END-USER LICENSE AGREEMENT for ChromaGun, Can't Drive This and Escape the Loop
Last Updated: 17.04.2020
1. END-USER LICENSE AGREEMENT
- 1.1. This End-User License Agreement (this "Agreement") is made between Benjamin Lochmann New Media GmbH (“Licensor”, “we,” “us,” or “our”) and you (“you,” or “your”) as of the date you download and install one or more of our accompanying Software. The Agreement may be periodically updated and the current version will be posted at https://pixel-maniacs.com/eulagames (the "Website"). Your continued use of the Software after a revised Agreement has been posted constitutes your acceptance of the revised Agreement’s terms.
- 1.2. THE "SOFTWARE" INCLUDES THE VIDEO GAME CHROMAGUN, CAN’T DRIVE THIS OR ESCAPE THE LOOP (THIS AGREEMENT IS APPLICABLE TO ONE OR MORE OF SUCH THAT YOU ACQUIRE AND OR ACCESS) AND ALL SOFTWARE AND MATERIAL INCLUDED THEREIN AND IN THIS AGREEMENT, ANY ACCOMPANYING DATA FILES, CODE, GRAPHICAL, AUDIO OR TEXTUAL ASSETS, THE ACCOMPANYING MANUAL(S), PACKAGING, AND OTHER WRITTEN FILES, ELECTRONIC OR ONLINE MATERIALS OR DOCUMENTATION, ANY AND ALL COPIES OF SUCH SOFTWARE AND ITS MATERIALS, AND UPDATES, PATCHES AND UPGRADES TO THE SOFTWARE.
- 1.4. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO OPEN, DOWNLOAD, INSTALL, COPY, OR USE THE SOFTWARE.
- 2.1. Subject to your strict compliance with this Agreement and its terms and conditions, Licensor hereby grants you a nonexclusive, non-transferable, limited, and revocable right and license to install and use one copy of the Software for your personal, non-commercial gameplay on a single game platform (e.g. personal computer, mobile device, or gaming console), unless otherwise expressly specified in the Software documentation (“License”). The term of your License under this Agreement shall commence on the date that you install or otherwise use the Software and ends on the earlier date of either your disposal of the Software or the termination of this Agreement.
- 2.2. The Software is licensed, not sold, to you, and you hereby acknowledge that no title or ownership in the Software is being transferred or assigned and this Agreement should not be construed as a sale of any rights in the Software. Licensor retains all right, title, and interest to the Software, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sounds effects, musical works, and moral rights. Nothing in this Agreement shall be construed as a license or transfer of any rights whatsoever in the Software except as explicitly stated herein
- 2.3. The Software is protected by German copyright and trademark law and applicable laws and treaties throughout the world. You may not reproduce, distribute, perform or display publicly, transmit, or create derivative works of the Software in any manner or medium, in whole or in part, without prior written consent from Licensor, except as otherwise specifically provided by this Agreement. Your violation of our rights in the Software, and/ or of any third party’s rights to their respective licensed materials, will be a willful violation of the copyright laws and may subject you to civil and criminal penalties in the U.S. or such third party’s local countries..
3. LICENSE CONDITIONS
- 3.1. The License is subject to your compliance with the following explicit conditions and your violation of any such conditions constitutes a breach of this Agreement and is beyond the scope of the License, except as otherwise specifically provided by this Agreement. Specifically, you agree NOT to:
- (a) commercially exploit, in whole or in part, the Software, unless expressly permitted hereunder;
- (b) distribute, lease, license, sell, rent, convert into convertible currency, or otherwise transfer or assign the Software, or any copies of the Software, including but not limited to virtual goods or virtual currency without the express prior written consent of Licensor or as expressly set forth in this Agreement;
- (c) make a copy of the Software or any part thereof (other than as set forth herein);
- (d) make a copy of the Software available on a network for use or download by multiple users;
- (e) except as otherwise specifically provided by the Software or this Agreement, use or install the Software (or permit others to do same) on a network, for online use, or on more than one computer or gaming unit at the same time;
- (f) copy the Software onto a hard drive or other storage device in order to bypass the requirement to run the Software on specific validly licensed hardware (this prohibition does not apply to copies in whole or in part that may be made by the Software itself during installation in order to run more efficiently);
- (g) use or copy the Software at a computer gaming center, conference, convention, or any other location-based site for anything other than personal use; provided, that Licensor may offer you a separate license agreement to make the Software available for commercial use;
- (h) reverse engineer, decompile, disassemble, display, perform, prepare derivative works based on, or otherwise modify the Software, in whole or in part;
- (i) remove, modify, or obscure any proprietary notices, marks, or labels (including copyright, trademark notices, or trade names) contained on or within the Software;
- (j) use any trademark or trade name of Licensor or its affiliates in a way that is likely or intended to imply the permission or endorsement of Licensor, or cause confusion about the owner or authorized user of such marks, names or logos;
- (k) restrict or inhibit any other user from using and enjoying any online features of the Software;
- (l) cheat or utilize any unauthorized robot, spider, or other program in connection with any online features of the Software;
- (m) violate any terms, policies, licenses, or code of conduct for any online features of the Software; or
- (n) transport, export, or re-export (directly or indirectly) into any country forbidden to receive the Software by any German, EU, or US export laws or regulations or German, EU, or U.S. economic sanctions or otherwise violate any laws or regulations, or the laws of the country in which the Software was obtained, which may be amended from time to time.
- 3.2. Updates and Patches. We may provide updates, patches and other modifications to the Software that must be installed for the user to continue to play the game properly or at all. We may update, patch or modify the Software remotely and access the Software residing on your machine for such purpose, and you hereby grant to us the right to deploy and apply such patches, updates and modifications.
- 3.3. User Feedback. In consideration of granting you the License, we may solicit or you may provide us with feedback, suggestions, and bug reports, and other information from you regarding your use of the Software through channels as provided by us to you, such as, without limitation, Twitter, Facebook, Instagram or email communication (“User Feedback”), and we may collect technical information about your use of the Software to help us improve the Software. If you provide any User Feedback, you agree we may make full use of User Feedback, and any rights associated therewith, be they protectable under any form of intellectual property or not. You grant us a worldwide, perpetual, sublicensable (through multiple tiers), nonexclusive, irrevocable, fully-paid license to use, sell, modify, prepare derivative works of, and otherwise exploit User Feedback.
- 3.4. Let’s Play Videos and Fan Art. Subject to your strict compliance with this Agreement and its terms and conditions, Licensor hereby grants you a nonexclusive, non-transferable, limited, and revocable right and license to reproduce and create derivative works of the Software’s art work, sound and game play, and any other parts of the Software necessary, to publicly display and transmit such reproductions and derivative works for non-commercial use, including to live stream game play, create so called “let’s play videos” or create fan art of the Software (“Derivatives License”). At no time shall this Derivatives License be construed as to grant or license you the right to commercially exploit the Software (including, without limitation, monetizing your videos of the game play through advertisements), without our approval. For the avoidance of doubt, this Derivatives License does not extend to the Software’s underlying code and data files. You acknowledge that we may, at any time during or after the term of this Agreement, revoke your Derivatives License.
4. ACCESS TO SOFTWARE; SPECIAL FEATURES
- 4.1. To exercise your License, you may be required to have and maintain a valid and active membership with a third-party service, such as an account with a third party online service, gaming platform or social network ("Third-Party Account"), or create a Software-specific user account with Licensor or a Licensor affiliate ("User Account"). Your User Account log-in may be associated with a Third-Party Account and you are responsible for all use and the security of your User Accounts and any Third-Party Accounts that you use to access and use the Software.
- 4.2. Software download, redemption of a unique serial code, registration of the Software, membership in a third-party service and/or membership in a Licensor service (including acceptance of related terms and policies) may be required to activate the Software, access digital copies of the Software, or access certain un-lockable, downloadable, online, or other special content, services, and/or functions of the Software (collectively, "Special Features"). Access to Special Features is limited to a single User Account per serial code and access to Special Features cannot be transferred, sold, leased, licensed, rented, converted into convertible virtual currency, or re-registered by another user unless otherwise expressly specified. The provisions of this paragraph supersede any other term in this Agreement.
- 4.3. The Software may require an internet connection to access internet-based features, authenticate the Software, or perform other functions. You agree that some or all features of the Software may be inaccessible in the absence of an internet connection. Further, Licensor makes no warranty whatsoever that servers or internet services required to enable some or all features of the Software will be available at any specific time.
5. TECHNICAL PROTECTIONS
- 5.1. The Software may include measures to control access to the Software, control access to certain features or content, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this Agreement. Such measures may include incorporating license management, product activation, and other security technology in the Software and monitoring usage, including, but not limited to, time, date, access, or other controls, counters, serial numbers, and/or other security devices designed to prevent the unauthorized access, use, and copying of the Software, or any portions or components thereof, including any violations of this Agreement. Licensor reserves the right to monitor the use of the Software at any time. You may not interfere with such access control measures or attempt to disable or circumvent such security features, and if you do, the Software may not function properly. If the Software permits access to Special Features, only one copy of the Software may access those Special Features at one time. Additional terms and registration may be required to access online services and to download Software updates and patches. Only Software subject to a valid license can be used to access online services, including downloading updates and patches. Except as otherwise prohibited by applicable law, Licensor may limit, suspend, or terminate the License granted hereunder and access to the Software, including, but not limited to, any related services and products, at any time without notice for any reason whatsoever.
6. SOFTWARE STORE TERMS
- 6.1. You may have purchased the License to the Software through a third party platform or online platform or store (each referred to herein as a “Software Store”), including, without limitation Steam, PSN, the Xbox store, the Apple App Store and the Google Play marketplace. This Agreement and the provision of the Software through any Software Store is subject to the additional terms and conditions set forth on or in, or required by the applicable Software Store. All such applicable terms and conditions are incorporated herein by this reference. Licensor is not responsible or liable to you for any credit card or bank-related charges or other charges or fees related to your purchase transactions within the Software or through a Software Store. All such transactions are administered by the Software Store, not Licensor. Licensor expressly disclaims any liability for any such transactions, and you agree that your sole remedy regarding all transactions is from or through such Software Store.
- 6.2. This Agreement is solely between you and Licensor, and not with any Software Store. You acknowledge that the Software Store has no obligation to furnish any maintenance or support services to you in connection with the Software. Except for the foregoing, to the maximum extent permitted by applicable law, the Software Store will have no other warranty obligation whatsoever with respect to the Software. Any claim in connection with the Software related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation or intellectual property infringement are governed by this Agreement, and the Software Store is not responsible for such claims. You must comply with the Software Store Terms of Service and any other Software Store applicable rules or policies. The License is a non-transferable license to use the Software only on an applicable device that you own or control. You represent that you are not located in any U.S.-embargoed countries or other geographical areas or on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's list or Entity List. The Software Store is a third-party beneficiary to this Agreement and may enforce this Agreement against you.
7. INFORMATION COLLECTION & USAGE
- 8.1. LIMITED WARRANTY: Licensor makes no warranty against interference with your enjoyment of the Software; that the Software will meet your requirements; that operation of the Software will be uninterrupted or error-free (this includes any interruption or malfunction on the part of third party services included and or used in the Software); or that the Software will be compatible with third party software or hardware or that any errors in the Software will be corrected. No oral or written advice provided by Licensor or any authorized representative shall create a warranty. Because some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on the applicable statutory rights of a consumer, some or all of the above exclusions and limitations may not apply to you.
- 8.2. Except as set forth above, this warranty is in lieu of all other warranties, whether oral or written, express or implied, including any other warranty of merchantability, fitness for a particular purpose, or non-infringement, and no other representations or warranties of any kind shall be binding on Licensor.
- 9.1. You agree to indemnify, defend, and hold Licensor, its partners, licensors, affiliates, contractors, officers, directors, employees, and agents harmless from all damages, losses, and expenses arising directly or indirectly from your acts and omissions to act in using the Software pursuant to the terms of the Agreement.
- 9.2. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL LICENSOR BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, USE, OR MALFUNCTION OF THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, PROPERTY DAMAGE, OR LOST PROFITS OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY, OR OTHERWISE, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR'S LIABILITY FOR ALL DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED THE ACTUAL PRICE PAID BY YOU FOR USE OF THE SOFTWARE.
- 9.3. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LICENSOR'S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS HEREUNDER BY YOU, REGARDLESS OF THE FORM OF ACTION, EVER EXCEED THE LESSER OF THE FEES PAID BY YOU TO LICENSOR FOR THE PRECEDING TWELVE (12) MONTH PERIOD FOR ANYTHING RELATING TO THE SOFTWARE OR US$200.
- 9.4. BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS AND/OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, DEATH, OR PERSONAL INJURY RESULTING FROM NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT, THESE LIMITATIONS AND/OR EXCLUSIONS AND ANY EXCLUSION OR LIMITATION OTHERWISE RESULTING FROM THE ABOVE INDEMNITY MAY NOT APPLY TO YOU. THIS WARRANTY SHALL NOT BE APPLICABLE SOLELY TO THE EXTENT THAT ANY SPECIFIC PROVISION OF THIS WARRANTY IS PROHIBITED BY ANY FEDERAL, STATE, OR MUNICIPAL LAW, WHICH CANNOT BE PRE-EMPTED. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. IN THE EVENT THAT SUBSECTION 9.4 IS APPLICABLE AND ANY OTHER SUBSECTION UNDER SECTION 9 IS NOT APPLICABLE, OUR LIABILITY UNDER SECTION 9 IS LIMITED TO GROSS NEGLIGENCE.
- 9.5. WE DO NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM OUR NETWORK AND OTHER PORTIONS OF THE INTERNET, WIRELESS NETWORKS, OR OTHER THIRD-PARTY NETWORKS. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF THE INTERNET AND WIRELESS SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES MAY IMPAIR OR DISRUPT YOUR CONNECTIONS TO THE INTERNET, WIRELESS SERVICES, OR PORTIONS THEREOF. WE CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, WE DISCLAIM ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THIRD-PARTY ACTIONS OR INACTIONS THAT IMPAIR OR DISRUPT YOUR CONNECTIONS TO THE INTERNET, WIRELESS SERVICES, OR PORTIONS THEREOF OR THE USE OF THE SOFTWARE AND RELATED SERVICES AND PRODUCTS.
- 10.1. This Agreement is effective until terminated by you or by the Licensor. This Agreement automatically terminates (a) when Licensor ceases to operate the Software or the Software servers (for games exclusively operated online), (b) if Licensor determines or believes your use of the Software involves or may involve fraud or money laundering or any other illicit activity, (c) upon your failure to comply with any term or condition in this Agreement, including, but not limited to, the (i) License conditions or (ii) the Terms of such Software Store required to access the Software. You may terminate this Agreement at any time by (x) requesting Licensor to terminate and delete your User Account that is used to access or use the Software using the method set forth in the Terms of Service (if applicable) or (y) destroying and/or deleting any and all copies of all Software in your possession, custody, or control.
- 10.2. Deleting the Software from your device or game platform may not delete the information associated with your User Account. However, except as otherwise prohibited by applicable law, if your User Account is deleted upon termination of this Agreement for any reason, all Virtual Currency and/or In-App Purchases associated with your User Account will be deleted, and you will no longer be available for use the Software or any Virtual Currency or In-App Purchases associated with your User Account. If this Agreement terminates due to your violation of this Agreement, Licensor may prohibit you from re-registering or re-accessing the Software. Upon any termination of this Agreement, you must destroy or return any physical copy of Software to Licensor, as well as permanently destroy all copies of the Software, accompanying documentation, associated materials, and all of its component parts in your possession or control, including from any client server, computer, gaming unit, or mobile device on which it has been installed. Upon termination of this Agreement, your rights to use the Software, will terminate immediately, and you must cease all use of the Software. The termination of this Agreement will not affect Licensor’s rights or your obligations arising under this Agreement.
11. EQUITABLE REMEDIES
- 11.1. You hereby agree that if the terms of this Agreement are not specifically enforced, Licensor will be irreparably damaged, and therefore you agree that Licensor shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect any of this Agreement, including temporary and permanent injunctive relief, in addition to any other available remedies.
12. TAXES AND EXPENSES
- 12.1. You shall be responsible for and shall pay and shall indemnify and hold harmless Licensor and any and all of its affiliates, officers, directors, and employees against all taxes, duties, and levies of any kind imposed by any governmental entity with respect to the transactions contemplated under the this Agreement, including interest and penalties thereon (exclusive of taxes on Licensor's net income), irrespective of whether included in any invoice sent to you at any time by Licensor. You shall provide copies of any and all exemption certificates to Licensor if you are entitled to any exemption. All expenses and costs incurred by you in connection with your activities hereunder, if any, are your sole responsibility. You are not entitled to reimbursement from Licensor for any expenses, and will hold Licensor harmless therefrom.
13. ENTIRE AGREEMENT
- 13.1. This Agreement represents the complete agreement between you and us concerning the Software, and supersedes any prior or contemporaneous agreements between you and us; provided however that this Agreement shall coexist with, and shall not supersede any other Additional Terms referenced below.
- 13.2. Your access to and use of the Software is subject to this Agreement, and is further subject to, if applicable, any related Software documentation, additional Terms of Service and/or Privacy Policies (“Additional Terms”), all of which are hereby incorporated into this Agreement by reference. This Agreement represents the complete agreement between you and Licensor relating to your use of the Software and related services and products, and supersedes and replaces any prior agreements between you and Licensor, whether written or oral. To the extent there is a conflict between this Agreement and any Additional Terms, this Agreement shall control.
- 14.1. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this Agreement shall not be affected.
15. GOVERNING LAW
- 15.1. This Agreement shall be construed (without regard to conflicts or choice of law principles) under the laws of Germany, except as governed by federal law. Unless expressly waived by Licensor in writing for the particular instance or contrary to local law, the sole and exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in Licensor's principal corporate place of business in Nürnberg, Germany. You and Licensor consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by the law of the State of Pennsylvania. You and Licensor agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to this Agreement or to any dispute or transaction arising out of this Agreement.
- 16.1. We may create updated versions of this Agreement in the future as the Software and applicable laws change. When we do, we’ll ask you to agree to a new agreement which will supersede and replace this Agreement. You’ll be given an opportunity to review any new agreement we present to you and decide whether you wish to agree to the revised terms. If you accept the new agreement, you’ll be able to continue using our Services. If you decline the new agreement, you will not be able to use the Software.
- 17.1. If you have any questions concerning this agreement, you may contact us by email at: email@example.com or by mail at: Benjamin Lochmann New Media GmbH, Rednitzstrasse 18, 90449 Nuremberg, Germany