at the last day of the most recently completed fiscal year shall apply for calculation under this provision. If you are a Non-Commercial Entity, you cannot use Xenko Personal.
During the terms of this Agreement, you shall expressly acknowledge and agree that if you are a Xenko Personal user and the above thresholds are exceeded, you may no longer use Xenko Personal, and you must either obtain license of Xenko Pro or Xenko Pro Plus, or destroy all copies of Xenko Personal in your possession or control. SS will monitor your compliance with and enforce these restrictions and requirements by means including but not limited to monitoring the number of downloads of your Licensee Product and any available revenue estimate data.
2. Trial Use of Xenko Pro.
Anyone may use Xenko Pro solely for non-commercial, evaluation purposes for a one-time period of sixty (60) days. Users not eligible to use Xenko Pro must cease all use of Xenko Pro sixty (60) days from the initial installation of Xenko Pro.
3. Grant of License.
3.1. Use Rights.
Conditioned upon your compliance with the terms and conditions of this Agreement and payment of all applicable fees, SS grants you a non-exclusive, non-transferable license: (a) to install and execute the executable form of the Software, solely for internal use by a single person to develop Licensee Product during the applicable license term; (b) to download, modify and compile source code provided by SS, solely to develop the Licensee Products, to the minimum extent necessary, and (c) to distribute the Runtime portion of the Software (excluding source code), on a royalty-free basis, solely as embedded or incorporated into Licensee Product and solely to third parties to whom you license or sell Licensee Product pursuant to an agreement that is no less protective of SS and its licensors as this Agreement, and (d) to distribute the Modified Software only to other valid licensees of the same type and version of Xenko. You may not sublicense the rights granted under above (a), (b) or (d), but you may sublicense the rights granted under above (c) solely to third parties to whom you license or sell Licensee Product to act as distributors thereof pursuant to an agreement no less protective of SS and its licensors as this Agreement.
3.2. Third-Party Software.
The Software incorporates or is bundled with Third-Party Software governed by separate license terms, including open-source licenses. Such Third-Party Software licenses are identified in the THIRD PARTY.MD file bundled with the Software and incorporated into this Agreement by reference. You shall agree that you have reviewed and accepted those license terms and that your use of the Software will be deemed acceptance thereof.
3.3. New Versions of the Software.
During the valid subscription period, you will be entitled to access future versions of the Software that SS chooses to make available to you. SS does not have any obligation to make new versions of the Software available. Nor does SS have any obligation to continue to make available for access or download any or all versions of the Software. However, any new versions of the Software that SS has made available to you are considered part of the Software and may be used under this Agreement.
4.1. Xenko Education Restrictions.
If you are using Xenko Education, your license to use the Software and distribute the Runtime portion of the Software in your Licensee Product is limited to educational and non-commercial purposes.
4.2. Xenko Personal Restrictions.
If you are using Xenko Personal, you shall display the Xenko logo and text which states that you used the Software to develop the Licensee Product on the splash screen, credits, packaging, and instruction manual of the Licensed Product. You shall follow the logo instructions [link] for the display style.
4.3 Xenko Pro Plus Restrictions.
If you are using Xenko Pro Plus, you shall acknowledge and agree that you shall not be allowed to remove the login and authentication system from the Xenko editor.
4.4. One User Per License.
You must obtain a different license for each individual or agent using the Software. You may use the same license to activate the Software on up to three (3) computers but only for use by the same user. You may not use both installations simultaneously. If are using Xenko Education, you may use the same license to activate the Software on as many computer as indicated by SS.
4.5. Types of License.
You shall acknowledge and agree that, as an express condition to the licensed rights granted under Section 2, you are not permitted to combine or integrate in any manner any Licensee Product developed with certain type of Xenko license you have been granted with any Licensee Product developed with any other types of Xenko license. For the avoidance of doubt, if you are a permitted user of Xenko Personal, you may commence a project using only Xenko Personal (or Xenko Pro if you are a permitted user of Xenko Pro) and may subsequently upgrade all (but not less than all) of your licenses to Xenko Pro (or Xenko Pro Plus if you are a permitted user of Xenko Pro). You shall acknowledge and agree that SS may tag any Licensee Product created with Xenko Personal with an identifier to prevent such a prohibited combination of Licensee Product.
4.6. General Restrictions.
Except as expressly specified in this Agreement, you may not: (a) copy (except in the course of loading or installing) or modify the Software, or create derivative works of the Software; (b) distribute, transfer, sublicense, lease, lend, rent or otherwise provide access to the Software to any third party; (c) directly or indirectly make the functionality of the Software available to multiple users or third parties through any means, including but not limited to uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other technology or service; (d) use the Software for competitive analysis or to develop a competing product or service; (e) distribute or publish any Licensee Product in connection with any gambling activities, which is any gambling product or service offered in any market or application that is regulated by any local, state or national authority and requires a gambling license, without a separate license agreement from SS; (f) directly or indirectly distribute Licensee Product installed on more than 1,000 electronic devices or systems if such Licensee Product provides the user interface or primary functionality of such electronic device or system without a separate license from SS (this restriction does not prevent you from distributing Licensee Product pre-installed on personal computers and consumer electronic devices such as mobile phones, tablets, televisions or set-top boxes as long as any such Licensee Product does not provide the user interface or primary functionality of such device);or (g) do anything that could cause or result in the Software (including the Runtime portion thereof) being subject to any open-source license (or similar license) that requires, as a condition of use, modification or distribution that the Software (including the Runtime portion thereof) or other software combined or distributed with the Software be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge. You shall acknowledge and agree that portions of the Software, including but not limited to the source code and the specific design and structure of individual modules or programs, are confidential and constitute or contain trade secrets of SS and its licensors. Accordingly, you shall agree not to disassemble, decompile or reverse-engineer the Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by this Agreement or by applicable laws notwithstanding this prohibition.
You represent and warrant that you have the legal capacity to agree to the Agreement and that you will comply with all applicable laws and regulations in connection with your use of the Software, and in accordance with the terms and conditions specified in the Agreement.
The Software is licensed, not sold under this Agreement. SS and/or its licensors retain ownership of the Software including all intellectual property rights therein. The Software is protected by copyright law, international treaties or other applicable laws in each jurisdiction. SS reserves all rights in the Software not expressly granted to you in this Agreement. You will not delete or in any manner alter any SS or third party’s copyright, trademark or other proprietary rights notices or markings appearing on or in the Software (including the Runtime portion thereof).
6. Fees and Taxes.
You shall agree to pay all amounts due for the Software as set forth in the applicable online store cart, quote and/or invoice. All fees payable under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. You will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with this Agreement or your receipt or use of the Software, except for taxes based on SS’s net income. In the event that SS is required to collect any tax for which you are responsible, you will pay such tax directly to SS. If you pay any withholding taxes that are required to be paid under applicable laws, you will promptly furnish SS with written documentation of all such tax payments, including receipts.
Except to the extent required by law, all payments and fees are non-refundable under all circumstances, regardless of whether or not this Agreement has been terminated.
7.2. To ensure compliance with this Agreement, you shall agree that within thirty (30) days from the date of SS or its authorized representative’s request, you shall provide all pertinent records and information requested in order to verify that your installation and use of any and all Software is in compliance with this Agreement along with a signed verification that all such information is complete and correct. Furthermore, if you are a Legal Entity, SS or its authorized representatives may upon reasonable prior notice access and inspect your facilities and computer systems to review and verify your compliance with this Agreement. Any such inspection shall be conducted during regular business hours at your facilities or electronically via remote access. In the event you have impermissibly used Xenko Personal (or other products) or have not paid the applicable fees for all Software you have deployed or used, you agree to promptly pay for such Software and the reasonable inspection costs.
SS shall not provide to you any conducts of support under this agreement. Users of Xenko Pro and Xenko Pro Plus are eligible to premium support. For information about premium support contact us at https://xenko.com/contact/. SS may decline premium support requests at its sole discretion depending on internal capacity to provide such services.
If you are using Xenko Education or Xenko Personal, the license granted under this Agreement will remain in effect unless earlier terminated in accordance with this Agreement. For subscription-based licenses (Xenko Pro and Xenko Pro Plus), the license granted under this Agreement is for the initial subscription period (minimum subscription terms for Xenko Pro and Xenko Pro Plus is one (1) year), and thereafter such license will automatically renew on a month-to-month basis unless you renew the subscription for a new subscription term or terminate and cancel the license as described on the SS web site before the automatic renewal time. SS may cease offering licenses and may modify or terminate subscription or other Software license or service offerings at any time. The license granted under this Agreement will automatically terminate, with or without notice from SS, if (i) you breach any term of this Agreement, including but not limited to, user’s restriction clause or representation clause, (ii) you fail to pay all fees due for the license, (iii) your use of the Software poses a security risk to, or otherwise adversely impacts, the software or any third party, (iv) your use of the Software may be fraudulent, (v) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. Upon termination, you must at SS’s option either promptly delete and destroy or return to SS all copies of the Software in your possession or control. SS may also disable the Software you have licensed upon termination of this Agreement, expiration of a subscription term license, or in the event you breach this Agreement.
10. No Warranty.
THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. SS AND ITS LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE OF THE SOFTWARE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SS OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
To the maximum extent permitted by applicable laws, you shall agree to indemnify, defend and hold harmless SS and its affiliates against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses, including, without limitation, reasonable legal fees, arising out of or accruing from your Licensee Product or your violation of this Agreement.
12. Limitation of Liability.
SS AND ITS LICENSORS’ TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO THE GREATER OF THE AMOUNTS PAID BY YOU FOR THE SOFTWARE OR ONE HUNDRED U.S. DOLLARS (US$100). IN NO EVENT WILL SS OR ITS LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SOFTWARE, REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER OR NOT SS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SINCE SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THERE MAY BE A CASE WHERE THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
13. Export Laws.
You shall agree to comply fully with all export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
14. Choice of Law and Dispute Resolution.
14.1. Choice of Law.
This Agreement will be governed by and construed in accordance with the laws of Japan, without regard to or application of conflict of laws rules or principles.
14.2. Disputes Resolution.
The parties agree the exclusive jurisdiction of the Tokyo District Court of Japan as a court of first instance with respect to any dispute arising out of this Agreement.
Except as expressly specified in this Agreement, this Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all prior proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and SS have executed a separate agreement governing use of the Software. The English-language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations. Any terms or conditions contained in your purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by SS and will be deemed null. You may not assign or transfer this Agreement or any rights granted hereunder without SS’s prior written consent, and any attempt by you to do so, without such consent, will be void. Without limiting the generality of the foregoing, if you are an employee of a Legal Entity, you may not assign or transfer the contractual status under this Agreement or any rights granted hereunder to your employer without SS’s prior written consent, and any attempt by you to do so, without such consent, will be void. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by Email attachment, by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable ordering document or invoice or to such other address as may be specified by either party to the other in accordance with this section. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective when SS issues 30 days’ notice in writing (including emails) at SS’s sole discretion. If any provision of this Agreement is held to be unenforceable or invalid that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect.
“Commercial Entity” means any company, corporation, limited liability company, general partnership, limited partnership, limited liability partnership, proprietorship, joint venture or other form of business organization, excluding any government, non-profit, educational or academic institution.
“Contribution” means any code, whether in source code format or object code format, or any other information or content, that you make available to SS by any means (e.g. via submissions to forums or through email or otherwise).
“Feedback” means any feedback or suggestions that you provide to SS regarding the Software.
“Legal Entity” means any Commercial Entity and Non-Commercial Entity.
“Licensee Product” means code, artwork, games, applications, software or other content that you develop with the Software, including, but not limited to, sample games and asset packs.
“Modified Software” means the Xenko content, binaries and source code modified or extended by you.
“Non-Commercial Entity”means any government, non-profit, educational or academic institution, including but not limited to any primary or secondary school, vocational school, college or university.
“Runtime” means all the Xenko content and binaries needed to run the Licensee Product.
“Third-Party Software” means software developed by third parties that is furnished with or as part of the Software.