This W4 Games Early Access Program Agreement (the “Agreement”) is entered into by W4 Games Europe Limited (the “Company”) and the licensee of the Software (defined below) of the Company (the “EAP Participant”). This Agreement contains important provisions that set forth your rights and obligations and you should read it carefully.  

By electing to participate in the Company’s EAP (defined below) through the Company portal, you represent that: (i)  you are at least 18 years of age; (ii)  you have the authority to legally bind EAP Participant; (iii)  you have the authority to participate in the EAP; and (iv) you agree to be bound by the terms and conditions in the Company portal and set forth in this Agreement. 

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.

1. Purpose of EAP Program 

The purpose of the W4 Games Early Access Program (the “EAP”) is for the Company to test and improve products and services that the Company is developing or may develop in the future and accelerate the product and service development process.  

As part of the EAP, the Company intends, but is under no obligation, to make available to the EAP Participant the Developer Version of W4 Cloud certain software indicated by the EAP Participant on the Company portal (the “EAP Software”) and materials related to the EAP Software that the Company in its sole discretion may determine that the Company is developing or has developed (such materials collectively, the “EAP Materials”).  The EAP Software and the EAP Materials are being provided to the EAP Participant for the sole and limited purpose of soliciting feedback on the quality, usefulness, functionality, operability and usability of the EAP Software and the usefulness of the EAP Materials.  For the purpose of this Agreement, EAP Software includes versions of software as such software may be updated from time to time. EAP Materials includes such versions of the EAP Materials as may be updated from time to time.  

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

2. EAP Software Access

If the Company provides EAP Software to EAP Participant, it is the intention of the Company to provide such software through a dedicated GitHub repository, a link to which will be provided following the execution of this Agreement.  The Company has the right to change the means of delivery of the EAP Software and the EAP Materials to EAP Participant at any time.

3. License Grant and Restrictions on EAP Software Use 

Subject to acceptance of and compliance with this Agreement and the Company Privacy Policy and any special privacy provisions that may be set forth in this Agreement,  the Company grants EAP Participant a personal, limited, non-exclusive, non-transferable, revocable license (the “EAP License”) to use the EAP Software. The EAP Software shall be used solely for testing and evaluation purposes in connection with the EAP and may be used until such time that the EAP or 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 Company and the EAP Participant in writing, the EAP License does not grant EAP Participant the right to use the EAP Software for any other purpose, or to disclose, reproduce, distribute, transfer, modify the EAP Software or create derivative works based on it for any purpose. 

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

4. Further Restrictions on EAP Software Use

The EAP Software is provided solely for lawful purposes and uses and EAP Participant represents that it will not use the EAP Software to violate the terms and conditions of any agreements between EAP 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, EAP Participant is responsible for ensuring that its use of the EAP Software is in accordance with this Agreement and any applicable laws, statutes, ordinances, regulations and rules. 

5. EAP License Cost

The EAP Software shall be provided to EAP Participant free of charge.  The Company, however, reserves the right to charge for participation in this EAP or other beta testing programs the Company may offer in the future.  The provision of the EAP Software to EAP Participants free of charge does not give the EAP Participant the right to receive a commercial version of the EAP Software, if such commercial version is produced, free of charge. The Company shall have the right to charge such amounts, and impose such commercial terms, with respect to commercial versions of the EAP Software as it in its sole discretion may determine.

6. EAP Program Administration

The Company plans, but is not under an obligation, to create one or more specific site on GitHub to facilitate the EAP (each, an “EAP GitHub Site” and collectively, the “EAP GitHub Sites”).  Once an EAP GitHub Site is created, it will be used for providing information about the EAP.  EAP Participants will be provided with a link to the relevant EAP GitHub Site once it is operational. EAP Participants should check the EAP GitHub Site frequently for any updates and announcements regarding the EAP, new EAP Software features and updates regarding EAP Materials. 

7. EAP Software Feedback 

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

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

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

• E-mail;
• 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 your participation in the EAP Program, EAP Participant agrees to provide diligent feedback on the EAP Software on questionnaires that will be sent to EAP Participant throughout the EAP.  

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

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

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

8. Confidential Information; Non-Disclosure 

8.1 Confidential Information Defined. EAP Participant agrees that the EAP Software, EAP Materials, discussions regarding the EAP Software and EAP Materials and other information the Company may disclose to the EAP Participant from time to time (such information collectively, the “Confidential Information”) shall be considered and treated by EAP Participant as confidential. EAP Participant understands that the Confidential Information is sensitive and its disclosure could cause the Company substantial harm. 

For the avoidance of doubt, Confidential Information shall not be deemed to include information  which (i) the EAP Participant proves was in its possession prior to the time the Company disclosed such information to the EAP Participant; (ii) became public knowledge for a reason other than the result of improper action by the  EAP Participant; (iii) the EAP Participant can prove was independently developed by the EAP Participant  without the use of any Confidential Information; (iv) was lawfully  obtained from a third party who had the right to transfer or disclose it to EAP Participant without restriction; or (v) the Company has authorized in writing may be disclosed.  

8.2 Nondisclosure. EAP Participant agrees not to use any Confidential Information disclosed to it by the Company for any purpose other than to test and evaluate the EAP Software. 

The EAP Participant agrees that it will protect the Confidential Information. The EAP Participant agrees that it will take all reasonable measures to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information.  

Such measures shall include the highest degree of care that the EAP Participant utilizes to protect its own Confidential Information. The EAP Participant agrees to immediately notify the Company in writing of any misuse or misappropriation of Confidential Information which the EAP Participant becomes aware of.  

EAP Participant acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm to the Company an agrees that the Company will have the right to seek immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have. 

8.3 Ownership of Confidential Information. EAP Participant agrees that all Confidential Information shall remain the property of the Company, and that the Company may use such Confidential Information for any purpose without obligation to EAP Participant. Nothing contained herein shall be construed as granting or implying any transfer of rights to EAP Participant in the Confidential Information, or any patents or other intellectual property protecting or relating to the Confidential Information. 

8.4 Return of EAP Materials. Any materials or documents that have been furnished by the Company to EAP Participant in connection with the EAP Program, including copies of such documentation, will be promptly returned by the EAP Participant within 10 (ten) days after this Agreement has been terminated or at the written request of the Company. 

8.5. Restriction on Use of Confidential Information. EAP Participant agrees to use the Confidential Information solely for the permitted uses as set forth in this Agreement.  

8.6. Disclosure of Bug Reports on GitHub

EAP Participant recognizes that, as part of the process of providing Feedback, it will submit bug reports regarding the EAP Software to a private repository created by the Company and located on GitHub (the “Private Repository”).  EAP Participant understands and accepts that other EAP Participants will also submit bug reports to the Private Repository and that EAP Participant’s bug reports will be visible to other EAP Participants.  

9. EAP Software Warning 

You acknowledge that the EAP Software is an early-stage software application currently in the development stage.  Accordingly, the EAP 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 you to take all reasonable precaution regarding the EAP Software and back-up all data and information on your computer, devices, and accounts prior to your participation in the EAP Program. The EAP Software is not intended for use, and should not be used, with business-critical systems. 

10. Data Collection and Usage 

10.1 Data Collection. In order to help the Company improve the EAP Software and the EAP Materials, you acknowledge that the Company and its subsidiaries and affiliated entities may collect, use, store, transmit, process, and analyze data from your participation in the EAP and use of the EAP Software and the EAP Materials. 

10.2 Privacy Policy. Data collected pursuant to this Section 10 will be treated in accordance with the Company’s Privacy Policy, which is incorporated by reference into this Agreement.  

11. No Obligations of Support and Maintenance 

During your participation in the EAP, the Company shall not be obligated to provide any maintenance, technical, or other support in connection with the EAP Software. In its sole discretion, the Company may provide support at such time and in such form as the Company may determine to EAP Participant. If support is provided, EAP Participant agrees to abide by any support procedures, rules and/or policies that the Company may provide or communicate to EAP Participant and update from time to time.  Any support and maintenance provided by the Company to EAP Participant may be terminated at any time.

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

12. Future Products 

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

13. Third Party Software and Information 

The EAP 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. 

14. No Warranty 

The EAP Software is under development and may be designated as beta, pre-release, untested, or not fully tested versions. You acknowledge and agree the EAP Software is in an early stage of development and acknowledge that the Company makes no warranties or representations regarding the EAP Software or its use.  Additionally, you acknowledge that EAP Software may be incomplete and may contain errors or inaccuracies that could cause failures, corruption and/or loss of data or information. You expressly acknowledge and agree that, to the extent permitted by applicable law, all use of the EAP Software by you is at your sole risk.  The Company is providing the EAP Software and the EAP Materials, to you 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. You acknowledge that the Company has not promised or guaranteed to you that such EAP Software will be announced or made available to anyone in the future, and that the Company has no express or implied obligation to you to announce or introduce the EAP Software or any similar or compatible product, or to continue to offer access to the EAP Software in the future. 

15. Term and Termination 

This Agreement will continue in effect until terminated in accordance with this Section 15. Following termination of this Agreement, the restrictions of Sections 8-22, 24, 25 and 28 will continue to remain in force and effect.  

15.1 Term. The terms of the EAP Software license granted to you under Section 3 of this Agreement shall commence upon your use of the EAP Software and will terminate automatically  upon the earlier of (i) the commercial release of the EAP Software; (ii) the termination of this Agreement as described in this Section 15; or (iii) the date specified in a separate license accompanying the EAP Software, if any. 

15.2 Termination of Agreement by EAP Participant You may terminate this Agreement at any time and for any reason by providing written notice to the Company.  However, you agree that if you do terminate the Agreement you will promptly return all materials regarding the EAP, the EAP Software and the EAP Materials to the Company.  If you terminate the Agreement you also agree that you will immediately discontinue your use of the EAP Software and consent to the Company removing any access you may have to the EAP Software, the EAP Materials and the EAP GitHub Sites. 

15.3 Termination of Agreement by Company.  The Company may terminate this Agreement at any time, with or without cause, immediately upon written notice to you. Within five (5) days of your receipt of the Company’s termination notice, you will cease all use of and l return the EAP Software, the EAP Materials and all other Confidential Information you may have received during participation in the EAP.  

16. Indemnification 

You 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 EAP Participant’s breach of this Agreement, information provided by EAP Participant,  or EAP Participant’s infringement on the rights of a third party or breach of agreement with a third party. 

EAP 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 you under this Agreement or at law. Your indemnification obligations will survive the termination of this Agreement. 

17. DISCLAIMER OF LIABILITY 

To the extent not prohibited by applicable law, you assume all risks and all costs associated with testing, installation, or use of the EAP 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 EAP Software on your computer, devices and/or peripherals, and any damage to any equipment, software, information or data, and in no event will 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 EAP Software on your 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 you 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. 

18.  EAP Participant Representations

EAP Participant represents that it is not a national, citizen, or resident of, and is not located in, any country or region that is subject to U.S. or government sanctions or embargoes, including, without limitation, Cuba, Iran, North Korea, Syria, or the Crimea region of Ukraine, and the EAP Participant 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 EAP Participant warrants that it will comply fully with all relevant export control and trade sanctions laws and regulations of the United States and any other applicable jurisdictions. The EAP Participant shall not, directly or indirectly, export, re-export, transfer, or release the EAP Software, or any part thereof, to any destination, person, or entity restricted or prohibited by U.S. or applicable international law.

The EAP Participant warrants that the EAP 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.

19. Relationship of Parties 

Nothing in this Agreement or participation by EAP Participant in the EAP 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 

This Agreement is governed by and construed in accordance with the laws of the State of New York 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 the State of New York. 

Any legal suit, action, or proceeding arising out of this Agreement or the licenses granted hereunder may be instituted in the courts of the State of New York 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 EAP 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 you in whole or in part. Any contrary assignment shall be null and void. 

23. Severability 

The Company and the EAP 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. 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 

EAP 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 EAP Participant without the necessity of proving actual damages in such court as the Company may find convenient in order to enforce its rights. 

26. Modification of Agreement

At all times, the Company reserves the right to modify the terms, conditions, and policies of the EAP from time to time and revoke your participation in the EAP. If the Company makes changes to the terms and conditions herein, the Company will notify you and provide EAP Participant with the revised terms and conditions to EAP Participant and EAP Participant’s continued participation in the EAP will be conditioned on the agreement thereof. 

27.  Access to EAP Software and Other Licenses

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

All use of the Ancillary Tools and EAP 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), you agree the terms therein also govern your use of the Ancillary Tools. If there are no other license agreements accompanying Ancillary Tools, your use of the Ancillary Tools is subject to the terms of this Agreement. 

28. Acknowledgments Regarding the Developer Version of the Software

The EAP Participant affirms and recognizes that:

• (a) maximum concurrent number of users is 20.  This is 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)
• (b) file storage is not offered;
• (c) 50 GB of bandwith is included;
• (d) game servers are not included;
• (e) the Company will make reasonable efforts to provide database quotas , but does not guarantee that these quotas will always be available or met under all circumstances. Any provision of database quotas depends on factors such as server load, technical issues, or other users' demands. Further, database quotas are shared among multiple users or instances hosted on the same infrastructure. As a result, the actual availability of resources may vary depending on usage patterns of other users sharing the same resources.
• (f) W4 Console support is provided if the EAP Participant separately contracts W4 Consoles pursuant to the terms of the agreement regarding the W4 Consoles product.
• (g) does not include the ability to use custom Domain Name System (DNS) servers that are different from the default ones provided by the Company.
• (h) includes Standard Bug Handling. For the purposes of this Agreement, “Standard Bug Handling” means that a bug that is submitted will be prioritized by the Company’s product team, taking into account multiple factors that generally involve criticality, frequency and solution complexity.
• (i) does not include premium support. 
• (j) uptime is provided on a best efforts basis.

29. Additional  Privacy Protections 

Additional privacy protections for W4 Cloud are set forth on  Annex 1 to this Agreement.

Annex 1 to Privacy Policy

Special Privacy Considerations Regarding W4 Cloud

All users of the W4 Cloud service (“W4 Cloud”) should note that, as W4 Cloud is still in development, information used in connection with W4 Cloud may not be secure as information that will be stored in connection with fully developed products that have been issued for commercial release. Further, all users of W4 Cloud should only use W4 Cloud as part of their development process and should not publish the game.

All users of W4 Cloud use W4 Cloud at their own risk and the Company shall not be liable for breaches of information that occur during the development process. If potential or actual users have questions about data protection issues through the beta process of W4 Cloud, they should contact the W4 Games Data Protection Officer at privacy@w4games.com.

As W4 Cloud is based on the interaction of multiple parties, including game developers, game players, W4 Games Limited and third parties, this Annex is designed to make clear how information is collected, stored and protected. W4 Games shall not be liable for breaches of data of third parties.