This Software License Agreement (the “Agreement”) sets forth the terms of the agreement between W4 Games Europe Limited (the “Licensor”) and the licensee of the Software (defined below) (the “Licensee”). 

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  Licensee’s Software Licensing Package (defined below); and (ii) remains in compliance at all times with the terms and conditions of this Agreement..  

“Console Manufacturer” means such console manufacturer that the Licensor  has executed a middleware agreement with from time to time. As of the date of this Agreement, the Licensor has executed middleware agreements with Nintendo and Microsoft. 

“Expedited Bug Handling” means a prioritized process where identified software bugs are assessed, triaged, and resolved with the urgency possible given the Licensor’s available technical resources at the time the bug is identified.

“Godot Engine Modifications” shall have the meaning set forth in Section 19 of this Agreement.

“License” means the software license provided by a Licensor to a Licensee pursuant to the terms of this Agreement.

“License Buy Out Option” means an option of purchasers of enterprise services to retain their license of the Software without paying the annual Licensee Fee in exchange for a single payment.  The price and other terms and conditions with respect to the License Buy Out Option are subject to a separate agreement to be agreed by the Licensor and the Licensee. 

“Licensee” shall mean a person or company who has purchased a Software Licensing Package on the W4 Games Portal.  

“License Fee” means the fee required to be paid by a Licensee for a License in accordance with the terms of its Software Licensing Package.

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

“Premium Support” means an enhanced level of customer service and technical assistance offered beyond the standard support included with the Software purchase. The support targets, but does not guarantee, prioritized response times, access to specialized technical experts, and personalized assistance tailored to the licensee’s specific needs. 

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

“Pro Service” refers to service terms offered by the Licensor for the “Pro” version of the Software Licensing Package, as more fully defined in Section 2.2 of this Agreement.

“Publisher” means a company that publishes video games that have been developed either internally by the publisher or externally by a video game developer. 

“SDK” means Software Development Kit.

“Software” has the meaning set forth in  Section 3.1  of this Agreement. 

“Software Licensing Package” means that package purchased by the Licensee on the W4 Games Portal,  which includes: (i) Starter Service or Pro Service; and (ii) the number of console manufacturer platforms selected.

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

“Starter Service” refers to the terms offered by the Licensor for the “Starter” version of the Software Licensing Package, as more fully described in Section 2.1 of this Agreement.

“W4 Games Portal” means the customer interface maintained by the Company and updated from time to time.

“W4 Games US” means W4 Games US Inc.

1. License of the Software

By purchasing a Software Licensing Package on the W4 Games Portal, the Licensee agrees to be bound by the purchase terms on the W4 Games Portal  and the terms and conditions of this Agreement. 

2. Software Licensing Packages

The Software Licensing Packages include the Starter Service software package and the Pro Service software package.  

2.1 Starter Service

The Starter Service is limited to companies with a maximum size of 30 and whose combined yearly revenues and/or investment received is less than US $300,000. The Starter Service includes the following features:

• (a) provision of source code for the Software;
• (b) ongoing updates to the Software as may be provided by the Licensor from time to time
• (c) documentation and tutorials related to the Software that may be provided by the Licensor from time to time; and
• (d) Standard Bug Handling.

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

• (a)  any type of Premium Support;
• (b) the provision of emergency escalations; or 
• (c) a License Buy Out Option..

For the purposes of calculating company size pursuant to this Agreement, company size includes all employees and contractors working directly for the company entity but excludes temporary workers. 

2.2 Pro Service

The Pro Service includes the following features:

• (a) source code for the Software
• (b) ongoing updates to the Software that may be made by the Licensor from time to time
• (c) documentation and tutorials related to the Software that may be provided by the Licensor from time to time; 
• (d) optional Premium Support; and
• (e) Expedited Bug Handling.

The Pro Package does not include the License Buy Out Option.

The Licensor may, in its sole discretion, provide Pro Service services to Starter Service Licensees.  If it does provide such service, it may be discontinued at any time.

3. Provision of Materials; Account Registration; Authorized Users

3.1  Software. Upon licensing the Software, the Licensor will make available to the Licensee certain software (the “Software”) and materials related to the Software that the Licensor 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. The Software may be provided in binary form or source code form.

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

3.2. Account Registration. In order to receive the  Software, the Licensee must register for an account with the Licensor through the W4 Games Portal.  The Licensee agrees that any information that Licensee provides is, and will be kept at all times, accurate, current and complete. 

Licensee agrees that it will keep its registration current so that the Licensor may send notices, statements, and other information to Licensee. Licensee is responsible for all actions taken through its account. Licensee also agrees to provide any additional information that may be required by the W4 Games Portal. 

3.3. Authorized Users. Only Authorized Users may access and use the Software. Without the agreement of Licensor in writing, the maximum Licensee company size for the Starter and Pro packages is 30 employees. .   

For the avoidance of doubt, the Licensor shall be under no obligation to provide any services in addition to those set forth included in the Licensee’s Software License Package or as otherwise agreed to Licensor and Licensee in writing. 

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

4.  Software Access

The Software shall be provided to Licensee Licensee through a dedicated GitHub repository, a link to which will be provided following the Licensee’s licensing of the Software License Package through the W4 Games Portal.  The Licensor has the right to change the means of delivery of the  Software and the Materials to the Licensee at any time.

5. License Grant and Restrictions on Software Use

Subject to acceptance of and compliance with this Agreement and the Privacy Policy, the Licensor grants to Licensee a personal, limited, non-exclusive, non-transferable, revocable license (the “License”) 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 Licensor and the Licensee in writing, the Licensor does not grant Licensee 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.

Licensee agrees not to change, modify, decompile, reverse engineer or disassemble the source code of any Software unless permitted under this Agreement or otherwise agreed to by the Licensor in writing. Further, Licensee 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. 

The Licensor shall retain full ownership of all Software and the  Materials and all intellectual property in connection with the Software and the Materials, and except as expressly set forth herein, no other rights or licenses are granted or to be implied in favor of Licensee with respect to any additional Licensor intellectual property that may exist at the time of this Agreement or developed in the future.

6. Further Restrictions on Software Use

The Software is provided solely for lawful purposes and uses and Licensee represents that it will not use the  Software to violate the terms and conditions of any agreements between Licensee and third parties, infringe upon the intellectual property rights of any third party or infringe upon the privacy rights of any third party. Further, Licensee 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.

7.  Commercial Terms

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

The Licensor may, from time to time, provide a Licensee with the option to pay the License Fee on a monthly basis. The Licensee understands and agrees that, even if this option is provided, the Licensor will be required to pay for the License Fee for the full duration of the License.

 The Licensee understands that the Licensor may change the commercial terms of any Software Licensing Package in the future.  If the Licensor changes the commercial terms of a Software Licensing Package during the term of the Licensee’s License, the commercial terms of the License will be respected until the end of the Licensee’s License term. 

8.  Software Administration

The Licensor will administer the provision of the Software through one or more specific sites on GitHub  (each, a “ GitHub Site” and collectively, the “ GitHub Sites”).  Licensee will be provided with a link to the relevant GitHub Site as part of the Licensee’s Software provisioning process. Licensees should check the  GitHub Site frequently for any updates and announcements regarding  new  Software features and updates regarding  Materials.

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 Software and any performance information relating to the Software will be deemed Confidential Information of the Licensor 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 Licensee to Third Parties. For the avoidance of doubt, Licensees of the Pro Software Licensing Package  may disclose Confidential Information to its Publishers or other third parties (each, a “Third Party Reviewer” and collectively, the “Third Party Reviewers”) as Licensee deems necessary to test and evaluate the Software or Materials. In the event of such disclosure, Licensee 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  Materials. Any Confidential Information of a Party in the possession of another Party shall be promptly returned by such Party Licensee within 10 (ten) days after this Agreement has been terminated or at the written request of the other Party.

10. Data Collection and Usage

10.1 Data Collection. In order to help the Licensor improve the  Software and the Materials, Licensee acknowledges that the Licensor and its subsidiaries and affiliated entities may collect, use, store, transmit, process, and analyze data from Licensee’s use of the Software and the Materials.

10.2 Privacy Policy. Data collected pursuant to this Section 10 will be treated in accordance with the Privacy Policy and the Consoles Privacy Policy, both of which are incorporated by reference into this Agreement.

11.  Support and Maintenance

During Licensee’s licensing of the Software, the Licensor shall provide such support as is included in the Licensee’s Software Licensing Package. Licensee agrees to abide by any support procedures, rules and/or policies that the Licensor may provide or communicate to Licensee and update from time to time. 

The Licensor 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 Licensee. The provision by the Licensor to Licensee 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 Licensee’s use of the Software and the Licensor’s disclaimer of warranties as set forth in this Agreement.

12. Future Products

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

13. Third Party Software and Information

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

14. Limited Warranty

14.1.  Limited Warranty. The Licensor warrants that the Software will perform substantially in accordance with the documentation provided by the Licensor for the Software license period  ("Warranty Period").

14.2  Exclusive Remedy. In the event of a breach of the above warranty, Licensee's sole and exclusive remedy shall be, at Licensor's option, either (a) repair or correction of the Software, or (b) refund of the license fee paid for the Software. This remedy is conditioned upon Licensee promptly notifying Licensor in writing of such breach within the Warranty Period.

14.3  Exclusions. This warranty does not apply if the Software (a) has been altered, except by Licensor; (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Licensor; or (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident.

14.4  Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, LICENSOR 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.

15. Term and Termination

This Agreement will continue in effect until terminated in accordance with this Section 15. For the avoidance of doubt, the following provisions shall survive the termination of this Agreement: 9, 10, 12- 22, 24 and, 25 .

15.1 Term. The terms of the Software license granted to Licensee under this Agreement shall commence upon Licensee’s use of the  Software and will terminate automatically upon the; (i)  termination of this Agreement as described in this Section 15; or (ii) the termination date contemplated by the purchase of the Software License Package licensed by the Licensee.  

15.2 Termination of Agreement by Licensee. Licensee may terminate this Agreement at any time and for any reason by providing written notice to the Licensor.  The termination of Agreement by the Licensee shall not relieve the Licensor of its obligation to pay the fees required under the terms of its Software License Package.

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

15.3 Termination of Agreement by Licensor. The Licensor may terminate this Agreement in the event of Licensee’s breach of this Agreement. Within five (5) days of Licensee’s receipt of the Licensor’s termination notice, License will cease all of use of and return the Software and all other Confidential Information in Licensee’s possession Licensee may have received.

If there is a change to the Licensee’s conditions during the term of the License, including the size of the company or the annual revenues and/or total investment in the company,  which makes a Licensee ineligible for the License it originally purchased, the Licensor agrees to respect the terms of the License until the end of the License term. 

If Licensor terminates the Agreement, the Licensee agrees, subject to Section 15.4 of this Agreement, that it will immediately discontinue its use of the Software and consent to the Licensor removing any access Licensee may have to the  Software, the Materials and the GitHub Sites.

15.4 Use of Local Copies of Software Following Termination of the Agreement

Upon termination of this Agreement,  Licensees understand that they will lose access to Company Software repositories and that they are not permitted to to the Company console publish or further update any game you have published with our ports.  However, Licensees y may retain a local copy of the Software, as long as they comply with the following conditions:

• (a) the Licensee may retain the local copy, subject to the understanding that the Licensee will not receive any updates or support with respect to the Software; 
• (b) the Licensee agrees that it shall not (i) modify, adapt, or create derivative works based on the Software; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying structure of the Software; (iii) distribute, sell, sublicense, lease, or otherwise transfer the Software to any third party; and (iv) use the Software in any way that competes with the business of the Licensor or infringes upon the intellectual property rights of the Licensor.
• (c) The Licensee acknowledges that all intellectual property rights, including but not limited to copyrights, trademarks, trade secrets, and patents in the Software, remain the exclusive property of the Licensor. The retention of any local copy of the Software does not grant the Licensee any ownership rights or further licenses beyond those explicitly set forth in this Agreement.

16. Indemnification

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

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

17. Representations and Warranties of the Licensee

The Licensee 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 Licensee;
• (b) they will comply at all times with the terms of this Agreement;
• (c) they will not use the Software in any way which violates the terms of the License;
• (d) that all information provided by the Licensee to the Licensor during the term of this Agreement is and will be truthful and accurate;
• (e) that if has purchased the Starter Package, its annual income or total company funding at the time of purchasing the Starter Package is and will remain less than US $300,000;
• (f) that if it has purchased the Starter Service or the Pro Service, the total size of its company is less than 30 persons
• (g) the Licensee 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 Licensee 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;
• (h) the Licensee 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 Licensee 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; 
• (i) the Licensee 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; and 
• (j) the Licensee has obtained the necessary SDK from the Console Manufacturer included in the Licensee’s Software License Package, including any required tools, libraries, documentation, and licenses, to develop and port the Licensee’s video game to the Console Manufacturer’s console
• (k) the Licensee has received all necessary authorizations, approvals and permission from the Console Manufacturer referenced in the Licensee’s Software License Package to access, use, and integrate the SDK in connection with the development and porting of the video game to the Console Manufacturer’s console
• (l) the Licensee agrees to comply with all terms, conditions, and guidelines set forth by the Console Manufacturer referenced in the Licensee’s Software License Package in connection with the use of the SDK and the development of software for the relevant console

With respect to representations (i), (j) and (k), the Licensee hereby authorizes the Licensor to contact the relevant Console Manufacturer to confirm that the Licensee has received all necessary authorizations to allow the Licensee to port a video game to its console.

18. Relationship of Parties

Nothing in this Agreement or the Licensee’s licensing 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.

19. Software and Godot Engine Modifications

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

The Licensor disclaims all responsibility for any issues, malfunctions, or incompatibilities that may arise in the Software due to modifications, updates or alterations made to the Godot Engine either by the Licensee or by any other third party (such changes collectively, “Godot Engine Modifications”) 

The Licensee understands that future versions or releases of the Godot Engine may introduce changes that are incompatible with or alter the behavior of the Software. The Licensor cannot guarantee that the Software will be compatible with or function correctly following the release of future versions of the Godot Engine.

By using the Software, the Licensee acknowledges and agrees that any issues related to the Godot Engine are outside the control of the Licensor, and that the Licensor shall not be held responsible for any resulting impacts on the Software's performance, functionality, or compatibility.

20. 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.

21. 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 Licensee and the Licensor.

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 the Licensor, and no single waiver will constitute a continuing or subsequent waiver. This Agreement may not be assigned by Licensee in whole or in part. Any contrary assignment shall be null and void.

23. Severability

The Licensor and the Licensee 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. 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.

25. Remedies

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

26. Access to  Software and Other Licenses

As part of the provision of the Software, the Licensor may in its sole discretion make  Software, and updates thereto, available to Licensee through a web application or downloadable software application, including the W4 Games Portal or the Licensor’s GitHub repository. From time to time, the Licensor, at its sole option, may also provide the Licensee 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 license agreement(s), Licensee agrees the terms therein also govern Licensee’s use of the Ancillary Tools. If there are no other license agreements accompanying Ancillary Tools, Licensee’s use of the Ancillary Tools is subject to the terms of this Agreement.