OnLive

END USER LICENSE AGREEMENT FOR ONLIVE APPLICATION SOFTWARE. THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS ON WHICH OL2, INC. AND/OR ONLIVE EMEA SARL (4, RUE GRAHAM BELL, 3225 BETTEMBOURG, LUXEMBOURG; REGISTRATION # B159.818) ("ONLIVE") ALLOW YOU TO DOWNLOAD, INSTALL, AND USE THE ONLIVE APPLICATION SOFTWARE AND OTHER RELATED MATERIALS IF ANY (COLLECTIVELY, THE "MATERIALS") SOLELY AS PART OF THE ONLIVE GAME SERVICE AND/OR ONLIVE DESKTOP (INDIVIDUALLY OR COLLECTIVELY, THE "SERVICE") MADE AVAILABLE BY ONLIVE. PLEASE READ THIS END USER LICENSE AGREEMENT ("AGREEMENT"). BY CLICKING "AGREE/INSTALL" TO THIS AGREEMENT, YOU ARE EXPRESSLY INDICATING THAT YOU ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU UNDERSTAND THAT THE MATERIALS WILL BE INSTALLED PURSUANT TO THESE TERMS. YOU ALSO CERTIFY THAT YOU ARE OVER THE AGE OF 18 AND OF THE LEGAL AGE OF MAJORITY IN THE JURISDICTION IN WHICH YOU RESIDE (AT LEAST 18 YEARS OF AGE IN MANY COUNTRIES). PLEASE NOTE THAT SECTION 7 CONTAINS CERTAIN CHANGES TO THE AGREEMENT FOR USERS IN THE UNITED KINGDOM AND BELGIUM AND SECTION 8 CONTAINS ADDITIONAL PROVISIONS APPLICABLE TO MATERIALS DOWNLOADED FROM APPLE’S APP STORE. 1. LICENSE GRANT. During the period of time that you have an account on the Service or for a shorter period of time (as determined by OnLive), you are granted the revocable, limited right to install one copy of the Materials onto your device for the sole purpose of using the Materials to access and use the Service, all solely in accordance with the terms and subject to the conditions of this Agreement. The Materials incorporate various intellectual property rights, that include, without limitation, copyrights, trademarks, patents, trade secrets, moral rights and database rights and other intellectual property rights and other proprietary rights (collectively, "Intellectual Property Rights"). OnLive or its licensors retain all rights, title and interests in and to the software and other materials comprising the Materials and the Service and all Intellectual Property Rights relating to any of the foregoing. For the avoidance of doubt, any plugins, installers, or software of any kind that you may be provided with or asked to install or download in order to use or access the Service are part of the Materials. 2. RIGHTS AND RESTRICTIONS. The Materials are licensed (and not sold) to you, and any and all rights not expressly granted to you in accordance with the provisions of Section 1 above, are reserved by OnLive and its licensor(s). (a) Installation. Except as expressly set forth in any documentation materials (if any) regarding the Materials, the copy of the Materials that you are entitled to install hereunder may not be shared or otherwise used simultaneously on more than one device. (b) Copies. You may not make any copies of the Materials other than the one copy installed on your device. You must not remove the copyright and/or any other proprietary rights notices that appear on or in any of the Materials. (c) Reverse Engineering. You may not adapt or otherwise modify, create any derivative work, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code from, the Materials (or any portion thereof) except and only to the extent that such restriction cannot be enforced as a matter of mandatory applicable law. (d) Rental. You may not publicly perform, rent, lease, loan, license or sublicense the Materials, or transfer, or distribute, or otherwise provide anyone else with access to, and the opportunity to use, the Materials (or any portions or derivatives thereof). (e) Component Parts. The Materials are licensed for use by you as a single, integrated product, and the aggregate parts of the Materials may not be separated for use in any other application(s), nor may any such parts or portions of the Materials be used on more than one device at the same time (unless expressly authorized by OnLive in writing). (f) Updates. OnLive may from time to time, at its sole discretion, make an update or other such revised version of any of the Materials (each an "Update") available and notify you of any applicable terms and conditions for receiving any such Update. In addition, the Materials may contain an automatic Update feature that is on by default and cannot be turned off or disabled. This feature will connect to devices over the Internet, and collect your device information such as your Internet protocol address, the type and version of operating system, performance characteristics of your CPU and network, information about your graphics hardware, information about your installed graphics system software, and the language code of the system where you installed the Materials. This feature will also automatically download and install, or prompt you to download and/or install, current Updates to a previous version of the Materials. By installing the Materials, you consent to the collection and transmission of such information and automatic downloading and installation of Updates. (g) Export Regulations. You acknowledge that the Materials are subject to U.S. export jurisdiction and agree that you will not export the Materials (or any portion thereof) in violation of the export control laws of the United States of America. (h) Support Services. OnLive may elect to provide you with such support services (if any) relating to the Materials as OnLive deems appropriate, at its sole discretion (collectively, the "Support Services"), which may include an e-mail address and/or a private message board or web forum for you to send any questions and/or comments regarding the Materials. Any additional or supplemental software or other materials that are provided by OnLive or its licensors, as applicable, as part of its Support Services shall be considered part of the Materials for all intents and purposes and shall be governed by the provisions of this Agreement. OnLive does not make any representations or warranties as to the accuracy of any statements or advice provided in response to your e-mail(s) and/or postings in connection with the Materials. (i) Termination of License; Return of Materials. All license rights under this Agreement will terminate automatically without notice from OnLive if you fail to comply with any term(s) of this Agreement. In addition, all license rights under this Agreement will terminate upon any termination of the Service ("Service Termination"), or the Suspension or Closing of your Account by OnLive under the then-current Terms of Service for the OnLive Service, or for the convenience of either of the parties hereunder, upon notice to the other party. Upon any of the foregoing, or promptly following OnLive's request at any time, you shall promptly delete all copies of the Materials (in any and all formats and media) that OnLive delivered to you (or produced by you) pursuant to this Agreement. You acknowledge and agree that the deletion of the Materials in accordance with the provisions of this subsection shall not affect your obligations under Sections 2, 3, 4, 5, and 6, which shall survive any termination or expiration of this Agreement as described in this subsection. 3. WARRANTIES; LIABILITY FOR DAMAGES. (a) Warranties. YOU ACKNOWLEDGE THAT THE MATERIALS PROVIDED HEREUNDER MAY CONTAIN ERRORS AND DEFECTS. THE MATERIALS ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR ANY PARTICULAR PURPOSE, CORRESPONDENCE TO DESCRIPTION, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, LACK OF VIRUSES OR NON-INFRINGEMENT. (b) Exclusion of Damages. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL ONLIVE (OR ANY OF ITS AFFILIATES OR LICENSORS) NOR ANY OF THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, LICENSORS, CUSTOMERS, AGENTS OR REPRESENTATIVES OF ONLIVE HAVE ANY LIABILITY OF ANY KIND OR NATURE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFITS OR LOSS OF ANY CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING ANY DUTY OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND/OR FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATING TO YOUR USE OF OR INABILITY TO USE THE MATERIALS OR THE SERVICE OR OTHERWISE WITH RESPECT TO THIS AGREEMENT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT YOU HAVE ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. (c) Limitation of Liability and Remedies. THE AGGREGATE LIABILITY OF ONLIVE AND ITS LICENSORS TO YOU UNDER THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO FIVE U.S. DOLLARS (US$5.00). (d) THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 4. INDEMNIFICATION. You agree to indemnify, defend and hold harmless OnLive and its licensors from and against all claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable fees for attorneys and expert witnesses) which result from any breach or alleged breach of any of your representations, warranties, covenants or obligations set forth herein. 5. COMPLIANCE WITH LAWS. You agree to comply with all applicable laws and regulations regarding the download, installation and/or use of the Materials and the Service. 6. MISCELLANEOUS. Each of the parties is and shall be operating as independent contractors in fulfilling their respective obligations hereunder. You may not assign or otherwise transfer this Agreement, nor assign or sublicense any of the rights granted to you hereunder, nor subcontract or otherwise delegate any of your obligations under this Agreement, to any third party without the prior written consent of OnLive. This Agreement shall be governed by and construed under the laws of the State of California, excluding that body of law related to conflicts of laws. The provisions of the United Nations Convention of Contracts for the International Sale of Goods shall not be applicable. Any action or proceeding brought to enforce the terms of this Agreement or to adjudicate any dispute arising out of this Agreement or relating in any way to this Agreement shall be brought in the state or federal courts located in Santa Clara County, State of California. If any provision of this Agreement (or part thereof) is determined by a court of competent jurisdiction to be void, invalid or otherwise unenforceable, such provision (or part thereof) shall be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, shall be deemed to be deleted from this Agreement, while the remainder of this Agreement shall continue in full force and remain in effect according to its stated terms and conditions. This Agreement, together with any additional terms or conditions you expressly agree to in the course of participating in or otherwise relating to the Service (e.g., any Terms of Service that you separately enter into with OnLive, if any), constitutes the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations, correspondence and understandings between the parties, both oral and written. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. Any waiver by either party of any provision of this Agreement shall not be construed as a waiver of any other provision of this Agreement, nor shall such waiver operate as or be construed as a waiver of such provision respecting any future event or circumstance. No modification or amendment of any provision hereof shall be effective unless in writing and signed by an authorized representative of OnLive. The headings of the Sections and subsections of this Agreement are for convenience of reference only and shall not be of any effect in construing the meanings of any Section or provision of this Agreement. 7. SPECIAL PROVISIONS APPLICABLE TO USERS IN THE UNITED KINGDOM AND BELGIUM. The following provisions apply to users in the United Kingdom only: (a) Section 2(g) shall be deleted in its entirety. (b) Section 2(h) shall be deleted and replaced in its entirety with the following: "Support Services. OnLive will provide you with such support services (if any) relating to the Materials as OnLive deems appropriate, at its sole discretion (collectively, the "Support Services"), which will include an e-mail address, and may also include a private message board or web forum for you to send any questions and/or comments regarding the Materials. Any additional or supplemental software or other materials that are provided by OnLive or its licensors, as applicable, as part of its Support Services shall be considered part of the Materials for all intents and purposes and shall be governed by the provisions of this Agreement." (c) Section 3(a) shall be deleted and replaced in its entirety with the following: "Warranties. You acknowledge that the materials provided hereunder may contain errors and defects. The materials are provided "as is", though we have provided them with reasonable skill and due care. Apart from that, the materials are provided without any warranties of any kind or nature, whether express or implied, including, without limitation, any implied warranties of merchantability, satisfactory quality, fitness for any particular purpose, correspondence to description, title, quiet enjoyment, quiet possession, lack of viruses or non-infringement." (d) Section 3(b) shall be deleted in its entirety and replaced with the following. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL ONLIVE (OR ANY OF ITS AFFILIATES OR LICENSORS) NOR ANY OF THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, LICENSORS, CUSTOMERS, AGENTS OR REPRESENTATIVES OF ONLIVE HAVE ANY LIABILITY OF ANY KIND OR NATURE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFITS OR LOSS OF ANY CONFIDENTIAL OR OTHER INFORMATION OR FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATING TO YOUR USE OF OR INABILITY TO USE THE MATERIALS OR THE SERVICE OR OTHERWISE WITH RESPECT TO THIS AGREEMENT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. NOTHING IN THE AGREEMENT WILL EXCLUDE OR LIMIT EITHER PARTY'S LIABILITY FOR: (I) FRAUD OR FRAUDULENT MISREPRESENTATION; (II) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; OR (III) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED BY LAW. (e) Section 3(c) shall be deleted in its entirety. (f) Section 3(d) shall be deleted in its entirety. (g) Section 6 shall be deleted and replaced in its entirety with the following: “6. MISCELLANEOUS. Each of the parties is and shall be operating as independent contractors in fulfilling their respective obligations hereunder. You may not assign or otherwise transfer this Agreement, nor assign or sublicense any of the rights granted to you hereunder, nor subcontract or otherwise delegate any of your obligations under this Agreement, to any third party without the prior written consent of OnLive. The construction, validity and performance of this Agreement and all non-contractual obligations arising from or connected with this Agreement shall be governed by English law. Any action or proceeding brought to adjudicate any dispute related to this Agreement shall be subject to the non-exclusive jurisdiction of the English courts, except as otherwise agreed by the parties in writing. If any provision of this Agreement is held invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it valid and enforceable. This shall, in no way, affect the validity and enforceability of all other provisions in this Agreement. This Agreement, together with any additional terms or conditions you expressly agree to in the course of participating in or otherwise relating to the Service (e.g., any Terms of Service that you separately enter into with OnLive, if any), constitutes the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations, correspondence and understandings between the parties, both oral and written. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. Any waiver by either party of any provision of this Agreement shall not be construed as a waiver of any other provision of this Agreement, nor shall such waiver operate as or be construed as a waiver of such provision respecting any future event or circumstance. No modification or amendment of any provision hereof shall be effective unless in writing and signed by an authorized representative of OnLive. The headings of the Sections and subsections of this Agreement are for convenience of reference only and shall not be of any effect in construing the meanings of any Section or provision of this Agreement." The following provisions apply to users in Belgium only: (i) Section 2(g) shall be deleted in its entirety. (ii) Section 3(a) shall be deleted and replaced in its entirety with the following: "Warranties. You acknowledge that the materials provided hereunder may contain errors and defects. The materials are provided "as is", without any warranties of any kind or nature, whether express or implied, including, without limitation, any implied warranties of merchantability, satisfactory quality, fitness for any particular purpose, for hidden defects, correspondence to description, title, quiet enjoyment, quiet possession, lack of viruses or non-infringement." (iii) Section 3(b) shall be deleted in its entirety and replaced with the following. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL ONLIVE (OR ANY OF ITS AFFILIATES OR LICENSORS) NOR ANY OF THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, LICENSORS, CUSTOMERS, AGENTS OR REPRESENTATIVES OF ONLIVE HAVE ANY LIABILITY OF ANY KIND OR NATURE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFITS OR LOSS OF ANY CONFIDENTIAL OR OTHER INFORMATION LOSS OF BUSINESS, LOSS OF SAVINGS, FOR LOSS OF DATA, FOR THIRD PARTIES’ CLAIMS) OR FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATING TO YOUR USE OF OR INABILITY TO USE THE MATERIALS OR THE SERVICE OR OTHERWISE WITH RESPECT TO THIS AGREEMENT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. NOTHING IN THE AGREEMENT WILL EXCLUDE OR LIMIT EITHER PARTY'S LIABILITY FOR: (I) FRAUD OR FRAUDULENT MISREPRESENTATION; (II) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; OR (III) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED BY LAW. (iv) Section 3(c) shall be deleted and replaced in its entirety with the following. THE AGGREGATE LIABILITY OF ONLIVE AND ITS LICENSORS TO YOU UNDER THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO FIVE EUROS (€5). (v) Section 3(d) shall be deleted in its entirety. (vi) Section 6 shall be deleted and replaced in its entirety with the following: “6. MISCELLANEOUS. Each of the parties is and shall be operating as independent contractors in fulfilling their respective obligations hereunder. You may not assign or otherwise transfer this Agreement, nor assign or sublicense any of the rights granted to you hereunder, nor subcontract or otherwise delegate any of your obligations under this Agreement, to any third party without the prior written consent of OnLive. The construction, validity and performance of this Agreement and all non-contractual obligations arising from or connected with this Agreement shall be governed by Belgian law. Any action or proceeding brought to adjudicate any dispute related to this Agreement shall be brought before the Belgian courts, without prejudice to either party applying for interim relief, injunctions, conservatory measures, or measures pertaining to the performance of any court decision, before any other competent court. If any provision of this Agreement is held invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it valid and enforceable. This shall, in no way, affect the validity and enforceability of all other provisions in this Agreement. This Agreement, together with any additional terms or conditions you expressly agree to in the course of participating in or otherwise relating to the Service (e.g., any Terms of Service that you separately enter into with OnLive, if any), constitutes the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations, correspondence and understandings between the parties, both oral and written. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. Any waiver by either party of any provision of this Agreement shall not be construed as a waiver of any other provision of this Agreement, nor shall such waiver operate as or be construed as a waiver of such provision respecting any future event or circumstance. No modification or amendment of any provision hereof shall be effective unless in writing and signed by an authorized representative of OnLive. The headings of the Sections and subsections of this Agreement are for convenience of reference only and shall not be of any effect in construing the meanings of any Section or provision of this Agreement." 8. SPECIAL PROVISIONS APPLICABLE TO MATERIALS DOWNLOADED FROM APPLE’S APP STORE. This Agreement is between you and OnLive. Apple, Inc. (“Apple”) is not responsible for the Materials and the content thereof. The Materials may only be used on an iOS Product that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service. For purposes of this Agreement, “iOS Product” means an Apple-branded product that runs the iOS. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Materials. In the event of any failure of the Materials to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for Materials to you, if any (but not any separately purchased content, applications or games available from OnLive). To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Materials. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Materials to conform to any warranty will be the responsibility of OnLive, its affiliates and/or their licensors. Apple shall have no responsibility for addressing any claims from you or any third party relating to the Materials or your possession and/or use of the Materials, including, but not limited to: (i) product liability claims; (ii) any claim that the Materials fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. In the event of any third party claim that the Materials or your possession and use of the Materials infringe that third party’s intellectual property rights, Apple shall have no responsibility to you for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You must comply with any applicable third party terms of agreement when using the Materials. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement. Upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third party beneficiary thereof. You may direct questions, complaints or claims with respect to the Materials to support@onlive.com or to OL2, Inc., Attn: Customer Service, 1091 N Shoreline Blvd, Suite 100, Mountain View, CA 94043.