This document sets forth the indicative terms of the W4 Games Consoles Beta Program Indicative Terms (the “Indicative Terms”) to be entered into by W4 Games Europe Limited (the “Company”) and the Beta Program Participant (the “BP Participant”). 

These are indicative terms only and subject to the definitive agreements to be agreed by the Company and the BP Participant. 

Any reference to “Agreement” in these Indicative Terms refers to the W4 Consoles Beta Agreement to be signed by the Company and the BP Participant prior to the BP Participant’s entry into the BP. 

Section 1. Definitions

“Authorized User” means a person who is identified as an authorized user of the BP Software in the CTA. 

“Beta Program” means the W4 Consoles Beta Program of the Company.

“BP Materials” has the meaning set forth in Section 2.1 of this Agreement.

“BP Software” has the meaning set forth in Section 2.3 of this Agreement.

“Company Consoles Privacy Policy” means the privacy policy of W4 Games US with respect to W4 Consoles, as such policy may be updated from time to time.

“Company Privacy Policy” means the general privacy policy of W4 Games US, as such policy may be updated from time to time.

“Console Manufacturer” means such console manufacturer that the Company has executed a  middleware agreement with from time to time.

“CTA” means the BP Commercial Terms Agreement, setting forth certain commercial terms between the Parties which are incorporated into this Agreement. 

“CRM” has the meaning set forth in Section 2.2 of this Agreement.

“Video Game” shall mean such video game, developed or in development by the BP Participant, which the Parties agree is to be part of the BP.

“W4 Games US” means W4 Games US Inc.

1. Purpose of the BP Program

The W4 Games Consoles Beta Program (“BP”) is a program, developed and managed by the Company, which allows selected video game developers to use a feature complete, beta version of W4 Consoles to port their video game to the port of one or more console manufacturers as agreed to by W4 Games and the BP Participant in the CTA. 

The purpose of the BP is to provide bespoke enterprise services with the objective of assisting the BP Participant secure certification by Console Manufacturers of the BP’s Video Game.  

2. Provision of Materials; Account Registration; Authorized Users

2.1 BP Software. As part of the BP, the Company will make available to the BP Participant certain software (the “BP Software”) and materials related to the BP Software that the Company  has developed (such materials collectively, the “BP Materials”).  For the purpose of this Agreement, BP Software includes versions of software as such software may be updated from time to time. BP Materials includes such versions of the BP Materials as may be updated from time to time.

BP Materials may be developed, in whole or in part, by third parties contracted by the Company. The Company makes no representations regarding BP Materials developed by third parties.

2.2. Account Registration. In order to receive the BP Software, BP Participant must register for an account with us through the Company’s dedicated sales and service.portal  (the “ CRM”). BP Participant agrees that any information that BP Participant provides is and will be kept at all times accurate, current and complete. BP Participant agrees that it will keep its registration current so that the Company may send notices, statements, and other information to BP Participant. BP Participant is responsible for all actions taken through its account. BP Participant also agrees to provide any additional information that may be required by the  CRM.

2.3. Authorized Users. Only Authorized Users may access and use the BP Software. The number of Authorized Users is set forth in the CTA.  The services that are to be provided by the Company to BP Participant are set forth in the CTA.  For the avoidance of doubt, the Company shall be under no obligation to provide any services in addition to those set forth in the CTA.

BP Participant is responsible for ensuring compliance with this Agreement by all Authorized Users. The BP Software may only be used for the benefit of the BP Participant and must at all times comply with the scope of permitted use as set forth in this Agreement. 

3. BP Software Access

The BP Software shall be provided to BP Participant through a dedicated GitHub repository, a link to which will be provided following the execution of this Agreement and the CTA. The Company has the right to change the means of delivery of the BP Software and the BP Materials to BP Participant at any time.

4. License Grant and Restrictions on BP Software Use

Subject to acceptance of and compliance with this Agreement, the CTA, the Company Privacy Policy and the Company Consoles Privacy Policy, the Company grants BP Participant a personal, limited, non-exclusive, non-transferable, revocable license (the “BP License”) to use the BP Software in accordance with this Agreement, the CTA and all applicable laws. The BP  Software may be used until such time that the BP  Agreement or the CTA is terminated in accordance with the terms and conditions of this Agreement or the CTA

Except as otherwise permitted under this Agreement, or otherwise agreed to by the Company and the BP Participant in writing, the BP License does not grant BP Participant the right to use the BP Software for any other purpose, or to disclose, reproduce, distribute, transfer, modify the BP Software or create derivative works based on it for any purpose.

BP Participant agrees not to change, modify, decompile, reverse engineer, disassemble or otherwise attempt to derive the source code of any BP Software unless permitted under this Agreement or otherwise agreed to by the Company in writing. Further, BP Participant agrees that the BP Software will only be used as permitted under this Agreement and the CTA and will not be rented, sold, leased, sublicensed, assigned, distributed or otherwise transferred. The Company shall retain, during as well as after the BP, full ownership of all BP Software and the BP Materials and all intellectual property in connection with the BP Software and the BP Materials, and except as expressly set forth herein, no other rights or licenses are granted or to be implied in favor of BP Participant with respect to any additional Company intellectual property that may exist at the time of this Agreement or developed in the future.

5. Further Restrictions on BP Software Use

The BP Software is provided solely for lawful purposes and uses and BP Participant represents that it will not use the BP Software to violate the terms and conditions of any agreements between BP Participant and third parties, infringe upon the intellectual property rights of any third party or infringe upon the privacy rights of any third party. Further, BP Participant is responsible for ensuring that its use of the BP Software is in accordance with this Agreement and any applicable laws, statutes, ordinances, regulations and rules.

6. BP Commercial Terms

The BP Software shall be provided to BP Participant in accordance with the commercial terms and conditions of the CTA.  

7. BP Program Administration

The Company will administer the BP Program through one or more specific sites on GitHub to facilitate the BP (each, a “BP GitHub Site” and collectively, the “BP GitHub Sites”). The BP GitHub Site will be used for providing information about the BP. BP Participants will be provided with a link to the relevant BP GitHub Site once it is operational. BP Participants should check the BP GitHub Site frequently for any updates and announcements regarding the BP, new BP Software features and updates regarding BP Materials.

8. BP Software Feedback

As part of the BP, the Company will provide BP Participant with opportunities to provide feedback on the BP Software and BP Materials and offer suggestions for improvement. This feedback (collectively, the “Feedback”) may include, but is not limited to:

• Providing general comments on the BP;
• Providing comments on the features and functionality of the BP Software;
• Identifying BP Software bugs and other issues that affect BP Software functionality;
• Making requests for different features and functionalities; and
• Providing suggestions regarding BP Software pricing,

The Company may request this information from BP Participant through different means, including but not limited to:

• Email;
• in-person meetings;
• telephone conversations;
• videoconferencing;
• text messages;
• questionnaires;
• bug submission forms; and
• other feedback-capturing methods that the Company may use from time to time.

As part of BP Participant’s participation in the BP Program, BP Participant agrees to provide diligent feedback on the BP Software on questionnaires that will be sent to BP Participant throughout the BP.

Further, BP Participant also agrees to report any bugs regarding the BP Software on bug reports that will be included in our dedicated GitHub repository.

By signing this Agreement, BP Participant consents to the Company contacting BP Participant regarding the BP, the BP Software and the BP Materials through any of the means set forth in this Agreement. BP Participant further authorizes the Company to use any Feedback for any business purpose, regardless of whether that business purpose is related to the BP Software or other products and services that the Company may develop.

Furthermore, BP Participant authorizes the Company to use the Feedback without restriction.

9. Confidential Information; Non-Disclosure

9.1 General Obligations of Confidentiality. Except as otherwise set forth in this Agreement, each Party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Company BP Software and any performance information relating to the BP Software will be deemed Confidential Information of the Company without any marking or further designation. 

Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 9.1 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 9.1. 

The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

9.2 Disclosure by BP Participant to Third Parties. For the avoidance of doubt, BP Participant may disclose Confidential Information to its publishers or other third parties (each, a “Third Party Reviewer” and collectively, the “Third Party Reviewers”) as BP Participant deems necessary to test and evaluate the BP Software or BP Materials. In the event of such disclosure, BP Participant shall cause Third Party Reviewers to agree in writing to keep all Confidential Information confidential.

9.3 Ownership of Confidential Information. Each Party agrees that each Party shall retain ownership over its own Confidential Information. Nothing contained herein shall be construed as granting or implying any transfer of rights by one Party to another of any patents or other intellectual property protecting or relating to the Confidential Information. 

9.4 Return of BP Materials. Any Confidential Information of a Party in the possession of another Party shall be promptly returned by the BP Participant within 10 (ten) days after this Agreement has been terminated or at the written request of the other Party.

10. BP Software Warning

BP Participant acknowledges that the BP Software is an early-stage software application currently in the development stage. Accordingly, the BP Software may contain defects, errors or bugs that could cause failures, corruptions, or loss of data and/or information from online accounts, computers, and/or other devices. The Company strongly encourages BP Participant to take all reasonable precautions regarding the BP Software and back-up all data and information on BP Participant’s computer, devices, and accounts prior to BP Participant’s participation in the BP Program. The BP Software is not intended for use, and should not be used, with business-critical systems.

11. Data Collection and Usage

11.1 Data Collection. In order to help the Company improve the BP Software and the BP Materials, BP Participant acknowledges that the Company and its subsidiaries and affiliated entities may collect, use, store, transmit, process, and analyze data from BP Participant’s  participation in the BP and use of the BP Software and the BP Materials.

11.2 Privacy Policy. Data collected pursuant to this Section 11 will be treated in accordance with the Company’s Privacy Policy and the W4 Consoles Privacy Policy, both of which are incorporated by reference into this Agreement.

12.  SuBPort and Maintenance

During BP Participant’s participation in the BP,  the Company shall provide such suBPort as is set forth in the CTA. BP Participant agrees to abide by any support procedures, rules and/or policies that the Company may provide or communicate to BP Participant and update from time to time. 

The Company may, from time to time, but is under no obligation, to make available updates, enhancements and/or modifications to the BP Software and the BP Materials and may, at its sole discretion, provide such updates to BP Participant. The provision by the Company to BP Participant of such updates, enhancements and/or modifications to the BP Software shall be subject to all covenants and conditions of this Agreement, including, but not limited to, the restrictions on BP Participant’s use of the BP Software and the Company’s disclaimer of warranties.

13. Future Products

BP Participant acknowledges the Company has no obligation, express or implied, to develop further beta versions of the BP Software or to make a commercial version of the BP Software in the future. If the Company decides in its sole discretion to develop new versions of the BP Software or release a commercial version of the BP Software, BP Participant acknowledges that such version may have features or functionality that are different from those found in the BP Software licensed under this Agreement.

If the Company releases a commercial version of the BP Software, BP Participant shall be provided with a copy of such software, free of charge, and shall have the right to use such software for the term of the service agreement entered into by the Parties as set forth in the CTA. Use by BP Participant of the commercial version of the BP Software shall be subject to the BP Participant’s execution of a software licensing agreement regarding such use (the “BP Commercial Software Licensing Agreement”).

14. Third Party Software and Information

The BP Software may contain software and other intellectual property developed by third parties (“Third-Party Intellectual Property”). The Company makes no representations or warranties regarding and has no responsibility regarding such Third-Party Intellectual Property.

15. No Warranty

The BP Software is under development and may be designated as beta, pre-release, untested, pioneer program, or not fully tested versions. BP Participant acknowledges and agrees that the BP Software is in an early stage of development and acknowledges that the Company makes no warranties or representations regarding the BP Software or its use.  Additionally, BP Participant      acknowledges that BP Software may be incomplete and may contain errors or inaccuracies that could cause failures, corruption and/or loss of data or information. BP Participant expressly acknowledges and agrees that, to the extent permitted by applicable law, all use of the BP Software by BP Participant is at BP Participant’s sole risk. The Company is providing the BP Software and the BP Materials to BP Participant solely on an “as is” basis and without any warranty of any kind, whether express or implied, including without limitation, the implied warranties of merchantability, non-infringement, accuracy, completeness, performance, and fitness for a particular purpose. BP Participant acknowledges that the Company has not promised or guaranteed to BP Participant that such BP Software will be announced or made available to anyone in the future, and that the Company has no express or implied obligation to BP Participant to announce or introduce the BP Software or any similar or compatible product, or to continue to offer access to the BP Software in the future.

16. Term and Termination

This Agreement will continue in effect until terminated in accordance with this Section 16. For the avoidance of doubt, the following provisions shall survive the termination of this Agreement: 9-23, 25 and 26.

16.1 Term. The terms of the BP Software license granted to BP Participant under this Agreement shall commence upon BP Participant’s use of the BP Software and will terminate automatically upon the earlier of (i) the commercial release of the BP Software if BP Participant executes a BP Software Commercial Licensing Agreement; (ii) the termination of this Agreement as described in this Section 16; or (iii) the date specified in the CTA. 

16.2 Termination of Agreement by BP Participant. BP Participant may terminate this Agreement at any time and for any reason by providing written notice to the Company. However, BP Participant agrees that if it does terminate the Agreement it will promptly return all materials regarding the BP, the BP Software and the BP Materials to the Company. If BP Participant terminates the Agreement it also agrees that it will immediately discontinue its use of the BP Software and consent to the Company removing any access BP Participant may have to the BP Software, the BP Materials and the BP GitHub Sites.

16.3 Termination of Agreement by Company. The Company may terminate this Agreement and the CTA in the event of BP Participant’s breach of either of those agreements. Within five (5) days of BP Participant’s receipt of the Company’s termination notice, BP Participant will cease all use of and return the BP Software, the BP Materials and all other Confidential Information in BP Participant’s possession BP Participant may have received during participation in the BP.

17. Indemnification

BP Participant shall indemnify, defend, and hold harmless (i) the Company; (ii) Company affiliates; and (iii) Company and its affiliate’s directors, officers, employees, and agents (each an “Indemnified Person”) against all liabilities, losses, damages, deficiencies, claims, actions, judgments, settlements, awards, interest, fines, penalties, expenses, or costs (including reasonable attorney’s fees) (collectively “Losses”) that, directly or indirectly, are based on BP Participant’s breach of this Agreement, information provided by BP Participant, or BP Participant’s infringement on the rights of a third party or breach of agreement with a third party.

BP Participant agrees that its obligations under this provision of the Agreement are not the Company’s sole remedy for a breach and are in addition to any other remedies Company may have against BP Participant under this Agreement or at law. BP Participant’s indemnification obligations will survive the termination of this Agreement.

18. DISCLAIMER OF LIABILITY

To the extent not prohibited by applicable law, BP Participant assumes all risks and all costs associated with testing, installation, or use of the BP Software that may be provided from time to time under this Agreement, including, without limitation, any back-up expenses, costs incurred for the use of the BP Software on BP Participant’s computer, devices and/or peripherals, and any damage to any equipment, software, information or data, and in no event will the Company be liable for any indirect, special, incidental or consequential damages, whether arising in tort (including negligence), contract or otherwise, arising out of or related to this agreement, including any liability that stems from any use of the BP Software on BP Participant’s computer, devices and/or any peripherals connected thereto, and/or from any other Confidential Information, and/or Company’s performance or failure to perform under this Agreement, even if the Company has been advised or is aware of the possibility of such damages. In no event shall the Company’s total liability to BP Participant for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of one hundred dollars ($100.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

19. Relationship of Parties

Nothing in this Agreement or participation by BP Participant in the BP shall be deemed to cause a Party to this Agreement to be considered a partner, joint venture partner or employee of the other Party for any purpose.

20. Governing Law

The Indicative Terms are governed by and construed in accordance with the laws of New York State without giving effect to any choice or conflict of law provision or rule that would require or permit the application of laws of any jurisdiction other than those of New York State.

Any legal suit, action, or proceeding arising out of this Agreement or the licenses granted hereunder may be instituted in the courts of New York State and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

21. Entire Agreement

This Agreement, along with the CTA, constitute the entire agreement between the Parties hereto concerning the subject matter hereof and supersedes all prior negotiations, understandings, undertakings or agreements (whether oral or written) between the Parties. This Agreement may not be amended, except in a writing signed by BP Participant and the Company.

22. No Waiver or Assignment

No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by a duly authorized representative of Company, and no single waiver will constitute a continuing or subsequent waiver. This Agreement may not be assigned by BP Participant in whole or in part. Any contrary assignment shall be null and void.

23. Severability

The Company and the BP Participant agree that in the event that any provision of this Agreement is found to be unenforceable, the rest of the Agreement shall remain in full force and effect.

24. Counterparts

The Parties may execute this Agreement in counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument.

25. Third-Party Beneficiaries

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

26. Remedies

BP Participant agrees that any violation or threatened violation will cause irreparable injury, both financial and strategic, to the Company and in addition to any and all remedies that may be available, in law, in equity or otherwise, the Company shall be entitled to injunctive relief against the threatened breach of this Agreement by the BP Participant without the necessity of proving actual damages in such court as the Company may find convenient in order to enforce its rights.

27. Access to BP Software and Other Licenses

As part of the BP, the Company may in its sole discretion make BP Software, and updates thereto, available to BP Participant through a web application or downloadable software application, including the BP Website or the Company’s GitHub repository. From time to time, the Company, at its sole option, may also as part of the BP provide the BP Participant with software or services as part of the BP (such materials collectively, the “Ancillary Tools”).

All use of the Ancillary Tools and BP Software shall be in accordance with the terms and conditions of this Agreement. If the Ancillary Tools are accompanied by a separate license agreement(s), BP Participant agrees the terms therein also govern BP Participant’s use of the Ancillary Tools. If there are no other license agreements accompanying Ancillary Tools, BP Participant’s use of the Ancillary Tools is subject to the terms of this Agreement.

28. Representation Regarding Signing Authority

By executing this Agreement, the person signing on behalf of BP Participant represents that they are least 18 years of age, that they have the authority to legally bind BP Participant and that they the authority to participate in the BP.