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Torchlight III - Non-Disclosure Agreement

Torchlight III - Non-Disclosure Agreement

TORCHLIGHT III ALPHA TEST AGREEMENT

Last Updated: January 28, 2020

This Alpha Test Agreement (“Agreement”) is between you, and Perfect World Entertainment Inc. (“PWE” “we” or “us”) and governs your participation in the “Alpha Test” for certain pre-commercial release versions of the game tentatively titled “Torchlight III” (the “Game”) developed by Echtra, Inc. (“Echtra”). The Alpha Test is tentatively scheduled to start on or about January 29th, 2020. For clarity, the Game includes any related software programs or files provided to you hereunder and patches or updates thereto (the “Software”), as well as any printed materials and electronic documentation (the “Documentation”) and any service that we operate for the Game (the “Service”).

Participation in the Alpha Test is exclusive and by invitation only. By registering for the Alpha Test and/or installing, copying, or using the Game you agree to be bound by the terms and conditions of this Agreement (the date you agree to be bound by such terms and conditions shall be the “Effective Date”). If you do not agree with all the terms and conditions of this Agreement, do not register for the Alpha Test and do not install, copy, or use the Game.

  1. TERMS OF SERVICE AND PRIVACY POLICY

 

The Game is published, distributed by, and certain In-Game Features are processed or managed by PWE via PWE websites, including without limitation www.arcgames.com, a distribution platform managed by PWE (such platform, “Arc Platform”, and together with other PWE websites, “PWE Sites”). As a result, your access to, or installation or use of, the Game or certain In-Game Features under the Alpha Test shall be subject to the terms and conditions set forth in, where applicable, the PWE Terms of Service and the PWE Privacy Policy. Such Terms of Service and Privacy Policy are hereby incorporated into this Agreement by reference and are part of this Agreement. “In-Game Features” shall mean any and all characters, attributes, content, or other features, functionality or items made available to you in the Game under the Alpha Test. Notwithstanding anything to the contrary of this Agreement, you further agree that any and all In-Game Features that you created and/or achieved in the current Alpha Test version of the Game may not be available to you, even under the same User Account (as defined below), for commercial release or any other versions of Torchlight III.

 

  1. USER ACCOUNTS

 

To install, access and use the Game for the Alpha Test, you will have already registered for an account with PWE on the Arc Platform (“User Account”), and received an invitation from PWE to participate in the Alpha Test.

 

You are responsible for the security of your User Account and any activities performed under such account, whether or not such actions were authorized by you. YOU UNDERSTAND THAT ANY PERSON WITH YOUR USERNAME AND PASSWORD WILL BE ABLE TO ACCESS AND USE YOUR USER ACCOUNT, AND MAY BE ABLE TO ACCESS YOUR REGISTRATION DATA AND OTHER PERSONAL INFORMATION ASSOCIATED WITH YOUR USER ACCOUNT. AS A RESULT, YOU WILL NOT: (I) SHARE YOUR USER ACCOUNT PASSWORDS WITH ANY OTHER PERSON; OR (II) PROVIDE ACCESS TO YOUR USER ACCOUNT OR THE SERVICE TO ANY OTHER PERSON.

 

YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY UNAUTHORIZED ACCESS TO YOUR USER ACCOUNT OR OTHER LOSS OR DISSEMINATION OF YOUR REGISTRATION DATA DUE TO YOUR ACTS OR OMISSIONS.

 

If you suspect any security breaches related to the Game or to your user account for the Game, please notify us by submitting a ticket using our Support Center form.

 

  1. FEEDBACK

As part of the Alpha Test, you will be given the opportunity to provide or create content (e.g., user created content), and provide feedback, suggestions, and comments to us regarding your Game-play experience, including without limitation your opinions on usability, bugs, overall impressions, recommended improvements to the Game and any other information relating to the Game, in addition to video clips and other information that we record of your gameplay (collectively, the “Feedback”). Your participation in the Alpha Test is purely on a voluntary basis, and you understand and agree that no compensation will be given for your participation. We have no obligation to consider, use, return or preserve any Feedback. Subject to our Privacy Policy, the Feedback may or may not be treated confidentially by us, and we will have no obligation or liability to you for the use or disclosure of any Feedback. You should not expect any compensation of any kind from us with respect to your testing of the Game or your Feedback.

  1. CONFIDENTIALITY

Confidential Information” means all Game content, including screenshots of the Game and video of gameplay from the Game. You agree to not disclose any Confidential Information during the Term (as defined in Section 13 below) and after the expiration of the Term of this Agreement. In the event of a breach of this Section 4 of the Agreement, PWE reserves the right to any and all actions available to PWE under the law to protect its rights hereunder.

  1. YOUR COVENANTS, REPRESENTATIONS & WARRANTIES

 

By accepting this Agreement, you understand that your participation in this Alpha Test is strictly confidential as the Game is still in development, and you hereby represent and warrant to PWE and its licensors that commencing on the Effective Date, and you covenant on an on-going basis throughout your participation in the Alpha Test, that:

  • you will abide by the applicable terms and conditions of this Agreement;
  • you understand that the Game may not be available 24 hours a day, 7 days a week;
  • you will not share your Game User Account with anyone else;
  • any information you provide for any Alpha Test in connection with the Alpha Test will be accurate, current and complete;
  • any information you provide to PWE, including but not limited to the Feedback (i) will be the result of solely your original work, (ii) does not and will not infringe upon or misappropriate any Intellectual Property Right (as defined below) of any third party, and (iii) will comply with the Terms of Service of PWE, all applicable laws and all basic rules of etiquette and common courtesy when using the Game; and
  • you will not, and will not enable others to, post, upload, transmit, distribute or stream on any platform any Confidential Information, namely content from the Game such as screenshots or video of gameplay.
  1. LICENSE GRANT TO YOU

The Game is licensed, not sold, to you under the terms of this Agreement. Subject to the terms of this Agreement, we hereby grant to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to access, download, install, and operate one copy of the Game made accessible to you periodically by us solely for your personal use on a single standalone personal computer, and solely for purposes of providing Feedback to us. All rights not expressly granted to you under this Agreement are reserved by us and/or our licensors.

  1. LICENSE RESTRICTIONS

Except as expressly provided in this Agreement, you may not access, play or otherwise use the Game. Without limiting the foregoing, you may not create derivative works of, modify, copy, reproduce, distribute, publicly perform, publicly display, give access to (including by use of the Game in cyber cafes, gaming arcades, or similar public venues), sell, license, or transfer the Game, or any part thereof, to any other person in any way, or provide reproductions of the Game to anyone. You also agree not to (i) reverse engineer, decompile, disassemble or attempt to discover the source code for the Game or any part thereof (except as otherwise expressly permitted by law), (ii) use the Game or any part thereof to develop another product or service or to compete with Echtra and/or PWE, or (iii) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Game or any part thereof.

In addition, you may not network the Game or use the Game in any other way on more than one computer or computer terminal simultaneously, except that you may, as approved by us and in order to participate in the Alpha Test, connect online via Arc Platform. You acknowledge and agree that the Game is a work-in-progress and may contain bugs that can cause loss of data, damage to, or malfunction of your computer system, and that none of the PWE Parties (as defined below) shall be liable in any way for any such occurrences. You understand that we will make accessible to you for purposes of the Alpha Test only those parts of the Game that we chooses to share in our absolute and sole discretion; therefore, you may not have access to every aspect of the Game. We have no obligation to give you (i) the appropriate software and/or access codes to the Alpha Test; and (ii) access to the Game. Any appropriate software given to you hereunder, including the Software, is at our sole discretion.

Any software or service that updates, supplements or replaces the original Game, including without limitation the Software or Service, is governed by this Agreement. But if separate license terms accompany such update, supplement or replacement, then those separate terms will govern if there is a conflict with this Agreement or as otherwise provided in those separate terms.

In addition, in order to maintain consistency across the Alpha Test, you will not attempt to access or use the Game through any means other than the most current version of the Software that we provide to you.

 

  1.  OWNERSHIP; INTELLECTUAL PROPERTY RIGHTS

All Intellectual Property Rights (as defined below) in and to the Game (including without limitation the Software and the Documentation) and title to any and all copies thereof are owned and shall be owned by PWE or its licensors, and you receive no right or interest therein other than the limited license in Section 6 above.

Intellectual Property Rights” means and includes, without limitation, copyrights, patents, trademarks, moral rights, and trade secrets, all other intellectual property rights and intangible legal rights or interests recognized in any country or jurisdiction in the world, and including without limitation: (a) any concept, computer program, content, customer data, customer information, customer list, data, design, development, discovery, documentation, drawing, improvement, information, list, manual, mask work, material, model, note, object code, plan, procedure, product, prototype, report, schematic, software, source code, and specification, (b) works, works of authorship, and moral rights, including without limitation, any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar right, existing under the law of any country in the world, or under any treaty, (c) inventions, invention disclosures, know how, letters patent, means, methods, patents, provisional patent applications, provisional patents, techniques, and all foreign counterparts and foreign equivalents of same, and any and all divisions, continuations, continuations-in-part, revisions, renewals, reissues, extensions, and like of the foregoing, (d) service marks, trademarks, trade dress, and trade names, (e) trade secrets, with such term "trade secrets" being given the broadest possible definition, interpretation or meaning, and (f) any other similar rights, in each case, existing under the law of any country in the world, or under any treaty, all on a worldwide basis.

You hereby agree to assign, and do hereby assign to PWE all right, title, and interest in and to the Feedback, and any inventions regarding any improvement of or other change or addition to the Game formulated or produced, in whole or in part, as a result of your participation in the Alpha Test, and all Intellectual Property Rights embodied therein, or resulting from, such Feedback and inventions. You agree that PWE will be and is solely and exclusively the owner of such Feedback and inventions including all Intellectual Property Rights embodied therein, or resulting from such Feedback and inventions.

You hereby irrevocably assign (and agree to assign) and transfer to PWE, free and clear of any restrictions or encumbrances, without any compensation beyond the consideration provided herein, any and all rights, title and interest that you may have in and to such Feedback. This assignment includes, without limitation, all worldwide copyrights and patent rights in and to such Feedback and the right to sue for past and future infringements. You hereby agree to cooperate with PWE in connection with the protection thereof and shall execute such documents (like further deed of transfer or assignment), if any, as needed by PWE to perfect its rights hereunder.

Further, to the extent the assignments mentioned in above paragraphs do not transfer any ownership interest in or to the Feedback, you expressly grant to PWE and our licensors all consents, clearances and a non-exclusive, perpetual, worldwide, complete, sub-licensable and irrevocable right to make, use, sell, offer for sale, import or otherwise exploit, re-post, publish, use, quote, adapt, translate, archive, store, reproduce, modify, create derivative works from, syndicate, license, print, sublicense, distribute, transmit, broadcast, otherwise communicate, and publicly display and perform the Feedback, or any portion thereof, in any manner or form and in any medium or forum, whether now known or hereafter devised, without notice, acknowledgment or compensation to you. You waive and agree not to assert any moral or similar rights you may have in the Feedback for as far as is possible by applicable mandatory law.

  1. CONSENT TO ACCESS YOUR COMPUTER

While the Software is installed on your computer, you authorize us to access, modify or delete Game-related data on your computer via the Software and Service. You also authorize us to check your version of the Software and automatically download and install Software upgrades to update, enhance and further develop the Software and Service. Some upgrades may be designed to disable unauthorized access to the Software or delete unauthorized copies of the Software. You will not bypass any automatic update downloads or installations.

In addition, you authorize us to monitor or collect certain information from your computer or our servers related to the use or performance of the Game, including to record your gameplay and interactions with other players in the Game. You acknowledge that such information is the property of PWE or its licensor and may be used by PWE (and/or its affiliates, publishing partners, licensors, and licensees) for the purpose of the Alpha Test and the purposes specified in the PWE Privacy Policy. In addition, you agree and consent to the Software (a) sending information back to PWE about your computer system's hardware along with operating system and driver version numbers for the purpose of gathering performance data, and (b) setting a registry entry with a unique identification for your computer such that PWE may initiate a lock down that prevents unauthorized access to your User Account.

Please review our Privacy Policy and Cookie Policy, for information regarding the collection, use and distribution of personal information. The Privacy Policy is published on the following Website: https://www.arcgames.com/en/about/privacy. The Cookie Policy is published on the following Website: https://www.arcgames.com/en/about/cookie/. You understand and agree that we may collect, use and disclose information as described in the Privacy Policy and Cookie Policy.

  1.  DISCLAIMER OF WARRANTY

THE GAME IS A TEST VERSION THAT IS MADE AVAILABLE TO YOU FOR TESTING AND EVALUATION PURPOSES ONLY. THE GAME IS NOT READY FOR COMMERCIAL OR PUBLIC RELEASE AND MAY CONTAIN BUGS, ERRORS AND DEFECTS. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE GAME IS PROVIDED TO YOU “AS IS” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. PWE AND ITS LICENSOR DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PWE AND ITS LICENSOR DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE GAME, THAT THE GAME WILL MEET YOUR REQUIREMENTS, THAT OPERATION OF THE GAME WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE GAME WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER PROGRAM OR THAT ANY ERRORS IN THE GAME WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE PROVIDED BY PWE OR ITS LICENSOR OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. PWE AND ITS LICENSOR DO NOT GUARANTEE THE AVAILABILITY OF ANY IN-GAME ITEMS OR FEATURES. YOU FURTHER AGREE THAT PWE AND ITS LICENSOR HAVE NO OBLIGATION TO MAKE THE GAME AVAILABLE FOR PLAY WITHOUT CHARGE FOR ANY PERIOD OF TIME, NOR TO MAKE THE GAME AVAILABLE AT ALL.

  1.  INDEMNIFICATION

You (i) agree to indemnify, defend and hold PWE and its licensors, each of their respective direct and indirect parents, affiliates, independent contractors, service providers, directors, officers, employees and agents (collectively, “PWE Parties”) harmless from and against all claims, losses, liabilities, damages, expenses, and costs (including, without limitation, reasonable fees for attorneys and expert witnesses) which result from any breach or alleged breach of any of your covenants, representations, warranties or obligations herein, and (ii) hereby release the PWE Parties from and against any losses, liabilities, claims, obligations, costs and/or expenses (including reasonable legal fees) which result from, arise out of, or in connection with your use of the Game and/or your participation in the Alpha Test.

  1. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ANY OF THE PWE PARTIES BE LIABLE (UNDER ANY THEORY OF LIABILITY) FOR PERSONAL INJURY OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING FOR LOSS OF DATA, LOSS OF CONTENT, LOSS OF IN-GAME FEATURES, LOSS OF PROFITS, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE GAME, EVEN IF A PWE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL THE PWE PARTIES’ AGGREGATE LIABILITY ARISING FROM YOUR USE OR INABILITY TO USE THE GAME EXCEED FIFTY UNITED STATES DOLLARS (US$50.00).

  1. TERM AND TERMINATION

This Agreement begins on the Effective Date and continues until the earlier of termination by you or us or our commercial release of Torchlight III (the “Term”). PWE may, within its sole discretion, suspend or terminate the Alpha Test and/or this Agreement, for any reason, at any time, or for no reason, with or without notice to you. If this happens, you may no longer be able to access or use the Game, including without limitation any In-Game Features, even if you acquired, provided or developed them through your use of the Game. You acknowledge and agree that PWE or its licensor make such In-Game Features available to you in their sole discretion, and that PWE or its licensor may suspend, terminate or modify your ability to access or use the Game (including such In-Game Features) at any time for any or no reason, with or without notice.

At any time, you can end your participation in the Alpha Test through opting-out of it. When your rights under this Agreement expire or are terminated by you or us, you must destroy all copies of the Game, including without limitation the Software and the Documentation, as well as all of the Confidential Information and other information relating to the Game in your possession, custody, or control, and remove all portions of the Game from any hard drives upon which you installed it. Upon termination of the Alpha Test or your participation in it for any reason as provided herein, all license rights granted hereunder shall terminate immediately. To the maximum extent under applicable law, all sections of this Agreement except for Section 4 (Confidentiality) will survive any termination or expiration of this Agreement. We may, within our sole discretion, deny your access to the Game, at any time.

 

  1.  GOVERNING LAW; VENUE AND JURISDICTION

You specifically agree and acknowledge to Section 26 and Section 27 of the Terms of Service, which are incorporated herein by reference. Any claims arising out of or in connection with the Alpha Test, the Service or this Agreement (including interpretation, claims for breach, and all other claims, including consumer protection, unfair competition and tort claims) will be subject to the laws of the State of California, United States of America, without reference to conflict of laws principles.

  1.  EQUITABLE REMEDIES

 

You hereby agree that if the terms of this Agreement are not specifically enforced, we will be irreparably damaged, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to this Agreement, including temporary and permanent injunctive relief, in addition to any other available remedies.

  1.  GENERAL

If any provision of this Agreement shall be 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, and the validity and enforceability of all other provisions of this Agreement shall not be affected thereby. You may not assign this Agreement or any of your rights under this Agreement without our prior written consent. Any attempted assignment by you without consent will be void. We may freely assign this Agreement without your consent. Subject to the foregoing restriction on your assignment, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by you, us, and each of your and our respective successors and assigns. No waiver of this Agreement will be enforceable against us unless set forth in a writing signed by our authorized representative. This Agreement, together with the Terms of Service and Privacy Policy, will constitute the entire agreement between you and us regarding your evaluation and use of the Game and will supersede all prior agreements and understandings between you and us, oral or written, regarding its subject matter. In the event of a conflict between this Agreement and other terms referenced herein, the conflict will be resolved in the following order of precedence: (i) Privacy Policy; (ii) this Agreement; and (iii) Terms of Service.

You may not amend or modify this Agreement at any time. We reserve the right to amend or modify this Agreement (and any other related agreements or terms) at any time and from time to time in our sole discretion. Amendments and modifications will be effective immediately after publishing them on our website or otherwise providing you a copy thereof, and you waive any right you may have to receive specific notice of such changes or modifications.  We will indicate at the top of this Agreement the date it was last updated.  You agree to and are responsible for checking this Agreement periodically so you will be familiar with its contents, as it may be amended or modified from time to time.  By continuing to use the Game, you are signifying your acceptance of any revised or updated terms.  If you do not agree to the amended terms, you must stop using the Game, end your participation in the Alpha Test, and the termination provisions under Section 13 above shall apply to you and us.

This Agreement is subject to, and each Party is responsible for complying with, any laws, regulations, orders, or other restrictions on the export of the Game and/or the Confidential Information or any other information relating to the Game from the United States of America, and information about the same, which may be imposed from time to time by the government of the United States of America.  You agree not to export or re-export the Game and/or any Confidential Information or information pertaining thereto to any country for which a United States government agency requires an export license or other governmental approval without first obtaining express authorization to do so from us and all necessary licenses or approvals.

  1.  CONTACT

Any notices from us to you in connection with this Agreement may be sent by email, postal mail, facsimile or other means using the contact information that you have provided to us (in your User Account or otherwise), and will be deemed sent upon receipt.

To send notices to us or if you have any questions about this Agreement or the Game, you may contact us through the Support Center form.