The W4 Cloud Early Adopter Software as a Service Agreement (the “Agreement”) sets forth the terms and conditions of an agreement between W4 Games Europe Limited (the “Service Provider”) and the user (the “Service Recipient”) of the Software (defined below).

Agreement Summary

The following is a summary of the Agreement’s provisions. This summary is only provided for convenience and is not meant to complement or replace any portion of the Agreement. If there is any conflict between the summary and the Agreement, the terms of the Agreement shall prevail.

Definitions

“Authorized User” means a person who (i) is permitted to use the Software based on the Service Recipient’s Software Use Package (defined below); (ii) remains in compliance at all times with the Commercial Terms (defined below); and (iii) remains in compliance at all times with the terms and conditions of this Agreement.

“Commercial Terms” means the terms selected by the Service Recipient in the Service Provider Portal (defined below).

“Expedited Bug Handling” refers to a prioritized process where the Service Provider, subject to available resources, seeks to address and resolve identified bugs or issues more quickly than under standard bug handling procedures. The objective of Expedited Bug Handling is to cause critical or high-priority bugs to receive accelerated attention, with faster response times, shorter resolution windows, and immediate escalation to senior developers or specialists. 

“Indie Service” means the Indie service version of the Software, the terms and conditions of which are described in more detail on Annex 1. 

“Premium Support” refers to an enhanced level of customer service and technical assistance offered to Service Recipients beyond the standard support included with the Software purchase. The support targets, but does not guarantee, prioritized response times, access to specialized technical experts, extended service hours, proactive monitoring, and personalized assistance tailored to the Service Recipient’s specific needs. Premium Support is provided subject to the number of persons that request Premium Support and Service Provider resources and may be terminated at any time.

“Privacy Policy” means the privacy policy of the Service Provider as updated from time to time.  A copy of the current version of the Service Provider’s privacy policy is found here.

“Reasonable and Proper Usage” means the use must be reasonable and not exceed the usage levels typically expected of similar users. The Service Provider reserves the right to monitor and limit usage that falls outside of normal operational expectations or could disrupt the performance of the service for other persons who use the Software. 

“Service Fee” has the meaning set forth in Section 3 of this Agreement.

“Service Provider Portal” means the Service Provider’s dedicated sales and services portal.

“Service Recipient” has the meaning set forth in the introductory paragraph in this Agreement.

“Software” means W4 Cloud.

“Standard Bug Handling” means that a bug that is submitted will be prioritized by the Service Provider’s product team, taking into account multiple factors that generally involve criticality, frequency and solution complexity.

“Studio Service” means the Studio Service version of the Software, the terms and conditions of which are described in detail in Annex 1. 

“Software Use Package” means the package selected by the Service Recipient on the Service Provider Portal.

“Video Game” means a video game developed by the Service Recipient that uses the Software.

Section 1. Assenting to Agreement Terms and Conditions

By assenting to the terms and conditions of the Agreement on the Service Provider Portal, the Service Recipient agrees to be bound by the terms and conditions regarding the Software set forth in the Service Provider Portal and this Agreement. 

Section 2.  Software and Software Materials

Upon purchasing a Software Use Package, the Service Provider will make available to the Service Recipient the W4 Cloud software (the “Software”) on the terms and conditions of the Software Use Package as set forth in the Service Provider Portal and this Agreement. 

The Service Recipient recognizes that different Software Use Packages have different terms and conditions. For the avoidance of doubt, a description of the terms and conditions for each Software Use Package is set forth in Annex 1. By assenting to this Agreement, the Service Recipient affirms that they have understood and agree to such terms.

The Service Provider shall also make available to the Service Recipient and materials related to the Software that the Service Provider has developed (such materials collectively, the “Materials”).  For the purpose of this Agreement, the Software includes versions of Software as such Software may be updated from time to time. Materials includes such versions of the Materials as may be updated from time to time.

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

Section 3.  Service Fee 

The Software shall be provided to the Service Recipient  in accordance with the Commercial Terms, including the service fee (the “Service Fee”). Such Commercial Terms are deemed to be included in this Agreement.   

Section 4. Account Registration. 

In order to receive the Software, the Service Recipient must register for an account with the Service Provider through the Service Provider Portal. 

The Service Recipient agrees that any information that Service Recipient provides to the Service Provider is and will be kept at all times accurate, current and complete. Service Recipient agrees that it will keep its registration current so that the Service Provider may send notices, statements, and other information to Service Recipient. Service Recipient is responsible for all actions taken through its account. Service Recipient also agrees to provide any additional information that may be required in connection with the Service Provider Portal.

Section 5. Authorized Users. 

Only Authorized Users may access and use the Software. For the avoidance of doubt, the Service Provider shall be under no obligation to provide any services in addition to those set forth included in the Service Recipient’s Software Use Package or as otherwise agreed to Service Provider and the Service Recipient in writing. 

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

Section 6. Software Access

The Software shall be provided to the Service Recipient through a dedicated GitLab or GitHub repository, a link to which will be provided following the Service Recipient’s contracting of the Software Use Package through the Service Provider Portal. The Service Provider has the right to change the means of delivery of the Software and the Materials to the Service Recipient at any time.

Section 7.  Service Administration

The Service Provider will administer the provision of the Software through one or more specific sites on GitLab or GitHub  (each, a “ GitHub Site” and collectively, the “GitHub Sites”).  The Service Recipient will be provided with a link to the relevant GitHub Site once it is operational. The Service Recipient should check the GitHub Site frequently for any updates and announcements regarding  new  Software features and updates regarding  Materials.

Section 8. Discontinuance of Service

The Service Recipient recognizes that, if the Service Recipient does not pay the Service Fee, does not comply with the Commercial Terms or otherwise violates the terms of this Agreement, the Services may be immediately discontinued.

Section 9. Software Use Right

Subject to acceptance of and compliance with this Agreement and the Privacy Policy, the Service Provider grants to Service Recipient a personal, limited, non-exclusive, non-transferable, revocable right to use the  Software in accordance with this Agreement and all applicable laws. The  Software may be used until such time that the Agreement is terminated in accordance with the terms and conditions of this Agreement.

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

The Service Recipient agrees not to change, modify, decompile, reverse engineer, disassemble or otherwise attempt to derive the source code of any Software unless permitted under this Agreement or otherwise agreed to by the Service Provider in writing. 

Further, Service Recipient agrees that the Software will only be used as permitted under this Agreement and will not be rented, sold, leased, sublicensed, assigned, distributed or otherwise transferred. 

Section 10. Software Use Restrictions

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

Section 11. Ownership of Intellectual Property

The Service Provider shall retain full ownership of all Software and the Materials and all intellectual property in connection with the Software and the Materials, including but not limited to any underlying source code, algorithms, data bases, designs,and documentation, as well as any modifications, enhancements, or derivative works thereof.

Except as expressly set forth herein, no other rights or licenses are granted or to be implied in favor of Service Recipient with respect to any additional Service Provider intellectual property that may exist at the time of this Agreement or developed in the future.

Nothing in this Agreement shall be construed as transferring or assigning any such intellectual property rights to Service Recipient or any third party. The Service Recipient acknowledges that its use of the software is solely as a service in accordance with the terms and conditions of this Agreement and does not grant any ownership or proprietary interest in the software or any related intellectual property.

Section 12. Confidentiality

Section 12.1. General Provisions Regarding 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 Software and any performance information relating to the Software will be deemed Confidential Information of the Service Provider 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 12.1 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 12.1. 

Section 12.2. Exceptions to Confidentiality Obligations

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.

Section 12.3. 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. 

Section 12.4 Return of Materials. Any Confidential Information of a Party in the possession of another Party shall be promptly returned by such Party Service Recipient within 10 (ten) days after this Agreement has been terminated or at the written request of the other Party.

Section 12.5. Responsibility Regarding Third-Party Information

The Service Recipient agrees that it shall be responsible for all information provided to it by third-party users of a Video Game.

Section 13. Data Collection and Usage

Section 13.1 Data Collection. In order to help the Service Provider improve the Software and the Materials, 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 Software and the Materials.

Section 13.2 Privacy Policy. Data collected pursuant to this Section 13 will be treated in accordance with the Privacy Policy, which is incorporated by reference into this Agreement.

Section 14. Support and Maintenance

During the Term of this Agreement, Service Provider shall provide such support as is included in the Service Recipient’s Software Use Package. The Service Recipient agrees to abide by any support procedures, rules and/or policies that the Service Provider may provide or communicate to the 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  Software and the  Materials 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  Software shall be subject to all covenants and conditions of this Agreement, including, but not limited to, the restrictions on the Service Recipient’s use of the Software and the Service Provider’s disclaimer of warranties as set forth in this Agreement.

Section 15. Future Products

The Service Recipient acknowledges the Service Provider has no obligation, express or implied, to develop further versions of the Software.  If the Service Provider decides in its sole discretion to develop new versions of the Software, the Service Recipient acknowledges that such version may have features or functionality that are different from those found in the Software provided under this Agreement.

Section 16. Third Party Software and Information

The Software may contain 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.

Section 17. Software Warning

The Service Recipient acknowledges that the Software is still in a development stage. Accordingly, the 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 Service Provider strongly encourages the Service Recipient to take all reasonable precautions regarding the Software and back-up all data and information on the Service Recipient’s computer, devices, and accounts prior to using the Software. The Software is not intended for use, and should not be used, with business-critical systems.

Section 18.  No Warranty

The Software is under development and may be designated as beta, pre-release, untested, early access program, or not fully tested versions. The Service Recipient acknowledges and agrees that the Software is still in the development stage and acknowledges that the Service Provider makes no warranties or representations regarding the Software or its use.  Additionally, the Service Recipient acknowledges that the Software may be incomplete and may contain errors or inaccuracies that could cause failures, corruption and/or loss of data or information.       

The Service Recipient acknowledges and agrees that, to the extent permitted by applicable law, all use of the Software by the Service Recipient is at Service Participant’s sole risk. The Service Provider is providing the Software and the  Materials to the Service Recipient 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. Service Recipient acknowledges that the Service Provider  has not promised or guaranteed to Service Recipient that such Software will be announced or made available to anyone in the future, and that the Service Provider has no express or implied obligation to the Service Recipient to announce or introduce the Software or any similar or compatible product, or to continue to offer access to the Software in the future.

Section 19. Term and Termination

This Agreement will continue in effect until terminated in accordance with this Section 19. For the avoidance of doubt, the following provisions shall survive the termination of this Agreement: 12, 13, 15- 24, 27, 28, 30, 31. 

Section 19.1. Term. The terms of the right to use the Software granted to the Service Recipient under this Agreement shall commence upon Service Recipient’s use of the  Software and will terminate automatically upon the; (ii) the termination of this Agreement as described in this Section 19; or (iii) the date contemplated by the purchase of the Software Use Package purchased by the Service Recipient.  

Section 19.2. 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. However, the Service Recipient agrees that if it does terminate the Agreement it will promptly return all materials regarding the Software and the Materials to the Service Provider. If Service Recipient terminates the Agreement it also agrees that it will immediately discontinue its use of the  Software and consent to the Service Provider removing any access the Service Recipient  may have to the  Software, the Materials and the GitHub Sites.

Section 19.3. Termination of Agreement by Service Provider. The Service Provider  may terminate this Agreement in the event of the Service Recipient’s breach of this Agreement. Within five (5) days of Service Recipient’s receipt of the Service Provider’s termination notice, the Service Recipient  will cease all use of and return the  Software  and all other Confidential Information in Service Recipient’s possession that the Service Recipient may have received. 

Section 20.1. Indemnification

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 Recipient, 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. Service Recipient’s indemnification obligations will survive the termination of this Agreement.

Section 21. Disclaimer of Liability

To the extent not prohibited by applicable law, Service Recipient assumes all risks and all costs associated with testing, installation, or use of the  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  Software on Service Recipient’s computer, devices and/or peripherals, and any damage to any equipment, software, information or data, and in no event will the Service Provider 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 Software on Service Recipient’s computer, devices and/or any peripherals connected thereto, and/or from any other Confidential Information, and/or Service Provider’s performance or failure to perform under this Agreement, even if the Service Provider has been advised or is aware of the possibility of such damages. In no event shall the Service Provider’s total liability to Service Recipient 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.

Section 22. Relationship of Parties

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

Section 23.  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 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.

Section 24. Representations of Service Recipient

The Service Recipient represents and warrants:

• that the person who assented to the terms of this Agreement in the Service Provider Portal is at least 18 years of age and that they have the authority to legally bind the Service Recipient;
• they will comply at all times with the terms of this Agreement:
• they will not use the Software in any way which violates the terms of this Agreement;
• 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;
• 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;
• the Service Recipient agrees to comply fully with all relevant export control and trade sanctions laws and regulations of the United States and any other applicable jurisdictions. The Service Recipient shall not, directly or indirectly, export, re-export, transfer, or release the Software, or any part thereof, to any destination, person, or entity restricted or prohibited by U.S. or applicable international law; and
• the Service Recipient warrants that the Software will not be used for any purposes prohibited by U.S. law, including, but not limited to, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.

Section 25. Licensing of W4 Consoles

It is recognized that a Service Recipient may license the W4 Consoles product. Any such licensing of W4 Consoles shall be governed by a separate agreement entered into by the Parties.

Section 26. Contribution of Open Source Technology

It is recognized that some Service Recipients may, from time to time, contribute code to the Software on any open source basis.  Any such contribution shall be governed by a separate agreement entered into by the Parties.

Section 27. 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 Recipient and the Service Provider.

Section 28. 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 Service Provider, and no single waiver will constitute a continuing or subsequent waiver. This Agreement may not be assigned by Service Recipient in whole or in part. Any contrary assignment shall be null and void.

Section 29. 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.

Section 30. 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.

Section 31.  Remedies

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 Provider shall be entitled to injunctive relief against the threatened breach of this Agreement by the Service Recipient without the necessity of proving actual damages in such court as the Service Provider may find convenient in order to enforce its rights.

Section 32.  Access to Software and Other Licenses

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

All use of the Ancillary Tools  shall be in accordance with the terms and conditions of this Agreement. If the Ancillary Tools are accompanied by a separate agreement(s), Service Recipient agrees the terms therein also govern Service Recipient’s use of the Ancillary Tools.

Annex 1 

Software Use Package 

Terms and Conditions

*CCU: Calculated as concurrent users in the matchmaker queue, with a 30 seconds “maximum time to match” (time from joining the queue to being in the lobby with the matched players).