END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (THIS "AGREEMENT") IS ENTERED INTO BETWEEN NEXON EUROPE S.À R.L, UNDER THE LAWS OF GRAND-DUCHY OF LUXEMBOURG AND WITH REGISTERED OFFICE AT 7 RUE GUILLAUME KROLL, L-1882 LUXEMBOURG ("NEXON") AND YOU ("YOU" OR "YOUR"). IT IS IMPORTANT THAT YOU READ AND CAREFULLY UNDERSTAND THIS AGREEMENT. BY CLICKING ON THE "I ACCEPT" BUTTON LOCATED AT THE END OF THIS PAGE OR OTHERWISE INSTALLING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND DO NOT WISH TO BE BOUND, PLEASE CLICK THE "I DO NOT ACCEPT" BUTTON. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU WILL NOT BE ABLE TO ACCESS, DOWNLOAD OR USE THE SOFTWARE AND/OR THE SERVICE. NEXON RESERVES THE RIGHT IN ITS SOLE DISCRETION AT ANY TIME TO CHANGE ANY OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. ANY CHANGES TO THIS AGREEMENT WILL BE EFFECTIVE UPON POSTING AT HTTP://WWW.NEXONEU.COM.
IN CASE THAT NEXON PROVIDES TO YOU A SEPARATE END USER LICENSE AGREEMENT FOR A CERTAIN GAME AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF SUCH END USER LICENSE AGREEMENT, THE END USER LICENSE AGREEMENT SHALL PREVAIL.
This Agreement was last updated on 19 December, 2012.
For purposes of this Agreement, the following terms shall have the following meanings:
1.1 "Documentation" means the online, electronic or printed user guides and other documentation which NEXON makes generally available which describes the installation and use of the Software.
1.2 "Derivative Work" means a new or modified work that is based on or derived from a preexisting work, including, without limitation, a work that, in the absence of a license, would infringe the copyright in such preexisting work or that uses trade secrets or other proprietary information with respect to such preexisting work.
1.3 "Game" means the Internet-based massively multiplayer online game titles, casual game(s) or games in genre that NEXON is currently providing via the Internet and/or online communication. NEXON can add, modify or suspend the Game with or without prior notice.
1.4 "Intellectual Property Rights" means all intellectual property rights, including patents, supplementary protection certificates, petty patents, utility models, Trademarks (as defined below), database rights, rights in designs, copyrights (including rights in computer software) and topography rights (whether or not any of these rights are registered, and including applications and the right to apply for registration of any such rights) and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, in each case for their full term, and together with any renewals or extensions, now existing or coming into existence or acquired in the future.
1.5 "Service" shall mean the service by which the Software and related services hosted on servers controlled by NEXON and, as applicable, its designees, are made available through the Internet for remote use by third parties.
1.6 "Software" means the Game software, in object code form only, and the media, Documentation and Updates (as defined below) for which you are granted a license pursuant to this Agreement.
1.7 "Term" shall have the meaning set forth in Section 8.
1.9 "Trademarks" shall mean (a) the trademarks, trade names, and service marks used by a party, whether registered or unregistered; (b) the respective stylistic marks and distinctive logotypes for such trademarks, trade names, and service marks; and (c) such other marks and logotypes as either party may designate from time to time in writing.
1.10 "Updates" means the object code forms of any modifications, error corrections, bug fixes, new releases, or other updates of or to the Software that may be provided or otherwise made available hereunder by NEXON to you during the Term.
2. GRANT OF LICENSE; RESTRICTIONS
2.2 Restrictions. You hereby acknowledge and agree that you shall not use the Software for any purpose other than entertainment, personal and non-commercial purposes, and that you shall use the Software in accordance with all applicable laws, rules, and regulations. Except as expressly provided herein, you shall not, and shall not permit any third party to, without limitation: (a) copy all or any portion of the Software; (b) except to the extent and in the circumstances expressly required to be permitted by NEXON by law, decompile, disassemble or otherwise reverse engineer the Software, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques used or embodied in the Software or any portion thereof (all information required to achieve interoperability of the Software with other software programs in accordance with Section 50B of the Copyright Designs and Patents Act 1988, as amended, is available from the NEXON. NEXON has the right to impose reasonable conditions, including, without limitation, a reasonable charge, for providing such information); (c) edit, modify, translate, or create any Derivative Works based upon the Software; (d) publish, distribute, disclose, broadcast, market, rent, lease, assign, sublicense, pledge or otherwise transfer the Software, in whole or in part, to any third party; (e) host, provide or develop matchmaking services for the Software or intercept, emulate or redirect the communication protocols used by NEXON, or its designees, in any way, including, without limitation, through protocol emulation, tunneling, packet sniffing, modifying or adding components to the Software, use of a utility program or any other technique now known or hereafter developed, for any purpose, including, but not limited to, unauthorized network play over the Internet, network play utilizing commercial or non-commercial gaming networks or as part of content aggregation networks; (f) create, use or maintain any unauthorized connections to the Software; (g) remove or alter any Intellectual Property, or other proprietary notices, legends, symbols, or labels appearing on or in the Software; (h) perform, or release the results of, benchmark tests or other comparisons of the Software with other software or materials; (i) use the Software for any purpose other than in accordance with the terms and conditions of this Agreement.
2.3 Grant of License in Your Materials. You hereby grant NEXON a worldwide, royalty-free, non-exclusive, limited, perpetual, nontransferable right and license to: (a) use, copy, reproduce, republish, distribute, download, transmit, broadcast, perform (publicly, digitally, or otherwise), communicate to the public, display (publicly or otherwise) record, edit and make derivative works of any and all data, information, content and other materials prepared by you through the use of, stored by you in connection with, or transmitted by you by or through, the Software ("Your Materials") for purposes of making the Software available to you and for internal analytic, statistical, security, quality control, and similar purposes; and (b) sublicense the foregoing rights to NEXON’s designees. You represent and warrant to NEXON that you have the right to grant the foregoing licenses in Your Materials.
3.2 Updates. During the Term, NEXON may provide you with Updates as they are made generally available by NEXON. You acknowledge that, to the extent NEXON licenses some or all of the Software and/or other components of the Service from third party vendors ("Vendors"), such Vendors, and not NEXON, are responsible for creating Updates, if any, and making them available for installation or distribution. You acknowledge and agree that NEXON may, without your knowledge and/or consent, provide Updates to you remotely, including without limitation, by accessing the computer in which you store the Software. You hereby grant NEXON your express consent to provide Updates to you by any and all means, with or without your knowledge and/or consent. Any Update provided or made available by NEXON hereunder shall be deemed part of the Software and shall be subject to the terms and conditions of this Agreement.
4. PROPRIETARY RIGHTS
5. CONFIDENTIAL INFORMATION
5.1 Confidential Information. You acknowledge that, in the course of using the Software and exercising your rights under this Agreement, you may obtain confidential information relating to the Software, the Service or NEXON and its Vendors or other parties ("Confidential Information"). Such Confidential Information shall, as between you and NEXON, belong solely to NEXON and shall include, without limitation, the Software (including any and all Derivative Works and Updates), the existence of and terms of this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, formulas, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and functional specifications, product requirements, problem reports, performance information, documents, and other technical, business, product, marketing, third party customers, and financial information, plans and data.
5.2 Use and Disclosure Restrictions. You hereby acknowledge and agree that the Confidential Information constitutes and contains valuable proprietary information and trade secrets of NEXON, and embodies substantial creative efforts and confidential information, ideas, and expressions. Accordingly, you agree: (a) to protect the Confidential Information from unauthorized dissemination and use; (b) to use the Confidential Information only for the performance of your obligations and in connection with the exercise of your rights hereunder; (c) not to disclose or otherwise provide to any third party, without the prior written consent of NEXON, any Confidential Information or any part or parts thereof; (d) to undertake whatever action is necessary to prevent or remedy (or authorize NEXON to do so in your name) any breach of your confidentiality obligations set forth herein; (e) not to remove or destroy any proprietary or confidential legends or markings placed upon or contained within the Software, or on any other Confidential Information provided to you by NEXON; and (f) not to develop any other materials, products, or services containing any of the concepts or ideas contained in the Software or Service or any other Confidential Information.
5.3 Exclusions. The foregoing restrictions pertaining to the Confidential Information shall not apply with respect to any Confidential Information that: (a) was or becomes publicly known through no fault of you; (b) was known by you before receipt from NEXON, as evidenced by your contemporaneous written records, (c) becomes known to you without confidential or proprietary restriction from a source other than NEXON that does not owe a duty of confidentiality to NEXON with respect to such Confidential Information; or (d) is independently developed by you without the use of the Confidential Information. In addition, you may use or disclose Confidential Information to the extent (i) expressly approved by NEXON in writing, and (ii) you are legally compelled to disclose such Confidential Information; provided, however, prior to any such compelled disclosure you shall cooperate fully with NEXON in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.
6. NO WARRANTY/LIMITATION OF LIABILITY
6.1 DISCLAIMER OF WARRANTIES. THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW NEXON AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, PARTNERS, SPONSORS AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT AND ACCURACY AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NEXON AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, PARTNERS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE, AND/OR THE SERVER(S), SYSTEM(S) AND NETWORK(S) ON WHICH THE SERVICE AND/OR SOFTWARE IS HOSTED AND/OR OPERATES, ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SOFTWARE AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SOFTWARE AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF NEXON OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, PARTNERS, AGENTS OR THIRD PARTY USERS, WHETHER MADE IN OR ON THE SOFTWARE OR OTHERWISE, SHALL CREATE ANY WARRANTY. YOUR USE OF THE SOFTWARE IS ENTIRELY AT YOUR OWN RISK.
6.3 Other. Without limiting the foregoing, NEXON shall have no obligations, responsibilities and/or liabilities if any nonconformance or failure of, or error in, the Software is caused by: (a) use of any attachment, feature, hardware, software or device in connection with the Software; (b) transportation, neglect or misuse of the Software or any use of the Software that is not in accordance with this Agreement and/or the Documentation; (c) alteration, modification, or enhancement of the Software; or (d) failure to provide a suitable installation or use environment for all or any part of the Software.
6.4 Nothing in this Agreement shall exclude or limit NEXON's liability for fraud or for death or personal injury resulting from our negligence or the negligence of our employees or agents.
You hereby agree to indemnify, defend, and hold NEXON, our affiliates, licensors, suppliers, advertisers, sponsors and partners, and our and their directors, officers, employees, consultants, agents and other representatives, harmless from and against, any claim based upon: (a) the use, operation or combination of the Software with non-NEXON software, data, equipment or documentation if liability would have been avoided but for such use, operation, or combination; (b) use of other than the then-current, unaltered version of the Software; (c) your activities after NEXON has notified you that NEXON believes such activities may result in infringement; (d) any modifications to or markings of the Software; (e) any third party software; (f) any of Your Materials; or (g) your breach or alleged breach of this Agreement.
8. TERM AND TERMINATION
8.1 Term. This Agreement shall commence on the date You click on the "I Agree" button below or You install the Software and shall continue until termination in accordance with this Section 8.
8.3 Effect of Termination. Upon termination of this Agreement, all rights and licenses granted to you hereunder shall immediately terminate. Upon termination of this Agreement, you shall, at your sole expense, return to NEXON (or destroy, at NEXON’s sole election) all Software and Confidential Information (and all copies and extracts thereof) then in your possession or under your control. Termination of this Agreement shall not act as a waiver of any breach of this Agreement and shall not act as a release of your liability for breach of your obligations under this Agreement. NEXON shall not be liable to you for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. NEXON's termination of this Agreement shall be without prejudice to any other right or remedy that it may have at law or in equity, and shall not relieve you of breaches occurring prior to the effective date of such termination. The provisions of Sections 1 ("Definitions"), 2.2 ("Restrictions"), 4 ("Proprietary Rights"), 5 ("Confidential Information"), 6 ("No Warranty/Limitation of Liability"), 7 ("Indemnification"), 8.3 ("Effect of Termination") and 9 ("General Provisions"), shall survive any termination of this Agreement.
9. GENERAL PROVISIONS
9.1 Assignment. This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law, or otherwise, by you without the prior written consent of NEXON. NEXON may assign, license, delegate or otherwise transfer its rights or obligations hereunder to any third party without restriction. Subject to the preceding sentences, the rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted assignment other than in accordance with this Section 9.1 shall be null and void.
9.2 Governing Law, Jurisdiction, and Venue. This Agreement shall be governed by and construed in accordance with the laws of Luxembourg. Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of the courts of Luxembourg, and the parties hereby irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
9.3 Attorneys’ Fees. If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to this Agreement or the breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and actual legal fees paid or incurred in good faith.
9.4 Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
9.5 Severability. If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
9.6 Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party, nor either party’s agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
9.7 Force Majeure. Neither party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, acts of a public enemy, error in the coding of electronic files, Internet or other network "brownouts" or failures, power failures, novelty of product manufacture or other unanticipated product development problems, and acts of civil and military authorities.
9.8 Export Controls. You shall abide by all applicable export laws and regulations in your use of the Software.
9.9 Captions and Section Headings. The captions and Section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
9.10 Equitable Relief. You acknowledge and agree that due to the unique nature of this Agreement, there can be no adequate remedy at law to compensate NEXON for your breach or threatened breach hereof; that any such breach or threatened breach will allow you or third parties to compete unfairly with NEXON resulting in irreparable harm to NEXON that would be difficult to measure; and, therefore, that upon any such breach or threat thereof, NEXON shall be entitled to injunctive and other appropriate equitable relief (without the necessity of proving actual damages or of posting a bond), in addition to whatever remedies it may have at law, hereunder, or otherwise.
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