SOFTWARE LICENSE AGREEMENT

IMPORTANT - READ CAREFULLY: USE OF THIS PROGRAM IS SUBJECT TO THE SOFTWARE LICENSE TERMS SET FORTH BELOW. "PROGRAM" INCLUDES ALL SOFTWARE INCLUDED WITH THIS AGREEMENT, THE ASSOCIATED MEDIA, ANY PRINTED MATERIALS, AND ANY ONLINE OR ELECTRONIC DOCUMENTATION, AND ANY AND ALL COPIES OF SUCH SOFTWARE AND MATERIALS. BY OPENING THIS PACKAGE, INSTALLING, AND/OR USING THE PROGRAM AND ANY SOFTWARE PROGRAMS INCLUDED WITHIN, YOU ACCEPT THE TERMS OF THIS LICENSE WITH ACTIVISION PUBLISHING, INC. AND ITS AFFILIATES ("ACTIVISION").

LIMITED USE LICENSE. Subject to the conditions described below, Activision grants you the non-exclusive, non-transferable, limited right and license to install and use one copy of this Program solely and exclusively for your personal use. All rights not specifically granted under this Agreement are reserved by Activision and, as applicable, Activision’s licensors. This Program is licensed, not sold, for your use. Your license confers no title or ownership in this Program and should not be construed as a sale of any rights in this Program.  This Software License Agreement shall also apply to any patches or updates you may obtain for the Program.

 

LICENSE CONDITIONS.

You shall not:

-           Exploit this Program or any of its parts commercially, including but not limited to use at a cyber cafe, computer gaming center or any other location-based site. Activision may offer a separate Site License Agreement to permit you to make this Program available for commercial use; see the contact information below.

-           Use this Program, or permit use of this Program, on more than one computer, computer terminal, or workstation at the same time.

-           Make copies of this Program or any part thereof, or make copies of the materials accompanying this Program.

-           Copy this Program onto a hard drive or other storage device; you must run this Program from the included CD-ROM or DVD-ROM (although this Program itself may automatically copy a portion of this Program onto your hard drive during installation in order to run more efficiently).

-           Use the program, or permit use of this Program, in a network, multi-user arrangement or remote access arrangement, including any online use, except as otherwise explicitly provided by this Program.

-           Sell, rent, lease, license, distribute or otherwise transfer this Program, or any copies of this Program, without the express prior written consent of Activision.

-           Reverse engineer, derive source code, modify, decompile, disassemble, or create derivative works of this Program, in whole or in part.

-           Remove, disable or circumvent any proprietary notices or labels contained on or within the Program.

-           Export or re-export this Program or any copy or adaptation in violation of any applicable laws or regulations of the United States government.

 

OWNERSHIP. All title, ownership rights and intellectual property rights in and to this Program (including but not limited to any patches and updates) and any and all copies thereof (including but not limited to any titles, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, animation, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, any related documentation, and "applets" incorporated into this Program) are owned by Activision, affiliates of Activision or Activision’s licensors. This Program is protected by the copyright laws of the United States, international copyright treaties and conventions and other laws. This Program contains certain licensed materials and Activision’s licensors may protect their rights in the event of any violation of this Agreement.

PROGRAM UTILITIES. This Program may contain certain design, programming and processing utilities, tools, assets and other resources ("Program Utilities") for use with this Program that allow you to create customized new game levels and other related game materials for personal use in connection with the Program ("New Game Materials"). The use of any Program Utilities is subject to the following additional license restrictions:

-           You agree that, as a condition to your using the Program Utilities, you will not use or allow third parties to use the Program Utilities and the New Game Materials created by you for any commercial purposes, including but not limited to selling, renting, leasing, licensing, distributing, or otherwise transferring the ownership of such New Game Materials, whether on a stand alone basis or packaged in combination with the New Game Materials created by others, through any and all distribution channels, including, without limitation, retail sales and on-line electronic distribution. You agree not to solicit, initiate or encourage any proposal or offer from any person or entity to create any New Game Materials for commercial distribution. You agree to promptly inform Activision in writing of any instances of your receipt of any such proposal or offer.

-           If you decide to make available the use of the New Game Materials created by you to other gamers, you agree to do so solely without charge.

-           New Game Materials shall not contain modifications to any COM, EXE or DLL files or to any other executable Product files.

-           New Game Materials may be created only if such New Game Materials can be used exclusively in combination with the retail version of the Program. New Game Materials may not be designed to be used as a stand-alone product.

-           New Game Materials must not contain any illegal, obscene or defamatory materials, materials that infringe rights of privacy and publicity of third parties or (without appropriate irrevocable licenses granted specifically for that purpose) any trademarks, copyright-protected works or other properties of third parties.

-           All New Game Materials must contain prominent identification at least in any on-line description and with reasonable duration on the opening screen: (a) the name and E-mail address of the New Game Materials’ creator(s) and (b) the words "THIS MATERIAL IS NOT MADE OR SUPPORTED BY ACTIVISION."

- All New Game Materials created by you shall be exclusively owned by Activision and/or  its licensors as a derivative work (as such term is described under U.S. copyright law) of the Program and Activision and its licensors may use any New Game Materials made publicly available by you for any purpose whatsoever, including but not limited to, for purpose of advertising and promoting the Program.

 

LIMITED WARRANTY: Excepting patches, updates and any downloaded content, Activision warrants to the original consumer purchaser of this Program that the recording medium on which the Program is recorded will be free from defects in material and workmanship for 90 days from the date of purchase. If the recording medium is found defective within 90 days of original purchase, Activision agrees to replace, free of charge, any product discovered to be defective within such period upon its receipt of the Product, postage paid, with proof of the date of purchase, as long as the Program is still being manufactured by Activision. In the event that the Program is no longer available, Activision retains the right to substitute a similar program of equal or greater value. This warranty is limited to the recording medium containing the Program as originally provided by Activision and is not applicable to normal wear and tear. This warranty shall not be applicable and shall be void if the defect has arisen through abuse, mistreatment, or neglect. Any implied warranties prescribed by statute are expressly limited to the 90-day period described above.

EXCEPT AS SET FORTH ABOVE, THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND NO OTHER REPRESENTATIONS OR CLAIMS OF ANY KIND SHALL BE BINDING ON OR OBLIGATE ACTIVISION. IN NO EVENT WILL ACTIVISION BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGE RESULTING FROM POSSESSION, USE OR MALFUNCTION OF THIS PRODUCT, INCLUDING DAMAGE TO PROPERTY AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURY, EVEN IF ACTIVISION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS AND/OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND/OR EXCLUSION OR LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.

 

Please refer to Warranty procedures relating to your country of residence from the lists below.

 

In the U.S.

When returning merchandise for replacement please send the original product disks only in protective packaging and include:

1.         A photocopy of your dated sales receipt

2.         Your name and return address, typed or clearly printed

3.         A brief note describing the defect, the problem(s) you encountered and the system on which you are running the product

4.         If you are returning the product after the 90-day warranty period, but within one year after the date of purchase, please include a check or money order for $10.00 U.S. per CD replacement or $15.00 U.S. per DVD replacement.

Note: Certified mail is recommended.

 

In the U.S. send to:

Warranty Replacements

Activision Publishing, Inc.

P.O. Box 67713

Los Angeles, California 90067

 

In Europe:

When returning merchandise for replacement please send the original product disks only in protective packaging and include:

1.         A photocopy of your dated sales receipt

2.         Your name and return address, typed or clearly printed

3.         A brief note describing the defect, the problem(s) you encountered and the system on which you are running the product

4.         If you are returning the product after the 90-day warranty period, but within one year after the date of purchase, please include a cheque or money order for £6.00 sterling per CD replacement or £9.00 sterling per DVD replacement.

Note: Certified mail is recommended.

 

In Europe send to:

WARRANTY REPLACEMENTS

ACTIVISION (UK) Ltd., 3 Roundwood Avenue, Stockley Park, Uxbridge UB11 1AF, United Kingdom.

Disc Replacement: +44 (0) 870 241 2148

 

In Australia:

For all Warranty replacements, please return to the store of purchase along with your receipt or proof of purchase.

 

If you are returning the software product after the 90-day warranty period, but within one year after the date of purchase, please contact Activision on 02 9869 0955.  Note: No returns will be issued unless you have contacted Activision first.

 

If an Activision representative advises you that your game is valid for a return, please return the original software product disc to:

 

In Australia send to:

Activision Asia Pacific, Level 5, 51 Rawson St. Epping, NSW 2121, Australia and include:

 

1. A Photocopy of your dated sales receipt

2.  Your name and return address, typed or clearly printed

3. A brief note describing the defect, the problem(s) you encountered and the system on which you are running the software product.

4. Please include a cheque or money order for AUD $20 per CD or AUD $25 per DVD replacement (subject to availability).

 

LIMITATION ON DAMAGES: IN NO EVENT WILL ACTIVISION BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, USE OR MALFUNCTION OF THE PROGRAM, INCLUDING DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, EVEN IF ACTIVISION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACTIVISION’S LIABILITY SHALL NOT EXCEED THE ACTUAL PRICE PAID FOR THE LICENSE TO USE THIS PROGRAM. SOME STATES/COUNTRIES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS AND/OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND/OR EXCLUSION OR LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.

 

TERMINATION: Without prejudice to any other rights of Activision, this Agreement will terminate automatically if you fail to comply with its terms and conditions. In such event, you must destroy all copies of this Program and all of its component parts.

U.S. GOVERNMENT RESTRICTED RIGHTS: The Program and documentation have been developed entirely at private expense and are provided as "Commercial Computer Software" or "restricted computer software." Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clauses in DFARS 252.227-7013 or as set forth in subparagraph (c)(1) and (2) of the Commercial Computer Software Restricted Rights clauses at FAR 52.227-19, as applicable. The Contractor/Manufacturer is Activision, Inc., 3100 Ocean Park Boulevard, Santa Monica, California 90405.

INJUNCTION: Because Activision would be irreparably damaged if the terms of this Agreement were not specifically enforced, you agree that Activision shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Activision may otherwise have under applicable laws.

 

INDEMNITY: You agree to indemnify, defend and hold Activision, its partners, affiliates, licensors, 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 Product pursuant to the terms of this Agreement.

 

MISCELLANEOUS: This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a writing executed by both parties. 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. This Agreement shall be construed under California law as such law is applied to agreements between California residents entered into and to be performed within California, except as governed by federal law and you consent to the exclusive jurisdiction of the state and federal courts in Los Angeles, California.

 

If you have any questions concerning this license, you may contact Activision at 3100 Ocean Park Boulevard, Santa Monica, California 90405,USA, (310) 255-2000, Attn. Business and Legal Affairs, legalaffairs@activision.com.