KODIAK SOFTWARE ("KODIAK") IS WILLING TO LICENSE THE ACCOMPANYING KODIAK SOFTWARE AND KODIAK DOCUMENTATION (AS DEFINED BELOW), TO THE PERSON OR ENTITY ACCESSING THIS SOFTWARE VIA KODIAK'S AUTHORIZED WEBSITE OR OTHER DELIVERY MECHANISM ("LICENSEE") ONLY IF LICENSEE OBTAINED THIS SOFTWARE AND DOCUMENTATION FROM KODIAK, AND UPON THE CONDITION THAT LICENSEE ACCEPT ALL OF THE TERMS CONTAINED IN THIS KODIAK SDK LICENSE AGREEMENT ("AGREEMENT"). BY ACCESSING, COPYING, INSTALLING OR USING THE KODIAK SOFTWARE OR KODIAK DOCUMENTATION, LICENSEE AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF LICENSEE IS NOT WILLING TO BE BOUND BY THIS AGREEMENT, LICENSEE MAY NOT ACCESS, COPY, INSTALL OR USE THE KODIAK SOFTWARE OR KODIAK DOCUMENTATION. THIS AGREEMENT IS ENFORCEABLE AGAINST LICENSEE AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED; FOR EXAMPLE, IF APPLICABLE, LICENSEE'S EMPLOYER.
Kodiak may propose modifications to this Agreement in its sole discretion. Kodiak shall notify Licensee of such proposed modifications in writing. Such modifications shall be deemed accepted by Licensee (a) if Licensee fails to submit written notice of rejection of such changes to Kodiak no later than thirty (30) days after Kodiak's notice of such changes or (b) upon Licensee's continued use of the Kodiak Technology. Upon Licensee's written rejection of the proposed modifications, this Agreement shall remain in full force and effect without such modifications, except that in such case Kodiak may at its option terminate this Agreement upon thirty (30) days written notice to Licensee if continued adherence to the unmodified Agreement is legally, commercially or technically unreasonable as determined by Kodiak in its reasonable judgment.
The Kodiak Software is Kodiak confidential information protected by international intellectual property laws and treaties and is licensed, not sold. The structure, sequence, organization and code of the Kodiak Software are the valuable trade secrets and copyrighted confidential information of Kodiak and its licensors.
The following capitalized terms used in this Agreement shall have the meanings given below:
1.01 "Binary Code": machine-readable, executable program code from which the corresponding Source Code cannot be derived.
1.02 "End User(s)": the ultimate end consumers of the Game(s) for such users' personal use only, and not for redistribution, resale, marketing, or leasing.
1.03 "Feedback": any of the following in oral or written form relating to the Kodiak Technology: feedback, product comparisons, performance testing results, defect or bug reports, requirements, functional/performance requests, benchmarks, ideas, suggestions, critiques, and recommendations.
1.04 "Game(s)": game or entertainment applications, and any upgrades, updates or new releases thereof, developed by or for Licensee using the Kodiak Software (a) that utilize Kodiak Services correctly (including that have been registered with Kodiak prior to public release) and (b) with which Redistributables are integrated as one unitary Binary Code executable.
1.05 "Intellectual Property Right(s)": worldwide rights arising under contract, statute or common law, whether or not perfected, and associated with: (a) patents and patent applications; (b) works of authorship, including copyrights, mask works, and moral rights; (c) trademarks, service marks, trade names, design rights, trade dress, or rights similar or analogous to same; (d) the protection of trade and industrial secrets and confidential information; (e) the protection of databases; and (f) any rights analogous to those set forth herein and any other proprietary rights relating to intangible or intellectual property now existing or later recognized in any jurisdiction.
1.06 "Licensee Modifications": any of the following made by or for Licensee in compliance with this Agreement solely in order to create Games: modifications, enhancements or optimizations to (a) those components or portions of the Kodiak Software provided in Source Code form, (b) graphics files and assets, and (c) configuration files.
1.07 "Redistributables": libraries or components that are integrated into the Game per Licensee's normal and intended operation of the Kodiak SDK.
1.08 "Kodiak Documentation": the documentation materials which Kodiak provides for use with the Kodiak Software, including the application programming interface ("API") descriptions, as licensed by Kodiak and delivered to Licensee hereunder, and any Upgrades thereto.
1.09 "Kodiak Services": the services enabled by the Kodiak Software over the Internet via servers controlled by Kodiak, as defined by Kodiak from time-to-time.
1.010 "Kodiak Software": the Kodiak SDK software in Source Code and Binary Code form as more specifically described on the Kodiak download site, including the Redistributables, as licensed by Kodiak and delivered to Licensee hereunder, and any Upgrades thereto.
1.011 "Kodiak Technology": (a) the Kodiak Software, Kodiak Documentation, Kodiak Services, and Support; (b) any data and information generated, processed or collected in the course of normal operation of the Kodiak Services ("Kodiak Data"); and (c) any ideas, designs, concepts, techniques, discoveries, know-how, and inventions, whether or not patentable or copyrightable, that are embodied in or associated with any of the foregoing.
1.012 "Kodiak Trademark(s)": KodiakTM and all other names, marks, logos, designs, trade dress and other brand designations used by Kodiak and its related companies in connection with Kodiak's software products and services, including those logos specified in the Kodiak branding guidelines ("Branding Guidelines") contained within the Kodiak Documentation or as otherwise made available to Licensee ("Kodiak Logos").
1.013 "Source Code": high-level human-readable program code that must be compiled or assembled into Binary Code form to function as intended.
1.014 "Subject Matter": as defined in Section 8.1.
1.015 "Support": any of the following services that Kodiak decides in its sole discretion to provide to Licensee: (a) helpdesk, query, incident, bug-fix, patch, and on-line support (including FAQs and community discussions); (b) professional, integration, development and consulting services; and (c) software maintenance, including provision of Upgrades.
1.016 "Term": as defined in Section 10.1.
1.017 "Unauthorized Derivative Matter": any of the following, excluding Licensee Modifications, whether or not patentable or copyrightable: any work or invention which is based on and derived from, in whole or in part, the Kodiak Technology, including any derivative work, improvement, extension, revision, enhancement, modification, translation, abridgment, condensation, expansion, collection, repackaging, compilation or any other form in which the Kodiak Technology may be recast, transformed or adapted.
1.018 "Upgrade(s)": error corrections, upgrades, updates, enhancements, new versions, patches or new releases of the Kodiak Technology commercially released by Kodiak in its sole discretion.
2.0 LICENSED RIGHTS
Subject to and conditioned upon Licensee's compliance with the restrictions and obligations contained in this Agreement, including the obligations of Sections 3.0 (Conditions), 6.0 (Intellectual Property Rights and Ownership), and 8.0 (Limitation of Liability), Kodiak hereby grants to Licensee, to the extent of Kodiak's Intellectual Property Rights in the Kodiak Technology, a non-exclusive, fee-bearing, non-sublicensable (except as expressly set forth herein), non-transferable license, to during the Term:
(a) make a reasonable number of copies of the Kodiak Software and Kodiak Documentation as needed for authorized internal or personal use only;
(b) use the Kodiak Technology, and develop Licensee Modifications, solely for purposes of creating and testing Games; and
(c) reproduce and distribute Games to End Users directly or indirectly, in order for End Users to use the Kodiak Services.
3.01 Restricted Rights. No sublicenses are granted hereunder, other than the right to sublicense to End Users the right to use Games. Licensee shall have no right or license other than the rights expressly granted in Section 2.0, and no other right or license shall be implied by conduct or otherwise. Except as expressly authorized in Section 2.0, Licensee shall not use, reproduce, develop, modify, extend, enhance, distribute or deploy the Kodiak Technology, in whole or in part. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement, Licensee shall not perform, tolerate or authorize any of the following actions: (a) create or distribute Unauthorized Derivative Matter; (b) make more than the number of copies of Kodiak Software and Kodiak Documentation reasonably necessary for the purpose of exercising the rights granted herein; (c) enable concurrent or multiple account use of the Kodiak Software; (d) use of the Kodiak Technology for competitive purposes including benchmarking or monitoring availability, performance or functionality; (e) disclose or distribute or cause to be disclosed or distributed, or fail to exercise reasonable care in preventing disclosure of, in whole or in part, Feedback, Licensee Modifications, the Kodiak Documentation or any Source Code or APIs obtained from Kodiak or derived from any Kodiak deliverable hereunder; (f) distribute or permit the distribution or use of the Redistributables in standalone form or separately from any Game; (g) circumvent or attempt to circumvent any technical limitations or restrictions engineered into the Kodiak Technology; and (h) replicate or attempt to replicate the functionality of the Kodiak Services other than via the intended operation of the Games.
3.02 Reverse Engineering. Licensee shall not reverse engineer, decompile, disassemble or otherwise attempt to derive the Source Code, APIs, interfaces, techniques, processes, algorithms, know-how or other information from the Binary Code portions of the Kodiak Software or the Kodiak Services (collectively, "Reverse Engineering") or permit or induce the foregoing. If however, directly applicable law prohibits enforcement of the foregoing, Licensee may engage in Reverse Engineering solely for purposes of obtaining such information as is necessary to achieve interoperability of independently created software with the Kodiak Software, or as otherwise and to the limited extent permitted by directly applicable law, but only if: (a) Reverse Engineering is strictly necessary to obtain such information; and (b) Licensee has first requested such information from Kodiak and Kodiak failed to make such information available (for a fee or otherwise) under reasonable terms and conditions. Any information supplied to or obtained by Licensee under this Section 3.2 is confidential information of Kodiak, may only be used by Licensee for the purpose described in this Section 3.2, and shall not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Kodiak Software.
3.03 Proprietary Notices. Licensee shall reproduce and preserve, and not obscure, any and all notices and markings pertaining to Kodiak's and its licensors' Intellectual Property Rights contained in and enabled for display by the Kodiak Technology.
3.04 Game Registration; Upgrades. Licensee shall register each Game with Kodiak prior to any public release of such Game, in order to enable Kodiak Services for such Game. Licensee shall implement and deploy Upgrades as soon as commercially practicable after their release.
3.05 Third Party Terms. Certain third party components or libraries included in or bundled with the Kodiak Software, or certain third party services accompanying the Kodiak Services, may be covered by open source or other third party licenses or services terms. Kodiak shall provide a list of such open source components upon Licensee's request. To the extent required by such open source and third party terms, such terms will apply in lieu of the terms of this Agreement, solely with respect to those services, libraries or components that are provided or licensed under such terms. Licensee shall comply with all Third Party Terms.
3.06 Public Code. Licensee acknowledges and agrees that under no circumstances shall Kodiak be required to disclose Kodiak Source Code or, as a result of any act or omission of Licensee, be bound by Public Code license terms. The term "Public Code" means any publicly available Source Code licensed under terms requiring, as a condition of use or distribution, that such code, and any additional software linked to, derived from, or integrated with, such code, be made available in Source Code form, with rights of modification, without charge, or free of enforceable Intellectual Property Rights.
3.07 Notice of Breach or Infringement. Licensee shall notify Kodiak immediately when it becomes aware of any breach or violation of the terms of this Agreement, or of any potential or actual infringement of Kodiak Technology or Kodiak's Intellectual Property Rights in same.
3.08 Compliance with Laws. Licensee agrees to comply strictly with all applicable laws, rules, and regulations in respect of the development, distribution and sale/licensing of Games, including all export control or import, protection of minors, and the tax laws and regulations of any relevant jurisdiction.
3.09 Restricted Rights. The use, duplication or disclosure by the U.S. government of technical data, computer software and documentation licensed hereunder is subject to the restrictions as set forth in FAR 52.22714(g) (2), FAR 52.22719, DFARS 252.2277015(b), and DFARS 227.72023(a), or other like or successor provisions, as applicable, and are provided under "Restricted Rights".
3.010 Injunctive Relief. Licensee acknowledges and agrees that breach of this Section 3.0, or any unauthorized use, disclosure or distribution of Kodiak Technology, would cause irreparable harm to Kodiak, the extent of which would be difficult to ascertain, and that Kodiak shall be entitled to obtain immediate injunctive relief (in addition to any other available remedies), without the necessity for posting a bond or other security and in any court of competent jurisdiction under the applicable laws thereto, notwithstanding any other provision of this Agreement.
4.0 KODIAK TRADEMARKS
4.01 Kodiak Logos Obligation. The Kodiak Logos shall be displayed in a manner legible to End Users on all Games in accordance with the Kodiak Branding Guidelines. Licensee must use the Kodiak Logos in the exact form provided by Kodiak. Kodiak may in its discretion amend the Kodiak Logos or replace them with different logos, whereupon Licensee shall not affix the amended or replaced Kodiak Logos to new copies of Games not yet released, or to materials associated with same, but instead shall use the replacement logos supplied by Kodiak.
4.02 Kodiak Logos License. In connection with Licensee's obligations under Section 4.1, subject to and conditioned upon Licensee's compliance with the restrictions and obligations contained in this Agreement, including this Section 4.0, Kodiak hereby grants to Licensee a worldwide, non-exclusive, non-sublicensable, non-transferable license to use and display the Kodiak Logos in Games that fully meet the requirements of this Agreement, and in accordance with the Branding Guidelines. Kodiak may modify the license grant specified in this Section 4.2 to eliminate any jurisdictions therefrom if Kodiak reasonably determines that continued use of the Kodiak Logos in such jurisdictions may subject Kodiak or any third party to liability, or may jeopardize Kodiak's rights in the Kodiak Logos or any other Kodiak Trademark in those jurisdictions. In such case, as quickly as possible but in no event later than sixty (60) calendar days after receipt of written notice from Kodiak, or such earlier date as required by court or judicial order, Licensee shall cease all use of the Kodiak Logos in such jurisdictions. Licensee shall maintain the quality of Games with which it uses the Kodiak Logos in a manner consistent with the terms of this Agreement, at a level that meets or exceeds Licensee's and the industry's quality standards. Upon written request, Licensee shall provide to Kodiak at no charge a copy of any Game requested for Kodiak's temporary use and inspection in order to ensure compliance with the provisions of this Section 4.0.
4.03 Kodiak Trademarks. Licensee is granted no right, title or license to any third party trademarks by this Agreement, or to Kodiak Trademarks except as expressly set forth in Section 4.2, and shall not: (a) challenge Kodiak's ownership or use of Kodiak Trademarks; (b) attempt to register any Kodiak Trademarks; or (c) incorporate any Kodiak Trademarks into Licensee's trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations. Any and all use of Kodiak Trademarks by or for Licensee inures to Kodiak's benefit. If Licensee acquires any rights in any Kodiak Trademarks by operation of law or otherwise, it will immediately and at no expense to Kodiak, assign such rights to Kodiak along with any associated goodwill, applications and registrations.
5.0 KODIAK SERVICES
5.01 Content of Users. All Games, and content, data, log entries and other information made available or posted for display via use of the Kodiak Software and/or Kodiak Services by Licensee or any other party ("Content") is the sole responsibility of the party from which such Content originated. Licensee is entirely responsible for all such Content that Licensee publishes. Licensee shall not transmit Content or otherwise conduct or participate in any activities via use of the Kodiak Technology which, in Kodiak's sole judgment, is likely to be prohibited by law or violative of third party rights in any applicable jurisdiction. Licensee shall not upload, download, display, perform, transmit, or otherwise distribute any Content that (a) is hateful, offensive, obscene, pornographic, libelous, defamatory, obscene, abusive, erroneous, or threatening; (b) advocates or encourages conduct that could constitute a criminal offense, otherwise violates any applicable local, state, national, or foreign law or regulation, or otherwise exposes Kodiak to criminal or civil liability or sanction; (c) constitutes infringement of the Intellectual Property Rights of any party or fails to comply with any license terms including open source terms; and (d) creates an impression that is incorrect, misleading, or deceptive, including by impersonating others or otherwise misrepresenting your identity or affiliation with any person or entity. Licensee shall not publish or post other people's private or personally identifiable information without their express authorization and permission. Kodiak may, in its sole discretion, remove any Content, and/or terminate licensed rights granted hereunder with respect to any Games, that Kodiak believes in its sole judgment is not in compliance with this Section 5.1. Kodiak may preserve and disclose Content if required to do so by law or judicial or governmental mandate or as reasonably determined useful by Kodiak to protect the rights, property or safety of users and/or the public. Under no circumstances will Kodiak be liable in any way for any Content, including, but not limited to, liability for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content.
5.02 Data. Kodiak shall have no responsibility or liability for the deletion or failure to store any Content or user data. Kodiak reserves the right to mark as "inactive" and archive accounts that are inactive for an extended period of time. It is Licensee's sole responsibility to back up all Licensee data and Content. Licensee acknowledges that Licensee's Content may be publicly displayed and therefore Licensee shall have no expectation of privacy with respect to such Content or Licensee data, and Licensee takes full responsibility for the consequences of public knowledge thereof. Kodiak Data shall to the maximum extent of applicable law be kept confidential, and Licensee shall not disclose, sell or share Kodiak Data without Kodiak's prior written consent. Licensee shall have sole responsibility to comply with all applicable laws and regulations relating to End User privacy and use of data.
5.03 Log-In Credentials. Kodiak may require, and the Kodiak Technology may include functionality allowing or requiring, Licensee to receive, create or transfer online ID/user name and password information ("Sign-On Credentials"). Licensee is wholly responsible for maintaining the confidentiality thereof and wholly liable for all activities occurring under such Sign-On Credentials. Licensee shall not transfer to any party Licensee's Sign-On Credentials, or use the Sign-On Credentials of another, without Kodiak's prior written consent. Licensee shall immediately notify Kodiak of any unauthorized use of Sign-On Credentials or any other breach of security. Kodiak will not be liable for any loss or damage arising from a Licensee's lost or forgotten Sign-On Credentials (including associated loss of Licensee Content), failure to comply with this Section 5.3 or from unauthorized use of the Sign-On Credentials.
5.04 End User License Agreements. Licensee acknowledges Kodiak may require End Users to click-accept Kodiak's then-standard end user license terms and/or terms of service in order to access and use Kodiak Services. Licensee shall not interfere with the display and rejection or acceptance of such terms in accordance with End User selection.
5.05 Third Party Links and Services. The Kodiak Technology may include or enable access or links to other websites or services, including to payment processing or online banking services. Such links shall not be construed as an endorsement, sponsorship, or affiliation. Kodiak exercises no control whatsoever over such other websites, services, resources and applications, and is not responsible or liable for the availability, functioning, or quality thereof or the content, advertising, products or other materials thereon. Licensor shall not be responsible or liable, directly or indirectly, for any damage or loss (including data loss) incurred or suffered by any user in connection therewith. Licensee's and any user's access and use of such third party functionality, including information, material, products and services therein, is solely at Licensee's or user's own risk.
5.06 Service Availability. Kodiak endeavors to maintain operation of Kodiak Services on a continuous basis, but does not warrant the availability thereof or any certain uptime percentage. Kodiak will use reasonable efforts to give timely notice (on the Kodiak website) of scheduled downtime for maintenance purposes or if Kodiak determines in its sole discretion to terminate or suspend Kodiak Services for any reason. Kodiak Services' functionality, features and content shall be defined solely by Kodiak in its sole discretion and with changes from time-to-time without notice. Licensee shall not impede or frustrate End User access to Kodiak Services or impose separate and/or additional terms or payment obligations related thereto, or block, condition or delay Kodiak's access to Kodiak Data, without Kodiak's prior written consent.
6.0 INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
6.01 Kodiak Ownership Rights. Licensee acknowledges and agrees that Kodiak and/or its licensors retains all right, title and interest in and to the Kodiak Technology, all copies thereof, and Intellectual Property Rights associated therewith. Licensee: (a) acknowledges and agrees that Kodiak shall own all Unauthorized Derivative Matter and associated Intellectual Property Rights free and clear of any encumbrances, conflicting claims or rights, or confidentiality obligations to Licensee, and hereby irrevocably transfers and assigns to Kodiak any interest which may arise from Unauthorized Derivative Matter, and associated Intellectual Property Rights, Licensee may have now or in the future, even after expiration or termination of this Agreement; (b) forever waives and agrees never to assert any moral rights (including rights of paternity and attribution) or other Intellectual Property Rights in or which may arise from Unauthorized Derivative Matter; and (c) will assist Kodiak in taking any actions required for Kodiak to obtain or perfect Intellectual Property Rights in Unauthorized Derivative Matter worldwide, as Kodiak deems reasonably appropriate.
6.02 Licensee Ownership Rights. Licensee retains any right, title and interest in and to Feedback and Licensee Modifications (excluding any incorporated Kodiak Technology) created by or for Licensee in accordance with and as authorized under the terms of this Agreement, subject to Kodiak's and/or Kodiak's licensors' ownership rights identified in Section 6.1. For avoidance of doubt, Licensee acknowledges and agrees that, notwithstanding this Section 6.2, Licensee's use and distribution of Licensee Modifications shall be subject to and in accordance with the terms of this Agreement. Licensee hereby grants to Kodiak a nonexclusive, worldwide, perpetual, irrevocable, non-terminable, sublicensable, fully paid up, royalty-free, assignable and transferable license, to the full extent of Licensee's Intellectual Property Rights, to make, use, reproduce, modify, adapt, create derivative works based on, improve, enhance, translate, distribute (directly and indirectly, in any medium, under terms of Kodiak's choice), transmit, display and perform (a) Licensee Modifications and Feedback; and (b) any information, data, content or work necessary for Kodiak's unrestricted utilization of Kodiak Data. The foregoing license rights are also granted with respect to any Unauthorized Derivative Matter where operation of Section 6.1 is precluded by law or is otherwise ineffective. Notwithstanding the foregoing license granted to Kodiak hereunder, Licensee is under no obligation to physically deliver to Kodiak any Licensee Modifications or Feedback.
7.01 Exclusion of Warranties. Kodiak provides the Kodiak Technology to Licensee on an "AS IS" basis, which may not be uninterrupted or free of failures, errors or defects, and to the fullest extent permitted by applicable law, ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, WORKMANLIKE EFFORT, CORRESPONDENCE TO DESCRIPTION, DESIGN, TITLE OR NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE PRACTICE, ARE HEREBY DISCLAIMED. NO USE OR DISTRIBUTION OF KODIAK TECHNOLOGY IS AUTHORIZED EXCEPT SUBJECT TO AND IN CONSIDERATION FOR THIS DISCLAIMER.
7.02 Specific Disclaimers. The Kodiak Software requires functionality of third party software and hardware to function as intended, including operating systems and any requirements set forth on Kodiak's download site. Licensee acknowledges that Kodiak shall have no liability or obligation of any kind with respect to delays, interruptions, defects, errors or failures to the extent resulting from causes beyond Kodiak's reasonable control, including defects, errors or failures caused by third party hardware and software, the operating system, the network environment, end users, third party or Licensee applications, external viruses, third party data delivery services, or changes in any of the foregoing. Kodiak shall have no liability for losses or damages to the extent caused by failures of or delays in any, communication, network, or over-the-air provisioning system. Licensee acknowledges and agrees that certain Source Code components of Kodiak Software are samples for reference purposes only and must be substantially configured and enhanced by Licensee. Kodiak may but is under no obligation to provide Support or any other services of any kind. If Support is provided, such Support shall be governed by the terms of this Agreement.
7.03 Rights Defined by Agreement Only. The parties have voluntarily agreed to define their rights, liabilities and obligations respecting the use of Kodiak Technology exclusively in contract pursuant to the express terms and provisions of this Agreement, and the parties expressly disclaim that they are owed any duties or are entitled to any remedies not expressly set forth in this Agreement, except as may otherwise be set forth herein.
8.0 LIMITATION OF LIABILITY AND INDEMNIFICATION
8.01 Liability Cap and Exclusions. Notwithstanding any other provision of this Agreement, with the exception of damages directly caused by Kodiak's gross negligence, recklessness, fraud, malicious intent or willful misconduct: (a) Kodiak's maximum aggregate liability to Licensee for all claims, liabilities or obligations arising under or relating to this Agreement, Games, Kodiak Trademarks, or Kodiak Technology (collectively, "Subject Matter"), regardless of the theory of liability, will in no event exceed all amounts paid by Licensee to Kodiak under this Agreement, if any, during the one (1) year period preceding the occurrence of the claim; and (b) in no event will Kodiak be liable for any indirect, punitive, special, incidental, remote, speculative, or consequential damages in connection with, related to or arising out of the Subject Matter (including interruption of business, loss of profits, use, data, or other economic advantage), regardless of the theory of liability, whether for breach of this Agreement, including breach of warranty, or in tort or otherwise, even if Kodiak has been previously advised of the possibility of such damages. Liability for damages shall be so limited and excluded, regardless of the validity or efficacy of any remedy provided herein and even if any remedy fails of its essential purpose. Nothing contained in this Agreement limits Kodiak's liability in the event of death or personal injury resulting from Kodiak's negligence or for fraud or the tort of deceit. The foregoing limitations and exclusions apply to the maximum extent permitted by applicable law.
8.02 Indemnification. Licensee shall defend, indemnify, release and hold harmless Kodiak, its suppliers and affiliates, and all officers, directors, employees, consultants, agents, and representatives of any of the foregoing, against any and all claims (including third party claims), losses, liability, damages, and/or costs of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with: (a) Licensee's access to, development, exploitation, sale/license, use and/or distribution of, the Subject Matter, (b) Licensee's violation of any provision of this Agreement, and/or (c) Licensee's actual or alleged infringement of any Intellectual Property Right of any person or entity.
10.0 TERM AND TERMINATION
10.01 Term. This Agreement shall commence on the Effective Date and shall continue until terminated.
10.02 Termination. Either party may in its sole option terminate this Agreement for convenience upon one hundred and eighty (180) days written notice to the non-terminating party. Such termination is without cause and shall not require the consent or approval of the non-terminating party. This Agreement shall additionally terminate at any time: (a) immediately upon Licensee's material breach of any provision of this Agreement; (b) immediately upon Kodiak's written notice to Licensee (including notice on the Kodiak download site) in the event the Kodiak Technology becomes or Kodiak believes in its sole judgment could become (i) the subject of a third party claim of infringement of Intellectual Property Rights; or (ii) violative of applicable law in any jurisdiction; (c) immediately upon Kodiak's written notice to Licensee in the event Licensee asserts any action, claim or demand against Kodiak or any other party alleging that the use or distribution of the Kodiak Technology infringes Intellectual Property Rights; (d) immediately upon Kodiak's written notice in the event Licensee undergoes a change of control (in the form of an asset or equity transfer or other change in managerial control) in favor of any government or government agency or any third party; (e) in the event that Licensee ceases to conduct its operations in the normal course of business, files for or becomes the subject of a bankruptcy petition, or is placed in receivership; (f) immediately upon Kodiak's written notice in the event Licensee attempts to assign or transfer in whole or in part this Agreement in violation of this Agreement; and (g) by operation of Section 11.5.
10.03 Effect of Termination. Upon termination of this Agreement for any reason: (a) Licensee shall promptly return to Kodiak or destroy all copies, in whole or in part, of Kodiak Technology, and shall cease distributing Games; (b) all rights and licenses granted to Licensee under this Agreement shall terminate; (c) Licensee shall immediately pay to Kodiak any outstanding fees owed hereunder; and (d) Kodiak shall transfer to Licensee, upon Licensee's written request, any Kodiak Data in Kodiak's control pertaining to the Games, as may exist at time of termination, subject to Licensee's obligation to maintain the confidentiality of such data. Rightful and lawful termination of this Agreement, or expiration under the terms hereof, shall not give rise to the right for the nonterminating party, or to either party in the case of expiration, to recover damages or to indemnification of any nature, whether by way of lost profits, expenditures for promotion, payment for goodwill or otherwise, made in connection with the business contemplated by this Agreement, due to such expiration or rightful termination. The rights of Kodiak under this Section 10.0 are in addition and are without prejudice to any other rights and remedies permitted by law or under this Agreement.
10.04 Survival. The rights and obligations of Sections 1.0, 3.1 through 3.3, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 4.3, 5.0, 6.0, 7.0, 8.0, 10.3 through 10.4, and 11.0 shall survive termination or expiration of this Agreement.
11.0 GENERAL TERMS
11.01 Time Bar. Any claims arising out of or related to Subject Matter, other than claims pursuant to Section 8.2 above, shall be forever barred if such claims are not formally initiated within twelve (12) months after the claim first arose.
11.02 Marketing; Announcements. Licensee hereby authorizes Kodiak to include details regarding Licensee and Games (and to display Licensee's name, logo, Game screenshots and demos, and other related materials) in press announcements, marketing materials, web sites and advertisements, provided that Kodiak must first secure Licensee's prior written consent (not to be unreasonably withheld) for announcements of Games that Licensee has not yet commercially released.
11.03 Disclaimer of Agency. This Agreement is not intended to create a relationship such as a partnership, franchise, joint venture, agency, or employment relationship. Neither party may act in a manner that expresses or implies a relationship other than that of independent contractor, nor bind the other party. Neither party shall make any representations or warranties of any kind on behalf of the other party. No exclusive rights of any kind are granted under this Agreement.
11.04 Assignment. This Agreement may not be assigned or transferred, or its rights or obligations assigned or delegated, by Licensee, in whole or in part, including by way of merger or reorganization (regardless of whether Licensee is the surviving entity), acquisition or otherwise, without the prior written consent of Kodiak. Any assignment made in violation of this Section 11.4 shall be void. Kodiak may freely assign or transfer this Agreement and/or subcontract or delegate obligations hereunder in its sole discretion without the need for consent.
11.05 Waiver; Severability. Any waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non-enforcement. If any of the provisions of this Agreement are held to be in violation of applicable law, void, or unenforceable in any jurisdiction, then such provisions are herewith waived, amended or reformed to the extent necessary for the Agreement to be otherwise enforceable in such jurisdiction. However, if in Kodiak's reasonable judgment deletion or amendment of any provisions of the Agreement by operation of this Section 11.5 unreasonably compromises the rights or increases the liabilities of Kodiak or its licensors, Kodiak may terminate this Agreement immediately upon written notice.
11.06 Construction. This Agreement will be fairly interpreted in accordance with its terms and without any strict construction in favor of or against either party. Any reference contained herein to a section of this Agreement shall be meant to refer to all subsections of such section. The terms "includes" and "including" shall not be construed to imply any limitation. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions of this Agreement in any other language shall be for accommodation only and shall not be binding on the parties to this Agreement. All communications and notices made or given pursuant to this Agreement shall be in the English language. Except as expressly noted, this Agreement confers no third party rights and creates no third party beneficiaries of any kind.
11.07 Governing Law; Exclusive Forum.
11.07.1 The Subject Matter and all related disputes (including tort as well as contract claims, and whether pre-contractual or extra-contractual) shall be governed by the laws of the following jurisdictions, depending on the Licensee's place of domicile or residence: (a) the State of California, USA, if Licensee resides in the United States, Canada, or Mexico; or (b) Japan, if licensee resides in Japan, China, Taiwan, Korea, or other Southeast Asian country where all official languages are written or based on an ideographic script (e.g., Hanzi, Kanji, Hanja, or Hangul or Kana); or (c) USA, if Licensee resides in any country not described above. The choice of law rules of any jurisdiction, the United Nations Convention on Contracts for the International Sale of Goods, and the American Law Institute's Principles of the Law of Software Contracts shall not apply and neither party shall invoke any of the foregoing in any proceeding between the parties.
11.07.2 Any disputes between or claims brought by one of the parties arising out of or related to Subject Matter (including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the arbitrability of any disputes) shall be referred to and finally settled by binding arbitration before the International Court of Arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce ("ICC") in effect at the time of arbitration except as inconsistent with this Section 11.7.2. The place of arbitration shall be (a) San Francisco, California, if California law applies in accordance with Section 11.7.1 above; (b) Tokyo, Japan, if Japan law applies; and (c) Nashville TN, USA, in all other cases. Arbitration shall be conducted by three (3) independent arbitrators. Each party shall select one arbitrator within thirty (30) days from receipt of the arbitration notice, and the third shall be selected by mutual agreement of the two party-appointed arbitrators or, in default of agreement within another thirty (30) days, by the ICC. The arbitral proceedings shall be conducted and all arbitration-related documents shall be written in the English language. The arbitrators shall apply the law specified in Section 11.7.1 above. All awards may if necessary be enforced by any court having jurisdiction. The existence of any dispute between the parties, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards therein, shall be kept confidential. Except as required by law, no party shall make any public announcements with respect to the proceeding or the award, except as required to enforce same. The parties agree that by entering into this Agreement, the parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Notwithstanding the foregoing, nothing in this Section 11.7 shall preclude the right and ability of either party to file and maintain at any time an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto.
11.08 Complete Understanding. This Agreement is the parties' entire agreement relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, negotiations, understandings, representations and warranties and prevails over any conflicting or additional terms of any quote, order or other communication between the parties relating to its subject matter. Except as otherwise provided in this Agreement, this Agreement may only be modified by a writing signed by both parties' authorized representatives.
11.09 Notices. Kodiak may send all written notices to Licensee required by this Agreement to any persons and addresses known to Kodiak, and via any available communication medium (including email). Written notices to Kodiak shall be sent to: Kodiak Software, 105 Broadway #200 Nashville, TN 37201, Attn: Legal Affairs and via email to email@example.com.