W4 Build Services Agreement

This W4 Build Services Agreement (the “Agreement”) sets forth the terms of the agreement between W4 Games Europe Limited (the “Service Provider”) and the Service Recipient (defined below).

Definitions

“Build” refers to the process of compiling a game by the Service Provider that is carried out for the Service Recipient as part of a Service (defined below).

“Build Queue” refers to the period of time between when a Build is requested and the Build is executed.

“Credits” refers to units of time that are used to carry out a Build. For Godot Engine Builds, two Credits represent one minute of Build time. For exporting Godot games, one Credit represents one minute of Build time. Unused Credits that are not purchased as part of a Credit Pack (defined below) expire at the end of each month. For the avoidance of doubt, time that a requested Build is spent in the Build Queue is not credited against a Service Recipient’s Credits or Sign-Up Bonus Credits.

“Credit Pack” means a group of Credits purchased by the Service Recipient through the W4 Games Portal (defined below). Unused Credits that are purchased as part of a Credit Pack expire one year after the date they are purchased.

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

“Enterprise Service” has the meaning set forth in Section 2.5 of this Agreement.

“Free Package” has the meaning set forth in Section 2.1 of this Agreement.

“Godot Engine Modifications” has the meaning set forth in Section 15 of this Agreement.

“Indie Package” has the meaning set forth in Section 2.3 of this Agreement.

“Machine Slot” refers to the reservation of time by the Service Recipient to execute a Build on behalf of a Service Recipient.

“Premium Support” means an enhanced level of customer service and technical assistance via the W4 Games Online Portal. Premium Support targets, but does not guarantee, prioritized response times, access to specialized technical experts, and personalized assistance tailored to the Service Recipient’s specific needs.

“Privacy Policy” means the privacy policies of W4 Games US that may be in place from time to time, such as the general W4 Games privacy policy and any specific W4 Build privacy policy.

“Service” means the service contracted by the Service Recipient through the W4 Games Portal.

“Service Fee” means that fee for the Service as set forth in the W4 Games Portal.

“Service Package” has the meaning set forth in Section 1 of this Agreement.

“Sign-Up Bonus Credits” are special Credits provided to a Service Recipient at the time of purchasing a Service Package. All Sign-Up Bonus Credits expire within a month from the date they are allocated.

“Storage” means the disk space, data retention capacity, or other digital storage resources provided to a Service Recipient for the purpose of storing game-related files, assets, metadata, or other necessary data in connection with the compilation, deployment, or operation of a game within the Service. Storage may be subject to limitations on capacity, duration, access, or performance as specified in the applicable services arrangement contracted by the Service Recipient. Storage space is cancelled if it is not used by the Service Recipient for a period of three months.

“Studio Package” has the meaning set forth in Section 2.4 of this Agreement.

“Support” refers to the level of support contracted by the Service Recipient on the W4 Games Portal.

“W4 Games Portal” means the customer interface maintained by the Service Provider located here Home | W4Games, as updated from time to time.

1. Services

By purchasing a service package (each, a “Service Package”) through the W4 Games Portal, the Service Recipient agrees to be bound by the purchase terms on the W4 Games Portal and the terms and conditions of this Agreement.

2. Service Packages

The Service Packages include the following packages:

(a) the Free Package;

(b) the Dev Package;

(d) the Studio Package; and

(e) the Enterprise Package.

2.1 Free Package

The Free Package includes the following features:

(a) 250 Sign-Up Bonus Credits;

(b) 180 Credits a month; and

For the avoidance of doubt, the Free Package does not include:

(a) any type of Support beyond bug reporting;

(b) any discounts in connection with the purchase of Credit Packs; or

2.2 Dev Package

The Dev Service includes the following features:

(a) 500 Sign-Up Bonus Credits:

(b) 2,500 Credits a month; and

For the avoidance of doubt, the Dev Service does not include:

(a) any type of Support beyond bug reporting;

(b) any discounts for the purchases of Credit Packs: or

2.3 Indie Package

The Indie Service includes the following features:

(a) 2,500 Sign-Up Bonus Credits;

(b) 12,500 Credits a month;

(d) A 10% discount on the purchase of Credit Packs; and

(e) The option to purchase Premium Support

Indie Service does not include the ability to reserve a Machine Slot.

2.4 Studio Package

The Studio Service includes the following features:

(a) 20,000 Sign-Up Bonus Credits

(b) 100,000 Credits a month;

(d) a 20% discount on Credit Packs;

(e) the ability to reserve a Machine Slot;

(f) Premium Support.

2.5 Enterprise Service

Enterprise services are agreed on a case-by-case basis and subject to a separate agreement to be negotiated and executed by the Parties.

Purchases of the Enterprise Service have the ability to reserve a Machine Slot or a cluster of Machine Slots, as agreed by the Parties in writing.

3. Provision of Services

The Services shall be provided through a dedicated W4 Build portal.

4. Services Commercial Terms.

The Services shall be provided to the Service Recipient in accordance with the commercial terms and conditions selected by the Service Recipient through the W4 Games Portal. Such commercial terms are deemed to be included in this Agreement. The Service Recipient agrees to punctually make all payments, and perform such other actions, as may be required by the terms of its Service Package.

5. Authorized Users.

Unless otherwise agreed by the Parties, only employees of the Service Recipient or persons contracted by the Service Recipient may use the Services. In the event that the Service Recipient wishes that persons contracted by the Service Recipient use the Services, such persons shall agree in writing to be bound by the terms and conditions of this Agreement.

6. Confidential Information; Non-Disclosure

6.1 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.

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 6.1 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 6.1.

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.

6.2 Ownership of Confidential Information. The Parties agree 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.

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

7. Data Collection and Usage

7.1 Data Collection. In order to help the Service Provider improve the Services, Service Recipient acknowledges that the Service Provider and its subsidiaries and affiliated entities may collect, use, store, transmit, process, and analyze data from Service Recipient’s use of the Services.

7.2 Privacy Policy. Data collected pursuant to this Section 7 will be treated in accordance with the Privacy Policy, which is incorporated by reference into this Agreement.

8. Support and Maintenance

During Service Recipient’s receipt of the Services, the Service Provider shall provide such support as is included in the Service Recipient’s Services Package. The Service Recipient agrees to abide by any support procedures, rules and/or policies that the Service Provider may provide or communicate to Service Recipient and update from time to time.

The Service Provider may, from time to time, but is under no obligation, to make available updates, enhancements and/or modifications to the Services and may, at its sole discretion, provide such updates to the Service Recipient. The provision by the Service Provider to the Service Recipient of such updates, enhancements and/or modifications to the Services shall be subject to all covenants and conditions of this Agreement.

9. Third-Party Software and Information

The Services may be based on software that contains software and other intellectual property developed by third parties (“Third-Party Intellectual Property”). The Service Provider makes no representations or warranties regarding and has no responsibility regarding such Third-Party Intellectual Property.

10. Limited Warranty

10.1. Limited Warranty. The Service Provider warrants that the Services will be provided in a professional and workmanlike manner in accordance with general industry standards.

10.2 Exclusive Remedy. In the event of a breach of the above warranty, the Service Recipient’s sole and exclusive remedy shall be, at Service Provider’s option, either (a) a correction of the Service, or (b) refund of the Services Fee paid by the Service Recipient for the Service.

This remedy is conditioned upon Service Recipient promptly notifying the Service Provider in writing of such breach during the period of this Agreement or within three months after the date that the breach is discovered by the Service Recipient, whichever is later. For the avoidance of doubt, in no case shall the Service Provider be responsible for a claim of a breach which is notified by the Service Recipient more than six months after the date of termination of this Agreement.

10.3 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, THE SERVICE PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.

10.4 Notice Regarding Build Times

The W4 Games website or marketing or informational materials regarding W4 Build may contain information regarding forecasted average or other Build times. The Service Recipient recognizes and agrees that these are estimates for general information purposes only and that actual Build times may vary.

11. Term and Termination

This Agreement will continue in effect until terminated in accordance with this Section 11. For the avoidance of doubt, the following provisions shall survive the termination of this Agreement: 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21.

11.1 Term. The terms of this Agreement shall commence upon the date that its terms are accepted by the Service Recipient though the W4 Games Portal and will terminate automatically upon the; (i) termination of this Agreement as described in this Section 11; or (ii) the termination date contemplated by Services Package contracted by the Service Recipient.

11.2 Termination of Agreement by Service Recipient. The Service Recipient may terminate this Agreement at any time and for any reason by providing written notice to the Service Provider. The termination of this Agreement by the Service Recipient shall not relieve the Service Recipient of its obligation to pay the fees required under the terms of its Services Package.

11.3 Termination of Agreement by Service Provider. The Service Provider may terminate this Agreement (i) in the event of Service Recipient’s breach of this Agreement; or (ii) in the case of a Free Package, if the Service Recipient does not request a Build for period of sixty days.

Within five (5) days of the Service Provider’s receipt of the Service Provider’s termination notice, the Service Recipient will return the Confidential Information in the Service Recipient’s possession.

12. Indemnification

The Service Recipient shall indemnify, defend, and hold harmless (i) the Service Provider; (ii) Service Provider affiliates; and (iii) Service Provider 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 Service Recipient’s breach of this Agreement, information provided by Service Provider, or Service Recipient’s infringement on the rights of a third party or breach of agreement with a third party.

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

13. Representations and Warranties of the Service Recipient

The Service Recipient represents and warrants:

(a) that the person who assented to the terms of this Agreement in the W4 Games Portal is at least 18 years of age and that they have the authority to legally bind the Service Recipient;

(b) they will comply at all times with the terms of this Agreement;

(c) that all information provided by the Service Recipient to the Service Provider during the term of this Agreement is and will be truthful and accurate;

(d) the Service Recipient is not a national, citizen, or resident of, and is not located in, any country or region that is subject to U.S. government sanctions or embargoes, including, without limitation, Cuba, Iran, North Korea, Syria, or the Crimea region of Ukraine, and the Service Recipient is not on any U.S. government list of prohibited or restricted parties, including the U.S. Treasury Department's List of Specially Designated Nationals and Blocked Persons (SDN List) or the U.S. Commerce Department's Denied Persons List or Entity List;

14. Relationship of Parties

Nothing in this Agreement or the Service Recipient’s use of the Services 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.

15. Services and Godot Engine Modifications

The Service Recipient understands that Services is or may, from time to time, be based on, include or be affected by the code base of the Godot Engine, an open-source game engine developed and maintained by the Godot community.

The Service Provider disclaims all responsibility for any issues, malfunctions, or incompatibilities that may arise in connection with the Services due to modifications, updates or alterations made to the Godot Engine (such changes collectively, “Godot Engine Modifications”)

The Service Recipient understands that future versions or releases of the Godot Engine may introduce changes that affect the Services. The Service Provider cannot guarantee that the Services will not be negatively affected following the release of future versions of the Godot Engine.

By using the Services, the Service Recipient acknowledges and agrees that any issues related to the Godot Engine are outside the control of the Service Provider, and that the Service Provider shall not be held responsible for any resulting impacts on the Services.

16. Governing Law

This Agreement is 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 Service provided 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.

17. Entire Agreement

This Agreement constitutes 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 Service Provider and the Service Recipient.

18. 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 the Service Provider, and no single waiver will constitute a continuing or subsequent waiver. This Agreement may not be assigned by Service Recipient. Any contrary assignment shall be null and void.

19. Severability

The Service Provider and the Service Recipient 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.

20. 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.

21. Remedies

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